Manoj Kumar, New Delhi V. ITO, Ward-28(4), New Delhi

ITA 7545/DEL/2019

• Counselvise Citation: [2022] 104 COUNSELVISE.COM (IT) 1222 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-10-2022
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 11-07-2022
• Assessment Year: 2011-2012
• Appeal Filed On: 12-09-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: GIVING OPPORTUNITY OF
• Keywords: Sale consideration of property below Jantri Value; Valuation report
• Section: 50C

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, DELHI BENCH: ‘SMC’ NEW DELHI SHRI SAKTIJIT DEY, JUDICIAL MEMBER ITA No.7545/Del/2019 Assessment Year: 2011-12 Manoj Kumar, 835, Gali Beri Wali, Kucha Pati Ram, Ajmeri Gate, Delhi-1100 06 Vs. ITO, Ward 28(4), New Delhi PAN :AIKPK0895K (Appellant) (Respondent) ORDER This is an appeal by the assessee against order dated 26.06.2019 of learned Commissioner of Income-Tax(Appeals), New Delhi pertaining to assessment year 2011-12. 2. The subject matter of dispute in the present appeal is the addition of Rs.26,66,187, being the difference between the declared sale consideration and deemed sale consideration as per Stamp Valuation Authority under Section 50C(1) of the Income-Tax Act, 1961. Appellant by Ms.Manju Goel and Shri BL Gupta, CAs Respondent by Shri Om Parkash, Sr. DR Date of hearing 12.07.2022 Date of pronouncement 11.10.2022 2 ITA No.7545/Del.19 3. Briefly, the facts are, the assessee is a resident individual. During the year under consideration, assessee had sold an immoveable for a consideration of Rs.15,50,000. However, as per the valuation of the Stamp Valuation Authority for a stamp duty purpose, the value of the property was determined at Rs.66,90,000. Noticing the above, the Assessing Officer called upon the assessee to explain why capital gain should not be computed by considering the value determined by the Stamp Duty Authority as deemed sale consideration under Section 50C(1) of the Act. Against the proposed addition under Section 50C(1) of the Act, assessee raised objection before the Assessing Officer. In consideration of the objection raised by the assessee, a reference was made by the Assessing Officer to the District Valuation Officer (DVO) for determining fair market value. Based on the valuation report furnished by the DVO, the Assessing Officer made an addition of Rs.26,66,187 on account of capital gain by invoking the provisions of section 50C of the Act. The addition so made was also sustained by learned Commissioner (Appeals). 3 ITA No.7545/Del.19 4. I have considered rival submissions and perused the material placed on record. It is the specific contention of learned counsel appearing for the assessee, inspite of specific objection raised against value determined by Stamp Duty Valuation Authority, the Assessing Officer has not followed the provisions of Section 50C(2) of the Act and no valuation report of the DVO was obtained. 5. Having considered the submissions of the parties and perused the material on record, it is observed, this is the second visit of the assessee to this Forum. While deciding assessee’s earlier appeal, challenging the addition made under Section 50C(1) of the Act, the Tribunal in ITA No.4904/Del/2017 dated 16.03.2018 has given the following directions: “8. After considering the rival submissions and material available on record, I am of the view that the matter requires reconsideration at the level of Ld. CIT(A). The assessee raised the issue before Ld. CIT(A) that the AO never asked for valuation of properties as on 01.04.1981, although requested by the assessee. Further, no valuation report has been provided to the assessee. No opportunity has been given by the AO. The assessee now contended that no fair opportunity has been given by the Ld. CIT(A) and the objections of the assessee have not been decided in proper prospective. It is also claimed that on the last date of hearing, Ld.CIT(A) without rejecting the application for adjournment passed the impugned order. These facts show that one more opportunity should be given to the assessee to 4 ITA No.7545/Del.19 represent its case before Ld.CIT(A). The contentions and objections of the assessee have not been decided in proper prospective and it appears that Ld.CIT(A) on the last date of hearing without giving proper opportunity to the assessee passed the impugned order. I accordingly, set aside the impugned order and restore the appeal of the assessee in accordance with law by giving reasonable and sufficient opportunity of being heard to the assessee. Ld.CIT(A) shall decide all the objections of the assessee by giving opportunity of being heard to the AO as well.” 6. As could be seen from the aforesaid directions of the Bench, the specific grievance of the assessee was that the Assessing Officer never asked for valuation of property as on 01.04.1981. Whereas, there is no report of the DVO indicating the value of the property as on the date of sale. In fact, from the copy of reply dated 23.11.2021 in response to an application filed under the Right to Information (RTI) Act, 2005, a copy of which is placed before me, it is observed that the Assessing Officer has specifically stated that the property was never referred for determination of valuation as on 01.04.1981 nor the valuation report as on July 2010 has been received till date. In contrast, in the assessment order, the Assessing Officer has referred to the report of the DVO received on 28.03.2014 valuing the property as on 01.04.1981. Firstly, the assessee has contested the aforesaid valuation 5 ITA No.7545/Del.19 report by stating that no such report was ever received by him and secondly it is not as per the mandate of section 50C(2) of the Act. Inspite of matter being remanded back by the Tribunal, there was no improvement in the factual position, as, no effort was made by the departmental authorities to fulfill the conditions of section 50C(2) of the Act. There is no valuation report from the DVO, either, in the records of the departmental authorities or even before me to demonstrate that the DVO has made the valuation as required under Section 50C(2) of the Act. 7. In view of the aforesaid, I hold that the addition made cannot be sustained. Accordingly, I direct the Assessing Officer to delete the addition. 8. In the result, the appeal is allowed, as indicated above. Order pronounced in the open court on 11 th October, 2022. Sd/- (SAKTIJIT DEY) JUDICIAL MEMBER Dated: 11 th October, 2022. Mohan Lal