Gopal Krishan Dubey, Noida V. ITO, Ward- 1(4), Noida

ITA 6085/DEL/2018

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 7719 (ITAT-DELHI)
• Duration Of Justice: 7 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-04-2019
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 24-09-2018
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: S L ANURAGI
• Assessee Lawyers: R R MAURYA
• Keywords: Sale consideration of property below Jantri Value; Capital asset
• Section: 50C; 142(1); 250; 147; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: SMC NEW DELHI BEFORE SHRI H.S. SIDHU, JUDICIAL MEMBER I.T.A .NO.-6085/DEL/2018 (ASSESSMENT YEAR-2009-10) GOPAL KRISHAN DUBEY (PROP. M/S G.P. EXPORTS) A-33, SECTOR-10, NOIDA, UTTAR PRADESH. PAN NO. AAXPD2991A (APPELLANT) VS ITO WARD 1(4) NOIDA. (RESPONDENT) APPELLANT BY SHRI R.R. MAURYA, ADV. RESPONDENT BY SHRI S.L. ANURAGI, SR. DR ORDER THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAIN ST THE ORDER DATED 31.05.2018 OF THE LD. CIT(APPEALS)-1, NOIDA R ELEVANT TO ASSESSMENT YEAR 2009-10 ON THE FOLLOWING GROUNDS OF APPEAL: - 1. THAT THE ORDER OF THE LD. CIT(A) IS BAD IN LAW AN D AGAINST THE STATUTORY PROVISIONS. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A ND IN LAW THE LD. CIT(A) HAS ERRED IN SUSTAINING THE ADDITION OF RS. 8,27,735/- ON ACCOUNT OF SHORT TERM CAPITAL GAIN MA DE BY THE AO BY INVOKING PROVISIONS OF SECTION U/S 50C OF THE ACT. 3. IN THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A ND IN LAW THE LD. CIT(A) HAS ERRED IN UPHOLDING THE ORDER PAS SED BY THE AO THAT PROVISIONS OF SECTION 50C ARE APPLICABLE TO THE RIGHT TRANSFERRED IN LEASE HOLD PROPERTY. 2 4. THE APPELLANT CRAVES LEAVE TO ADD, ALTER, OMIT OR S UBSTITUTE ANY OR ALL OF THE ABOVE GROUNDS OF APPEAL, AT ANY T IME BEFORE OR AT THE TIME OF APPEAL. 2. THE BRIEF FACTS OF THE CASE ARE THAT AS PER AIR INF ORMATION, THE ASSESSEE SOLD IMMOVABLE PROPERTY DURING THE FY 2008- 09. FOR VERIFICATION OF THE SAID TRANSACTION NOTICE U/S. 133( 6) OF THE INCOME TAX ACT, 1961 (IN SHORT ACT) WAS ISSUED ON 12.6.2015 AND 16.10.2015. IN RESPONSE TO THIS OFFICE NOTICES ASSESSEE DID NOT SUBMI T ANY REPLY. SINCE, THE ASSESSEE COULD NOT FURNISH ANY REPLY OF THE SAME , ACTION UNDER SECTION 147 OF THE ACT WAS INITIATED AFTER GETTING APPRO VAL FROM THE PR. CIT, NOIDA WHICH WAS ACCORDED ON 15.3.2016 AND ACC ORDINGLY NOTICE U/S. 148 OF THE ACT WAS ISSUED ON 21.3.2016. SUBSEQU ENTLY, NOTICES UNDER SECTION 142(1) OF THE ACT ALONGWITH QUERIES WER E ISSUED. IN COMPLIANCE OF NOTICE U/S. 148 OF THE ACT AND SUBSEQUE NT NOTICES U/S. 142(1) OF THE ACT AR OF THE ASSESSEE APPEARED AND FU RNISHED COPY OF ITR FILED ON 30.9.2009 AND SUBMITTED THAT THE SAME MAY BE TREATED AS ITR FILED IN RESPONSE TO NOTICE U/S. 148 OF THE ACT DA TED 21.3.2016. AR OF THE ASSESSEE ATTENDED THE ASSESSMENT PROCEEDINGS FR OM TIME TO TIME AND FURNISHED REPLIES ALONGWITH SUPPORTING DOCUMENTS I N RESPONSE TO QUERIES MADE. AO OBSERVED