Sahebrao R. Patil, Nagpur V. Income tax Officer Ward 1(3), Nagpur

ITA 405/NAG/2013

• Counselvise Citation: [2019] 115 COUNSELVISE.COM (IT) 5226 (ITAT-NAGPUR)
• Duration Of Justice: 5 year(s) 4 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-03-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 02-06-2016
• Assessment Year: 2009-2010
• Appeal Filed On: 11-11-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: U U KASAR
• Assessee Lawyers: C J THAKAR
• Keywords: Sale consideration of property below Jantri Value; Opportunity of being heard; Cost of acquisition; Capital Gains
• Section: 143(3); 50C

Judgement Text

UKXIQJ , UKXIQJ IN THE INCOME TAX APPELLATE TRIBUNAL NAGPUR BENCH, NAGPUR . , , BEFORE SHRI D. KARUNAKARA RAO, AM AND SHRI VIKAS AWASTHY, JM . / ITA NO.405/NAG/2013 / ASSESSMENT YEAR : 200910 SMT. SAROJ SAHEBRAO PATIL, L/H OF LATE SHRI SAHEBRAO R. PATIL, TIKEKAR ROAD, DHANTOLI, NAGPUR. PAN : ACRPP0905C ....... / APPELLANT / V/S. ITO, WARD1(3), NAGPUR. / RESPONDENT ASSESSEE BY : SHRI C. J. THAKAR, ADV. REVENUE BY : SHRI U. U. KASAR, DR / DATE OF HEARING : 26.03.2019 / DATE OF PRONOUNCEMENT : 28.03.2019 / ORDER PER D. KARUNAKARA RAO, AM: THIS APPEAL IS FILED BY THE ASSESSEE AGAINST THE ORDER OF CIT(A)-I, NAGPUR DATED 21.08.2013 FOR THE ASSESSMENT YEAR 2009-10. 2. THE GROUNDS RAISED BY THE ASSESSEE ARE AS UNDER : 2 ITA NO.405/NAG/2013 1] THE HON'BLE CIT(A) ERRED IN LAW AND ON FACTS BY DISALLOWING THE VALUE OF PROPERTY AS ON 01.04.1981 ACCORDING TO THE VALUATION DONE BY DY. REGISTER & STAMP DUTY COLLECTOR, NAGPUR CITY, NAGPUR WHICH IS FURTHER BASED ON THE GR/NOTIFICATION OF NAGPUR IMPROVEMENT TRUST DT. 03.10.1989 ISSUED FROM THE OFFICE OF DIG CONTROLLER OF STAMPS, PUNE. 2] THE LEARNED CIT(A) ERRED IN LAW AND ON FACTS BY PREFERRING THE VALUE DONE BY DVO OVER THE VALUATION CERTIFICATE FROM DY. REGISTER OF STAMPS , NAGPUR SUBMITTED BY THE APPELLANT. 3] THE LEARNED CIT(A) ERRED IN LAW AND ON FACTS BY IGNORING THE FACT THAT THE POSSESSION OF THE APPELLANT ON THE PROPERTY SOLD WAS SUB- JUDICED AND HENCE ADOPTION OF FAIR MARKET RATE HAS NOT RELEVANCE TO THE SAID PROPERTY. HE FURTHER ERRED IN CONSIDERING THE FACT THAT THE SALE OF THE SAID PROPERTY WAS A DISTRESS SALE. 4] ANY OTHER GROUND THAT MAY BE TAKEN AT THE TIME OF HEARING WITH THE PERMISSION OF THE HONBLE TRIBUNAL. 3. BRIEFLY STATED THE RELEVANT FACTS INCLUDE THAT THE ASSESSEE IS AN INDIVIDUAL AND FILED HIS RETURN OF INCOME ON 25.03.2010 DECLARING TOTAL INCOME OF RS.1,49,500/. IN THE ASSESSMENT PROCEEDINGS U/S 143(3) OF THE ACT, THERE WAS A DISPUTE RELATING TO THE TRANSACTIONS OF SALE OF PROPERTY LOCATED WITHIN THE MUNICIPAL LIMIT OF NAGPUR MUNICIPAL CORPORATION, NAGPUR AND THE COMPUTATION OF CAPITAL GAINS. THE MARKET VALUE OF THE SAID PROPERTY WAS RS.87,47,000/. THE PROPERTY WAS REFERRED TO THE VALUATION CELL, NAGPUR. THE DVO VALUED THE SAID PROPERTY AT RS.74,34,364/. AS PER DVO, THE COST OF ACQUISITION OF THE SAID PROPERTY AS ON 01.04.1981 IS VALUED OR CALCULATED AT 3 ITA NO.405/NAG/2013 RS.1,97,599/. WHEN THE PROPOSAL TO DISTURB BOTH (I) COST OF ACQUISITION AND (II) THE MARKET VALUE OF THE PROPERTY AS ON 01.04.1981 WAS PUT TO THE ASSESSEE, THE ASSESSEE REPLIED STATING THAT THE COST OF ACQUISITION AS ON 01.04.1981 SHOULD BE AT RS.9,13,479/, WHICH IS ARRIVED AT BASED ON THE AMENDMENT TO THE VALUES GIVEN IN GR CERTIFICATE. WITH REGARD TO THE DVOS VALUATION, THE ASSESSEE CONTESTED THE SAME BY STATING THAT THE VALUATION OFFICER FAILED TO APPRECIATE THE CERTAIN DEPRECIATING FACTORS OF THE LAND I.E. EXISTENCE OF A NALLHA UNDER DEVELOPMENT OF THE PROPERTY. AFTER CONSIDERING THE SAME, THE ASSESSING OFFICER FINALIZED THE ASSESSMENT. THE RELEVANT DISCUSSION GIVEN IN PARA 6 OF THE ASSESSMENT ORDER IN THIS REGARD. 