ACIT, Circle - 35, Kolkata, Kolkata V. Shri Pankaj Kajaria, Kolkata

ITA 422/KOL/2011

• Counselvise Citation: [2011] 119 COUNSELVISE.COM (IT) 7226 (ITAT-KOLKATA)
• Duration Of Justice: 7 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-10-2011
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2006-2007
• Appeal Filed On: 11-03-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S K ROY
• Assessee Lawyers: N P JAIN
• Keywords: Valuation report

Judgement Text

, , , , , , ,, , IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH : KOLKATA [ . . . . , ,, , . .. . ! ! ! !. .. . , , , , '# '# '# '# , '# '# '# '# ] [BEFORE SHRI N. VIJAYAK UMARAN, JM & SHRI C. D. RAO, AM] $ $ $ $ / I.T.A NO.422/KOL/2011 %& '( %& '( %& '( %& '(/ // / ASSESSMENT YEAR : 2006-07 ASSTT. COMMISSIONER OF INCOME TAX -VS.- SHRI PANKAJ KAJARIA CIRCLE-35, KOLKATA. KOLKATA [PAN : AFCPK 23 64 L] [ *+ *+ *+ *+ /APPELLANT ] ]] ] [ -.*+ -.*+ -.*+ -.*+/ // / RESPONDENT ] ]] ] *+ *+ *+ *+ / FOR THE APPELLANT : SHRI S. K. ROY -.*+ -.*+ -.*+ -.*+ / FOR THE RESPONDENT : S/SHRI N. P. JAIN & D EEPAK JAIN / 0 !# / 0 !# / 0 !# / 0 !# /DATE OF HEARING : 12.10.2011 1' 0 !# 1' 0 !# 1' 0 !# 1' 0 !# /DATE OF PRONOUNCEMENT : '2 /ORDER . . . . , PER N. VIJAYA KUMARAN, J. M. THIS APPEAL BY THE DEPARTMENT IS DIRECTED AGAINST O RDER OF LD. CIT(A)-XX, KOLKATA DATED 27.12.2010 FOR ASSESSMENT YEAR 2006-07. 2. THE GROUNDS ADJUDICATED BY THE REVENUE ARE AS UN DER :- (1) THE LD. CIT(A) ERRED IN RELYING ON A CASE LAW SANTO SH KUMAR DALMIA 208 ITR 337 WHICH IS DISTINGUISHABLE FROM THE FACTS OF THE PRESENT CASE AS IN THE CASE OF SANTOSH KUMAR DALMIA, THE PROPERT Y WAS SOLD WHEREAS IN THE PRESENT CASE I.E. PANKAJ KAJARIA, THE SAID P ROPERTY WAS PURCHASED. (2) THE LD. CIT(A) ALSO ERRED IN GIVING RELIEF BY N OT ACCEPTING THE VALUE DETERMINED BY D.V.O. WHO IS AN EXPERT AND HAD ARRIV ED AT THE VALUE AFTER ALL CONSIDERATIONS OF RELEVANT FACTS AND DOCUMENTS AND AFTER NECESSARY EXERCISE ON THE GROUND THAT THERE IS NO SUBSTANTIAL DIFFERENCE BETWEEN THE VALUE ESTIMATED BY THE VALUATION OFFICER AND THE CO NSIDERATION DECLARED BY THE ASSESSEE. 3. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS, PERUS ED THE MATERIAL AVAILABLE ON RECORD INCLUDING THE PRECEDENTS. [ ITA NO. 421/KOL/2011] 2 4. LD. DEPARTMENTAL REPRESENTATIVE SUBMITTED THAT T HE DECISION RELIED BY THE LD. CIT(A) IN THE CASE OF ITO VS. SANTOSH KUMAR DALMIA [1994] 20 8 ITR 337 (CAL.) IS DISTINGUISHABLE FROM THE FACTS OF THE PRESENT CASE UNDER APPEAL. AS IN THE C ASE RELIED, THE PROPERTY WAS SOLD WHEREAS IN THE PRESENT CASE UNDER APPEAL THE SAID PROPERTY WAS PUR CHASED. 