Tapan Kayal, Kolkata V. I.T.O.,Ward-63(3), Kolkata

ITA 537/KOL/2019

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 1016 (ITAT-KOLKATA)
• Duration Of Justice: 5 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-09-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 09-09-2019
• Assessment Year: 2014-2015
• Appeal Filed On: 18-03-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RANU BISWAS CIT SR D R RESPOND
• Assessee Lawyers: N O N E
• Keywords: Sale consideration of property below Jantri Value; Set aside; Capital Gains
• Section: 50C; 201

Judgement Text

ITA NO. 537/KOL/2019 ASSESSMENT YEAR: 2014-2015 TAPAN KAYAL 1 IN THE INCOME TAX APPELLATE TRIBUNAL, KOLKATA B(SMC) BENCH, KOLKATA BEFORE SHRI P.M. JAGTAP, VICE-PRESIDENT (KZ) I.T.A. NO. 537/KOL/2019 ASSESSMENT YEAR: 2014-2015 TAPAN KAYAL,....................................... ......................................APPELLANT C-25/18/12, ANAND NAGAR, DAKSHIN BEHALA ROAD, KOLKATA-700 061 [PAN: AKPPK4412K] -VS.- INCOME TAX OFFICER,................................ ...................................RESPONDENT WARD-63(3), KOLKATA, BAMBOO VILLA, 9 TH FLOOR, 169, A.J.C. BOSE ROAD, KOLKATA-700 014 APPEARANCES BY: N O N E, FOR THE APPELLANT SMT. RANU BISWAS, ADDL.CIT, SR. D.R , FOR THE RESPONDEN T DATE OF CONCLUDING THE HEARING : SEPTEMBER 09, 201 9 DATE OF PRONOUNCING THE ORDER : SEPTEMBER 09, 2019 O R D E R THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAI NST THE ORDER OF LD. COMMISSIONER OF INCOME TAX (APPEALS)-19, KOLKATA DA TED 04.04.2018 AND THE SOLITARY ISSUE INVOLVED THEREIN RELATES TO THE ADDITION OF RS.16,88,338/- MADE BY THE ASSESSING OFFICER AND CO NFIRMED BY THE LD. CIT(APPEALS) UNDER SECTION 56(2)(B)(II). 2. AT THE OUTSET, IT IS NOTED THAT THERE IS A DELAY OF 319 DAYS ON THE PART OF THE ASSESSEE IN FILING THIS APPEAL BEFORE T HE TRIBUNAL. IN THIS REGARD, THE ASSESSEE HAS FILED AN AFFIDAVIT SEEKING CONDONATION OF THE SAID DELAY ON THE FOLLOWING GROUNDS:- 9. THAT FOR THE LAST 4/5 YEARS, I HAVE BEEN SUFFER ING FROM DIABETES, HYPERTENSION AND RENAL MALFUNCTIONING AND ARE UNDERGOING HEAVY MEDICAL TREATMENT. SO IS THE CASE WITH MY ITA NO. 537/KOL/2019 ASSESSMENT YEAR: 2014-2015 TAPAN KAYAL 2 WIFE ILA RANI KAYAL, WHO IS SUFFERING FROM GYNAE PR OBLEM AND UNDERGOING MEDICAL TREATMENT. 10. THAT THE EXPENDITURE INVOLVED IN THIS UNDERGOIN G SUCH COSTLY MEDICAL TREATMENT HAS ADDED LOT OF MENTAL AN XIETY AND MADE UNABLE TO ATTEND TO MY NORMAL DUTIES AND/OR AT TEND TO TAX MATTERS. 11. THAT I HAVE BEEN ADVISED TO PREFER AN APPEAL AG AINST THE SAID CIT(A)-19'S ORDER TO THE INCOME TAX APPELLATE TRIBUNAL, KOLKATA. I HAVE BEEN FURTHER ADVISED THAT THE PRESC RIBED APPEAL FILING FEE OF RS.10,000/- IS TO BE PAID. 12. THAT I HAVE TRIED MY LEVEL BEST TO COLLECT SUFF ICIENT AMOUNT TO ENABLE TO PAY THE SAID FEES. I HAVE DEPOSITED TH E SAME FEES ON 12.03.2019. 