SONI JITENDRA PARMAR, MUMBAI V. CIT (A)-38, MUMBAI, MUMBAI

ITA 5978/MUM/2019

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 5806 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 11 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-09-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2016-2017
• Appeal Filed On: 19-09-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: RASHMIKANT MODI LD
• Keywords: Retrospective amendment
• Section: 143(3); 201

Judgement Text

1 - IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, MUMBAI , , BEFORE HONBLE SHRI AMARJIT SINGH, JM AND HONB LE SHRI MANOJ KUMAR AGGARWAL, AM (HEARING THROUGH VIDEO CONFERENCING MODE) ./ I.T.A. NO . 5978 /MUM/2019 ( / ASSESSMENT YEAR: 201 6 - 17 ) SONI JITENDRA PARMAR 1103, D WING, 11 TH ROAD SALI RAN ROAD, LLOYDS ESTATE WADALA EAST , MUMBAI - 40 0 037 / VS. CIT(A) - 38 ROOM NO. 402 , 4 TH FLOOR EARNEST HOUSE, NCPA MARG NARIMAN POINT , MUMBAI - 400 02 1 ./ ./ PAN/GIR NO. AREPP - 9850 - C ( / APPELLANT ) : ( / RESPONDENT ) ASSESSEE BY : SHRI RASHMIKANT MODI - LD. AR REVE NUE BY : SHRI SANJAY J. SETHI LD. SR. DR / DATE OF HEARING : 08/07/2021 / DATE OF PRONOUNCEMENT : 14/09/2021 / O R D E R MANOJ KUMAR AGGARWAL (ACCOUNTANT MEMBER) 1. AGGRIEVED BY CONFIRMATION OF CERTAIN ADDITION OF RS.18.30 LACS U/S 56(2)(VIIB) BY LD. COMMISSIONER OF INCOME TAX (APPEALS) - 38, MUMBAI {CIT(A)} ORDER DATED 30/05/2019, THE ASSESSEE IS IN FURTHER APPEAL BEFORE US. 2. THE FACT LEADING TO ADDITIONS ARE THAT WHILE FRAMING AN ASSESSMENT U/S 143(3) ON 24/12/2018, IT WA S NOTED BY LD. ASSESSING OFFICER (AO) THAT ASSESSEE HAD PURCHASED THREE FLATS 2 DURING THE YEAR . THERE WAS DIFFERENCE OF RS.22.33 LACS IN AGREEMENT VALUE OF THE THREE FLATS VIS - - VIS STAMP DUTY VALU E AS PER THE FOLLOWING DETAILS: - NO. DETAILS OF PROPERTY MARKET VALUE AS PER STAMP DUTY VALUATION IN RS. AGREEMENT VALUE IN RS . DIFFERENCE IN RS . & (%) 1. A - 303 64,52,000/ - 58,00,000/ - 6,52,000/ - (10.10%) 2. A - 304 73,78,000/ - 62,00,000/ - 11,78,000/ - (15.96%) 3. A - 305 1,29,03,000/ - 1,25,00,000/ - 4,03,000/ - (3.12%) TOTAL 2,67,33,000/ - 2,45,00,000/ - 22,33,000/ - (8.35%) ALL FLATS WERE SITUATED AT 3 RD FLOOR, PLOT NO.1, BASANT VIHAR CHS LTD., DR. C.P.GIDWANEY ROAD, CHEMBUR, MUMBAI - 400 074. THE LD. AO, I NVOKING THE PROVISIONS OF SEC.56(2)(VII) (B), ADDED DI FFERENCE OF RS.22.33 LACS IN THE HANDS OF THE ASSESSEE . 