Smt. Rinaben Sunit Choksi, Ahmedabad V. The Income Tax Officer, Ward-11(2), Ahmedabad

ITA 924/AHD/2019

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 4202 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 4 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-10-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2010-2011
• Appeal Filed On: 27-05-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R R MAKWANA
• Assessee Lawyers: BIREN SHAH
• Keywords: Sale consideration of property below Jantri Value; Cost of acquisition
• Section: 271(1)(c); 143(3); 50C; 147; 148

Judgement Text

, B IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, AHMEDABAD (CONDUCTED THROUGH VIRTUAL COURT) BEFORE SHRI RAJPAL YADAV, VICE-PRESIDENT AND SHRI WASEEM AHMED, ACCOUNTANT MEMBER ITA NO.923 AND 924/AHD/2019 / ASSTT.YEAR : 2010-2011 RINABEN SUNIT CHOKSHI 62, SONA ROOPA APARTMENT OPP: LAL BUNGALOW C.G.ROAD, AHMEDABAD. PAN : AGYPC 5596 K VS. ITO, WARD - 11(2) AHMEDABAD. ( APPLICANT ) ( RESPONENT ) REVENUE BY : SHRI R.R. MAKWANA, SR.DR ASSESSEE BY : SHRI BIREN SHAH, AR / DATE OF HEARING : 05/10/2021 / DATE OF PRONOUNCEMENT: 06/10/2021 !'/ O R D E R PER RAJPAL YADAV, VICE-PRESIDENT PRESENT TWO APPEALS ARE DIRECTED AT THE INSTANCE OF THE ASSESSEE AGAINST SEPARATE ORDERS OF THE LD.CIT(A)-5, AHMEDAB AD DATED 28.3.2019 PASSED FOR THE ASSTT.YEAR 2010-2011. 2. ITA NO.924/AHD/2019 HAS ARISEN OUT OF ASSESSMENT PROCEEDINGS UNDER SECTION 143(3) READ WITH SECTION 147 OF THE I NCOME TAX ACT, 1961. IN OTHER WORDS, IT IS A QUANTUM APPEAL; WHER EAS ITA NO.923/AHD/2019 HAS ARISEN FROM THE PENALTY PROCEED INGS UNDER SECTION 271(1)(C) OF THE ACT I.E. PENALTY APPEAL. ITA NO.923, 924/AHD/2019 2 3. THE ASSESSEE HAS TAKEN THREE GROUND OF APPEAL. SHE HAS CHALLENGED REOPENING OF THE ASSESSMENT UNDER SECTIO N 148 OF THE ACT AS WELL AS ADDITION OF UNEXPLAINED CASH DEPOSITS IN THE AXIS BANK AMOUNTING TO RS.4,24,500/-. 4. THE LD.COUNSEL FOR THE VERY OUTSET SUBMITTED THA T THE ASSESSMENT WAS REOPENED BY RECORDING REASONS WHICH ARE AVAILAB LE ON PAGE NO.4 OF THE PAPER BOOK. THE REASONS READ AS UNDER: IN THIS CASE, NO RETURN OF INCOME HAS BEEN FILED B Y THE ASSESSEE FOR A.Y.2010-11. THE INFORMATION AS RECEIVED FROM THE ASSTT.DIRECTO R OF INCOME TAX (I&C.I), AHMEDABAD WITH REFERENCE TO SALE TRANS ACTIONS OF THE IMMOVABLE PROPERTY AND DIFFERENCE IN THE VALUE OF R EGISTERED DOCUMENT AND THE VALUE OF THE PROPERTY MADE FOR THE PURPOSE OF STAMP DUTY. ON VERIFICATION OF THE SAME, IT IS NOTICED THAT TH E ASSESSEE HAS SOLD THE IMMOVABLE PROPERTY. THE VALUE OF THE IMMO VABLE PROPERTY ADOPTED BY THE STAMP VALUATION AUTHORITY, I.E. SUB REGISTRAR, STAMP VALUE DHOLKA, AHMEDABAD IS RS.13,65,000/- AND VALUE OF REGISTRATION AMOUNT IS RS.11,79,360/-. THEREFORE, THERE IS DIFFERENCE OF VALUE OF USED FOR STAMP DUTY AND REGISTRATION PU RPOSE OF RS.1,85,640/-. IN VIEW OF THE FACTS STATED ABOVE, I HAVE REASONS TO BELIEVE THAT THE INCOME CHARGEABLE TO TAX TO THAT EXTENT HAS ESC APED ASSESSMENT FOR A.Y.2010-11 WITHIN THE MEANING OF SEC. 147 OF T HE I.T. ACT AND AS SUCH THIS IS A FIT CASE FOR ISSUE OF NOTICE U/S.148 . DATE : 25/06/2012 SD/- (D.R.PURSWANI) INCOME-TAX OFFICER WARD-11(2), AHMEDABAD. 