AYSHABI ABDUL MAJID SHAIKH, Mumbai V. ITO 26(1)(4), Mumbai

ITA 988/MUM/2019

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 4260 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 7 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-10-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2015-2016
• Appeal Filed On: 21-02-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: UDAYA BHASKAR JAKKE
• Keywords: Sale consideration of property below Jantri Value; Opportunity of being heard
• Section: 56(2)(vii)(b); 13

Judgement Text

IN THE INCOME-TAX APPELLATE TRIBUNAL SMC BENCH MU MBAI BEFORE SHRI SAKTIJIT DEY, JUDICIAL MEMBER ITA NO.988/MUM/2019 (ASSESSMENT YEAR 2015-16) AYSHABI ABDUL MAJID SHAIKH, 301A, FARZANA APARTMENTS, NEW MILL ROAD, KURLA (WEST), MUMBAI- 400070 P AN: BMLPS1271D VS. ITO- 26(1)(4), ROOM NO. 707, C-11, 7 TH FLOOR, PRATYAKSHAKAR BHAVAN, BKC, BANDRA (E), MUMBAI-400051. APPELLANT RESPONDENT APPELLANT BY : NONE REVENUE BY : SHRI UDAYA BHASKAR JAKKE (DR) DATE OF HEARING : 06.10.2020 DATE OF PRONOUNCEMEN T : 13.10.2020 ORDER UNDER SECTION 254(1)OF INCOME TAX ACT PER SAKTIJIT DEY, JUDICIAL MEMBER; 1. THIS IS AN APPEAL BY ASSESSEE AGAINST THE ORDER DAT ED 16.10.2018 OF LD. COMMISSIONER OF INCOME TAX (APPEALS)-38, MUMBAI [FO R SHORT THE LD. CIT(A)] FOR ASSESSMENT YEAR 2015-16. 2. WHEN THE APPEAL WAS CALLED FOR HEARING, NO ONE WAS PRESENT ON BEHALF OF THE ASSESSEE TO REPRESENT THE CASE. HOWEVER, CONSIDERIN G THE NATURE OF DISPUTE, I PROCEED TO DISPOSE OF THE APPEAL EX-PARTE QUA THE A SSESSEE AFTER HEARING THE LD. DEPARTMENTAL REPRESENTATIVE AND ON THE BASIS OF MATERIALS AVAILABLE ON RECORD. 3. IN GROUND NO. 1, THE ASSESSEE HAS CHALLENGED THE AD DITION MADE OF RS. 3,12,500/- UNDER SECTION 56(2)(VII)(B) (II) OF THE INCOME TAX ACT ON ACCOUNT ITA NO. 988 MUM 2019-AYSHABI ABDUL MAJID SHA IKH 2 OF THE DIFFERENCE BETWEEN THE SALE CONSIDERATION AS PER THE SALE-DEED AND VALUE ADOPTED BY THE STAMP DUTY AUTHORITY. 4. BRIEFLY THE FACTS ARE, THE ASSESSEE IS AN INDIVIDUA L. FOR THE ASSESSMENT YEAR UNDER DISPUTE, HE FILED HIS RETURN OF INCOME ON 30. 10.2015 DECLARING TOTAL INCOME AT RS. 11,03,390/-. ON VERIFICATION OF MATER IAL ON RECORD DURING THE ASSESSMENT PROCEEDING, THE ASSESSING OFFICER NOTICE D THAT DURING THE YEAR UNDER CONSIDERATION, THE ASSESSEE HAD PURCHASED AN IMMOVABLE PROPERTY FOR A TOTAL SALE CONSIDERATION OF RS. 47,00,000/- AS PE R THE SALE-DEED. HOWEVER, THE STAMP DUTY AUTHORITY HAS VALUED THE PROPERTY AT RS. 50,12,500/- FOR STAMP DUTY PURPOSE. THEREFORE, HE CALLED UPON THE A SSESSEE TO EXPLAIN AS TO WHY THE DIFFERENTIAL AMOUNT SHOULD NOT BE TREATED A S HIS INCOME UNDER SECTION 56(2)(VII)(B) (II) OF THE ACT. THOUGH, THE ASSESSEE OBJECTED TO THE PROPOSED ADDITION, HOWEVER, REJECTING THE SUBMISSIO N OF THE ASSESSEE, THE ASSESSING OFFICER ADDED BACK THE DIFFERENTIAL AMOUN T OF RS. 3,12,500/- TO THE INCOME OF THE ASSESSEE. LD. CIT(A) ALSO SUSTAIN ED THE AFORESAID ADDITION. 