Dr.S.Sherifunisha, Tirunelveli V. ITO, Tirunelveli

MA 84/CHNY/2017

• Counselvise Citation: [2017] 124 COUNSELVISE.COM (IT) 5676 (ITAT-CHENNAI)
• Duration Of Justice: 4 month(s) 8 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 22-06-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Assessment Year: 2005-2006
• Appeal Filed On: 13-02-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A SASI KUMAR
• Assessee Lawyers: S SRIDHAR
• Keywords: Sale consideration of property below Jantri Value; Value adopted by valuation officer; Capital asset

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, CHENNAI ... , . !'# ! ,% !& BEFORE SHRI N.R.S. GANESAN, JUDICIAL MEMBER AND SHRI A. MOHAN ALANKAMONY, ACCOUNTANT MEMBER '' / M.P. NO.84/MDS/2017 (IN I.T.A. NO.436/MDS/2015) ( )( / ASSESSMENT YEAR : 2005-06 DR. S. SHERIFUNISHA, RAJA CLINIC, 37, AGASTHIAR KOIL STREET, PULIANGUDI POST, TIRUNELVELI DISTRICT 627 855. PAN : ALNPS 1263 K V. THE INCOME TAX OFFICER, WARD I(4), TIRUNELVELI. (+,( /PETITIONER) (+-,./ RESPONDENT) +,( 0 1 /PETITIONER BY : SHRI S. SRIDHAR, ADVOCATE +-,. 0 1 / RESPONDENT BY : SHRI A. SASIKUMAR, JCIT 2 0 3% / DATE OF HEARING : 16.06.2017 4') 0 3% / DATE OF PRONOUNCEMENT : 22.06.2017 / O R D E R PER N.R.S. GANESAN, JUDICIAL MEMBER: THE ASSESSEE HAS FILED THE PRESENT MISCELLANEOUS PETITION ON THE GROUND THAT GROUND NO.5 RAISED BEFORE THIS T RIBUNAL WAS NOT DISPOSED OF BY THIS TRIBUNAL. 2. SHRI S. SRIDHAR, THE LD.COUNSEL FOR THE ASSESSEE , SUBMITTED THAT THE ASSESSEE HAS RAISED A SPECIFIC GROUND WITH REGARD TO 2 M.P. NO.84/MDS/17 VALUATION OF CAPITAL ASSET BY REFERRING TO VALUATIO N OFFICER AS PROVIDED IN SECTION 50C(2) OF THE INCOME-TAX ACT, 1 961 (IN SHORT 'THE ACT'). THE VERY SAME GROUND WAS ALSO RAISED BEFORE THE COMMISSIONER OF INCOME TAX (APPEALS). ACCORDING TO THE LD. COUNSEL, WHILE DISPOSING OF THE CASE BY THIS TRIBUN AL, THIS TRIBUNAL OMITTED TO CONSIDER THE SAME. THE CIT(APPEALS) ALS O FAILED TO CONSIDER THE GROUND RAISED BY THE ASSESSEE AS GROU ND NO.6 BEFORE HIM. THEREFORE, ACCORDING TO THE LD. COUNSEL, THE NON-DISPOSAL OF SPECIFIC GROUND RAISED BY THE ASSESSEE AS GROUND N O.5 IS AN ERROR WITHIN THE MEANING OF 252(2) OF THE ACT. 3. ON THE CONTRARY, SHRI A. SASIKUMAR, THE LD. DEPA RTMENTAL REPRESENTATIVE, SUBMITTED THAT UNDER SECTION 50C(2) (B) OF THE ACT, REFERENCE TO VALUATION OFFICER MAY BE REQUIRED IN C ASE AN APPEAL / REVISION OR REFERENCE BEFORE THE HIGH COURT IS NOT MADE UNDER THE STAMP ACT. IN THIS CASE, THE ASSESSEE HAS NOT ESTA BLISHED THAT SUCH AN APPEAL OR REFERENCE IS NOT PENDING, THEREFORE, I T MAY NOT BE NECESSARY TO REFER THE MATTER TO THE VALUATION OFFI CER. THEREFORE, THERE IS NO ERROR IN THE ORDER OF THIS TRIBUNAL. 