Shree Nand Co-Operative Housing Society Ltd., Vadodara V. The Income Tax Officer, Ward-1(2)(5), Vadodara

ITA 924/AHD/2017

• Counselvise Citation: [2019] 112 COUNSELVISE.COM (IT) 6404 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 10 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-02-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: C
• Assessment Year: 2011-2012
• Appeal Filed On: 17-04-2017
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: ILA PARMAR
• Assessee Lawyers: B T THAKKAR
• Keywords: Sale consideration of property below Jantri Value; Cost of acquisition
• Section: 143(3); 50C; 201; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD C BENCH BEFORE: SHR I MAHAVIR PRASAD , JUDICIAL MEMBER AND SHRI AMARJIT SINGH, ACCOUNTANT MEMBER SHREE NAND CO - OPERATIVE HOUSING SOCIETY LTD, C - 97, RAJDEEP SOCIETY, OPP. POLO GROUND, VADODARA - 390001 PAN: AAKAS6607A (APPELLANT) VS THE IT O , WARD - 1 (2)(5) , BARODA (RESPONDENT) REVENUE BY : MS. ILA PARMAR , SR. D . R . ASSESSEE BY: SHRI B.T. THAKKAR, A.R. DATE OF HEARING : 05 - 02 - 2 019 DATE OF PRONOUNCEMENT : 18 - 02 - 2 019 / ORDER P ER : AMARJIT SINGH, ACCOUNTANT MEMBER : - THIS ASSESSEE S APPEAL FOR A.Y. 2011 - 12 , ARI SES FROM ORDER OF THE CIT(A) - 5, VADODARA DATED 13 - 02 - 2 017 , IN PROCEEDINGS UNDER SECTION 143(3) R.W.S. 147 OF THE INCOME TAX ACT, 1961; IN SHORT THE ACT . 2. ALL THE GROUND OF APPEAL OF THE ASSESSEE ARE CON NECTED TO THE ISSUE OF ADDITION OF RS.50 , 21 . 630/ ON ACCOUNT OF LONG TERM CAPITAL GAIN AND NOT I T A NO . 924 / A HD/20 17 A SS ESSMENT YEAR 2011 - 12 I.T.A NO. 92 4 /AHD/20 17 A.Y. 2011 - 12 PAGE NO SHREE NAND CO - OP. HOUSING SOCIETY LTD. VS. IT O 2 CONSIDERING THE CLAIM OF THE ASSESSEE FOR COST OF IMPROVEMENT IN RESPECT OF PAYMENT OF RS. 10,24,245/ TOWARDS PAYMENT OF LAND LEVELLING EXPENSES TO VADODARA MUN ICIPAL CORPORATION . BECAUSE OF CONNECTED ISSUE S ALL THE GROUND S OF APPEAL ARE ADJUDICATED BY THIS COMMON ORDER. 3. T HE CASE OF THE ASSES S EE WAS REOPENED BY ISSUING OF NOTICE U/S. 148 OF T HE ACT ON 24 TH MARCH, 2014. THE ASSESSING OFFICER HAD INFORMATI ON IN HIS POSSESSION THAT THE ASSESSE HAD SOLD AN IMMOVEABLE PROPERTY FOR A CONSIDERATION FOR R S. 70 LACS ON 19 TH J ULY, 2010 WHICH WAS VALUED AT RS. 1 , 19 , 82 , 600/ - ACCORDING TO JANTRI VALUE ON THE BASIS OF STAMP DUTY PAID. T HE ASSESSEE HAS FAILED TO DEC LARE THE SAME IN HIS RETURN OF INCOME A CCORDING TO PROVISION OF SECTION 50C OF THE ACT. IN RESPONSE TO NOTICE U/S. 148 THE ASSESSEE HA S FILED RETURN OF INCOME DECLARING INCOME AT RS. NIL . ASSESSMENT U/S. 