5. I HAVE CONSIDERED THE SUBMISSIONS OF LD. DEPARTMENT AL REPRESENTATIVE AND PERUSED THE MATERIALS ON RECORD. 6. IT IS EVIDENT, BEFORE THE ASSESSING OFFICER THE ASS ESSEE HAS FILED A SUBMISSION ON 09.11.2017, WHEREIN, HE HAS SPECIFICA LLY RAISED OBJECTION AGAINST THE ADOPTION OF THE VALUE DETERMINED BY THE STAMP DUTY AUTHORITY. THE ASSESSEE HAD SUBMITTED THAT THE PROPERTY PURCHA SED IS MORE THAN 30 ITA NO. 988 MUM 2019-AYSHABI ABDUL MAJID SHA IKH 3 YEARS OLD. HENCE, THE CONSIDERATION PAID IS AS PER THE MARKET RATE. IT WAS SUBMITTED BY THE ASSESSEE THAT THE VALUE DETERMINED BY THE STAMP DUTY AUTHORITY IS AS PER THE READY RECKONER AND WITHOUT TAKING INTO NOTE THE CONDITION OF THE PROPERTY. THE AFORESAID SUBMISSION OF THE ASSESSEE HAS NOT AT ALL BEEN GIVEN DUE CONSIDERATION EITHER BY THE A SSESSING OFFICER OR BY LD. CIT(A). AS PER 3 RD PROVISO TO SECTION 56(2)(VII)(B)(II) IN A CASE WHE RE THE STAMP DUTY VALUE OF THE PROPERTY IS DISPUTED BY THE ASSESSEE, THE ASSESSING OFFICER HAS TO REFER THE VALUATION OF SUCH PROPERTY TO THE DEPARTMENTAL VALUATION OFFICER (DVO). IN THE FACTS OF THE PRESEN T CASE, UNDISPUTEDLY THE AFORESAID STATUTORY MANDATE HAS NOT BEEN FOLLOWED. THIS, IN MY VIEW IS CONTRARY TO THE PROVISIONS OF THE ACT. MORE SO, WHE N THE DIFFERENCE BETWEEN THE SALE CONSIDERATION AS PER SALE-DEED AND THE VAL UE DETERMINED BY THE STAMP VALUATION AUTHORITY IS COMPARATIVELY LESS I.E . ONLY AN AMOUNT OF RS. 3,12,500/-. IN SUCH CIRCUMSTANCES, THE ASSESSING OF FICER SHOULD HAVE REFERRED THE VALUATION TO THE DVO TO ASCERTAIN THE VALUE OF THE PROPERTY. THE ASSESSING OFFICER HAVING FAILED TO DO SO, I AM INCL INED TO RESTORE THE ISSUE TO THE FILE OF ASSESSING OFFICER TO REFER THE VALUATIO N OF THE PROPERTY TO THE VALUATION OFFICER IN TERMS WITH THE STATUTORY PROVI SION AND THEREAFTER DECIDE THE ISSUE AFTER DUE OPPORTUNITY OF BEING HEARD TO T HE ASSESSEE. THIS GROUND IS ALLOWED FOR STATISTICAL PURPOSES. 7. IN GROUND NO.2, THE ASSESSEE HAS RAISED THE ISSUE O F NON-GRANT OF DEDUCTION UNDER SECTION 80TTA OF THE ACT. AS IT APPEARS, THE AFORESAID ISSUE HAS BEEN ITA NO. 988 MUM 2019-AYSHABI ABDUL MAJID SHA IKH 4 RAISED BY THE ASSESSEE FOR THE FIRST TIME BEFORE TH E TRIBUNAL. HOWEVER, SINCE I HAVE RESTORED THE ISSUE RELATING TO THE VALUATION OF THE PROPERTY TO THE ASSESSING OFFICER, I DEEM IT APPROPRIATE TO ALSO RE STORE THIS ISSUE TO THE ASSESSING OFFICER FOR ADJUDICATION AFTER DUE OPPORT UNITY OF BEING HEARD TO THE ASSESSEE. THIS GROUND IS ALLOWED FOR STATISTICA L PURPOSES. 8. GROUND NO.3 BEING A GENERAL GROUND IS DISMISSED. 9. IN THE RESULT, APPEAL OF ASSESSEE IS ALLOWED FOR ST ATISTICAL PURPOSES. ORDER PRONOUNCED UNDER RULE 34(4) OF THE INCOME TAX (APPELLATE TRIBUNAL) RULES, 1963 BY PLACING IN THE NOTICE BOAR D ON 13 TH OCTOBER 2020. SD/- SAKTIJIT DEY JUDICIAL MEMBER MUMBAI, DATE: 13.10.2020 SK COPY OF THE ORDER FORWARDED TO : 1. ASSESSEE 2. RESPONDENT 3. THE CONCERNED CIT(A) 4. THE CONCERNED CIT 5. DR SMC BENCH, ITAT, MUMBAI 6. GUARD FILE BY ORDER, DY./ASST . REGISTRAR ITAT , MUMBAI