SHRI SHIV RAM SAINI, JAIPUR V. DEPUTY COMMISSIONER OF INCOME TAX, CIRCLE-7, JAIPUR

ITA 912/JPR/2018

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 7669 (ITAT-JAIPUR)
• Duration Of Justice: 11 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-07-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2013-2014
• Appeal Filed On: 25-07-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: P P MEENA JCIT DHK
• Assessee Lawyers: KAMAL MURARKA
• Keywords: Sale consideration of property below Jantri Value
• Section: 143(3); 50C

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES (SMC), JAIPUR JH JES'K LH 'KEKZ] YS[KK LNL; DS LE{K BEFORE: SHRI RAMESH C SHARMA , ACCOUNTANT MEMBER VK;DJ VIHY LA -@ ITA NO. 912/JP/2018 FU/KZKJ.K O'KZ@ ASSESSMENT YEAR : 2013-14 SHRI SHIV RAM SAINI, GRAM KALYANPURA, NEAR RIIC RAILWAY PHATAK, SANGANER, JAIPUR. CUKE VS. D.C.I.T., CIRCLE-7, JAIPUR. LFKK;H YS[KK LA -@THVKBZVKJ LA-@ PAN/GIR NO.: ABWPS 6015 L VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS @ ASSESSEE BY : SHRI KAMAL MURARKA (CA) JKTLO DH VKSJ LS @ REVENUE BY : SHRI P.P. MEENA (JCIT) LQUOKBZ DH RKJH[K@ DATE OF HEARING : 22/07/2019 MN?KKS 'K.KK DH RKJH[K @ DATE OF PRONOUNCEMENT : 22/07/2019 VKNS'K@ ORDER PER: R.C. SHARMA, A.M. THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF LD.CIT(A)-3, JAIPUR DATED 29/05/2018 FOR THE A.Y. 2013-14 IN THE MATTER OF ORDER PASSED U/S 143(3) OF THE INCOME TAX ACT, 1961 (IN SHORT, THE ACT). 2. THE FIRST GROUND OF APPEAL RELATES TO ADDITION OF RS. 4,47,150/- ON ACCOUNT OF DIFFERENT IN THE DLC VALUE AND THE SALE CONSIDERATION SHOWN BY THE ASSESSEE. THE ASSESSEE HAD SOLD TWO PROPERTIES IN THE A.Y. ITA 912/JP/2018 SHRI SHIV RAM SAINI VS DCIT 2 2013-14. DURING THE YEAR UNDER CONSIDERATION, THE ASSESSEE HAD SHOWN LONG TERM CAPITAL GAIN AT RS. 20,31,280/- ON THE SALE CONSIDERATION OF RS. 2,11,96,000/ - [TOTAL OF BOTH PROPERTY]. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, IT WAS NOTICED BY THE AO THAT THE SUB-REGISTRAR HAD TAKEN VALUE OF THE SAID PROPERTY AT RS. 2,16,75,578/- FOR THE PURPOSE OF CHARGING STAMP DUTY. THE AO, ACCORDINGLY REPLACED THE SALE CONSIDERATION WITH RS. 2,16,75,578/- FOR CALCULATING CAPITAL GAIN. 3. IT WAS THE CONTENTION OF THE LD AR OF THE ASSESSEE THAT SINCE THE DIFFERENCE WAS NEAR ABOUT 10%, THE SAME SHOULD BE AVOIDED AND HE FURTHER CONTENDED THAT THE A.O. HAS NOT REFERRED THE MATTER TO THE DVO. 4. I HAVE HEARD THE RIVAL CONTENTIONS AND CAREFULLY GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW AND FOUND THAT THE A.O. HAS MADE ADDITION U/S 50C OF THE ACT BY ADOPTING THE DLC VALUE. AS AND WHEN THE A.O. DO NOT ACCEPT THE