Shankar Lal Agarwala, Kolkata V. ITO, WD-36(2), KOLKATA, Kolkata

MA 105/KOL/2019

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 4704 (ITAT-KOLKATA)
• Duration Of Justice: 3 month(s) 8 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 02-08-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 19-07-2019
• Assessment Year: 2010-2011
• Appeal Filed On: 24-04-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SHANKAR HALDER
• Keywords: Sale consideration of property below Jantri Value; Capital asset
• Section: 50C

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH SMC, KOLKATA [BEFORE SHRI P.M. JAGTAP, VICE-PRESIDENT] M.A. NO. 105/KOL/2019 (ARISING OUT OF ITA NO. 1749/KOL/2014) ASSESSMENT YEAR: 2010-11 SHANKAR LAL AGARWALA.....................................................................................................APPELLANT 405, SWAIKA CENTRE, A-4, POLLOCK STREET, KOLKATA 700 001. [PAN: ACQPA 9623 H] VS ITO, WARD 36(2), KOLKATA..................................RESPONDENT 110, SHANTI PALLI, KOLKATA 700 107.. APPEARANCES BY: SHRI SUBASH AGARWAL, ADVOCATE APPEARING ON BEHALF OF THE ASSESSEE. SHRI SHANKAR HALDER, JCIT, SR. DR APPEARING ON BEHALF OF THE REVENUE. DATE OF CONCLUDING THE HEARING : AUGUST 02, 2019 DATE OF PRONOUNCING THE ORDER : AUGUST 02, 2019 ORDER PER P.M. JAGTAP, VICE-PRESIDENT BY THIS MISCELLANEOUS APPLICATION, THE ASSESSEE IS SEEKING RECALL OF THE TRIBUNALS ORDER DATED FEBRUARY 9, 2018 PASSED IN ITA NO. 1749/KOL/2014 ON THE GROUND THAT THE DECISION RENDERED BY THE TRIBUNAL THEREIN IS WITHOUT CONSIDERING THE DECISION OF HONBLE KOLKATA HIGH COURT IN THE CASE OF SUNIL KUMAR AGARWAL VS CIT 372 ITR 83. 2. WE HAVE HEARD THE ARGUMENTS OF BOTH THE SIDES AND ALSO PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. IT IS OBSERVED THAT THE ADDITION MADE BY THE AO AND CONFIRMED BY THE LD. CIT(A) TO THE TOTAL INCOME OF THE ASSESSEE BY WAY OF ASSESSING LONG TERM CAPITAL GAIN AT RS. 32,73,693/- AS AGAINST THE LONG TERM CAPITAL GAIN OF RS. 9,58,994/- DECLARED BY THE ASSESSEE WAS SUSTAINED BY THE TRIBUNAL 2 MA NO. 105/KOL/2019 ASSESSMENT YEAR: 2010-11 SHANKAR LAL AGARWALA VIDE ITS ORDER DATED FEBRUARY 9, 2018 (SUPRA) BY HOLDING THAT THE VALUE ASSESSED OR ASSESSABLE BY THE STAMP VALUATION AUTHORITY AND ADOPTED BY THE AO AS DEEMED SALE CONSIDERATION AS PER PROVISIONS OF SECTION 50C WAS NEVER DISPUTED BY THE ASSESSEE AND IN THE ABSENCE OF THE SAME, THE AO WAS NOT REQUIRED TO REFER THE VALUATION OF CAPITAL ASSET SOLD BY THE ASSESSEE TO A VALUATION OFFICER BEFORE INVOKING THE PROVISIONS OF SECTION 50C. IN THE CASE OF SUNIL KUMAR AGARWAL (SUPRA) CITED BY THE ASSESSEE IN THE PRESENT MISCELLANEOUS APPLICATION, IT WAS HELD BY THE HONBLE JURISDICTIONAL HIGH COURT AS UNDER: WE ARE OF THE OPINION THAT THE VALUATION BY THE DEPARTMENTAL VALUATION OFFICER, CONTEMPLATED UNDER SECTION 50C, IS REQUIRED TO AVOID MISCARRIAGE OF JUSTICE. THE LEGISLATURE DID NOT INTEND THAT THE CAPITAL GAIN SHOULD BE FIXED MERELY ON THE BASIS OF THE VALUATION TO BE MADE BY THE DISTRICT SUB REGISTRAR FOR THE PURPOSE OF STAMP DUTY. THE LEGISLATURE HAS TAKEN CARE TO PROVIDE ADEQUATE MACHINERY TO GIVE A FAIR TREATMENT TO THE CITIZEN/TAXPAYER. THERE IS NO REASON WHY THE MACHINERY PROVIDED BY THE LEGISLATURE SHOULD NOT BE USED AND THE BENEFIT THEREOF SHOULD BE REFUSED. EVEN IN A CASE WHERE NO SUCH PRAYER IS MADE BY THE LEARNED ADVOCATE REPRESENTING THE ASSESSEE, WHO MAY NOT HAVE BEEN PROPERLY INSTRUCTED IN LAW, THE ASSESSING OFFICER, DISCHARGING A QUASI JUDICIAL FUNCTION, HAS THE BOUNDEN DUTY TO ACT FAIRLY AND TO GIVE A FAIR TREATMENT BY GIVING HIM AN OPTION TO FOLLOW THE COURSE PROVIDED BY LAW. 3. A PERUSAL OF THE DECISION RENDERED BY THE HONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF SUNIL KUMAR AGARWAL (SUPRA) CLEARLY SHOWS THAT THE RATIO THEREOF IS SQUARELY APPLICABLE TO THE ISSUE INVOLVED IN THE ASSESSEES CASE AND THE DECISION WAS RENDERED BY THE TRIBUNAL VIDE ITS ORDER DATED FEBRUARY, 9, 2018 (SUPRA) WITHOUT TAKING INTO CONSIDERATION THE SAID BINDING PRECEDENT. WE, THEREFORE, FIND MERIT IN THE PRESENT APPLICATION FILED BY THE ASSESSEE THAT THERE IS A MISTAKE IN THE ORDER OF THE TRIBUNAL DATED FEBRUARY 9, 2018 (SUPRA) WHICH IS APPARENT FROM RECORD AND THE SAME IS REQUIRED TO BE RECTIFIED BY 3 MA NO. 105/KOL/2019 ASSESSMENT YEAR: 2010-11 SHANKAR LAL AGARWALA RECALLING THE SAID ORDER OF THE TRIBUNAL. WE ACCORDINGLY RECALL THE ORDER OF THE TRIBUNAL DATED FEBRUARY 9, 2018 (SUPRA) AND RESTORE THE APPEAL OF THE ASSESSEE TO ITS ORIGINAL NUMBER. THE REGISTRY IS DIRECTED TO FIX THE SAID APPEAL FOR HEARING AFRESH BEFORE THE REGULAR BENCH ON 05.09.2019. 4. IN THE RESULT, THE MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 2 ND AUGUST, 2019. SD/- (P.M. JAGTAP) VICE PRESIDENT DATED: 02/08/2019 BISWAJIT, SR. PS COPY OF ORDER FORWARDED TO: 1. SHANKAR LAL AGARWALA, 405, SWAIKA CENTRE, A-4, POLLOCK STREET, KOLKATA 700 001. 2. ITO, WARD-36(2), KOLKATA. 3. THE CIT(A) 4. THE CIT 5. DR TRUE COPY, BY ORDER, ASSISTANT REGISTRAR / H.O.O. ITAT, KOLKATA