Sh. Balvinder Kumar Joshi, New Delhi V. ITO, New Delhi

ITA 4909/DEL/2016

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 5259 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 8 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-05-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2011-2012
• Appeal Filed On: 14-09-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S N PANDEY
• Keywords: Sale consideration of property below Jantri Value; Reassessment proceedings; Set aside
• Section: 50C; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCHES: A , NEW DELHI BEFORE SMT. BEENA A PILLAI, JUDICIAL MEMBER AND SHRI PRASHANT MAHARISHI, ACCOUNTANT MEMBER ITA NO. 4909/ DEL/201 6 AY: 2011 - 12 SH. BALVINDER KUMAR JOSHI C/O RAVI GUPTA ADVOCATE E - 6A, KAILASH COLONY NEW DELHI 110 048 PAN: AAGPJ6044F VS. ITO, WARD 40(5) NEW DELHI (APPELLANT) (RESPONDENT) DEPARTMENT BY : SH. S.N.PANDEY, SR. D.R. ASSESSEE BY : : SH. RAJESH JAIN, C.A. DATE OF HEARING : 14 / 05/ 2019 DATE OF PRONOUNCEMENT : 17 /0 5 /2019 ORDER PER BEENA A PILLAI, JUDICIAL MEMBER P RESENT APPEAL HAS BEEN FILED BY ASSESSEE AGAINST ORDER DATED 21/07/16 PASSED BY LD. CIT (A) - 14, NEW DELHI ON FOLLOWING GROUNDS OF APPEAL: 1. THAT ON FACTS AND CIRCUMSTANCES OF THE CASE, THE ORDER PASSED BY THE LD . CIT (APPEAL) IS BAD BOTH IN THE EYES OF LAW AND ON FACTS. 2. THAT THE LD. CIT (APPEAL) HAS ERR ED IN LAW AND ON FACTS IN CONFIRMING THE REOPENING OF THE CASE WHICH IS ILLEGAL AND VOID AB INITIO ITA NO.4909/DEL/16 AY:2011 - 12 SH. BALVINDER KUMAR JOSHI VS. ITO 2 AS THE REASONS RECORDED BY THE ASSESSING OFFICER ARE NOT ONLY ERRONEOUS BUT ALSO CONTRARY TO THE FACTS OF THE CASE. 3. THAT THE LD. CIT (APPEAL) HAS ERRED IN LAW AND ON FACTS IN CONFIRMING THE INVOKING OF THE PROVISIONS OF SECTION 50C, WHEN THE SAME ARE NOT APPLICABLE ON THE FACTS OF THE CASE. 4. THAT THE LD. CIT (APPEAL) HAS ERRED IN LAW AND ON FACTS IN CONFIRMING THE ADDITION OF RS. 36,06,250/ - BY INVOKING T HE PROVISIONS OF SECTION 50C. 5. THAT THE IMPUGNED APPELLATE ORDER IS ARBITRARY, ILLEGAL, BAD IN LAW AND IN VIOLATION OF RUDIMENTARY PRINCIPLES OF CONTEMPORARY JURISPRUDENCE. 6. THAT THE APPELLANT CRAVES LEAVE TO ADD/ALTER ANY/ALL GROUNDS OF APPEAL BEFORE OR AT THE TIME OF HEARING OF THE APPEAL. 2. BRIEF FACTS OF CASE ARE AS UNDER . A SSESSEE FILED ITS RETURN OF INCOME ON 27/03/12 DECLARING TOTAL INCOME OF RS.4,60,084/ - . THE CASE WAS PROCESSED UNDER SECTION 143 (1) OF THE INCOME TAX ACT, 1961 (THE ACT) . ASSESSEE HAD INCOME FROM SALE OF PLOTS, RENTAL INCOME AND INTEREST INCOME DURING YEAR UNDER CONSIDERATION. HE WAS ALSO A PARTNER IN F I RM AND RECEIVED SALARY FROM SAME. I NFORMATION WAS RECEIVED THAT ASSESSEE HAD DECLARED TO HAVE SOLD PROPERTY FOR RS. 20 LACS WHEREAS PRICE OF PROPERTY AS PER C IRCLE R ATE WAS RS. 56,06,250/ - . ACCORDINGLY AFTER RECORDING REASONS , NOTICE UNDER SECTION 148 WAS ISSUED TO ASSESSEE ON 29/11/13. SUBSEQUENTLY NOTICES UNDER SECTION 143 (2) AND 142 (1) OF THE A CT WAS ISSUED TO AS SESSEE. IN RESPONSE TO STATUTORY NOTICES, REPRESENTATIVES OF ASSESSEE APPEARED BEFORE LD.AO AND FILED VARIOUS DETAILS AS CALLED FOR. ITA NO.4909/DEL/16 AY:2011 - 12 SH. BALVINDER KUMAR JOSHI VS. ITO 3 3. DURING REASSESSMENT PROCEEDINGS LD.AO OBSERVED THAT ASSESSEE HAD DECLA RED SHORT SALE PRICE BY