RAJ KUMAR, MEERUT V. ITO, WARD- 2(2), MEERUT

ITA 5736/DEL/2018

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 5391 (ITAT-DELHI)
• Duration Of Justice: 4 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-01-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: F
• Assessment Year: 2009-2010
• Appeal Filed On: 05-09-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MUNSHI RAM BIHAGRA SENIOR
• Keywords: Sale consideration of property below Jantri Value; Opportunity of being heard; Cost of acquisition; Fair market value
• Section: 54B; 50C

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCHES (CAMP AT MEERUT) BEFORE SHRI N.S. SAINI, ACCOUNTANT MEMBER AND SHRI KULDIP SINGH, JUDICIAL MEMBER ITA NO.5736/DEL./2018 (ASSESSMENT YEAR : 2009-10) SHRI RAJ KUMAR, VS. ITO, WARD 2 (2), C/O SHRI VINOD KUMAR GOEL, MEERUT. 282, BOUNDARY ROAD, CIVIL LINES, MEERUT. (PAN : CHCPR9099F) (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI VINOD KUMAR GOEL, ADVOCATE REVENUE BY : SHRI MUNSHI RAM BIHAGRA, SENIOR DR DATE OF HEARING : 10.01.2019 DATE OF ORDER : 24.01.2019 O R D E R PER KULDIP SINGH, JUDICIAL MEMBER : THE APPELLANT, SHRI RAJ KUMAR (HEREINAFTER REFERRE D TO AS THE ASSESSEE) BY FILING THE PRESENT APPEAL, SOUGH T TO SET ASIDE THE IMPUGNED ORDER DATED 22.12.2017 PASSED BY LD. CIT ( APPEALS), MEERUT QUA THE ASSESSMENT YEAR 2009-10 ON THE GROUN DS INTER ALIA THAT :- 1. THAT THE NO NOTICE U/S 148/142(1) WAS SERVED UPON THE ASSESSEE AND CIT(A) CONFIRM THE SAME WITHO UT ANY BASIS. ITA NO.5736/DEL./2018 2 2. THAT THE ASSESSEE HAS SOLD THE AGRICULTURE LAND (WRITTEN AS INDUSTRIAL PLOT) IS SITUATED AT VILLAGE NIZAMPUR, PARGANA & TEHSIL KHURJA, 8ULANDHSHAR. THE LAND IS AGRICULTURE LAND BUT SALE DEED WAS MADE BY THE PURCHASER AS INDUSTRIAL LAND THEREFORE, IT CANNOT B E TREATED AS INDUSTRIAL LAND. CIT(A) CONFIRM THE SAME WITHOUT APPRECIATED THE FACTS. 3. THAT THE COST OF ACQUISITION TAKEN BY THE A.D. A ND NOT ALLOWED THE INDEXATION. THEREFORE, ASSESSMENT M ADE BY THE A.D. WITHOUT DEDUCTING COST OF ACQUISITION I S NOT ACCORDING TO LAW. CIT(A) HAS NOT GIVEN ANY CLEAR FINDING. 4. THAT THE A.O. AS WELL AS CIT(A) HAS NOT ALLOWED THE REBATE U/S 54B OF I.T. ACT 1961 . 2. BRIEFLY STATED THE FACTS NECESSARY FOR ADJUDICAT ION OF THE CONTROVERSY AT HAND ARE : ASSESSING OFFICER NOTICED THAT THE ASSESSEE HAS SOLD THE PROPERTY WITH APPARENT SALE C ONSIDERATION OF RS.32,68,000/- AS AGAINST THE CIRCLE RATE OF RS.68, 88,000/-. ON FAILURE OF THE ASSESSEE TO JOIN THE ASSESSMENT PROC EEDINGS DESPITE ISSUANCE OF THE NOTICE, AO MADE AN ADDITION OF RS.6 8,88,000/- BY INVOKING THE CIRCLE RATE OF THE PROPERTY IN QUESTIO N. 3. ASSESSEE CARRIED THE MATTER BY WAY OF AN APPEAL BEFORE THE LD. CIT (APPEALS) WHO HAS PARTLY ALLOWED THE APPEAL . FEELING AGGRIEVED, THE ASSESSEE HAS COME UP BEFORE THE TRIB UNAL BY WAY OF FILING THE PRESENT APPEAL. ITA NO.5736/DEL./2018 3 4. WE HAVE HEARD THE LD. AUTHORIZED REPRESENTATIVES OF THE PARTIES TO THE APPEAL, GONE THROUGH THE DOCUMENTS R ELIED UPON AND ORDERS PASSED BY THE REVENUE AUTHORITIES BELOW IN T HE LIGHT OF THE FACTS AND CIRCUMSTANCES OF THE CASE. 5. BARE PERUSAL OF THE IMPUGNED ORDER PASSED BY THE LD. CIT (A) SHOWS THAT DURING APPELLATE PROCEEDINGS, THE AS SESSEE HAS MOVED A REQUEST FOR MAKING REFERENCE TO THE DVO TO CONSIDER THE DIFFERENCE BETWEEN THE ACTUAL VALUE OF THE SALE CON SIDERATION AND THE STAMP VALUE OF THE PROPERTY, BUT LD. CIT (A) DE CLINED THE REQUEST OF THE ASSESSEE THAT THIS GROUND MUST BE TA KEN BEFORE THE AO. BUT WE ARE OF THE CONSIDERED VIEW THAT WHEN TH E PRESENCE OF THE ASSESSEE COULD NOT BE PROCURED BY THE AO DESPIT E ISSUANCE OF NOTICE, THE QUESTION OF TAKING THIS GROUND BEFORE T HE AO BY THE ASSESSEE DOES NOT ARISE. 6. IT IS THE MATTER OF COMMON KNOWLEDGE THAT SOMETI MES PROPERTY IS SOLD BELOW THE CIRCLE RATE DUE TO NUMER OUS REASONS AND WHEN THE ASSESSEE HAS GOT THE RIGHT TO GET THE FAIR MARKET VALUE ASSESSED OF THE PROPERTY IN QUESTION FROM THE DVO, THE SAID RIGHT CANNOT BE DENIED MERELY ON THE BASIS OF PROCEDURAL TECHNICALITIES. TO MEET WITH THE ENDS OF JUSTICE AND TO REACH AT TH E LOGICAL CONCLUSION, WE ARE OF THE CONSIDERED VIEW THAT FAIR MARKET VALUE OF THE PROPERTY IN QUESTION IS REQUIRED TO BE ASSESSED FROM THE DVO ITA NO.5736/DEL./2018 4 U/S 50C OF THE ACT. CONSEQUENTLY, PRESENT CASE IS SET ASIDE TO THE FILE OF THE AO WHO SHALL FRAME THE ASSESSMENT AFRES H AFTER PROVIDING AN OPPORTUNITY OF BEING HEARD TO THE ASSE SSEE BY REFERRING THE MATTER TO THE DVO. SO, THE APPEAL FI LED BY THE ASSESSEE IS HEREBY ALLOWED FOR STATISTICAL PURPOSES . ORDER PRONOUNCED IN OPEN COURT ON THIS 24 TH DAY OF JANUARY, 2019. SD/- SD/- (N.S. SAINI) (KULDIP SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED THE 24 TH DAY OF JANUARY , 2019 TS COPY FORWARDED TO: 1.APPELLANT 2.RESPONDENT 3.CIT 4.CIT(A), MEERUT. 5.CIT(ITAT), NEW DELHI. AR, ITAT NEW DELHI.