Sunil Harriram Kriplani, Pune V. Assistant Commissioner of Income-tax, Circle - 6, Pune

ITA 434/PUN/2018

• Counselvise Citation: [2019] 112 COUNSELVISE.COM (IT) 6979 (ITAT-PUNE)
• Duration Of Justice: 11 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-03-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 10-01-2019
• Assessment Year: 2009-2010
• Appeal Filed On: 07-03-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: M K VERMA
• Keywords: Sale consideration of property below Jantri Value; Reassessment proceedings; Capital Gains
• Section: 50C; 147; 148

Judgement Text

, - IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH SMC, PUNE . , BEFORE SHRI D. KARUNAKARA RAO, AM . / ITA NO.434/PUN/2018 / ASSESSMENT YEAR : 2009-10 SUNIL HARRIRAM KRIPLANI, B-101, DSK FRANGEPANI, SADHU VASWANI CHOWK, PUNE-411001. PAN : ANZPK0662N . /APPELLANT VS. ITO, WARD-7(4), PUNE. . / RESPONDENT / APPELLANT BY : SHRI NIKHIL PATHAK / RESPONDENT BY : SHRI M. K. VERMA / DATE OF HEARING : 12.02.2019 / DATE OF PRONOUNCEMENT: 01.03.2019 / ORDER PER D. KARUNAKARA RAO, AM : THIS APPEAL IS FILED BY THE ASSESSEE AGAINST THE ORDER OF CIT(A)-5, PUNE DATED 21.12.2017 FOR THE ASSESSMENT YEAR 2009-10. 2. BEFORE ME, LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE VALIDITY OF REASSESSMENT PROCEEDINGS IS THE ISSUE RAISED BY THE ASSESSEE VIDE GROUND OF APPEAL NO.1 AND 3. THE ASSESSEE SUBMITTED THAT THE REASSESSMENT IS INVALID SINCE THE REASONS FOR WHICH NOTICE U/S 148 WAS ISSUED ARE INCORRECT AND FAR FROM THE FACTS. BRINGING MY ATTENTION TO PAGE 6 AND 7 OF THE PAPER BOOK, LD. COUNSEL READ OUT THE FOLLOWING REASONS :- IT HAS COME TO MY NOTICE THAT ASSESSEE HAS EXECUTED A SALE DEED DATED 02.03.2009 FOR A CONSIDERATION OF RS.32,00,000/-. HOWEVER, THE STAMP DUTY VALUATION OF THE SAID PROPERTY AS PER THE INDEX-II IS RS.67,11,768/-. AS PER SECTION 50C OF THE I.T. ACT, 1961, THE ASSESSEE SHOULD HAVE OFFERED TO TAX, THE CAPITAL GAINS AS PER THE STAMP VALUATION. HOWEVER, ON VERIFICATION, IT IS SEEN THAT THE ASSESSEE HAS NOT FILED HIS RETURN OF INCOME FOR THE SAID A.Y. ITA NO.434/PUN/2018 - 2 - IN VIEW OF THE ABOVE, I HAVE REASONS TO BELIEVE THAT INCOME TO THE EXTENT OF RS.67,11,768/- HAS ESCAPED ASSESSMENT FOR A.Y. 2009-10 WITHIN THE MEANING OF SECTION 147 OF THE I.T. ACT, 1961. ISSUE NOTICE U/S 148 OF THE I.T. ACT, 1961 FOR RE-OPENING THE ASSESSMENT FOR A.Y. 2009-10. 3. FROM THE ABOVE, LD. AR SUBMITTED THAT THE FAILURE TO FILE THE RETURN OF INCOME AND FAILURE TO FOLLOW THE PROVISIONS OF SECTION 50C OF THE ACT ARE THE ISSUES FOR WHICH NOTICE U/S 148 OF THE ACT WAS ISSUED ON 30.03.2016 BY THE ITO, WARD 7(1), PUNE. REFERRING TO THE CONTENTS OF PAGE 2, 3 AND 4 OF THE PAPER BOOK, LD. COUNSEL SUBMITTED THAT THE RETURN WAS ACTUALLY FILED ON 17.08.2010 AND BROUGHT MY ATTENTION TO PAGE 8 OF THE PAPER BOOK I.E. COPY OF THE ACKNOWLEDGEMENT BEARING NO.0563003689. 