M/s. Gujarat Smelting And Pefining Co. Ltd, Ahmedabad V. ITO, Ward-2(1)(1), Ahmedabad

ITA 813/AHD/2018

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 7373 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 9 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-01-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 29-01-2020
• Assessment Year: 2012-2013
• Appeal Filed On: 03-04-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: VINIT MOONDA
• Keywords: Sale consideration of property below Jantri Value; Set aside
• Section: 143(3); 50C

Judgement Text

, - IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD - BENCH C BEFORE SHRI PRADIP KUMAR KEDIA, ACCOUNTANT MEMBER AND MS.MADHUMITA ROY, JUDICIAL MEMBER ./ ITA NO.813/AHD/2018 / ASSTT. YEAR: 2012-13 GUJARAT SMELTING & REFINING CO. LTD. C/O. VINIT MOONDRA, CA 201, SARAP, OPP: NAVJIVAN PRESS ASHRAM ROAD, AHMEDABAD. PAN : AAACG 7566 L VS. ITO,WARD-2(1)(1) AHMEDABAD. / (APPELLANT) / (RESPONDENT) ASSESSEE BY : SHRI VINIT MOONDA, CA REVENUE BY : SHRI LAXMAN SINGH GURJAR, SR.DR ! / DATE OF HEARING : 29/01/2020 '#$ ! / DATE OF PRONOUNCEMENT: 31/01/2020 %& / O R D E R PER MS.MADHUMITA ROY, JUDICIAL MEMBER: PRESENT APPEAL AT THE INSTANCE OF THE ASSESSEE IS D IRECTED AGAINST ORDER DATED 28.02.2018 PASSED BY THE LD.COMMISSIONE R OF INCOME-TAX (APPEALS)-2, AHMEDABAD ARISING OUT OF ORDER DATED 3 1.8.2017 PASSED BY THE LD.ASSESSING OFFICER-2(1)(1), AHMEDABAD UNDE R SECTION 143(3) R.W.S. 263 OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT) FOR THE ASSESSMENT YEAR 2012-13. 2. THE BRIEF FACTS LEADING TO THE CASE IS THIS THAT THE ASSESSEE HAS INITIALLY FILED HIS RETURN OF INCOME ON 30.9.2012 D ECLARING LOSS AT RS.7,49,752/- WHICH WAS FINALIZED ON 26.2.2015 UPON DETERMINATION OF INCOME OF THE ASSESSEE AT RS.2,32,42,814/- SUBSEQUE NTLY, IT COME TO ITA NO.813/AHD/2018 2 THE KNOWLEDGE OF THE REVENUE THAT THE ASSESSEE HAS SOLD NON- AGRICULTURE LAND BY AND UNDER A SALE DEED NO.167 DA TED 24.10.2012 FOR A CONSIDERATION OF RS.1,37,69,309/-; AND FURTHER LA ND BY AND UNDER A SALE DEED 168 FOR A CONSIDERATION OF RS.1,05,22,886 /-. THE TOTAL CONSIDERATION RECEIVED FOR SALE OF THE ABOVE LAND W AS RS.2,42,92,195/- WHICH WAS OFFERED IN THE RETURN OF INCOME AS LONG T ERM CAPITAL GAIN. HOWEVER, THE ASSESSEE HAS BORNE STAMP DUTY AT RS.18 ,20,000/- AT THE PREVAILING RATE OF 4.9% OF THE VALUE OF THE PROPER TY AS PER JANTRI RATE, MEANING THEREBY THE TOTAL VALUE WAS ASSESSED AT RS. 3,71,42,817/- THUS, BY AND UNDER AN ORDER DATED 26.02.2015 UNDER SECTION 263, THE LD.PR.CIT HELD THAT THE ASSESSMENT WAS ERRONEOUS AN D PREJUDICIAL TO THE INTEREST OF THE REVENUE AND ISSUED CERTAIN DIRECTIO NS UPON THE LD.AO INCLUDING MAKING NECESSARY INQUIRY WITH SUB-REGISTR AR AND THEN DRAW A CONCLUSION KEEPING IN VIEW THE PROVISIONS OF SECTIO N 50C OF THE ACT. CONSEQUENTLY, THE BALANCE AMOUNT BETWEEN THE SALE V ALUE AND