DEVDATTA MANOHAR, MUMBAI V. ITO 25(1)(4), MUMBAI

ITA 6177/MUM/2011

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 92335 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 7 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-04-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: E
• Next Hearing Date: 15-04-2015
• Assessment Year: 2006-2007
• Appeal Filed On: 07-09-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: SANJAY R PARIKH
• Keywords: Sale consideration of property below Jantri Value; Opportunity of being heard
• Section: 50C; 54

Judgement Text

, , , IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES E, MUMBAI , . . , , BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER, AND SHRI B.R. BASKARAN, ACCOUNTANT MEMBER ITA NO.811/MUM/2012 ASSESSMENT YEAR: 2006-07 MS. SUSHMA MANOHAR CHOGLE, 605, KAPVRIKSHA CHS, L.T. ROAD, BORIWALI (W), MUMBAI-400092 / VS. INCOME TAX OFFICER,15(3)(2), MATRU MANDIR, 1 ST FLOOR, ROOM NO.106, TARDEO ROAD, GRANT ROAD, MUMBAI-400007 ( !'# $ /ASSESSEE) ( % / REVENUE) P.A. NO. AFTPC8530K ITA NO.6177/MUM/2011 ASSESSMENT YEAR: 2006-07 SHRI DEVDATTA MANOHAR CHOGLE, 605, KAPVRIKSHA CHS, L.T. ROAD, BORIWALI (W), MUMBAI-400092 / VS. INCOME TAX OFFICER,25(1)(4), ROOM NO.308, C-10, 3 RD FLOOR, PRATYAKSHAKAR BHAVAN, BANDRA KURLA COMPLEX, BANDRA(E), MUMBAI-400051 ( !'# $ /ASSESSEE) ( % / REVENUE) P.A. NO. AAFPC6442D ITA NO.1035/MUM/2012 ASSESSMENT YEAR: 2006-07 MRS. KALPANA ARUN MANTRI, 4, AUDUMBAR SOCIETY, 19, TILAK MANDIR ROAD, VILE PARLE (E), MUMBAI-400057 / VS. INCOME TAX OFFICER,26(2)(3), SMT. K.G. MITTAL HOSPITAL BUILDING, ROOM NO.611, 6 TH FLOOR, CHARNI ROAD (W) MUMBAI-400002 ( !'# $ /ASSESSEE) ( % / REVENUE) P. A. NO.AA UPM2448Q MS. SUSHMA MANOHAR CHOGLE & ALONG WITH ORS. CASES 2 ITA NO.1695/MUM/2012 ASSESSMENT YEAR: 2006-07 INCOME TAX OFFICER,26(2)(3), SMT. K.G. MITTAL AYURVEDIC HOSPITAL BUILDING, ROOM NO.611, 6 TH FLOOR, CHARNI ROAD MUMBAI-400002 / VS. MRS. KALPANA ARUN MANTRI, SHARDA SADAN, 2 ND FLOOR, 11 SAUYED ABDULLA BRELVI, FORT, MUMBAI-400001 ( % / REVENUE) ( !'# $ /ASSESSEE) P.A. NO.AAUPM2448Q !'# $ / ASSESSEE BY SHRI SANJAY R. PARIKH % / REVENUE BY SMT. N. V. NADKARNI-DR & % ' $ ( / DATE OF HEARING 15/04/2015 ' $ ( / DATE OF ORDER: 15/04/2015 / O R D E R PER JOGINDER SINGH (JUDICIAL MEMBER) ALL THESE APPEALS ARE BY THE DIFFERENT ASSESSEES CHALLENGING THE IMPUGNED ORDERS DATED 16/11/2011, 06/07/2011, 12/12/2011 AND THE REVENUE IS ALSO AGGR IEVED BY THE IMPUGNED ORDER DATED 12/12/2011 (ITA NO.1695/MUM/2011). 