P.Z. PATEL HUF, MUMBAI V. ITO 9(3)2, MUMBAI

ITA 7959/MUM/2011

• Counselvise Citation: [2014] 120 COUNSELVISE.COM (IT) 8291 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-12-2014
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: C
• Next Hearing Date: 24-03-2014
• Assessment Year: 2006-2007
• Appeal Filed On: 25-11-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: A C TEJPAL
• Keywords: Sale consideration of property below Jantri Value
• Section: 143(3); 147

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, MUM BAI , , BEFORE SHRI SANJAY ARORA, AM AND SHRI VIJAY PAL RA O, JM ./ I.T.A. NO. 7959/MUM/2011 ( / ASSESSMENT YEAR: 2006-07) P. Z. PATEL HUF SADHNA INDUSTRIAL ESTATE COMPOUND, OSHIWARA BRIDGE, S. V. ROAD, JOGESHWARI (W), MUMBAI-400 102 / VS. ITO 9(3)(2), PRATYAKSHA KAR BHAVAN, BANDRA KURLA COMPLEX, MUMBAI-400 050 ./ ./PAN/GIR NO. AAIHP 8085 N ( ! /APPELLANT ) : ( '#! / RESPONDENT ) ! $ % / APPELLANT BY : SHRI KIRAN MEHTA '#! $ % / RESPONDENT BY : SHRI A. C. TEJPAL & ' ( $ ) * / DATE OF HEARING : 09.10.2014 +,- $ ) * / DATE OF PRONOUNCEMENT : 10.12.2014 . / O R D E R PER SANJAY ARORA, A. M.: THIS IS AN APPEAL BY THE ASSESSEE DIRECTED AGAINST THE ORDER BY THE COMMISSIONER OF INCOME TAX (APPEALS)-24, MUMBAI (CIT(A) FOR SH ORT) DATED 19.09.2011 PASSED U/S.263 OF THE INCOME TAX ACT, 1961 (THE ACT HERE INAFTER) FOR THE ASSESSMENT YEAR (A.Y.) 2006-07. 2. THE ISSUE ARISING IN THE INSTANT APPEAL IS THE M AINTAINABILITY OR OTHERWISE IN LAW OF THE IMPUGNED ORDER U/S.263 OF THE ACT. THE BRIEF FA CTS ARE THAT THE ASSESSMENT IN THE INSTANT CASE AS FRAMED U/S. 143(3) R/W S. 147 ON 16 .12.2010, ASSESSING THE LONG TERM CAPITAL GAINS (LTCG) ON THE SALE OF ITS PROPERTY BY THE ASSESSEE TO ONE, M/S. SUKETAN PROPERTIES PVT. LTD., ON 15.12.2005 AT RS.108.08 LA CS, ADOPTING THE STAMP VALUATION U/S. 50C(1) AT RS.451.38 LACS, I.E., AS AGAINST THE STAT ED CONSIDERATION OF RS.324 LACS. A 2 ITA NO. 7959/MUM/2011 (A.Y. 2006-07) P. Z. PATEL HUF VS. ITO DEDUCTION AT RS.61.50 LACS, AS THE ALLEGED SHARE OF SHRI C. P. PATEL, COPARCENER, WAS ALLOWED BY THE ASSESSING OFFICER (A.O.) IN COMPUTIN G THE SAID LTCG. THE SAME WAS CONSIDERED NOT PROPER BY THE LD. CIT IN EXERCISE OF HIS POWER OF REVIEW U/S. 263. THIS WAS FOR THE REASON THAT AS PER SECTION 171(9) OF THE AC T, UNLESS THERE IS A FULL PARTITION OF A HINDU UNDIVIDED FAMILY (HUF), THE INCOME FROM ANY O F ITS PROPERTY COULD NOT BE ASSESSED IN THE HANDS OF ANY OF ITS INDIVIDUAL MEMB ERS; THE ACT NOT RECOGNIZING PARTIAL PARTITION OF A HUF AFTER 18.06.1980. THAT SHRI C. P . PATEL MAY HAVE OFFERED HIS SHARE (IN THE SALE CONSIDERATION) TO TAX AS LTCG IN HIS HANDS WAS OF NO CONSEQUENCE; IT BEING TRITE THAT INCOME HAS TO BE ASSESSED IN THE HANDS OF THE RIGHT PERSON, SO THAT ITS ASSESSMENT IN THE HANDS OF ANOTHER WOULD BE OF LITTLE CONSEQUENCE IN LAW. HE, ACCORDINGLY, DIRECTED THE A.O. TO FRAME THE ASSESSMENT QUA THIS ASPECT THEREOF DE NOVO , AFTER ALLOWING OPPORTUNITY OF HEARING THE ASSESSEE, IN ACCORDANCE WITH THE LAW . AGGRIEVED, THE ASSESSEE IS IN APPEAL. 