Smt. Anju Gupta, Lucknow V. Dy. Commissioner of Income Tax, Lucknow

ITA 387/LKW/2015

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 4795 (ITAT-LUCKNOW)
• Duration Of Justice: 6 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-01-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 11-01-2016
• Assessment Year: 2010-2011
• Appeal Filed On: 16-06-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Sale consideration of property below Jantri Value; Capital asset; Principle of natural justice
• Section: 50C

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH B, LUCKNOW BEFORE SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER AND SHRI A.K. GARODIA, ACCOUNTANT MEMBER ITA NO.387/LKW/2015 ASSESSMENT YEAR:2010-2011 SMT. ANJU GUPTA, B-40, SEC-P, ALIGANJ, LUCKNOW. PAN:AEOPG4316D VS. DY.C.I.T., CENTRAL CIRCLE-II, LUCKNOW. (APPELLANT) (RESPONDENT) ITA NO.388/LKW/2015 ASSESSMENT YEAR:2010-2011 SHRI DAYA SHANKAR GUPTA, B-40, SEC-P, ALIGANJ, LUCKNOW. PAN:AEPPG5756A VS. DY.C.I.T., CENTRAL CIRCLE-II, LUCKNOW. (APPELLANT) (RESPONDENT) O R D E R PER A. K. GARODIA, A.M. BOTH THESE APPEALS ARE FILED BY TWO DIFFERENT BUT RELATED ASSESSEES, WHICH ARE DIRECTED AGAINST TWO SEPARATE ORDERS OF LEARNED CIT(A)-III, LUCKNOW DATED 03/11/2014 IN THE CASE OF SMT. ANJU G UPTA FOR ASSESSMENT YEAR 2010-11 AND DATED 10/11/2014 IN THE CASE OF SH RI DAYA SHANKAR GUPTA FOR THE SAME ASSESSMENT YEAR. BOTH THESE APPEALS W ERE HEARD TOGETHER AND ARE BEING DISPOSED OF BY THIS COMMON ORDER FOR THE SAKE OF CONVENIENCE. APPELLANT BY SHRI ABHINAV MEHROTRA, ADVOCATE RESPONDENT BY DR. A. K. SINGH, CIT, D.R. DATE OF HEARING 11/01/2016 DATE OF PRONOUNCEMENT 1 5 /01/2016 2 2. THE GROUNDS RAISED BY THE ASSESSEE I.E. I.T.A. N O.387/LKW/2015 ARE AS UNDER: 1. BECAUSE ON FACTS AND IN THE CIRCUMSTANCE OF TH E CASE THE LD. CIT(A) ERRED IN LAW IN APPROVING THE ACTION OF THE AO BY INVOKING THE PROVISIONS OF SECTION 50C OF THE IN COME TAX ACT, 1961 IN RELATION TO THE SALE OF PROPERTY S ITUATED AT C-8/66 JANKIPURAM EXTENSION WITHOUT DISPOSING OF F THE OBJECTIONS RAISED IN THIS REGARD BY THE ASSESSEE. 2. BECAUSE ON FACTS AND IN THE CIRCUMSTANCE OF THE CASE THE LD. CIT (A) ERRED IN LAW IN APPROVING THE ACTION OF THE AO WHILE ADOPTING SALE CONSIDERATION OF PROPERTY TRANS FERRED SITUATED AT C-8/66 JANKIPURAM EXTENSION AT RS.21,00,000/- ON THE BASIC OF VALUE OF STAMP DUTY AGAINST THE ACTUAL CONSIDERATION OF RS.9,00,000/- W ITHOUT REFERRING THE MATTER TO THE VALUATION CELL THOUGH S PECIFIC REQUEST BY THE ASSESSEE WAS MADE IN THIS REGARD CIT ING COGENT REASONS AND IN VIOLATION OF THE PROVISIONS O F SEC 50C. 3. BECAUSE ON FACTS AND IN THE CIRCUMSTANCE OF THE CASE THE LD. CIT (A) ERRED IN LAW IN APPROVING THE ACTION OF THE AO, WHO HAS ADJUDICATED THE ISSUE, WITHOUT CONSIDER ING DOCUMENTS AND INFORMATION'S SUBMITTED BY THE ASSESS EE DURING THE ASSESSMENT PROCEEDINGS. 