RAJUL S. SANGHAVI, MUMBAI V. ACIT 19(3), MUMBAI

ITA 4329/MUM/2015

• Counselvise Citation: [2017] 126 COUNSELVISE.COM (IT) 8039 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 4 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-12-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Next Hearing Date: 27-04-2017
• Assessment Year: 2009-2010
• Appeal Filed On: 13-07-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Sale consideration of property below Jantri Value; Valuation report
• Section: 50C; 2

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH D, MUMBAI BEFORE SHRI D.T. GARASIA, JUDICIAL MEMBER AND SHRI N.K. PRADHAN, ACCOUNTANT MEMBER ITA NO.4329/M/2015 ASSESSMENT YEAR: 2009-10 SHRI RAJUL S. SANGHAVI, 301, VAIBHAV CHAMBERS, OPP. INCOME TAX OFFICE, BANDRA KURLA COMPLEX, BANDRA (EAST) MUMBAI-400 051 PAN: AEFPS 3273L VS. ACIT-19(3), 3 RD FLOOR, PIRAMAL CHAMBERS, LALBAUG, PAREL, MUMBAI 400 012 (APPELLANT) (RESPONDENT) PRESENT FOR: ASSESSEE BY : SHRI S.C. TIWARI, A.R. SHRI RUTUJA N. PAWAR, A.R. REVENUE BY : SHRI PURUSHOTTAM KUMAR, D.R. DATE OF HEARING : 12.09.2017 DATE OF PRONOUNCEMENT : 11.12.2017 O R D E R PER D.T. GARASIA , JUDICIAL MEMBER: THE PRESENT APPEAL HAS BEEN PREFERRED BY THE ASSES SEE AGAINST THE ORDER DATED 27.05.2015 OF THE COMMISSIONER OF I NCOME TAX (APPEALS) [HEREINAFTER REFERRED TO AS THE CIT(A)] R ELEVANT TO ASSESSMENT YEAR 2009-10. 2. THE ONLY EFFECTIVE GROUND IS GROUND NO.1 WHICH R EADS AS UNDER: ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LE ARNED COMMISSIONER OF INCOME TAX (APPEALS) ('CIT(A)') ERRED IN CONFIRMING THE ORDER OF THE ASSESSING OFFICER DETERMINING THE LONG TERM CAPITAL GAIN ARIS ING ON THE SALE OF UNITS NO. L- ITA NO.4329/M/2015 SHRI RAJUL S. SANGHAVI 2 95, L-96, L-97, G-91, G-92 AND G-93 SITUATED AT DRE AMS - THE MALL LYING AND SITUATED AT CTS NOS. 642, 642/1 TO 642/29 & 654 OF VILLAGE KANJUR & CTS NO. 426 OF VILLAGE BHANDUP, TALUKA KURLA, L.B.S. MARG, BHAN DUP WEST, MUMBAI - 400 078 ('THE PROPERTY') BY SUBSTITUTING THE VALUE AS DETERMINED BY STAMP AU THORITIES IN PLACE OF THE CONSIDERATION MENTIONED IN THE AGRE EMENT AS PER PROVISION OF SECTION 50C OF INCOME TAX ACT, 1961 BY RELYING ON T HE VALUATION REPORT OF THE DISTRICT VALUATION OFFICER ('DVO'). 3. THE SHORT FACTS OF THE CASE ARE AS UNDER: THE ASSESSING OFFICER (HEREINAFTER REFERRED TO AS THE AO) DURING THE COURSE OF ASSESSMENT PROCEEDINGS NOTICED THAT THE ASSESSEE DECLARED LONG TERM CAPITAL GAIN FROM SALE OF PROPER TY BEING SHOP NOS.L-95, L-96, L-97, G-91, G-92 AND G-93 AT RS.20, 86,940/-. HE, THEREFORE, ASKED THE ASSESSEE TO EXPLAIN WHY THE VA LUE ADOPTED BY THE STAMP DUTY AUTHORITY IN RESPECT OF SALE OF ABOVE PR OPERTY BE NOT TAKEN AS SALE CONSIDERATION IN TERMS OF PROVISIONS OF SEC TION 50C OF THE ACT AND AFTER CONSIDERING THE REPLY HE HELD THAT AS THE SUB-REGISTRAR FOR THE PURPOSE OF STAMP DUTY VALUATION HAS DETERMINED THE MARKET VALUE OF THE ABOVE SHOPS AT RS.1,80,34,632/-. THE SAME, THEREFORE, IS TAKEN AFTER TAKING INTO CONSIDERATION THE LOCATION OF THE PROPERTY AND ALL RELATED FACTORS. THE AO HAS WORKED OUT LONG CAPITA L GAIN FROM THE SALE OF ABOVE SHIPS AT RS.38,33,582/-. 