SHRI KAMLESH KUMAR AGRAWAL, Indore V. THE ITO-WARD 3(2), Indore

ITA 8/IND/2016

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 5726 (ITAT-INDORE)
• Duration Of Justice: 1 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-02-2016
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC
• Assessment Year: 2006-2007
• Appeal Filed On: 05-01-2016
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: MOHD JAVED
• Assessee Lawyers: N D PATWAL
• Keywords: Sale consideration of property below Jantri Value; Fair market value
• Section: 50C

Judgement Text

KAMLESH KUMAR AGRAWAL ITA NO. 8/IND/2016 1 , , IN THE INCOME TAX APPELLATE TRIB UNAL, INDORE BENCH, INDORE BEFORE SHRI C.M. GARG, JUDICIAL MEMBER AND SHRI O.P. MEENA, ACCOUNTANT MEMBER .../ I.T.A. NO. 8/IND/2016 / ASSESSMENT YEAR: 2006-07 SHRI KAMLESH KUMAR AGRAWAL INDORE PAN ADYPA 1269Q :: / APPELLANT VS INCOME TAX OFFICER 3(2) INDORE :: ! / RESPONDENT '# $ % & / ASSESSEE BY SHRI ASHISH GOYAL AND SHRI N.D. PATWAL '( $ % & / REVENUE BY SHRI MOHD. JAVED - DR ) * $ #+ DATE OF HEARING 1.5. 2017 ,-./ $ #+ DATE OF PRONOUNCEMENT 0 5 . 5 .2017 / O R D E R PER SHRI C.M. GARG, JM THIS APPEAL HAS BEEN FILED BY THE ASSESSEE AGAINST THE ORDER OF THE LEARNED CIT(A)-II, INDORE, DATED 16.10.2015 IN FIRST APPEAL NO. IT-273/15-16/93 FOR THE ASSESSMENT YEAR 2006-07. KAMLESH KUMAR AGRAWAL ITA NO. 8/IND/2016 2 2. THE SUM AND SUBSTANCE OF THE GROUNDS OF APPEAL T AKEN BY THE ASSESSEE IS THAT THE COMMISSIONER OF INCOME TAX (AP PEALS) WAS NOT JUSTIFIED IN SUSTAINING THE ADDITION OF RS. 4,67,61 9/- MADE BY THE ASSESSING OFFICER BY INVOKING THE PROVISIONS OF SEC TION 50C OF THE ACT ON SALE OF AGRICULTURAL LAND. 3. THE FACTS IN NUTSHELL ARE THAT THE ASSESSEE HAS SOLD A PIECE OF LAND. FROM THE DETAILS FURNISHED BY THE ASSESSEE TH E ASSESSING OFFICER OBSERVED THAT THE ASSESSEE HAS REFLECTED TH E CAPITAL GAIN ON SALE OF A PLOT CONSIDERING THE SALE PROCEED AT RS. 7.50 LACS WHEREAS THE STAMP DUTY AUTHORITY HAS ADOPTED THE VALUE AT R S. 11.16 LACS. THIS RESULTED INTO ADDITION OF RS.4,67,619/- BY APP LICATION OF SECTION 50C(1) OF THE ACT BY THE ASSESSING OFFICER. 4. BEING AGGRIEVED WITH THE ABOVE ADDITION, THE ASS ESSEE PREFERRED FIRST APPEAL BEFORE THE COMMISSIONER OF I NCOME TAX (APPEALS). THE COMMISSIONER OF INCOME TAX (APPEALS) AFTER CONSIDERING THE ISSUE AND THE SUBMISSIONS OF THE AS SESSEE HELD THAT I HAVE GONE THROUGH THE WRITTEN SUBMISSION FILED BY THE APPELLANT DURING THE COURSE OF APPEAL PROCEEDINGS. I HAVE ALS O GONE THROUGH THE REASONS BROUGHT OUT BY THE A.O. IN THE ASSESSMENT O RDER. I HAVE GONE KAMLESH KUMAR AGRAWAL ITA NO. 8/IND/2016 3 THROUGH THE RELEVANT PROVISION OF SECTION 50(C) (1) OF ILT ACT, 1961. THE CONTENTION OF THE APPELLANT DURING THE COURSE O F APPEAL PROCEEDINGS REGARDING NATURE OF LAND BEING AGRICULT URAL LAND CANNOT BE ACCEPTED AT THIS STAGE WHEN THE SAME HAS BEEN DU LY CONSIDERED BY STAMP VALUATION AUTHORITY AND ALSO THE FACT THAT THE SAME HAS BEEN CONSIDERED BY THE A.O. DURING THE COURSE OF AP PEAL PROCEEDINGS. THEREFORE, SINCE THE PROVISION OF SECTION 50(C)(1) ARE UNAMBIGUOUS, THE A.O. HAS BEEN FOUND JUSTIFIED IN MAKING ADDITIO N AFTER TAKING THE VALUE OF LAND AS DETERMINED STAMP VALUING AUTHORITY . ACCORDINGLY, THE ADDITION MADE BY THE A.O. IS HEREBY CONFIRMED . NOW THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL. 5. BEFORE US, THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE REGISTRATION AUTHORITY HAS ADOPTED THE GUIDELIN E VALUE FOR CALCULATION OF SALE CONSIDERATION VALUE U/S 50C OF THE ACT. THE LEARNED COUNSEL FOR THE ASSESSEE FURTHER SUBMITTED THAT BEFORE THE ASSESSING OFFICER THE ASSESSEE IN