4. BECAUSE THE LD. CIT (A) ERRED IN LAW AND ON FACT S IN APPROVING THE ADDITIONS MADE BY THE AO, WHICH, HOWE VER WERE MADE CONTRARY TO THE FACTS OF THE CASE & PROVI SION OF LAW &HIGHLY EXCESSIVE. 5. BECAUSE ON FACTS AND IN THE CIRCUMSTANCE OF THE CASE THE LD. CIT (A), FURTHER ERRED IN APPROVING THE ADDITIO N MADE BY THE AO WHICH IS AGAINST THE FACTS OF THE CASE AN D PRINCIPAL OF NATURAL JUSTICE AND WITHOUT PROVIDING SUFFICIENT OPPORTUNITY TO THE ASSESSEE. 6. BECAUSE THE ORDER PASSED BY LD. CIT (A), ON THIS COUNT IS BAD IN LAW. 3 3. THE GROUNDS RAISED BY THE ASSESSEE I.E. I.T.A. N O.38*/LKW/2015 ARE AS UNDER: 1. BECAUSE ON FACTS AND IN THE CIRCUMSTANCE OF THE CASE THE LD. CIT(A) ERRED IN LAW IN APPROVING THE ACTION OF THE AO BY INVOKING THE PROVISIONS OF SECTION 50C OF THE IN COME TAX ACT, 1961 IN RELATION TO THE SALE OF PROPERTY S ITUATED AT C-8/66 JANKIPURAM EXTENSION WITHOUT DISPOSING OF F THE OBJECTIONS RAISED IN THIS REGARD BY THE ASSESSEE. 2. BECAUSE ON FACTS AND IN THE CIRCUMSTANCE OF THE CASE THE LD. CIT (A) ERRED IN LAW IN APPROVING THE ACTION OF THE AO WHILE COMPUTING THE CAPITAL GAINS BEING 50% SHARE I N THE HANDS OF THE ASSESSEE ON TRANSFER OF PROPERTY SITUA TED AT C-8/66 JANKIPURAM EXTENSION, JOINTLY OWNED WITH SPO USE OF THE ASSESSEE MRS. ANJU GUPTA IGNORING THE FACTS THAT THE WHOLE CAPITAL GAIN WAS EARNED BY MRS. ANJU GUPT A. 3. BECAUSE ON FACTS AND IN THE CIRCUMSTANCE OF THE CASE THE LD. CIT (A) ERRED IN LAW IN APPROVING THE ACTION OF THE AO WHILE ADOPTING SALE CONSIDERATION OF PROPERTY TRANS FERRED SITUATED AT C-8/66 JANKIPURAM EXTENSION AT RS.21,00,000/- ON THE BASIC OF VALUE OF STAMP DUTY AGAINST THE ACTUAL CONSIDERATION OF RS.9,00,000/- W ITHOUT REFERRING THE MATTER TO THE VALUATION CELL THOUGH S PECIFIC REQUEST BY THE ASSESSEE WAS MADE IN THIS REGARD CIT ING COGENT REASONS AND IN VIOLATION OF THE PROVISIONS O F SEC 50C. 4. BECAUSE ON FACTS AND IN THE CIRCUMSTANCE OF THE CASE THE LD. CIT (A) ERRED IN LAW WHILE COMPUTING TAX AND IN TEREST IN RELATION TO CAPITAL GAIN ON TRANSFER OF CAPITAL ASSET. 5. BECAUSE ON FACTS AND IN THE CIRCUMSTANCE OF THE CASE THE LD. CIT (A) ERRED IN LAW IN APPROVING THE ACTION OF THE AO, WHO HAS ADJUDICATED THE ISSUE, WITHOUT CONSIDER ING DOCUMENTS AND INFORMATION'S SUBMITTED BY THE ASSESS EE DURING THE ASSESSMENT PROCEEDINGS. 6. BECAUSE THE LD. CIT (A) ERRED IN LAW AND ON FACT S IN APPROVING THE ADDITIONS MADE BY THE AO, WHICH, HOWE VER WERE MADE CONTRARY TO THE FACTS OF THE CASE & PROVI SION OF LAW & HIGHLY EXCESSIVE. 