143(3) R . W.S. SECTION 147 OF THE ACT WAS COMPL ETED ON 30 TH MAY, 2015 DETERMINING TO T AL INCOME AT RS. 50 , 21 , 630/ - UNDER T HE HEAD LONG TERM CAPITAL GAIN ON THE SALE OF AFORESAID PROPERTY. . T HE ASSESSING OFFICER HAS NOT ALLOWED THE COST OF IMPROVEMENT EXPENSES ON THE GROUND THAT ASSESSEE HAS FAILE D TO FURNISH SUPPORTING DOCUMENTARY EVIDENCES IN RESPECT OF COST OF IMPROVEMENT MADE TO THE IMMOVEABLE PROPERTY. 4 . THE AGGRIEVED ASSESSEE HAS FILED APPEAL BEFORE THE LD. CIT(A) . THE LD. CIT(A) HAS RESTRICTED THE SALE PRICE OF THE TRANSFERRED ASSET A T RS. 88,97000/ AS DETERMINED BY THE DVO AS AGAINST RS. 1,19,82,600 ADOPTED BY THE ASSESSING OFFICER. HOWEVER , THE LD. CIT (A) DISMISSED THE CLAIM OF PAYMENT OF RS. 10,24,245/ TOWARDS PAYMENT OF LAND L E VELLING EXPENSES TO I.T.A NO. 92 4 /AHD/20 17 A.Y. 2011 - 12 PAGE NO SHREE NAND CO - OP. HOUSING SOCIETY LTD. VS. IT O 3 VADODARA MUNICIPAL CORPORAT ION ON THE GROUND THAT THE ASSESSEE HAS FAILED TO EXPLAIN WHY THE SAME WERE NOT FURNISHED BEFORE THE ASSESSING OFFICER. 5. DURING THE COURSE OF APPELLATE PROCEEDINGS BEFORE US, THE LD. COUNSEL HAS CONTENDED THAT THE ASSESSING OFFICER HAS IGNORED THE SUBM ISSION OF THE ASSESSEE AND PASSED ASSESSMENT ORDER EXPEDIENTLY WITHOUT GIVING FURTHER OPPORTUNITY. IT IS ALSO CONTENDED THAT LD. CIT(A) HAS NOT ACCEPTED THESE FACTS AND DISMISSED THE CLAIM OF THE ASSESSEE WITHOUT ANY SUFFICIENT REASON. ON THE OTHER HAND LD. DEPARTMENTAL REPRESENTATIVE HAS P LACED RELIANCE ON THE DECISION OF LOWER AUTHORITY. W E HAVE HEARD THE RIVAL CONTENTION AND PERUSED THE MATERIAL ON RECORD CAREFULLY. 6. AFTER CONSIDERING THE AFORESAID FACT AND SUBMISSION OF THE ASSESSEE WE OBSERVE THAT PROVISIONS OF SECTION 50C WAS CORRECTLY APPLIED TO THE CASE OF THE ASSESSEE U/S 143(3) R.W.S.148 OF THE ACT. FURTHER WE DO NOT FIND ANY INFIRMITY IN THE DECISION OF THE LD. CIT(A) ON DIRECTING THE ASSESSING OFFICER TO ADOPT THE SALE PRICE OF THE T RANSFERRED ASSET AT RS.88,97,000/ INSTEAD OF RS. 119,82600/ ADOPTED THE ASSESSING OFFICER. THEREFORE WE DO NOT FIND ANY MERIT IN THIS GROUND OF APPEAL OF THE ASSESSEE. 7. HOWEVER , REGARDING THE DISMISSAL OF THE CLAIM OF ASSESSEE FOR COST OF IMPRO VEMENT IN RESPECT OF PAYMENT OF RS. 10,24,245/ TOWARDS LAND LEVELLING EXPENSES TO VADODARA MUNICIPAL CORPORATION , T HE ASSESSING OFFICER HAS NOT ALLOWED THE CLAIM OF THE EXPENDITURE ON THE GROUND THAT THE DOCUMENTARY EVIDENCES IN RESPECT OF COST OF IMPROVE MENT WERE NOT SUBMITTED BY THE ASSESSE. DURING THE COURSE OF APPELLATE PROCEEDINGS BEFORE I.T.A NO. 92 4 /AHD/20 17 A.Y. 2011 - 12 PAGE