Chander Prakash Garg, New Delhi V. ITO, New Delhi

ITA 4987/DEL/2010

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 53299 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-12-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 07-12-2011
• Assessment Year: 2006-2007
• Appeal Filed On: 12-11-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: SK GANGULY
• Keywords: Opportunity of being heard; Valuation report

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCHES: B NEW DELHI BEFORE SMT. DIVA SINGH, JUDICIAL MEMBER AND SHRI SHAMIM YAHYA , ACCOUNTANT MEMBER ITA NO: 4987/DEL/2010 A.Y. : 2006-07 SH. CHANDER PRAKASH GARG VS. ITO, WARD 14(2) B 3/11, RAJASTHALI APARTMENTS NEW DELHI PITAMPURA NEW DELHI PAN/GIR NO: AAAPG4364B (APPELLANT) (RESPONDENT) APPELLANT BY : SH. SK GANGULY, ADV. RESPONDENT BY : SH.ROHIT GARG, SR.D.R. O R D E R PER DIVA SINGH, JUDICIAL MEMBER THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST TH E ORDER DT. 31.8.2010 OF LDCIT(A)-XVII, NEW DELHI PERTAINING TO A.Y. 2006-07 WHEREIN THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS. 1. THAT, ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, CIT(A)-XVII, NEW DELHI WAS NOT JUSTIFIED IN CONFIRM ING THE ACTION OF ITO, WARD 14(2), NEW DELHI, WHO REFERRED THE CAS E TO D.V.O. FOR DETERMINING THE VALUE OF PROPERTY A-106, CHANDER NA GAR, GHAZIABAD U/S 55 OF I.T.ACT, 1961 (FOR SHORT THE A CT) AS ON 1.4.1981 WHEN THE ESTIMATED VALUE CLAIMED BY THE AP PELLANT IS MORE THAN THE VALUE ESTIMATED BY A.O. 2. THAT, ON THE FACTS AND IN THE CIRCUMSTANCES OF T HE CASE, CIT(A)- XVII, NEW DELHI WAS NOT JUSTIFIED IN CONFIRMING THE VALUE OF THE PROPERTY IN QUESTION TAKEN BY ITO AT RS. 70,000/- A S ON 1.4.1981 AGAINST RS. 3,86,000/- VALUED BY THE APPELLANT JUST BY IGNORING THE EVIDENCE FURNISHED BY THE APPELLANT IN THE FORM OF LETTER DT. 27.12.1991 OF GHAZIABAD DEVELOPMENT AUTHORITY. I TA 4987/DEL/2010 PAGE 2 OF 5 A.Y. 2006-07 SH. CHANDER PRAKASH GARG 3. THAT, THERE WAS NO MATERIAL OR EVIDENCE BEFORE THE A.O. AND THE D.V.O. TO JUSTIFY THE VALUATION OF THE PROPERTY IN QUESTION AS ON 1.4.1981 AT RS. 70,000/-. 4. THAT THE HONBLE CIT(A) WAS NOT JUSTIFIED IN HOL DING THAT THERE WAS NO CONSTRUCTION OF PROPERTY IN QUESTION BEFORE ITS TRANSFER WHICH IS THE COST OF IMPROVEMENT OF THE ASSETS ALON G WITH RS. 86,925/- WHICH WAS PAID AS GOVT. LEVY. THIS IS EVI DENT FROM THE LETTER ISSUED BY GHAZIABAD DEVELOPMENT AUTHORITY DT . 27.12.1991. 2. THE LD.A.R. ADDRESSING THE GROUNDS RAISED BY T HE ASSESSEE CONTENDED THAT RELEVANT FACTS AND CASE LAW HAVE BEE N IGNORED BY THE CIT(A) AND HE HAS CONFIRMED THE ACTION OF THE A.O. WITHOUT CONSIDERING THE SPECIFIC OBJECTIONS POSED VIDE THE GROUNDS AND WITHOUT CONSIDERING THE FACTS AND THE JUDGEMENT OF THE HONBLE GUJARA T HIGH COURT WHICH WAS RELIED UPON BY THE ASSESSEE. ATTENTION WAS INV ITED TO PAGE 12 OF THE PAPER BOOK AND IT WAS SUBMITTED THAT IDENTICAL AND VERY SAME PAPER BOOK WAS RELIED UPON BEFORE THE CIT(A). REFERRING TO THE SAME ATTENTION WAS INVITED TO A COPY OF THE JUDGEMENT OF GUJARAT H IGH COURT IN THE CASE OF HIABEN JAYANTHI LAL SHAH VS. ITO 310 ITR 31 (GU J.). INVITING ATTENTION TO THE IMPUGNED ORDER IT WAS SUBMITTED TH AT THERE IS NO DISCUSSION ON THE SAID JUDGEMENT. IT WAS FURTHER C ONTENDED THAT ANOTHER JUDGEMENT OF THE HONBLE CALCUTTA HIGH