Shri Pravin Amrutlal Patel, Ahmedabad V. The Income Tax Officer, Ward-9(1), Ahmedabad

MA 120/AHD/2014

• Counselvise Citation: [2015] 124 COUNSELVISE.COM (IT) 3117 (ITAT-AHMEDABAD)
• Duration Of Justice: 10 month(s) 13 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 12-06-2015
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 05-06-2015
• Assessment Year: 2009-2010
• Appeal Filed On: 30-07-2014
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: MK SINGH
• Keywords: Sale consideration of property below Jantri Value; Cost of acquisition; Fair market value
• Section: 50C

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD B BENCH BEFORE: S H RI N.S. SAINI , ACCOUNTANT MEMBER AND SHR I RAJPAL YADAV , JUDICIAL MEMBER PRAVIN AMRUTLAL PATEL, 190 - 1085, VISHNUNAGAR, NR. SHIVSHKTI NAGAR, SABARMTI ROAD, AHMEDABAD PAN: AYMPP8142L (APPELLANT) VS ITO, WD - 9(1), AHMEDABAD (RESPONDENT) ASSESSEE BY: S H RI TUSHAR HEMANI , A.R. REVENUE BY: S H RI M.K. SINGH , SR. D.R . DATE OF HEARING : 05 - 06 - 2 015 DATE OF PRONOUNCEMENT : 12 - 06 - 2 015 / ORDER P ER : RAJPAL YADAV , JUDICIAL MEMBER : - THE PRESENT MA IS DIRECTED AT THE INSTANCE OF ASSESSEE POINTING OUT APPARENT ERROR IN THE ORDER DATED 10 TH JANUARY, 2014 PASSED IN ITA NO. 2528/AHD/2012. M.A. NO. 120/AHD/2014 (IN I T A NO . 2 5 28 / A HD/20 12) A SSESSMENT YEAR 200 9 - 10 MA NO. 120/AHD/2014 (IN I.T.A NO. 2 5 28/AHD/2012) A.Y. 2009 - 10 PAGE NO PRAV IN AMRUTLAL PATEL VS. ITO 2 2. THE BRIEF FACTS OF THE CASE ARE THAT ASSESSEE W AS OWNER AND IN POSSESSION TO THE EXTENT OF SHARE IN THE NON - AGRICULTURAL LAND AT SURVEY 603, T.P. NAGAR SCHEME NO. 22 FINAL PLOT NO. 128 REVENUE ESTATE CHANDKHEDA, DISTT. GANDHINAGAR MEASURING 2194 SQUARE METER. THIS LAND WAS SOLD BY THE ASSESSSEE ON 13 TH MAY, 2008 . HE DID NOT DISCLOSE LONG TERM CAPITAL GAIN ON THIS LAND IN THE RETURN OF INCOME. IN RESPONSE TO THE QUERY OF ASSESSING OFFICER HE COMPUTED THE LONG TERM CAPITAL GAIN AS UNDER: - SR. NO. PARTICULARS DATE OF SALE DATE OF PURCHASE SALES VA LUE PURCHASE VALUE PURCHASE INDEXED GAIN 1 LAND S. NO. 603 13.05.2008 01.04.1981 4625000 752640 4380365 244635 INDEX OF 2008 - 09:582 3 . DURING THE ASSESSMENT PROCEEDING, LD. ASSESSING OFFICER CALLED FOR THE DETAILS OF VALUATION OF THIS LAND FOR THE PUR POSE OF LEVY OF STAMP DUTY. IT WAS INFORMED TO THE ASSESSING OFFICER THAT THE DETAILS FOR THE PURPOSE OF LEVY OF STAMP DUTY ARE BEING COMPILED ONLY W.E.F. 1999. THE RATES ARE NOT AVAILA BLE OF THE PURPOSE OF INDEXATION AS ON 01 - 04 - 1981. THE RATES AS ON 0 1 - 04 - 1999 WERE INFORMED AS 80 PER SQUARE METER. THE ASSESSING OFFICER HAS WORKED OUT THE TOTAL VALUE OF THE LAND AT RS. 2,50,880/ - (80X3136 SQ. MT.). SINCE THE ASSESSEE HAS THE SHARE, THEREFORE , THE PURCHASE COST IN THE SHARE OF ASSESSEE WAS 62,072/ - . HE COMPUTED