Shri Udayvirsingh Bhadauria, Ahmedabad V. The Income Tax Officer, Ward-6(1) Now Ward-7(2)(5), Ahmedabad

ITA 568/AHD/2016

• Counselvise Citation: [2018] 112 COUNSELVISE.COM (IT) 5257 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 7 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-10-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: Not Allotted
• Assessment Year: 2011-2012
• Appeal Filed On: 04-03-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S K DEV
• Assessee Lawyers: BHAVESH SHAH
• Keywords: Sale consideration of property below Jantri Value; Set aside
• Section: 50C

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD A BENCH (BEFORE SHRI PRAMOD KUMAR , ACCOUNTANT MEMBER & SHRI MAHAVIR PRASAD, JUDICIAL MEMBER) ITA. NO: 568/AHD/2016 (ASSESSMENT YEAR: 2011-12) SHRI UDAYVIRSINGH BHADAURIA UDAY DIAMOND COMPLEX, NR. KHODIYAR CHAR RASTA, BAPUNAGAR, AHMEDABAD-382350 V/S INCOME TAX OFFICER, W ARD- 6 (1), AHMEDABAD [NOW WARD-7(2)(5), AHMEDABAD] (APPELLANT) (RESPONDENT) PAN: AELPB 7829R APPELLANT BY : SHRI BHAVESH SHAH, AR RESPONDENT BY : SHRI S. K.DEV, SR. D.R. ( )/ ORDER DATE OF HEARING : 17 -07-201 8 DATE OF PRONOUNCEMENT : 12-10-2018 PER MAHAVIR PRASAD, JUDICIAL MEMBER 1. THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE LD. CIT(A)-5, AHMEDABAD DATED 04.01.2016 PERTAINING TO A.Y. 2011- 12 AND FOLLOWING GROUND HAS BEEN TAKEN: ITA NO. 568/ AHD/2016 . A.Y. 2011-1 2 2 1- THE ADDITION OF RS. 51,90,900/- ON ACCOUNT OF DIFFE RENCE BETWEEN JANTRI RATE AND DOCUMENT PRICE OF THE PROPERTY U/S. 50C OF THE ACT CONFIRMED BY THE LD. CIT(A) MAY KINDLY BE DELETED OR GIVE NECESSARY DIRECTION FOR REFERRING THE MATTER TO DVO . 2- SUCH AND FURTHER RELIEF AS THE NATURE AND CIRCUMSTA NCES OF THE CASE MAY JUSTIFY. 2. DURING THE YEAR UNDER CONSIDERATION, THE ASSESSEE H AS SOLD NON-AGRICULTURAL LAND ON 03.07.2010 FOR RS.85,00,000/- AT SURVEY NO,386/3 ,4,5,6 AND 7 AT VILLAGE SAIJPUR BOGHA, DISTRICT AHMEDABAD. ON PERUSAL OF SA LE DEED IT WAS NOTICED THAT THE PURCHASER HAS PAID STAMP DUTY FOR RS.6,71,500/- . THE DETERMINED JANTRI VALUE COMES TO RS. 1, 37,04,08 1/-. AS PER SECTION 5 OC THE SALE CONSIDERATION SHOULD BE TAKEN AS PER JANTRI VALUE. THEREFORE, JAN TRI VALUE IS TAKEN AT RS. 1,37,04,081/-. THE WORKING OF CAPITAL GAIN IS AS UN DER:- SALE CONSIDERATION RS.1,37,04,081/- LESS: PURCHASE VALUE RS.70,00,000/- STAMPDUTY RS. 3.43.000/- REGISTRATIONFEE RS. 70, 180/ - RS. 74.13.180/- RS. 62.90.900/- LESS: COST OF IMPROVEMENT RS. 11,00,000/- SHORT TERM CAPITAL GAIN RS.51,90,900/- 3. THE ASSESSEE HAS NOT SHOWN SHORT TERM CAPITAL GAIN IN RETURN OF INCOME. THEREFORE, A SHOW CAUSE WAS