SMT. PUKHRAJ DEVI PANSARI, Jaipur V. ACIT, Jaipur

MA 40/JPR/2014

• Counselvise Citation: [2015] 124 COUNSELVISE.COM (IT) 3244 (ITAT-JAIPUR)
• Duration Of Justice: 6 month(s) 11 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 12-06-2015
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2008-2009
• Appeal Filed On: 01-12-2014
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: NEENA JEPH JCIT DHK
• Assessee Lawyers: S L PODDAR
• Keywords: Sale consideration of property below Jantri Value; Rectification of order; Opportunity of being heard; Fair market value
• Section: 50C

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES, JAIPUR JH VKJ-IH-RKSYKUH] U;KF;D LNL; ,OA JH VH-VKJ-EHUK] YS[KK LNL; DS LE{K BEFORE: SHRI R.P. TOLANI, JM & SHRI T.R. MEENA, AM M.A. NO. 40/JP/2014 (ARISING OUT OF VK;DJ VIHY LA-@ ITA NO. 1117/JP/2011) FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2008-09 SMT. PUKHRAJ DEVI PANSARI A-7, SHOWROOM, AGRA ROAD, SETHI COLONY, JAIPUR CUKE VS. THE ACIT CIRCLE- 5 JAIPUR LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO .: ABOPP 9651 M VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : SHRI S.L. PODDAR, ADVOCATE JKTLO DH VKSJ LS@ REVENUE BY :SMT. NEENA JEPH, JCIT LQUOKBZ DH RKJH[K@ DATE OF HEARING : 22/05/2015 ?KKS'K .KK DH RKJH[K@ DATE OF PRONOUNCEMENT : 12/06/2015 VKNS'K@ ORDER PER R.P. TOLANI, JM THIS IS ASSESSEES MISCELLANEOUS APPLICATION ARISI NG OUT OF THE ORDER OF ITAT DATED 11-07-2014 U/S 254(2) OF THE AC T PRAYING FOR RECTIFICATION OF MISTAKES U/S 254(2). LD. AR OF THE ASSESSEE REFERRED TO PARA 4.7 AT PAGE 7 OF ORDER WHICH READS AS UNDER:- 4.7 WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIALS AVAILABLE ON RECORD. SECTION 50C OF THE ACT HAS TWO LIMBS. THE FIRST LIMB PROVIDES THA T IN CASE OF M.A. NO. 40/JP/2014 SMT. PUKHRAJ DEVI PANSARI VS. ACIT, CIRCLE- 5, JAIP UR . 2 DIFFERENCE BETWEEN DLC RATE AND ACTUAL CONSIDERATIO N, THE HIGHER OF THEM IS TO BE ADOPTED AS A SALE CONSIDERA TION FOR COMPUTATION OF CAPITAL GAIN. THE SECOND LIMB PROVID ES THAT WHERE THE ASSESSEE CLAIMS BEFORE THE AO THAT DLC RA TE IS EXCESSIVE THAN FAIR MARKET VALUE THEN THE AO IN THA T CASE MAY REFER THE VALUATION OF THE ASSET TO THE DVO. IT HAS BEEN ADMITTED BY THE ASSESSEE'S COUNSEL THAT NO DISPUTE ABOUT UNREASONABLENESS OF THE DLC RATE WAS RAISED BEFORE THE SUB-REGISTRAR. FROM THE RECORD WHICH EMERGES FROM T HE ORDER OF THE LD. CIT(A) AND CONTENTS WHEREOF ARE NO T DISPUTED BY ASSESSEE'S COUNSEL, IT EMERGES THAT THE AO INFORMED THE ASSESSEE ABOUT THE APPLICABILITY OF SE CTION 50C OF THE ACT AND THE WRITTEN SUBMISSIONS OF THE ASSES SEE ARE CONSIDERED. IN THE SUBMISSIONS FILED, THERE IS NO M ENTION OF ANY REASONS ABOUT THE DLC RATE BEING EXCESSIVE TO F AIR MARKET VALUE AND ON TOP OF IT THERE IS NO WHISPER O F ANY OBJECTION. FROM THE PERUSAL OF THE RECORDS AND THE ORDER OF THE LD. CIT(A), WE ARE OF THE