ITO, Jaipur V. BIJAY KUMAR LUHARUWALA, Jaipur

ITA 99/JPR/2015

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 5082 (ITAT-JAIPUR)
• Duration Of Justice: 1 year(s) 7 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-09-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2010-2011
• Appeal Filed On: 27-01-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: O P BATEJA CIT DHK
• Assessee Lawyers: KISHANLAL
• Keywords: Sale consideration of property below Jantri Value; Fair market value; Tax effect
• Section: 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 DQY HKKJR] U;KF;D LNL; ,OA JH FOE FLAG ;KNO ] YS[KK LNL; DS LE{K BEFORE: SHRI KUL BHARAT, JM & SHRI VIKRAM SINGH YAD AV, AM VK;DJ VIHY LA-@ ITA NO.99/JP/15 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2010-11 THE INCOME TAX OFFICER, WARD 4(2), JAIPUR CUKE VS. SHRI BIJAY KUMAR LUHARUWALA, 302 GOLDEN TIMES CENTRAL SPINE, VIDHYADHAR NAGAR, JAIPUR LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN NO. AAYPL 9299 G VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : SHRI KISHANLAL AR JKTLO DH VKSJ LS@ REVENUE BY : SHRI O.P. BATEJA (ADDL. CIT ) LQUOKBZ DH RKJH[K@ DATE OF HEARING : 23.09.201623 ?KKS'K .KK DH RKJH[K @ DATE OF PRONOUNCEMENT : /09/2016. VKNS'K@ ORDER PER SHRI VIKRAM SINGH YADAV, A.M. THIS IS AN APPEAL FILED BY THE REVENUE AGAINST THE ORDER OF LD. CIT(A)-II, JAIPUR DATED 17.11.2014 WHEREIN THE REVENUE HAS TAK EN FOLLOWING GROUNDS OF APPEAL: (1) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE THE LD. CIT(A) HAS ERRED IN: (I) THE AO MADE ADDITION ON ACCOUNT OF CAPITAL GAIN AS PER COPY OF SALE DEED THE VALUE OF PROPERTY SOLD HAS BEEN ASSESSED BY THE SUB-REGISTRAR AT RS. 86,48,855/- WHEREAS THE ASSESSEE HAS SHOWN S ALE CONSIDERATION AT RS.18,00,000/- ONLY. DURING THE ASSESSMENT PROCEEDI NGS IT IS NOTICED THAT AS PER SALE DEED, SALE CONSIDERATION IS RS.33,51,0 00/- AND THERE TWO SELLERS, ONE IS THE ASSESSEE AND OTHER MR. RAJ KUMA R SINGHANIA. DESPITE GIVING ENOUGH OPPORTUNITIES THE ASSESSEE HAS NOT SUBMITTED THE REQUISITE DETAILS IN RESPECT OF SHARE OF SHRI SING HANIA AND ALSO NOT SUBMITTED THE BANK ACCOUNT AND ITR OF SHRI SINGHANI A SO APPLICABILITY OF ITA NO. 99/JP/15 ITO, WARD 4(2), JAIPUR VS. SH. BIJAY KUMAR LUHARUWA LA, JAIPUR 2 PROVISIONS CAPITAL GAINS IN THE HANDS OF MR. SINGHA NIA COULD NOT BE EXAMINED. SINCE IN THE SALE DEED THE FIRST NAME O F THE ASSESSEE AND HIS PAN WERE MENTIONED AND NO OTHER DETAILS OF OTHER C O-OWNER WAS FILED. THEREFORE THE TAXABILITY OF CAPITAL GAIN WAS CONSID ERED IN THE HANDS OF THE ASSESSEE. SINCE THE ASSESSEE HAS NOT SHOWN FUL L SALE CONSIDERATION OF THE PROPERTY SOLD AS PER PROVISIONS OF SECTION 50C OF THE ACT, 1961 THEREFORE, ADDITION ON ACCOUNT OF DIFFERENCE IN SA LE CONSIDERATION WAS MADE AND ADDED TO THE TOTAL INCOME OF THE ASSESSEE AND CHARGED CAPITAL GIN THEREON. THE LD. CIT(A) HAS