DCIT 20(2), V. RAJESH POPATLAL JAIN,

MA 277/MUM/2015

• Counselvise Citation: [2016] 124 COUNSELVISE.COM (IT) 4805 (ITAT-MUMBAI)
• Duration Of Justice: 8 month(s) 3 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 03-08-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: D
• Assessment Year: 2009-2010
• Appeal Filed On: 30-11-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DR MUKESH JAIN
• Assessee Lawyers: SUBODH RATNAPARAKHI
• Keywords: Sale consideration of property below Jantri Value; Capital asset; Opportunity of being heard; Corroborative evidences
• Section: 50C

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH D , MUMBAI , , BEFORE SHRI B R BASKARAN , ACCOUNTANT MEMBER AND SHRI AMIT SHUKLA , JU DICIAL MEMBER MA NO. : 277 /MUM/20 1 5 ARISING OUT OF ITA NO. 6450 /MUM/201 3 , AY 2009 - 1 0 D CIT - 20 (2), 612, PIRAMAL CHAMBER, LALBAUG, MUMBAI - 400 012 VS RAJESH POPATLAL JAIN , EXCELLENCY, 4 TH CROSS LANE, LOKHANDWALA COMPLEX, MUMBAI - 400 053 PAN : AACP J 4374 Q ( APPLICANT ) (RESPONDENT) APPLICANT BY : DR. MUKESH JAIN RESPONDENT BY : SHRI SUBODH RATNAPARAKHI /DATE OF HEAR ING : 06 - 0 5 - 201 6 / DATE OF PRONOUNCEMENT : 03 - 0 8 - 2016 ORDER : . . : PER AMIT SHUKLA , JM : T HE AFORESAID MISCELLANEOUS APPLICATION (MA) HAS BEEN FILED BY THE DEPARTMENT AGAINST ORDER , DATED 31.03.2015 IN ITA NO.6450/MUM/2013 ON THE FOLLOWING GROUNDS: - 1 . ON THE FACTS AND IN LAW, THE HON'BLE TAT HAS ERRED IN NOT CONSIDERING THE VITAL FACTS BROUGHT ON RECORD BY THE A.O. AS PER THE DEEDS OF CONVEYANCE, DATED 25.04.2007 AND 14.03.2008 AND MEMORANDUM OF UNDER STATING DATED 14.07.2008 WHICH PROVES THE FINDINGS OF THE A.O. BEYOND DOUBT THAT THE ASSESSEE HAS PURCHASED THE SAID PROPERTY KNOWN AS DWARKA ASHISH CO - OPERATIVE HOUSING SOCIETY LTD. IN HIS INDIVIDUAL CAPACITY NOT AS CHIEF PROMOTER OF THE SAID SOCIETY AND THEREFORE, HE HAS BECOME THE OWNER OF THE SAID TENANTED PROPERTY. MOREOVER, THE IMPUGNED REMAND REPORT BASED ON WHICH THE ADDITION MADE IS DELETED DOES NOT DISPROVE THE GENUINENESS OF THESE VITAL DOCUMENTS BROUGHT ON RECORD AND DULY RELIED ON BY THE AO IN THE RAJESH POPATLAL JAIN MA NO. 277 /MUM/201 5 2 ASSESSMENT ORDER, WITHOUT BRINGING ANY OTH ER CONTRARY EVIDENCE ON RECORD. 2 . ON THE FACTS AND IN LAW, THE HON'BLE ITAT HAS ERRED IN CONFIRMING THE ORDER OF THE CIT(A) ONLY ON THE BASIS OF REMAND REPORT OF THE A.C. BUT WITHOUT TAKING INTO CONSIDERATION TH E VARIOUS OTHER CLINCHING EVIDENCES BROUGHT ON RECORD BY THE A.O. AS DISCUSSED IN THE ASSESSMENT ORDER. DURING STATEMENT RECORDED ULS.131(3) OF THE ACT ON 13.12.2011 IN ANSWER TO QUESTION NOS. 3,7 & 8 THE ASSESSEE HAS CONFIRMED THAT HE HAS PURCHASED THE P ROPERTY FROM MRS. SUNITA SETH AND MRS. RANJANA SETH IN THE YEAR 2008 FOR WHICH HE HAS PAID SUM OF RS. 31,00,000/ - . THE PAYMENT IS MADE FROM HIS SAVING ACCOUNT IN VIJAYA BANK, CHIRA BAZAR BRANCH. THE PROPERTY WAS SHOWN AS ASSET IN THE BALANCE SHEET AS PREMI SES JAMBULWADI FOR THE YEAR UNDER ASSESSMENT. 