Shri Vijay Kumar Ghelani, New Delhi V. ITO, New Delhi

ITA 4615/DEL/2012

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 91114 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 9 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-06-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: H
• Next Hearing Date: 02-06-2015
• Assessment Year: 2009-2010
• Appeal Filed On: 29-08-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SYED NASIR ALI
• Assessee Lawyers: MOHIT PAREKH
• Keywords: Sale consideration of property below Jantri Value
• Section: 50C

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH H, NEW DELHI BEFORE SH. N. K. SAINI, AM AND SH. GEORGE GEORGE K, JM ITA NO. 4615 /DEL/2012 A.Y. 2009-10 VIJAY KUMAR GHELANI PARTNER OF M/S. SAURASHTRA ENGG. WORKS, 4023, NAYA BAZAR NEW DELHI VS ITO WARD- 29(1), DRUM SHAPE BUILDING, I.P.ESTATE NEW DELHI (APPELLANT) (RESPONDENT) PAN NO. AAGPG5572K ASSESSEE BY : SH. MOHIT PAREK H C.A. REVENUE BY : SH. SYED NASIR ALI, C.I.T.DR DATE OF HEARING : 04.06.2015 DATE OF PRONOUNCEMENT : 08 .06.2015 ORDER PER N.K.SAINI, AM : THIS IS AN APPEAL BY THE ASSESSEE AGAINST THE ORDER DATED 29.06.2012 OF CIT(A)- XXV, NEW DELHI. 2. FOLLOWING GROUNDS HAVE BEEN RAISED IN THIS APPEA L :- THAT THE LD. CIT(A)-XXV, NEW DELHI WAS NOT CORRECT BOTH ON THE FACTS AND IN THE CIRCUMSTANCES IN CONFIRMING THE SHORT TERM CAPITAL GAIN AT RS. 47,46,000/- DETERMINED AND ASSESSED BY THE A.O. AS AGAINST RS. 19,90,000/- AS DECLARED AND WORKED OUT FOR TAXATION BY THE APPELLANT. 2. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE AUTHORITIES BELOW HAVE GRIEVOUSLY ERRED IN NOT INVOKING THE PROVISION OF SECTION 50C(2) OF THE IT ACT ITA NO. 4615/DEL/2012 2 IN SPITE OF THE FACT THAT THE APPELLANT HAS DISPUTED/OBJECTED TO THE VALUATION ADOPTED OR ASSESSED BY THE STAMP VALUATION AUTHORITY FOR THE PURPOSE OF REGISTRATION OF THE SALE DEED AND, CONSEQUENTLY, THE SALES CONSIDERATION TAKEN BY AUTHORITIES BELOW AT RS. 1,07,56,000/- IS EXCESSIVE AND WRONG AND AGAINST THE SAID PROVISIONS OF LAW. 3. THE APPELLANT HAS DISPUTED THE VALUE SO ADOPTED OR ASSESSED BY THE STAMP VALUATION AUTHORIT Y UNDER SUB-SECTION (1) OF SECTION 50C OF THE I.T.ACT BEFORE THE AO AS WELL AS CIT(A), NEW DELHI. 4. THAT THE APPELLANT CRAVES LEAVE TO ADD, TO AMEND, TO ALTER, AND/OR WITHDRAW ANY OF THE GROUND( S) OF APPEAL EITHER BEFORE OR AT THE TIME OF HEARING O F THE APPEAL. 3. FACTS OF THE CASE IN BRIEF ARE THAT THE ASSES SEE FILED THE RETURN OF INCOME ON 30.9.2009 DECLARING AN INCOME O F RS. 1,45,600/- WHICH WAS PROCESSED U/S 143(1) OF THE I. T.ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT). LATER ON THE CASE WAS SELECTED FOR SCRUTINY, THE AO RECEIVED AN INFORMAT ION THAT THE ASSESSEE SOLD A PROPERTY AMOUNT TO RS. 46,10,000/- ON 1.11.2011. THE A.O. ALSO RECEIVED AN INFORMATION FR OM THE SUB- REGISTRAR-IV, GHAZIABAD THAT A SALE DEED WAS MADE O N 31.10.2008 FOR PLOT NO. 1087, NITIKHAND-I, INDIRA P URAM, GHAZIABAD FOR RS. 80 LAC WHERE AS THE PREVAILING CI RCLE RATE OF ITA NO. 4615/DEL/2012 3 THE PROPERTY IN THE AREA AT THAT TIME WAS AT RS. 1, 07,56,000/-. THE A.O. ADOPTED THE SALE VALUE OF THE PROPERTY IN QUESTION AT RS. 1,07,56,000/- AND WORKED OUT THE SHORT CAPITAL GAIN AT RS. 47,46,000/- AS UNDER :- SHORT-TERM CAPITAL GAIN IS COMPUTED AS UNDER : VALUE OF THE PROPERTY UNDER CONSIDERATION AS P ER RS. 1,07,56,000/- PREVAILING CIRCLE RATE AS ASSESSED BY THE DISTRICT OFFICER AND ON WHICH STAMP