THAT DURING THE YEAR UNDE R CONSIDERATION ASSESSEE SOLD AN IMMOVABLE PROPERTY 332, BLOCK-G, SE CTOR-63, NOIDA HAVING PLOT AREA 250 SQ. MTRS. AND 69.98 SQ. MTRS. C OVERED AREA. CAPITAL ARISEN ON SALE OF THIS PROPERTY WAS NOT DECL ARED BY THE ASSESSEE 3 IN HIS ORIGINAL ITR FILED. DURING ASSESSMENT PROCEE DINGS, ASSESSEES COUNSEL HAS FURNISHED COMPUTATION OF SHORT TERM CAPITAL GAIN ARISEN ON SALE OF THE PROPERTY IN QUESTION AT RS. 8,27,735/- AN D OFFERED THE SAME FOR TAXATION. ASSESSEE HAS SUBMITTED THAT HE HAS TRANSF ERRED THE RIGHT OF THE PROPERTY ON 11.7.2008 I.E. ON THE DATE OF RECEIPT OF TOTAL CONSIDERATION AND CONSIDERED THE CIRCLE RATE PREVALE NT ON THIS DATE FOR CALCULATION OF SHORT TERM CAPITAL GAIN AS PER THE PRO VISIONS OF SECTION 50C. LATER VIDE SUBMISSION DATED 09.12.2016, LD. CO UNSEL FOR THE ASSESSEE, QUOTING CERTAIN CASE LAWS, HAS STATED AS THE PROPERTY IN QUESTION WAS LEASEHOLD PROPERTY, THE PROVISION OF SE CTION 50C OF THE I.T. ACT, 1961 IS NOT APPLICABLE AND HAS COMPUTED SHORT T ERM CAPITAL GAIN CONSIDERING ACTUAL SALE CONSIDERATION OF RS. 14,80,0 00/- NOT THE VALUE FOR STAMP DUTY PURPOSE ON THE DATE OF ACTUAL TRANSFER OF RIGHT OF THE PROPERTY AND COMPUTED SHORT TERM CAPITAL GAIN ON SALE OF THE PROPERTY AT A LOSS OF RS. 41,560/-. HENCE, THE AO ADDED THE SHORT TERM CAPITAL AMOUNT OF RS. 8,27,735/- IN THE HANDS OF THE ASSESSEE BY COMPLETING THE ASSESSMENT AT RS. 10,96,970/- U/S. 147/143(3) OF THE ACT VIDE ORDER DATED 12.12.2016. AGGRIEVED BY THE ASSESSMEN T ORDER, ASSESSEE APPEALED BEFORE THE LD. CIT(A), WHO VIDE HIS IMPUGN ED ORDER DATED 31.5.2018 HAS DISMISSED THE APPEAL OF THE ASSESSEE. AGAINST THE IMPUGNED ORDER, ASSESSEE IS IN APPEAL BEFORE THE TRI BUNAL. 4 3. LD. COUNSEL FOR THE ASSESSEE HAS STATED THAT LD. CI T(A) WAS NOT JUSTIFIED IN SUSTAINING THE ADDITION OF RS. 8,27,735/- ON ACCOUNT OF SHORT TERM CAPITAL GAIN MADE BY THE AO BY INVOKING PROVI SIONS OF SECTION 50C OF THE ACT. HE FURTHER SUBMITTED THAT LOWER AUTHORIT IES HAVE WRONGLY OBSERVED THAT THE PROVISIONS OF SECTION 50C A RE APPLICABLE TO THE RIGHT TRANSFERRED IN LEASE HOLD PROPERTY. HE FURTH ER SUBMITTED THAT THE PROVISION OF SECTION 50C ARE NOT APPLICABLE IN TH E CASE OF LEASEHOLD PROPERTIES AS HAS BEEN PRONOUNCED IN THE NUMBER OF C ASES BY HONBLE COURTS. IN SUPPORT OF HIS CONTENTION, HE FILED 02 PA PER BOOK, ONE IS CONTAINING PAGES 1089 IN WHICH HE HAS ATTACHED THE C OPY OF INCOME TAX RETURN ALONGWITH COMPUTATION FOR AY 2009-10; BALAN CE SHEET AND PROFIT AND LOSS ACCOUNT FOR THE YEAR ENDING 31.3.20 09; ASSESSEE SUBMISSION DATED 11.11.2016 BEFORE THE ITO ALONGWITH THE FOLLOWING DOCUMENTS I.E. COPY OF ALLOTMENT LETTER DATED 6.10. 2016 ISSUED BY NOIDA AUTHORITY IN RESPECT OF PLOT NO. G-332, SECTOR-63, NO IDA WITH DEMAND LETTER; LEASE DEED DATED 21.3.2007 BETWEEN NOIDA AUTHO RITY AND GOPAL KRISHNA DUBEY; POSSESSION LETTER DATED 5.4.2007; AGREE MENT OT SELL DATED 11.7.2008 BETWEEN GOPAL KRISHNA DUBEY AND OM PRAKASH; TRANSFER MEMORANDUM DATED 14.11.2018 (NOIDA AUTHORITY S PERMISSION FOR TRANSFER); TRANSFER DEED DATED 4.12.2008 BETWEEN GOPAL KRISHNA DUBEY AND OM PRAKASH; ASSESSEE SUBMISSION DATED 28. 