RAJESH LODHA, Jaipur V. ITO, Jaipur

MA 98/JPR/2016

• Counselvise Citation: [2018] 124 COUNSELVISE.COM (IT) 6578 (ITAT-JAIPUR)
• Duration Of Justice: 1 year(s) 10 month(s) 17 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 04-05-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2005-2006
• Appeal Filed On: 17-06-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SEEMA MEENA JCIT DR DHK
• Assessee Lawyers: MADHUKAR GARG
• Keywords: Cost of acquisition; Fair market value; Valuation report

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 FOT; IKY JKO] U;KF;D LNL; ,O JH HKKXPUN] YS[KK L NL; LNL; DS LE{K BEFORE: SHRI VIJAY PAL RAO, JM & SHRI BHAGCHAND, AM MISCELLANEOUS APPLICATION NO.98/JP/2016 (ARISING OUT OF VK;DJ VIHY LA-@ ITA NO. 1314/JP/2008 & C.O. NO.142/JP/2008) FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 200506 SHRI RAJESH LODHA L/H OF SHRI RATAN CHAND LODHA PROP. M/S. RATAN & RATAN, 1464, PARTANIYON KA RASTA, JOHARI BAZAR, JAIPUR CUKE VS. THE ITO WARD- 1(1) JAIPUR LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO .: AARPL 0857 F VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY: SHRI MADHUKAR GARG, CA JKTLO DH VKSJ LS@ REVENUE BY :SMT. SEEMA MEENA, JCIT- DR LQUOKBZ DH RKJH[K@ DATE OF HEARING : 13/04/2018 ?KKS'K .KK DH RKJH[K@ DATE OF PRONOUNCEMENT : 4/05/2018 VKNS'K@ ORDER PER BHAGCHAND, AM THROUGH THIS MISCELLANEOUS APPLICATION, THE LD.AR OF THE ASSESSEE PRAYS FOR RECTIFICATION IN THE TRIBUNAL ORDER DATED 01-01-201 6 PRAYING THEREIN AS UNDER:- .THE APPEAL AND CROSS OBJECTION WERE THEREAFTER FIXED FOR HEARING ON 30-10-2015 AND AT THE TIME OF HEARING OF APPEAL AND CROSS OBJECTION ON 30-10-2015 THE COUNSEL FOR THE ASSESSE E HAD CONTENDED THAT SO FAR AS THE ORDER DATED 12-12-2014 IS CONCER NED THE SAME NO LONGER EXISTED AS THE SAME HAS BEEN DECIDED EX-PART E AND IN THE NAME OF LATE SHRI RATAN CHAND LODHA AND HENCE THE SAME W AS RECALLED. THE COUNSEL FOR THE ASSESSEE HAD CONTENDED THAT THE TITLE OF THE CASE IS TO BE CHANGED AND FURTHER THE TITLE WAS TO BE CHANGED IN THE ORDER OF THE HON'BLE ITAT, JAIPUR BENCH DATED 30-01 -2009. THE DEPARTMENTAL REPRESENTATIVE HAS ALSO NOT OBJECTED T O THE SAME AND IT WAS AGREED THAT ONLY TITLE WAS TO BE CHANGED IN THE ORDER DATED 30-01- 2009 AND NO FURTHER SUBMISSIONS WERE MADE. HOWEVER, IT SEEMS THAT MA NO. 98/JP/2016 SHRI RAJESH LODHA L/H SHRI RATAN CHAND LODHA VS. I TO, WARD-1(1), JAIPUR . 2 INSTEAD OF CHANGING THE TITLE IN THE ORDER DATED 30 -01-2009 THE TITLE HAS BEEN CHANGED IN THE ORDER DATED 12-12-2014 WHICH IS CLEARLY A MISTAKE APPARENT FROM RECORD AND THE SAME DESERVES TO BE RE CTIFIED. WE MAY AGAIN SUBMIT THAT DURING THE COURSE OF HEARI NG ON 30- 10-2015, NO SUBMISSIONS WERE MADE WITH REGARD TO TH E MERIT OF THE CASE AS IT WAS AGREED THAT ONLY TITLE WAS TO BE CHA NGED IN THE ORDER DATED 30-01-2009. AS THIS APPEAL HAS BEEN DECIDED W ITHOUT HEARING THE ASSESSEE ON MERITS AND AS MENTIONED ABOVE THERE IS ALSO MISTAKE APPARENT FROM THE RECORD IT IS SUBMITTED THAT THE O RDER DATED 01-01- 2016 MAY KINDLY BE RECTIFIED AND THE ASSESSEE BE GI VEN OPPORTUNITY TO MAKE HIS SUBMISSION ON MERIT. 