Shri Ashwinkumar R. Shah, Vadodara V. The Income Tax Officer, Ward-2(2), Baroda

ITA 59/AHD/2017

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 0549 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 8 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-09-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 24-07-2019
• Assessment Year: 2011-2012
• Appeal Filed On: 06-01-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: LALIT P JAIN
• Keywords: Sale consideration of property below Jantri Value; Additional evidence
• Section: 143(3); 54B; 50C

Judgement Text

, C IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, AHMEDABAD BEFORE SHRI MAHAVIR PRASAD, JUDICIAL MEMBER &SHRI AMARJIT SINGH, ACCOUNTANT MEMBER ./I.T.A. NO. 59/AHD/2017 ( / ASSESSMENT YEAR: 2011-12) SHRI ASHWINKUMAR R. SHAH 7, IMPALA HOUSE, 36, VISHWAS COLONY, ALKAPURI, VADODARA- 390 007 / VS. ITO WARD- 2(2), BARODA ./ ./PAN/GIR NO. : AJP PS2 584 P ( /APPELLANT ) .. ( / RESPONDENT ) / APPELLANT BY : SHRI SUNIL TALATI, AR / RESPONDENT BY: SHRI LALIT P. JAIN, SR. DR ! /DATE OF HEARING 24/07/2019 '# ! / DATE OF PRONOUNCEMENT 16/09/2019 $% /O R D E R PER AMARJIT SINGH - AM: THE APPEAL FILED BY THE ASSESSEE FOR A.Y. 2011-12, ARISE FROM ORDER OF THE CIT(A)-5, VADODARA DATED 08.09.2016, IN PROCEED INGS UNDER SECTION 143(3) OF THE INCOME TAX ACT, 1961; IN SHORT THE ACT. 2. THE GROUND OF APPEAL FROM 1 TO 3 ARE PERTAINED T O THE ISSUE OF WRONGLY INVOKING THE PROVISION OF SEC. 50C OF THE ACT AND T HE GROUND NO. 4 TO 5 IN THE APPEAL OF THE ASSESSEE ARE PERTAINED TO THE ISSUE O F REJECTING THE DEDUCTION CLAIMED BY THE ASSESSEE U/S. 54B OF THE ACT. ITA NO. 59/AHD/2017 [SHRI ASHWINKUMAR R. SHAH VS. ITO] A.Y. 2011-12 2 3. AT THE OUTSET, WE ADJUDICATE THE FIRST ISSUE CON TESTED IN GROUND NO. 1 TO 3 AGAINST THE DECISION OF LD. CIT(A) IN CONFIRMING TH E ADDITION MADE BY THE AO OF RS. 51,06,500/- INVOKING THE PROVISION OF SEC. 5 0C OF THE ACT. THE GROUND NO. 1 TO 3 ARE INTERCONNECTED TO THE COMMON ISSUE, THEREFORE, FOR THE SAKE OF CONVENIENCE ALL THESE GROUNDS OF APPEAL ARE ADJUDIC ATED TOGETHER. DURING THE COURSE OF ASSESSMENT THE AO NOTICED THA T AS PER A.I.R. DETAILS THE ASSESSEE HAS SOLD IMMOVABLE PROPERTY DURING F.Y . 2010-11 FOR SALE CONSIDERATION OF RS. 2,23,06,500/- ON 10.06.2010. HOWEVER, IN THE COMPUTATION OF INCOME FILED ALONG WITH RETURN OF INCOME THE ASS ESSEE HAS SHOWN THE SALE CONSIDERATION OF RS. 1,72,00,000/-. THEREFORE, ASS ESSEE WAS ASKED TO SHOW- CAUSE BY DIFFERENCE OF RS. 51,60,500/- SHOULD NOT B E ADDED U/S. 50C OF THE ACT. THE ASSESSEE EXPLAINED THAT BECAUSE OF LOCATION OF THE PROPERTY IN THE UNDEVELOPED AREA THE VALUE ADOPTED BY THE STAMP VAL UATION AUTHORITY WAS NOT PRECISE BUT IT WAS ESTIMATED VALUE. THE AO HAS NOT ACCEPTED THE EXPLANATION OF THE ASSESSEE AND STATED THAT STAMP VALUATION AUTHOR ITY HAS RIGHTLY DETERMINED THE MARKET VALUE OF THE LAND OF RS. 2,23,06,500/- AND P ROVISION OF SEC. 50C WERE APPLICABLE. ACCORDINGLY, THE AO HAS MADE AN ADDITI ON OF RS. 51,06,500/- AND ADDED TO THE TOTAL INCOME OF THE ASSESSEE U/S. 50C OF THE ACT. 4. THE AGGRIEVED ASSESSEE HAS FILED APPEAL BEFORE T HE LD. CIT(A). LD. CIT(A) HAS UPHELD THE DECISION OF AO INVOKING THE P ROVISION OF SEC. 50C OF THE ACT. 5. WE HAVE HEARD THE RIVAL CONTENTION ON THIS ISSUE AND PERUSED THE MATERIAL ON RECORD. THE ASSESSEE HAS PLACED COPY OF REPORT OF VALUATION OFFICER OF THE INCOME TAX DEPARTMENT DATED 07.08.2015 DEMONSTRATIN G THAT REFERENCE TO THE DVO WAS MADE REFERRED TO THE BY THE AO. IT IS NOTI CED THAT THE AO HAS NOT CONSIDERED ANYWHERE IN THE ASSESSMENT