S.P. Mittal (HUF), V. ITO, Meerut

MA 49/DEL/2012

• Counselvise Citation: [2013] 123 COUNSELVISE.COM (IT) 9849 (ITAT-DELHI)
• Duration Of Justice: 11 month(s) 21 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 03-01-2013
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: G
• Assessment Year: 2003-2004
• Appeal Filed On: 13-01-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: DEEPAK SEHGAL
• Assessee Lawyers: O P SAPRA
• Keywords: Sale consideration of property below Jantri Value; Rectification of order; Principle of natural justice; Cost of acquisition; Fair market value
• Section: 50C; 234B

Judgement Text

M.A. NO. 49/DEL/2012 1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH FRIDAY NEW DELHI BEFORE SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER AND SHRI C.M. GARG, JUDICIAL MEMBER MA NO. 49/DEL/2012 (IN ITA NO. 2532/DEL/2008) A.Y. 2003-04 DR. S.P. MITTAL (HUF), VS. INCOME TAX OFFICER, MEERUT WARD 2(3), MEERUT. C/O O.P. SAPRA & ASSOCIATES, C0763, NEW FRIENDS COLONY, NEW DELHI 110 025 (PAN: AADHSD-8901-B) (APPELLANT) (RESPONDENT) ASSESSEE BY : SH. O.P. SAPRA, ADV. DEPARTMENT BY : SH. DEEPAK SEHGAL, SR. D.R. ORDER PER SHAMIM YAHYA, AM THIS MISC. APPLICATION BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THIS TRIBUNAL IN I.T.A. NO. 2532/DEL/2008 FOR ASSESSMENT YEAR 2003-04 VIDE ORDER DATED 30.3.2010. IN THE SAID APPEAL THE GROUNDS OF APPEAL READ AS UNDER:- 1. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE ASSESSING OFFICER HAD ERRED IN INVOKING PROVISIO N OF SECTION 50C OF THE I.T. ACT THEREBY COMPUTING THE LONG TER M CAPITAL GAIN AT RS. 74,15,381/-. THE LD. COMMISSIONER OF INCOME TAX (A) IS ALSO NOT JUSTIFIED IN CONFIRMING THE ADDITIO N MADE BY THE ASSESSING OFFICER . M.A. NO. 49/DEL/2012 2 2. THAT THE APPELLANT DENIES ITS LIABILITY TO PAY ANY LONG TERM CAPITAL GAIN TAX ON VARIOUS FACTUAL AND LEGAL GROUN DS. 3. THAT WITHOUT PREJUDICE TO ABOVE GROUNDS, THE LO NG TERM CAPITAL GAIN WORKED OUT BY THE ASSESSING OFFICER I N RESPECT OF BOTH THE LANDS AT RS. 1,15,75,381/- IS ARBITRARY, U NJUST AND AT ANY RATE WITHOUT PREJUDICE, VERY EXCESSIVE ON VARIOU S FACTUAL AND LEGAL GROUNDS INCLUDING THE FOLLOWING:- A) NO JUSTIFICATION SUBSISTED TO ADOPT THE SALE CONS IDERATION OF LAND AT RS. 1,16,27,000/- AND RS. 4,30,000/- IN RESPECT OF APPELLANTS SHARE IN THE OTHER LAND FOR PURP OSE OF SECTION 50C OF THE I.T. ACT. B) SIMILARLY, THE COST OF ACQUISITION AS ON 1.4.81 IN RESPECT OF BOTH THE LANDS AS ADOPTED BY THE ASSESSING OFFIC ER IS VERY INADEQUATE AND CONSEQUENTLY THE INDEXED COST A S WORKED OUT WAS VERY LOW. C) THE LD. COMMISSIONER OF INCOME TAX (A) WAS NOT L EGALLY JUSTIFIED IN TAKING THE VIEW THAT AS THE VALUATION U NDER STAMP DUTY ACT WAS DISPUTED BEFORE THE ALLAHABAD HI GH COURT, THE ASSESSING OFFICER COULD NOT MAKE REFERE NCE TO VALUATION CELL U/S. 50C. THE ASSESSING OFFICER SHOULD HAVE REFERRED THE MATTER TO DVO BEFORE WORKI NG OUT LTC GAIN. M.A. NO. 49/DEL/2012 3 D) THE AUTHORITIES BELOW HAD EITHER IGNORED OR HAD NOT GIVEN DUE WEIGHT TO THE SUBMISSIONS MADE AND EVIDEN CE FILED BEFORE THEM THEREBY VIOLATING THE PRINCIPLES OF NATURAL JUSTICE. 