Yansh, New Delhi V. ITO, New Delhi

ITA 4888/DEL/2015

• Counselvise Citation: [2019] 115 COUNSELVISE.COM (IT) 3039 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 7 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-03-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: G
• Assessment Year: 2009-2010
• Appeal Filed On: 28-07-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: N K BANSAL SENIOR
• Keywords: Sale consideration of property below Jantri Value; Capital asset; Fair market value; Set aside
• Section: 50C; 37

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL DELHI DELHI DELHI DELHI BENCH BENCH BENCH BENCH G GG G : NEW DELHI : NEW DELHI : NEW DELHI : NEW DELHI BEFORE SHRI BEFORE SHRI BEFORE SHRI BEFORE SHRI G.D. AGRAWAL, G.D. AGRAWAL, G.D. AGRAWAL, G.D. AGRAWAL, VICE VICE VICE VICE PRESIDENT PRESIDENT PRESIDENT PRESIDENT AND AND AND AND SHRI K. NARASIMHA CHARY SHRI K. NARASIMHA CHARY SHRI K. NARASIMHA CHARY SHRI K. NARASIMHA CHARY, JUDICIAL MEMBER , JUDICIAL MEMBER , JUDICIAL MEMBER , JUDICIAL MEMBER ITA ITAITA ITA NO NONO NO . .. . 4888/DEL/2015 4888/DEL/2015 4888/DEL/2015 4888/DEL/2015 ASSESSMENT YEAR : ASSESSMENT YEAR : ASSESSMENT YEAR : ASSESSMENT YEAR : 2009 2009 2009 2009 - -- - 10 1010 10 SHRI YANSH, SHRI YANSH, SHRI YANSH, SHRI YANSH, HOUSE NO.329, HARIJAN BASTI, HOUSE NO.329, HARIJAN BASTI, HOUSE NO.329, HARIJAN BASTI, HOUSE NO.329, HARIJAN BASTI, VILLAGE & VILLAGE & VILLAGE & VILLAGE & POST BIJWASAN, POST BIJWASAN, POST BIJWASAN, POST BIJWASAN, NEW DELHI NEW DELHI NEW DELHI NEW DELHI 110 061. 110 061. 110 061. 110 061. PAN : ACCPY5738K. PAN : ACCPY5738K. PAN : ACCPY5738K. PAN : ACCPY5738K. VS. VS. VS. VS. INCOME TAX OFFICER, INCOME TAX OFFICER, INCOME TAX OFFICER, INCOME TAX OFFICER, WARD WARD WARD WARD- -- -27(3), 27(3), 27(3), 27(3), NEW DELHI. NEW DELHI. NEW DELHI. NEW DELHI. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI ASHWANI KUMAR, CA. RESPONDENT BY : SHRI N.K. BANSAL, SENIOR DR. DATE OF HEARING : 06.03.2019 06.03.2019 06.03.2019 06.03.2019 DATE OF PRONOUNCEMENT : 06.03.2019 06.03.2019 06.03.2019 06.03.2019 ORDER ORDER ORDER ORDER PER G.D. AGRAWAL, PER G.D. AGRAWAL, PER G.D. AGRAWAL, PER G.D. AGRAWAL, VICE VICE VICE VICE PRESIDENT PRESIDENT PRESIDENT PRESIDENT : :: :- -- - THIS APPEAL BY THE ASSESSEE FOR THE ASSESSMENT YEAR 2009-1 0 IS DIRECTED AGAINST THE ORDER OF LEARNED CIT(A)-15, NE W DELHI DATED 6 TH MAY, 2015. 2. IN THIS APPEAL, THE ASSESSEE HAS RAISED VARIOUS GROUNDS. HOWEVER, THEY ARE ALL AGAINST THE ADDITION OF `68,4 1,372/- MADE BY THE ASSESSING OFFICER AS SHORT TERM CAPITAL GAIN BY APPLYING PROVISIONS OF SECTION 50C OF THE INCOME-TAX ACT, 1961. 