BHARAT J. PATEL, MUMBAI V. ITO 9(3)(2), MUMBAI

ITA 8486/MUM/2010

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 5107 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-12-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 17-12-2013
• Assessment Year: 2006-2007
• Appeal Filed On: 06-12-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R K SAHU
• Assessee Lawyers: JAYANT B SHAH
• Keywords: Sale consideration of property below Jantri Value
• Section: 50C

Judgement Text

, CH CHCH CH INCOME TAX APPELLATE TRIBUNAL,MUMBAI - B BENCH. . .. . . .. . , ,, , !'#$ !'#$ !'#$ !'#$ , ' ' ' ' %& %& %& %& BEFORE S/SH.H.L.KARVA,PRESIDENT & RAJENDRA,ACCOUNTA NT MEMBER /. ITA NO. 8486/MUM/2010 , ' ' ' ' ( ( ( ( / ASSESSMENT YEAR-2006-07 BHARAT J. PATEL 52/53 PRAVASI INDL. ESTATE, C-WING, OFF AAREY ROAD, GOREGAON(E) MUMBAI- 400063 VS. ITO 9(3)(2) QUEENS ROAD, MUMBAI. PAN:AFCPP8352D ( )* / APPELLANT ) ( +,)* / RESPONDENT ) )* )* )* )* - - - - ' '' ' / APPELLANT BY : SHRI JAYANT B. SHAH +,)* . - ' / RESPONDENT BY : SHRI R.K.SAHU. ' ' ' ' . .. . /0 /0 /0 /0 / DATE OF HEARING : 17 -12-2013 12( . /0 / DATE OF PRONOUNCEMENT : 20-12-2013 PER RAJENDRA, A.M. CHALLENGING THE ORDER DT. 21.10.2010 OF THE CIT(A)- 20,MUMBAI,ASSESSEE HAS RAISED FOLLOWING GROUNDS OF APPEAL: 1. GROUND NO.1 RELATES TO TAKING THE VALUE OF PROPE RTY RS. 1,05,468/- FOR FINANCIAL YEAR 2002-03 INSTEAD OF FINANCIAL YEAR 1991-1992. 2. GROUND NO.2 RELATES TO THE CONSTRUCTION COST OF RS. 18,18,000/- FOR CONSTRUCTING THE 4 TH FLOOR IN EXISTING PROPERTY FOR RS. 18,18,000/- THE CONSTRUCT ION COST IS CARRIED FORWARD FROM YEAR 2000-2001. ASSESSEE,ENGAGED IN THE BUSINESS OF THE ,FILED ITS RETURN OF INCOME ON 31.10.2006 DECLARING TOTAL INCOME OF RS.1,53,640/-.ASSESSING OFFICER(AO)FINALI SED THE ASSESSMENT,ON 11.12.2008,U/S.143 (3)OF THE ACT DETERMINING THE INCOME OF THE ASSESSEE AT R S.43.38 LACS. 2. DURING THE ASSESSMENT PROCEEDINGS,AO FOUND THAT THE ASSESSEE HAD SHOWN LOSS UNDER THE HEAD CAPITAL GAIN ON SALE OF IMMOVABLE PROPERTY OF RS.(- )5,02,657/-.HE DIRECTED THE ASSESSEE TO FURNISH VARIOUS DETAILS,INCLUDING REGISTRATION OF CONVEYANC E DEED,IN THIS REGARD.AFTER CONSIDERING THE DETAILS FILED BY THE ASSESSEE HE HELD THAT THE MARKET VALUE OF THE PROPERTY SOLD HAD BEEN DETERMINED BY THE STAMP AUTHORITY AT RS.66,23,540/-,THAT THE ASSESSEE HAD SHOWN SALE CONSIDERATION AT RS. 48,59,000/-.REFERRING TO THE PROVISIONS OF SECTION 50C OF THE ACT,HE REQUIRED THE ASSESSEE TO EXPLAIN AS TO WHY FOLLOWING DICTUM OF THE SAID SECTION CAPI TAL GAIN SHOULD NOT BE RE -COMPUTED IN LIGHT OF THE MARKET VALUE DETERMINED BY THE STAMP AUTHORITY. FINALLY,HE HELD THAT LONG TERM CAPITAL GAIN(LTCG)AMOUNTING TO RS.37.13 LACS