LONG TERM CAPITAL GAIN AS UNDER: - SR. NO . PARTICULAR S DATE OF SALE DATE OF PURCHASE SALES VALUE PURCHAS E VALUE PURCHAS E INDEXED GAIN 1 LAND S. NO. 603 15.05.200 8 01.04.198 1 46,25,00 0 62 , 720 3,65,030 42,59,97 0 INDEX OF 2008 - 09 :582 INDEX O F 1981 :100 MA NO. 120/AHD/2014 (IN I.T.A NO. 2 5 28/AHD/2012) A.Y. 2009 - 10 PAGE NO PRAV IN AMRUTLAL PATEL VS. ITO 3 4 . THE TRIBUNAL HAS UPHELD THIS WORKING OF THE ASSESSING OFFICER VIDE ITS ORDER DATED 10 TH JANUARY, 2014. IN THE MA , LEARNED COUNSEL FOR THE ASSESSE E CONTENDED THAT DECISION OF ITAT , CULCUTTA PASSED IN THE CASE OF NAVILLE DE NORANCHE VS. AC IT, REPORTED IN 26 SOT 35 (KOL) WAS RELIED UPON IN WHICH IT WAS CONTENDED THAT SECTION 50C CANNOT BE TAKEN INTO CONSIDERATION FOR EVALUATING THE FAIR MARKET VALUE AS ON 01 - 04 - 1981. LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT TRIBUNAL HAS COMMITTED AN A PPARENT ERROR WHILE NOT REFERRING THE ORDER OF I TAT, CULCUTTA. ON THE OTHER HAND, LD. DEPARTMENTAL REPRESENTATIVE RELIED UPON THE ORDER OF ITAT AND CONTENDED THAT NO APPARENT MISTAKE HAS BEEN COMMITTED. 5 . ON DUE CONSIDERATION OF THE FACTS AND CIRCUMS TANCES, WE ARE OF THE VIEW THAT THE POWER OF RECTIFICATION U/S. 254(2) OF THE INCOME TAX ACT CAN BE EXERCISED ONLY WHEN THE MISTAKE WH ICH IS OUGHT TO BE RECTIFIED IS AN OBVIOUS AND PATENT MISTAKE WHICH IS APPARENT FROM THE RECORD, AND NOT A MISTAKE WHICH R EQUIRES TO BE ES TABLISHED BY ARGUMENTS AND A LONG DRAWN PROCESS OF REASONING ON POI NTS ON WHICH THERE MAY CONCEIVABLY BE TWO OPINIONS. THE QUESTION BEFORE THE TRIBUNAL WAS, WHAT CO ULD BE FAIR MARKET VALUE OF THE PROPERTY AS ON 01 - 04 - 1981 FOR THE PUR POSES OF COMPUTING THE INDEXED PURCHASE PRICE WHICH IS TO BE DEDUCTED FOR WORKING OUT THE LONG TERM CAPITAL GAIN. ASSESSING OFFICER HAS NOT STRICTLY RELIED UPON ON SECTION 50C. HE HAS COLLECTED THE INFORMATION EXHIBITING THE RATES AVAILABLE IN THE NEARBY AREAS AS A CORROBO RATIVE PIECE OF EVIDENCE. THE TRIBUNAL HAS APPRECIATED IT AS A MATTER OF FACT FOR WORKING OUT THE PURCHASE PRICE OF THE A SSESSEE WHICH IS TO BE INDEXED AS ON 01 - 04 - 1981. IT IS PURELY A FACTUAL ISSUE WHERE INTERPRETATION OF ANY PROVISION ON WH ICH RATIO OF ANY LA W COULD BE APPLICABLE , WAS NOT INVOLVED. THEREFORE, IN OUR OPINION , TRIBUNAL HAS NOT MA NO. 120/AHD/2014 (IN I.T.A NO. 2 5 28/AHD/2012) A.Y. 2009 - 10 PAGE NO PRAV IN AMRUTLAL PATEL VS. ITO 4 COMMITTED ANY APPARENT MISTAKE WHICH REQUIRES RECTIFICATION; HENCE, MISCELLANEOUS A PPLICATION IS REJECTED. ORDER PR ONOUNCED IN THE OPEN COURT ON 12 - 06 - 2015 SD/ - SD/ - ( N.S. SAINI ) ( RAJPAL YADAV ) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD : DATED 12 /06 /2015 AK / COPY OF ORDER FORWARDED TO: - 1. ASSESSEE 2. REVENUE 3. CONCERNED CIT 4. CIT (A) 5. DR, ITAT, AHMEDABAD 6. GUARD FILE. BY ORDER/ , / ,