2. ON THE OTHER HAND, THE LD. DR SUPPORTED THE ITA T ORDER. 3. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIALS AVAILABLE ON RECORD. FROM THE RECORD, WE FIND THAT CERTIFIED COP Y OF ITAT ORDER ISSUED TO THE ASSESSEE HAD VARIATION FROM THE SIGNED COPY OF O RDER DATED 01-01-2016 ON RECORDS. THE PARA 6 OF SIGNED ITAT ORDER DATED 01-01-2016 O N RECORDS READS AS UNDER:- 6. THE LEARNED DR SUPPORTED THE ORDER OF THE ASS ESSING OFFICER. FROM THE SIDE OF THE ASSESSEE , THE LD.AR OF THE ASSESSEE SUBMITTED THAT THE ASSESSEE HAD SOLD HOUSE PROPERTY SITUATED AT 25-C, BHAGWAN DAS ROAD, C-SCHEME, JAIPUR FOR RS. ONE CRORE ON 17/7/2 004 AND THE REGISTRY AUTHORITY HAD ALSO ADOPTED THE SAME VALUE WHILE COM PUTING LONG TERM CAPITAL GAIN. THE ASSESSEE HAD DEDUCTED RS. 84,52,800/- AS INDEXED COST OF ACQUISITION OF PROPERTY. THE INDEXED FIGURE WAS WORKED OUT ON T HE BASIS OF VALUATION REPORT OF SHRI H.C. GUPTA, REGISTERED VALUER, WHO V ALUED THE PROPERTY AT RS. 17,61,000/- AS ON 01/4/1981. HOWEVER, THE VALUE EST IMATED BY THE DVO IN RESPECT OF PROPERTY WAS ONLY RS. 3,89,900/- AS ON 0 1/4/1981. THE LEARNED ASSESSING OFFICER HAD MADE REFERENCE TO DVO ON 18/4 /2007 TO DETERMINE THE COST OF ACQUISITION OF PROPERTY AS ON 01/4/1981. TH E REFERENCE WAS MADE U/S 142A OF THE ACT THOUGH IN THE ASSESSMENT ORDER, IT IS MENTIONED THAT REFERENCE WAS MADE U/S 55A/142A OF THE ACT. SUCH DETERMINATIO N OF FAIR MARKET VALUE MA NO. 98/JP/2016 SHRI RAJESH LODHA L/H SHRI RATAN CHAND LODHA VS. I TO, WARD-1(1), JAIPUR . 3 AS ON 01/4/1981 BY WAY OF REFERENCE TO THE DVO IS N OT COVERED BY THESE SECTIONS. HE RELIED UPON THE DECISION PASSED BY THE HON'BLE ITAT OF JODHPUR BENCH IN THE CASE OF SARASWATI DEVI GEHLOT VS. INCO ME TAX OFFICER 304 ITR 354. REFERENCE MADE BY THE ASSESSING OFFICER FOR CO ST OF CONSTRUCTION HAS HELD VOID AB INITIO. HE FURTHER RELIED UPON THE FOL LOWING DECISIONS: (I) ITO VS. SMT. LALITA BAIN B KAPADIA 3 DTR 28 ITAT M UMBAI (II) M.V. SHAH, OFFICIAL LIQUIDATOR, ANANT MILLS LTD. VS U.J. MARTIN AND OTHER 209 ITR 568 (GUJARAT) HE FURTHER SUBMITTED THAT THE LEARNED CIT(A) HAD A CCEPTED THE ASSESSEE'S CONTENTION AND DIRECTED THE ASSESSING OF FICER TO ACCEPT THE COST OF ACQUISITION AS ON 01/4/1981 AS WORKED OUT BY THE AP PROVED VALUER OF THE APPELLANT BY RELYING ON THE FOLLOWING DECISIONS. (I) NEVILLE D NORANHA VS ACIT 5 DTR 389 ITAT KOLKATA (II) HIABEN JAINTILAL SHAH VS ITO AND ANOTHER 6 DTR 203 GUJARAT THE ASSESSEE HAS ATTACHED CERTIFIED COPY OF ORDER D ATED 01-01-2016 WITH THE MISC. APPLICATION. THE PARA 6 OF ITAT ORDER DATED 01-01-2 016 READS AS UNDER:- 6. THE LEARNED DR SUPPORTED THE ORDER OF THE ASSE SSING OFFICER. FROM THE SIDE OF THE ASSESSEE, NO ONE APPE ARED BUT THERE WAS A WRITTEN SUBMISSION FILED ON 06/11/2008 IS BEING CON SIDERED. IT HAS BEEN SUBMITTED THAT THE ASSESSEE HAD SOLD HOUSE PROPERTY SITUATED AT 25-C, BHAGWAN DAS ROAD, C-SCHEME, JAIPUR FOR RS. ONE CROR E ON 17/7/2004 AND THE REGISTRY AUTHORITY HAD ALSO ADOPTED THE SAM E VALUE WHILE COMPUTING LONG TERM CAPITAL GAIN. THE ASSESSEE HAS DEDUCTED RS. 84,52,800/- AS INDEXED COST OF ACQUISITION OF PROPE RTY. THE INDEXED FIGURE WAS WORKED OUT ON THE BASIS OF VALUATION REP ORT OF SHRI H.C. MA NO. 98/JP/2016 SHRI RAJESH LODHA L/H SHRI RATAN CHAND LODHA VS. I TO, WARD-1(1), JAIPUR . 