ITO, Kota V. MANJU DEVI MODI, Kota

ITA 440/JPR/2016

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 2022 (ITAT-JAIPUR)
• Duration Of Justice: 1 year(s) 4 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-09-2017
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: Not Allotted
• Next Hearing Date: 29-03-2017
• Assessment Year: 2010-2011
• Appeal Filed On: 28-04-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R A VERMA
• Assessee Lawyers: MAHENDRA GARGIEYA DHK
• Keywords: Sale consideration of property below Jantri Value; Capital asset
• Section: 50C; 148; 54; 154

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHE S, JAIPUR JH HKKXPUN] YS[KK LNL; ,OA JH DQY HKKJR] U;KF;D LNL; DS LE{K BEFORE: SHRI BHAGCHAND, AM AND SHRI KUL BHARAT, JM VK;DJ VIHY LA-@ ITA NO. 440/JP/2016 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2010-11. INCOME - TAX OFFICER, WARD-1(3), KOTA. CUKE VS. SMT. MANJU DEVI MODI, C/O MODI FLOORING STONE CO., DHBADEH ROAD, MORAK STATION, KOTA. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN NO. ADZPM 3669 H VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT JKTLO DH VKSJ LS@ REVENUE BY : SHRI R.A. VERMA (ADDL. CIT) FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : SHRI MAHENDRA GARGIEYA (ADVOCATE) LQUOKBZ DH RKJH[K@ DATE OF HEARING : 21.09.2017. ?KKS'K .KK DH RKJH[K@ DATE OF PRONOUNCEMENT : 26.09.2017. VKNS'K@ ORDER PER SHRI KUL BHARAT, JM. THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST THE ORDER OF LD. CIT (A), RAWATBHATA ROAD, KOTA DATED 24/02/2016 PERTAINING T O A.Y. 2010-11. THE REVENUE HAS RAISED THE FOLLOWING GROUNDS OF APP EAL:- ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) HAS ERRED IN:- 1. DELETING ADDITION OF RS. 76,82,000/- MADE U/S 50C O F THE INCOME TAX ACT 1961. 2. THE APPELLANT CRAVES LIBERTY TO RAISE ADDITIONAL GR OUND AND TO MODIFY/AMEND THE GROUND OF APPEAL AT THE TIME OF HE ARING. 2. ONLY EFFECTIVE GROUND IS AGAINST THE DELETION OF ADDITION OF RS. 76,82,000/- MADE U/S 50C OF THE INCOME-TAX ACT, 1961. 2 ITA NO. 440/JP/2016. SMT. MANJU DEVI MODI, KOTA. 3. BRIEFLY STATED THE FACTS ARE THAT THE CASE OF TH E ASSESSEE WAS REOPENED AND THE ASSESSMENT U/S 147/144/143(3) OF THE INCOME TAX ACT, 1961 VIDE ORDER DATED 30.03.2014. WHILE FRAMING THE ASSESSMENT THE ASSES SING OFFICER MADE ADDITION OF RS. 76,82,000/- BY INVOKING THE PROVISION OF U/S 50 C OF THE ACT. AGGRIEVED BY THIS, THE ASSESSEE PREFERRED AN APPEAL BEFORE LD. CIT(A), WHO AFTER CONSIDERING THE SUBMISSIONS ALLOWED THE APPEAL. 