CONSIDERED VIEW THAT DUE OPPORTUNITY WAS GIVEN TO THE ASSESSEE AND NO OBJEC TION IS RAISED EITHER ORALLY OR IN WRITING BEFORE THE AO. T HIS FACT CLEARLY EMERGES FROM THE FACT THAT THE ASSESSEE'S C OUNSEL HAS SIGNED ON ORDER SHEET AND THIS FACT IS NOT DISPUTED BY THE ASSESSEE'S COUNSEL. THUS WE ARE OF THE VIEW THAT IT CANNOT BE HELD THAT THE ASSESSEE WAS NOT GIVEN AN OPPORTUNITY OF BEING HEARD. APROPOS THE CASE LAWS:- (I) SHARDA DEVI VS. ITO, WARD- 1(4), JAIPUR BENCH (SUPRA) IN THAT CASE THE ASSESSEE CLEARLY OBJECTED BY MENTIONING THAT DLC RATE WAS EXCESSIVE AND THE ASSE SSEE'S RATE WAS COMPARABLE TO FAIR MARKET VALUE. UNDER THE SE CONDITIONS, ITAT HAS SET ASIDE THE ISSUE. (II) A SHAIK MOHINDEEN VS. ITO, CHENNAI BENCH (SUPRA) M.A. NO. 40/JP/2014 SMT. PUKHRAJ DEVI PANSARI VS. ACIT, CIRCLE- 5, JAIP UR . 3 IN THIS CASE ALSO, THE ASSESSEE WAS NOT GIVEN AN OPPORTUNITY WHEREAS IN THE CASE BEFORE US, AN EFFEC TIVE CHANCE IS GIVEN TO THE ASSESSEE. (III) SUNIL KUMAR AGARWAL VS. CIT (CAL.) (SUPRA ) IN THIS CASE THE CONVEYANCE DEED CONTAINED THE RECITAL THAT APPARENT CONSIDERATION WAS THE HIGHEST PREVAILING MARKET PRICE. IN CONVEYANCE DEED OF THE ASSESSEE, NO SUCH RECITALS ARE MENTIONED THUS THE CASE LAWS CITED BY THE ASSESSEE ARE CLEARL Y DISTINGUISHABLE AND IT DOES NOT HELP THE CAUSE OF T HE ASSESSEE. HENCE IN VIEW OF THE ABOVE FACTS AND CIRC UMSTANCES OF THE CASE, WE ARE INCLINED TO UPHOLD THE ORDER OF THE LD. CIT(A) AND THE APPEAL OF THE ASSESSEE DISMISSED. 2.1 BY THIS MISCELLANEOUS APPLICATION, ASSESSEE HAS CONTENDS FOLLOWING MISTAKES APPARENT FROM THE ABOVE MENTIONE D ORDER (SUPRA). (I) THE HON'BLE ITAT HAVE OBSERVED ON PAGE 4 IN PARA 4.2 THAT THE LD. CIT(A) THUS CONCLUDED THAT THIS ORDER SHEET ENTRY PROPOSING TO ADOPT SECTION 50C IS SIGNE D BY THE ASSESSEE. THE PERUSAL OF THE ORDER SHEET NOWHERE DISCLOSES ANY PROPOSAL FOR ADOPTING 50C BY THE LD. AO. ON TH E SAME DATE I.E. 20-12-2010, THE SALE DEED IS PERUSED, 50 C IS APPLIED AND ASSESSMENT PROCEEDINGS ARE COMPLETED. HENCE, HA D THERE BEEN ANY PROPOSAL, THERE WOULD HAVE BEEN OPPORTUNIT Y FOR THE SAME. (II) ON PAGE 7 PARA 4.7, IT HAS BEEN OBSERVED THAT THE ORDER OF THE HON'BLE ITAT THAT IT EMERGES TH AT THE ASSESSING OFFICER INFORMED THE ASSESSEE ABOUT THE APPLICABILITY OF SECTION 50C OF THE ACT. IT IS SU BMITTED THAT THE PERUSAL OF THE ORDER SHEET ONLY DISCLOSES A FIN DING OF THE LD ASSESSING OFFICER WHERE HE HAS CONCLUDED THAT THE DIFFERENCE AMOUNT OF RS. 43,56,000/- IS ADDED BACK. THE LD. ASSESSING OFFICER NEITHER ASKED FOR THE REPLY OF T HE ASSESSEE M.A. NO. 40/JP/2014 SMT. PUKHRAJ DEVI PANSARI VS. ACIT, CIRCLE- 5, JAIP UR . 4 NOR WAITED FOR THE SAME. HE JUST RUSHED THROUGH HIS FINDING AND CONCLUDED THE ASSESSMENT PROCEEDINGS BY MAKING THE ADDITION. (III) IN VIEW OF THE AFORESAID FACTS AND CIRCUMSTAN CES OF THE CASE GROSS INJUSTICE HAS BEEN DONE TO THE AS SESSEE IN NOT PROVIDING AN OPPORTUNITY BEFORE APPLYING PROVIS IONS OF SECTION 50C. THIS HAS ESCAPED ATTENTION TO THE HON' BLE ITAT ON ACCOUNT OF CREPING OF A MISTAKE IN THE APP RECIATION OF THE ORDER OF THE LD. CIT(A). 