5. FURTHER, LD. DEPARTMENTAL REPRESENTATIVE SUBMITT ED THAT THE VALUE DETERMINED BY THE DVO IS THE VALUE ARRIVED AT BY THE EXPERT AFTER CONSIDE RING ALL THE RELEVANT FACTS AND DOCUMENTS. THEREFORE, IT IS TO BE ACCEPTED THAN THE ONE DECLAR ED BY THE ASSESSEE. LD. DEPARTMENTAL REPRESENTATIVE, THEREFORE, RELIED ON THE ASSESSMENT ORDER AND THE GROUNDS OF APPEAL BEFORE THE TRIBUNAL. 6. ON THE OTHER HAND, LD. COUNSEL APPEARING ON BEHA LF OF THE ASSESSEE SUBMITTED THAT THE DECISION OF HONBLE CALCUTTA HIGH COURT IN THE CASE OF SANTOSH KUMAR DALMIA (SUPRA) HAS BEEN CORRECTLY APPLIED BY THE LD. CIT(A). TO SUPPORT, LD . COUNSEL APPEARING ON BEHALF OF THE ASSESSEE FURTHER INVITED OUR ATTENTION TO THE DECISION OF HO NBLE JURISDICTIONAL HIGH COURT IN THE CASE OF SMT. TARAWATI DEVI AGARWAL VS. ITO [1986] 162 ITR 6 06 (CAL.), WHEREIN THE HONBLE JURISDICTIONAL HIGH COURT LAID DOWN THE RATIO THAT THE VALUATION IS ALWAYS A QUESTION OF OPINION AND UNLESS THERE WAS A CLEAR FINDING ON THE BASIS OF TH E MATERIALS THAT THE ASSESSEE INVESTED IN THE CONSTRUCTION OF THE HOUSE PROPERTY MORE THAN WHAT H AD BEEN SHOWN BY HER IN THE COURSE OF ASSESSMENT PROCEEDINGS. ASSESSING OFFICER COULD NOT PROCEED MERELY ON THE BASIS OF THE VALUATION REPORT OF THE DVO. RELYING ON THE DECISION, LD. COU NSEL SUBMITTED THAT ASSESSEE BESIDES THE PURCHASE CONSIDERATION, ASSESSEE HAS TO PAY TO THE RESPECTIVE SOCIETY FOR TRANSFER OF MEMBERSHIP WITH PAYMENT PARTICULARS WERE AVAILABLE IN ASSESSEE S PAPER BOOK AT PAGES 94 TO 109. AT PAGE 106 OF THE PAPER BOOK, IS THE CONSENT LETTER OF THE SOC IETY. SOCIETIES CONDITIONS AND RULES ARE AVAILABLE IN ASSESSEES PAPER BOOK AT PAGE 88. REPAIRS AND RE NOVATIONS ARE DETAILED, AVAILABLE IN ASSESSEES PAPER BOOK AT PAGE 13. LD. COUNSEL SUBMITTED THAT A SSESSEE RECORDED IN THE BOOKS THE PRICE PAID TO THE SOCIETY AND THE REPAIRS WILL GO TO THE COST FOR THE PROPERTY. THEREFORE, WHAT HAS BEEN SHOWN IN THE BOOKS OF ACCOUNT HAS TO BE TAKEN FOR THE PURPOS E OF APPLICATION OF SECTION 69B OF THE ACT. FURTHER, ON IDENTICAL SET OFF FACTS, CALCUTTA TRIBU NAL B BENCH IN THE CASE OF CIT VS. MRS. ANNE WRIGHT IN ITA NO.101/KOL/2005 DATED 30.06.2005 HAS HELD THAT THE ESTIMATION BY DVO CAN NOT BE A CONCRETE EVIDENCE TO ENABLE THE ASSESSING OFFICER TO MAKE THE ADDITION. IT IS INTERNAL PAGE 3, PARA [ ITA NO. 421/KOL/2011] 3 9 OF THE SAID ORDER. TO ARRIVE AT THE CONCLUSION, T HE DEPARTMENT RELIED ON THE DECISIONS OF HONBLE RAJASTHAN HIGH COURT IN THE CASE OF CIT VS. PREM NA TH MOTORS (RAJASTHAN) P. LTD. [2004] 