4. MATTER CARRIED TO THE LD. CIT(A) AND THE LD. CIT (A) HAS DISMISSED THE SAME. 5. THE LD. A.R., DURING THE COURSE OF HEARING, HAS DRAWN OUR ATTENTION TO PAGE 41 OF THE REPORT OF THE GOVERNMEN T VALUER WHEREIN THE VALUATION OFFICER HAS VALUED THE SHOP NOS.G-91, G-92 & G-93 AT THE RATE OF RS.94,770/- PER SQ. MTR. WHILE SHOP NO. L-95 TO L-97 WERE ITA NO.4329/M/2015 SHRI RAJUL S. SANGHAVI 3 ASSESSED AT THE RATE OF RS.1,14,390/-. THE LD. A.R . SUBMITTED THAT THIS PROPERTY IS A DISPUTED SALE OF PROPERTY OF L-9 5, L-96 & L-97 AND G-92 & G-93 WAS TAKEN AT RS.20,86,940/-. THE LD. A .R. SUBMITTED THAT WHILE THE ASSESSEE HAD GIVEN SALE INSTANCE OF L-390, L-225, L- 270 WHERE THE SALE CONSIDERATION IS RS.14,84,000/-. THE VALUATION OFFICER HAS COMPLETELY IGNORED THE VALUATION ADOPTE D BY THE ASSESSEE. THEREFORE, REASONABLE ESTIMATION OF THE SHOP MAY BE MADE. 6. ON THE OTHER HAND, THE LD. D.R. RELIED UPON THE ORDER OF THE REVENUE. 7. WE HAVE HEARD THE RIVAL CONTENTIONS OF BOTH THE P ARTIES. LOOKING TO THE FACTS AND CIRCUMSTANCES OF THE CASE, WE FIND THAT FOR PROPERTY NO.G-91, G-92 & G-93 THE VALUE TAKEN BY TH E ASSESSEE IS RS.75,900/- WHILE THE ASSESSEE HAS SUBMITTED THE GR OUND SALE INSTANCE ON THE SAME DATE IS RS.54,976/- AND HIGHES T IS RS.62,899/-. THEREFORE, OVERALL VALUE COMES TO RS.75,900/-. LOO KING TO FACTS AND CIRCUMSTANCES OF THE CASE, WE FIND THAT THE ASSESSE E HAS GIVEN THE SALE INSTANCE, DATE OF AGREEMENT AND AREA OF SQ. FT . FOR SALE INSTANCE BY THE ASSESSEE AND SALE INSTANCE BY VALUATION OFFI CER FOR GROUND LEVEL SHOPS WHICH READ AS UNDER: SR.NO DOC. NO. DATE OF AGREEMENT UNIT NO. CONSIDERATION AREA RATE PER SQ. MT. AVERAGE RATE PER SQ. MTR. SALE INSTANCE OF APPELLANT ITA NO.4329/M/2015 SHRI RAJUL S. SANGHAVI 4 1 4627/20 08 7/2/08 L - 39 0 1,484,000 23.64 SQ.MTR 62,774 70,641 2 4682/20 08 7/3/08 L - 255 1,400,000 22.3 SQ. MTR 62,780 3 4683/20 08 7/3/08 L - 244 1,400,000 22.3 SQ. MTR 62,780 4 4684120 08 7/3/08 L - 292 1400,000 22.3 SQ. MTR 62,780 5 4795/20 08 7/15/08 L - 306 829,500 15.05 SQ.MTR 55,116 6 4907/20 08 7/24/08 L - 190 1,225,000 22.3 SQ. MTR 54,932 7 5285/20 08 8/7/08 L - 208 1,519,000 27.66 SQ. MTR 54,916 8 5284/20 08 8/7/08 L - 207 1,893,500 34.46 SQ. MTR 54,947 SALE INSTANCE OF VALUATION REPORT 9 1882/20 08 3/20/08 L - 387 2,100,000 22.3 SQ. MTR 94,170 10 4652/20 08 7/14/08 L - 359 2,310,000 24.53 SQ. MTR 94,170 11 1908/20 08 3/16/08 L - 203 8,715,000 74.05 SQ. MTR 117,69 1 SALE INSTANCE OF APPELLANT 75,900 12 5071/20 08 7/31/08 G - 221 1,060,500 19.29 SQ. MTR 54,976 13 5615/20 08 8/29/08 G - 238 1,900,000 271 SQ. FT.CARP ET 62,889 14 4742/20 5/6/10 G - 258 1,225,000 22.3 SQ. 54,933 ITA NO.4329/M/2015 SHRI RAJUL S. SANGHAVI 5 10 MTR SALE INSTANCE OF VALUATION REPORT 15 4886/20 08 7/24/08 G - 71 3,078,000 32.67 SQ.MTR 94,215 16 5065/20 08 7/31/08 G - 123 2,100,0 00 22.3 SQ.MTR 94,170 17 5099/20 08 7/31/08 G - 30 3,078,000 32.67 SQ.MTR 94,215 8. CONSIDERING THE ABOVE FACTS, WE ESTIMATE THE AVE RAGE SQ. MTR. FOR GROUND LEVELS AT 70,641/- AND RS.75,900/-. WE A CCORDINGLY ALLOW THE APPEAL OF THE ASSESSEE. ORDER PRONOUNCED IN THE OPEN COURT ON 11.12.2017. SD/- SD/- (N.K. PRADHAN) (D.T. GARASIA) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATED: 11.12.2017. * KISHORE, SR. P.S. COPY TO: THE APPELLANT THE RESPONDENT THE CIT, CONCERNED, MUMBAI THE CIT (A) CONCERNED, MUMBAI THE DR CONCERNED BENCH //TRUE COPY// [ BY ORD ER DY/ASSTT. REGISTRAR, ITAT, MUMBAI.