Shri Asit Rameshchandra Shah, Ahmedabad V. The Jt. CIT, Range-2, Ahmedabad

MA 319/AHD/2017

• Counselvise Citation: [2018] 124 COUNSELVISE.COM (IT) 6385 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 month(s) 28 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 17-04-2018
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2011-2012
• Appeal Filed On: 20-12-2017
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: SAURABH SINGH
• Assessee Lawyers: M J SHAH
• Keywords: Capital asset; Retrospective amendment; Additional evidence; Fair market value; Valuation report

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD A BENCH AHMEDABAD BEFORE, SHRI S. S. GODARA, JUDICIAL MEMBER AND SHRI PRADIP KUMAR KEDIA, ACCOUNTANT MEMBER M. A. NO. 319/AHD/2017 (IN ITA NO. 2804/AHD/2014 ) (ASSESSMENT YEAR: 2011-12) SHRI ASIT RAMESHCHANDRA SHAH 2396/, MAKERIWAD, NR. H. P. PETROL PUP, NR. ZAKARIA MASJID, RLIEF ROAD, AHMEDABAD 380001 APPELLAN T VS. THE JT. CIT, RANGE-2, AHMEDABAD RESPONDENT PAN: ADIPS1552N /BY ASSESSEE : SHRI M. J. SHAH, A.R. /BY REVENUE : SHRI SAURABH SINGH, SR. D.R. /DATE OF HEARING : 19.03.2018 /DATE OF PRONOUNCEMENT : 17.04.2018 ORDER PER S. S. GODARA, JUDICIAL MEMBER THIS ASSESSEES MISCELLANEOUS APPLICATION FILED U/S. 254(2) OF THE INCOME TAX ACT, 1961, IN SHORT THE ACT SEEKS TO RECALL/RE CTIFY OUR ORDER DATED 14.09.2017 REJECTING HIS LEGAL GROUND CHALLENGING B OTH THE LOWER AUTHORITIES M.A. NO. 319/AHD/17 [SHRI ASIT R. SHAH VS. JCIT ] A.Y. 2011-12 - 2 - ACTION NOT ACCEPTING THE REGISTERED VALUERS REPORT U/S.55A(A) OF THE ACT. OUR FINDINGS IN QUESTION ON THE INSTANT ISSUE READ AS U NDER: 4. THE ASSESSEE NEXT PLEA IS THAT THE ASSESSING OF FICER OUGHT NOT TO HAVE DISTURBED HIS REGISTERED VALUERS REPORT WITHOUT MA KING SECTION 55A REFERENCE TO THE DVO. CASE LAW (2014) 367 ITR 238 (GUJ) CIT VS. GAURANGINIBEN S. SHODHAN INDIVIDUAL IS ALSO REFERRED TO BUTTRESS THE ABOVE L EGAL ARGUMENTS. 5. MR. DIVATIA THEREAFTER REFERS TO ASSESSEES ADDI TIONAL EVIDENCE APPLICATION DATED 16.11.2016 SEEKING TO HIGHLIGHT LOCATION OF T WO PROPERTIES BY WAY OF VARIOUS DIAGRAMS IN COLOURED VERSION AND THE FACT THAT THE SAMPLE PROPERTY PLOT NO.840 CAME UNDER THE URBAN CEILING LAW WHEREAS THERE WAS NO SUCH RESTRICTION IN THE IMPUGNED CAPITAL ASSET SOLD. HE TAKES US TO PAPER BOOK PAGES 469, 470 TO 472 IN PAPER BOOK. THE ASSESSING OFFICER ALSO APPEARS TO HAVE ATTACHED RELEVANT SKETCH OF THE TOWN PLANNING SCHEME, ELLIS BRIDGE INDICATING A SSESSEES CAPITAL ASSET, THE ABOVE SAMPLE PROPERTY. MR. DIVATIAS CASE IS THAT ALL THIS MATERIAL SUFFICIENTLY INDICATES THAT BOTH THE LOWER AUTHORITIES HAVE ERRE D IN DISTURBING ASSESSEES VALUATION REPORT IN QUESTION. 