M/S. NAVYUG INFRAPROJECTS PVT. LTD, JAIPUR V. DEPUTY COMMISSIONER OF INCOME TAX , CENTRAL CIRCLE-4, JAIPUR

ITA 863/JPR/2019

• Counselvise Citation: [2019] 115 COUNSELVISE.COM (IT) 5934 (ITAT-JAIPUR)
• Duration Of Justice: 3 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-10-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2014-2015
• Appeal Filed On: 12-06-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RUNI PAUL
• Assessee Lawyers: S L PODDAWR
• Keywords: Sale consideration of property below Jantri Value; Fair market value; Valuation report; Set aside
• Section: 271(1)(c); 43CA

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES,B JAIPUR JH LAANHI XKSLKBZ] U;KF;D LNL; ,OA JH FOE FLAG ;KNO] YS[KK LNL; DS LE{K BEFORE: SHRI SANDEEP GOSAIN, JM & SHRI VIKRAM SINGH YA DAV, AM VK;DJ VIHY LA- @ ITA NO. 863/JP/2019 FU/KZKJ.K O'K Z @ ASSESSMENT YEAR : 2014-15 M/S. NAVYUG INFRAPROJECT PVT. LTD D-29, ASHIANA APARTMENTS SHANTI PATH,TILAK MARG, JAIPUR CUKE VS. THE DCIT CENTRAL CIRCLE-4 JAIPUR LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: AAACN 5813 D VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ L S@ ASSESSEE BY : SHRI S.L. PODDAWR, ADVOCATE JKTLO DH VKSJ LS @ REVENUE BY : SMT. RUNI PAUL, (JCIT) LQUOKBZ DH RKJH[ K@ DATE OF HEARING : 01/10/2019 MN?KKS'K.KK DH RKJH[ K@ DATE OF PRONOUNCEMENT: 01 /10/2019 VKNS'K@ ORDER PER: SANDEEP GOSAIN, J.M. THE PRESENT APPEAL HAS BEEN FILED BY THE ASSESSEE A GAINST THE ORDER OF CIT(A)-4, JAIPUR DATED 10.05.2019 FOR THE A SSESSMENT YEAR 2014-15 WHEREIN THE ASSESSEE HAS RAISED FOLLOWING G ROUNDS. (1) UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE A ND IN LAW THE LD. CIT(A) HAS ERRED IN CONFIRMING THE ACTION OF THE AO IN PASSING ORDER U/S 271(1)(C) OF THE I.T. ACT, 1961 WHI CH HAS BEEN PASSED WITHOUT STRIKING OFF THE IRRELEVANT PORTION O F THE PRINTED ITA NO. 863/JP/2019 M/S. NAVYUG INFRAPROJECTS PVT. LTD. VS DCIT CENTRAL CIRCLE-4, JAIPUR 2 SHOW CAUSE NOTICE DATED 15-12-2016 VIZ. FURNISHED INACCURATE PARTICULARS OF INCOME OR CONCEALED PARTICULARS OF SUCH INCOME IS BAD IN LAW. (2) UNDER THE FACTS AND CIRCUMSTANCES OF TEHCAE AND IN LAW THE ORDER PASSED BYTHE LD. CIT(A) AS WELL AS THE A O U/S 271(1)(C) OF THE ACT IS AGAINST THE PRINCIPLES OF J UDICIAL CONSISTENCY AND THEREFORE, BAD IN LAW. (3) UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE A ND IN LAW THE ORDER PASSED BY THE LD. CIT(A) AS WELL AS AO U /S 271(1)(C) OF THE I.T. ACT, 1961 IS VOID ABINITIO DE SERVES TO BE QUASHED AS NO SATISFACTION WAS RECORDED WITH REFERENC E TO CONCEALMENT OF INCOME OR FURNISHING INACCURATE PART ICULARS OF INCOME. (4) IN THE FACTS AND CIRCUMSTANCES OF THE CASE THE LD. CIT(A) HAS ERRED IN CONFIRMING THE PENALTY OF RS. 3, 43,870/- U/S 271(1)(C) OF THE I.T. ACT, 1961 IMPOSED BY THE AO. 2.1 APROPOS GROUND NO. 1 TO 4 OF THE ASSESSEE, THE