Prabha R.Parakh, CHENNAI V. ACIT, CHENNAI

ITA 905/CHNY/2015

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 96017 (ITAT-CHENNAI)
• Duration Of Justice: 4 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-09-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 14-07-2015
• Assessment Year: 2007-2008
• Appeal Filed On: 23-04-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DR B NISCHAL
• Assessee Lawyers: D ANAND
• Keywords: Sale consideration of property below Jantri Value; Value adopted by valuation officer
• Section: 50C

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL , B B ENCH, CHENNAI . , ' $ % , & ' BEFORE SHRI A.MOHAN ALANKAMONY ACCOUNTANT MEMBER AND SHRI CHALLA NAGENDRA PRASAD, JUDICIAL MEMBER ./I.T.A.NO. 905/MDS/2015 ( / ASSESSMENT YEAR: 2007-08) MRS. PRABHA R.PARAKH PROP. M/S.BHARAT ENTERPRISES A-7/8, RAMS BUILDING, 21, RAJA ANNAMALI ROAD, PURASAWALKAM,CHENNAI-84. VS ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE-XIV CHENNAI-34. PAN:AHWPP0329G ( /APPELLANT) ( /RESPONDENT) / APPELLANT BY : MR. D.ANAND, ADVOCATE /RESPONDENT BY : DR. B.NISCHAL, JCIT /DATE OF HEARING : 14 TH JULY, 2015 /DATE OF PRONOUNCEMENT : 11 TH SEPTEMBER, 2015 / O R D E R PER CHALLA NAGENDRA PRASAD, JM: THIS APPEAL IS FILED BY THE ASSESSEE AGAINST THE O RDER OF THE COMMISSIONER OF INCOME TAX (APPEALS)-12, C HENNAI DATED 13.02.2015 FOR THE ASSESSMENT YEAR 2007-08. 2. THE ASSESSEE IS CHALLENGING THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS) IN NOT GIVING ADEQUATE OPPORTUNITY IN PROSECUTING THE APPEAL. ON MERITS, THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS:- 8. COMMISSIONER OF INCOME TAX (APPEALS) OUGHT TO HAVE SEEN THAT ASSESSING OFFICER ERRED IN APPLYING SECTION 50C OF THE ACT TO INSTANT CASE 2 ITA NO.905/MDS/2015 OF THE ASSESSEE. COMMISSIONER OF INCOME TAX (APPEALS) OUGHT TO HAVE SEEN THAT PROPERTY OF THE ASSESSEE WAS CONSOLIDATED ALONG WITH PROPERTY OF THE OTHER PERSONS AND SOLD AS A SINGLE UNIT AND THE REGISTRATION WAS DONE AT A VALUE EQUIVALENT TO THE GUIDELINE VALUE. 9. COMMISSIONER OF INCOME TAX (APPEALS) OUGHT TO HAVE SEEN THAT ASSESSING OFFICER ERRED IN APPLYING SECTION 50C OF THE ACT. IN THE INSTAN T CASE, PROPERTY WAS NOT REGISTERED AT A VALUE LESS THAN GUIDELINE VALUE TO INVOKE SECTION 50C OF THE ACT ONLY THE CONSIDERATION DISTRIBUTED TO ASSESSEE BY OTHER CO-OWNERS TO THE ASSESSEE WAS LESS WHEN COMPARED TO GUIDELINE VALUE DUE TO INHERENT DISADVANTAGE THAT ASSESSEE PROPERTY DID NOT HAVE ACCESS AND THE SAME IS MARKETABLE ONLY IF THE SAME IS CONSOLIDATED WITH THE OTHER CO- OWNERS LAND WHICH FORMED THE FRONTAGE. 