I.T.O 16(2)(4), MUMBAI V. MANI M. MISTRY, MUMBAI

ITA 6519/MUM/2013

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 88695 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 4 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-03-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2009-2010
• Appeal Filed On: 06-11-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: AKHILENDRA P YADAVDR
• Assessee Lawyers: SHRI
• Keywords: Sale consideration of property below Jantri Value; Capital asset
• Section: 50C

Judgement Text

, , , IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES B, MUMBAI , . . , , BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER, AND SHRI N.K. BILLAIYA, ACCOUNTANT MEMBER ITA NO.6519/MUM/2013 ASSESSMENT YEAR: 2009-10 I.T.O.-16(2)(4), 2 ND FLOOR, MATRU MANDIR, TARDEO ROAD, MUMBAI-400007 / VS. SMT. MANI M. MISTRY, HILL VIEW, 3 RD FLOOR, RAGHAVJI ROAD, CUMBALA HILL, MUMBAI-400036 ( # / REVENUE) ( $%& ' /ASSESSEE) P.A. NO. ABKPM8996Q # / REVENUE BY SHRI AKHILENDRA P. YADAV-DR $%& ' / ASSESSEE BY SHRI PANKAJ R. TOPRANI ( #) * ' + / DATE OF HEARING : 30/03/2015 * ' + / DATE OF ORDER: 01/04/2015 / O R D E R PER JOGINDER SINGH (JUDICIAL MEMBER) THE REVENUE IS AGGRIEVED BY THE IMPUGNED ORDER DAT ED 08/08/2013, OF THE LD. FIRST APPELLATE AUTHORITY, M UMBAI, ON THE GROUND THAT THE LD. COMMISSIONER OF INCOME TAX SMT. MANI M. MISTRY 2 (APPEALS) ERRED IN DELETING THE ADDITION MADE U/S 5 0C OF THE ACT TO THE CONSIDERATION RECEIVED ON ACCOUNT OF TRA NSFER OF TENANCY RIGHTS FOR COMPUTATION OF CAPITAL GAINS WIT HOUT APPRECIATING SECTION 50C(2)(A) OF THE ACT AS THE IN TERPRETATION OF SECTION 50C IN THE CASE OF ABDUL AZIZ ABDUL KADA R (ITA NO.6934/MUM/2011) FOR AY 2007-08 HAS NOT BEEN ACCEP TED BY THE DEPARTMENT AND HAS BEEN CHALLENGED BEFORE TH E HONBLE HIGH COURT. 2. DURING HEARING OF THIS APPEAL, SHRI AKHILENDRA P . YADAV, LD. DR, ADVANCED HIS ARGUMENTS, WHICH ARE IDENTICAL TO THE GROUND RAISED, WHEREAS, SHRI PANKAJ R. TOPRANI, LD. COUNSEL FOR THE ASSESSEE, DEFENDED THE CONCLUSION ARRIVED A T IN THE IMPUGNED ORDER. 2.1. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND P ERUSED THE MATERIAL AVAILABLE ON RECORD. THE FACTS, IN BRI EF, ARE THAT WHILE COMPUTING THE TAXABLE LONG TERM CAPITAL GAIN OF RS.15,24,250/-, ON ACCOUNT OF TRANSFER OF TENANCY R IGHTS, THE ASSESSING OFFICER ADOPTED THE VALUE AS ADOPTED BY T HE STAMP DUTY AUTHORITY BY APPLYING THE PROVISIONS OF SECTIO N 50C OF THE ACT, THOUGH THE ASSESSEE WANTED THE MATTER TO B E REFERRED TO THE VALUATION OFFICER. THE STAND OF THE ASSESSEE RIGHT FROM ASSESSMENT STAGE WAS THAT SECTION 50C IS A DEEMING PROVISION WHICH EXTENT ONLY TO A CAPITAL ASSET WHIC H IS A LAND OR BUILDER OR BOTH, THUS, IS NOT APPLICABLE TO A FL AT. RELIANCE WAS PLACED UPON THE DECISION IN ANIL G. PURANIK VS ITO (ITA NO.3051/MUM/2010)(BCAJ) AND KISHORI SHARAD GAITONDE VS ITO (ITA NO.1561/MUM/2009)(BCAJ). THE LD. COMMISSI ONER SMT. MANI M. MISTRY 3 OF INCOME TAX (APPEALS) HELD THAT THE PROVISION OF SECTION 50C IS NOT ATTRACTED AND PLACE RELIANCE UPON THE AF ORESAID TWO DECISIONS, AGAINST WHICH, THE REVENUE IS IN APP EAL. THE CRUX OF THE ARGUMENT ON BEHALF OF THE REVENUE IS TH AT THE DEPARTMENT HAS NOT ACCEPTED THE DECISION INTERPRETI NG SECTION 50C IN THE CASE OF ABDUL AZIZ ABDUL KADAR A ND HAS CHALLENGED THE SAME BEFORE THE HONBLE HIGH COURT. SINCE, THE LD. COMMISSIONER OF INCOME TAX (APPEALS) HAS FO LLOWED THE DECISION OF THE TRIBUNAL, THEREFORE, KEEPING IN VIEW, THE PRINCIPLE OF JUDICIAL DISCIPLINE AND THE FACTS AVAI LABLE ON RECORD, WE FIND NO INFIRMITY IN THE CONCLUSION DRAW N IN THE IMPUGNED ORDER. FILING OF APPEAL AGAINST ANY ORDER IS NOT ENOUGH UNLESS AND UNTIL ANY DECISION IS TAKEN BY TH E HONBLE HIGHER FORUM. AS ON TODAY, THE ORDER OF THE TRIBUN AL STANDS, THUS, WE FIND NO INFIRMITY IN THE CONCLUSION DRAWN IN THE IMPUGNED ORDER. THE APPEAL OF THE REVENUE IS DISMI SSED. FINALLY THE APPEAL OF THE REVENUE IS DISMISSED. THIS ORDER WAS PRONOUNCED IN THE OPEN COURT IN THE PRESENCE OF LD. REPRESENTATIVES FROM BOTH SIDES AT THE CONCLUSION OF THE HEARING ON 30/03/2015. ,- * ./0 12 30. /0 3 /2015 * ) 7 SD/ - (N.K. BILLAIYA) SD/ - (JOGINDER SINGH) '# / ACCOUNTANT MEMBER $# / JUDICIAL MEMBER ( ) MUMBAI; 1 DATED : 01/04/2015 F{X~{T? P.S/. . . SMT. MANI M. MISTRY 4 %$&'()(*& / COPY OF THE ORDER FORWARDED TO : 1. 89:; / THE APPELLANT 2. <=:; / THE RESPONDENT. 3. , , ( >' ( 89 ) / THE CIT, MUMBAI. P4. , , ( >' / CIT(A)- , MUMBAI 5. @#A <'$ , , 89+ 8$ 0 , ( ) / DR, ITAT, MUMBAI 6. B% C) / GUARD FILE. / BY ORDER, =@9' <' //TRUE COPY// / (DY./ASSTT. REGISTRAR) , ( ) / ITAT, MUMBAI