RS. 36,06, 250/ - AS PER SECTION 50C OF THE ACT . LD. AO CALLED UPON ASSESSEE TO FURNISH REASONS AS STAMP DUTY VALUE AS PER SALE DEED WAS RS.56, 06,250/ - . LD. AO ACCORDINGLY INVOKED PROVISIONS OF SECTION 50 C AND MADE ADDITION OF RS.36,06, 250/ - BEING DIFFERENCE IN CONSIDERATION SH OWN BY ASSESSEE AND STAMP DUTY VALUATION ADOPTED AS PER CIRCLE RATE. 4. AGGRIEVED BY ORDER OF LD. AO, ASSESSEE PREFERRED APPEAL BEFORE LD. CIT (A) WHO CONFIRMED ADDITION MADE BY LD. AO. AGGRIEVED BY ORDER OF LD. CIT (A) ASSESSEE IS IN APPEAL BEFORE US NO W. 5. LD. AR SUBMITTED THAT ONLY ISSUE RAISED BY ASSESSEE IN PRESENT APPEAL IS IN RESPECT OF INVOKING PROVISIONS OF SECTION 50 C AND ADOPTING DIFFERENCE IN CONSIDERATION AND STAMP DUTY VALUATION WITHOUT REFERRING IT TO DVO . HE SUBMITTED THAT ISSUE MAY B E SET ASIDE TO LD. AO WITH A DIRECTION TO REFER THE SAME TO DVO. LD. AR SUBMITTED THAT ASSESSEE DO NOT OBJECT FOR THE VALUATION THAT WOULD BE DETERMINED BY DVO. 6. LD.SR. DR DID NOT OBJECT TO SAME , THOUGH HE SUBMITTED, IT IS APPARENT THAT CIRCLE RATE AS PER STAMP DUTY VALUATION IS MORE THAN CONSIDERATION DECLARED BY ASSESSEE IN SALE DEED AND THEREFORE 50 C AUTOMATICALLY GET S INVOKED. 7. WE HAVE PERUSED SUBMISSIONS MADE BY BOTH SIDES IN LIGHT OF RECORDS PLACED BEFORE US. 8. ON PERUSAL OF ASSESSMENT ORDER, IT IS OBSERVED THAT ASSESSEE HAD NOT MADE ANY REQUEST TO REFER MATTER TO VALUATION OFFICER. HOWEVER SAME HAS BEEN MADE BY REPRESENTATIVE BEFORE LD. CIT (A) ITA NO.4909/DEL/16 AY:2011 - 12 SH. BALVINDER KUMAR JOSHI VS. ITO 4 ON BEHALF OF ASSESSEE WHICH HAS NOT BEEN CONSIDERED BY LD. CIT ( A). THE LD. AR BEFORE US ALSO SUBMITTED THAT VALUATION AS DETERMINED BY DVO IS ACCEPTABLE TO ASSESSEE AND THEREFORE MAY BE REFERRED TO DVO. HE ALSO SUBMITTED THAT , BEFORE LD.AO , ASSESSEE WAS NOT REPRESENTED PROPERLY AND THEREFORE PLEA WAS NOT TAKEN AT TIME OF ASSESSMENT PROCEEDINGS. 9 . CONSIDERING TOTALITY OF FACTS , AND UNDERTAKING GIVEN BY LD. AR ON BEHALF OF ASSESSEE REGARDING ACCEPT ING VALUATION DETERMINED BY DVO , WE ARE INCLINED TO SET ASIDE THIS ISSUE TO LD.AO WITH A DIRECTION TO REFER THE MATTER TO DVO FOR DETERMINING FAIR MARKET PRICE OF PROPERTY SOLD BY ASSESSEE. 9.1 . NEEDLESS TO SAY THAT ASSESSEE SHALL BE GRANTED FULL OPPORTUNITY OF REPRESENTING ITS CASE AS PER LAW. ACCORDINGLY GROUNDS RAISED BY ASSESSEE STANDS ALLOWED FOR STATISTICAL PU RPOSES. 10. IN THE RESULT, APPEAL FILED BY ASSESSEE STANDS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 1 7 T H MAY, 2019. S D / - S D / - (PRASHANT MAHARISHI) (BEENA A PILLAI) ACCOUNTANT MEMBER JUDICIAL MEMBER DT. 1 7 T H MAY, 2019 * GMV ITA NO.4909/DEL/16 AY:2011 - 12 SH. BALVINDER KUMAR JOSHI VS. ITO 5 COPY FORWARDED TO: - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT - TRUE COPY - BY ORDER, ASSISTANT REGISTRAR ITAT DELHI BENCHES ITA NO.4909/DEL/16 AY:2011 - 12 SH. BALVINDER KUMAR JOSHI VS. ITO 6 DATE DRAFT DICTATED ON DRAGON 16.5.19 DRAFT PLACED BEFORE AUTHOR 16.5.19 DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER DRAFT DISCUSSED/APPROVED BY SECOND MEMBER. APPROVED DRAFT COMES TO THE SR.PS/PS KEPT FOR PRONOUNCEMENT ON & ORDER UPLOADED ON : 1 7 / 0 5 / 1 9 FILE SENT TO THE BENCH CLERK DATE ON WHICH FILE GOES TO THE AR DATE ON WHICH FILE GOES TO THE HEAD CLERK. DATE OF DISPATCH OF ORDER.