4 7. BECAUSE ON FACTS AND IN THE CIRCUMSTANCE OF THE CASE THE LD. CIT (A), FURTHER ERRED IN APPROVING THE ADDITIO N MADE BY THE AO WHICH IS AGAINST THE FACTS OF THE CASE AN D PRINCIPAL OF NATURAL JUSTICE AND WITHOUT PROVIDING SUFFICIENT OPPORTUNITY TO THE ASSESSEE. 8. BECAUSE THE ORDER PASSED BY LD. CIT (A), ON THIS COUNT IS BAD IN LAW. 4. IT WAS SUBMITTED BY LEARNED A. R. OF THE ASSESS EE THAT THE ISSUE INVOLVED IN BOTH THE APPEALS IS REGARDING ADDITION MADE BY THE ASSESSING OFFICER UNDER THE HEAD INCOME FROM LONG TERM CAPITA L GAINS BY INVOKING THE PROVISIONS OF SECTION 50C OF THE ACT WITHOUT RE FERRING THE MATTER TO D.V.O. AND HENCE, AS PER THE TRIBUNAL ORDER IN THE CASE OF LATE SMT. RUKUMANI RATHI VS. INCOME TAX OFFICER IN I.T.A. NO. 147/LKW/2015 DATED 23/09/2015, THE MATTER SHOULD BE RESTORED BACK TO T HE FILE OF THE ASSESSING OFFICER FOR OBTAINING THE REPORT FROM D.V.O. HE SU BMITTED COPY OF THE TRIBUNAL ORDER. HE ALSO SUBMITTED THAT IN THIS TRI BUNAL ORDER, THE TRIBUNAL HAS FOLLOWED THE JUDGMENT OF HON'BLE CALCUTTA HIGH COURT RENDERED IN THE CASE OF SUNIL KUMAR AGARWAL VS. CIT REPORTED IN [20 14] 225 TAXMAN 211 (CAL) WHEREIN IT WAS HELD THAT EVEN IF THIS IS NOT SO CLAIMED BY THE ASSESSEE, THE ASSESSING OFFICER SHOULD REFER THE MATTER TO D. V.O. U/S 50C(2) OF THE ACT. 5. LEARNED D. R. OF THE REVENUE SUPPORTED THE ORDER S OF THE AUTHORITIES BELOW. 6. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. WE FI ND THAT IN BOTH THESE CASES, THE ASSESSING OFFICER HAS INVOKED THE PROVIS IONS OF SECTION 50C WITHOUT REFERRING THE MATTER TO D.V.O. U/S 50C(2) O F THE ACT. AS PER THIS TRIBUNAL ORDER RENDERED IN THE CASE OF SMT. RUKUMAN I RATHI (SUPRA), IN WHICH THE TRIBUNAL FOLLOWED A JUDGMENT OF HON'BLE C ALCUTTA HIGH COURT IN 5 THE CASE OF SUNIL KUMAR AGARWAL (SUPRA), THE ASSESS ING OFFICER WAS REQUIRED TO REFER THE MATTER TO D.V.O. U/S 50C(2) OF THE ACT . RESPECTFULLY FOLLOWING THIS TRIBUNAL ORDER AND IN TURN FOLLOWING THE JUDGM ENT OF HON'BLE CALCUTTA HIGH COURT, WE SET ASIDE THE ORDER OF LEARNED CIT(A ) IN BOTH THE CASES AND RESTORE THE MATTER TO ASSESSING OFFICER FOR FRESH D ECISION WITH THE DIRECTION THAT THE ASSESSING OFFICER SHOULD REFER THE MATTER TO D.V.O. AS PER THIS JUDGMENT OF HON'BLE CALCUTTA HIGH COURT AND AFTER O BTAINING THE REPORT FROM D.V.O., HE SHOULD DECIDE THE ISSUE AFRESH. 7. IN THE RESULT, BOTH THE APPEALS ARE ALLOWED FOR STATISTICAL PURPOSES. (ORDER WAS PRONOUNCED IN THE OPEN COURT ON THE DATE MENTIONED ON THE CAPTION PAGE) SD/. SD/. (SUNIL KUMAR YADAV) ( A. K. GARODIA ) JUDICIAL MEMBER ACCOUNTANT MEMB ER DATED:15/01/2016 *SINGH COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT. 3. CONCERNED CIT 4. THE CIT(A) 5. D.R., I.T.A.T., LUCKNOW ASST T. REGISTRAR