Kalyan Pal, Kolkata V. ITO, Ward-40(1), Kolkata, Kolkata

ITA 708/KOL/2023

• Counselvise Citation: [2024] 101 COUNSELVISE.COM (IT) 6598 (ITAT-KOLKATA)
• Duration Of Justice: 10 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-06-2024
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 22-04-2024
• Assessment Year: 2015-2016
• Appeal Filed On: 13-07-2023
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Sale consideration of property below Jantri Value; Capital asset; Cost of acquisition; Fair market value; Valuation report; Set aside
• Section: 50C; 54F

Judgement Text

ITA No. 708/KOL/2023 (A.Y. 2016-2017) Kalyan Pal 1 THE INCOME TAX APPELLATE TRIBUNAL, ‘C’ BENCH, KOLKATA Before Shri Rajpal Yadav, Vice-President (KZ) & Dr. Manish Borad, Accountant Member I.T.A. No. 708/KOL/2023 Assessment Year: 2016-2017 Kalyan Pal,...................................................Appellant C/o. S.N. Ghosh & Associates, Advocates, 2, Garstin Place, 2 nd Floor, Suite No. 203, Off Hare Street, Kolkata-700001 [PAN:AACPP5347B] -Vs.- Income Tax Officer,....................................Respondent Ward-40(1), Kolkata, 3, Government Place (West). Council House Street, 1 st Floor, Kolkata-700001 Appearances by: Shri Somnath Ghosh, Advocate, appeared on behalf of the assessee Shri Loviesh Shelley, JCIT, D.R. appeared on behalf of the Revenue Date of concluding the hearing : May 30, 2024 Date of pronouncing the order : June 07, 2024 O R D E R Per Rajpal Yadav, Vice-President (KZ):- The present appeal is directed at the instance of assessee against the order of ld. Commissioner of Income Tax (Appeals), ITA No. 708/KOL/2023 (A.Y. 2016-2017) Kalyan Pal 2 National Faceless Appeal Centre (NFAC), Delhi dated 15 th May, 2023 passed for assessment year 2016-17. 2. The assessee has taken four grounds of appeal. However, in brief, his grievances revolve around two issues, namely – (a) correct determination of capital gain, if any, arose to the assessee on sale of a residential premises No. 5/4, Ward-65, Bondel Road, Bamun Para Lane, Karaya, South 24- Parganas; (b) whether the assessee is entitled for deduction under section 54F or not. 3. Brief facts of the case are that the assessee has filed his return of income electronically on 09.06.2017 declaring total income of Rs.16,91,190/-. The case of the assessee was selected for scrutiny assessment and notices under section 143(2)/142(1) were issued and served upon the assessee. On scrutiny of the accounts, it revealed to the ld. Assessing Officer that the assessee had sold a capital asset in the shape of a two-storied building comprised at premises No. 5/4, Ward-65, Bondel Road, Bamun Para Lane, Karaya, South 24-Parganas. The assessee has declared sale consideration at Rs.92,00,000/-. The ld. Assessing Officer has observed that Stamp Duty Valuation Officer for registering the sale deed has determined the value of the property at Rs.1,54,62,874/- on which Stamp Duty is to be charged. The ld. Assessing Officer confronted the assessee as to why full sale ITA No. 708/KOL/2023 (A.Y. 2016-2017) Kalyan Pal 3 consideration for the purpose of computation of long-term capital gain be not adopted equivalent to the amount on which Stamp Duty was charged on the sale deed, as provided in Section 50C of the Income Tax Act. The assessee contended that fair market value of the property is not more than the amount disclosed by the assessee. The ld. Assessing Officer has remitted the issue to the Departmental Valuation Officer as provided in Section 50C(2) of the Income Tax Act. However, before that report could be submitted, he has passed an assessment order and made the addition of the difference. 4. Dissatisfied with the assessment order, the assessee carried the matter in appeal before the ld. CIT(Appeals). The appeal of the assessee has been dismissed for want of prosecution without recording any finding on merit on these disputes. 5. Before us, ld. Counsel for the assessee submitted that the Departmental Valuation Officer has submitted his report and he determined the fair market value of the property at Rs.91,93,854/- . Copy of this Valuation Report is being placed on pages no. 3 & 4 of the paper book. In view of the above, he submitted that no addition deserves to be made with the aid of Section 50C of the Income Tax Act. 6. Apart from the above fold of contention, he further contended that while computing the capital gain as contemplated in Section 48 of the Income Tax Act, the ld. Assessing Officer has failed to take into consideration the correct amount as acquisition cost of ITA No. 708/KOL/2023 (A.Y. 2016-2017) Kalyan Pal 4 the property. The assessee has adopted the figure after availing the benefit of indexation, which has not been given by the ld. Assessing Officer. He further contended that the assessee has claimed deduction under section 54F of the Income Tax Act, which has not been dealt with by the ld. Assessing Officer. 7. The ld. D.R., on the other hand, submitted that if valuation report is being received after passing of the assessment order, then, it can be remitted back to the ld. Assessing Officer for considering the D.V.O.’s report and redetermination of the capital gain, if any, chargeable in the hands of the assessee. 8. We have duly considered the rival contentions and gone through the record carefully. A perusal of the assessment order would reveal that it is a very brief assessment order, which does not deal with all the three issues raised by the ld. Counsel for the assessee. The D.V.O.’s report has been received after passing of the assessment order, therefore, it had not been considered. This reason is sufficient to set aside the assessment order and remit the issue to the file of the ld. Assessing Officer. However, after considering the non-speaking order of both the authorities, we deem it appropriate to remit the issues to the file of ld. Assessing Officer for re-adjudication. The ld. Assessing Officer shall decide three issues, namely- (a) whether any addition required to be made under section 50C after considering the D.V.O.’s report; ITA No. 708/KOL/2023 (A.Y. 2016-2017) Kalyan Pal 5 (b) The ld. Assessing Officer is directed to determine the cost of acquisition in the hands of the assessee before computing the capital gain resulted to the assessee on the sale of capital asset. The ld. Assessing Officer shall provide benefit of indexation while computing the cost of acquisition. (c) The ld. Assessing Officer shall decide whether the assessee is entitled for the benefit of section 54F or not by passing a speaking order. 9. With the above direction, the appeal of the assessee is allowed for statistical purposes. Order pronounced in the open Court on 07/06/2024. Sd/- Sd/- (Manish Borad) (Rajpal Yadav) Accountant Member Vice-President (KZ) Kolkata, the 7 th day of June, 2024 Copies to :(1 Kalyan Pal, C/o. S.N. Ghosh & Associates, Advocates, 2, Garstin Place, 2 nd Floor, Suite No. 203, Off Hare Street, Kolkata-700001 (2) Income Tax Officer, Ward-40(1), Kolkata, 3, Government Place (West). Council House Street, 1 st Floor, Kolkata-700001 ITA No. 708/KOL/2023 (A.Y. 2016-2017) Kalyan Pal 6 (3) Commissioner of Income Tax (Appeals), National Faceless Appeal Centre (NFAC), Delhi; (4) CIT- , Kolkata (5) The Departmental Representative; (6) Guard File TRUE COPY By order Assistant Registrar, Income Tax Appellate Tribunal, Kolkata Benches, Kolkata Laha/Sr. P.S.