Shri Bhuvanesh Kumar Shrotiya, Agra V. ITO, Agra

ITA 705/AGR/2008

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 6767 (ITAT-AGRA)
• Duration Of Justice: 1 year(s) 6 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-06-2010
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 26-05-2010
• Assessment Year: 2004-2005
• Appeal Filed On: 22-12-2008
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SHEFALI JUNEJA
• Assessee Lawyers: P N AGARWAL
• Keywords: Sale consideration of property below Jantri Value; Fair market value; Valuation report
• Section: 50C; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AGRA BENCH, AGRA BEFORE SHRI R.K. GUPTA, JUDICIAL MEMBER AND SHRI P.K. BANSAL, ACCOUNTANT MEMBER ITA NO.705/AGR/2008 ASST. YEAR: 2004-05 SHRI BHUVANESH KUMAR SHROTIYA, VS. INCOME-TAX O FFICER, 4(1), 26/11, BALKA BASTI, AGRA. RAJA MANDI, AGRA. (PAN : ATRPS 3784 M) (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI P.N. AGARWAL, ADVOCATE RESPONDENT BY : SMT. SHEFALI JUNEJA, SR. D.R. ORDER PER P.K. BANSAL, A.M.: THIS APPEAL HAS BEEN FILED BY THE ASSESSEE AGAINST THE ORDER OF THE CIT(A) DATED 14.10.2008. 2. GROUND NOS.1 TO 3 SINCE NOT PRESSED STAND DISMIS SED AS NOT PRESSED. 3. THE ONLY GROUND WHICH REMAINS FOR ADJUDICATION R EADS AS UNDER :- THAT THE ASSESSING OFFICER HAD BEEN WRONG AND ILLE GAL IN NOT REFERRING THE MATTER OF VALUATION OF FAIR MARKET VALUE OF THE PROPERTY TO THE VALUATION CELL UNIT PARTICULARLY IN VIEW OF THE ASSESSEES SUBMISS IONS AND THE VALUATION REPORT OF THE GOVT. APPROVED VALUER SHRI A.M. JAIN FILED D URING THE COURSE OF RE- ASSESSMENT PROCEEDINGS. 2 4. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSE E SOLD THE PROPERTY DURING THE A.Y. FOR RS.3,52,200/-. THE SUB-REGISTRAR HAS TAKEN THE CIR CLE RATE FOR THE STAMP DUTY PURPOSE AT RS.53,01,000/-. THE ASSESSEE HAS NOT SHOWN ANY CAP ITAL GAIN IN THE ORIGINAL RETURN FILED. A NOTICE UNDER SECTION 148 OF THE INCOME-TAX ACT, 196 1 (THE ACT HEREINAFTER) WAS ISSUED WHICH WAS CHALLENGED BY THE ASSESSEE ON JURISDICTION BASI S AFTER THE EXPIRY OF 30 DAYS. THE ASSESSEE POINTED OUT THAT THE APPROVED VALUER HAS VALUED THE PROPERTY AT RS.3,52,200/- AND ACCORDINGLY THE CIRCLE RATE CANNOT BE THE SALE CONSIDERATION. THE CIT(A) CONFIRMED THE SALE CONSIDERATION TO BE TAKEN AT RS.53,01,000/- AS PER PROVISIONS OF SECTIO N 50C OF THE ACT. 5. LD. A.R. BEFORE US RELIED ON THE DECISION OF THE JODHPUR BENCH IN THE CASE OF MEGHRAJ BAID VS. ITO, 114 TTJ (JD.) 841 FOR THE PROPOSITION OF LAW THAT IN CASE THE A.O. DID NOT AGREE WITH THE EXPLANATION OF THE ASSESSEE WITH REGARD TO THE LOWER CONSIDERATION DISCLOSED BY HIM, HE SHOULD HAVE REFERRED THE MATTER TO THE D.V.O. FOR G ETTING ITS MARKET VALUE ESTABLISHED ON THE DATE OF SALE TO ARRIVE AT THE CORRECT CONSIDERATION. 6. LD. D.R., ON THE OTHER HAND, CONTENDED THAT IT I S NOT NECESSARY FOR THE A.O. TO REFER THE MATTER TO THE D.V.O. AND THE CONSIDERATION AS PER S ECTION 50C IT IS MANDATORY ON THE A.O. TO TAKE THE VALUE ADOPTED FOR STAMP VALUATION TO BE THE SAL E CONSIDERATION. THE A.O. MAY REFER OR MAY NOT REFER THE MATTER TO THE VALUATION OFFICER. 7. WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSIO NS AND PERUSED THE MATERIAL ON RECORD ALONGWITH PROVISIONS OF SECTION 50C OF THE ACT. WE HAVE ALSO GONE THROUGH THE DECISION OF THE JODHPUR BENCH OF THE TRIBUNAL IN THE CASE OF MEGHRA J BAID VS. ITO, 114 TTJ (JD.) 841. WE 3 NOTED THAT IN THIS CASE THE VALUE AS PER THE STAMP DUTY IS RS.53,01,000/- BUT THE ASSESSEE HAS SHOWN THE APPARENT CONSIDERATION AS PER THE SALE DE ED AT RS.3,52,200/-. THE ASSESSEE HAS DISPUTED BEFORE THE A.O. THAT STAMP VALUATION TO BE TAKEN TO BE THE SALE CONSIDERATION. IN THIS REGARD, THE ASSESSEE SUBMITTED THE REPORT OF THE RE GISTERED VALUER, COPY OF WHICH WAS ALSO FILED BEFORE US, WHO HAS ESTIMATED THE FAIR MARKET VALUE ON THE DATE OF SALE OF THE PROPERTY AT RS.3,52,200/-. WE NOTED THAT THE JODHPUR BENCH IN THE CASE OF MEGHRAJ BAID (SUPRA) WHILE INTERPRETING SUB-SECTION 2 OF SECTION 50C HELD AS U NDER :- AFTER EXAMINING THE PROVISION EXTRACTED HEREINABOV E IN ITS LETTERS AND SPIRIT, WE ARE OF THE OPINION THAT IN CASE THE AO D OES NOT AGREE WITH THE EXPLANATION OF THE ASSESSEE WITH REGARD TO LOWER CO NSIDERATION DISCLOSED BY HIM THEN HE SHOULD REFER THE MATER TO DVO FOR GETTING I TS MARKET RATE ESTABLISHED AS ON DATE OF THE SALE TO ARRIVE AT THE CORRECT SALE C ONSIDERATION. IF THIS PROVISION IS READ IN THE SENSE THAT IF THE AO IS NOT SATISFIED W ITH THE EXPLANATION O THE ASSESSEE THEN HE MAY, OR MAY NOT, SEND THE MATER FOR VAL UATION TO THE DVO THEN IN THAT CASE THIS PROVISION WOULD BE RENDERED REDUNDANT. T HE WORD, MAY USED IN THIS SUB-SECTION SIGNIFIES THAT IN CASE LEARNED AO IS NO T SATISFIED WITH THE EXPLANATION OF THE ASSESSEE, HE SHOULD REFER THE MATTER TO TH E DVO FOR THE MENTIONED PURPOSE. LEARNED AUTHORISED REPRESENTATIVE HAS REL IED ON THE DECISION OF THE HONBLE SUPREME COURT RENDERED IN THE CASE OF ASHOK LEYLAND LIMTED VS. UNION OF INDIA & ORS. (1997) 105 STC 152 (SC) WHEREIN IT HAS BEEN HELD THAT THE DEEMING PROVISIONS ARE REBUTTABLE ONE. WE HAVE EXA MINED THE ENTIRE FACTS OF THIS CASE IN THE LIGHT OF THE PROVISIONS AND PRECEDENTS RELIED BEFORE US. IN OUR CONSIDERED OPINION, THE BEFITTING REPLY OF ALL THE QUERIES AROUSE IN OUR MINDS AS WELL AS RAISED BY THE PARTIES IS THAT THE MATER SHO ULD BE RESTORED BACK TO THE FILE OF THE LEARNED AO WITH A DIRECTION THAT HE SHALL REFER THIS MATTER OF VALUATION IN THE LIGHT OF SUB-SECTION (2) OF S.50C TO THE DVO FOR DE TERMINING THE CONSIDERATION OF THIS PLOT SOLD BY THE ASSESSEE UNDER S.50C OF THE A CT. THE OTHER CONNECTED GROUNDS ARE ALSO RELATED TO THIS MAIN ROUND. THERE FORE, THE ENTIRE APPEAL IS RESTORED BACK TO THE FILE OF THE AO WITH THE DIRECT ION THAT HE WOULD DO AS DIRECTED ABOVE AND ALSO GIVE OPPORTUNITY OF HEARING TO THE A SSESSEE AS PER LAW. 8. RESPECTFULLY FOLLOWING THE AFORESAID DECISION, W E SET ASIDE THE ORDER OF THE CIT(A) AND RESTORE THIS ISSUE BACK TO THE FILE OF THE A.O. WIT H THE DIRECTION THAT THE A.O. SHALL REFER THIS 4 MATTER FOR VALUATION TO THE D.V.O. FOR DETERMINING CONSIDERATION OF THE ASSET SOLD BY THE ASSESSEE UNDER SECTION 50C OF THE ACT. 9. IN THE RESULT, APPEAL FILED BY THE ASSESSEE IS A LLOWED FOR STATISTICAL PURPOSES. (ORDER PRONOUNCED IN THE OPEN COURT ON 25.06.2010 ). SD/- SD/- (R.K. GUPTA) (P.K. BANSAL) JUDICIAL MEMBER ACCOUNTANT MEMBER PLACE: AGRA DATE: 25 TH JUNE, 2010. PBN/* COPY OF THE ORDER FORWARDED TO: 1. APPELLANT 2. RESPONDENT BY ORDER 3. CIT CONCERNED 4. CIT (APPEALS) CONCERNED 5. DR, ITAT, AGRA BENCH, AGRA 6. GUARD FILE ASSIST ANT REGISTRAR INCOME-TAX APPELLATE TRIBUNAL, AGRA TRUE COPY