DULY FOR SALE-PROCEED PAID. LESS: EXPENSE INCURRED TOWARDS DEVELOPMENT OF LAND & BROKERAGE PAID RS. 15,00, 00 0 RS. 92,56,000 LESS : - COST OF PROPERTY PURCHASED ON 01.12.2005 RS. 4 0,00,000 - STAMP DUTY & OTHER INCIDENTAL EXPENSES. RS. 4,30,000 - BROKERAGE PAID RS. 80,000 RS. 45,10,000/- NET SHORT TERM CAPITAL GAIN R S. 47,46 ,000 4. BEING AGGRIEVED THE ASSESSEE CARRIED THE MATT ER TO THE LD. CIT(A) WHO CONFIRMED THE ADDITION MADE BY THE AO BY OBSERVING IN PARA 3.4 OF THE IMPUGNED ORDER AS UNDE R :- 3.4 IT IS APPARENT FROM THE ORDER OF THE AO THAT THE AO HAS FOLLOWED THE DEEMING PROVISIONS OF SECTION 50C(1) W HICH IS APPARENTLY JUSTIFIED AND THE ASSESSEE ALSO HAS NOT BROUGHT ANY SUSBSTANTIAL MATERIALS TO CONTROVERT THE FINDING OF THE A.O. AFTER CONSIDERING ALL THE FACTS AND CIRCUMSTANCES O F THE CASE, I AM OF THE VIEW THAT THERE IS NO MERIT IN THE SUBMIS SION OF THE ASSESSEE AND ACCORDINGLY, THE ASSESSMENT/ADDITION M ADE BY THE AO UNDER DEEMING PROVISION OF SECTION 50C(1) IS CON FIRMED. ITA NO. 4615/DEL/2012 4 NOW THE ASSESSEE IS IN APPEAL 5. THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED T HAT THE LD. CIT(A) WITHOUT CONSIDERING THE SUBMISSIONS OF THE A SSESSEE CONFIRMED THE ADDITION MADE BY THE AO AND THE ORDER PASSED BY HIM IS A NON-SPEAKING ORDER. IN HIS RIVAL SUBMISSIONS, THE LD. DR STRONGLY SUPPORTED THE ORDE R OF THE AUTHORITIES BELOW AND STATED THAT SINCE THE SALE VA LUE SHOWN BY THE ASSESSEE WAS LESS THAN THE CIRCLE RATE. THE REFORE, THE A.O. WAS JUSTIFIED IN INVOKING THE PROVISIONS OF SE CTION 50C(1) OF THE ACT AND MAKING THE ADDITION ON ACCOUN T OF SHORT TERM CAPITAL GAIN. 6. WE HAVE CONSIDERED THE SUBMISSIONS OF BOTH TH E PARTIES AND CAREFULLY GONE THROUGH THE MATERIAL AVAILABLE ON TH E RECORD. IN THE PRESENT CASE, IT IS NOTICED THAT THE LD. CIT (A) IN PARA 3.1 OF THE IMPUGNED ORDER HAS STATED THE FACTS AND IN PARA 3.3 REPRODUCED THE PROVISIONS CONTAINED IN SECTION 50C OF THE ACT, HOWEVER, HE HAD NOT DISCUSSED THE SUBMISSI ONS FURNISHED BY THE ASSESSEE AND CONFIRMED THE ADDITIO NS BY SIMPLY STATING THAT THE AO HAD FOLLOWED THE DEEMING PROVISIONS OF SECTION 50C(1) OF THE ACT. NO OTHER C OGENT REASON HAS BEEN GIVEN WHILE CONFIRMING THE SAID ADD ITION BY THE LD. C.I.T.(A). ITA NO. 4615/DEL/2012 5 IN OUR OPINION, THE ORDER PASSED BY THE LD. CIT(A) IS A NON- SPEAKING ORDER IN THE EYES OF LAW, PARTICULARLY WHE N HE HAS NOT DISCUSSED THE SUBMISSIONS OF THE ASSESSEE AND A LSO NOT STATED HOW AND WHY THOSE SUBMISSIONS WERE REJECTED. 7. WE THEREFORE, CONSIDERING THE TOTALITY OF THE F ACTS DEEM IT APPROPRIATE TO REMAND THIS ISSUE BACK TO THE FILE O F THE LD. CIT(A) TO BE ADJUDICATED AFRESH INACCORDANCE WITH T HE LAW AFTER PROVIDING DUE AND REASONABLE OPPORTUNITY OF B EING HEARD TO THE ASSESSEE. 8. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOW ED FOR STATISTICAL PURPOSES. (ORDER PRONOUNCED IN THE COURT ON 08/06/2015) SD/- SD/- (GEORGE GEORGE K) (N. K. SAINI) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 08 /06/2015 *BINITA* COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITA NO. 4615/DEL/2012 6 DATE INITIAL 1. DRAFT DICTATED ON 4/06/2015 2. DRAFT PLACED BEFORE AUTHOR 5/06/2015 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER. 5. APPROVED DRAFT COMES TO THE SR.PS/PS 6. KEPT FOR PRONOUNCEMENT ON 7. FILE SENT TO THE BENCH CLERK 8. DATE ON WHICH FILE GOES TO THE AR 9. DATE ON WHICH FILE GOES TO THE HEAD CLERK. 10. DATE OF DISPATCH OF ORDER.