4. LD. D/R SUPPORTED THE ORDER OF THE ASSESSING OFF ICER. 5. ON THE CONTRARY, LD. COUNSEL FOR THE ASSESSEE RE ITERATED THE SUBMISSIONS AS MADE IN THE WRITTEN BRIEF AND SUPPORTED THE ORDER O F THE LD. CIT(A). 6. WE HAVE HEARD THE RIVAL CONTENTIONS, PERUSED THE MATERIAL AVAILABLE ON RECORD AND GONE THROUGH THE ORDER OF THE AUTHORITIES BELOW . LD. CIT(A) HAS GIVEN A FINDING OF FACT BY OBSERVING AS UNDER:- AS THE MATTER WAS PENDING BEFORE THE RAJASTHAN TAX BOARD, AJMER, THE AO SHOULD HAVE WAITED TILL THE DECISION OF RAJASTHAN T AX BOARD, AJMER AND REVISED THE ASSESSED INCOME AFTER DETERMINATION OF VALUE IN SUCH APPEAL/REFERENCE. (IV) THE PROPERTY IN QUESTION WAS A PLOT WITHOUT ANY CONSTRUCTION AND THE SAME WAS NOT CONVERTED INTO A COMMERCIAL PLOT. AS THERE WAS NO CONSTRUCTION ON THE PLOT, THE NATURE OF PROPERTY CO ULD NOT BE DECIDED ON THE BASIS OF ITS ACTUAL USER ALSO. VALUATION BY CHANGI NG THE USER OF PLOT WAS APPARENTLY NOT CORRECT. (V) IN MY OPINION, THE VALUE ASSESSED U/S 50C IS TH E VALUE ASSESSED AT THE TIME OF REGISTRATION AND IS THE VALUE CERTIFIED U/S 54 BY THE STAMP VALUATION AUTHORITY. THE VALUE ASSESSED BY COLLECTOR (STAMPS ), TAX BOARD ETC. FALLS IN THE CATEGORY OF VALUE AS SO REVISED IN SUCH APPEAL OR REVISION OR REFERENCE [THIS PHRASE IS TAKEN FROM SECTION 155(15)]. 3 ITA NO. 440/JP/2016. SMT. MANJU DEVI MODI, KOTA. SUBSEQUENTLY, THE RAJASTHAN TAX BOARD VIDE THEIR OR DER DATED 07/04/2014 HAVE SET ASIDE THE ORDER OF THE COLLECTOR (STAMPS) AND AKSED HIM TO PASS THE ORDER AFRESH AFTER GIVING THE PARTIES OPPORTUNITY O F BEING HEARD, AND PHYSICAL INSPECTION ETC OF THE PROPERTY IN QUESTION. THIS F ACT WAS IN THE NOTICE OF THE A.O. AS CAN BE SEEN IN HIS REMAND REPORT DATED 06/0 2/2015, WHEREIN THE MENTIONED THAT THE ASSESSEE HAS FILE A PETITION U/S 154 FOR REVISION OF THE VALUE IN VIEW OF THE RAJASTHAN TAX BOARD ORDER DATE D 07/04/2014 AND SOUGHT DIRECTIONS OF CIT(A) ON REFERRING THE MATTER TO THE VALUATION OFFICER IN VIEW OF THE PENDENCY OF THE APPEAL. HENCE IT WAS NOT A NEW FACT OR EVIDENCE. UNDER THE CIRCUMSTANCES, THE VERY BASIS ON WHICH AC TION U/S 148 WAS TAKEN ALSO DOES NOT SURVIVE THE TEST OF LEGALITY. EVEN ON THE MERITS OF THE CASE, CONSIDERING THE ABO VE, IT CAN BE HELD THAT FOR THE PURPOSES OF SECTION 50C, THE VALUE OF PROPERTY AS ASSESSED BY STAMP VALUATION AUTHORITY (IN THIS CASE DY. REGISTRAR, KO TA-II) IS THE CORRECT VALUE AS ON DATE. THE SUBSEQUENT VALUATION ON APPEAL OR REV ISION OR REFERENCE IS TO BE DEALT U/S 155(15). THEREFORE, THE VALUE ASSESSED B Y DY. REGISTRAR, KOTA-II AT RS. 