3. DURING APPELLATE PROCEEDINGS, THE ASSESSEE ASSAILED THE ACTION OF LD. AO, INTER - ALIA BY PLEADING THAT ON AN OVERALL BASIS, THE DIFFERENCE WAS ONLY 8.3 5 % AND THEREFORE, THE ADDITIONS W ERE NOT JUSTIFIED. IT WAS ALSO SUBMITTED THAT DUE TO PREVAILING ECO NOMY , TH ERE WAS CONSIDERABLE RECESSION IN THE REAL ESTATE MARKET. RELIANCE WAS PLACED ON THE DECISION OF THIS TRIBUNAL IN JOHN F LOWER INDIA V/S DCIT, MUMBAI (ITA NO. 545/MUM/2014) WHEREIN I T WAS HELD THAT SINCE THE DIFFERENCE WAS LESS THAN 10% , THE DECLARED VALUE WAS TO BE ACCEPTED. THE DECISION OF HONBLE SUPREME COURT IN C. B. GAUTA M V/S UNION OF INDIA ( 199 ITR 53 ) HELD THAT NO ADDITIONS WAS TO BE MADE IN CASE THE DIFFERENCE WAS 3 LESS THAN 15%. HOWEVER, L D. CIT(A) OBSERVED THAT ON INDIVIDUAL BASIS, THE DIFFERENCE IN VALUE WAS TO THE EXTENT OF 10 .10 %, 15.96% AND 3.12%, THEREFORE, IN TE RMS OF CITED DECISION OF MUMBAI TRIBUNAL, ADDITION WITH RESPECT TO FLAT N O.A - 305 WAS TO BE DELETED. HOWEVER, IN CASE OF OTHER TWO FLATS, SINCE THE DIFFERENCE WAS MORE THAN 10%, THE ADDITION WAS TO BE CONFIRMED. AGGRIEVED, THE ASSESSEE IS IN FURTHER APPEAL BEFORE US. 4. WE HAVE CAREFULLY CONSIDERED THE FACTUAL MATRIX AS WELL AS THE ORDERS OF LOWER AUTHORITIES. UPO N PERUSAL OF IMPUGNED ORDER, IT COULD BE GATHERED THAT LD. CIT(A), RELYING UPON THE CITED ORDER OF TRIBUNAL IN JOHN F LOWER INDIA V/S DCIT, MUMBAI (ITA NO. 545/MUM/2014) , HAS DELETED THE ADDITION WITH RESPECT TO FLAT NO.3 SINCE THE CONSIDERATION WAS WITHIN THE TOLERANCE RANGE OF 10%. HOWEVER, IT COULD BE SEEN THAT ON AN OVERALL BASIS, THE DIFFERENCE IS 8.35% WHICH IS STILL WITHIN TOLERANCE RANGE OF 10% . THIS RANGE HAS BEEN HELD TO BE RETROSPECTIVE IN NATURE IN THE DECISION OF MUMBAI TRIBUNAL IN MARIA FERNAND ES CHERYL V/S ITO (ITA NO.4850/MUM/2019 DATED 15/01/2021) WHEREIN IT WAS HELD BY THE COORDINATE BENCH THAT THE AMENDMENT WAS CURATIVE IN NATURE TO AVOID UNINTENDED CONSEQUENCES AND THEREFORE, SAFE HARBOR LIMIT OF 10% WAS TO BE GIVEN RETROSPECTIVE EFFECT FR OM THE POINT OF TIME WHEN THE RELATED LEGAL PROVISIONS WERE INTRODUCED. THEREFORE, THE FACTS OF THE CASE DO NOT CONVINCE US TO CONFIRM THE IMPUGNED ADDITIONS OF RS. 18.30 LACS . BY DELETING THE SAME, WE ALLOW THE APPEAL. 4 5. THE APPEAL STANDS ALLOWED IN TE RMS OF OUR ABOVE ORDER. O RDER PR ONOUNCED ON 14 TH SEPTEMBER, 2021. SD/ - SD/ - ( AMARJIT SINGH ) (MANOJ KUMAR A GGARWAL) / JUDICIAL MEMBER / ACCOUNTANT MEMBER MUMBAI; DATED : 14.09.2021 SR.PS, DHANANJAY / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. ( ) / THE CIT(A) 4. / CIT CONCERNED 5. , , / DR, ITAT, MUMBAI 6. / GUARD FILE / BY ORDER, / (DY./ASSTT.REGISTRAR) , / ITAT, MUMBAI .