RAMKISHAN A DEVIDAYAL, MUMBAI V. DCIT CIR 6(2), MUMBAI

ITA 406/MUM/2016

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 9872 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 1 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-03-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Assessment Year: 2008-2009
• Appeal Filed On: 28-01-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAJESH KUMAR YADAV
• Assessee Lawyers: DEVIDAS DEDIA
• Keywords: Sale consideration of property below Jantri Value; Valuation report; Reassessment proceedings
• Section: 143(3); 50C; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, MUM BAI , , BEFORE S/SHRI RAJENDRA, A.M. AND SANDEEP GOSAIN,J.M . ./ ././ ./ ITA NO. 406/MUM/2016 / ASSESSMENT YEAR: 2008-09 RAMKISHAN A.DEVIDAYAL 1 ST FLOOR, DEVIDAYAL ESTATE, DARUKHANA, REAY ROAD, MUMBAI-400 010. PAN: AAEPD 6706 E VS. THE DCIT, CIRCLE 6 (2), 5 TH FLOOR AAYAKAR BHAVAN, MUMBAI-400 020. ( / // / APPELLANT ) ( / RESPONDENT ) REVENUE BY: SHRI RAJESH KUMAR YADAV ASSESSEE BY: SHRI DEVIDAS DEDIA / // / DATE OF HEARING: 21/02/2018 !' / DATE OF PRONOUNCEMENT: 14.03.2018 , ,, , 1961 254(1) ORDER U/S.254(1)OF THE INCOME-TAX ACT,1961(ACT) , ,, , -PER RAJENDRA,AM: CHALLENGING THE ORDER DATED 2/11/2015 OF CIT(A)-12, MUMBAI, THE ASSESSEE HAS FILED THE PRESENT APPEAL. ASSESSEE -AN INDIVIDUAL, FILED HIS RETURN OF INCOME ON 31/7/2008 DECLARING TOTAL INCOME AT RS.87.46 LAKHS. ASSESSMENT U/S. 143 (3) WAS COMPLETED ON 31.12.2010. LATER ON THE AO ISSUED A NOTICE U/S. 148 ON 04/03/2013 AS HE WAS OF THE OPINION THAT TAXABLE INCOME HAD ESCAPED ASSESSMENT. HE COMPLETED ASSESSM ENT U/S. 143(3) R.W.S. 147 OF THE ACT ON 15/01/2014 DETERMINING THE INCOME OF THE ASSESSE E AT RS.91.55 LAKHS. 2. EFFECTIVE GROUND OF APPEAL IS ABOUT COMPUTATION OF LONG TERM CAPITAL GAIN (LTCG) AS PER THE PROVISIONS OF SECTION 50C (3) OF THE ACT. D URING THE REASSESSMENT PROCEEDINGS THE AO OBSERVED THAT THE ASSESSEE HAD SOLD A PROPERTY AT R S.25 LAKHS, THAT AS PER THE SALE DEED FOR STAMP DUTY PURPOSES THE VALUE OF THE PROPERTY WAS S HOWN AT RS.1.18 CRORES, THAT THE CAPITAL GAIN ARISING OUT OF THE SALE WERE NOT DISCLOSED IN THE RETURN OF INCOME.HE REFERRED THE MATTER TO THE VALUATION CELL OF THE DEPARTMENT FOR ESTIMAT ING THE VALUE OF THE PROPERTY TO BE ADOPTED U/S. 50C OF THE ACT. AS THE VALUATION REPORT WAS NO T RECEIVED TILL THE COMPLETION OF ASSESSMENT PROCEEDINGS SO, HE MENTIONED THAT REMEDIAL ACTION, IF NECESSARY WOULD BE TAKEN AFTER RECEIPT 406/M/16 RAMKISHAN A. DEVIDAYAL 2 OF THE REPORT. AFTER RECEIVING THE REPORT THE AO OB SERVED THAT VALUATION OFFICER HAD VALUED THE PROPERTY AT RS.3.03 CRORES, THAT THE ASSESSEES SHA RE IN THE PROPERTY WAS 50% I.E. RS.1.51 CRORES. THE