The Income-tax Officer, Jammu V. Sh. Prem Nath Gupta, Jammu

MA 43/ASR/2013

• Counselvise Citation: [2013] 124 COUNSELVISE.COM (IT) 0423 (ITAT-AMRITSAR)
• Duration Of Justice: 3 month(s) 28 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 16-07-2013
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2003-2004
• Appeal Filed On: 19-03-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: AMRIK CHAND
• Assessee Lawyers: P N ARORA
• Keywords: Document seized; Fair market value; Valuation report; Documents seized

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH; AMRITSAR. BEFORE SH. H.S. SIDHU, JUDICIAL MEMBER AND SH. B.P.JAIN, ACCOUNTANT MEMBER M.A.NO.43(ASR)/2013 (ARISING OUT OF I.T.A. NO.222(ASR)/2012) ASSESSMENT YEAR:2003-04 PAN :AEVPG4322C INCOME TAX OFFICER, VS. SH. PREM NATH GUPTA, WARD-1(2), JAMMU. GANDHI NAGAR, JAMMU. (APPELLANT) (RESPONDENT) APPELLANT BY:SH.AMRIK CHAND, DR RESPONDENT BY:SH.P.N.ARORA, DR DATE OF HEARING:05/07/2013 DATE OF PRONOUNCEMENT:16/07/2013 ORDER PER BENCH ; THIS MISC. APPLICATION FILED BY THE REVENUE ARISIN G OUT OF OUR ORDER IN ITA NO. 222(ASR)/2012 DATED 23.10.2012 IS REPROD UCED FOR THE SAKE OF CLARITY AS UNDER: IN THIS CONNECTION, IT IS SUBMITTED THAT DURING T HE COURSE OF ASSESSMENT, IT WAS NOTICED BY THE A.O. THAT THE AB OVESAID ASSESSEE HAD EARNED LONG TERM CAPITAL GAIN FROM THE SALE PROPER TY AT 563-A, GANDHI NAGAR, JAMMU AS PER AGREEMENT TO SELL DATED 26.02. 2002 IN THE MA NO.43(ASR)/2013 2 FINANCIAL YEAR 2001-02. THIS INFORMATION HAS BEEN RECEIVED FROM THE OFFICE OF THE ACIT (HQ) COMMISSIONER OF INCOME TAX , JAMMU WHICH WAS SEIZED DURING THE COURSE OF SEARCH & SEIZURE P ROCEEDINGS U/S 132(1) OF THE INCOME TAX ACT, 1961 IN THE CASE OF M/S. MAHAJAN & CO., GANDHI NAGAR, JAMMU ON 25/03/2005. AND ADDITI ON WAS MADE AMOUNTING TO RS.31,33,715/- ON ACCOUNT OF LONG TER M CAPITAL GAIN BY A.O. 2. BEING AGGRIEVED AGAINST THE SAID ORDER, THE ASS ESSEE HAS PREFERRED APPEAL BEFORE THE LD. CIT(A), J & K AND APPEAL IS PARTLY ALLOWED BY THE LD. CIT(A), JAMMU AND PRINCIPAL ADD ITION MADE BY THE A.O. IS CONFIRMED BY THE LD. CIT(A), JAMMU. 3. FURTHER APPEAL IS FILED BY THE ASSESSEE BEING A GGRIEVED AGAINST THE SAID ORDER IN THE HONBLE ITAT AND THE HONBLE ITAT ALLOWED THE APPEAL TO THE ASSESSEE. 4. THE HONBLE ITAT HAS RELIED UPON THE VALUATION REPORT OF THE VALUER WHO HAS ESTIMATED THE VALUE OF THE LAND ON THE BASIS OF LOCAL ENQUIRY, BETWEEN RS.20,000/- TO RS.25,000/- PER MA RLA DURING THE YEAR 1981-82 WHEREAS THE DEPARTMENT HAS TAKEN THE FAIR MARKET VALUE OF THE LAND AS PER THE REPORT OF THE REVENUE AUTHORITY CO NCERNED. THE FAIR MARKET RATE WAS DULY SUPPORTED & CORROBORATED WITH THE KHASRA NO. REGISTRY DATE, AREA OF THE LAND & RATE AT WHICH TH E SALE/PURCHASE WAS EXECUTED IN THAT PARTICULAR LOCALITY OF THE GANDHI NAGAR AREA. THE HONBLE ITAT HAS ERRED IN NOT APPRECIATING THE AB OVE MENTIONED FACTS. HENCE, MISCELLANEOUS APPLICATION IS RECOMME NDED TO BE FILED IN THIS CASE FOR FRESH ADJUDICATION AS PER THE LAW AS HUGE AMOUNT OF REVENUE IS INVOLVED IN THIS CASE ON THIS ISSUE. 