GEETA ABHIJIT BHOIR, MUMBAI V. ITO 17(2)(4), MUMBAI

ITA 6/MUM/2016

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 4491 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 7 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-08-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: Not Allotted
• Assessment Year: 2009-2010
• Appeal Filed On: 01-01-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: VIDHYADHAR
• Assessee Lawyers: M SUBRAMANIAN
• Keywords: Sale consideration of property below Jantri Value; Opportunity of being heard
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES G, MUMBAI BEFORE SHRI MAHAVIR SINGH, JUDICIAL MEMBER & SHRI RAJESH KUMAR, ACCOUNTANT MEMBER ITA NO.06/MUM/2016 ASSESSMENT YEAR : 2009 - 10 SMT GEETA ABHIJIT BHOIR, 85 INDIRA VILLA, 3 RD LANE, HINDU COLONY, DADAR, MUMBAI 400 014 PAN AMOPB4669G VS. ITO 17(2)(4) MUMBAI (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI M SUBRAMANIAN RESPONDENT BY : SHRI VIDHYADHAR DATE OF HEARING : 1 2 .0 7 .201 8 DATE OF PRONOUNCEMENT : 07 .0 8 . 201 8 O R D E R PER RAJESH KUMAR, ACCOUNTANT MEMBER THIS APPEAL BY ASSESSEE ARISES OUT OF THE ORDER OF THE CIT(A) 32 , MUMBAI, DATED 04.12.2015, FOR A.Y. 2009-10. THE ASSESSMENT WAS FRAMED BY THE ASSESSING OFFICER U/S. 143(3) R.W.S. 147 OF THE INCOME TAX AC T, 1961. 2. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL: (1) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE AND IN LAW THE LEARNED ASSESSING OFFICER ERRED IN :- (I) NOT REFERRING THE VALUATION TO VALUATION OFFICER U/ S. 50C(2); (II) NOT ACCEPTING THE APPELLANTS CONTENTION THAT THE C ONSENT TERMS SIGNED BEFORE THE THANE COURT AND OTHER ENCUMBRANCES ON THE PROPERTY HAVE NOT BEEN CONSIDER ED BY THE VALUATION OFFICER AND THE VALUATION IS THERE FORE BAD IN LAW; ITA NO.06/MUM/2016 SMT. GEETA ABHIJIT BHOIR 2 (III) NOT ACCEPTING THAT AFTER INVESTING THE ENTIRE CONSI DERATION IN BONDS U/S 54EC THERE IS NO REASON TO INVOKE SECT ION 50C. 3. AT THE OUTSET, THE LEARNED COUNSEL FOR THE ASSES SEE POINTED OUT THAT IDENTICAL ISSUE, IN THE CASE OF ANOTHER CO-OWNER (ITA NO.5344 /MUM/2012 FOR A.Y.2009-10 & ORS.), HAS BEEN SET ASIDE BY THE TRIBUNAL, VIDE ITS ORDER DATED 04.09.2017, TO THE FILE OF THE ASSESSING OFFICER TO DECIDE THE ISSUE AFTER CONSIDERING THE ASSESSEES CLAIM OF HANDING OVER OF 28% OF LAND TO THE ORIGINAL BUYER U NDER THE COURT SETTLEMENT AND TO DECIDE THE MATTER AFRESH AFTER PROVIDING REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. THE LEARNED AR SUBMITTED THAT THE I SSUE OF GIVING 28% LAND WAS NOT CONSIDERED BY THE DEPARTMENTAL VALUATION OFFICER (D VO) AND SINCE IT IS A VERY IMPORTANT ASPECT AFFECTING THE VALUATION, IT SHOULD BE REFERRED TO THE ASSESSING OFFICER TO DECIDE THE ISSUE AFRESH AS PER THE FACT AND LAW AFTER TAKING INTO ACCOUNT THE SAID MATERIAL FACT. 4. THE LEARNED DR, ON THE OTHER HAND, OPPOSED TO TH E ARGUMENTS OF THE LEARNED AR AND RELIED ON THE ORDERS OF THE AUTHORITIES BELO W. 5. WE HAVE HEARD RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. WE FIND THAT IN THIS CASE THE ASSESSEE HAS RECEIVED 7.5% AS HER SHARE IN THE SALE CONSIDERATION OF THE PROPERTY, BEARING SUR VEY NO. 21 HISSA NO.1, SURVEY NO.24 HISSA NO.1, SURVEY NO.25 HISSA NO.1, SURVEY N O.26 HISSA NOS. 7,8 & 9 AND SURVEY NO.112 HISSA NO.2 AT VILLAGE GHOD BUNDER, DI STRICT THANE, OUT OF TOTAL CONSIDERATION OF ` 4 CRORES. HOWEVER, THE MARKET VALUE OF THE SAID P ROPERTY AS PER STAMP VALUATION AUTHORITY WAS ` 19,40,58,400/-. THEREAFTER, THE CASE WAS REFERRED DVO ON THE REQUEST OF THE ASSESSEE AND THE DVO VALU ED THE SAID PROPERTY AT ` ITA NO.06/MUM/2016 SMT. GEETA ABHIJIT BHOIR 3 13,02,34,650/-. ACCORDINGLY, AFTER ALLOWING OPPORT UNITY TO THE ASSESSEE, THE ASSESSING OFFICER ADDED AN AMOUNT OF ` 9,0,69,722/- TO THE INCOME OF THE ASSESSEE AND AFTER ALLOWING DEDUCTION U/S. 54EC OF THE ACT T HE INCOME WAS ASSESSED AT ` 61,23,945/-. ON CAREFUL PERUSAL OF THE DECISION OF THE CO-ORDINATE BENCH IN THE CASE OF ONE OF THE CO-OWNERS IN ITA NO. 5344/MUM/20 12 (SUPRA), WE FIND THAT IDENTICAL ISSUE HAS BEEN RESTORED TO THE FILE OF TH E ASSESSING OFFICER ON THE GROUND THAT 28% OF THE LAND HAS BEEN HANDED OVER TO THE OR IGINAL BUYER UNDER THE COURT ORDER, WHICH HAS NOT BEEN CONSIDERED BY THE DVO. W E, THEREFORE, RESPECTFULLY FOLLOWING THE DECISION OF THE CO-ORDINATE BENCH SET ASIDE THE ORDER OF THE CIT(A) AND RESTORE THE MATTER BACK TO THE FILE OF THE ASSE SSING OFFICER TO CONSIDER THE COURT ORDERS AND ALSO THE FACT OF HANDING OVER 28% OF THE LAND TO THE ORIGINAL BUYER AND THEN ASSESS THE INCOME OF THE ASSESSEE AS PER FACT AND LAW. ACCORDINGLY, THE ISSUE IS RESTORED TO THE FILE OF THE ASSESSING OFFICER. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON THIS DAY OF 7 TH AUGUST 2018. SD/- SD/- (MAHAVIR SINGH) (RAJESH KUMAR) JUDICIAL MEMBER A CCOUNTANT MEMBER MUMBAI, DATED :7 TH AUGUST, 2018. SA ITA NO.06/MUM/2016 SMT. GEETA ABHIJIT BHOIR 4 COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE C I T(A), MUMBAI. 4. THE C I T 5. THE DR, G BENCH, ITAT, MUMBAI BY ORDER //TRUE COPY// (ASSISTANT REGISTRAR) INCOME TAX APPELLATE TRIBUNAL, MUMBAI