RAVINDERSINGH LAMBA, MUMBAI V. ITO 21(2)2, MUMBAI

ITA 4363/MUM/2013

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 3769 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 11 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-05-2016
• Appeal Filed By: Assessee
• Bench Allotted: D
• Next Hearing Date: 09-04-2015
• Assessment Year: 2009-2010
• Appeal Filed On: 31-05-2013
• Court: TRIBUNAL
• Department Lawyers: B S BIST
• Assessee Lawyers: AJIT MANWANI
• Keywords: Sale consideration of property below Jantri Value; Opportunity of being heard; Principle of natural justice; Fair market value
• Section: 50C

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, MUMBAI BEFORE S/SHRI B.R. BASKARAN (AM) & RAMLAL NEGI (JM) I.T.A. NO. 4363 /MUM/ 2013 (ASSESSMENT YEAR 2009 - 10 ) RAVINDERSINGH LAMBA FLAT NO. 441, BUILDING NO. 4 SEVA SAMITI NAGAR SION KOLIWADA MUMBAI - 400 03 7. VS. ITO WARD 21(2)2 PRATYAKSHKAR BHAVAN BANDRA KURLA COMPLEX BANDRA EAST MUMBAI - 400 051. ( APPELLANT ) ( RESPONDENT ) PAN NO. AAMPL1519K ASSESSEE BY SHRI AJIT MANWANI DEPARTMENT BY SHRI B.S. BIST DATE OF HEARING 8.3 . 201 6 DATE OF PRONOUNCE MENT 11 . 5 . 201 6 O R D E R PER B.R. BASKARAN, A M : - THE ASSESSEE HAS FILED THIS APPEAL CHALLENGING THE ORDER DATED 16.1.2013 PASSED BY LEARNED CIT(A) - 32, MUMBAI AND IT RELATES TO A.Y. 2009 - 10. 2. THE ASSESSEE IS AGGRIEVED BY THE DECISION OF LEARNED CIT(A) IN CONFIRMING THE CAPITAL GAIN COMPUTED BY THE ASSESSING OFFICER BY ADOPTING FAIR MARKET VALUE OF THE PROPERTY AS PER SECTION 50C OF THE ACT. 3. THE APPEAL IS BARRED BY LIMITATION BY 75 DAYS. THE ASSESSEE HAS MOVED A PETITION PRAYING THE BENCH TO CONDON E THE DELAY. WE HAVE HEARD THE PARTIES ON THIS PRELIMINARY ISSUE. HAVING REGARDING TO THE SUBMISSIONS MADE IN THE AFFIDAVIT, WE CONDON E THE DELAY AND ADMIT THE APPEAL FOR HEARING. 4. LEARNED AR PLACED RELIANCE ON THE DECISIONS RENDERED BY THE COO RDINATE BENCH OF THE TRIBUNAL IN THE CASE OF ITO VS. MR. ABDUL AZIZ ABDUL KADER (ITA NO. 6934/M/2011 DATED 15.2.2013) AND ATUL G. PURANIK VS. ITO [(2011) 11 RAVINDERSINGH LAMBA 2 ITR 120] AND SUBMITTED THAT THE ASSESSEE HAS SOLD HIS LEASEHOLD RIGHTS AND HENCE PROVISIONS OF SE CTION 50C ARE APPLICABLE ONLY TO LAND OR BUILDING OR BOTH AND NOT TO LEASE HOLD RIGHTS. 5. ON THE CONTRARY LEARNED DEPARTMENTAL REPRESENTATIVE SUBMITTED THAT THE ASSESSEE DID NOT APPEAR BEFORE LEARNED CIT(A) HENCE THERE WAS NO OCCASION FOR LEARNED CIT( A) TO CONSIDER THIS ASPECT. FURTHER HE SUBMITTED THAT CONTRARY VIEWS HAVE BEEN EXPRESSED BY SOME OTHER BENCHES OF THE TRIBUNAL. HE FURTHER SUBMITTED THAT THE ASSESSEE DID NOT RAIS E THIS ISSUE BEFORE LD CIT(A). 6. WE HEARD THE RIVAL SUBMISSIONS AND PERUSE D THE RECORD. W E NOTICE THAT THE ASSESSEE DID NOT APPEAR BEFORE FIRST APPELLATE AUTHORITY AND HENCE THE LD CIT(A) WAS CONSTRAINED TO PASS THE ORDER EX - PARTE . NOW THE ASSESSEE CLAIM S THAT THE ISSUE IS COVERED BY THE DECISIONS RENDERED BY THE COORDINATE BEN CH , WHERE AS THE LD D.R CONTENDS THAT CONTRARY DECISIONS ARE AVAILABLE . FURTHER WE ARE OF THE VIEW THAT THE FACTS RELATING TO THE ISSUE ALSO REQUIRE VERIFICATION. ACCORDINGLY, IN THE INTEREST OF NATURAL JUSTICE, WE SET ASIDE THE ORDER OF LEARNED CIT(A) O N THIS ISSUE AND RESTORE THE SAME TO HIS FILE WITH THE DIRECTION TO RE - ADJUDICATE THE SAME AFTER AFFORDING ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. WE ALSO DIRECT THE ASSESSEE TO COOPERATE WITH LEARNED CIT(A) FOR EXPEDITIOUS DISPOSAL OF THE APP EAL. 7. IN THE RESULT, APPEAL FILED BY THE ASSESSEE IS TREATED AS ALLOWED FOR STATISTICAL PURPOSES. ORDER HAS BEEN PRONOU NCED IN THE OPEN COURT ON 11 .5 .2016 . SD/ - SD/ - (RAMLAL NEGI ) (B.R.BASKARAN ) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI ; DATED : 11 / 5 /20 1 6 COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT RAVINDERSINGH LAMBA 3 3. THE CIT(A) 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. BY ORDER, //TRUE COPY// ( DY./A SSTT. REGISTRAR) ITAT, MUMBAI PS