6. LEARNED DEPARTMENTAL REPRESENTATIVE ON THE OTHER HAND DRAWS STRONG SUPPORT FROM BOTH THE LOWER AUTHORITIES ACTION UND ER CHALLENGE ARRIVING AT THE IMPUGNED FAIR MARKET VALUE. HE TAKES US TO THE REL EVANT ANNEXURE ATTACHED WITH THE ASSESSMENT ORDER INDICATING INTER ALIA THE PROPERTY IN QUESTION TO BE SITUATED ON ROAD HAVING WIDTH OF 40FT. ONLY AS AGAINST THE SAMP LE PROPERTY 840 SITUATED ON MAIN ASHRAM ROAD HAVING WIDTH OF 30MTRS. HIS CASE IS THAT THE ASSESSEES REGISTERED VALUER STATED THIS ASHRAM ROADS WIDTH T O BE 30FT. ONLY. HE THEN ONCE AGAIN ASKS US TO STAY BACK ON THE ABOVE TOWN PLANNI NG SCHEME ANNEXURE INDICATING ASSESSEES CAPITAL ASSET TO BE ADJOINING A CREMATIO N GROUND HAVING VERY SERIOUS DEPRECIATING EFFECT IN VALUATION. HE THEN SUBMITS THAT THE CAPITAL ASSET IN QUESTION HAD SEEN PARTITION AS WELL. HE ACCORDINGLY SEEKS T O CONFIRM BOTH THE LOWER AUTHORITIES ACTION REJECTING ASSESSEES VALUERS R EPORT. 7. LEARNED DEPARTMENTAL REPRESENTATIVE THEREAFTER C OMES TO ASSESSEES TWIN LEGAL ARGUMENTS (SUPRA). HE PLEADS THAT THE ASSESS ING OFFICER HAD RIGHTLY REJECTED HIS VALUATION SINCE THE CASE FELL UNDER SECTION 55A (B) OF THE ACT THEN CLAUSE (A) THEREIN. AND THAT THERE IS NO EMBARGO UPON AN ASSE SSING OFFICER IN SUCH A CASE TO COMPULSORILY MAKE A REFERENCE TO THE DVO. WE INVIT ED HIS ATTENTION TO ASSESSEES ADDITIONAL EVIDENCE (SUPRA). HIS CASE IS THAT BOTH THE LOWER AUTHORITIES HAVE RIGHTLY TREATED PLOT NO.840 IN THE SAME SCHEME TO BE THE BE NCHMARK IN DECIDING FAIR MARKET VALUE OF THE CAPITAL ASSET IN QUESTION AS ON 01.04. 1981. HE THEREFORE SEEKS TO REJECT ASSESSEES SUBMISSIONS ON MERITS AS WELL. 8. WE HAVE GIVEN OUR THOUGHTFUL CONSIDERATION TO RI VAL SUBMISSIONS. RELEVANT FINDINGS PERUSED. THERE IS HARDLY ANY DISPUTE ABOU T THE ASSESSEE HAVING JOINTLY SOLD THE IMPUGNED CAPITAL ASSET FP NO. 850/1 MEASUR ING 2493SQ.MTRS. TPS 3/6, BANKERS BUNGALOW, NEAR GANDHIKUNJ SOCIETY, OPPOSIT E KARVE COLLEGE, NUTAN SARVODAYA SOCIETY, PRITAMNAGAR, KOCHRAB, PALDI, AHM EDABAD IN THE RELEVANT PREVIOUS YEAR. HIS REGISTERED VALUERS REPORT