265 ITR 331 RAJ.) AND IN THE CASE OF CIT VS. HOTEL JOSHI [2 000] 242 ITR 478 (RAJ.) AS RIGHTLY CONTENDED BY THE LD. COUNSEL, TO DETERMINE THE VALUE OF THE A SSET, THE VALIDITY HAS TO BE TAKEN INTO CONSIDERATION, ALL THE PROCEDURAL CONNECTED FIGURE S, AGE OF THE BUILDING, THE CONDITION OF THE BUILDING, THE LOCALITY IN WHICH IT IS SITUATED. ALL THESE FACTORS HAVE TO BE TAKEN INTO CONSIDERATION AND THE LD. CIT(A) HAS CAREFULLY ANALYSED ALL THESE POINTS AND ULTIMATELY CAME TO THE CONCLUSION THAT THIS ADDITION IS NOT JUSTIFIED IN VIEW OF THE DECISION OF HONBLE JURISDICTION HIGH COURT IN THE CASE OF SANTOSH KUMAR DALMIA (SUPRA). 7. AFTER CONSIDERING THE RIVAL SUBMISSIONS, WE ARE OF THE VIEW THAT THE ORDER OF LD. CIT(A) IS QUITE JUSTIFIED AS THERE ARE NUMBER OF DECISIONS OF THE TRIBUNAL AND THE ORDERS RELIED BY THE LD. COUNSEL WOULD GO TO SHOW THAT THE ORDER OF LD. CIT( A) IS QUITE JUSTIFIED. FURTHER, TO POINT OUT THAT TO STRENGTHEN THE CONTENTION IN SUPPORT OF THE FIND INGS OF THE LD. CIT(A), DIFFERENCE IN THE COST PRICE ADOPTED COMES ONLY 7% WHEREAS THE HONBLE MUM BAI HIGH COURT IN THE CASE OF VISHNU MARUTI GHOSALE VS. APPROPRIATE AUTHORITY [2006} 285 ITR 459 (BUM.) IN PARA 13, INTERNAL PAGE 6, THEIR LORDSHIPS OBSERVED THAT IT IS NOT OPEN TO TH E APPROPRIATE AUTHORITY TO TAKE INTO ACCOUNT SALE INSTANCE OF NON-COMPARABLE PROPERTIES AND ARRIVE AT A CONCLUSION THAT THERE IS UNDER-VALUATION OF 15% OR MORE BY MAKING ADDITIONS AND DELETIONS OF TH E ADVANTAGES AND DISADVANTAGES ATTACHED TO THE TOTALLY DISSIMILAR PROPERTIES. IN OTHER WORDS, WHEN THERE IS UNDER-VALUATION NOT EXIST 15% AND IN THE PRESENT CASE, IT IS AMPLY EXPLAINED THAT THE DIFFERENCE IS ONLY 7% AND THAT BEING THE FACTUAL POSITION. WE, THEREFORE, DECLINE TO INTERFERE WITH THE ORDER OF THE LD. CIT(A). 8. IN THE RESULT, REVENUE APPEAL IS DISMISSED. '2 '2 '2 '2 #' #' #' #' 3 4 56 3 4 56 3 4 56 3 4 56 !# !# !# !# ORDER PRONOUNCED IN THE COURT ON 14.10.2011. SD/- SD/- [ . .. . ! ! ! !. .. . , ,, , '# '# '# '# ] [ . . . . , ,, , ] [ C. D. RAO ] [ N. VIJAYAKUMARAN ] ACCOUNTANT MEMBER JUDICIAL MEMBER D ATED : 14TH OCTOBER, 2011. [ ITA NO. 421/KOL/2011] 4 '2 0 -%% 7''/ COPY OF THE ORDER FORWARDED TO: 1. *+ /APPELLANT : ASSTT.COMMISSIONER OF INCOME TAX, CIR CLE-35, 18, RABINDRA SARANI, PODDAR C OURT, KOLKATA-700 001. 2 -.*+ / RESPONDENT : SHRI PANKAJ KAJARIA, 48, B.R.B. BAS U ROAD, 5 TH FLOOR, KOLKATA-700 001 . 3. %2 - / CIT, 4. %2 ()/ CIT(A), KOLKATA. 5. ?%4 -%/ DR, KOLKATA BENCHES, KOLKATA [. -%/ TRUE COPY] '2/ BY ORDER, /ASSTT REGISTRAR [KKC AB %C %D /SR.PS]