Bhaktiram Bhalotia, Kolkata V. ACIT, Cir. 3(1), Asansol

ITA 412/KOL/2020

• Counselvise Citation: [2021] 109 COUNSELVISE.COM (IT) 4068 (ITAT-KOLKATA)
• Duration Of Justice: 7 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-02-2021
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Assessment Year: 2014-2015
• Appeal Filed On: 30-06-2020
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: JAYANTA KHANRA
• Keywords: Sale consideration of property below Jantri Value; Set aside
• Section: 43CA; 64

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH A - SMC KOLKATA BEFORE SHRI S ANJAY GARG , JUDICIAL MEMBER . / ITA NO. 412/KOL/2020 ASSESSMENT YEAR: 20 1 4 - 15 BHAKTIRAM BHALOTIA C/O SUBASH AGARWAL & ASSOCIATES, ADVOCATES, SIDHA GIBSON, 1 GIBSON LANE, SUITE 2113, 2 ND FL., KOLKATA - 700 069. [ PAN NO. ADIPB5895P] / V/S . ACIT, CIR - 3 (1) ASANSOL SAHANA APARTMENT, LOWER CHELIDANGA, ASANSOL - 713304, (W.B). / APPELLANT .. / RESPONDENT HEARING THROUGH VIDEO CONFERENCING / BY APPELLANT MR. SUBASH AGARWAL, ADVOCATE, AR / BY RESPONDENT MR. JAYANTA KHANRA, JCIT, SR.DR / DATE OF HEARING 0 9 - 02 - 2021 / DATE OF PRONOUNCEMENT 0 9 - 02 - 2021 / O R D E R TH E PRESENT APPEAL HAS BEEN PREFERRED BY THE ASSESSEE AGAINST THE ORDER DATED 03 - 02 - 202 OF THE COMMISSIONER OF INCOME - TAX (APPEALS), KOLKATA [HEREINAFTER REFERRED TO AS CIT(A)] . 2. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL: - 1(A) FOR THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) ERRED IN GRANTING PART RELIEF AND NOT FULL RELIEF IN RESPECT OF ADD ITION OF RS. 17,83,536/ - MADE BY THE AO ON ACCOUNT OF DIFFERENCE BETWEEN THE SALE VALUE OF FLATS AS PER AGREEMENTS FOR SALE AND THE STAMP DUTY VALUE BY INVOKING THE PROVISIONS OF SECTION 43CA. 1(B) FOR THAT THE LD. CIT(A) WRONGLY CONFIRMED THE ADDITION PER TAINING TO SEVEN PARTIES OUT OF NINE PARTIES TO WHOM FLATS WERE SOLD BY THE ASSESSEE. ITA NO. 412/KOL/2020 A.Y. 20 1 4 - 15 BHAKTIRAM BHALOTIA PAGE 2 2. FOR THAT THE LD. CIT(A) OUGHT TO HAVE DIRECTED THE AO TO REFER OR HIMSELF REFERRED THE MATTER OF THE SEVEN PARTIES IN QUESTION TO THE DEPARTMENTAL VALUATION OFFICER (D VO) WHEN A SPECIFIC REQUEST WAS MADE BEFORE HIM FOR THE SAID PURPOSE. 3. THAT THE APPELLANT CRAVES LEAVE TO ADD, ALTER OR DELETE ALL OR ANY OF THE GROUNDS OF APPEAL. 