2. THE LD. DR, MR. AMRIK CHAND, READ THE MISCELLANE OUS APPLICATION AND PRAYED TO RECALL THE ORDER OF THE TRIBUNAL SIN CE THERE IS A MISTAKE APPARENT FROM RECORD. 3. THE LD. COUNSEL FOR THE ASSESSEE, MR. P.N.ARORA, ADVOCATE ON THE OTHER HAND, SUBMITTED THE REPLY AND THE RELEVANT PA RT IS REPRODUCED AS UNDER: MA NO.43(ASR)/2013 3 IN THIS CASE, THE DEPARTMENT HAS FILED MISC. APPL ICATION UNDER SECTION 254(2) OF THE INCOME-TAX ACT, 1961 AND THE RELEVAN T PARA-4 OF THE ORDER OF THE ITAT, AMRITSAR BENCH, AMRITSAR, IS RE PRODUCED HEREUNDER: 4. I HAVE CAREFULLY CONSIDERED THE ARGUMENTS MADE BY THE ASSESSEE, THE REASONING ADVANCED BY THE ASSESSI NG OFFICER AND THE ENTIRE MATERIAL ON RECORDS. FIRST THE ISSU E THAT WHETHER RS.57.25 LACS IS TO BE TAKEN AS SALE VALUE OR RS.55 LACS ONLY IN RESPECT OF THE PROPERTY. THERE ARE THREE DOCUMENTS IN THIS REGARD ARE THERE ON THE RECORDS, I.E. AGREEMENT TO SELL DA TED 26/02/2002, THE SALE DEED DATED 07/05/2002 AS WELL AS AGREEMENT TO SELL DATED 17/11/2001. ALL THESE DOCUMENTS ARE PLACED ON ASSE SSMENT RECORDS ALSO. THE AGREEMENT TO SELL DATED 17/11/20 01 DESCRIBES THE STRUCTURE IN THE PROPERTY ON GROUND AND FIRST F LOOR. THE TOTAL CONSIDERATION MENTIONED IS RS.55 LACS FOR THE DOUBL E STOREY HOUSE NO.563-A OVER AN AREA OF 45X65 SITUATED AT GANDHI NAGAR, JAMMU, (BEING A CORNER PLOT) HAVING GROUND FLOOR TH REE BED ROOMS, TWO BATHROOMS, DRAWING, DINING, KITCHEN STORE DULY FOUR WALLED AS FULLY DESCRIBED IN THE AGREEMENT TO SELL DATED 17/1 1/2001. SALE DEED DATED 07/05/2002 IS IN RESPECT OF ONLY THE FIR ST FLOOR FOR RS.2.25 LACS ONLY. TE PROPERTY WAS REGISTERED BY W AY OF TWO REGISTRIES DATED 18/04/2002 RELATING TO THE GROUND FLOOR AND 07/05/2002 RELATING TO FIRST FLOOR TO THE SAME PURC HASER. IN VIEW OF THIS, I FIND THAT THE AGREEMENTS TO SELL DATED 17/1 1/2001 AS WELL AS 26/02/2002 ARE IN RESPECT OF THE WHOLE PROPERTY TO BE SOLD AT RS.55 LACS ONLY AND TO ADD RS.2.25 LACS ADDITIONALLY ON T HE BASIS OF SEPARATE SALE DEED DATED 07/05/2002 IS NOT CORRECT. IN THIS CASE THE SEIZED DOCUMENTS AGREEMENT TO SELL DATED 26/0 2/2002 AS PER WHICH THE SALE CONSIDERATION IS ADOPTED AT RS.55 LA CS, IS CLEARLY IN RESPECT OF THE ENTIRE PROPERTY AND HENCE THERE IS N O FURTHER SCOPE TO ADD RS.2.25 LACS AND THE SAME IS DELETED. IT IS RELEVANT TO POINT OUT THAT THE MISC. APPLICA TION DOES NOT ARISE OUT OF THE ORDER OF THE TRIBUNAL AS THE TRIBUNAL HAS T AKEN A NOTE OF ALL THESE FACTS AND THEN ONLY THE TRIBUNAL HAS OBSERVE D IN PARA-6 OF HIS ORDER WHICH IS REPRODUCED AS UNDER: 6. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE FACTS OF THE CASE. THE ARGUMENTS MADE BY LEARNED COUNSEL FOR THE ASSESSEE SHRI P. N. ARORA, ADVOCATE, APPEAR TO BE CONVINCING THAT T HE ASSESSEE HAS SUBMITTED THE VALUATION REPORT FROM THE REGISTERED VALUER SHRI M. S. ARORA WHO IS THE GOVT. APPROVED VALUER FROM THE MINISTRY OF FINANCE IS NOT IN DISPUTE. THE SAID REPORT DATED 09/12/2006 HAS BEE N PREPARED BY THE SAID VALUER AND VALUE AS AT 01/04/81 HAS BEEN CONSIDERE D AT RS.25,000/- PER MA NO.43(ASR)/2013 4 MARLA. NONE OF THE AUTHORITIES BELOW HAVE POINTED OUT ANY DEFECT IN THE SAID REPORT. IT IS THE MARKET VALUE WHICH HAS TO BE CONSIDERED AS AT 01/04/81. THE VALUE FIXED BY THE REVENUE AUTHORIT IES CANNOT BE THE MARKET VALUE AS TAKEN BY THE ASSESSING OFFICER. THE ASSE SSING OFFICER, THEREFORE, IS NOT JUSTIFIED IN TAKING THE VALUE FIXED BY THE REVENUE AUTHORITIES AS MARKET VALUE. NONE OF THE AUTHORITIES BELOW HAVE REFERRED THE MATTER TO THE D.V.O. IN FACT NONE OF THE AUTHORITIES BELOW IS EXPERT IN VALUING THE PROPERTY AND TO ARRIVE AT THE FAIR MARKET VALUE. THIS CAN BE DONE ONLY BY AN EXPERT WHO IS D.V.O. THE MATTER COULD HAVE B EEN REFERRED TO D.V.O., WHICH HAS NOT BEEN DONE BY ANY OF THE AUTHORITIES BELOW. THEREFORE, IN THE ABSENCE OF ANY DEFECT IN THE VALUATION REPORT SUBMITTED BY THE ASSESSEE, THE ASSESSING OFFICER IS NOT JUSTIFIED I N MAKING ANY ADDITION ON THIS ACCOUNT. THEREFORE, THE ADDITION SO MADE IS DIRECTED TO BE DELETED. IT IS RELEVANT TO POINT OUT THAT THE LD. TRIBUNAL HAS THOROUGHLY CONSIDERED ALL THE ASPECTS AND HAVE TAKEN INTO CON SIDERATION THE VALUE FIXED BY THE REVENUE AUTHORITIES AND CAME TO THE C ONCLUSION THAT THE VALUED FIXED BY THE REVENUE AUTHORITIES CANNOT BE THE MARKET VALUE AS TAKEN BY THE AO. THUS, THE MISC. APPLICATION DOES NOT ARISE OUT OF THE ORDER OF THE TRIBUNAL AS THERE IS NO MISTAKE WHICH ARISES OUT OF THE ORDER OF THE TRIBUNAL AND THE MISC. APPLICATION FI LED BY THE DEPARTMENT MAY BE DISMISSED AS IT HAS GOT NO LOCUS STANDIE AND THE ORDER OF THE TRIBUNAL IS WELL REASONED AND IS SELF SPEAKING ORDER AND AS SUCH THE MISC. APPLICATION FILED BY THE DEPARTM ENT MAY KINDLY BE DISMISSED. SD/- (COUNSEL FOR THE RESPONDENT) 4. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE FACTS OF THE CASE. WE ARE CONVINCED WITH THE SUBMISSIONS OF MR. P.N.AR ORA, ADVOCATE THAT ALL THE ASPECTS POINTED OUT IN THE MISC. APPLICATION BY THE REVENUE HAVE THOROUGHLY BEEN CONSIDERED IN OUR ORDER DATED 23.10 .2012. THE REVENUE UNDER THE GARB OF MISC. APPLICATION REQUIRES THE RE VIEW OF OUR OWN ORDER DATED 23.10.2012, WHICH IN FACT IS OUT SIDE THE AM BIT OF SECTION 254(2) OF THE ACT. THEREFORE, THE APPLICATION FILED BY THE REVENU E IS DISMISSED. MA NO.43(ASR)/2013 5 5. IN THE RESULT, THE MISC. APPLICATION FILED BY TH E REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 16TH JULY, 2013. SD/- SD/- (H.S. SIDHU) (B.P. JAIN) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 16TH JULY, 2013 /SKR/ COPY OF THE ORDER FORWARDED TO: 1. THE ASSESSEE:SH. PREM NATH GUPTA, JAMMU. 2. THE ITO WARD 1(2), JAMMU. 3. THE CIT(A), JAMMU. 4. THE CIT, JAMMU. 5. THE SR DR, ITAT, AMRITSAR. TRUE COPY BY ORDER (ASSISTANT REGISTRAR) INCOME TAX APPELLATE TRIBUNAL, AMRITSAR BENCH: AMRITSAR.