Assistant Commissioner of Income Tax ,Circle-Sagar, Sagar V. Shri Anoop Kumar Jain, Sagar

MA 15/JAB/2020

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 3368 (ITAT-JABALPUR)
• Duration Of Justice: 2 month(s) 8 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 04-09-2020
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2011-2012
• Appeal Filed On: 26-06-2020
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S K HALDAR
• Assessee Lawyers: G N PUROHIT
• Keywords: Sale consideration of property below Jantri Value; Principle of natural justice; Valuation report; Procedural lapse; Tax effect
• Section: 50C; 254(2); 2

Judgement Text

MA NO.15/JAB/2020 1 ACIT VS. ANOOP KUMAR JAIN (A.Y.2011-12) IN THE INCOME TAX APPELLATE TRIBUNAL JABALPUR BENCH, JABALPUR BEFORE S/SHRI NRS GANESAN, JUDICIAL MEMBER & SANJAY ARORA, ACCOUNTANT MEMBER MA NO.15/JAB/2020 (ARISING OUT OF I.T.A. NO. 210/JAB/2018) ASSESSMENT YEAR: 2011-12 ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE SAGAR, SAGAR VS. SHRI ANOOP KUMAR JAIN, SAGAR (PAN ABZPJ9220D) (APPELLANT ) (RESPONDENT) APPELLANT BY SHRI S.K.HALDAR, DR RESPONDENT BY SHRI G.N.PUROHIT, SR. ADV. DATE OF HEARING 04/09/2020 DATE OF PRONOUNCEMENT 04/09/2020 ORDER PER SANJAY ARORA, AM: THIS IS A MISCELLANEOUS PETITION BY THE REVENUE ARI SING OUT OF THE ORDER UNDER SECTION 254(1) OF THE INCOME-TAX ACT, 1961 ( THE ACT HEREINAFTER) DATED 12.12.2019, DISMISSING ITS CAPTIONED APPEAL U/S. 2 53 OF THE ACT FOR ASSESSMENT YEAR (AY) 2011-12. 2. THE REVENUES APPLICATION (MA) RAISES TWO INTERR ELATED GROUNDS, ON THE BASIS OF WHICH IT IS STATED THAT THE IMPUGNED ORDER IS MISTAKEN, I.E., IN TERMS OF SECTION 254(2) AND, ACCORDINGLY, IS LIABLE TO BE RE CALLED. IT MAY BE AT THE OUTSET CLARIFIED THAT THOUGH THE TAX EFFECT OF ITS APPEAL (AT RS. 28,930) WAS BELOW RS. 50 LACS, THE THRESHOLD EXTANT MONETARY LIMIT U/S. 2 68A, IT WAS, IN VIEW OF THE MA NO.15/JAB/2020 2 ACIT VS. ANOOP KUMAR JAIN (A.Y.2011-12) REVENUES GD. 2, STATING THE SAME TO HAVE BEEN FILE D AS IT FELL UNDER EXCEPTION PER PARA 10 (C) OF THE BOARD CIRCULAR 3/2018, DATED 11.07.2018, PROCEEDED WITH AND DECIDED ON MERITS BY THE TRIBUNAL. 