NO SHREE NAND CO - OP. HOUSING SOCIETY LTD. VS. IT O 4 THE LD. CIT(A), THE ASSESSEE HAS ENCLOSED SUPPORTING BILLS AND VOUCHERS IN RESPECT OF EXPENDITURE INCURRED TOWARDS IMPROVEMENT IN THE COST OF LAND SOLD BY THE ASSESS EE BUT SAME WERE NOT CONSIDERED BY THE LD.CIT(A) ON THE GROUND THAT THE ASSESSEE FAILED TO EXPLAIN WHY THE SAME WERE NOT FURNISHED BEFORE THE ASSESSING OFFICER. W ITH THE ASSIS TANCE OF THE LD. REPRESENTATIVES WE HAVE GONE THROUGH THE MATERIAL ON RECORD AN D NOTICED THAT THE ASSESSING OFFICER HAS ISSUED A SHOW CAUSE DATED 20.03.2005 JUST BEFORE THE PASSING OF THE ASSESSMENT ORDER TO SUBMIT THE DOCUMENTARY EVIDENCES FOR THE COST OF IMPROVEMENT OF THE PROPERTY. THE ASSESSEE HAS RESPONDED IMMEDIATELY VIDE LETTE R DATED 24.03.2015 AND FURNISHED THE DETAIL OF COST OF IMPROVEMENT IN THE SOLD PROPERTY, HOWEVER WITH THAT SUBMISSION THE DOCUMENTARY PROOFS WERE NOT FURNISHED BECAUSE OF BEING QUITE OLD MATTER . IN THIS CONNECTION WE HAVE NOTICED THAT THE ASSESSING OFFIC ER HAS IMMEDIATELY PASSED THE ASSESSMENT ORDER ON 30.03.2015 AND IT IS ALSO OBSERVED THAT THE COST OF ACQUISITION WAS PERTAINED TO F.Y. 2007 - 08 TOWARDS PAYMENT OF LAND LEVELLING EXPENSES TO VADODARA MUNICIPAL CORPORATION WHICH DEMONSTRATE THAT IT WAS QUITE OLD MATTER. 8. IN THE LIGHT OF THE ABOVE MATERIAL FACTS WE ARE OF THE VIEW THAT THERE WAS SUFFICIENT CAUSE BECAUSE OF WHICH THE ASSESSEE COULD NOT PRODUCE THE RELEVANT DOCUMENTARY EVIDENCE IN SUPPORT OF CLAIM OF PAYMENT OF RS. 10,24,245/ TOWARDS PAYME NT OF LAND LEVELLING EXPENSES TO VADODARA MUNICIPAL CORPORATION BEFORE THE ASSESSING OFFICER. W E CONSIDER IT APPROPRIATE TO REMIT THIS AFORESAID ISSUE OF CLAIM OF COST OF IMPROVEMENT TO THE FILE OF THE LD.CIT(A) FOR ADJUDICATING A FRESH AFTER EXAMINATIO N OF THE DOCUMENTARY EVIDENCES. ACCORDINGLY , THIS ISSUE OF GROUND OF APPEAL IS I.T.A NO. 92 4 /AHD/20 17 A.Y. 2011 - 12 PAGE NO SHREE NAND CO - OP. HOUSING SOCIETY LTD. VS. IT O 5 RESTORED TO THE FILE OF THE LD. CIT (A) FOR DECIDING ON MERIT AS DIRECTED ABOVE AFTER AFFORDING ADEQUATE OPPORTUNITY TO THE ASSESSEE. THEREFORE , THIS GROUND OF APPEAL OF T HE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSE. 9 . IN THE RESULT, THE APPEAL OF THE ASSESSEE IS PARTLY ALLOWED FOR STATISTICAL PURPOSES . ORDER PR ONOUNCED IN THE OPEN C OURT ON 18 - 02 - 201 9 SD/ - SD/ - ( MAHAVIR PRASAD ) ( AMARJIT SINGH ) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD : DATED 18 /02 /2019 / COPY OF ORDER FORWARDED TO: - 1. ASSESSEE 2. REVENUE 3. CONCERNED CIT 4. CIT (A) 5. DR, ITAT, AHMEDABAD 6. GUARD FILE. BY ORDER/ , / ,