VANDANA D. SHETTY, MUMBAI V. ITO 21(3)2, MUMBAI

ITA 7583/MUM/2012

• Counselvise Citation: [2014] 120 COUNSELVISE.COM (IT) 6536 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 4 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-05-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: F
• Assessment Year: 2009-2010
• Appeal Filed On: 24-12-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: HARI S RAHEJA
• Keywords: Sale consideration of property below Jantri Value; Opportunity of being heard
• Section: 50C

Judgement Text

, , , , , IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES F, MUMBAI .., .!.'#$, !% , ! & BEFORE SHRI I.P.BANSAL, JM AND SHRI N.K.BILLAIYA, A M ITA NO.7583/MUM/2012 : ASST.YEAR 2009-10 VANDANA D. SHETTY, GALA NO.5, SAI KUTIR, GOL BUILDING BUS STOP, 161-A LBS ROAD, KURLA (W), MUMBAI 400 080. .PAN:AQEPS 7796K INCOME TAX OFFICER 21(3)(2), ROOM NO.508, 5 TH FLOOR, C-10, PRATYAKSHA KAR BHAVAN, BANDRA KURLA COMPLEX, BANDRA (E), MUMBAI 400051 ( '( / // / APPELLANT) / VS. ( *+'(/ RESPONDENT) '( , - ! , - ! , - ! , - ! /APPELLANT BY : SHRI HARI S. RAHEJA *+'( , - ! , - ! , - ! , - ! /RESPONDENT BY : SHRI RAVI PRAKASH , ./% / / / / DATE OF HEARING : 15.05.2014 012 , ./% / DATE OF PRONOUNCEMENT : 15.05.2014 !3 !3 !3 !3 / / / / O R D E R PER I.P.BANSAL (JM) : THIS IS AN APPEAL FILED BY THE ASSESSEE. IT IS D IRECTED AGAINST THE ORDER PASSED BY LD. CIT(A) DATED 30/10/2012 FOR ASSESSMEN T YEAR 2009-10. THE GROUNDS OF APPEAL READ AS UNDER: 1. ON THE FACTS & CIRCUMSTANCES OF THE CASE THE L EARNED COMMISSIONER OF INCOME TAX (A) ERRED IN CONFIRMING THE ADDITION OF RS.11,0 4,500/- ON ACCOUNT OF SHORT TERM CAPITAL GAIN BY TAKING THE STAMP DUTY VALUE AS SALE CONSIDERATION AS PER SECTION 50C OF THE I T ACT ON THE GROUND/S AS CONTAINED IN THE APPELLATE ORDER OR OTHERWISE. 2. THE APPELLANT CRAVES LEAVE TO ADD, AMEND, MODIFY OR WITHDRAW ANY OF THE GROUNDS OF APPEAL. 2. THE ASSESSEE WAS OWNER OF LEASEHOLD RIGHTS IN A PLOT OF LAND AT TURBHE. THE SAID LEASEHOLD RIGHTS OF LAND WAS TRANSFERRED F OR A CONSIDERATION OF RS.15.50 LACS. HOWEVER, STAMP VALUATION AUTHORIT Y ADOPTED THE VALUE OF LEASEHOLD RIGHTS IN THE PROPERTY AT RS.26,54,500/-. INVOKING SECTION 50C THE AO TOOK THE VALUE OF CONSIDERATION AT RS.26,54,500/ - AND SHORT TERM CAPITAL ITA NO.7583/MUM/2012 : ASST.YEAR 2009-10 2 GAIN WAS COMPUTED AT RS.18,03,860/- AS AGAINST RS.6 ,69,360/-, THEREBY MAKING AN ADDITION OF RS.11,04,500/-. LD. CIT(A) H AS CONFIRMED THE ACTION OF A.O. 3. AT THE OUTSET IT WAS SUBMITTED BY LD. AR THAT SE CTION 50C WOULD NOT BE APPLICABLE TO THE SALE OF RIGHTS IN LEASEHOLD LAND AND FOR THIS PURPOSE LD. AR HAS RELIED UPON SEVERAL DECISIONS INTERALIA INCLUD ING THE DECISION OF ITAT IN THE CASE OF HEATEX PRODUCTS PVT. LTD. VS. ACIT, ORDER DATED 24/7/2013 IN ITA NO.8197/MUM/2010. IN THE SAID CASE THE ASSESSEE