KANHAIYALAL KALYANMAL, Jaipur V. ACIT, Jaipur

ITA 978/JPR/2015

• Counselvise Citation: [2017] 130 COUNSELVISE.COM (IT) 5641 (ITAT-JAIPUR)
• Duration Of Justice: 1 year(s) 1 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-01-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2010-2011
• Appeal Filed On: 15-12-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SHAILENDRA SHARMA CIT DHK
• Assessee Lawyers: RAJEEV PANDEY
• Keywords: Sale consideration of property below Jantri Value; Opportunity of being heard
• 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 BENCHE S, JAIPUR JH HKKXPUN] YS[KK LNL; ,OA JH DQY HKKJR] U;KF;D LNL; DS LE{K BEFORE: SHRI BHAGCHAND, AM AND SHRI KUL BHARAT, JM VK;DJ VIHY LA-@ ITA NO. 978/JP/2015 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2010-11. KANHAIYALAL KALYANMAL K.K. HOUSE, BHARAT MATA PATH, JAMNALAL BAJAJ MARG, C-SCHEME, JAIPUR. CUKE VS. THE ASSTT. COMMISSIONER OF INCOME TAX, CIRCLE-6, JAIPUR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN NO. AACFK 9796 K VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : SHRI RAJEEV PANDEY (CA) JKTLO DH VKSJ LS@ REVENUE BY : SHRI SHAILENDRA SHARMA (ADDL. CIT) LQUOKBZ DH RKJH[K@ DATE OF HEARING : 30.01.2017. ?KKS'K .KK DH RKJH[K@ DATE OF PRONOUNCEMENT : 31/01/2017. VKNS'K@ ORDER PER SHRI KUL BHARAT, JM. THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF LD. CIT (A)-2, JAIPUR DATED 27.11.2015 PERTAINING TO ASSESSMENT YE AR 2010-11. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL :- ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE LD. CIT (APPEALS) ERRED IN 1. UPHOLDING THE ASSESSMENT ORDER PASSED U/ 143(3) WHI CH I UNJUST AND NOT FOLLOWING PROVISIONS OF LAW. 2. IN UPHOLDING THE ADDITION OF RS. 23,32,654/- ON ACC OUNT OF SHORT TERM CAPITAL GAIN AND TAKING AMOUNT OF SALE CONSIDE RATION TO BE THE VALUE FOR STAMP DUTY PURPOSES U/S 50C ON SALE O F PLOT NO. 39, MISSION COMPOUND, AJMER ROAD, JAIPUR RS. 65,78,244/ - INSTEAD OF ACTUAL SALE CONSIDERATION OF RS. 40 LACS AND FURTHE R ERRED IN HOLDING 2 ITA NO. 978/JP/2015 KANHAIYALAL KALYANMAL THAT THE APPELLANT FIRM HAD NOT OBJECTED TO THE VAL UATION U/S 50C OF IT ACT, 1961 AND THEREFORE NOT FOLLOWING PROVISIONS OF LAW ON ISSUE OF VALUATION. 3. IN DISREGARDING THE CRUCIAL FACT THAT 39 MISSION CO MPOUND (THE PROPERTY SOLD) WAS UNDER POSSESSION OF A PARTY AND ASSESSEE WAS UNABLE TO RESTRAIN AND EVICT THE ENCROACHER AND THE PARTY HAD PROVED BEFORE THE DISTRICT AND SESSION COURT OF HIS POSSESSION AND THEREFORE LD. CIT (A) DISREGARDED THE POINT OF DISP UTE HAD MADE ASSESSEE FIRM AGREE ON SALE OF RS. 40 LACES AND THE INVESTMENT MADE BY THE FIRM WAS RECOUPED. 4. ASSESSEE OBJECTS TO CHARGE OF INTEREST U/ 234A, 234 B AND 234C. 5. ASSESSEE RESERVES THE RIGHT TO ADD, ALTER, AMEND AN D WITHDRAW OF ANY OF THE GROUNDS. 