IN P AGES 3 TO 11 OF THE PAPER BOOK STATES AT PAGE 10 THAT HE HAD HIMSELF CONSIDERED PL OT NO.840 HAVING AREA MEASURING M.A. NO. 319/AHD/17 [SHRI ASIT R. SHAH VS. JCIT ] A.Y. 2011-12 - 3 - 248SQ.MTR. @RS.484.10 PER SQ.MTR. FOR ARRIVING AT T HE IMPUGNED VALUATION AS ON 01.04.1981 TO BE @RS.700/- PER SQ.MTR. SITE PLAN A VAILABLE IN THE CASE FILE MAKES IT CLEAR THAT ASSESSEES PLOT IS SITUATED AT A DISTANC E FROM THE MAIN ASHRAM ROAD WHEREAS PLOT NO. 840(SUPRA) IS ON THE MAIN ROAD ITS ELF HAVING 30.5MTRS. WIDTH. BOTH THESE PLOTS ARE IN THE SAME TOWN PLANNING SCHE ME. THEIR SIZE (SUPRA) IS ALSO BETWEEN 2000 TO 3000 SQ.MTRS. IT HAS COME ON RECOR D THAT THE LATTER PLOT WAS SOLD ON 01.10.1981 THOUGH A REGISTERED SALE DEED FOR RS. 484.10/- PER SQ.MTR. DESPITE THE FACT THAT IT WAS SITUATED ON THE MAIN ROAD WHEREAS ASSESSEES CAPITAL ASSET FALLS MUCH INTERIOR THAN THE SAID ROAD. WE THEREFORE SEE NO REASON OR JUSTIFICATION ON ASSESSEES PART IN SEEKING TO ENHANCE FAIR MARKET V ALUE OF HIS PLOTS SOLD TO RS.700/- DESPITE THE FACT THAT THE SAME LOCATION SUFFERS FRO M VARIOUS DEPRECIATING FACTORS AS WELL AS ITS DISTANCE FROM MAIN ROAD SEEMING TO BE A T LEAST BETWEEN 500 TO 1KMTR. THESE CRUCIAL FACTS MAKE IT CLEAR THAT THE ASSESSEE S PLOT DID NOT ENJOY MUCH COMMERCIAL VALUE SINCE SANDWICHED BETWEEN SABARMATI RIVER ON THE ONE HAND AND ASHRAM ROAD ON THE OTHER. THERE IS FURTHER NO MATE RIAL THAT THE SAID PLOTS VALUE IN ANYWAY SUFFERED BECAUSE OF URBAN LAND CEILING LA W OR ITS EFFECT THEREUPON. WE THEREFORE DO NOT FIND ANY JUSTIFICATION IN TRAVELLI NG FURTHER TO ADOPT VALUATION OF NATRAJ OR G. S. SHODHAN SITUATED AT MUCH FAR DIST ANCE IN A DIFFERENT LOCALITY & SCHEME THAN THE ABOVE SAMPLE PLOT. THE ASSESSEES ASSERTIONS IN THIS REGARD BASED ON COLOURED MATERIAL AND OTHER DOCUMENTS ARE ACCORD INGLY REJECTED. 9. THE NEXT QUESTION THAT ARISES ON MERITS FOR OUR APT ADJUDICATION IS AS TO WHETHER BOTH THE LOWER AUTHORITIES HAVE CORRECTLY V ALUED ASSESSEES PLOT @RS.250/- ONLY THAN THE ABOVE SAMPLE PROPERTY SOLD ON 01.10.1 981 @RS.484.10/- PER SQ.MTR. WE RELY ON OUR ABOVE DISCUSSION TO OBSERVE THAT BOT H THESE PLOTS ADMITTEDLY FORM PART OF THE SAME SCHEME WHEREIN ONE OF THEM IS SITU ATED ON MAIN ASHRAM ROAD AND THE OTHER ONE FALLS IN RESIDENTIAL AREA AS ON 01.04 .1981. THE FORMER PROPERTY THEREFORE CAN BE HELD TO BE HAVING COMMERCIAL POTEN TIAL WHEREAS ASSESSEES