CHAITANYA M. CHATURVEDI, NAVI MUMBAI V. ITO 11(1)(1), MUMBAI

ITA 554/MUM/2013

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 88197 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-01-2015
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: C
• Next Hearing Date: 28-01-2015
• Assessment Year: 2009-2010
• Appeal Filed On: 21-01-2013
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: PREMANAND
• Keywords: Sale consideration of property below Jantri Value; Opportunity of being heard
• Section: 50C

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL C BE NCH, MUMBAI , !' #$%& , '' ' ( BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER AND SHRI N.K. BILLAIYA, ACCOUNTANT MEMBER ./I .T.A. NO. 554/MUM/2013 ( ! ! ! ! ) ) ) ) / ASSESSMENT YEAR : 2009-10 CHAITANYA M. CHATURVEDI, 1092, VANSHREE CO.OPERATIVE HSG. SOC. LTD., SECTOR-58, A NERUL PALM BEACH ROAD, NAVI MUMBAI-400 706 ! ! ! ! / VS. THE ITO 11(1)(1), MUMBAI * '' ./ + ./ PAN/GIR NO. : AAEPC 1309E ( *, / APPELLANT ) .. ( -.*, / RESPONDENT ) *, / ' / APPELLANT BY: NONE -.*, 0 / ' / RESPONDENT BY: SHRI PREMANAND ! 0 12' / DATE OF HEARING :28.01.2015 3) 0 12' / DATE OF PRONOUNCEMENT :28.01.2015 '4 / O R D E R PER N.K. BILLAIYA, AM: THIS APPEAL BY THE ASSESSEE IS PREFERRED AGAINST THE ORDER OF THE LD. CIT(A)-3, MUMBAI DT. 7.12.2012 PERTAINING TO AS SESSMENT YEAR 2009- 10. 2. THE ASSESSEE HAS RAISED TWO SUBSTANTIVE GROUNDS OF APPEAL. GROUND NO. 1 RELATES TO THE GRIEVANCE THAT THE LD. CIT(A) ERRED IN NOT DIRECTING ITA NO. 554/M/2013 2 THE AO TO REFER THE CASE TO STAMP DUTY VALUATION OF FICER AND THE SECOND GRIEVANCE RELATES TO THE ADHOC DISALLOWANCE OF EXPE NSES AMOUNTING TO RS. 29,400/-. 3. AS PER THE AIR FILED BY JOINT SUB-REGISTRAR, CLA SS-2, JALGAON-2, THE ASSESSING OFFICER CAME TO KNOW THAT THE ASSESSEE HA S SOLD AN IMMOVEABLE PROPERTY VALUED AT RS. 23,11,250/-. T HE AO NOTICED THAT THE ASSESSEE HAS NOT OFFERED ANY INCOME UNDER THE H EAD CAPITAL GAIN. THE COPY OF THE AIR INFORMATION WAS MADE AVAILABLE TO THE ASSESSEE. THE ASSESSEE WAS ASKED TO FURNISH THE COPY OF PURC HASE AND SALE AGREEMENT ALONGWITH WORKING OF CAPITAL GAIN. THE A SSESSEE FILED COPY OF PURCHASE AND SALE AGREEMENT. THE AO FOUND THAT THE PURCHASE AND SALE AGREEMENT DO NOT PERTAIN TO THE PROPERTY MENTIONED IN AIR AS THERE WAS OF MISMATCH BETWEEN THE PURCHASE AND SALE AGREEMENT FILED BY THE ASSESSEE AND THE AIR INFORMATION. THE ASSESSEE WAS REQUIRED TO FURNISH THE COPY OF AGREEMENT FOR SALE IN RESPECT OF PROPER TY AS SHOWN IN THE AIR. 3.1. THE ASSESSEE FILED A DETAILED REPLY AND EXPLAI NED THAT AS PER THE SALE AGREEMENT DT. 26.6.2008, THE TOTAL SALE AGREEM ENT WAS RS. 18 LAKHS, THE STAMP DUTY VALUE OF THE SAME WAS AT RS. 46.22 L AKHS. IT WAS FURTHER EXPLAINED THAT THE ASSESSEE HAS NEVER DONE ANY TRAN SACTION INVOLVING REGISTRATION OF PROPERTY AMOUNTING TO RS. 23,11,250 /-.THE AO MADE ENQUIRIES FROM THE SUB-REGISTRAR