LD. CIT(A) HAS CONFIRMED THE PENALTY BY OBSERVING AS UNDER:- 5. I HAVE PERUSED THE WRITTEN SUBMISSIONS SUBMITTED BY THE LD.AR AND THE ORDER OF THE AO. I H AVE ALSO GONE THROUGH VARIOUS JUDGEMENTS CITED BY THE LD.AR AND THOSE CONTAINED IN THE ORDER OF THE AO. THE LEGAL PLEA TAKEN ABOUT THE DEFECTIVE NOTICE IS N OT VALID AS THE AO HAS ISSUED VERY SPECIFIC NOTICE DAT ED 26-02- 2019 WHERE THE EXACT LIMB UNDER WHICH PENALTY U/S 271(1) OF THE ACT IS SOUGHT TO BE IMPOSED IS SPECI FIED. THE LD.AR CONCEDED THE GROUNDS AND THUS THE LEGAL CONTENTION IS DISMISSED. ITA NO. 863/JP/2019 M/S. NAVYUG INFRAPROJECTS PVT. LTD. VS DCIT CENTRAL CIRCLE-4, JAIPUR 3 5.2 ON MERITS, I AM OF THE VIEW THAT THE LD. AO IS RIGHT IN IMPOSING THE PENALTY AS IT IS CLEAR OMISSI ON OF LAW. RELIANCE ON CONTENTION THAT IT IS DEEMING PROVISION IS NOT TENABLE AS NO JUDGMENT ON 43CA IS PLACED ON RECORDS . ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE PENALTY OF RS. 3,43,870/- IS CONFIRMED. 2.2 DURING THE COURSE OF HEARING, THE LD.AR OF THE ASSESSEE BROUGHT TO THE NOTICE OF THE BENCH THAT QUANTUM ADDITION HA S ALREADY BEEN SET ASIDE BY THE COORDINATE BENCH IN ASSESSEE'S OWN CASE IN ITA NO. 376/JP/2018 FOR THE ASSESSMENT YEAR 2014-15 VIDE OR DER DATED 04-06- 2019. 2.3 ON THE OTHER HAND, THE LD. DR SUPPORTED THE ORD ER OF THE LOWER AUTHORITIES. 2.4 WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIALS AVAILABLE ON RECORD. IT IS NOTED THAT IN ASSESSEE'S OWN CASE THE COORDINATE BENCH IN ITA NO. 376/JP/2018 FOR THE ASS ESSMENT YEAR 2014-15 VIDE ORDER DATED 04-06-2019 HAS REFERRED T HE MATTER BACK TO THE FILE OF THE AO FOR MAKING REFERENCE TO THE DVO FOR ARRIVING AT THE FAIR MARKET VALUE AND FOR DECIDING THE ISSUE AFRESH AS PER LAW BY OBSERVING AS UNDER:- ITA NO. 863/JP/2019 M/S. NAVYUG INFRAPROJECTS PVT. LTD. VS DCIT CENTRAL CIRCLE-4, JAIPUR 4 7. WE HAVE CONSIDERED THE RIVAL CONTENTIONS AND CAREFULLY GONE THROUGH THE ORDERS OF THE AUTHORITIE S BELOW AND FOUND FROM THE RECORD THAT THE ASSESSEE IS ENGA GED IN THE BUSINESS OF REAL ESTATE AS A BUILDER. DURING TH E YEAR UNDER CONSIDERATION, THE ASSESSEE HAS SOLD ONE FLAT NO. 402, SITUATED AT HANUMAN NAGAR, JAIPUR AT A SALE CONSIDERATION OF RS. 50.00 LACS WHEREAS THE VALUE WAS ADOPTED BY THE SUB-REGISTRAR FOR CHARGING OF STAMP DUTY AT RS. 61,12,848/-. THE A.O. SUBSTITUTED THE VALUE TAKE N BY THE SUB-REGISTRAR AND ADDED THE DIFFERENCE U/S 43CA OF THE ACT. HOWEVER, AN OBJECTION WAS RAISED BY THE ASSESSEE TO SUPPORT THE SALE CONSIDERATION SHOWN IN THE SALE DE ED. SIMILAR OBJECTION WAS ALSO RAISED BEFORE THE LD. CIT( A). WHEN SUCH OBJECTION IS RAISED, THE A.O. IS BOUND TO REFER THE MATTER TO THE DVO FOR VALUATION BEFORE SUBSTITU TING THE VALUE TAKEN BY THE SUB-REGISTRAR FOR STAMP DUTY PUR POSES. AS PER PROVISIONS OF SECTION 50C(2)(A) IF THE ASSES SEE CLAIMS BEFORE ANY ASSESSING OFFICER THAT THE