3.1 FURTHER, ON THE COMPUTATION OF INCOME ISSUE QUA THE PROVISIONS OF SECTION 50C OF THE ACT, LD. COUNSEL BROUGHT MY ATTENTION TO PAGE 9 OF THE PAPER BOOK WHICH IS BASICALLY COMPUTATION OF TOTAL INCOME OF THE ASSESSEE FOR THE YEAR UNDER CONSIDERATION. HE DEMONSTRATED THE FACT OF OFFERING CAPITAL GAINS IN ACCORDANCE WITH THE PROVISIONS OF SECTION 50C OF THE ACT. ALTHOUGH, THE SAID INFORMATION WAS COMMUNICATED TO THE ITO, WARD 6(4), PUNE ON 10.03.2016, IT IS SURPRISING TO SEE FOR THE SAME REASONS, THE ITO, WARD 7(1), PUNE WAS ISSUED NOTICE U/S 148 OF THE ACT WITHOUT APPRECIATING THE FACT THAT THE ASSESSEE FILED A RETURN OF INCOME AND OFFERED THE COMPUTATION OF INCOME ON CAPITAL GAINS UNDER THE PROVISIONS OF SECTION 50C OF THE ACT. CONSIDERING THE SAME, LD. AR SUBMITTED THAT THE REASSESSMENT PROCEEDINGS IS NOT SUSTAINABLE IN LAW. 4. ON THE OTHER HAND, LD. DR FOR THE REVENUE RELIED HEAVILY ON THE ORDER OF THE ASSESSING OFFICER ON THIS LEGAL ISSUE. 5. ON HEARING BOTH THE SIDES ON THIS LEGAL ISSUE, I FIND THE REASON WAS MENTIONED ABOVE INCLUDE I.E. (I) THE ASSESSEES FAILURE TO FILE THE RETURN OF INCOME AND (II) FAILURE TO OFFER THE COMPUTATION OF CAPITAL GAINS AS PER THE ITA NO.434/PUN/2018 - 3 - PROVISIONS OF SECTION 50C OF THE ACT. ON PERUSING OF THE PAPER BOOK REFERRED ABOVE, I FIND THE ASSESSING OFFICERS REASONS ARE ILL-FOUNDED AND ARE INCORRECT AND UNSUSTAINABLE IN LAW. THE ASSESSEE FILED THE RETURN OF INCOME ON 17.08.2010 AND OFFERED THE CAPITAL GAINS AS PER THE PROVISIONS OF SECTION 50C OF THE ACT. AGAINST THE SALE CONSIDERATION OF RS.32,00,000/-, THE ASSESSEE COMPUTED THE CAPITAL GAINS OF RS.67,11,768/- AS PER THE STAMP DUTY VALUATION. 5.1 CONSIDERING THE SAME, I AM OF THE OPINION THE REASSESSMENT PROCEEDINGS IS BAD IN LAW. CONSIDERING THE RELIEF GRANTED TO THE ASSESSEE ON THIS PRELIMINARY AND LEGAL ISSUE, I AM OF THE OPINION, THERE IS NO NEED FOR ADJUDICATING THE MERITS LINKED WITH THE GROUNDS RAISED BY THE ASSESSEE IN THIS APPEAL. ACCORDINGLY, THE GROUNDS RAISED BY THE ASSESSEE ARE ALLOWED. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED ON THIS 01 ST DAY OF MARCH, 2019. SD/- (D. KARUNAKARA RAO) / ACCOUNTANT MEMBER / PUNE; DATED : 01 ST MARCH, 2019. SUJEET / COPY OF THE ORDER IS FORWARDED TO : 1. / THE APPELLANT; 2. / THE RESPONDENT; 3. THE CIT(A)-5, PUNE; 4. THE CCIT, PUNE; 5. , , - / DR SMC, ITAT, PUNE; 6. / GUARD FILE. / BY ORDER, //TRUE COPY// SENIOR PRIVATE SECRETARY , / ITAT, PUNE