5. A PERUSAL OF THE ABOVE REASONS WOULD SHOW THAT THE ASSESSMENT WAS REOPENED ON ACCOUNT OF ESCAPEMENT OF INCOME OF RS.1,85,640/- BEING DIFFERENCE BETWEEN SALE CONSIDERATION TAKEN B Y THE ASSESSEE FOR ITA NO.923, 924/AHD/2019 3 COMPUTING LONG TERM CAPITAL GAIN VIS--VIS DEEMED S ALE CONSIDERATION UNDER SECTION 50C OF THE ACT CALCULATED ON THE BASI S OF AMOUNT ON WHICH STAMP DUTY WAS PAID. THE LD.COUNSEL FOR THE ASSESSEE SUBMITTED THAT THOUGH THIS ADDITION WAS MADE BY THE AO, BUT I T WAS DELETED BY THE LD.CIT(A). HE TOOK US THROUGH PAGE NO.22 AND 2 3 OF THE IMPUGNED ORDER, WHERE THE LD.CIT(A) HAS DISCUSSED THIS ISSUE . THE RELEVANT FINDING OF THE LD.CIT(A) READS AS UNDER: 8.2. I HAVE CAREFULLY CONSIDERED THE ASSESSMENT OR DER, FACTS OF THE CASE AND SUBMISSION MADE BY APPELLANT. THE ASSESSIN G OFFICER HAS OBSERVED THAT THE STAMP DUTY VALUE OF THE PROPERTY SOLD BY APPELLANT IS RS.13,65,000/- AND VALUE ADOPTED FOR THE PURPOSE OF REGISTRATION IS RS.11,79,360/- AND ACCORDINGLY ADDITION OF RS.1,85, 640/- WAS MADE TO TOTAL INCOME OF APPELLANT ON THE GROUND THAT THE RE WAS DIFFERENCE IN VALUE USED FOR STAMP DUTY AND REGISTRATION PURPO SE. 8.3. THE APPELLANT HAS CONTENDED THAT THERE IS NO D IFFERENCE IN STAMP DUTY VALUE OF THE PROPERTY AND VALUE OF SALE DEED. DURING THE COURSE OF APPELLANT PROCEEDINGS, THE APPELLANT SUBMITTED R EGISTERED SALE DEED EXECUTED ON 13/07/2009 FOR SALE OF PROPERTY AT RS.13,65,000/- AND CONTENDED THAT THERE IS NO DIFFERENCE IN THE VA LUE OF IMMOVABLE PROPERTY ADOPTED BY STAMP VALUATION AUTHORITY AND D OCUMENTED VALUE OF SALE DEED. THE APPELLANT HAS FILED ADDITIO NAL EVIDENCES UNDER RULE 46A. THE AO IN THE REMAND REPORT OBSERVE D THAT THE APPELLANT HAS SOLD RESIDENTIAL PLOT ON 13/07/2009 A ND SHARE OF THE APPELLANT IN THE SAID PROPERTY WAS WORKED OUT AT RS .6,82,500/- BEING 50% SHARE IN THE PROPERTY AND AFTER DEDUCTING COST OF ACQUISITION OF RS.5,91,500/-, CAPITAL GAIN ON SALE PROPERTY WAS WO RKED OUT AT RS.91,000/-. THE ASSESSING OFFICER CONTENDED THAT A S THE APPELLANT HAS NOT FILED RETURN OF INCOME, CAPITAL GAIN ON SAL E OF PROPERTY IS NOT VERIFIABLE. 8.4. IT IS OBSERVED THAT THE APPELLANT HAS PROVIDED COPY OF REGISTERED SALE DEED DATED 13/07/2009 HAVING SALE VALUE OF PRO PERTY AT RS.13,65,000/-. ON VERIFICATION OF EVIDENCES PROVID ED BY APPELLANT IT IS OBSERVED THAT THERE IS NO DIFFERENCE IN SALE VAL UE OF PROPERTY AS PER REGISTERED SALE DEED AS WELL AS VALUE ADOPTED BY ST AMP VALUATION AUTHORITY. EVEN SUCH FACTS ARE NOT DISPUTED BY ASSE SSING OFFICER WHILE SUBMITTING REMAND REPORT. ITA NO.923, 924/AHD/2019 4 ON CONSIDERATION OF ENTIRE FACTS IT IS HELD THAT AD DITION OF RS.1,85,640/- MADE ON ACCOUNT OF DIFFERENCE IN VALU E USED FOR STAMPING AND REGISTRATION PURPOSE IS NOT JUSTIFIED AND ACCORDINGLY ADDITION MADE IN THE ASSESSMENT ORDER IS DELETED. 