4. AGGRIEVED WITH THE ABOVE ORDER OF THE ASSESSING OFFICER, THE ASSESSEE FILED AN APPEAL BEFORE THE CIT(A). THE CIT(A) DISMISSED THE APPEAL OF THE ASSESSEE. 5. AGGRIEVED WITH THE ORDER OF THE CIT(A), THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL WITH THE ABOVE EXTRACTED GROUNDS. 4 ITA NO.405/NAG/2013 6. BEFORE US, LD. COUNSEL FOR THE ASSESSEE BROUGHT OUR ATTENTION TO THE FACT THAT THE ASSESSEE - SHRI SAHEBRAO R. PATIL WAS NOT IN A PROPER HEALTH AND, THEREFORE, THE MATTER COULD NOT BE REPRESENTED PROPERLY BEFORE THE LOWER AUTHORITIES. VARIOUS FACTS, WHICH ARE REQUIRED FOR ADMINISTRATION OF JUSTICE TO THE ASSESSEE, WERE NOT BROUGHT TO THE NOTICE OF THE CIT(A) TOO. THUS, THE CIT(A) CONFIRMED THE ORDER OF THE ASSESSING OFFICER IN THE ABSENCE OF RELEVANT FACTS I.E. (I) COST OF ACQUISITION AND (II) FULL MARKET VALUE OF THE LAND. MENTIONING THAT THE ASSESSEE IS NO MORE AND SMT. SAROJ SAHEBRAO PATIL, LEGAL HEIR OF THE ASSESSEE, IS NOW READY TO PURSUE THE APPEAL BEFORE THE TRIBUNAL SERIOUSLY. AS PER LD. AR, THERE IS NEED FOR HEARING OF THE APPEAL ONCE AGAIN BEFORE THE CIT(A). WITHOUT GOING INTO THE FACTS, LD. COUNSEL FOR THE ASSESSEE REQUESTED FOR REMANDING THE ISSUE RAISED IN THE GROUNDS TO THE FILE OF THE CIT(A) FOR ONE MORE ROUND FOR WANT OF BRINGING RELEVANT FACTS TO THE RECORDS. THE FACTS RELATE TO THE COST OF ACQUISITION AND REASONS FOR DIFFERENCE BETWEEN THE VALUES AS PER STAMP DUTY AUTHORITIES ON ONE SIDE AND VALUES SHOWN IN THE REGISTERED DEED WHILE TRANSFERRING THE PROPERTY IN QUESTION, ON THE OTHER. 5 ITA NO.405/NAG/2013 7. THE LD. DR FOR THE REVENUE, ON THE OTHER HAND, RELIED HEAVILY ON THE ORDERS OF THE AUTHORITIES BELOW. 8. ON HEARING BOTH THE SIDES, WE FIND THE PROVISIONS OF SECTION 50C OF THE ACT ARE BROUGHT INTO THE STATUTE BY THE FINANCE ACT, 2002 AND THE SAME STANDS AMENDED FROM TIME TO TIME. THE TRANSACTION IN QUESTION IS COVERED BY THE SAID AMENDMENT. IT IS THE REQUEST OF THE ASSESSEE THAT THE ISSUE SHOULD BE REFERRED AND REMANDED TO THE FILE OF THE CIT(A). CONSIDERING THE PECULIAR FACTS OF THE PRESENT CASE WHERE THE ASSESSEE IS NO MORE AND THE ASSESSEES LEGAL HEIR HAS TO GATHER THE DATA AND MAKE THE REPRESENTATION BEFORE THE AUTHORITIES BELOW, WE FIND IT IS FIT CASE FOR REMANDING THE ISSUE TO THE FILE OF THE CIT(A). ACCORDINGLY, WE DIRECT THE CIT(A), WHO SHALL DECIDE THE ISSUE AFTER GRANTING A REASONABLE OF OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. THUS, THE GROUNDS RAISED BY THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. 6 ITA NO.405/NAG/2013 9. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED ON 28 TH DAY OF MARCH, 2019. SD/- SD/- ( /VIKAS AWASTHY) ( . /D. KARUNAKARA RAO) / JUDICIAL MEMBER / ACCOUNTANT MEMBER UKXIQJ / NAGPUR; / DATED : 28 TH MARCH, 2019. SUJEET / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT. 2. / THE RESPONDENT. 3. THE CIT(A) 4. THE CIT 5. , , UKXIQJ , UKXIQJ / DR, ITAT, NAGPUR BENCH, NAGPUR. 6. / GUARD FILE. / BY ORDER, // TRUE COPY // SENIOR PRIVATE SECRETARY , UKXIQJ / ITAT, NAGPUR.