HIS WRITTEN SUBMI SSIONS STATED THAT THE ADOPTION OF GUIDELINE VALUE AT RS. 11,16,0 00/- IS NOT CORRECT AND THE SALE PROCEED OF RS. 7,50,000/- WHIC H WAS SHOWN AS SALE CONSIDERATION HAS TO BE TAKEN FOR THE PURPOSE OF CALCULATION OF KAMLESH KUMAR AGRAWAL ITA NO. 8/IND/2016 4 AMOUNT U/S 50C OF THE ACT. THE LEARNED COUNSEL FOR THE ASSESSEE POINTED OUT THAT THE FAIR MARKET VALUE OF THE LAND SOLD WAS VERY LESS DUE TO SOME SPECIFIC AND PECULIAR REASONS HENCE THE LAND AREA IS COVERED UNDER THE SCHEME OF 133 OF INDORE DEVELOPME NT AUTHORITY AND THERE WAS NO BUYER OF THE LAND IN THAT AREA AND AS PER LOCATION MAP ANNEXED WITH THE SALE DEED IT IS ALSO CLEAR THA T ON THE NORTH SIDE OF THE LAND THERE IS A CREMATION GROUND ON THE GOVERNMENT LAND WHICH VERY ADVERSELY AFFECTED THE FAIR MARKET VALUE OF THE LAND SOLD. THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTE D THAT BY WAY OF WRITTEN SUBMISSIONS DURING THE ASSESSMENT PROCEEDIN GS THE ASSESSEE DISPUTED THE ADOPTION OF STAMP VALUE FOR T HE PURPOSE OF CALCULATION OF AMOUNT U/S 50C OF THE ACT AND THE AS SESSING OFFICER DID NOT REFER THE MATTER TO THE DVO. THEREFORE, THE ISSUE MAY BE RESTORED TO THE FILE OF THE ASSESSING OFFICER FOR F RESH ADJUDICATION AFTER CALLING REPORT FROM THE DVO ON FAIR MARKET PR ICE OF THE LAND AT THE TIME OF EXECUTION OF THE SALE DEED. 3. REPLYING TO THE ABOVE, THE LEARNED DR SUBMITTED THAT THERE WAS NO REQUEST OF THE ASSESSEE TO REFER THE MATTER TO THE DVO AND MERELY BECAUSE THE ASSESSEE COULD NOT GET RELIEF FR OM THE KAMLESH KUMAR AGRAWAL ITA NO. 8/IND/2016 5 COMMISSIONER OF INCOME TAX (APPEALS), THE CASE CANN OT BE RESTORED TO THE FILE OF THE ASSESSING OFFICER FOR WANT OF DV O REPORT. HOWEVER, ON BEING ASKED BY THE BENCH, THE LEARNED DR FAIRLY ACCEPTED THAT FROM THE OBJECTIONS NOTED BY THE ASSESSING OFFICER AT PAGE 3 OF THE ASSESSMENT ORDER IT IS CLEAR THAT THE ASSESSEE HAS OBJECTED TO ADOPTION OF GUIDELINE VALUE TAKEN BY THE REGISTRATI ON AUTHORITY. 4. ON CAREFUL CONSIDERATION OF THE RIVAL SUBMISSION S, WE ARE OF THE VIEW THAT THE ASSESSEE, THOUGH NOT EXPRESSLY, B Y WAY OF WRITTEN SUBMISSIONS DISPUTED THE ADOPTION OF GUIDELINE VALU E FOR CALCULATION OF THE AMOUNT U/S 50C OF THE ACT. IN THIS SITUATION , IT WAS THE DUTY OF THE ASSESSING OFFICER TO REFER THE MATTER TO THE DVO FOR ESTIMATION OF FAIR MARKET VALUE OF THE LAND SOLD ON THE DATE OF EXECUTION OF SALE DEED. BE THAT AS IT MAY, IN OUR H UMBLE OPINION, WHEN THE ASSESSEE IS DISPUTING THE ADOPTION OF GUID ELINE VALUE THEN THE REVENUE AUTHORITIES ARE REQUIRED TO REFER THE M ATTER TO THE DVO SEEKING THE FAIR MARKET VALUE/PRICE OF LAND/PROPERT Y SOLD ON THE DATE OF SALE. THUS, ON TOTALITY OF THE FACTS AND CI RCUMSTANCES OF THE CASE, WE RESTORE THE ISSUE TO THE FILE OF THE ASSES SING OFFICER WITH THE DIRECTION THAT HE SHALL CALL FOR REPORT FROM TH E DVO PERTAINING TO KAMLESH KUMAR AGRAWAL ITA NO. 8/IND/2016 6 THE FAIR MARKET VALUE OF LAND ON THE DATE OF TRANSF ER AND EXECUTION OF SALE DEED BY THE ASSESSEE AND THEREAFTER RE-ADJU DICATE THE ISSUE AFRESH AFTER AFFORDING DUE OPPORTUNITY OF BEING HEA RD TO THE ASSESSEE. NEEDLESS TO SAY THAT THE ASSESSING OFFICE R SHALL DECIDE THE ISSUE IN JUDICIOUS MANNER WITHOUT BEING PREJUDICED FROM THE EARLIER ASSESSMENT ORDER AND FIRST APPELLATE ORDER. THE ASS ESSEE IS DIRECTED TO APPEAR BEFORE THE ASSESSING OFFICER ON 12 TH JUNE, 2017. 5. IN THE RESULT, THE APPEAL IS ALLOWED FOR STATISTICAL PURPOSES WITH THE DIRECTIONS TO THE ASSESSING OFFICER AS STA TED ABOVE. THE ORDER HAS BEEN PRONOUNCED IN OPEN COURT ON05TH MAY, 2017. SD/- SD/- &+ ( ( (O.P.MEENA) (C.M. GARG) ACCOUNTANT MEMBER J UDICIAL MEMBER MAY 05, 2017 . DN/