6. ON THE STRENGTH OF HONBLE GUJARAT HIGH COURT IN THE CASE OF CIT VS. MOHMED JUNED DADANI, 30 TAXMANN.COM 1, IT W AS CONTENDED BY THE LD.COUNSEL FOR THE ASSESSEE SINCE NO ADDITIO N REMAINED ON THE ISSUE FOR WHICH ASSESSMENT WAS REOPENED, THEREFORE, NO OTHER ISSUE CAN BE EXAMINED BY THE AO OR ANY OTHER ADDITION CAN BE MADE. THE HONBLE HIGH COURT HAS CONSIDERED JUDGMENT OF HONB LE DELHI HIGH COURT IN THE CASE OF RANBAXY LABORATORIES LTD. VS. , 336 ITR 136 AND CIT VS. JET AIRWAYS (I) LTD., 331 ITR 236. 7. ON THE OTHER HAND, THE LD.DR CONTENDED THAT THE AO HAS MADE ADDITION, THEREFORE, HE CAN MAKE ADDITION ON OTHER ISSUES ALSO. 8. WE HAVE CONSIDERED RIVAL CONTENTIONS AND GONE TH ROUGH THE RECORD CAREFULLY. THE LD.CIT(A) HAS DELETED ADDITI ON ON ISSUE FOR WHICH THE ASSESSMENT WAS REOPENED. MEANING THEREBY , THERE IS NO ADDITION ON THE POINT FOR WHICH THE ASSESSMENT WAS REOPENED. UNANIMOUS APPROACH OF ALL THE HONBLE HIGH COURTS I .E. HONBLE BOMBAY HIGH COURTS, DELHI HIGH COURT AND JURISDICTI ONAL HIGH COURT IN CONSTRUING THE PROVISION OF SECTION 147 IS THAT EXPRESSION ASSESS OR REASSESS SUCH INCOME AND ALSO ANY OTHER INCOME CHAR GEABLE TO TAX WHICH HAS ESCAPED ASSESSMENT AND WHICH COMES TO HIS NOTICE SUBSEQUENTLY HAS BEEN USED IN SECTION 147. THE WORDS AND AL SO EMPLOYED IN THE SECTION WOULD CONTEMPLATE THAT ANY SUCH OTHER ISSUES COME TO THE NOTICE OF THE AO WOULD BE EXAMINED IF A N ADDITION ON THE ISSUE FOR WHICH ASSESSMENT HAS BEEN REOPENED ARE MA DE. IN CASE NO ITA NO.923, 924/AHD/2019 5 ADDITIONS ARE MADE, THEN ANY OTHER SUCH ISSUE WILL NOT BE EXAMINED. IN THE PRESENT CASE, THE LD.CIT(A) HAS DELETED THE ADD ITION FOR WHICH ASSESSMENT WAS REOPENED; MEANING THEREBY, AN ADDITI ON ON ACCOUNT OF UNEXPLAINED CASH DEPOSITS IN THE AXIS BANK CANNOT B E EXAMINED AND CANNOT BE ADDED BY THE AO. THEREFORE, PUTTING RELI ANCE UPON THE JUDGMENT OF HONBLE JURISDICTIONAL HIGH COURT IN TH E CASE OF MOHMED JUNED DADANI (SUPRA), WE DELETE THE ADDITION OF RS. 4,24,500/- MADE BY THE AO. RESULTANTLY, QUANTUM APPEAL OF THE ASSESSE E IS PARTLY ALLOWED. 9. NOW WE TAKE PENALTY APPEAL I.E. ITA NO.924/AHD/2 019. 10. WITH THE HELP OF LD.REPRESENTATIVES OF THE PART IES, WE HAVE GONE THROUGH THE RECORD. AS AFOREMENTIONED, BY MAKING A DDITION OF RS.4,24,500/-, THE REVENUE HAS ALSO IMPOSED PENALTY OF RS.4,24,500/- UNDER SECTION 271(1)(C) OF THE ACT. WHILE CONSIDER ING QUANTUM APPEAL, FOR REASONS STATED HEREINABOVE, WE HAVE DEL ETED THE IMPUGNED ADDITION, AND THEREFORE, NO ADDITION EXISTS IN THE HANDS OF THE ASSESSEE SO AS TO ATTRACT VIGOUR OF PENAL PROVISION UNDER SE CTION 271(1)(C) OF THE ACT. ACCORDINGLY, PENALTY ORDER UNDER SECTION 271( 1)(C) OF THE ACT STANDS CANCELLED. 11. IN THE RESULT, QUANTUM APPEAL IS PARTLY ALLOWED ; WHEREAS PENALTY APPEAL IS ALLOWED. ORDER PRONOUNCED IN THE COURT ON 6 TH OCTOBER, 2021 AT AHMEDABAD. S D / - (WASEEM AHMED) ACCOUNTANT MEMBER S D / - (RAJPAL YADAV) VICE-PRESIDENT AHMEDABAD; DATED 6/10/2021