HAD TO BE ASSE SSED IN THE HANDS OF THE ASSESSEE,IN PLACE OF CAPITAL LOSS OF RS.5.02 LACS. 3. AGAINST THE ORDER OF THE AO,ASSESSEE PREFERRED AN A PPEAL BEFORE THE FIRST APPELLATE AUTHORITY (FAA).AS PER THE FAA,ASSESSEE DID NOT APPEAR BEFORE HIM,THAT HE WAS DECIDING THE APPEAL ON THE BASIS OF THE MATERIAL AVAILABLE ON RECORD.HE HELD T HAT ASSESSEE HAD NOT FILED NECESSARY DETAILS BEFORE THE AO OR HIM.AS A RESULT,HE DISMISSED THE APPEAL F ILED BY THE ASSESSEE. 4. BEFORE US,AUTHORISED REPRESENTATIVE(AR) SUBMITTED T HAT DETAILS WERE FILED BEFORE THE REVENUE AUTHORITIES,THAT FAA DID NOT GIVE SUFFICIENT TIME T O THE ASSESSEE TO PROVE HIS CLAIM,THAT THE ASSESSEE HAD MADE A GENUINE CLAIM.DEPARTMENTAL REPRESENTATIV E (DR)SUPPORTED THE ORDER OF THE FAA. 2 ITA NO.8486/MUM/2010 BHARAT J. PATEL 5. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL BEFORE US.WE FIND THAT THE ISSUE INVOLVED IS ABOUT CALCULATION OF LTCG ON ACCOUNT OF SALE OF IMMOVABLE PROPERTY BY THE ASSESSEE.AS PER THE AO CERTAIN DETAILS WERE FILED B EFORE HIM,BUT FAA HAS MENTIONED THAT DETAILS WERE NOT FILED DURING APPELLATE PROCEEDINGS.WE FIND THAT FAA HAS HELD THAT THE ASSESSEE HAD NOT APPEARED BEFORE HIM ON SEVERAL OCCASIONS,WHEREAS TH E ASSESSEE IS SUBMITTED THAT AMPLE OPPORTUNITY OF HEARING WAS NOT PROVIDED TO HIM TO PROVE HIS CAS E.WE ARE NOT AWARE AS WHETHER THE HEARING NOTICES ISSUED BY THE FAA WERE SERVED ON THE ASSESS EE OR NOT AS THE ORDER OF THE FAA IS SILENT ABOUT IT.IN THESE CIRCUMSTANCES,WE ARE OF THE OPINI ON THAT IN THE INTEREST OF THE JUSTICE, MATTER SHOU LD BE REMITTED BACK TO THE FILE OF THE FAA FOR FRESH A DJUDICATION. HE IS DIRECTED TO AFFORD A REASONABLE OPPORTUNITY OF HEARING TO THE ASSESSEE.ASSESSEE IS ALSO DIRECTED TO EXTEND FULL COOPERATION TO THE FAA AND FILE ALL THE NECESSARY DETAILS BEFORE HIM. AS A RESULT,APPEAL FILED BY THE ASSESSEE STANDS ALLOWED FOR STATISTICAL PURPOSES. 3 /4 ' 3/ . 3 /4 ' 3/ . 3 /4 ' 3/ . 3 /4 ' 3/ . 5. 67'8 ' 5. 67'8 ' 5. 67'8 ' 5. 67'8 ' &9/ &9/ &9/ &9/ . !/ :; . !/ :; . !/ :; . !/ :;. .. . ORDER PRONOUNCED IN TH E OPEN COURT ON 20 TH DECEMBER,2013 . %'< . 12( ' # = >%' 20 FNLACJ FNLACJ FNLACJ FNLACJ , 2013 2 . ?. SD/- SD/- ( . . - H.L.KARWA) ( !'#$ !'#$ !'#$ !'#$ / RAJENDRA) / PRESIDENT ' ' ' ' %& %& %& %& /ACCOUNTANT MEMBER / MUMBAI, >%' /DATE: 20 TH DECEMBER,2013 SK %'< %'< %'< %'< . .. . +/@ +/@ +/@ +/@ A'@(/ A'@(/ A'@(/ A'@(/ / COPY OF THE ORDER FORWARDED TO : 1. ASSESSEE / )* 2. RESPONDENT / +,)* 3. THE CONCERNED CIT (A) / B C , 4. THE CONCERNED CIT / B C 5. DR B BENCH, ITAT, MUMBAI / @D? +/' CH CHCH CH , . . # . 6. GUARD FILE/ ? E ,@/ ,@/ ,@/ ,@/ +/ +/+/ +/ //TRUE COPY// %'<' / BY ORDER, 6 / : ! DY./ASST. REGISTRAR , /ITAT, MUMBAI