3. WE HAVE HEARD THE PARTIES, AND PERUSED THE MATER IAL ON RECORD. WE DO NOT OBSERVE ANY DISPUTE, EITHER QUA THE PRIMARY FACTS OF THE CASE OR THE POSITION IN LAW. IT IS, UNDER THE CIRCUMSTANCES, DI FFICULT TO FIND FAULT WITH THE IMPUGNED ORDER NOR COULD ANY BE POINTED OUT TO US BY THE LD. AUTHORIZED REPRESENTATIVE (AR), THE ASSESSEES COUNSEL, DURING HEARING. IF THE SHARE OF SHRI C. P. PATEL IS TO BE REDUCED, WHY NOT, WE WONDER AND ASK, THAT OF OTHER MEMBERS OF HU F BE SIMILARLY REDUCED? IN FACT, AS STATED IN THE IMPUGNED ORDER (PARA 2), THE TRIBUNAL HAS ITSELF IN THE CASE OF SHRI C. P. PATEL (IN ITA NO. 4508/MUM/2009) HELD LIKEWISE, ADV ERTING TO THE DE-RECOGNITION OF PARTIAL PARTITION OF HUF AFTER 18.06.1980, SO THAT NO PART OF THE CAPITAL GAINS COULD BE TAXED IN THE HANDS OF AN INDIVIDUAL MEMBER, AS SH. C. P. PATEL. IN OTHER WORDS, THE VIEW OF THE LD. CIT PER THE IMPUGNED ORDER STANDS ENDORS ED BY THE TRIBUNAL. FURTHER, THAT THERE CAN BE NO DOUBLE TAXATION IS ALSO WELL SETTLED. THE ASSESSEE VIDE ITS GROUND NO. 2 BEFORE US ALSO A SSAILS THE IMPUGNED ORDER ON THE GROUND OF LACK OF PROPER OPPORTUNITY. NO SEPARATE A RGUMENT QUA THIS ASPECT WAS HOWEVER RAISED BEFORE US, WHICH ALSO APPEARS INCONSISTENT I N-AS-MUCH AS PARA 3 OF THE IMPUGNED ORDER CLEARLY SPEAKS OF THE ASSESSEE BEING SPECIFIC ALLY SHOW CAUSED IN THE MATTER VIDE NOTICE DATED 20/5/2011. IN FACT, THE ASSESSEES CAS E, AS PROJECTED BEFORE US BY THE LD. AR, 3 ITA NO. 7959/MUM/2011 (A.Y. 2006-07) P. Z. PATEL HUF VS. ITO WAS OF THE A.O. NOT PREJUDGING THE ISSUE, BASED ON THE ORDER OF THE TRIBUNAL IN THE CASE OF SH. C.P. PATEL. WHILE THE A.O.S RELIANCE ON THE SA ID ORDER, BEING GERMANE AND BY A HIGH APPELLATE FORUM, CANNOT BE FAULTED, THE SAME CANNOT BY ITSELF CONCLUDE THE MATTER, AND THE ASSESSEE HAS A RIGHT TO DEFEND HIS STAND; THE ONUS TO DO SO BEING ONLY ON HIM. WHAT IN OUR VIEW IS MATERIAL IS NOT THE ORDER OF THE TRIBUNAL I N THE CASE OF SHRI C. P. PATEL (SUPRA) PER SE , WHICH, RATHER, BEING ONLY IN CASE OF A MEMBER OF ASSESSEE-HUF, SO THAT LACK OF ACCESS THERETO CANNOT BE ACCEPTED AS A VALID PLEA, BUT THE POSITION OF LAW, WHICH, WHERE AND TO THE EXTENT CONTESTED BY THE ASSESSEE, WOULD HAVE TO BE BY DRAWING ON DECISIONS BY HIGHER FORUMS. THE LD. CIT HAS NOT FORECLOSED THE MATTER, WHICH WE DISCERN TO BE THE SUBSTANCE OF THE ASSESSEES CONCERN, BUT DIRECTED THE A.O. TO FRAME THE ASSESSMENT AFTER ALLOWING DUE OPPORTUNITY TO THE ASSESSEE TO PRESENT ITS CASE BEFORE HIM. THE ASSESSEES RIGHTS HAVING BEEN THUS PROTECTED, ITS CHALLENGE IS WITHOU T MERIT. WE DECIDE ACCORDINGLY. 4. IN THE RESULT, THE ASSESSEES APPEAL IS DISMISSE D. /- )0 '1 2/) $ / $ ) 34 ORDER PRONOUNCED IN THE OPEN COURT ON DECEMBER 10, 2014 SD/- SD/- (VIJAY PAL RAO) (SANJAY ARORA) / JUDICIAL MEMBER / ACCOUNTANT MEMBER & 5( MUMBAI; 6' DATED : 10.12.2014 .'../ ROSHANI , SR. PS !' # $%&' (!'% / COPY OF THE ORDER FORWARDED TO : 1. ! / THE APPELLANT 2. '#! / THE RESPONDENT 3. & 7) ( ) / THE CIT(A) 4. & 7) / CIT - CONCERNED 5. : ; ')'<1 , * <1- , & 5( / DR, ITAT, MUMBAI 6. ; =2 > ( / GUARD FILE !' / BY ORDER, )/* + (DY./ASSTT. REGISTRAR) , & 5( / ITAT, MUMBAI