COURT IN CIT VS. UMEDBHAI INTERNATIONAL P.LTD. 330 ITR 506 (CAL) ALSO SUPPORT S THE STAND OF THE ASSESSEE. AS SUCH THE CIT(A) SHOULD HAVE CONSIDERE D THE SAME BEFORE COMING TO THE CONCLUSION. ATTENTION WAS ALSO INVIT ED TO PAPER BOOK PAGE 9 STATING THAT THERE WAS A CONSTRUCTION OF TWO BED ROOM, KITCHEN, TOILET I TA 4987/DEL/2010 PAGE 3 OF 5 A.Y. 2006-07 SH. CHANDER PRAKASH GARG ETC. AS PER THE DOCUMENT OF THE GHAZIABAD DEVELOPME NT AUTHORITY DT. 27.12.1991 WHICH FACT HAS NOT BEEN CONSIDERED BY TH E CIT(A). IT WAS REITERATED THAT THE ASSESSEE HAD CHALLENGED THAT T HE REFERENCE TO THE DVO WAS BAD IN LAW. 3. THE LD.D.R. THOUGH PLACED RELIANCE UPON THE IMPU GNED ORDER HOWEVER FAIRLY CONCEDED THAT DOCUMENT PLACED AT PAG E 9 AND THE CASE LAW HAS NOT BEEN CONSIDERED IN THE IMPUGNED ORDER. IT WAS HIS STAND THAT EVEN IF THE REFERENCE U/S 55A OF THE ACT IS ARGUED TO BE BAD IN LAW, THE REFERENCE CAN BE SUPPORTED BY SEC. 142A OF THE ACT, AS SUCH, ON FACTS THE ACTION OF THE A.O. HAS RIGHTLY BEEN UPHELD BY THE C IT(A). 4. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. ON A CAREFUL CONSIDERATION OF THE SAME WE ARE OF THE VIEW THAT IN THE CIRCUMSTANCES WHERE THE ASSESSEE S VALUATION SUPPORTED BY REGISTERED VALUATION REPORT WAS NOT ACCEPTED B Y THE A.O. WHO INSTEAD RELYING ON THE INSPECTORS REPORT DID NOT ACCEPT THE LTCG SHOWN AT RS. 3,27,902/- INSTEAD TOOK IT AS RS. 20,28,77 5/-. IT IS SEEN THAT THE CIT(A) TOOK COGNIZANCE OF THE DVOS REPORT AFTER DU LY CONFRONTING THE SAME TO THE ASSESSEE. IT IS SEEN THAT THE REFERENC E IS MADE IN REGARD TO THE ACQUISITION AND NOT IN REGARD TO THE SALE PRICE THE CIT(A) HAS ALSO UPSET THE SALE PRICE FOR CALCULATING THE LTCG WHICH HAS ALSO BEEN ASSAILED BY THE ASSESSEE. HOWEVER WE DO NOT GIVE A NY FINDING ON THE ISSUE AND SET ASIDE THE IMPUGNED ORDER IN THE LIGHT OF THE SUBMISSIONS ADVANCED BY THE PARTIES BEFORE THE BENCH NAMELY LET THE LEGAL PRECEDENTS I TA 4987/DEL/2010 PAGE 4 OF 5 A.Y. 2006-07 SH. CHANDER PRAKASH GARG AND FACTUAL MATTERS BE CONSIDERED. SINCE IT IS ALS O A COMMON STAND OF THE PARTIES THAT THE RELEVANT DOCUMENT OF THE GDA DT. 27.12.1991 NUMBERING 1632 REFERRING THAT THERE IS A CONSTRUCTI ON OF TWO BED ROOM KITCHEN TOILET ETC. IN REGARD TO THE PROPERTY SITU ATED AT CHANDER NAGAR MEASURING 167.23 METRES HAS NOT BEEN CONSIDERED. ACCORDINGLY IN THE LIGHT OF THE SUBMISSIONS ADVANCED, WE ARE OF THE VI EW THAT IT WOULD BE APPROPRIATE TO RESTORE THE ISSUE BACK TO THE FILE O F CIT(A) WITH DIRECTIONS TO TAKE INTO CONSIDERATION THE JUDGEMENT RELIED UPO N BY THE ASSESSEE BEFORE THE CIT(A) AND TAKE COGNIZANCE OF THE RELEVA NT FACTS AS PLACED BEFORE THE CIT(A). ACCORDINGLY THE ISSUE IS RESTOR ED WITH THE ABOVE DIRECTION TO DECIDE THE ISSUES AFRESH IN ACCORDANCE WITH LAW BY WAY OF A SPEAKING ORDER. NEEDLESS TO SAY THAT THE ASSESSEE SHALL BE AFFORDED A REASONABLE OPPORTUNITY OF BEING HEARD. 5. IN THE RESULT THE APPEAL OF THE ASSESSEE IS ALLO WED FOR STATISTICAL PURPOSES. PRONOUNCED IN THE OPEN COURT ON 9TH DECEMBER, 20 11. SD/- SD/- (SHAMIM YAHYA) (DIVA SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 9 TH DECEMBER, 2011 *MANGA I TA 4987/DEL/2010 PAGE 5 OF 5 A.Y. 2006-07 SH. CHANDER PRAKASH GARG COPY OF THE ORDER FORWARDED TO: 1. APPELLANT; 2.RESPONDENT; 3.CIT; 4.CI T(A); 5.DR; 6.GUARD FILE BY ORDER DY. REGISTRAR // C O P Y //