THE ASSESSED AMOUNT ON THE BASIS OF THE JANTRI RATE AGGREGATING TO THE TUNE OF RS.1,28,40,205/- WAS ADDED TO THE TOTAL INCOME O F THE ASSESSEE UNDER SECTION 50C OF THE ACT, WHICH WAS IN TURN CON FIRMED BY THE LD.CIT(A), HENCE, INSTANT APPEAL BEFORE US. 3. AT THE TIME OF HARING OF THE INSTANT APPEAL, THE LD.ADVOCATE APPEARING FOR THE ASSESSEE SUBMITTED BEFORE US THAT THOUGH THE ASSESSEE MADE AN OBJECTION FOR NOT REFERRING THE MA TTER TO THE LD.DVO IN TERMS OF ACTION 50C OF THE ACT DURING THE 263-PR OCEEINDGS THE SAME WAS NOT DONE. INSTEAD OF THAT, THE LD.AO MADE AN I NQUIRY FROM SUB- REGISTRAR, HALOL, PANCHMAHAL TO OBTAIN STAMP DUTY V ALUATION. HE THEREFORE, MADE SAME OBJECTION AGAIN BEFORE THE LD. CIT(A) HOWEVER, WHICH WAS NOT TAKEN INTO CONSIDERATION BY THE LD.CI T(A) ON THE PRETEXT THAT THE SAID GROUND WAS NOT TAKEN BY THE ASSESSEE BEFORE THE LD.AO WHICH IS NOT IN TERMS OF PROVISIONS LAID DOWN IN SE CTION 50C OF THE ACT. THE LD.AR FURTHER RELIED UPON THE JUDGMENT PASSED B Y THE ITAT, AHMEDABAD BENCH IN THE CASE OF AMARSHIV CONSTRUCTIO N VS DCIT IN ITA ITA NO.813/AHD/2018 3 NO.3061/AHD/2015. HENCE HE PRAYS THAT THE ISSUE BE REMITTED TO THE FILE OF THE LD.AO FOR FURTHER INVESTIGATION BY REFE RRING THE MATTER TO THE DVO FOR OBTAINING STAMP DUTY VALUE OF THE CONCERNED PROPERTY PREVAILING AT THE MATERIAL POINT OF TIME. ON THE O THER HAND, THE LD.DR RELIED UPON THE ORDERS PASSED BY THE LD.AUTHORITIES BELOW. 4. HEARD PARTIES. WE HAVE ALSO CAREFULLY CONSIDERE D RELEVANT DOCUMENTS AVAILABLE ON RECORD. WE FIND FORCE IN TH E SUBMISSIONS MADE BY THE LD.AR. SINCE IT IS THE PARAMOUNT OBJECT EMB EDDED IN THE SECTION 50C OF THE ACT THAT IN THE EVENT THE ASSESSEE OBJEC TS TO THE VALUATION MADE BY THE LD.AO, THEN THE SAME SHOULD BE REFERRED TO THE DVO FOR OBTAINING THE STAMP VALUATION AND TO MAKE ASSESSMEN T THEREON. HOWEVER, INSPITE OF REPEATED REQUESTS MADE BY THE A SSESSEE DURING 263-PROCEEINDGS AS WELL AS BEFORE THE LD.FIRST APPE LLATE AUTHORITY, THE SAME WAS NOT TAKEN INTO CONSIDERATION IN RIGHT PROS PECTIVE, WHICH IS BAD IN THE EYES OF LAW, AND ADDITION THEREON IS NOT LIA BLE TO BE SUSTAINED. IN THIS VIEW OF THE MATTER, WE THINK IT JUST AND PROPE R TO SET ASIDE THE ISSUE TO THE FILE OF LD.AO WITH A DIRECTION UPON HI M TO REFER THE MATTER TO THE DVO AND OBTAIN VALUE OF STAMP DUTY OF THE PROPE RTIES IN QUESTION AND TO MAKE ASSESSMENT THEREON AFTER GIVING DUE OPP ORTUNITY OF BEING HEARD TO THE ASSESSEE AFTER TAKING INTO CONSIDERATI ON THE EVIDENCES AVAILABLE ON RECORD AND ALSO OTHER EVIDENCES, WHICH ASSESSEE MAY WISH TO REFER AT THE TIME OF HEARING. WITH THE ABOVE O BSERVATIONS, WE ALLOW THE GROUND OF APPEAL OF THE ASSESSEE FOR STATISTICA L PURPOSE. 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE COURT ON 31 ST JANUARY, 2020 AT AHMEDABAD. SD/- SD/- (PRADIPKUMAR KEDIA) ACCOUNTANT MEMBER (MS.MADHUMITA ROY) JUDICIAL MEMBER AHMEDABAD; DATED 31/01/2020