13. THAT FOR THE ABOVE REASONS, DUE TO MY SEVERE IL L-HEALTH AS WELL AS INSUFFICIENCY OF FUND, I COULD NOT SEEK PRO PER LEGAL ASSISTANCE WHICH WOULD ENABLE ME TO SUBMIT MY APPEA L TO THE INCOME TAX APPELLATE TRIBUNAL AGAINST THE SAID ORDE R. KEEPING IN VIEW THE REASONS GIVEN BY THE ASSESSEE A S ABOVE, I AM SATISFIED THAT THERE WAS A SUFFICIENT CAUSE FOR THE DELAY OF 319 DAYS ON THE PART OF THE ASSESSEE IN FILING THIS APPEAL BEFORE THE TRIBU NAL. EVEN THE LD. D.R. HAS NOT RAISED ANY MATERIAL OBJECTION IN THIS REGARD. I , THEREFORE, CONDONE THE SAID DELAY AND PROCEED TO DISPOSE OF THIS APPEAL OF THE ASSESSEE ON MERIT. 3. THE ASSESSEE IN THE PRESENT CASE IS AN INDIVIDUA L, WHO IS EMPLOYED WITH CALCUTTA STATE TRANSPORT CORPORATION. THE RETU RN OF INCOME FOR THE YEAR UNDER CONSIDERATION WAS FILED BY HIM ON 01.07. 2014 DECLARING TOTAL INCOME OF RS.3,68,960/-. AS NOTICED BY THE ASSESSIN G OFFICER DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE ASSESSEE HAD PURCHASED AN IMMOVABLE PROPERTY JOINTLY WITH HIS WIFE ON 07.01.2 014 FOR A CONSIDERATION OF RS.24,00,000/-. SINCE THE MARKET V ALUE OF THE SAID PROPERTY WAS DETERMINED BY THE STAMP VALUATION AUTH ORITY AT RS.40,88,338/-, THE ASSESSING OFFICER INVOKED THE P ROVISIONS OF SECTION 56(2)(B)(II) AND ADDED THE DIFFERENCE OF RS.16,88,3 38/- TO THE TOTAL INCOME OF THE ASSESSEE AS THE ASSESSEE FAILED TO OF FER ANY SATISFACTORY EXPLANATION IN RESPECT OF THE SAID DIFFERENCE. ITA NO. 537/KOL/2019 ASSESSMENT YEAR: 2014-2015 TAPAN KAYAL 3 4. THE ADDITION OF RS.16,88,338/- MADE BY THE ASSES SING OFFICER WAS CHALLENGED BY THE ASSESSEE IN THE APPEAL FILED BEFO RE THE LD. CIT(APPEALS) AND SINCE THE SUBMISSION MADE BY THE ASSESSEE IN SU PPORT OF HIS CASE WAS NOT FOUND ACCEPTABLE BY HIM, THE LD. CIT(APPEALS) C ONFIRMED THE SAID ADDITION MADE BY THE ASSESSING OFFICER FOR THE FOLL OWING REASON GIVEN IN PARAGRAPH NO. 5 OF HIS IMPUGNED ORDER:- 5. GROUND NO. 2 IS IN RESPECT OF INVOCATION OF SEC . 56(2)(6)(II) BY THE AO AND THEREBY MAKING AN ADDITI ON OF RS. 16,88,338/-. THE APPELLANT HAS ARGUED THAT IF THE A O HAD ANY DOUBT ABOUT THE VALUATION, HE SHOULD HAVE REFERRED TO THE D.V.O. I AM NOT IN AGREEMENT WITH THE VIEWS OF THE AR. DURING THE ASSESSMENT PROCEEDINGS, THE APPELLANT HA D MADE NO SUCH REQUEST AND NO SUCH SUPPORTING DOCUMENTS WE RE PRODUCED BEFORE ME. ALSO, NO EVIDENCE WAS PRODUCED BEFORE ME THAT THE ISSUE OF VALUATION WAS CONTESTED BY THE APPELLANT BEFORE THE STAMP DUTY AUTHORITIES. CERTAIN CASE LAW OF THE JURISDICTIONAL HIGH COURT HAS BEEN CITED (214 TAXMA NN 305 CAL). I HAVE EXAMINED THIS CASE LAW. IT PERTAINS TO SEC. 50C WHICH FALLS UNDER THE HEAD CAPITAL GAINS AND CARRIE S SPECIAL DEEMING PROVISION. THE INSTANT CASE PERTAINS TO ADD ITION VI] S 56 WHICH FALLS UNDER THE HEAD INCOME FROM OTHER SOU RCES. ACCORDINGLY, A