59,50,000/- SHOULD HAVE BEEN TAKEN AS VALUE U/S 50C. IT IS OPEN TO THE AO TO TAKE RECOURSE TO THE PROVIS IONS OF SECTION 155(15) IN CASE THERE IS ANY UPWARD REVISION BY THE COLLECTOR (STAMPS) AFTER HIS DECISION IN COMPLIANCE OF THE DIRECTIONS OF THE RAJASTHAN TA X BOARD, AJMER. CONSIDERING THE ABOVE, THE AO IS DIRECTED TO DELETE THE ADDITION OF RS. 76,82,000/- BASED ON THE ASSESSMENT ORDER DATED 31/ 03/2014 PASSED U/S 147/144/143(3). THIS GROUND OF APPEAL IS TREATED AS ALLOWED. 6.1 DURING THE COURSE OF HEARING, LD. COUNSEL FOR T HE ASSESSEE DREW OUR ATTENTION TO SECTION 155(15) OF THE ACT. AS PER THIS PROVISI ON A CAPITAL GAIN ARISING FROM THE TRANSFER OF A CAPITAL ASSET, BEING LAND OR BUILDING OR BOTH, IS COMPUTED BY TAKING THE FULL VALUE OF THE CONSIDERATION RECEIVED OR ACCRUIN G AS A RESULT OF THE TRANSFER TO BE THE VALUE ADOPTED OR ASSESSED BY ANY AUTHORITY OF A STATE GOVERNMENT FOR THE 4 ITA NO. 440/JP/2016. SMT. MANJU DEVI MODI, KOTA. PURPOSE OF PAYMENT OF STAMP DUTY IN ACCORDANCE WITH SUB-SECTION (1) OF SECTION 50C, AND SUBSEQUENTLY SUCH VALUE IS REVISED IN ANY APPEAL OR REVISION OR REFERENCE REFERRED TO IN CLAUSE (B) OF SUB-SECTION (2) OF THA T SECTION, THE ASSESSING OFFICER SHALL AMEND THE ORDER OF ASSESSMENT SO AS TO COMPUTE THE CAPITAL GAIN BY TAKING THE FULL VALUE OF THE CONSIDERATION TO BE THE VALUE AS SO RE VISED IN SUCH APPEAL OR REVISION OR REFERENCE; AND THE PROVISION OF SECTION 154 SHALL, SO FAR AS MAY BE, APPLY THERETO, AND THE PERIOD OF FOUR YEARS SHALL BE RECKONED FROM THE END OF THE PREVIOUS IN WHICH THE ORDER REVISING THE VALUE WAS PASSED IN THE APPE AL OR REVISION OR REFERENCE. SINCE LD. CIT(A) HAS KEPT SUCH RECOURSE OPEN TO THE ASSES SING OFFICER. THEREFORE, WE DO NOT SEE ANY REASON TO INTERFERE INTO THE FINDING OF THE LD. CIT(A), SAME IS HEREBY AFFIRMED. THIS GROUND OF REVENUES APPEAL IS DISMI SSED. 7. IN THE RESULT, APPEAL OF THE REVENUE IN ITA NO. 440/JP/2016 IS DISMISSED. ORDER IS PRONOUNCED IN THE OPEN COURT ON TUESDAY, THE 26 TH DAY OF SEPTEMBER 2017. SD/- SD/- ( HKKXPUN ( DQY HKKJR ) ( BHAGCHAND) ( KUL BHARAT ) YS[KK LNL;@ ACCOUNTANT MEMBER U;KF;D LNL;@ JUDICIAL MEMBER JAIPUR DATED: 26/09/2017 POOJA/ VKNS'K DH IZFRFYFI VXZSF'KR@ COPY OF THE ORDER FORWARDED TO: 1. THE APPELLANT- INCOME TAX OFFICER, WARD-1(3), KOTA. 2. THE RESPONDENT SMT. MANJU DEVI MODI, KOTA. 3. THE CIT(A). 4. THE CIT, 5. THE DR, ITAT, JAIPUR 6. GUARD FILE (ITA NO. 440/JP/2016) VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASSISTANT. REGISTRAR 5 ITA NO. 440/JP/2016. SMT. MANJU DEVI MODI, KOTA.