AKBARALLYS DEPARTMENTS STORES, MUMBAI V. ITO 12(3)(3), MUMBAI

ITA 4027/MUM/2011

• Counselvise Citation: [2012] 119 COUNSELVISE.COM (IT) 7580 (ITAT-MUMBAI)
• Duration Of Justice: 10 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-03-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2007-2008
• Appeal Filed On: 16-05-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: C SRINIVASA REDDY
• Keywords: Sale consideration of property below Jantri Value
• Section: 50C

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES A, MUMBAI BEFORE SHRI. D.K. AGARWAL (JM) AND SHRI. N.K. BILLA IYA (AM) ITA NO.4027/MUM/2011 ASSESSMENT YEAR: 2007-08 M/S. AKBARALLYS DEPARTMENTAL STORES, 45, VEER NARIMAN ROAD, FOUNTAIN, MUMBAI 23. PAN: AAAFA0780B VS. THE COMMISSIONER OF INCOME TAX (APPEALS)-23, 1 ST FLOOR, AAYAKAR BHAVAN, MUMBAI 400 020. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI VIJAY MEHTA RESPONDENT BY : SHRI C. SRINIVASA REDDY DATE OF HEARING: 15.3.2012 DATE OF PRONOUNCEMENT: 21-3-2012 O R D E R PER N.K. BILLAIYA, A.M: THE PRESENT APPEAL IS DIRECTED BY THE ASSESSEE AGAI NST THE ORDER OF THE LD. CIT (A) 23, MUMBAI DATED 15.02.2011 FOR THE ASSESSM ENT YEAR 2007-08. THE ASSESSEE HAS RAISED AS MANY AS THREE GROUNDS OF APP EAL WHICH ARE AS UNDER: ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A ND COMMISSIONER OF INCOME-TAX (APPEALS)-23, MUMBAI ERRED IN UPHOLDING T HE ACTION OF THE INCOME TAX OFFICER, WARD 12 (3) (3) MUMBAI WHO BY AP PLYING PROVISIONS OF SECTION 50C OF THE INCOME TAX ACT, 1961, HAD HELD T HE VALUE OF RS. 2,28,31,000/- CONSIDERED FOR STAMP DUTY PURPOSES AS THE FULL CONSIDERATION RECEIVED FOR THE PURPOSES OF CAPITAL GAINS IN CASE OF SALE OF KURLA PROPERTY OF THE ASSESSEE INSTEAD OF TAKING THE CONSIDERATION OF RS. 1,31,52,786/- ACTUALLY RECEIVED BY THE ASSESSEE AS PER THE DEVELOPMENT AGR EEMENT WITH M/S. CLASSIC BUILDERS & DEVELOPERS. 2. IN THE CIRCUMSTANCES OF THE CASE THE LEARNED CIT (A) NOT ONLY ERRED BY FAILING TO REFER THE MATTER FOR THE VALUATION OF TH E PROPERTY HERSELF TO THE VALUATION OFFICER AT THE APPELLATE STAGE, CITING TH E REASON THAT SHE IS NOT EMPOWERED TO DO SO BUT ALSO ERRED IN FAILING TO REM AND THE MATER BACK TO THE AO AND DIRECT THE AO TO RE-COMPUTE THE VALUE OF THE SE PROPERTIES AFTER OBTAINING REPORTS FROM THE VALUATION CELL. 2 ITA NO.4027/MUM/2011 3. WITHOUT PREJUDICE TO THE ABOVE GROUNDS, THE APPE LLANT PLEADS THE HONBLE ITAT TO REFER THE MATTER TO THE AO WITH THE DIRECTION THAT HE SHOULD REFER VALUATION MATTER TO THE DEPARTMENTAL VALUATIO N OFFICER (DVO) AND THEREAFTER TO RE-COMPUTE THE CAPITAL GAINS. 2. AT THE OUTSET THE LEARNED AR STARTED WITH GROUND NO.3 AND SUBMITTED THAT THE MATTER SHOULD BE RESTORED TO THE FILES OF THE AO WI TH A DIRECTION TO REFER THE VALUATION OF THE PROPERTY SOLD TO THE APPROPRIATE V ALUATION OFFICER. BEFORE TAKING UP THIS GROUND LET US SEE THE FACTS OF THE CASE. 3. DURING THE YEAR UNDER CONSIDERATION IT IS SEEN T HAT THE ASSESSEE HAS SOLD THE KURLA PROPERTY TO M/S. CLASSIC BUILDERS & DEVELOPER S VIDE AGREEMENT DATED 23.12.2006 FOR A TOTAL SALE CONSIDERATION OF RS. 1, 31,52,786/-. THE SAID AGREEMENT WAS REGISTERED AND THE MARKET VALUE OF THE PROPERTY FOR THE STAMP DUTY PURPOSES IS TAKEN AT RS. 2,28,31,000/-. THE ASSESSING OFFICER BY APPLYING THE PROVISIONS OF SEC.50C OF THE INCOME TAX ACT, 1961 ADOPTED THE STAM P DUTY VALUE AS THE FULL VALUE OF SALE CONSIDERATION AND ACCORDINGLY LONG TERM CAP ITAL GAIN WAS COMPUTED BY THE AO. 4. THE ASSESSEE QUESTIONED THE ACTION TAKEN BY THE ASSESSING OFFICER BEFORE THE LD. CIT (A). THE ASSESSEE REQUESTED THE LD. CIT (A ) TO REFER THE MATTER TO THE VALUATION OFFICER. THE LD. CIT (A) AFTER CONSIDERI NG THE SUBMISSIONS OF THE ASSESSEE CAME TO THE CONCLUSION THAT THE ACTION TAKEN BY THE ASSESSING OFFICER IS LAWFUL AND REQUIRES NO INTERFERENCE AND DISMISSED THE APPEAL O F THE ASSESSEE. 3 ITA NO.4027/MUM/2011 5. AFTER CONSIDERING THE ORDERS OF THE LOWER AUTHOR ITIES AND ALSO THE SUBMISSIONS OF MADE BY THE LEARNED AR WE DEEM IT FIT TO RESTORE THE MATTER BACK TO THE FILES OF THE ASSESSING OFFICER WITH A DIRECTION THAT THE MAT TER RELATING TO THE VALUATION OF THE PROPERTY SHOULD BE REFERRED TO THE APPROPRIATE VALU ATION OFFICER AS PER THE PROVISIONS OF SEC. 50C(2) OF THE INCOME TAX ACT. ACCORDINGLY, GROUND NO.3 IS ALLOWED FOR STATISTICAL PURPOSES. GROUND NOS. 1 & 2 BECOME IN F RUCTUOUS. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLO WED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 21 ST DAY OF MARCH, 2012. SD/- SD/- (D.K. AGARWAL) (N.K. BILLA IYA) JUDICIAL MEMBER ACCOUNTANT MEMB ER DATE : 21-3-2012 AT :MUMBAI OKK COPY TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A), MUMBAI CONCERNED 4. THE CIT, MUMBAI CITY CONCERNED 5. THE DR A BENCH, ITAT, MUMBAI // TRUE COPY// BY ORDER ASSISTANT REGISTRAR ITAT, MUMBAI BENCHES, MUMBAI