ORDER ABOUT T HE REFERENCE MADE TO THE DEPARTMENT OF VALUATION OFFICER FOR DETERMINING THE VALUE OF THE IMPUGNED ITA NO. 59/AHD/2017 [SHRI ASHWINKUMAR R. SHAH VS. ITO] A.Y. 2011-12 3 PROPERTY SOLD BY THE ASSESSEE. THEREFORE, CONSIDER ING THE AFORESAID MATERIAL FACT WE RESTORE THIS ISSUE TO THE FILE OF THE LD. CIT(A) FOR ADJUDICATING THE ISSUE A FRESH AFTER TAKING INTO CONSIDERATION THE REPORT DA TED 07.08.2015 OF THE DVO. 6. THE OTHER GROUND OF APPEAL 4 TO 5 OF THE ASSESSE E ARE INTERCONNECTED TO THE COMMON ISSUE OF REJECTING THE DEDUCTION CLAIMED BY THE ASSESSEE U/S. 54B OF THE ACT. DURING THE COURSE OF ASSESSMENT THE AO NOTICED THA T ASSESSEE HAS CLAIMED EXEMPTION U/S. 54B OF THE ACT TO THE AMOUNT OF RS. 1,38,11,530/- AS PURCHASING VARIOUS PIECES OF AGRICULTURE LAND. THE AO HAS OBS ERVED THAT IN RESPECT OF FOUR PIECES OF LAND AT VILLAGE SODHI THE SALE DEED WERE EXECUTED AFTER LAPSE OF TWO YEARS FROM THE DATE OF SALE OF ORIGINAL ASSET, THER EFORE, CLAIM OF DEDUCTION U/S. 54B TO THE EXTENT OF RS. 43,25,100/- WAS DISALLOWED . DURING THE COURSE OF APPELLATE PROCEEDING THE ASSE SSEE HAS SUBMITTED ADDITIONAL EVIDENCES BEFORE THE LD. CIT(A) STATING THAT THOUGH THE SALE AGREEMENT HAS BEEN ENTERED INTO AFTER EXPIRY OF TWO YEARS BUT THE ASSESSEE HAS ACTUALLY GOT POSSESSION OF THE LAND AND ALSO HAS EN TERED INTO BANAKHAT WITH PARTIES ON 30.03.2011. THE ASSESSEE HAS ALSO PRODU CED ADDITIONAL EVIDENCES IN THE FORM OF BANAKHAT WITH THE SELLERS OF FOUR PIECE S AGRICULTURE LAND AT VILLAGE SODHI AND RECTIFIED SALE DEED DATED 16.03.2015. TH E LD. CIT(A) HAS NOT ADMITTED THE ADDITIONAL EVIDENCES ON THE GROUND THA T ASSESSEE HAS FAILED TO ESTABLISH THAT HE WAS PREVENTED BY SUFFICIENT CAUSE TO PRODUCE SUCH EVIDENCE BEFORE THE AO. THE ASSESSEE HAS SUBMITTED BEFORE T HE LD. CIT(A) THAT ALL THE FOUR BANAKHATS WERE MISPLACED DURING THE COURSE OF ASSESSMENT PROCEEDING, HOWEVER, THE LD. CIT(A) HAS NOT ACCEPTED THE ADDITI ONAL EVIDENCES SIMPLY STATING THAT THE SAID ADDITIONAL EVIDENCES WERE NEV ER PRODUCED BEFORE THE AO AND SAME WERE BEYOND THE SCOPE OF RULE 46A OF THE A CT. WE CONSIDER THAT THE DECISION OF LD. CIT(A) IS NOT JUSTIFIED AS HE HAS F AILED TO DISPROVE THE FACT ITA NO. 59/AHD/2017 [SHRI ASHWINKUMAR R. SHAH VS. ITO] A.Y. 2011-12 4 PLEADED BY THE ASSESSEE THAT AFORESAID DOCUMENT COU LD NOT BE PRODUCED BEFORE THE AO AS THE SAME WAS MISPLACED. THEREFORE, WE RE STORE THIS ISSUE ALSO TO THE FILE OF THE LD. CIT(A) FOR DECIDING THIS ISSUE A FR ESH AFTER TAKING INTO CONSIDERATION THE ADDITIONAL EVIDENCES FILED BY THE ASSESSEE. 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES. SD/- SD/- (MAHAVIR PRASAD) (AMARJIT SINGH) JUDICIAL MEMBER ACC OUNTANT MEMBER AHMEDABAD: DATED 16/09/2019 TANMAY TRUE COPY / COPY OF ORDER FORWARDED TO:- 1. / REVENUE 2. $ / ASSESSEE 3. &' ( / CONCERNED CIT 4. ( - / CIT (A) 5. )*+ ' , ! ' , ,-$&$ / DR, ITAT, AHMEDABAD 6. +. / / GUARD FILE. BY ORDER / $% , 0 / , ! ' , ,-$&$ 1 1.DATE OF DICTATION ON 20.08.2019 2.DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE TH E DICTATING MEMBER 21.08.2019 3.DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. P.S./P.S. 16.09.2019 4.DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT 16 .09.2019 5.DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR . P.S./P.S 16.09.2019 6.DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 16.09.2019 7.DATE ON WHICH THE FILE GOES TO THE HEAD CLERK . 8.THE DATE ON WHICH THE FILE GOES TO THE ASSTT. REG ISTRAR FOR SIGNATURE ON THE ORDER 9.DATE OF DESPATCH OF THE ORDER THIS ORDER PRONOUNCED IN OPEN COURT ON 16/09/2019