3. WE MAY BRIEFLY ADVERT TO THE FACTS OF THE CASE. THE ONLY ISSUE ARISING IN APPEAL WAS THE ASSESSMENT OF SHORT-TERM CAPITAL GAI NS (STCG) U/S. 45 OF THE ACT, AT RS. 95,260, AS AGAINST RS. 4,760 OFFERED TO TAX BY THE ASSESSEE, I.E., ON ACCOUNT OF APPLICATION OF SECTION 50C (REFER PARAS 3 AND 3.1 OF THE ASSESSMENT ORDER). THE FIRST APPELLATE AUTHORITY ALLOWED RELIE F AS THE ASSESSEE HAD BEFORE THE ASSESSING OFFICER (AO) FURNISHED A VALUATION REPORT BY A REGISTERED VALUER DISPUTING THE CORRECTNESS OF MARKET VALUE (AS ADOPT ED FOR REGISTRATION PURPOSES), WHO HAD, HOWEVER, NOT FOLLOWED THE PRESCRIPTION OF S. 50C(2). THE IMPUGNED ADDITION RS. 95,260 (ACTUALLY, RS. 90,500) WAS THER EFORE HELD BY HIM AS NOT JUSTIFIED. THE TRIBUNAL, IN SECOND APPEAL, ENDORSED THE SAME, HOLDING THUS: 4.2 THE LD. CIT(A) HAS, IN FIRST APPEAL, ALLOWED RE LIEF ON THE GROUND THAT THE AO, WHILE MAKING THE ADDITION FOR RS.90,500/-, HAS NOT OBSERVED THE REQUIRED PROCEDURE PRESCRIBED U/S. 50C(2). THE ASSESSEE HAD, OBJECTING TO THE STAMP VALUATION SOUGHT TO BE APPLIED IN TERMS OF S. 50C, FILED A VALUATION REPOR T BY A REGISTERED VALUER. THE AO WAS, UNDER THE CIRCUMSTANCES, BOUND TO REFER THE MATTER TO THE DVO U/S. 50C(2), WHICH HE DID NOT. THE APPLICATION OF S. 50C IS, THUS, BAD IN LAW, AND WOULD NOT HOLD (REFER PARA 6.2.3 OF THE IMPUGNED ORDER). 5. WE HAVE HEARD THE PARTY BEFORE US, AND HAVE PERU SED THE MATERIAL ON RECORD. WE FIND NO INFIRMITY IN THE IMPUGNED ORDER; BOTH TH E POSITION OF LAW AS WELL AS FACTS BEING UNDISPUTED. THE SAME IS ACCORDINGLY CONFIRMED . WE DECIDE ACCORDINGLY. 4. THE REVENUE, PER ITS INSTANT MA, CLAIMS THAT THE AS SESSEE HAD NOT CATEGORICALLY ASKED THE AO TO REFER THE MATTER TO T HE DVO IN COURSE OF THE ASSESSMENT PROCEEDINGS, SO THAT THE AOS ACTION IN NOT REFERRING THE MATTER TO THE VO COULD NOT BE ASSAILED. DURING HEARING, IT WA S ALSO CONTENTED BY THE LD. DEPARTMENTAL REPRESENTATIVE (DR) THAT SECTION 50C(2 ) EMPLOYS THE WORD MAY, AND NOT SHALL, SO THAT THE AO WAS NOT DUTY BOUND TO REFER THE MATTER TO THE MA NO.15/JAB/2020 3 ACIT VS. ANOOP KUMAR JAIN (A.Y.2011-12) DVO, AS HELD BY THE TRIBUNAL AT PARA 4.2 OF ITS OR DER IN JUSTIFICATION OF ITS DECISION IN CONFIRMING THE DELETION OF THE ADDITION . 5. WE HAVE HEARD THE PARTIES, AND PERUSED THE MATER IAL ON RECORD. 5.1 OUR FIRST OBSERVATION IN THE MATTER IS THAT THE DECISION BY THE TRIBUNAL CANNOT BE REGARDED, ON THAT GROUND, AS MISTAKEN, EVEN IF A DIFFERENT VIEW IN THE MATTER COULD BE ENTERTAINED OR EVEN SAID TO BE NOT THE CORRECT VIEW. IN FACT, THE TRIBUNAL UPHELD THE ORDER IN FIRST APPEAL, DECIDED ON THE SAME BASIS, SO THAT, BY ANALOGY, I.E., GOING BY THE REVENUES STAND, THE SA ME ALSO OUGHT TO HAVE BEEN PROCEEDED AGAINST U/S. 154, AND NOT IN