PLOT IS IN PURELY RESIDENTIAL AREA HAVING ITS ON VALUE. WE THEREFORE CONSIDER IT AS AN APPROPRIATE INSTANCE TO OBSERVE THAT ALTHOUGH THE A SSESSEES VALUATION @RS.700/- CANNOT BE ACCEPTED IN TOTO SO ARE BOTH THE LOWER AU THORITIES FINDINGS DRASTICALLY REDUCING THE ABOVE VALUATION TO RS.250/- ONLY WITHO UT ANY CONCRETE EVIDENCE. ALL THIS MAKES US TO OBSERVE THAT APPLICATION OF THUMB RULE IN SUCH A CASE WOULD MEET LARGER INTEREST OF JUSTICE. WE THEREFORE TAKE AVER AGE OF SALE PRICE OF RS.484.10/- PER SQ.MTR. AND THE PRICE IN QUESTION TAKEN BY THE LOWER AUTHORITIES @RS.250/- ; COMING TO RS.367.05 PER SQ.MTR. AS THE APPROPRIATE FAIR MARKET VALUE OF THE ASSESSEES PROPERTY AS ON 01.04.1981. WE MAKE IT CLEAR THAT OUR INSTANT ADJUDICATION IS BASED ON THE ABOVE PECULIAR FACTS A ND CIRCUMSTANCES SHALL NOT BE TREATED AS A PRECEDENT. THE ASSESSING OFFICER SHAL L ACCORDINGLY FINALIZE CONSEQUENTIAL COMPUTATION. THE ASSESSEE THEREFORE P ARTLY SUCCEEDS ON MERITS. 10. WE NOW ADVERT TO ASSESSEES TWIN LEGAL ARGUMENT S. WE DO NOT FIND ANY MERIT IN EITHER OF THEM. THE ASSESSEES FIRST PLEA IS THAT THE ASSESSING OFFICER COULD NOT HAVE INTERFERED IN REGISTERED VALUERS REPORT U /S.55A(A) OF THE ACT SINCE THE AMENDMENT IN QUESTION AUTHORIZING HIM TO PROCEED ON SUCH BASIS W.E.F. 01.07.2012 DOES NOT APPLY WITH RETROSPECTIVE EFFECT. WE HOWEV ER NOTICE THAT CLAUSE(B) SUFFICIENTLY ANSWERS ASSESSEES FORMER LEGAL PLEA B EING INCLUSIVE IN NATURE SINCE HAVING CRUCIAL EXPRESSION IN ANY OTHER CASE. SAM E IS THE OUTCOME OF ASSESSEES LATTER LEGAL ARGUMENT THAT IT WAS MANDATORY FOR THE ASSESSING OFFICER TO MAKE REFERENCE TO THE DVO IN VIEW OF OUR SUFFICIENT DISC USSION ON MERITS SUPPORTING BOTH M.A. NO. 319/AHD/17 [SHRI ASIT R. SHAH VS. JCIT ] A.Y. 2011-12 - 4 - THE LOWER AUTHORITIES ACTION ON MERITS SINCE THE A BOVE REGISTERED VALUERS REPORT DID SUFFER FROM APPARENT IRREGULARITIES. THE ASSES SEES TWO LEGAL CONTENTIONS ARE THEREFORE REJECTED. IT CASE LAW (SUPRA) IS NOT FOU ND TO BE APPLICABLE IN FACTS OF THE INSTANT CASE AS THEIR LORDSHIPS DEALT WITH AN INSTA NCE OF APPLICATION OF SECTION 55A(A). WE THEREFORE DECLINE ASSESSEES LEGAL ARGU MENTS. ITS MAIN CASE ITA NO.2804/AHD/2014 PARTLY SUCCEEDS ON MERITS. 