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS ON EITH ER SIDE AND PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. THE MAIN CONTENTION OF THE LD. DEPARTMENTAL REPRESENTATIVE I S THAT REFERENCE 3 M.P. NO.84/MDS/17 TO VALUATION OFFICER MAY NOT BE REQUIRED SINCE THE ASSESSEE FAILED TO ESTABLISH THAT AN APPEAL / REFERENCE IS REFERRED TO HIGH COURT IS NOT PENDING. THIS TRIBUNAL IS OF THE CONSIDERED OP INION THAT FOR REFERRING THE MATTER TO THE VALUATION OFFICER IN CA SE THE MATTER WAS PENDING IN APPEAL OR REFERENCE BEFORE THE HIGH COUR T, MAY BE ONE OF THE FACTORS TO BE TAKEN INTO CONSIDERATION. NOW , WE ARE NOT CONCERNED ABOUT THE MERIT OF THE CLAIM MADE BY THE ASSESSEE. THE GRIEVANCE OF THE ASSESSEE APPEARS TO BE THAT THE SP ECIFIC GROUND WITH REGARD TO REFERENCE TO VALUATION OFFICER WAS N OT DISPOSED OF. THEREFORE, AS RIGHTLY SUBMITTED BY THE LD.COUNSEL F OR THE ASSESSEE, THE NON-DISPOSAL OF SPECIFIC GROUND BEFORE THIS TRI BUNAL IS AN ERROR WITHIN THE MEANING OF 252(2) OF THE ACT, THEREFORE, THE SAME NEEDS TO BE RECTIFIED. ACCORDINGLY, THE ORDER OF THIS TR IBUNAL DATED 22.01.2016 IS RECTIFIED AS FOLLOWS:- THE FOLLOWING SHALL BE INSERTED AS PARA 6 AT PAGE 4 OF THIS TRIBUNAL DATED 22.01.2016:- 4. THE ASSESSEE HAS TAKEN ONE MORE GROUND WITH REGARD TO REFERENCE TO VALUATION OFFICER. ADMITTEDLY, THIS ISSUE WAS ALSO RAISED BEFORE THE CIT(APPEALS) AS GROUND NO.6. THE CIT(APPEALS) OMITTED TO CONSIDER THE GROUND RAISED BY THE 4 M.P. NO.84/MDS/17 ASSESSEE WITH REGARD TO REFERENCE TO VALUATION OFFICER AS PROVIDED IN SECTION 50C(2) OF THE ACT. THEREFORE, THIS TRIBUNAL IS OF THE CONSIDERED OPINION THAT THE MATTER NEEDS TO BE RECONSIDERED BY THE CIT(APPEALS) AT THE FIRST INSTANCE. ACCORDINGLY, THE ISSUE OF REFERENCE TO VALUATION OFFICER AS PROVIDED UNDER SECTION 50C(2) OF THE ACT IS REMITTED TO THE FILE OF THE CIT(APPEALS). THE CIT(APPEALS) SHALL EXAMINE THE GROUND RAISED BY THE ASSESSEE AS GROUND NO.6 BEFORE HIM AND DISPOSE OF THE SAME ON MERIT, AFTER GIVING A REASONABLE OPPORTUNITY TO THE ASSESSEE. THE EXISTING PARA 12 SHALL BE DELETED. INSTEAD P ARA 13 WILL BE INSERTED AS FOLLOWS:- 13. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS PARTLY ALLOWED FOR STATISTICAL PURPOSES. 5. IT IS MADE CLEAR THAT REST OF THE ORDER OF THIS TRIBUNAL DATED 22.01.2016 SHALL STAND AS IT IS. 6. IN THE RESULT, THE MISCELLANEOUS PETITION FILED BY THE ASSESSEE IS ALLOWED. 5 M.P. NO.84/MDS/17 ORDER PRONOUNCED COURT ON 22 ND JUNE, 2017 AT CHENNAI. SD/- SD/- (. !'# ! ) ( ... ) (A. MOHAN ALANKAMONY) (N.R.S. GANESAN) % / ACCOUNTANT MEMBER /JUDICIAL MEMBER /CHENNAI, 6 /DATED, THE 22 ND JUNE, 2017. KRI. 0 +37' 8')3 /COPY TO: 1. +,( / PETITIONER 2. +-,. /RESPONDENT 3. 2 93 () /CIT(A) 4. 2 93 /CIT 5. ': +3 /DR 6. ( ; /GF.