4. THAT THE LD. COMMISSIONER OF INCOME TAX (A) WAS NOT LEGALLY JUSTIFIED IN REFUSING TO ADMIT REGD. VALUERS REPORT FILE D BY THE APPELLANT VIDE ITS LETTER DATED 18.3.2008. THE SAME SHOULD HAVE BEEN TAKEN INTO CONSIDERATION WHILE DECIDING THE APPEAL. 5. VARIOUS OBSERVATIONS MADE BY THE AUTHORITIES BEL OW IN THEIR RESPECTIVE ORDERS ARE EITHER INCORRECT OR ARE LEGAL LY UNTENABLE. 6. THAT THE ASSESSING OFFICER HAD ERRED IN CHARGIN G INTEREST U/S. 234B AT RS. 2,80,782/-. THE ABOVE GROUND WAS ARGUED BEFORE THE LD. COMMISS IONER OF INCOME TAX (A) BUT HE HAS NOT DECIDED THE SAME. 7. THAT THE APPELLANT RESERVES ITS RIGHT TO ADD, A MEND/MODIFY THE GROUNDS OF APPEAL. 2. FROM THE ABOVE GROUNDS, THE TRIBUNAL HAS CULLED OUT THE ISSUE AS UNDER:- THE ISSUE RAISED IS THAT THE ASSESSING OFFICER H AS ERRED IN INVOKING PROVISION OF SECTION 50C OF THE I.T. ACT THEREBY COMPUTING THE LONG TERM CAPITAL GAIN AT RS. 74,15,381/-. THE LD. COM MISSIONER OF INCOME TAX (A) IS ALSO NOT JUSTIFIED IN CONFIRMING T HE ADDITION MADE BY THE ASSESSING OFFICER. M.A. NO. 49/DEL/2012 4 3. NOW IN THE SAID ORDER THE TRIBUNAL HAD CONSIDERE D THE ISSUE AND REMITTED THE MATTER TO THE FILE OF THE ASSESSING OFFICER TO CONSIDER THE SAME AFRESH. THE CONCLUDING PORTION OF THE TRIBUNALS ORDER READ AS UNDER:- 6.4 WE HAVE CAREFULLY CONSIDERED THE SUBMISSION AN D PERUSED THE RECORDS. A READING OF CLAUSE (2) OF SECTION 50C M AKES IT CLEAR THAT AS PER THE MANDATE OF THE ACT WHEN THE ASSESSEE DISPUT ES THAT THE VALUE ADOPTED BY THE STAMP VALUATION AUTHORITY, IS HIGHER THAN THE FAIR MARKET VALUE, THE AO MAY REFER THE CASE TO TH E VALUATION OFFICER. NOW IN THIS CASE THE ASSESSEE HAS DISPUTED THE VALU E ADOPTED BY STAMPING AUTHORITIES AS EXCESSIVE, BUT AO HAS NOT F OLLOWED THE PROVISIONS OF SECTION 50C(2). ACCORDINGLY, WE FIND THAT THERE IS A CONSIDERABLE COGENCY IN THE SUBMISSION OF THE LD. C OUNSEL OF THE ASSESSEE. HENCE IN THE INTEREST OF JUSTICE, WE REMI T THIS ISSUE TO THE FILES OF THE AO TO CONSIDER THE SAME AFRESH IN THE LIGHT OF THE DISCUSSION IN THE PRECEDING PARAGRAPH. NEEDLESS T O ADD THAT THE ASSESSEE SHOULD BE GIVEN ADEQUATE OPPORTUNITY OF B EING HEARD. 4. IN LIGHT OF THE AFORESAID, WE FIND THAT THE TRI BUNAL HAS CONSIDERED THE ENTIRE GAMUT OF GRIEVANCE RAISED BY THE ASSESSEE AND THEN THE ISSUE HAS DULY REMITTED TO THE ASSESSING OFFICER FOR FRESH CONSIDERATION. HENCE, THE ASSESSEES PLEA THAT THE TRIBUNAL IN ITS AFORESAID ORDER HAVE NOT CONSI DERED THE GROUND NO. 3(B), 3(D) AND 4, IS NOT SUSTAINABLE. THE ASSESSEE IN THE GA RB OF RECTIFICATION OF MISTAKE IN THE TRIBUNALS ORDER IS SEEKING REVIEW OF THE TRIB UNALS AFORESAID ORDER, WHICH IS M.A. NO. 49/DEL/2012 5 NOT SUSTAINABLE. IN OUR CONSIDERED OPINION, THERE IS NO MISTAKE APPARENT ON RECORD IN THE TRIBUNALS ORDER. 5. IN THE RESULT, THE MISC. APPLICATION FILED BY T HE ASSESSEE STANDS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 03/1/2013. SD/- SD/- [C.M. GARG] [SHAMIM YAHYA] JUDICIAL MEMBER ACCOUNTANT MEMBER DATE 03/1/2013 SRBHATNAGAR COPY FORWARDED TO: - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT (A) 5. DR, ITAT TRUE COPY BY ORDER, ASSISTANT REGISTRAR, ITAT, DELHI BENCHES