Shri Anil Bhatewara, Indore V. THE ITO-5(3), Indore

ITA 430/IND/2016

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 5683 (ITAT-INDORE)
• Duration Of Justice: 5 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-10-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 31-08-2016
• Assessment Year: 2009-2010
• Appeal Filed On: 29-04-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: N D PATWA
• Assessee Lawyers: K G GOYAL
• Keywords: Sale consideration of property below Jantri Value
• Section: 50C

Judgement Text

ANIL BHATEVARA ITA NO. 430IND/2016 1 , , IN THE INCOME TAX APPELLATE TRIBUNAL, INDORE BENCH, INDORE .., ..!', #$ # !% BEFORE SHRI D.T. GARASIA, JUDICIAL MEMBER AND SHRI O.P. MEENA, ACCOUNTANT MEMBER I.T.A. NO. 430/IND/2016 ASSESSMENT YEAR: 2009-10 ANIL BHATEWARA INDORE :: APPELLANT VS ITO 5(3) INDORE :: RESPONDENT REVENUE BY SHRI ASHISH GOYAL & SHRI N.D. PATWA ASSESSEE BY SHRI K.G. GOYAL ! ' #$ DATE OF HEARING 15.9.2016 %&'( #$ DATE OF PRONOUNCEMENT 28.10.2016 * O R D E R PER SHRI D.T. GARASIA, JM THE SHORT FACTS OF THE CASE ARE THAT DURING THE COUR SE OF ASSESSMENT PROCEEDINGS IT WAS NOTICED THAT THE ASSES SEE ANIL BHATEVARA ITA NO. 430IND/2016 2 HAS SOLD TWO HOUSES DURING THE YEAR UNDER CONSIDERATI ON. THESE PROPERTIES WERE FLAT BEARING NO. 101A AND 101A1 LOCATED AT INDIRA COMPLEX, NAVLAKHA,INDORE. ON VERIFICATI ON IT WAS NOTICED THAT THE ASSESSEE HAS TAKEN ACTUAL VALUE OF SALE CONSIDERATION OF FLAT NO. 101A AT RS.96,000/- WHIL E COMPUTING THE LONG TERM CAPITAL GAINS WHEREAS THE MARKET VALUE ASSESSED BY THE REGISTRY IS RS.138600/-. THE ASSESSEE FAILED TO SHOW LONG TERM CAPITAL GAIN IN COMPUTATION OF INCOME. CONSIDERING THE COST OF ACQUISI TION OF FLAT ATRS.445.15 PER SQ. FT., THE LONG TERM CAPITAL G AIN IN RESPECT OF FLAT NO.101A AND FLAT NO. 101-A1 WAS TAKEN AT RS.63009/- AND RS. 308521/-. THE ASSESSEE FAILED TO SH OW THE CAPITAL GAINS, THEREFORE, THE ADDITION OF RS.93861/ - WAS MADE ON ACCOUNT OF LONG TERM CAPITAL GAIN AND FOR THE SAME PENALTY HAS BEEN LEVIED AND THE LEARNED CIT(A) HAS ENHANCED THE SAME. ANIL BHATEVARA ITA NO. 430IND/2016 3 2. THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE ASSESSEE HAS SOLD THE PROPERTY AT CONSIDERATION OF RS.9,60,000/- WHILE THE REGISTRARY HAS TAKEN THE MARKET VALUE OF THE SAME AT RS.13,86,000/-. SECTION 50C INVO KES AND HELD THAT DEEMING VALUE OF SECTION 50C SHALL BE TAKE N AS FULL VALUE. SECTION 50C IS DEEMING CHARGE WHERE TH ERE IS NO