Satyen Suresh Gathani, Pune V. Income-tax Officer, Ward - 6(1), Pune

ITA 958/PUN/2018

• Counselvise Citation: [2019] 115 COUNSELVISE.COM (IT) 3378 (ITAT-PUNE)
• Duration Of Justice: 1 year(s) 5 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-11-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 04-09-2019
• Assessment Year: 2012-2013
• Appeal Filed On: 28-05-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: ARISES OUT OF PASSED
• Keywords: Sale consideration of property below Jantri Value; Capital asset; Cost of acquisition
• Section: 50C; 2

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH SMC, PUNE BEFORE SHRI R.S. SYAL, VICE PRESIDENT . ., . / ITA NO. 958/PUN/2018 / ASSESSMENT YEAR : 2012-13 MR. SATYEN SURESH GATHANI, 299, SOMWAR PETH, PUNE 411 011 PAN : ABJPG1675P VS. ITO, WARD-6(1), PUNE (APPELLANT) (RESPONDENT) / ORDER PER R.S.SYAL, VP : THIS APPEAL BY THE ASSESSEE ARISES OUT OF THE ORDER PASSE D BY THE COMMISSIONER OF INCOME-TAX (APPEALS)-8, PUNE ON 02-02-2018 IN RELATION TO THE ASSESSMENT YEAR 2012-13. 2. THE ONLY ISSUE RAISED IN THIS APPEAL IS AGAINST THE CONFIRMATION OF ADDITION BY TREATING STAMP VALUE AS FULL VALUE OF CONSIDERATION IN TERMS OF SECTION 50C OF THE ACT. APPELLANT BY SHRI H.G. DHARMATHIKARI & SHRI BHALERAO RESPONDENT BY SHRI ABHIJIT CHAUDHURI DATE OF HEARING 15-11-2019 DATE OF PRONOUNCEMENT 15-11-2019 ITA NO.958/PUN/2018 SATYEN S. GATHANI 2 3. BRIEFLY STATED, THE FACTS OF THE CASE ARE THAT THE ASSESSE E SOLD A PIECE OF LAND FOR RS.24.00 LAKH. SHORT TERM CAPITAL G AIN WAS COMPUTED AT RS.5,764/- BY ADOPTING RS.23,94,326/- A S COST OF ACQUISITION. THE ASSESSING OFFICER (AO) ADOPTED STAMP VALUE AS FULL VALUE OF CONSIDERATION AT RS.51,92,000/- AS A GAINST THE SALE CONSIDERATION DECLARED AT RS.24.00 LAKH, WHICH RESU LTED INTO AN ADDITION OF RS.27,92,000/-. THE ASSESSEES CLAI M THAT THE LAND WAS HELD AS STOCK IN TRADE WAS NOT ACCEPTED IN VIEW OF THE FACT THAT THE SAME WAS SHOWN AS FIXED ASSET AND FURTHE R THAT THE PROVISIONS OF SECTION 43AC, ADOPTING THE STAMP VALUE, APPLY TO THE SALE OF LAND HELD OTHERWISE THAN AS A CAPITAL ASS ET. THE LD. CIT(A) APPROVED THE VIEW TAKEN BY THE AO. 4. HAVING HEARD BOTH THE SIDES AND GONE THROUGH THE RELEVA NT MATERIAL ON RECORD, IT IS NOT DISPUTED THAT THE PROPERTY IN QUESTION WAS HELD AS CAPITAL ASSET AND NOT AS STOCK IN TRADE. IN THIS VIEW OF THE MATTER, SECTION 50C GETS ATTRACTED, AS PER THE MANDATE OF WHICH THE STAMP VALUE IS TO BE SUBSTITUTED IN PLACE OF ACTUAL SALE CONSIDERATION, BEING, THE FULL VALUE OF CONSIDERATION, IN CASE THE FORMER IS MORE THAN THE LATTER. T HE LD. AR SUBMITTED THAT EVEN THOUGH STAMP VALUE WAS CORRECTLY RECORDED BY THE AO BUT THE SAME DID NOT REPRESENT THE TRUE ITA NO.958/PUN/2018 SATYEN S. GATHANI 3 VALUE AND THE MATTER OUGHT TO HAVE BEEN REFERRED TO THE DEPARTMENTAL VALUATION OFFICER (DVO). IN THIS HUE, HE MADE A PRAYER FOR INVOKING THE PROVISIONS OF SUB-SECTION (2) OF S ECTION 50C AND REQUESTED FOR REMAND OF THE MATTER TO THE AO FOR MAKING A REFERENCE TO THE DVO FOR DETERMINING THE FAIR MARK ET VALUE OF THE PROPERTY AND THEN SUBSTITUTING THE SAME, AFTER ENTERTAINING THE OBJECTIONS FROM THE ASSESSEE, AS FULL VALUE OF CONSIDERATION IN THE COMPUTATION OF CAPITAL GAIN. THE LD. DR DID NOT RAISE ANY SERIOUS OBJECTION TO THE SAME. IN VIEW OF THE FOREGOING FACTS AND CONCURRING WITH THE COMMON SUBMISSIONS, I SET-ASIDE THE IMPUGNED ORDER AND REMIT THE MATTER TO THE F ILE OF THE AO WITH A DIRECTION TO SEEK REPORT OF THE DVO IN TERMS OF SECTION 50C(2) OF THE ACT AND THEREAFTER COMPUTE THE AMOUN T OF CAPITAL GAIN AFTER ALLOWING REASONABLE OPPORTUNITY OF HEARING TO THE ASSESSEE. 5. IN THE RESULT, THE APPEAL IS ALLOWED FOR STATISTICAL PURPOSES . ORDER PRONOUNCED IN THE OPEN COURT ON 15 TH NOVEMBER, 2019. SD/- (R.S.SYAL) / VICE PRESIDENT PUNE; DATED : 15 TH NOVEMBER, 2019 ITA NO.958/PUN/2018 SATYEN S. GATHANI 4 / COPY OF THE ORDER IS FORWARDED TO : 1. / THE APPELLANT; 2. / THE RESPONDENT; 3. ( ) / THE CIT (APPEALS)-8, PUNE 4. THE PR.CIT- 3, PUNE 5. , , SMC / DR SMC, ITAT, PUNE; 6. / GUARD FILE. // TRUE COPY // / BY ORDER, // TRUE COPY // SENIOR PRIVATE SECRETARY , / ITAT, PUNE DATE 1. DRAFT DICTATED ON 15-11-2019 SR.PS 2. DRAFT PLACED BEFORE AUTHOR 15-11-2019 SR.PS 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER -- JM 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER. -- JM 5. APPROVED DRAFT COMES TO THE SR.PS/PS SR.PS 6. KEPT FOR PRONOUNCEMENT ON SR.PS 7. DATE OF UPLOADING ORDER SR.PS 8. FILE SENT TO THE BENCH CLERK SR.PS 9. DATE ON WHICH FILE GOES TO THE HEAD CLERK 10. DATE ON WHICH FILE GOES TO THE A.R. 11. DATE OF DISPATCH OF ORDER. *