YASMITA USHAKANT MALJI, MUMBAI V. JCIT - 24(2) NOW JCIT 30(2), MUMBAI

MA 474/MUM/2019

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 7899 (ITAT-MUMBAI)
• Duration Of Justice: 5 month(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 22-01-2020
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: G
• Assessment Year: 2011-2012
• Appeal Filed On: 21-08-2019
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: AVANESSH TIWARI
• Assessee Lawyers: AKSHAY P SHAH
• Keywords: Sale consideration of property below Jantri Value; Opportunity of being heard; Fair market value; Valuation report; Capital Gains
• Section: 50C; 254(2); 55A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH G MUMBAI BEFORE SHRI PAWAN SINGH (JUDICIAL MEMBER) AND SHRI N.K. PRADHAN (ACCOUNTANT MEMBER) MA NO. 474/MUM/2019 (ITA NO. 6067/MUM/2016) ASSESSMENT YEAR: 2011 - 12 SMT. YASMITA USHAKANT MALJI, 1 - B, SAGAR VIHAR CHS LTD., 45, K.M. MUNSHI MARG, CHOWPATI, MUMBAI - 400007 VS. JCIT - 30(2), [ OLD JURISDICTION JCIT - 24(2) ] , MUMBAI. PAN NO. AANPM8126C APPELLANT RESPONDENT ASSESSEE BY : MR. AKSHAY P. SHAH, AR REVENUE BY : MR. AVANESSH TIWARI, SR. DR DATE OF HEARING : 08/11/2019 DATE OF PRONOUNCEMENT: 22/01/2020 ORDER PER N.K. PRADHAN, A . M . BY MEANS OF THIS MISCELLANEOUS APPLICATION (MA), THE APPLICANT SEEKS RECTIFICATION OF THE ORDER DATED 18.02.2019 PASSED BY THE ITAT G BENCH MUMBAI (ITA NO. 6067/MUM/2016 ) FOR THE ASSESSMENT YEAR (AY) 2011 - 12. 2. BEFORE US, THE LD. COUNSEL FOR THE ASSESS EE RELIES ON THE WRITTEN SUBMISSION DATED 16.08.2019 FILED BEFORE THE TRIBUNAL AND SUBMITS THAT THE REFERENCE TO BE MADE TO THE DISTRICT VALUATION OFFICER ( DVO ) FOR VALUATION ON THE DATE OF TRANSFER U/S 50C WAS NOT A GROUND OF APPEAL BEFORE THE ITAT. IT IS SMT. YASMITA USHAKANT MALJI MA NO. 474/MUM/2019 2 FURTHER STATED THAT ALTHOUGH AO REPLACED SALE CONSIDERATION OF THE SUBJECT PROPERTY BY STAMP DUTY VALUATION IN ACCORDANCE WITH THE PROVISIONS OF SECTION 50C OF THE ACT; THIS WAS ONE OF THE GROUND BEFORE THE LD. CIT(A) AND THE SAME WAS NOT PRESSED UPON IN VIEW OF THE SMALLNESS OF THE AMOUNT; THE ASSESSEE ACCEPTED THAT ADDITION ON ACCOUNT OF REPLACEMENT OF FMV U/S 50C OF THE ACT DURING THE COURSE OF APPEAL PROCEEDINGS BEFORE THE CIT(A). IT IS THUS STATED THAT THE BENCH IN THE INSTANT CASE HAD TO DECIDE THIS APPEAL ON SECTION 55A AND NOT ON SECTION 50C OF THE ACT. THE LD. COUNSEL, THUS SUBMITS THAT THE TRIBUNAL MAY AMEND ITS CONCLUSION SUITABLY IN PARA 7 OF THE IMPUGNED ORDER AND HOLD THAT : A . THE AO HAS NO POWER TO REFER THE MATTER TO THE SUB - REGISTRAR, TOWN PLANNER (VALUATION) AND B . THE AO ERRED IN ACCEPTING THE FMV OF THE SUBJECT PROPERTY AS ON 01.04.1981 BASED ON THE VALUATION SUGGESTED BY THE SUB - REGISTRAR TOWN PLANNER (VALUATION) WHICH IS BASED ON PRESUMPTIONS AND ESTIMATION. 