11.2016 BEFORE ITO; ASSESSEE SUBMISSION DATED 6.12.2016 BEFORE ITO ; ASSESSEE 5 SUBMISSION DATED 09.12.2016 BEFORE ITO; FORM NO. 35 AND STATEMENT OF FACTS AND GROUNDS OF APPEAL BEFORE CIT(A). IN ANO THER PAPER BOOK WHICH IS CONTAINING PAGES 1-57 IN WHICH HE HAS ATTAC HED THE COPY OF DECISION DATED ACIT, CIRCLE 28(1), VS. SHRI KISHAN D ASS ITA NO. 915/DE;/2012 (AY 2008-09) ORDER DATED 7.6.20013 (TR IB.); ITO VS, SHRI CHANDER SHEKAR ITA NO. 430/D/2013 AY 2009-10 DATED 4.3.20019; CIT VS. GREEN FIELD HOTELS AND ESTATES (P) LTD. 389 ITR 68 (BOM.) (HCV); ITO VS. HARIOM GUPTA 45 ITR (TRIB) 137 LUCKNOWL (TR I.); ATUL G PURANIK 132 ITD 499 (MUM( (TRI.); KANECAST P. LTD. VS. ITO 68 SOT 199 (PUNE) (TRI.); MRS. REKHA AGRAWAL VS. ITO 79 TAXMANN.COM 2 90 (JAIPR) (TRI.); AND BANIARA ENGS. PVT. LTD. VS. ITO ITA NO. 635/KOL/ 2018 ORDER DATED 4.7.2018 (TRI.). 4. ON THE OTHER HAND, LD. DR RELIED UPON THE ORDERS OF THE AUTHORITIES BELOW. 5. I HAVE HEARD BOTH THE PARTIES AND PERUSED THE RECO RDS ESPECIALLY THE IMPUGNED ORDER. I FIND THAT ONLY DISPUTE INVOLVED IN THIS CASE IS THE ADOPTION OF THE CIRCLE RATE VALUE OF THE IMMOVABL E PROPERTY DISPOSED BY THE ASSESSEE DURING THE RELEVANT PREVIOU S YEAR AND THE CONSEQUENTIAL SHORT TERM CAPITAL GAINS ARISING TO TH E ASSESSEE WHICH HAS BEEN HELD TO BE TAXABLE BY THE AO. IN THE PRESENT CASE THE ASSESSEE HAS ACCEPTED THE VALUATION OF THE CAPITAL ASSET TRA NSFERRED BY THE ASSESSEE HAS ATTAINED FINALITY. HOWEVER, UNDER THE PROVISIONS OF INDIAN 6 EVIDENCE ACT, 1872 THE SAID ADMITTED POSITION OF THE AS SESSEE BECOME PROVED FACT. THEREFORE, THE LD. CIT(A) CONSISTENTLY HELD THAT WHEREVER THE ASSESSEE HAS ACCEPTED THE VALUATION OF THE CAPITA L ASSET TRANSFERRED BY THE ASSESSEE AS DETERMINED BY THE CONCERNED REVENU E AUTHORITIES UNDER THE PROVISIONS OF THE INDIAN STAMP ACT, 1899 AND THE SAID ACCEPTANCE HAS BECOME FINAL AND HENCE, THE SAID ASS ESSEE CANNOT GO BACK ON ITS ADMITTED POSITION AND ACCEPTED VALUATION OF THE CAPITAL ASSET BEFORE THE AUTHORITIES ACTING UNDER THE PROVISIONS OF THE I.T. ACT, 1961. HOWEVER, THE CASE LAWS CITED BY THE LD. COUNSEL FOR T HE ASSESSEE ARE ON DISTINGUISHED FACTS, HENCE, NOT APPLICABLE IN THE INS TANT CASE. IN VIEW OF ABOVE DISCUSSIONS, I AM OF THE CONSIDERED OPINIO N THAT LD. CIT(A) HAS RIGHTLY CONFIRMED THE ADDITION IN DISPUTE, WHICH DOES NOT NEED ANY INTERFERENCE ON MY PART, THEREFORE, I UPHOLD THE ACTIO N OF THE LD. CIT(A) ON THE ISSUE IN DISPUTE AND REJECT THE GROUNDS RAISED BY THE ASSESSEE. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS D ISMISSED. ORDER PRONOUNCED ON 25-04-2019. SD/- [H.S. SIDHU] JUDICIAL MEMBER DATE: 25/04/2019 SRBHATNAGAR COPY FORWARDED TO: - 1.APPELLANT 2. RESPONDENT 3. CIT 4.CIT (A) 5. DR , ITAT BY ORDER, ASSISTANT REGISTRAR, ITAT, DELHI BENCHES