4 GUPTA, REGISTERED VALUER, WHO VALUED THE PROPERTY A T RS. 17,61,000/- AS ON 01/4/1981. HOWEVER, THE VALUE ESTIMATED BY TH E DVO IN RESPECT OF PROPERTY WAS ONLY RS. 3,89,900/- AS ON 01/4/1981 . THE LEARNED ASSESSING OFFICER MADE REFERENCE TO DVO ON 18/4/200 7 TO DETERMINE THE COST OF ACQUISITION OF PROPERTY AS ON 01/4/1981 . THE REFERENCE WAS MADE U/S 142A OF THE ACT THOUGH IN THE ASSESSMENT O RDER, IT IS MENTIONED THAT REFERENCE WAS MADE U/S 55A/142A OF T HE ACT. SUCH DETERMINATION OF FAIR MARKET VALUE AS ON 01/4/1981 BY WAY OF REFERENCE TO THE DVO IS NOT COVERED BY THESE SECTIONS. HE REL IED UPON THE DECISION PASSED BY THE HONBLE ITAT OF JODHPUR BENC H IN THE CASE OF SARASWATI DEVI GEHLOT VS. INCOME TAX OFFICER 304 IT R 354. REFERENCE MADE BY THE ASSESSING OFFICER FOR COST OF CONSTRUCTION HAS HELD VOID AB INITIO. HE FURHER RELIED UPON THE FOLL OWING DECISIONS: (I) ITO VS. SMT. LALITA BAIN B KAPADIA 3 DTR 28 I TAT MUMBAI. (II) M.V. SHAH, OFFICIAL LIQUIDATOR, ANANT MILLS L TD. VS. U.J. MARTAIN AND OTHERS 209 ITR 568 (GUJARAT). HE FURTHER SUBMITTED THAT THE LEARNED CIT(A) HAD A CCEPTED THE ASSESSEES CONTENTION AND DIRECTED THE ASSESSING OF FICER TO ACCEPT THE COST OF ACQUISITION AS ON 01/4/1981 AS WORKED OUT B Y THE APPROVED VALUER OF THE APPELLANT BY RELYING ON THE FOLLOWING DECISIONS. (I) NEVILLE D NORANHA VS. ACIT 5 DTR 389 ITAT KOL KATA (II) HIABEN JAINTILAL SHAH VS. ITO AND ANOTHER 6 DTR 203 GUJARAT. THUS THERE IS A MISTAKE IN ISSUING THE CERTIFIED COPY OF THE ORDER TO THE ASSESSEE AS WELL AS TO THE REVENUE. NOW THE REGISTRY IS DIRECTE D TO ISSUE A CERTIFIED COPY OF SIGNED ORDER AVAILABLE IN RECORD. BOTH THE SIDES SH ALL HAVE LIBERTY TO TAKE APPROPRIATE ACTION AS PER LAW AFTER RECEIVING THE CERTIFIED COP Y OF ORDER. MA NO. 98/JP/2016 SHRI RAJESH LODHA L/H SHRI RATAN CHAND LODHA VS. I TO, WARD-1(1), JAIPUR . 5 4. IN THE RESULT, THE MISC. APPLICATION OF THE ASSE SSEE IS DISPOSED OFF AS INDICATED ABOVE. SD/- SD/- FOT; IKY JKO HKKXPUN (VIJAY PAL RAO) ( BHAGCHAND) U;KF;D LNL; / JUDICIAL MEMBER YS[KK LNL;@ ACCOUNTANT MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 4 /05/ 2018 *MISHRA VKNS'K DH IZFRFYFI VXZSF'KR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- SHRI RAJESH LODHA, L/H OF SHRI RATAN CHAND LODHA, JAIPUR 2. IZR;FKHZ@ THE RESPONDENT- THE ITO, WARD 1(1), JAIPUR 3. VK;DJ VK;QDRVIHY@ CIT(A). 4. VK;DJ VK;QDR@ CIT, 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR 6. XKMZ QKBZY@ GUARD FILE (MA NO. 98/JP/2016) VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASSISTANT. REGISTRAR