3. ON THE OTHER HAND, THE LD. DEPARTMENTAL REPRESENTATIVE (DR) SUBMITS THAT THERE IS NO MISTAKE APPARENT FROM RECORD IN THE ORDER DATED 18.02.2019 PASSED BY THE TRIBUNAL AND THE MA BEING DEVOID OF MERIT BE DISMISSED. 4. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE RELEVANT MATERIALS ON RECORD. THE REASONS FOR OUR DECISIONS ARE GIVEN BELOW. IN THE INSTANT CASE, THE ASSESSEE FILED HER RETURN OF INCOME FOR THE IMPUGNED ASSESSMENT YEAR ON 27.03.2012 SHOWING TOTAL IN COME OF RS.59,16,980/ - . THE ASSESSEE ALONG WITH OTHER FAMILY MEMBERS HAD SOLD AN ANCESTRAL PROPERTY AT MALABAR HILL, MUMBAI. THE VALUE ADOPTED BY THE STAMP SMT. YASMITA USHAKANT MALJI MA NO. 474/MUM/2019 3 DUTY AUTHORITY FOR THE PURPOSE OF STAMP DUTY IS RS.54,51,78,000/ - AND THE AGREEMENT VALUE IS RS.54,0 0,00,000/ - . THE AO NOTICED THAT FOR THE COMPUTATION OF LONG TERM CAPITAL GAINS (LTCG), THE ASSESSEE HAS ADOPTED THE AGREEMENT VALUE (RS.54,00,00,000/ - ) AS SALE CONSIDERATION INSTEAD OF THE VALUE ADOPTED BY THE STAMP DUTY AUTHORITY (RS.54,51,78,000/ - ). IN V IEW OF SECTION 50C, THE AO ASKED THE ASSESSEE TO SHOW CAUSE AS TO WHY THE STAMP DUTY VALUE OF RS.54,51,78,000/ - SHOULD NOT BE ADOPTED AS CONSIDERATION FOR THE PURPOSE OF COMPUTATION OF CAPITAL GAINS. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE ASSESSE E HAD FILED A REPLY DATED 28.01.2014 WHICH IS REPRODUCED AS UNDER : THE PROPERTY UNDER CONSIDERATION IS SOLD FOR RS.54,00,00,000/ - AS AGAINST THE STAMP DUTY VALUATION OF RS.54,51,78,000/ - . IN THIS REGARD, THE ASSESSEE SUBMITS THAT THE VALUE STATED IN THE AGREEMENT IS THE FAIR MARKET VALUE OF THE PROPERTY AND IS ALSO THE VALUE WHICH IS RECEIVED BY THE CO OWNERS ON SALE OF THE SAID PROPERTY. THE ASSESSEE SUBMITS THAT THE STAMP DUTY VALUE FIXED FOR THE SAID PROPERTY IS HIGHER THAN THE FAIR MARKET VALUE ON TH E DATE OF TRANSFER. AS SUCH, THE ASSESSEE REQUESTS YOUR HONOUR TO KINDLY INVOKE SECTION 50C(2) AND REFER THE MATTER TO THE VALUATION OFFICER TO DETERMINE THE FAIR MARKET VALUE OF THE PROPERTY AS ON THE DATE OF TRANSFER. WE HAVE MENTIONED AT PARA 7 OF THE IMPUGNED ORDER THAT IT IS THE CONTENTION OF THE ASSESSEE VIDE LETTER DATED 28.01.2014, IN RESPONSE TO SHOW CAUSE NOTICE DATED 07.01.2014, THE AO WAS REQUESTED TO INVOKE SECTION 50C(2) AND REFER THE MATTER TO THE VALUATION OFFICER TO DETERMINE THE FAIR