APPEAL U/S. 246A! THAT APART, THERE IS NO GAINSAYING THAT SECTION 50C(2) IS A RULE OF NATURAL JUSTICE, SAVING THE DEEMING FICTION PER SECTION 50C(1) OF THE CHARGE OF BEING ULTRA VIRES THE CONSTITUTION. IN THE INSTANT CASE, THERE IS NOT AS MUCH AS A REFEREN CE TO THE FURNISHING OF THE VALUATION REPORT BY THE ASSESSEE IN THE ASSESSMENT PROCEEDINGS IN THE ASSESSMENT ORDER, MUCH LESS OF THE REASON/S INFORMING THE AOS DECISION TO, NEVERTHELESS, NOT REFER THE MATTER OF VALUATION TO THE DVO. IT IS ONLY THE GROUNDS OF APPEAL BEFORE, AND THE ORDER BY, THE FIRST APPELLATE AUTHO RITY, THAT REVEALED THE FACT OF THE ASSESSEE HAVING OBJECTED TO THE IMPUGNED VALUAT ION IN ASSESSMENT. AND WHICH FACTS WERE NOT DISPUTED EITHER BEFORE THE LD. CIT(A) NOR BEFORE THE TRIBUNAL. IT IS UNDER THESE CIRCUMSTANCES THAT THE TRIBUNAL UPHELD THE DELETION OF ADDITION OF STCG AT RS. 90,500. 5.2 BEFORE PARTING, WE MAY CLARIFY, IF ONLY FOR THE SAKE OF COMPLETENESS OF THIS ORDER, THAT WE ARE ACUTELY AWARE THAT SECTION 50C(2) PRESCRIBES A PROCEDURE, AND THAT THERE IS NO VESTED RIGHT IN PROCEDURE. TWO , THE NON-OBSERVATION THEREOF WOULD AMOUNT TO A PROCEDURAL IRREGULARITY, AND NOT A ILLEGALITY, SO THAT THE MATTER WOULD REQUIRE GOING BACK TO THE STAGE WHERE THE IRR EGULARITY INTERVENED ( GUDUTHUR BROS. V. ITO [1960] 40 ITR 298 (SC); SUPDT., CENTRAL EXCISE V. MA NO.15/JAB/2020 4 ACIT VS. ANOOP KUMAR JAIN (A.Y.2011-12) PRATAP RAI [1978] 114 ITR 231 (SC); POORAN MAL V. DOI(I) [1974] 93 ITR 505 (SC)), ALL BY THE LARGER BENCHES OF THE APEX COURT, AS ALSO POINTED OUT RECENTLY IN PR. CIT V. S.G. HOLDINGS (I) PVT. LTD . (CA NO. 6144 OF 2019 (SLP (C) NO. 12126/2019, DTD. 13/8/2019). WHICH WOULD, IN THE FA CTS OF THE CASE, MEAN BACK TO THE AO FOR REFERRING THE MATTER TO THE DVO, AND CONFRONTING THE SAME TO THE ASSESSEE. IT IS, AS APPARENT, ON ACCOUNT OF THE NOM INAL DIFFERENCE THAT THE TRIBUNAL DID NOT, IN THE FACTS AND CIRCUMSTANCES OF THE CASE, DEEM IT PROPER TO DO SO. IT IS FOR THIS REASON THAT WE HAVE WHILE RECORD ING OUR FIRST OBSERVATION IN THE MATTER, STATED THAT EVEN AS A DIFFERENT VIEW IN THE MATTER COULD BE POSSIBLE, IT SHALL NOT RENDER THE TRIBUNALS ORDER AS MISTAKEN, SO AS TO BE RECALLED. WE DECIDE ACCORDINGLY. 6. IN THE RESULT, THE REVENUES MA IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON SEPTEMBER 04, 2020 SD/- SD/ - (N.R.S.GANESAN) (SANJAY ARORA) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 04/09/2020 // TRUE COPY //