3. AT THE OUTSET, IT IS NOTICED THAT THE APPEAL FILED BY THE ASSESSEE IS TIME BARRED BY 64 DAYS. A SEPARATE APPLICATION FOR CONDONATION OF SAID DELAY HAS BEEN FILED, WHEREIN REASONS FOR DELAY IN FILING THIS APPEAL HAVE BEEN MENTIONED THAT DUE TO COVID - 19 PANDEMIC SITUATION AND COMPLETE LOCK DOWN THE ASSESSEE WAS UNABLE TO FILE THIS APPEA L BEFORE THE TRIBUNAL IN TIME. CONSIDERING THE ABOVE REASONS MENTIONED THEREIN (IN THE CONDONATION OF APPLICATION) THE DELAY IN FILING THIS APPEAL IS HEREBY CONDONED. 4. THE LD. COUNSEL FOR THE ASSESSEE HAS SUBMITTED THAT THE ASSESSEE DURING THE ASSESSMENT YEAR UNDER CONSIDERATION HAS SOLD HIS 9 (NINE) PROPERTIES TO DIFFERENT PARTIES /PURCHASERS . THE LD. ASSESSING OFFICER ( IN SHORT, LD. AO) MADE THE IMPUGNED ADDITIONS U/S. 43CA OF THE INCOME - TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT) ON ACCOUNT OF DIFFERENCE S FOUND IN SALE PRICE ADOPTED BY THE STAMP DUTY AUTHORITY AS AGAINST THE SALE PRICE DECLARED BY THE ASSESSEE. THE LD. COUNSEL FURTHER HAS SUBMITTED THAT THE LD. CIT(A) HAS ALREADY GIVEN RELIEF TO THE ASSESSEE IN RE SPECT OF TWO PARTIES APPEARING AT SL. NOS. 3 & 5 (SRI RATHINDRA NATH SINGHA & SRI ASIM KUMAR MAITRA) AVAILABLE IN THE CHART GIVEN BY THE LD. AO IN THE ASSESSMENT ORDER AT PAGE - 2 . THE LIST OF R EMAINING 7 ( SEVEN ) PARTIES /PURCHAS E RS TO WHOM THE FLATS/ PR OPERTIES WERE SOLD IS AS UNDER: - S. NO. DEED NO. NAME OF THE PURCHASER MARKET VALUE SALE VALUE DIFFERENCE AMOUNT 1 I - 5202 SHRI AMAL KUMAR SAHA S/O LATE BHABANI GHOSH & SMT. MITHU GHOSH 21,03,300/ - 19,00,000/ - 2,03,300/ - 2 I - 5578 PRADIP KUMAR GHOSH S/O LATE BHABANI GHOSH & SMT. MITHU GHOSH 15,92,865/ - 13,04,100/ - 2,88,765/ - 3 I - 5724 SMT.SUPRITI 15,99,190/ - 14,01,000/ - 1,98,190/ - ITA NO. 412/KOL/2020 A.Y. 20 1 4 - 15 BHAKTIRAM BHALOTIA PAGE 3 CHASRABORTY W/O LATE PRASANTA CHASRABORTY 4. I - 4969 SRI TARA SADHAN CHAKRABORTY S/O LATE BIRESHWAR CHAKRABORTY & SMT. KALYANI CHAKRABORTY 18,19,116/ - 16,61,692/ - 1,57,424/ - 5. I - 1276 SRI DILIP TOPADAR S/O LATE ANIL TOPADAR & SMT. MOHUA TOPADAR 15,92,865/ - 12,57,525/ - 3,35,340/ - 6. I - 659 SRIRAMKRISHNA BHATTACHARYA S/O SRI RAMPRASAD BHATTACHARYA & SMT. PAMPA BHATTACHARYA 17,40,350/ - 15,03,963/ - 2,36,387/ - 7. I - 1344 SMT. ARPITA MONDAL W/O SRI TAPAS MAJHI 21,03,300/ - 18,84,360/ - 2,18,940/ - TOTAL AMOUNT 1,25,50,986/ - 1,09,12,640/ - 16,38,246/ - 5. THE LD. COUNSEL FOR THE ASSESSEE HAS SUBMITTED THAT THE LD. AO HAS IGNORED THE SUBMISSIONS OF THE ASSESSEE REGARDING THE ACTUAL SALE VALUE RECEIVED BY THE ASSESSEE . E VEN THE PRAYER OF THE ASSESSEE TO REFER THE IMPUGNED MATTER TO THE DEPARTMENTAL