EVIDENCE AVAILABLE THAT NO MONEY IS RECEIVED, THER E SHOULD NOT BE ANY CASE OF CONCEALMENT OR FURNISHING OF INACCURATE PARTICULARS. THERE WAS NO EVIDENCE THAT THE ASSESSEE HAS RECEIVED ON MONEY. THEREFORE, THE ISSUE IN CONTROVERSY IS COVERED BY THE DECISION OF THE TRIBU NAL IN THE CASE OF 125 TTJ 856 WHEREIN SIMILAR ISSUE HAS BEEN DECIDED. SIMILAR ISSUE IS ALSO COVERED BY THE DECISIO N OF MADRAS HIGHN COURT IN THE CASE OF CIT VS. MADAN THEATRES; 44 TAXMAN 382 (CAL). ON THE OTHER HAND, THE LEARNED DR RELIED UPON THE ORDERS OF THE AUTHORITIES BELOW. ANIL BHATEVARA ITA NO. 430IND/2016 4 3. WE HAVE HEARD BOTH THE SIDES. LOOKING TO THE FACTS AND CIRCUMSTANCES OF THE CASE, WE FIND THAT THE ISSUE IN CONTROVERSY IS WHETHER THE ASSESSEE HAS SOLD THE PROP ERTY AT RS.9,60,000/- WHILE THE REGISTRAR HAS TAKEN THE MARKE T VALUE AT RS.13,86,000/-, THE PENALTY CAN BE IMPOSED U/S 271 IS DECIDED BY THE CALCUTTA HIGH COURT IN THE CASE OF CIT VS. MADAN THEATRE (SUPRA) WHEREIN IT WAS DECIDED AS UNDER :- THUS OBVIOUSLY, IT IS ONLY ON ACCOUNT OF DEEMING PROVISIONS OF S.50C, THE A.O. HAS MADE THE ADD BY ADOPTING THE SALE CONSIDERATION OF RS.5,19,77,000/- BEING THE VALUE ADOPTED FOR THE PURPOSE OF STAMP VALUATION. THE REVENUE HAS ALSO NOT SHOWN AS TO HOW THE ASSESSEE COULD BE HELD TO HAVE ACTUALLY RECEIVE D THIS AMOUNT WHICH IS IN EXCESS THE AMOUNT OF RS.2,51,50,000. IT HAS ALSO NOT BEEN SHOWN AS TO ANIL BHATEVARA ITA NO. 430IND/2016 5 WHETHER ANY CORRESPONDING ADDITION HAS BEEN MADE IN THE HANDS OF THE BUYER. IN ANY CASE, THE ISSUE IS A LSO COVERED BY THE DECISION OF THE COORDINATE BENCH OF THIS TRIBUNAL IN THE CASE OF RENU HINGORANI (SUPRA). IN THE CIRCUMSTANCES, RESPECTFULLY FOLLOWING THE DECISION OF THE COORDINATE BENCH OF THE TRIBUNAL IN THE CASE OF REN U HINGORANI (SUPRA) AS ALSO ON ACCOUNT OF THE FACT TH AT TH REVENUE HAS NOT BEEN ABLE TO DISLODGE THE FINDINGS OF THE LEARNED CIT(A) THAT THE BONA FIDES OF THE ASSES SEE ARE GENUINE, THE FINDINGS OF THE LEARNED CIT(A) STA ND CONFIRMED. IN THE CIRCUMSTANCES, THE APPEAL OF THE REVENUE IS DISMISSED. RESPECTFULLY FOLLOWING THE SAME, WE ALLOW THE APPEAL OF THE ASSESSEE. 4. IN THE RESULT, THE APPEAL OF THE ASSESSEE STANDS ALLOWED. ANIL BHATEVARA ITA NO. 430IND/2016 6 THE ORDER HAS BEEN PRONOUNCED IN OPEN COURT ON 28 OCTOBER, 2016. SD/- SD/- ( ..!') (..) #$ (O.P.MEENA) (D.T.GARASIA) ACCOUNTANT MEMBER J UDICIAL MEMBER (') / DATED : 28 OCTOBER, 2016. DN/ ANIL BHATEVARA ITA NO. 430IND/2016 7