2. LEARNED COUNSEL REPRESENTING ASSESSEE VEHEMENTLY CONTENDS DURING THE COURSE OF HEARING THAT OUR ABOVE FINDINGS HAVE NOT CONSIDERED HONBLE JURISDICTIONAL HIGH COURTS JUDGMENT IN GAURANGINIB EN S. SHODHANS CASE (SUPRA) AS PER LAW. MR. SHAH URGES US TO ACCEPT ASSESSEES INSTANT RECTIFICATION IN TUNE WITH HONBLE JURISDICTIONAL HIGH COURTS JUDGMENT R EJECTING APPLICATION OF SECTION 55A(A) OF THE ACT IN GIVEN FACTS AND CIRCUMSTANCES OF THE CASE. LEARNED DEPARTMENTAL REPRESENTATIVE ON THE OTHER HAND POINT S OUT THAT THE ASSESSEE HAS FIRST OF ALL CHANGED HIS COUNSEL AFTER OUR ORDER DA TED 14.09.2017. LEARNED DEPARTMENTAL REPRESENTATIVES CASE THEREFORE IS THA T THERE IS NO CLARITY AS TO WHAT HAD TRANSPIRED DURING THE COURSE OF HEARING IN THE MAIN CASE. IT IS FURTHER STATED THAT THE ASSESSEES REGISTERED VALUERS REPORT DID NOT STATE THE TRUE FACTS WHICH MADE BOTH THE LOWER AUTHORITIES TO REJECT THE SAME. THE REVENUE LASTLY SUBMITS THAT OUR ORDER SUFFERS FROM NO MISTAKE APPARENT ON RECORD SO AS TO OBSERVE TO BE RECTIFIED AS PER SECTION 254 OF THE ACT. 3. WE HAVE GIVEN OUR THOUGHTFUL CONSIDERATION TO RI VAL SUBMISSIONS. WE FIRST OF ALL FIND THAT HONBLE BOMBAY HIGH COURTS JUDGMENT (1993) 203 ITR 497 (BOMBAY) CIT VS. RAMESH ELECTRIC AND TRADING COMPANY MAKES IT CLEAR THAT AN ERROR OF JUDGMENT DOES NOT AMOUNT TO A MISTAKE APPA RENT ON RECORD U/S.254(2) OF THE ACT. THIS IS NOT THE ASSESSEES CASE THAT ANY M ATERIAL IN CASE RECORD HAS ESCAPED OUR CONSIDERATION IN ORDER IN QUESTION. WE RATHER NOTICE THAT OUR ABOVE EXTRACTED FINDINGS DULY TAKE INTO CONSIDERATION BOT H THE PARTIES RIVAL SUBMISSIONS, RELEVANT CASE RECORDS AS WELL AS JUDIC IAL PRECEDENTS QUOTED DURING THE COURSE OF HEARING BEFORE UPHOLDING BOTH LOWER A UTHORITIES ACTION REJECTING ASSESSEES VALUATION REPORT. WE CONCLUDE IN THESE FACTS AND CIRCUMSTANCES THAT M.A. NO. 319/AHD/17 [SHRI ASIT R. SHAH VS. JCIT ] A.Y. 2011-12 - 5 - OUR ABOVE EXTRACTED FINDINGS IN ORDER DATED 14.09.2 017 DO NOT SUFFER FROM ANY APPARENT ERROR U/S.254(2) OF THE ACT. THE ASSESSEE S INSTANT RECTIFICATION PETITION IS THEREFORE DECLINED. 4. THIS ASSESSEES MISCELLANEOUS APPLICATION IS DECL INED ACCORDINGLY. [PRONOUNCED IN THE OPEN COURT ON THIS T HE 17 TH DAY OF APRIL, 2018.] SD/- SD/- ( PRADIP KUMAR KEDIA ) (S. S. G ODARA) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD: DATED 17/04/2018 TRUE COPY S.K.SINHA / COPY OF ORDER FORWARDED TO:- / REVENUE 2 / ASSESSEE ! / CONCERNED CIT 4 !- / CIT (A) ( )*+ ,--. . /0 / DR, ITAT, AHMEDABAD 1 +23 45 / GUARD FILE. BY ORDER / . // . /0