SALE CONSIDERING SHOWN BY THE ASSESSEE, THE MATTER SHOULD BE REFERRED TO THE DVO. HOWEVER, IN THE INSTANT CASE, THE A.O. HAS NOT MADE THE REFERENCE TO THE DVO, THEREFORE, IN THE SUBSTANTIAL INTEREST OF JUSTICE, I RESTORE THE MATTER BACK TO THE FILE OF THE A.O. FOR ITA 912/JP/2018 SHRI SHIV RAM SAINI VS DCIT 3 MAKING REFERENCE TO THE DVO AND FOR DECIDING THE ISSUE AFRESH AS PER LAW AFTER PROVIDING DUE AND EFFECTIVE OPPORTUNITY OF HEARING TO THE ASSESSEE. 5. THE NEXT GRIEVANCE OF THE ASSESSEE RELATES TO ADDITION OF RS. 6,10,740/- ON ACCOUNT OF CAPITAL GAINS BY IGNORING THE COST OF IMPROVEMENT. FROM THE RECORD, I FOUND THAT THE ASSESSEE HAD SHOWN RS. 6,10,740/- AS HAS BEEN INCURRED BY THE ASSESSEE FOR THE LEVELING WORK OF THE LANDS. SAME HAS BEEN CLAIMED AS A COST OF IMPROVEMENT IN THE ITR. THIS WORK HAS BEEN DONE BY MR. SHANKAR LAL BANJARA. PAYMENT HAS BEEN MADE IN CASH TO MR. SHANKAR LAL FOR WHICH. CASH RECEIPT ON RE. 1 REVENUE STAMP HAS BEEN ISSUED BY THE SHANKAR LAL. SAME HAS BEEN PRODUCED BEFORE THE AO DURING THE ASSESSMENT PROCEEDINGS. HOWEVER, THE A.O. DECLINED CLAIM ON THE PLEA THAT THE ASSESSEE WAS NOT HAVING SUFFICIENT CASH ON THE DATE OF PAYMENT. OUR ATTENTION WAS INVITED BY THE LD AR TO THE BANK STATEMENT OF BANK OF INDIA, SANGANER BRANCH, WHEREIN AS ON 23/1/2011, THE ASSESSEE HAD WITHDRAWN CASH OF RS. 9.10 LACS OUT OF WHICH RS. 6,10,740/- WAS PAID AS A COST OF LEVELING. IT APPEARS THAT THIS BANK STATEMENT WAS NOT PRODUCED BEFORE THE LOWER AUTHORITIES. SINCE IT GOES TO THE ROOT OF THE ISSUE TO EXPLAIN THE AVAILABILITY OF CASH OUT OF THE SAID WITHDRAWAL, IN ALL FAIRNESS, I RESTORE THIS ISSUE BANK TO THE FILE OF THE A.O. FOR CONSIDERING THE CASH ITA 912/JP/2018 SHRI SHIV RAM SAINI VS DCIT 4 WITHDRAWN FROM THE BANK WHICH HAS BEEN UTILIZED FOR LEVELING OF LAND AND PAID TO SHANKAR LAL BANJARA, STAMP RECEIPT OF WHICH WAS ALREADY PLACED BEFORE THE A.O. THE A.O. IS DIRECTED TO DECIDE THE ISSUE AFRESH AFTER CONSIDERING THE SAME. 6. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES ONLY. ORDER PRONOUNCED IN THE OPEN COURT ON 22 ND JULY, 2019 SD/- JES'K LH 'KEKZ ( RAMESH C SHARMA ) YS[KK LNL;@ ACCOUNTANT MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 22 ND JULY, 2019 *RANJAN VKNS'K DH IZFRFYFI VXZSFKR @ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ @ THE APPELLANTS- SHRI SHIV RAM SAINI, JAIPUR 2. IZR;FKHZ @ THE RESPONDENT- THE D.C.I.T., CIRCLE-7, JAIPUR. 3. VK;DJ VK;QDR @ CIT 4. VK;DJ VK;QDRVIHY @ THE CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ @ DR, ITAT, JAIPUR 6. XKMZ QKBZY @ GUARD FILE (ITA NO. 912/JP/2018) VKNS'KKUQLKJ @ BY ORDER, LGK;D IATHDKJ @ ASST. REGISTRAR