WHO FILED A LETTER DT. 12.12.2011 AND STATED THAT THE PROPERTY SOLD BY THE ASSESSEE WAS H ELD JOINTLY WITH SHRI MADHUKAR B. CHOBE AND THE AGREEMENT VALUE OF WHICH IS RS. 18 LAKHS AND THE MARKET VALUE IS RS. 46.22 LAKHS. THE ASSES SEE WAS ASKED TO EXPLAIN WHY THE STAMP DUTY VALUE SHOULD NOT BE TAKE N FOR THE PURPOSE OF CAPITAL GAINS. THE ASSESSEE REPLIED THAT THE SAID LAND IS AN AGRICULTURAL LAND AND THEREFORE EXEMPT FROM TAX. THE ASSESSEE W AS ASKED TO JUSTIFY THE ITA NO. 554/M/2013 3 CLAIM OF AGRICULTURAL LAND. ON RECEIVING NO PLAUSI BLE REPLY, THE AO PROCEEDED BY INVOKING PROVISIONS OF SEC. 50C OF THE ACT. THE AO COMPUTED THE CAPITAL GAIN AT RS. 23,11,250/-. 3.2. PROCEEDING FURTHER, THE AO FOUND THAT THE ASSE SSEE HAS DEBITED THE PROFIT AND LOSS ACCOUNT BY EXPENDITURE UNDER THE HE AD BUSINESS PROMOTION, CONVEYANCE, ELECTRICITY, INTERNET, TELEP HONE & TRAVELLING AMOUNTING TO RS. 1,47,000/-. THE AO DISALLOWED 20% AND ADDED A SUM OF RS. 29,400/-. 4. AGGRIEVED BY THESE TWO ADDITIONS, THE ASSESSEE C ARRIED THE MATTER BEFORE THE LD. CIT(A) BUT WITHOUT ANY SUCCESS. 5. IN SO FAR AS THE ADDITIONS MADE ON ACCOUNT OF SA LE OF PROPERTY, THE ASSESSEE REQUESTED THE LD. CIT(A) TO DIRECT THE AO TO REFER THE MATTER TO THE STAMP VALUATION OFFICER WHICH REQUEST WAS DECLI NED BY THE LD. CIT(A). 6. AGGRIEVED BY THE FINDING OF THE LD. CIT(A), ASSE SSEE IS BEFORE US. 7. NONE APPEARED BEFORE US. WE HAVE HEARD THE LD. DEPARTMENTAL REPRESENTATIVE AND CAREFULLY PERUSED THE ORDERS OF THE AUTHORITIES BELOW. IN SO FAR AS THE VALUATION OF THE PROPERTY IS CONCE RNED, IN OUR CONSIDERED VIEW, WHEN THE ASSESSEE HAS REQUESTED THE LD. CIT(A ) TO DIRECT THE AO TO REFER THE MATTER TO THE VALUATION OFFICER, THE LD. CIT(A) SHOULD HAVE ACCEPTED THE REQUEST OF THE ASSESSEE. WE, THEREFOR E, RESTORE THIS ISSUE TO THE FILE OF THE AO. THE AO IS DIRECTED TO REFER TH E MATTER TO THE DVO AFTER GIVING REASONABLE AND SUFFICIENT OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. GROUND NO. 1 IS TREATED AS ALLOWED FOR S TATISTICAL PURPOSE. ITA NO. 554/M/2013 4 8. GROUND NO. 2 RELATES TO THE ADHOC DISALLOWANCE O F RS. 29,400/-. AS NO DETAILS HAVE BEEN FURNISHED, WE DECLINE TO IN TERFERE WITH THE FINDINGS OF THE LD. CIT(A). GROUND NO. 2 IS ACCORD INGLY DISMISSED. 9. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS PARTLY ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT AT THE TIME OF H EARING ON 28 TH JANUARY, 2015. SD/- SD/- (JOGINDER SINGH ) (N.K. BILLAIYA) /JUDICIAL MEMBER '' / ACCOUNTANT MEMBER MUMBAI; 5! DATED : 28 TH JANUARY, 2015 . ! . ./ RJ , SR. PS '4 '4 '4 '4 0 00 0 -1# -1# -1# -1# 6'#)1 6'#)1 6'#)1 6'#)1 / COPY OF THE ORDER FORWARDED TO : 1. *, / THE APPELLANT 2. -.*, / THE RESPONDENT. 3. 7 ( ) / THE CIT(A)- 4. 7 / CIT 5. #8 -1! , , / DR, ITAT, MUMBAI 6. 9 : / GUARD FILE. '4! '4! '4! '4! / BY ORDER, .#1 -1 //TRUE COPY// ; ;; ; / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI