Shri Surendra Kaurj Hora, Indore V. The ITO Ward 1(3), Indore

ITA 493/IND/2013

• Counselvise Citation: 49322714 RSA 2013
• Duration Of Justice: 5 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-12-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2006-2007
• Appeal Filed On: 21-06-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R A VERMA
• Assessee Lawyers: S C JAIN
• Keywords: Sale consideration of property below Jantri Value; Capital asset; Opportunity of being heard; Fair market value
• Section: 50C; 37

Judgement Text

1 INCOME TAX APPELLATE TRIBUNAL INDORE BENCH, INDORE BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER AND SHRI R.C. SHARMA, ACCOUNTANT MEMBER ITA NO.493/IND/2013 A.Y. 2006-07 SURENDRA KUMAR HORA, INDORE PAN ACAPH 7535 D :: APPELLANT VS ITO-1(3), INDORE :: RESPONDENT ASSESSEE BY SHRI S.C. JAIN REVENUE BY SHRI R.A. VERMA DATE OF HEARING 17.12.2013 DATE OF PRONOUNCEMENT 1 8 .12.2013 O R D E R PER JOGINDER SINGH, JUDICIAL MEMBER THE ASSESSEE HAS PREFERRED THIS APPEAL AGAINST THE IMPUGNED ORDER DATED 18.3.2013 ON THE FOLLOWING GROU NDS OF APPEAL: 2 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, LD. FIRST APPELLATE AUTHORITY HAS ERRED IN HOODING THAT THE ORDER OF THE ASSESSING OFFICER CONSIDERING THE VALUE ADOPTED BY THE STAMP OFFICE INSTEAD OF AGREEMENT DATED 15.1.2001 IS CORRECT. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, LD. FIRST APPELLATE AUTHORITY HAS ERRED IN NOT HOLDING THE S. 50C OF THE I.T. ACT IS NOT APPLICABLE TO THE TRANSACTION DATED 15.1.2001. 3. ALTERNATIVELY, ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, LD. FIRST APPELLATE AUTHORITY HAS ERRED IN NOT HOLDING THAT THE ASSESSING OFFICER MUST HAVE REFERRED THE CASE OF THE DVO. 2. DURING HEARING, WE HAVE HEARD SHRI S.C. JAIN, LEARNE D COUNSEL FOR THE ASSESSEE AND SHRI R.A. VERMA, LD. SR. DR. THE CRUX OF ARGUMENTS ON BEHALF OF THE ASSESSEE IS IN SUPPORT OF THE GROUNDS OF APPEAL WHEREAS THE LEARNED SR. DR SUPPORTED THE IMPUGNED ORDER. THE ASSESSEE HAS ALS O FILED WRITTEN SUBMISSION. 3. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PERUSE D THE MATERIAL AVAILABLE ON RECORD. THE FACTS, IN BRIEF, ARE THAT 3 THE ASSESSEE CLAIMED TO HAVE ENTERED INTO AN AGREEMENT T O SELL 2160 SQ.FT. OF PLOT OF LAND TO ONE SHRI DALJEET SINGH FOR RS.4 LACS AND RECEIVED EARNEST MONEY. IT WAS CLAIMED TH AT THE ASSESSEE RECEIVED THE BALANCE MONEY ON THE SALE OF THE SAID LAND FROM SHRI DALJEET SINGH SALUJA AND DELIVERED POSSESSION OF THE PLOT ON 16.4.2005 TO HIM. BEFORE US, IT HAS BEEN CLAIMED THAT THE SALE OF THE LAND WAS COMPLETED IN FAVOUR OF SHRI DALJEET SINGH SALUJA EXCEPT REGISTRAT ION OF SALE DEED AT LATER STAGE. LATER ON, IT WAS CLAIMED THAT SHR I DALJEET SINGH SALUJA GOT EXECUTED TWO SALE DEED ON 1.7.2005 OF THE PLOT IN FAVOUR OF SHRI MANDEEP SINGH SALUJA AND ANOTHER ONE IN FAVOUR OF ANWAR RASHID JOINTLY WITH SMT. NASIM BANO. IT HAS ALSO BEEN CLAIMED THAT ON THE DAT E OF REGISTRATION, THE PRICE OF LAND, ACCORDING TO OFFIC E OF SUB- REGISTRAR, WAS RS.9,98,000/- AND RS.7,19,500/-, RESPECTIVELY, AND ON THE SAID PRICE, THE OFFICE OF T HE REGISTRAR REQUIRED THE PURCHASER TO PAY THE STAMP DUTY . 4 IT WAS CLAIMED THAT BEFORE APPLYING THE PROVISIONS OF SECTION 50C OF THE ACT, THE ASSESSING OFFICER SHOUL D HAVE REFERRED THE VALUATION OF SAID CAPITAL ASSETS TO A VALUATIO N OFFICER. THE CRUX OF ARGUMENTS IS THAT ALL THESE FACTS WERE NOT APPRECIATING BY THE AUTHORITIES. THE ASSESSEE ALSO PLACED RELIANCE UPON THE DECISION IN MEGHRAJ VAIDH VS. ITO (2008) 114 TTJ (JD) 841. WE HAVE CONSIDERED RIVAL CONTENTIONS. AS PER PROVISIONS OF SUB-SECTION 2 OF SECTION 50C, WHEN THE ASSESSEE CLAIMS THAT VALUE OF CAPITAL ASSETS ADOPTED BY STAMP VALUATION AUTHORITY EXCEEDS THE FAIR MARKET VALUE OF PROPERTY AS ON THE DATE OF TRANSFER, THE ASSESSING OFFICER SHOULD HAVE MADE A REFERENCE TO THE DEPARTMENTAL VALUATION OFFICER AND WHERE ANY SUCH REFERENCE IS MADE, THE PROVISIONS OF SUB-SECTION (2) , (3), (4), (5) & (6) OF SECTION 16A, CL. (I) OF SUB-SECTION (1 ) AND SUB- SECTION (6) AND (7) OF SECTION 23A, SUB-SECTION (5) OF SECTION 24, SECTION 34AA, SECTION 35 & 37 OF WEALTH-TAX ACT 1957 5 SHALL APPLY IN RELATION OF SUCH REFERENCE AS THEY APPLY TO A REFERENCE MADE BY ASSESSING OFFICER UNDER SECTION 16 A(1) OF I.T. ACT. SINCE NO REFERENCE WAS MADE BY ASSESSING OFFICER TO THE DEPARTMENTAL VALUATION OFFICER, WE RESTO RE THE APPEAL BACK TO THE FILE OF THE ASSESSING OFFICER F OR MAKING REFERENCE TO THE DEPARTMENTAL VALUATION OFFICER AND THEN DECIDE IN ACCORDANCE WITH LAW, FOR WHICH, DU E OPPORTUNITY OF BEING HEARD BE PROVIDED TO THE ASSESSE E WITH FURTHER LIBERTY TO FURNISH EVIDENCE, IF ANY, TO SUBS TANTIATE ITS CLAIM. THUS, THE APPEAL OF THE ASSESSEE DESERVES TO BE ALLOWED FOR STATISTICAL PURPOSES SO THAT NO PREJUDICE I S CAUSED TO EITHER SIDE. FINALLY, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES ONLY. 6 THIS ORDER WAS PRONOUNCED IN THE PRESENCE OF LD. REPRESENTATIVES OF BOTH SIDES IN THE OPEN COURT AT TH E CONCLUSION OF HEARING ON 17.12.2013. SD/- SD/- (R.C.SHARMA) (JOGINDER S INGH) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 18 .12.2013 COPY TO: APPELLANT, RESPONDENT, CIT, CIT(A), DR, GU ARD FILE !VYAS!