2. BRIEFLY STATED THE FACTS ARE THAT THE CASE OF TH E ASSESSEE WAS PICKED UP FOR SCRUTINY ASSESSMENT AND THE ASSESSMENT UNDER SECTIO N 143(3) OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT) WAS FRAMED VIDE ORDER DATED 02.03.2013. WHILE FRAMING THE ASSESSMENT, THE AO C OMPUTED SHORT TERM CAPITAL GAIN AT RS. 23,32,654/- BY INVOKING PROVISIONS OF S ECTION 50C OF THE ACT. AGGRIEVED BY THIS, THE ASSESSEE PREFERRED AN APPEAL BEFORE LD . CIT (A), WHO AFTER CONSIDERING THE SUBMISSIONS PARTLY ALLOWED THE APPEAL. WHILE P ARTLY ALLOWING THE APPEAL, THE LD. CIT (A) AFFIRMED THE ADDITION MADE BY THE AO. AGGR IEVED, THE ASSESSEE HAS FILED THE PRESENT APPEAL BEFORE THIS TRIBUNAL. 3. AT THE OUTSET, THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE AO WAS NOT JUSTIFIED IN NOT REFERRING THE MATTER TO THE DEPART MENTAL VALUATION OFFICER (DVO). HE SUBMITTED THAT DURING THE ASSESSMENT PROCEEDINGS, T HE ASSESSEE HAD CLAIMED MARKET VALUE OF THE PROPERTY LESSER THAN THE VALUE ADOPTED BY THE AO. UNDER THESE FACTS, 3 ITA NO. 978/JP/2015 KANHAIYALAL KALYANMAL THE AO OUGHT TO HAVE REFERRED THE ISSUE OF VALUATIO N TO THE DVO IN TERMS OF SECTION 50C(2) OF THE ACT. 3.1. ON THE CONTRARY, THE LD. D/R SUPPORTED THE ORD ERS OF THE AUTHORITIES BELOW. 3.2. WE HAVE HEARD RIVAL CONTENTION, PERUSED THE MA TERIAL AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW. T HERE IS NO DISPUTE WITH REGARD TO THE FACT THAT THE AO HAS INVOKED THE PROVISIONS OF SECTION 50C OF THE ACT AND ADOPTED THE VALUATION AS PER STAMP VALUATION AUTHOR ITY. DURING THE COURSE OF HEARING, THE LD. COUNSEL HAS DRAWN OUR ATTENTION TO THE ASSESSMENT ORDER WHEREIN THE SUBMISSIONS OF THE ASSESSEE ARE REPRODUCED. IN THE SUBMISSIONS, THE ASSESSEE HAS CLAIMED THE LESSER MARKET VALUE OF THE PROPERTY . THEREFORE, IN OUR CONSIDERED VIEW, IN TERMS OF SECTION 50C(2) OF THE ACT, THE AO OUGHT TO HAVE REFERRED THE MATTER OF VALUATION TO THE DVO. WE, THEREFORE, SET ASIDE THE IMPUGNED ORDER AND RESTORE THE ISSUE TO THE FILE OF THE AO WITH THE DI RECTION THAT THE AO WOULD COMPUTE THE CAPITAL GAIN AFRESH AFTER OBTAINING THE VALUATI ON REPORT FROM THE DVO IN TERMS OF SECTION 50C(2) OF THE ACT. NEEDLESS TO MENTION THAT THE AO WOULD PROVIDE SUFFICIENT OPPORTUNITY OF BEING HEARD TO THE ASSESS EE. GROUNDS RAISED BY THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. 4. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER IS PRONOUNCED IN THE OPEN COURT ON 31.01.20 17. SD/- SD/- ( HKKXPUN ( DQY HKKJR ) ( BHAGCHAND) ( KUL BHARAT ) YS[KK LNL;@ ACCOUNTANT MEMBER U;KF;D LNL;@ JUDICIAL MEMBER JAIPUR DATED:- 31/01/2017. DAS/ 4 ITA NO. 978/JP/2015 KANHAIYALAL KALYANMAL VKNS'K DH IZFRFYFI VXZSF'KR@ COPY OF THE ORDER FORWARDED TO: 1. THE APPELLANT- SHRI KANHAIYALAL KALYANMAL, JAIP UR. 2. THE RESPONDENT THE ACIT, CIRCLE-6, JAIPUR. 3. THE CIT(A). 4. THE CIT, 5. THE DR, ITAT, JAIPUR 6. GUARD FILE (ITA NO. 978/JP/2015) VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASSISTANT. REGISTRAR 5 ITA NO. 978/JP/2015 KANHAIYALAL KALYANMAL