VALUATION OFFICER TO ASSESS /ASCERTAIN THE ACTUAL MARKET VALUE OF THE SAID PROPERTIES HAS BEEN IGNORED . THE LD. DR ON THE OTHER HAND HAS SUBMITTED THAT THE LD. AO HAS RIGHTLY MADE THE ADDITION ON ACCOUNT OF DIFFERENCE FOUND BETWEEN THE SALE PRICE ADOPTED BY THE STAMP DUTY AUTHORITY AND SALE PRICE DECLARED BY THE ASSE SSEE. 7. I HAVE CONSIDERED THE RIVAL CONTENTIONS AND GONE THROUGH THE RECORD INCLUDING THE ORDERS OF THE LOWER AUTHORITIES. I FIND THAT THE ASSESSEE SINCE BEGINNING HAS PLEADED THAT THE MARKET VALUE OF THE PROPERTY IS LESS. THE CASE OF THE ASSESSEE IS THA T HE HAS DISCLOSED THE ACTUAL SALE VALUE RECEIVED BY HIM . THE LD. COUNSEL FOR THE ASSESSEE HAS SUBMITTED THAT IF THE LD. A O IS NOT SATISFIED WITH THE EXPLANATIONS/SUBMISSIONS OF THE ASSESSEE, HE SHOULD HAVE REFERRED THE MATTER TO THE D.V.O TO ASCERTAIN/ASSESS THE ACTUAL VALUE /MARKET VALUE OF THE PROPERTY. THE LD. DR HAS ALSO NOT OBJECTED TO REFER THE MATTER INVOLVED IN THIS APPEAL TO THE D.V.O FOR ASCERTAINING THE ACTUAL MARKET VALUE OF THE PROPERTIES IN QUESTION AS ON THE D ATE OF EXECUTION OF SALE DEED OF THE SE PROPERTIES. IN VIEW OF ABOVE THE IMPUGNED ORDER OF THE LD. CIT(A) IS SET ASIDE AND ITA NO. 412/KOL/2020 A.Y. 20 1 4 - 15 BHAKTIRAM BHALOTIA PAGE 4 THE MATTER IS RESTORED TO THE FILE OF THE LD. AO WITH THE DIRECTION TO GET THE REPORT OF THE DEPARTMENTAL VALUATION OFFICER IN RES PECT OF MARKET VALUE OF THE AFORESAID PROPERTIES AT THE TIME OF EXECUTION /REGISTRATION OF SALE DEED AND THEREAFTER TO DECIDE/ ADJUDICATE THE ISSUE CONSIDERING THE DVOS REPORT AS WELL AS THE SUBMISSIONS/EVIDENCES FILED BY THE ASSESSEE IN THIS REGARD. NEE DLESS TO SAY THAT LD. AO WILL ALLOW THE ASSESSEE ADEQUATE OPPORTUNITY TO PRESENT HIS CASE AND THEREAFTER, WILL DECIDE THE ISSUE(S) AFRESH BY WAY OF PASSING A SPEAKING ORDER IN ACCORDANCE WITH LAW. T HE APPEAL OF THE ASSESSEE IS TREATED AS ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN OPEN COURT AT THE CLOSE OF THE HEARING ON T UESDAY , 9 TH FEBRUARY , 2021 . SD/ - (S ANJAY GAR G ) JUDICIAL MEM BER KOLKATA, * *PP /SR.PS - 0 9 / 0 2 /20 2 1 / COPY OF ORDER FORWARDED TO: - 1. /APPELLANT - SHRI BHAKTIRAM BHALOTIA C/O SUBASH AGARWAL & ASSOCIATES, ADVOCATES, SIDDHA GIBSON, 1 GIBSON LANE, SUITE 213, 2 ND FL., KOLKATA - 700 069. 2. /RESPONDENT - ACIT, CIR - 3(1), ASANSOL SAHANA APARTMENT, LOWER CHELIDANGA, ASANSOL - 713304. 3. / CONCERNED CIT 4. - / CIT (A) 5. , / DR, ITAT, KOLKATA 6. / GUARD FILE. /TRUE COPY / BY ORDER/ , / ,