VALUE ADOPTED OR ASSESSED OR ASSESSABLE BY THE STAMP VALUATION AU THORITY UNDER SUB-SECTION (1) EXCEEDS THE FAIR MARKET VALUE OF THE PROPERTY AS ON THE DATE OF TRANSFER; THEN THE MATTE R HAS TO GO TO THE VALUATION CELL OF THE DEPARTMENT. IN THIS CASE ALSO APPARENTLY THE VALUATION TAKEN BY THE STAMP AUTHORI TIES EXCEEDED THE APPARENT CONSIDERATION SHOWN BY THE ASSESSEE IN THE REGISTRATION DEED AND ACCORDINGLY T HE ITA NO. 863/JP/2019 M/S. NAVYUG INFRAPROJECTS PVT. LTD. VS DCIT CENTRAL CIRCLE-4, JAIPUR 5 ASSESSING OFFICER WAS REQUIRED TO REFER THE VALUATIO N OF THE PROPERTY TO THE VALUATION CELL OF THE DEPARTMENT. H OWEVER, FROM THE RECORD WE FOUND THAT THE ASSESSEE HAS RAISE D OBJECTION AT THE FAG END WHEN THE ASSESSMENT WAS GOIN G TO TIME BARRED, THEREFORE, EVEN IF THE AO HAS REFERRED THE MATTER TO THE DVO, THERE WAS NO PROBABILITY OF RECEI VING VALUATION REPORT FROM THE DVO IN SUCH A SHORT TIME, IN SO FAR AS THE ASSESSMENT WAS GOING TO BE TIME BARRED ON 31/12/2016.UNDER THESE FACTS AND CIRCUMSTANCES AND IN SUBSTANTIAL INTEREST OF JUSTICE,WE RESTORE THE MATTE R BACK TO THE FILE OF THE A.O. FOR MAKING REFERENCE TO THE DV O FOR ARRIVING AT THE FAIR MARKET VALUE AND FOR DECIDING THE ISSUE AFRESH AS PER THE LAW. 8. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES ONLY. IT IS NOTED FROM THE ORDER OF THE ITAT (SUPRA) THAT IT HAS NOT CONFIRMED THE ADDITION MADE BY THE LOWER AUTHORITIES BUT REST ORED THE ISSUE TO THE FILE OF THE AO FOR MAKING REFERENCE TO THE DVO FOR ARRIVING AT THE FAIR MARKET VALUE AND FOR DECIDING THE ISSUE AFRESH AS P ER LAW. ACCORDINGLY, WE DO NOT FIND MERIT IN THE ORDER OF THE LD. CIT(A) I N CONFIRMING THE PENALTY ON THE ASSESSEE U/S 271(1)(C) OF THE ACT UN TIL AND UNLESS THE ITA NO. 863/JP/2019 M/S. NAVYUG INFRAPROJECTS PVT. LTD. VS DCIT CENTRAL CIRCLE-4, JAIPUR 6 QUANTUM ADDITION IS CONFIRMED BY THE ITAT. HENCE, IN VIEW OF THE PRESENT FACTS AND CIRCUMSTANCES OF THE CASE, WE DO NOT CONCUR WITH THE FINDINGS OF THE LD. CIT(A) ON THE ISSUE OF CONFIRMIN G THE IMPOSITION OF PENALTY U/S 271(1)(C) OF THE ACT. THUS THE APPEAL OF THE ASSESSEE IS ALLOWED. 3. THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR WITH NO ORDER AS TO COST. ORDER PRONOUNCED IN THE OPEN COURT ON 01 /10/2019 . SD/- SD/- FOE FLAG ;KNO LANHI XKSLKBZ (VIKRAM SINGH YADAV) (SANDEEP GOSAIN) YS[KK LNL;@ ACCOUNTANT MEMBER U;KF;D LNL;@ JUDICIAL MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 01/10/2019. *MISHRA VKNS'K DH IZFRFYFI VXZSFKR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- M/S. NAVYUG INFRAPROJECTS PVT.LTD, JA IPUR 2. IZR;FKHZ@ THE RESPONDENT-THE DCIT, CENTRAL CIRCLE-4, JAIPUR 3. VK;DJ VK;QDR@ CIT 4. VK;DJ VK;QDR@ CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR. 6. XKMZ QKBZY@ GUARD FILE {ITA NO.863/JP/2019} VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASSTT. REGISTRAR