2.2 ACCORDING TO THE ASSESSEE, THESE MISTAKES CONST ITUTE APPARENT FROM RECORD. THEREFORE, THE ORDER MAY BE RECALLED. THE R ELIANCE IS PLACED AS UNDER:- (I) HONDA SIEL POWER PRODUCTS LTD. VS. CIT (2007), 165 TAXMAN 307 (SC). (II) ACIT VS. SAURASTRA KUTCH STOCK EXCHANGE LTD. (2009) 173 ITR 322 (SC) 2.3 THE LD. DR ON THE OTHER HAND CONTENDS THAT THE ASSESSEE'S MISCELLANEOUS APPLICATION CLEARLY AMOUNTS TO REVIEW OF THE WELL REASONED ORDER OF THE ITAT WHICH IS NOT PERMISSIBLE U/S 254 (2) OF THE ACT. 2.4 WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIALS AVAILABLE ON RECORD. IT MAY BE MENTIONED THAT IN FO RM 36 I.E. MEMO OF APPEAL, ASSESSEE HAS RAISED FOLLOWING GROUND BEFORE US IN THIS BEHALF. M.A. NO. 40/JP/2014 SMT. PUKHRAJ DEVI PANSARI VS. ACIT, CIRCLE- 5, JAIP UR . 5 1. UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) HAS ERRED IN CONFIRMING THE ADDITION OF RS. 43,56,000/- IN COMPUTING THE CAPITAL GAIN INCOME ON THE BASIS OF DLC RATE WITHOUT CONSIDERING THE SUBMISSIO N OF THE ASSESSEE. 2.5 A PERUSAL OF THE WRITTEN SUBMISSION FILED BY TH E ASSESSEE ON 18-08-2011 BEFORE THE LD. CIT(A) DOES NOT INDICATE OF ANY REFERENCE FOR VALUATION TO DVO. ACCORDINGLY, LD. CIT(A) DECIDED THE APPEAL AFTER CONSIDERING THE WRITTEN SUBMISSION WHICH DOES NOT C ONTAIN ANY REQUEST FOR REFERENCE TO DVO. THE CASE LAWS CITED BEFORE US HAVE BEEN DULY CONSIDERED IN THE ORDER. HENCE, THERE EXISTS NO APP ARENT MISTAKE AS ALLEGED BY THE ASSESSEE IN POINT NO. (I) IN MA. AS REGARDS MA MISTAKE NO. (II), IT IS AN INFERENCE OF THE LD. AR WHICH CA NNOT CONSTITUTE MISTAKE APPARENT FROM RECORD. SIMILARLY MA MISTAKE NO. (III ) ALSO, THERE IS NO APPARENT MISTAKE AS ORDERS CANNOT BE RECALLED BECAU SE ONLY IT CAUSE INJUSTICE TO THE ASSESSEE. IN VIEW THEREOF, WE DO NOT FIND ANY MISTAKE MUCH LESS APPARENT MISTAKE IN THE ITAT ORDER (SUPRA ) OR FROM THE RECORD AS RAISED BY THE ASSESSEE. THUS THE MISCELLANEOUS A PPLICATION OF THE ASSESSEE IS DISMISSED. M.A. NO. 40/JP/2014 SMT. PUKHRAJ DEVI PANSARI VS. ACIT, CIRCLE- 5, JAIP UR . 6 3.0 IN THE RESULT, THE MISCELLANEOUS APPLICATION OF THE ASSESSEE IS DISMISSED. SD/- SD/- VH-VKJ-EHUK VKJ-IH-RKSYKUH (T.R. MEENA) (R.P.TOLANI) YS[KK LNL;@ ACCOUNTANT MEMBER U;KF;D LNL;@ JUDICIAL MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 12/06/2015 *MISHRA VKNS'K DH IZFRFYFI VXZSFKR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- SMT. PUKHRAJ DEVI PANSARI, JAIPUR 2. IZR;FKHZ@ THE RESPONDENT- THE ACIT, CIRCLE- 5, JAIPUR 3. VK;DJ VK;QDRVIHY@ THE CIT(A). 4. VK;DJ VK;QDR@ THE CIT 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR 6. XKMZ QKBZY@ GUARD FILE (MA NO.40/JP/2014) VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASSISTANT. REGISTRAR