3 . ON THE FACTS AND IN LAW, THE HON'BLE ITAT HAS ERRED IN CONFIRMING THE FINDINGS OF THE CIT(A) THAT THE ASSESSEE HAS ACTED AS CHIEF PROMOTER OF THE DWARKA ASHISH CO - OPERATIVE HOUSING SOCIETY LTD., ONLY ON THE BA SIS OF THE IMPUGNED REMAND REPORT OF THE A.0. BUT WITHOUT FINDING ANY FURTHER EVIDENCES ON RECORD THAT AS TO HOW THE ASSESSEE HAS BECOME THE TENANT/MEMBER/OWNER OF THE SAID SOCIETY FOR THIS PURPOSE, THEREFORE, THE SAID DECISION OF THE ITAT IS CONTRARY TO THE FACTS AND SUPPORTING EVIDENCES BROUGHT ON RECORD. 4 . THEREFORE, IT IS PRAYED THAT THE ORDER DATED 31.03.2015 MAY BE STAYED OR SET - ASIDE AND THE MATTER MAY BE ADJUDICATED AFRESH AFTER GIVING REASONABLE OPPORTUNITY OF BEING HEARD TO THE REVENUE.' 2. AFTE R CONSIDERING THE RIVAL SUBMISSIONS AND ON PERUSAL OF THE TRIBUNAL ORDER , WE FIND THAT THERE IS NO MISTAKE APPARENT FROM THE RECORD WHICH CAN BE HELD TO BE RECTIFIABLE UNDER SECTION 254(2). IN THIS CASE, THE MAIN ISSUE PERTAINED TO , WHETHER THE ASSESSEE WA S THE OWNER OF THE PROPERTY IN THE INDIVIDUAL CAPACITY OR NOT AND, WHETHER , THE SALE VALUE DETERMINED UNDER SECTION 50C COULD HAVE BEEN ADDED IN THE HANDS OF THE ASSESSEE AND T AX THE SAME UNDER THE HEAD SHORT - TERM - CAPITAL - GAIN. IN THE FIRST APPEAL, THE L D. CIT(A) AFTER CONSIDERING VARIOUS EVIDENCES AND DOCUMENTS ON RECORD CATEGORICALLY NOTED THAT , ASSESSEE IS NOT THE OWNER OF THE PROPERTY IN QUESTION AND THERE BEING NO TRANSFER OF LAND, THEREFORE, DEEMING PROVISION OF SECTION 50C HAS NO APPLICABILITY. WHI LE COMING TO THIS CONCLUSION, LD. CIT(A) HAS ALSO TAKEN NOTE OF THE REMAND REPORT OF THE AO. AFTER APPRECIATING THESE FACTS, THE RAJESH POPATLAL JAIN MA NO. 277 /MUM/201 5 3 TRIBUNAL IN PARA 5 HAS UPHELD THE ORDER OF THE CIT(A) ON THE GROUND THAT, FIRSTLY , THE ASSESSEE WAS MERELY ACTING AS CHIEF PROM OTER OF THE SOCIETY AND NOT IN THE INDIVIDUAL CAPACITY AND ALSO THERE IS A SPECIFIC FINDING BY THE LD. CI T(A) THAT THERE IS NO TRANSFER OF ANY CAPITAL ASSET BEING LAND OR BUILDING, BECAUSE TENANTS WERE IN THE POSSESSION OF THE PROPERTY AND AFTER THE PROCES S OF NEGOTIATION, THE TENANTS ONLY GETS THE RIGHTS IN THE SAID PROPERTY SUCH FINDING OF FACT AS NOTED AND APPRECIATED BY THE LD. CIT(A) HAS BEEN CONFIRMED. THUS, THE FINDING OF THE TRIBUNAL IS BASED ON APPRECIATION OF FACTS ON RECORD AS DISCUSSED BY THE LD . CIT(A) AND, THEREFORE, THERE IS NO MISTAKE APPARENT FROM THE RECORD AS CONTENDED BY THE DEPARTMENT IN THE IMPUGNED MISCELLANEOUS APPLICATION. WHAT HAS BEEN CONTENDED IN THE MA AMOUNTS TO REVIEW, WHICH IS NOT PERMISSIBLE UNDER THE LAW. THUS, THE GROUNDS R AISED IN MISCELLANEOUS APPLICATION FILED BY THE REVENUE ARE DISMISSED. 3. IN THE RESULT, MA STAND S DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 3 RD AUGUST , 2016 . SD/ - SD/ - ( ) ( ) ( B R BASKARAN ) ( AMIT SHUKLA ) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATE: 3 RD AUGUST , 2016 . / COPY TO: - 1 ) / THE APPLICANT . 2 ) / THE RESPONDENT. 3) THE CIT (A) CONCERNED ___ , MUMBAI . 4 ) THE COMMISSIONER OF INCOME TAX - CONCERNED__ , MUMBAI . 5 ) , , / THE D.R. D BEN CH, MUMBAI. RAJESH POPATLAL JAIN MA NO. 277 /MUM/201 5 4 6 ) \ COPY TO GUARD FILE. / BY ORDER / / TRUE COPY / / / , DY. / ASSTT. REGISTRAR I.T.A.T., MUMBAI * . . *CHAVAN, SR.PS