GIVEN TO THE ASSESSEE V IDE THIS OFFICE LETTER NO.ITO/WARD-6(L)/UBB/F-60/SHOW CAUSE/2013-14 DATED 23.12.2013 TO SHOW CAUSE AS TO WHY ADDITION OF RS.51,90,900/- SHO ULD NOT BE MADE IN HIS TOTAL INCOME. IN RESPONSE TO SHOW CAUSE, THE ASSESS EE VIDE LETTER DATED 17.02.2014 SUBMITTED THAT HE HAD FILED A PETITION I N GUJARAT HIGH COURT AND ORDER MAY BE KEPT IN ABEYANCE TILL THE DECISION OF COURT OR LAST DATE FOR PASSING THE ORDER WHICHEVER IS EARLIER. THE NEXT HEARING OF ASSESSEE IN GUJARAT HIGH ITA NO. 568/ AHD/2016 . A.Y. 2011-1 2 3 COURT IS FIXED FOR 12.04.2014 AND THE ASSESSMENT IS GETTING BARRED BY LIMITATION ON 31.03.2014, I HAVE THEREFORE NO ALTERNATIVE EXCE PT TO FINALIZE THE ORDER ON THE MERIT. THE ASSESSEE HAS NOT OFFERED ANY EXPLANA TION TO SHOW CAUSE TILL DATE OF ORDER. IT IS, THEREFORE, HELD THAT THE ASSESSEE HAS NO EXPLANATION TO SHOW CAUSE AND ACCORDINGLY ADDITION OF RS.51,90,900/- IS MADE. ' 4. AGAINST THE ADDITION OF RS. 51,90,900/-, ASSESSEE P REFERRED FIRST STATUTORY APPEAL BEFORE THE LD. CIT(A) AND REQUEST HIM TO REFER THIS MATTER TO THE DVO IN ORDER TO ASCERTAIN THE MARKET VALUE OF THE PROPERTY. BUT LD. CIT(A) DID NOT ACCEPT THE PLEA OF THE ASSESSEE AND CONFIRM THE ADDITION O F RS. 51,90,900/-. 5. NOW APPELLANT IS BEFORE US. 6. APPELLANT CONTENDED BEFORE US THAT THERE ARE VARIOU S FACTORS AFFECTED THE MARKET RATE OF PROPERTY AND SAID PROPERTY SITUATED IN BACKWARD AREA WHERE MAJORITY OF THE POPULATION ARE LIVING BELOW THE POV ERTY LINE AND THE PROPERTY WAS SITUATED JUST ACROSS PUBLIC TOILETS HENCE THE F AIR MARKET VALUE OF THE PROPERTY WAS LOW AND NOT REPRESENTATIVE OF THE JANT RI VALUE. 7. WE ARE OF THE CONSIDERED OPINION, THAT LD. CIT(A) S HOULD HAVE ACCEPTED THE PRAYER OF THE APPELLANT FOR REFERRING THE MATTER TO THE DVO FOR VALUATION OF THE PROPERTY BUT HE FAILED TO DO SO. THEREFORE, IN THES E CIRCUMSTANCES, WE THINK IT PROPER TO SET ASIDE THE ORDER AND SEND THIS MATTER BACK TO THE FILE OF THE LD. ASSESSING OFFICER WHO WILL REFER THIS MATTER TO THE DVO IN ORDER TO FIND OUT THE EXACT VALUE OF THE PROPERTY. THEREAFTER, A.O. W ILL DECIDE THE MATTER AS PER LAW. ITA NO. 568/ AHD/2016 . A.Y. 2011-1 2 4 8. IN THE RESULT, APPEAL FILED BY THE ASSESSEE IS ALLO WED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN OPEN COURT ON 12 - 10- 2018 SD/- SD/- (PRAMOD KUMAR) (MAHAVIR PRASAD) ACCOUNTANT MEMBER TRUE COPY JUDICIAL MEMBER AHMEDABAD: DATED 12 /10/2018 RAJESH COPY OF THE ORDER FORWARDED TO: - 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT (APPEALS) 4. THE CIT CONCERNED. 5. THE DR., ITAT, AHMEDABAD. 6. GUARD FILE. BY ORDER DEPUTY/ASSTT.REGISTRAR ITAT,AHME DABAD