3. IN THE ARGUMENTS OF THE ASSESSEE, ONE OF THE MAIN ARG UMENTS WAS THAT THE ASSESSING OFFICER SHOULD HAVE REFERRED THE MATTER TO THE VALUATION OFFICER UNDER SUB-SECTION (2) OF SECTION 50 C OF THE ACT. LEARNED DR STATED THAT THE ASSESSING OFFICER IS SUPPOSED TO REFER THE ITA-4888/DEL/2015 2 MATTER UNDER SUB-SECTION (2) OF SECTION 50C ONLY WHE N THE ASSESSEE CLAIMS BEFORE THE ASSESSING OFFICER THAT THE VALUE ADOPT ED OR ASSESSED BY THE STAMP VALUATION AUTHORITY UNDER SUB-SECTION (1) EXCEEDS THE FAIR MARKET VALUE OF THE PROPERTY AS ON THE DATE OF TRANS FER. IN THE REJOINDER, THE LEARNED COUNSEL FOR THE ASSESSEE HAS REFER RED THE ASSESSEES SUBMISSION BEFORE THE ASSESSING OFFICER WHICH IS REPRODUCED AT PAGE 3 OF THE ASSESSMENT ORDER AND HE STAT ED THAT THE ASSESSEE IS AN ILLITERATE PERSON AND FROM HIS LETTER, IT IS VERY EVIDENT THAT HE HAS OBJECTED TO THE VALUATION BY THE STAMP VA LUATION AUTHORITY. 4. WE HAVE HEARD THE ARGUMENTS OF BOTH THE SIDES AND P ERUSED THE MATERIAL PLACED BEFORE US. SUB-SECTION (2) OF SECTIO N 50C READS AS UNDER :- (2) WITHOUT PREJUDICE TO THE PROVISIONS OF SUB-SECTIO N (1), WHERE (A) THE ASSESSEE CLAIMS BEFORE ANY ASSESSING OFFICER THAT THE VALUE ADOPTED OR ASSESSED [OR ASSESSABLE] BY THE STAMP VALUATION AUTHORITY UNDER SUB-SECTION (1) EXCE EDS THE FAIR MARKET VALUE OF THE PROPERTY AS ON THE DATE OF TRANSFER; (B) THE VALUE SO ADOPTED OR ASSESSED [OR ASSESSABLE] BY THE STAMP VALUATION AUTHORITY UNDER SUB-SECTION (1) HA S NOT BEEN DISPUTED IN ANY APPEAL OR REVISION OR NO REF ERENCE HAS BEEN MADE BEFORE ANY OTHER AUTHORITY, COURT OR T HE HIGH COURT, THE ASSESSING OFFICER MAY REFER THE VALUATION OF THE CA PITAL ASSET TO A VALUATION OFFICER AND WHERE ANY SUCH REFERE NCE IS MADE, THE PROVISIONS OF SUB-SECTION (2), (3), (4), (5 ) AND (6) OF SECTION 16A, CLAUSE (I) OF SUB-SECTION (1) AND SUB- SECTIONS (6) AND (7) OF SECTION 23A, SUB-SECTION (5) OF SECTION 24, SECTION 34AA, SECTION 35 AND SECTION 37 OF THE WEALTH-TAX ACT, 1957 (27 OF 1957), SHALL, WITH NECE SSARY MODIFICATIONS, APPLY IN RELATION TO SUCH REFERENCE AS THEY APPLY IN RELATION TO A REFERENCE MADE BY THE ASSESSING OFFICER UNDER SUB-SECTION (1) OF SECTION 16A OF THAT A CT. ITA-4888/DEL/2015 3 [EXPLANATION 1]. FOR THE PURPOSES OF THIS SECTION, VALUATION OFFICER SHALL HAVE THE SAME MEANING AS IN CLAUSE (R) OF SECTION 2 OF THE WEALTH-TAX ACT, 1957 ( 27 OF 1957). [EXPLANATION 2. FOR THE PURPOSES OF THIS SECTION, TH E EXPRESSION ASSESSABLE MEANS THE PRICE WHICH THE STAMP VALUATION AUTHORITY WOULD HAVE, NOTWITHSTANDING ANYT HING TO THE CONTRARY CONTAINED IN ANY OTHER LAW FOR THE TIME BEING IN FORCE, ADOPTED OR ASSESSED, IF IT WERE REFERRE D TO SUCH AUTHORITY FOR THE PURPOSES OF THE PAYMENT OF STAMP DUTY.]. 5. AS PER THE ABOVE SECTION, WHERE THE ASSESSEE CLAIMS BE FORE THE ASSESSING OFFICER THAT THE VALUE ADOPTED BY THE VALUATI ON AUTHORITY EXCEEDS THE FAIR MARKET VALUE, THE ASSESSING OFFICER MAY REFER THE VALUE OF THE CAPITAL ASSET TO THE VALUATION OFFICER. THE ASSESSEES REPLY AS REFERRED TO IN THE ASSESSMENT ORDER READS AS UNDER :- THE ASSESSEE HAS SOLD THE IMMOVABLE PROPERTY BEARING KHASRA NO.150 FOR CONSIDERATION OF RS.8,50,000/- FOR W HICH STAMP DUTY WAS PAID ON VALUE OF RS.75,91,500/-. SALE CONSIDERATION SHOULD BE TREATED AS RS.8,50,000/- BECAUSE AT THAT TIME ON THE BASIS OF INFORMATION ASSESSEE HAVE, THE SALE VALUE WAS RS.8,50,000/-. AS PER ASSESSEE HE IS ILLITERATE POOR FARMER BELONGS TO SCHEDULE CASTE AN D HAVING NO KNOWLEDGE ABOUT THE CHANGE OF STATUS OF LAN D USE. FURTHER ASSESSEE WAS AT THAN TIME WAS IN NEED OF MONEY. FURTHER ASSESSEE HAS NOT CHALLENGED THE STAMP DUTY AMOUNT BECAUSE SAME IS PAID BY THE PURCHASER OF TH E LAND. 6. IN THE ABOVE REPLY, THE ASSESSEE HAS CLEARLY MENTIONE D THAT THE SALE CONSIDERATION SHOULD BE TREATED AS `8,50,000/- BEC AUSE, AT THAT TIME, ON THE BASIS OF ASSESSEES INFORMATION, THE SALE VALU E WAS `8,50,000/-. THUS, THE ASSESSEE HAS CLEARLY CLAIMED THAT THE VALUE ADOPTED BY THE ASSESSEE SHOULD BE ACCEPTED, MEANING THE REBY, THE VALUE ADOPTED BY THE STAMP VALUATION AUTHORITY EXCEE DS THE MARKET ITA-4888/DEL/2015 4 VALUE. IN VIEW OF THE ABOVE, IN OUR OPINION, IT WO ULD MEET THE ENDS OF JUSTICE IF THE ORDERS OF LOWER AUTHORITIES ARE SET ASID E AND THE MATTER SENT BACK TO THE FILE OF THE ASSESSING OFFICER FOR REFER RING TO THE VALUATION OFFICER WITHIN THE MEANING OF SUB-SECTION ( 2) OF SECTION 50C. WE ORDER ACCORDINGLY AND SET ASIDE THE MATTER TO THE FILE OF THE ASSESSING OFFICER AND DIRECT HIM TO REFER THE MATTER FO R VALUATION UNDER SUB-SECTION (2) OF SECTION 50C. 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS DEEMED TO BE ALLOWED FOR STATISTICAL PURPOSES. DECISION PRONOUNCED IN THE OPEN COURT ON 06.03.2019. SD/- SD/- (K. NARASIMHA CHARY (K. NARASIMHA CHARY (K. NARASIMHA CHARY (K. NARASIMHA CHARY ) )) ) ( (( ( G.D. AGRAWAL G.D. AGRAWAL G.D. AGRAWAL G.D. AGRAWAL ) )) ) JUDICIAL MEMBER JUDICIAL MEMBER JUDICIAL MEMBER JUDICIAL MEMBER VICE VICE VICE VICE PRESIDENT PRESIDENT PRESIDENT PRESIDENT VK. COPY FORWARDED TO: - 1. APPELLANT : SHRI YANSH, SHRI YANSH, SHRI YANSH, SHRI YANSH, HOUSE NO.329, HARIJAN BASTI, HOUSE NO.329, HARIJAN BASTI, HOUSE NO.329, HARIJAN BASTI, HOUSE NO.329, HARIJAN BASTI, VILLAG VILLAG VILLAG VILLAGE & POST BIJWASAN, NEW DELHI E & POST BIJWASAN, NEW DELHI E & POST BIJWASAN, NEW DELHI E & POST BIJWASAN, NEW DELHI 110 061. 110 061. 110 061. 110 061. 2. RESPONDENT : INCOME TAX OFFICER, INCOME TAX OFFICER, INCOME TAX OFFICER, INCOME TAX OFFICER, WARD WARD WARD WARD- -- -27(3), NEW DELHI. 27(3), NEW DELHI. 27(3), NEW DELHI. 27(3), NEW DELHI. 3. CIT 4. CIT(A) 5. DR, ITAT ASSISTANT REGISTRAR