BLIND IMPORT OF ADJUDICATION PERTAIN ING TO ONE SECTION WILL NOT BE APPLICABLE TO ANOTHER SECTION. MOREOVER, I AM ALSO OF VIEW THAT WHILE SEC. SAC MAKES A PROVISI ON FOR REFERENCE TO THE DVO, NO SUCH PROVISION EXIST FOR R EFERENCE TO DVO UNDER SEC. 56 OF THE ACT. HENCE, GROUND NO. 2 O F THE APPEAL IS DISMISSED. AGGRIEVED BY THE ORDER OF THE LD. CIT(APPEALS), THE ASSESSEE HAS PREFERRED THIS APPEAL BEFORE THE TRIBUNAL. 5. I HAVE HEARD THE ARGUMENTS OF BOTH THE SIDES AND ALSO PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. IT IS OBSERV ED THAT THE IMPUGNED ADDITION WAS MADE BY THE ASSESSING OFFICER BY ADOPT ING THE VALUE OF RELEVANT ASSETS AS MADE BY THE STAMP VALUATION AUTH ORITY WITHOUT MAKING A REFERENCE TO THE VALUATION OFFICER AND THE SAID A DDITION MADE BY THE ASSESSING OFFICER WAS CONFIRMED BY THE LD. CIT(APPE ALS) ON THE GROUND THAT IN THE ABSENCE OF ANY OBJECTION RAISED BY THE ASSESSEE TO THE VALUATION DETERMINED BY THE STAMP VALUATION AUTHORI TY, THE ASSESSING ITA NO. 537/KOL/2019 ASSESSMENT YEAR: 2014-2015 TAPAN KAYAL 4 OFFICER WAS NOT REQUIRED TO MAKE ANY REFERENCE TO T HE VALUATION OFFICER. IN THE CASE OF SUDHIR KUMAR AGARWAL VS.- CIT [372 ITR 83] CITED BY THE LD. COUNSEL FOR THE ASSESSEE, HONBLE CALCUTTA HIGH COURT HAS HELD THAT THE ASSESSING OFFICER IS DUTY BOUND TO MAKE A REFERENCE TO THE VALUATION OFFICER BEFORE ADOPTING THE VALUE OF ASSETS DETERMINED BY THE STAM P VALUATION AUTHORITY FOR THE PURPOSE OF COMPUTING CAPITAL GAIN WITHOUT THERE BEI NG ANY OBJECTION RAISED BY THE ASSESSEE. ALTHOUGH THE SAID DECISION WAS RENDERED B Y THE HONBLE JURISDICTIONAL HIGH COURT IN THE CONTEXT OF SECTION 50C OF THE INCOME T AX ACT, 1961, I AM OF THE VIEW THAT THE RATIO LAID DOWN THEREIN IS EQUALLY APPLICABLE EVEN IN THE CONTEXT OF SECTION 56(2)(B)(II), WHICH ALSO INVOLVES ADDITION TO THE TOTAL INCOME OF THE ASSESSEE BY ADOPTING THE VALUE OF ASSET DETERMINED BY THE STAMP VALUATION AUTHORITY. I, THEREFORE, SET ASIDE THE IMPUGNED ORDER PASSED BY THE LD. CIT(APPEALS) ON THIS ISSUE AND RESTORE THE MATTER TO THE FILE OF THE ASSESSING OFFICER FOR DECIDING THE SAME AFRESH AFTER MAKING A REFERENCE TO THE D.V.O. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS TRE ATED AS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON SEPTEMBER 09, 2019. SD/- (P.M. JAGTAP) VICE-PRESIDENT (KZ) KOLKATA, THE 9 TH DAY OF SEPTEMBER, 2019 COPIES TO : (1) SHRI TAPAN KAYAL, C-25/18/12, ANAND NAGAR, DAKSHIN BEHALA ROAD, KOLKATA-700 061 (2) INCOME TAX OFFICER, WARD-63(3), KOLKATA, BAMBOO VILLA, 9 TH FLOOR, 169, A.J.C. BOSE ROAD, KOLKATA-700 014 (3) COMMISSIONER OF INCOME TAX (APPEALS)-19, KOLKA TA, (4) COMMISSIONER OF INCOME TAX, KOLKATA- , KOLKATA; (5) THE DEPARTMENTAL REPRESENTATIVE (6) GUARD FILE BY ORDER ASSISTANT REGISTRAR, INCOME TAX APPELLATE TRIBUNAL, KOLKATA BENCHES, KOLKATA LAHA/SR. P.S.