AO ISSUED NOTICE TO THE ASSESSEE IN TH AT REGARD. AFTER CONSIDERING THE SUBMISSION OF THE ASSESSEE THE AO HELD THAT WHILE DETERMINING THE VALUE OF THE PROPERTY, THE VALUATION OFFICER HAD CONSIDERED ALL NECESSARY DETAILS,THAT H E HAD CONSIDERED THE SALE INSTANCES OF THE AREA, THAT THE VALUATION OFFICER HAD ADOPTED THE RA TES BASED ON COMPARABLE SALES AND WITH REFERENCE TO READY RECKONER OF YEAR 2007. ACCORDING LY, THE AO RECOMPUTED THE LTCG TAKING THE VALUE OF THE PROPERTY AT RS.3.03 CRORES WHEREIN THE ASSESSEE HAD 50% SHARES. 3. AGGRIEVED BY THE ORDER OF AO, THE ASSESSEE PREFERR ED AN APPEAL BEFORE THE FIRST APPELLATE AUTHORITY (FAA) AND MADE SUBMISSIONS. AFTER CONSIDE RING THE AVAILABLE MATERIAL THE FAA HELD THAT THE ORDER OF THE AO WAS IN ACCORDANCE WIT H THE PROVISIONS OF LAW, THAT HE HAD OBTAINED A REPORT FROM DISTRICT VALUATION OFFICER ( DVO), THAT HE COMPUTED THE LTCG AFTER CONSIDERING THE PROVISIONS OF SECTION 50C OF THE AC T, THAT THE DVO HAD ADOPTED THE CORRECT RATES.FINALLY SHE UPHELD THE ORDER OF THE AO. 4. BEFORE US, THE AUTHORISED REPRESENTATIVE (AR) ARGUE D THAT THERE WAS NO JUSTIFICATION FOR ADOPTING THE VALUE ESTIMATED BY DVO, THAT THE ASSES SEE HAD ADOPTED THE VALUE AS PER THE STAMP DUTY VALUATION. HE REFERRED TO PROVISIONS OF SECTION 50C(3) OF THE ACT.THE DEPARTMENTAL REPRESENTATIVE (DR) LEFT THE ISSUE TO THE DISCRETION OF THE BENCH. 5. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL BEFORE US. WE WOULD LIKE TO REPRODUCE THE PROVISIONS OF SECTION 50C(3) OF THE A CT AND THE SAME READ AS UNDER :- (3).SUBJECT TO THE PROVISIONS CONTAINED IN SUB-SEC TION (2), WHERE THE VALUE ASCERTAINED UNDER SUB-SECTION (2) EXCEEDS THE VALUE ADOPTED OR ASSESSED OR ASSESSABLE BY THE STAMP VALUATION AUTHORITY REFERRE D TO IN SUB-SECTION (1), THE VALUE SO ADOPTED OF ASSESSED OR ASSESSABLE BY SUCH AUTHORITY SHALL BE TAKEN AS THE FULL VALUE OF THE CONSIDERATION RECEIVED OR ACCRUING AS A RESULT OF THE TRANSFER. 406/M/16 RAMKISHAN A. DEVIDAYAL 3 IN OUR OPINION, THE PROVISIONS OF SECTION ARE VERY CLEAR AND PROVIDE FOR APPLYING THE STAMP DUTY VALUATION AND NOT VALUATION MADE BY THE DVO.TH EREFORE, REVERSING THE ORDER OF THE FAA WE DECIDE THE EFFECTIVE GROUND OF APPEAL IN FAVOUR THE ASSESSEE . IN THE RESULT APPEAL FILED BY ASSESSEE IS ALLOWED. #$ % . ORDER PRONOUNCED IN THE OPEN COURT ON 14 TH MARCH, 2018. 14 2018 SD/- SD/- ( /SANDEEP GOSAIN) ( / RAJENDRA) / JUDICIAL MEMBER / ACCOUNTANT MEMBER MUMBAI; &' /DATED : 14 .03.2018 . JV.SR.PS. / COPY OF THE ORDER FORWARDED TO : 1. APPELLANT / 2. RESPONDENT / 3. THE CONCERNED CIT(A)/ , 4. THE CONCERNED CIT / 5. DR D BENCH, ITAT, MUMBAI / , , . . . 6. GUARD FILE/ //TRUE COPY// / BY ORDER, / DY./ASST. REGISTRAR , /ITAT, MUMBAI.