2. DURING HEARING OF THESE APPEALS, THE LD. COUNSE L FOR THE ASSESSEES, SHRI SANJAY R. PARIKH, BROADLY CONTE NDED THAT THE PROVISIONS OF SECTION 50C WAS WRONGLY APPLIED A S THERE WAS NO TRANSFER OF PROPERTY WITHIN THE MEANING OF S ECTION 2(47) OF THE INCOME TAX ACT, 1962. IT WAS ALSO CON TENDED THAT THE FACTS WERE NOT PROPERLY APPRECIATED AND FU RTHER PROPER OPPORTUNITY WAS NOT PROVIDED TO THE ASSESSEE . ON THE MS. SUSHMA MANOHAR CHOGLE & ALONG WITH ORS. CASES 3 OTHER HAND, THE LD. DR, SHRI N. V. NANDKARNI, HAD N O OBJECTION, IF THE FILES ARE SENT TO THE ASSESSING O FFICER. 2.1. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. THE GRIEV ANCE OF THE ASSESSEE IS THAT WHILE DETERMINING THE CAPITAL GAINS IN RESPECT OF DEVELOPMENT AGREEMENT DATED 09/12/2005, THE LD. ASSESSING OFFICER WRONGLY CONSIDERED THE ENTIRE STA MP DUTY OF RS.4,53,10,000/- WHICH INCLUDES THE CONSIDERATIO N RECEIVABLE BY COUSINS AND TENANTS RESULTING IN THE EXCESS ASSESSMENT IN THE HANDS OF THE ASSESSEE, BY FURTHER CONTENDING SECTION 50C OF THE ACT WAS WRONGLY APPLI ED IN DETERMINING THE CAPITAL GAINS. THE LD. COUNSEL ALS O CONTENDED THAT THE LD. ASSESSING OFFICER HAS NOT AL LOWED DEDUCTION FOR VARIOUS EXPENSES INCURRED IN CONNECTI ON WITH THE DEVELOPMENT AGREEMENT AND OTHER INCIDENTAL EXPE NSES WHILE DETERMINING THE CAPITAL GAINS. THE TOTALITY O F FACTS AND THE CONTENTION OF THE REVENUE CLEARLY INDICATES THA T FACTS WERE NOT PROPERLY APPRECIATED. THE LD. DR ALSO CHA LLENGED THE CONCLUSION OF THE LD. COMMISSIONER OF INCOME TA X (APPEALS) (ITA NO.1695/MUM/2012) BY CONTENDING THAT THE LD. FIRST APPELLATE AUTHORITY ERRED IN ADOPTING THE SALE VALUE OF THE PROPERTY AT RS.3,44,87,000/-(AS DETERMINING THE DVO IN OTHER CO-OWNERS CASE) AS AGAINST THE VALUE OF RS.3,53,10,000/- ON WHICH THE STAMP DUTY WAS PAID B Y THE ASSESSEE AND FURTHER DIRECTION TO ALLOW DEDUCTION U /S 54 OF THE ACT TO THE EXTENT OF RS.20 LAKH. IN VIEW OF TH ESE FACTS, WE REMAND ALL THESE FILES, AS AGREED BY BOTH SIDES, TO THE FILE OF THE LD. ASSESSING OFFICER TO ADJUDICATE/EXAMINE THE ISSUES MS. SUSHMA MANOHAR CHOGLE & ALONG WITH ORS. CASES 4 AFRESH. THE ASSESSEES BE PROVIDED DUE OPPORTUNITY OF BEING HEARD, WITH FURTHER LIBERTY TO FURNISH EVIDENCE, IF ANY, IN SUPPORT OF THEIR CLAIMS. FINALLY, THE APPEALS OF THE DIFFERENT ASSESSEES AS WELL AS OF THE REVENUE ARE ALLOWED FOR STATISTICAL PURPOSES . THIS ORDER WAS PRONOUNCED IN THE OPEN COURT IN THE PRESENCE OF LD. REPRESENTATIVE OF BOTH SIDES, AT TH E CONCLUSION OF HEARING ON 15/04/2015. SD/- SD/- ( B.R.BASKARAN ) (JOGINDER SINGH) '# / ACCOUNTANT MEMBER $# / JUDICIAL MEMBER & MUMBAI; ) DATED : 15/04/2015 F{X~{T? P.S/. . . %$&'()(*& / COPY OF THE ORDER FORWARDED TO : 1. *+,- / THE APPELLANT 2. ./,- / THE RESPONDENT. 3. & 0$ ( *+ ) / THE CIT, MUMBAI. P4. & 0$ / CIT(A)- , MUMBAI 5. 2%3 .$! , *+( *! 4 , & / DR, ITAT, MUMBAI 6. 5' 6 / GUARD FILE. / BY ORDER, /2+$ .$ //TRUE COPY// / (DY./ASSTT. REGISTRAR) , & / ITAT, MUMBAI