DIRECTED THE APPELLANTS SHARE IN THE PROPERTY SHOULD BE TREATED AT 80% HOLDING THAT IN THE SALE DEED IT IS CLEAR MENTIONED THAT THERE ARE TWO CO-OWNERS. MERELY BECAUSE THE APPELL ANT IS UNABLE TO FURNISH THE RETURN OF INCOME OF THE OTHER CO-OWNER WILL RESULT IN TAXING THE ENTIRE CAPITAL GAIN IN THE HANDS OF THE ASSESSE E. HE ALSO HELD THAT THERE WAS NO REASON TO PREVENT THE AO TO INFORM THE AO OTHER CO-OWNER TO TAKE NECESSARY ACTION. (II) THE LD. CIT(A) DIRECTED TO ADOPT FMV OF THE PR OPERTY AS ON 01.04.1981 AT RS.50,000/- INSTEAD OF RS. 37,000/- (III) THE LD. CIT(A) DIRECTED TO TAKE COST OF IMPRO VEMENT OF THE PROPERTY AS ON 01.04.1981 AT RS. 50,000/- INSTEAD OF NIL. 2. WE HAVE HEARD THE LD DR AND PERUSED THE MATERI AL AVAILABLE ON THE RECORD IN RESPECT OF THE ABOVE APPEAL. IT IS OBSERV ED THAT THE DEMAND/ TAX EFFECT IN THIS RS. 4,25,586/-. UNDER THE POWERS VES TED BY SEC. 268A(1) OF THE I.T. ACT, CBDT HAS ISSUED CIRCULAR NO.21 OF 2015 DA TED 10.12.2015(F.NO.279/MISC. 142/2007-ITJ(PT) INSTRUCT ING THE AUTHORITIES BELOW THAT DEPARTMENTAL APPEAL SHOULD N OT BE FILED BEFORE ITAT WHERE THE DEMAND/TAX EFFECT DOES NOT EX CEED RS.10 LACS. THE CIRCULAR SPECIFICALLY MENTIONS THAT IT W ILL BE APPLICABLE TO ALL PENDING ITA NO. 99/JP/15 ITO, WARD 4(2), JAIPUR VS. SH. BIJAY KUMAR LUHARUWA LA, JAIPUR 3 APPEALS ALSO. THUS, THE INSTANT APPEAL FILED BY TH E REVENUE IS COVERED BY THE SAID CIRCULAR. 2.1. SUBJECT TO SOME EXCEPTIONS, IT IS FURTHER DIR ECTED BY CBDT THAT ALL THE DEPARTMENTAL APPEALS PENDING BEFORE ITAT WHERE THE DEMAND/TAX EFFECT IS NOT EXCEEDING RS. 10 LACS SHOULD BE EITHER WITHDRAWN OR NOT PRESSED BY THE DEPARTMENTAL REPRESENTATIVES AT THE TIME OF HEARING . 2.2 THE REVENUE APPEAL IS NOT COVERED BY ANY EXC EPTIONS MENTIONED IN THE SAID CBDT CIRCULAR. SINCE THE TAX DEMAND IN DISPUTE IN THE DEPARTMENTAL APPEAL DOES NOT EXCEED THE LIMIT OF RS. 10 LACS AS SET OUT BY CBDT, SUCH APPEALS ARE NOT MAINTAINABLE. ACCORDINGLY, THE LD. DR SUBMITTED THAT THIS APPEAL OF THE DEPARTMENT MAY BE TREATED AS NOT PRESSED/WITHDRAWN AND DISMISSED IN VIEW OF THE CBDT CIRCULAR. IN THE RESULT THE APPEAL FILED BY THE REVENUE IS DI SMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON /09 /2016. ( KUL BHARAT ) (VIKRAM SINGH YADAV) U;KF;D LNL;@ JUDICIAL MEMBER YS[KK LNL;@ ACCOUNTANT MEMBER JAIPUR DATED:- / 09/2016 PILLAI VKNS'K DH IZFRFYFI VXZSF'KR@ COPY OF THE ORDER FORWARDED TO: ITA NO. 99/JP/15 ITO, WARD 4(2), JAIPUR VS. SH. BIJAY KUMAR LUHARUWA LA, JAIPUR 4 1. VIHYKFKHZ@ THE APPELLANT- THE INCOME TAX OFFICER, WARD 4(2), J AIPUR 2. IZR;FKHZ@ THE RESPONDENT- SHRI BIJAY KUMAR LUHARUWALA, JAIPUR 3. VK;DJ VK;QDR@ CIT II, JAIPUR 4. VK;DJ VK;QDRVIHY@ THE CIT(A)-II, JAIPUR 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR 6. XKMZ QKBZY@ GUARD FILE (ITA NO.99 /JP/2015) VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASSISTANT. REGISTRAR