MARKET VALUE (FMV) AS ON THE DATE OF TRANSFER. WE FIND THAT THE AO HAS MENTIONED IT AT PAGE 3 OF HIS ORDER DATED 26.02.2014. SMT. YASMITA USHAKANT MALJI MA NO. 474/MUM/2019 4 THEREAFTER, REFERRING TO SUB - SECTION (2) OF SECTION 50C INSERTED W.E.F. 01.04.2003 AND FURTHER RELYING ON GOULI MAHADEVAPPA V. ITO (2013) 356 ITR 90 (KARN.), CIT V. DR. INDRA SWAROOP BHATNAGAR (2012) 349 ITR 210 (ALL), APPADURAI VIJAYRAGHAVAN V. JT. CIT (OSD) (2014) 369 ITR 486 (MAD), SUNIL KUMAR AGARWAL V. CIT (2014) 47 TAXMANN.COM 158 (CAL), WE HAVE DIRECTED THE AO TO REFER THE VAL UATION OF THE PROPERTY TO THE DVO AS PER PROVISIONS OF SECTION 50C(2) OF THE ACT. FURTHER, WE MADE IT CLEAR THAT THE AO WOULD PASS AN ORDER AFRESH AFTER GIVING A COPY OF THE VALUATION REPORT RECEIVED FROM THE DVO AND AFTER GIVING REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. WE FURTHER DIRECTED THE ASSESSEE TO FILE THE RELEVANT DOCUMENTS/EVIDENCE BEFORE THE AO. THUS THE APPEAL FILED BY THE ASSESSEE WAS ALLOWED FOR STATISTICAL PURPOSES. THUS IT IS CRYSTAL CLEAR FROM THE ABOVE NARRATION OF FACTS THA T THERE IS NO MISTAKE APPARENT FROM RECORD IN THE INSTANT CASE. IN FACT, WE HAVE TAKEN INTO CONSIDERATION THE SUBMISSIONS OF THE ASSESSEE AND DECIDED THE ISSUE ON MERIT. WE ARE VERY SAD TO NOTE THAT EVEN THOUGH THE SUBMISSIONS OF THE ASSESSEE HAVE BEEN TAK EN INTO ACCOUNT, IT IS NOW PLEADED IN THE MA THAT THAT IS NOT A PART OF THE GROUNDS OF APPEAL. IN FACT, NOT A SINGLE ERROR IN THE IMPUGNED ORDER HAS BEEN POINTED OUT BY THE APPLICANT. WHAT THE APPLICANT WANTS IS A REVIEW OF THE ORDER PASSED BY THE TRIBUNA L. THE TRIBUNAL IS A CREATURE OF THE STATUTE. THE TRIBUNAL CANNOT REVIEW ITS OWN DECISION UNLESS IT IS PERMITTED TO DO SO BY THE STATUTE. THE HONBLE SUPREME COURT HAS HELD IN PATEL NARSHI THAKERSHI V. PRADYUMANSINGHJI ARJUNSINGHJI [AIR 1970 SC 1273] THAT THE POWER TO REVIEW IS NOT AN INHERENT SMT. YASMITA USHAKANT MALJI MA NO. 474/MUM/2019 5 POWER. IT MUST BE CONFERRED BY LAW EITHER SPECIFICALLY OR BY NECESSARY IMPLICATION. IT IS A SETTLED LAW THAT THE TRIBUNAL HAS NO POWER TO REVIEW ITS ORDER IN THE GARB OF SECTION 254(2) OF THE ACT. 5. IN THE RESULT, TH E MA BEING DEVOID OF MERIT IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 22/01/2020. SD/ - SD/ - (PAWAN SINGH) (N.K. PRADHAN) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI ; DATED: 22/01/2020 BISWAJIT , SR. P.S. COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT. 3. THE CIT(A) - 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE . BY ORDER, //TRUE COPY// ( ASSISTANT REGISTRAR ) ITAT, MUMBAI