HA D SHOWN LONG TERM CAPITAL GAIN ON SALE OF LAND AT THANE AT RS.22,72,7 50/-. HOWEVER, FOR STAMP VALUATION THE MARKET VALUE WAS CONSIDERED AT RS.1, 87,33,000/-. IT WAS THE CONTENTION OF THE ASSESSEE THAT PROVISIONS OF SE CTION 50C COULD NOT BE APPLIED AS PER DECISION OF MUMBAI TRIBUNAL IN THE CASE OF S HRI ATUL G. PURANIK VS. ITO. CONSIDERING THESE SUBMISSIONS OF THE ASSESSEE IT WA S HELD THAT IN RESPECT OF TRANSFER OF LEASEHOLD RIGHTS SECTION 50C WOULD NOT BE APPLICABLE. HOWEVER, MATTER WAS RESTORED BACK TO THE FILE OF AO FOR VERI FICATION THAT WHETHER THE IMPUGNED LAND WAS LEASEHOLD LAND IN THE HANDS OF TH E ASSESSEE AND WHAT WAS TRANSFERRED WAS ONLY LEASE HOLD RIGHTS. SUCH CONCL USION OF THE TRIBUNAL IS FOUND IN PARA-9 OF THE SAID ORDER , COPY OF WHICH H AS BEEN FILED IN PAPER BOOK AT PAGES 1 TO 8. 9. HOWEVER, WE FIND THAT NONE OF THE LOWER AUTHORI TIES HAVE DISCUSSED THIS ISSUE IN THEIR RESPECTIVE ORDER. THEREFORE, IN THE INTER EST OF JUSTICE AND FAIR PLAY, WE RESTORE THIS ISSUE BACK TO THE FILES OF THE A.O. T HE A.O IS DIRECTED TO FILE ALL NECESSARY RELATED DOCUMENTS/EVIDENCES BEFORE THE AO . THE AO IS EXPECTED TO GIVE A REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. IF THE AO IS CONVINCED THAT WHAT HAS BEEN TRANSFERRED IS A LEASE HOLD RIGHT, THEN THE ISSUE IS TO BE DECIDED IN THE LIGHT OF THE DECISION OF THE TRIB UNAL IN THE CASE OF THE DECISION OF THE TRIBUNAL IN THE CASE OF ATUL G. PURANIK (SUPRA) . IT WAS SUBMITTED BY LD. AR THAT THE MATTER IN THE P RESENT CASE MAY SIMILARLY BE DECIDED. 4. ON THE OTHER HAND, LD. DR RELIED ON THE ORDER PA SSED BY AO AND LD. CIT(A). 5. WE HAVE HEARD BOTH THE PARTIES AND THEIR CONTENT IONS HAVE CAREFULLY BEEN CONSIDERED. AFTER CAREFUL CONSIDERATION, FOLLOWIN G THE AFOREMENTIONED DECISION ITA NO.7583/MUM/2012 : ASST.YEAR 2009-10 3 OF CO-ORDINATE BENCH, IN WHICH ONE OF US (A.M) IS A PARTY, WE HOLD THAT SECTION 50C WOULD NOT BE APPLICABLE TO THE TRANSFER OF LEAS E HOLD RIGHTS IN LAND. HOWEVER, FOR THE PURPOSE OF EXAMINING THE FACTS, TH E MATTER IS RESTORED BACK TO THE FILE OF AO WITH SIMILAR DIRECTIONS AS HAVE BEEN GIVEN IN THE CASE OF M/S. HEATEX PRODUCTS PVT. LTD. (SUPRA). WE DIRECT ACC ORDINGLY. 6. IN THE RESULT, FOR STATISTICAL PURPOSES THE APPE AL FILED BY THE ASSESSEE IS TREATED AS ALLOWED. ORDER PRONOUNCED ON THIS 15 TH DAY OF MAY, 2014. !3 , 012 4 5 1 , 6 SD/- SD/- (N.K.BILLAIYA) (I.P.BANSAL) !% !% !% !% / ACCOUNTANT MEMBER / JUDICIAL MEMBER MUMBAI; 4 DATED : 15 TH MAY, 2014. VM. !3 , *.' 7!'2. !3 , *.' 7!'2. !3 , *.' 7!'2. !3 , *.' 7!'2./ COPY OF THE ORDER FORWARDED TO : 1. '( / THE APPELLANT 2. *+'( / THE RESPONDENT. 3. 8() / THE CIT, MUMBAI. 4. 8 / CIT(A)-13, MUMBAI 5. ';6 *. , , / DR, ITAT, MUMBAI 6. 6< / GUARD FILE. !3 !3 !3 !3 / BY ORDER, +'. *. //TRUE COPY// = == =/ // /> ? > ? > ? > ? (DY./ASSTT. REGISTRAR) , , , , / ITAT, MUMBAI