Shri Vinay Khetan, Noida V. JCIT, Noida

ITA 593/DEL/2010

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 3972 (ITAT-DELHI)
• Duration Of Justice: 3 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-05-2010
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: H
• Next Hearing Date: 24-05-2010
• Assessment Year: 2006-2007
• Appeal Filed On: 08-02-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: N K CHAND
• Keywords: Sale consideration of property below Jantri Value; Fair market value
• Section: 143(3); 50C

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH `H: NEW DELHI BEFORE SHRI C.L.SETHI, JM & SHRI R.C. SHARMA, AM I.T. A. NO.593/DEL OF 2010 ASSESSMENT YEAR: 2006-07 SHRI VINAY KHAITAN, JCIT, NOIDA RANGE, A-41, 42, SECTOR 2, VS NOIDA. NOIDA. PAN AFQPK4347B APPELLANT RESPONDENT APPELLANT BY: SHRI K. SAMPATH RESPONDENT BY: SHRI N.K. CHAND ORDER ER C.L. SETHI, JM: THE ASSESSEE IS IN APPEAL AGAINST THE ORDER OF CIT( A) DATED 21.12.2009 PASSED IN THE MATTER OF ASSESSMENT MADE BY THE AO U/S 143(3) OF THE INCOME-TAX ACT, 1961 (THE ACT) FOR ASSTT. YE AR 2006-07. 2. THE ISSUE INVOLVED IN THIS APPEAL IS WITH REGARD TO THE ADDITION OF RS.22,18,460/- MADE BY THE AO ON ACCOUNT OF LONG TE RM CAPITAL GAIN BY APPLYING THE PROVISIONS OF SECTION 50C OF THE ACT I N DETERMINING THE SALE CONSIDERATION OF THE PROPERTY SOLD. 2 3. WE HAVE HEARD BOTH THE PARTIES AND HAVE CAREFULL Y PERUSED THE ORDERS OF THE AUTHORITIES BELOW. 4. DURING THE YEAR, THE ASSESSEE HAD SOLD CERTAIN P LOTS OF LAND AT TEHSIL SUNRAKH BANGAR, DISTT. MATHURA FOR A SALE CONSIDERA TION OF RS. 9 LACS. IT WAS NOTICED BY THE AO THAT THE CIRCLE RATE FIXED BY THE GOVERNMENT FOR THE PURPOSE OF STAMP DUTY IN RESPECT OF THE AFORESAID P LOT OF LAND WAS DETERMINED AT RS.31,18,460/-. THE AO APPLIED THE C IRCLE RATE TO DETERMINE THE SALE CONSIDERATION FOR THE PURPOSE OF COMPUTING CAPITAL GAIN. THE AO THEN DETERMINED THAT THE CAPITAL GAIN SHOWN BY THE ASSESSEE IS SHORT BY RS.22,18,460/-, WHICH WAS ADDED TO THE ASSESSEES T OTAL INCOME AS SHORT TERM CAPITAL GAIN. ON AN APPEAL, CIT(A) CONFIRMED THE A OS ORDER BY HOLDING THAT THE SALE CONSIDERATION IS TO BE TAKEN AS PER P ROVISIONS OF SECTION 50C OF THE ACT WHILE WORKING OUT THE CAPITAL GAIN ON SALE OF LAND. HE, THEREFORE, AFFIRMED THE AOS ACTION. 5. STILL AGGRIEVED, THE ASSESSEE IS IN APPEAL BEFOR E US. AT THE TIME OF HEARING OF THIS APPEAL, THE LEANED COUNSEL FOR THE ASSESSEE POINTED OUT THAT IDENTICAL MATTER IN THE ASSESSEES CASE HAD COME UP FOR CONSIDERATION BEFORE THIS TRIBUNAL WHERE THE MATTER WAS RESTORED BACK TO THE FILE OF THE AO FOR FRESH DECISION AFTER REFERRING THE MATTER TO THE DV O AS PER PROVISIONS OF SECTION 50C(2) OF THE ACT. HE, THEREFORE, SUBMITTE D THAT THE ISSUE MAY BE 3 SENT BACK TO THE FILE OF THE AO FOR HIS FRESH DECIS ION AFTER REFERRING THE MATTER TO THE DVO AS PER PROVISIONS OF SECTION 50C(2) OF T HE ACT INASMUCH AS THE FAIR MARKET VALUE OF THE PROPERTY IS BELOW THE CIRC LE RATE ADOPTED FOR THE STAMP DUTY PURPOSES. 6. THE LEARNED DR, ON THE OTHER HAND, SUPPORTED THE ORDERS OF THE AUTHORITIES BELOW. 7. AFTER CONSIDERING THE MATTER AND HAVING REGARD T O THE PROVISIONS OF SECTION 50C(2) OF THE ACT, AND IN THE LIGHT OF THE FACT THAT AO HAS MERELY APPLIED THE STAMP DUTY RATE FOR DETERMINING THE SAL E CONSIDERATION FOR THE PURPOSE OF COMPUTING CAPITAL GAIN WITHOUT ASCERTAIN ING THE FACT WHETHER THE FAIR MARKET VALUE OF THE PROPERTY IS BELOW THE VALU E TAKEN FOR STAMP DUTY PURPOSES, WE RESTORE THE MATTER BACK TO THE FILE OF AO FOR A FRESH DECISION AFTER REFERRING THE MATTER TO DVO TO DETERMINE THE FAIR MARKET VALUE AS PER PROVISIONS OF SECTION 50C(2) OF THE ACT AS WAS SO DONE BY THE TRIBUNAL IN ASSESSEES OWN CASE IN ITA NO.4082/DEL/2009 PERTAI NING TO THE ASSTT. YEAR 2005-06. WE ORDER ACCORDINGLY. 8. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. 4 9. THIS DECISION WAS PRONOUNCED IN THE OPEN COURT O N 24 TH MAY, 2010 IMMEDIATELY AFTER THE HEARING WAS OVER. (R.C. SHARMA) (C.L. SETHI) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 24 TH MAY, 2010 VIJAY COPY TO: 1. APPELLANT. 2. RESPONDENT. 3. CIT 4. CIT(A), GHAZIABAD 5. DR ASSISTANT REGISTRAR