10. THE COMMISSIONER OF INCOME TAX (APPEALS) OUGHT TO HAVE SEEN THAT ASSESSING OFFICER ERRED IN DETERMINING THE CAPITAL GAINS UNDER SECTION 50C OF THE ACT WITHOUT REFERRING THE MATTER TO THE EXPERT VALUERS OPINION ESPECIALLY WHEN THE VALUE DECLARED BY THE ASSESSEE AND THE VALUE DETERMINED BY THE ASSESSING OFFICER IS IN VARIANCE. 3. AT THE OUTSET, COUNSEL FOR THE ASSESSEE SUBMITS THAT ASSESSING OFFICER INVOKED SECTION 50C OF THE ACT A ND APPLIED GUIDELINE VALUE AS SALE CONSIDERATION AS AGAINST SA LE CONSIDERATION OF ` 37,00,000/- RECEIVED BY THE ASSESSEE IN SPITE OF THE OBJECTIONS OF THE ASSESSEE NOT TO APPL Y GUIDELINE VALUE FOR STAMP DUTY PURPOSE AS SALE VALUE FOR COM PUTING CAPITAL GAINS. COUNSEL SUBMITS THAT COMMISSIONER OF INCOME 3 ITA NO.905/MDS/2015 TAX (APPEALS) PASSED EX-PARTE ORDER WITHOUT GIVING PROPER OPPORTUNITY TO THE ASSESSEE BY DISMISSING THE APPEA L FOR WANT OF PROSECUTION. COUNSEL SUBMITS THAT SINCE THE ASS ESSING OFFICER HAS NOT REFERRED THE MATTER TO THE EXPERT V ALUERS OPINION FOR VALUATION AS PER SECTION 50C (2), THE M ATTER HAS TO GO BACK TO THE ASSESSING OFFICER. THEREFORE, HE PLE ADS THAT A DIRECTION MAY BE GIVEN TO THE ASSESSING OFFICER TO REFER THE MATTER TO THE VALUATION OFFICER UNDER SECTION 50C(2 ) OF THE ACT. 4. DEPARTMENTAL REPRESENTATIVE RELIES ON THE ORDERS OF LOWER AUTHORITIES. 5. HEARD BOTH SIDES. PERUSED ORDERS OF LOWER AUTHOR ITIES. PROVISIONS OF SECTION 50C(2) MANDATES FOR REFERENCE TO VALUATION OFFICER, IF THE ASSESSEE OBJECTS FOR ADOP TING GUIDELINE VALUE FOR STAMPS DUTY AS SALE CONSIDERATI ON INSTEAD OF ACTUAL SALE CONSIDERATION RECEIVED BY THE ASSESS EE TO ASCERTAIN THE MARKET VALUE OF THE LAND FOR COMPUTIN G CAPITAL GAINS. THESE ASPECTS HAVE NOT BEEN CONSIDERED BY TH E ASSESSING OFFICER OR BY THE COMMISSIONER OF INCOME TAX (APPEALS). THE COMMISSIONER OF INCOME TAX (APPEALS) DISMISSED THE APPEAL OF THE ASSESSEE FOR NON-PROSEC UTION, 4 ITA NO.905/MDS/2015 THOUGH HE STATES THAT SEVERAL OPPORTUNITIES WERE GI VEN TO THE ASSESSEE IT IS NOT SPECIFICALLY MENTIONED IN THE OR DER. THUS, IN THE INTEREST OF JUSTICE, WE REMIT THE FILE BACK TO THE COMMISSIONER OF INCOME TAX (APPEALS) FOR ADJUDICATI ON IN ACCORDANCE WITH LAW, AFTER PROVIDING ADEQUATE OPPOR TUNITY TO THE ASSESSEE. 6. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 11 TH SEPTEMBER, 2015. SD/- SD/- ( . ) ( ( *+ ) ( A.MOHAN ALANKAMONY ) ( CHALLA NAGENDRA PRASAD ) - / ACCOUNTANT MEMBER * - / JUDICIAL MEMBER * /CHENNAI, / /DATED 11 TH SEPTEMBER, 2015 SOMU 12 32 /COPY TO: 1. APPELLANT 2. RESPONDENT 3. 4 () /CIT(A) 4. 4 /CIT 5. 2 7 /DR 6. /GF .