Bhagirathibai Sonu Bhagare,, Nashik v. Deputy Commissioner of Income-tax, Circle - 1,, Nashik

ITA 1592/PUN/2017 | 2009-2010
Pronouncement Date: 30-11-2017 | Result: Allowed

Appeal Details

RSA Number 159224514 RSA 2017
Assessee PAN BTRPB7772B
Bench Pune
Appeal Number ITA 1592/PUN/2017
Duration Of Justice 5 month(s) 6 day(s)
Appellant Bhagirathibai Sonu Bhagare,, Nashik
Respondent Deputy Commissioner of Income-tax, Circle - 1,, Nashik
Appeal Type Income Tax Appeal
Pronouncement Date 30-11-2017
Appeal Filed By Assessee
Tags No record found
Order Result Allowed
Bench Allotted B
Tribunal Order Date 30-11-2017
Last Hearing Date 29-11-2017
First Hearing Date 29-11-2017
Assessment Year 2009-2010
Appeal Filed On 23-06-2017
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B PUNE BEFORE MS. SUSHMA CHOWLA JM AND SHRI ANIL CHATURV EDI AM . / ITA NO.1592/PUN/2017 / ASSESSMENT YEAR : 2009-10 BHAGIRATHIBAI SONU BHAGARE H.NO.894/3 GANDHARVAWADI NEAR FOREST NURSERY CANAL MAKHMALABAD NASHIK - 422013 PAN : BTRPB7772B . /APPELLANT VS. DY. COMMISSIONER OF INCOME TAX CIRCLE-1 NASHIK . / RESPONDENT . / ITA NO.1593/PUN/2017 / ASSESSMENT YEAR : 2011-12 ARJUN DADA KHARATE H.NO.894/3 GANDHARVAWADI NEAR FOREST NURSERY CANAL MAKHMALABAD NASHIK - 422013 PAN : BCMPK8087Q . /APPELLANT VS. ASST. COMMISSIONER OF INCOME TAX CIRCLE-1 NASHIK . / RESPONDENT . / ITA NO.1595/PUN/2017 / ASSESSMENT YEAR : 2009-10 BALU VITTHAL KHARATE H.NO.894/3 GANDHARVAWADI NEAR FOREST NURSERY CANAL MAKHMALABAD NASHIK - 422013 PAN : BEYPK5261C . /APPELLANT VS. DY. COMMISSIONER OF INCOME TAX CIRCLE-1 NASHIK . / RESPONDENT . / ITA NO.1602/PUN/2017 / ASSESSMENT YEAR : 2011-12 PARVATABAI DADA KHARATE H.NO.894/3 GANDHARVAWADI NEAR FOREST NURSERY CANAL MAKHMALABAD NASHIK - 422013 PAN : DDZPK2026K . /APPELLANT BHAGIRATHIBAI S. BHAGARE & OTHERS 2 VS. ASST. COMMISSIONER OF INCOME TAX CIRCLE-1 NASHIK . / RESPONDENT . / ITA NO.1604/PUN/2017 / ASSESSMENT YEAR : 2009-10 USHA VITTHAL KHARATE H.NO.894/3 GANDHARVAWADI NEAR FOREST NURSERY CANAL MAKHMALABAD NASHIK - 422013 PAN : BGHPK9776M . /APPELLANT VS. DY. COMMISSIONER OF INCOME TAX CIRCLE-1 NASHIK . / RESPONDENT . / ITA NO.1605/PUN/2017 / ASSESSMENT YEAR : 2011-12 USHA VITTHAL KHARATE H.NO.894/3 GANDHARVAWADI NEAR FOREST NURSERY CANAL MAKHMALABAD NASHIK - 422013 PAN : BGHPK9776M . /APPELLANT VS. ASST. COMMISSIONER OF INCOME TAX CIRCLE-1 NASHIK . / RESPONDENT ASSESSEE BY : SHRI PRAMOD SHINGTE REVENUE BY : SHRI MUKESH JHA / DATE OF HEARING : 29.11.2017 / DATE OF PRONOUNCEMENT: 30.11.2017 / ORDER PER SUSHMA CHOWLA JM: THE ABOVE BUNCH OF APPEALS FILED BY DIFFERENT ASSES SEES ARE AGAINST THE SEPARATE ORDERS OF CIT(A)-I NASHIK ALL DATED 05-0 4-2017 RELATING TO DIFFERENT ASSESSMENT YEARS AGAINST RESPECTIVE ORDERS PASSED U NDER SECTION 143(3) R.W.S.147 OF THE INCOME-TAX ACT 1961 (IN SHORT THE ACT). 2. THE BUNCH OF APPEALS RELATING TO DIFFERENT ASSES SEES WERE HEARD TOGETHER AND ARE BEING DISPOSED OF BY THIS CONSOLIDATED ORDE R FOR THE SAKE OF CONVENIENCE. BHAGIRATHIBAI S. BHAGARE & OTHERS 3 HOWEVER IN ORDER TO ADJUDICATE THE ISSUE REFERENCE IS BEING MADE TO FACTS AND ISSUES IN ITA NO.1592/PUN/2017. 3. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL : 1. ON THE BASIS OF FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND AS PER LAW THE COMMISSIONER OF INCOME TAX (APPEAL)-I NASHIK IS NOT JUSTIFIED IN CONFIRMING THE ACTION OF THE AO OF MAKING REFERENCE FOR VALUATION OF PROPERTY TO THE DVO U/S.55A OF THE ACT. 2. ON THE BASIS OF FACTS AND IN THE CIRCUMSTANCES O F THE CASE AND AS PER LAW THE COMMISSIONER OF INCOME TAX (APPEAL)-I NASHIK IS NOT JUSTIFIED IN CONFIRMING THE ADDITION OF RS.2 54 869/- MADE BY THE AO ON ACCOUNT OF LONG TERM CAPITAL GAIN BY CONFIRMING THE SUBSTITUTION OF THE VALUATION OF DVO AS ON 01-04-1981 AGAINST THE VALUATION ADOPTED BY THE APPELLANT OF AGRICULTURE LAND SITUATED AT GAT NO.150 MAKHMALABAD NASHIK. 3. THE APPELLANT CRAVES FOR ADDITION TO DELETION ALTERATION MODIFICATION CHANGE ANY OF THE GROUNDS. 4. BRIEFLY IN THE FACTS OF THE CASE THE ASSESSEE DURING THE YEAR UNDER CONSIDERATION HAD SHOWN INCOME FROM LONG TERM CAPIT AL GAINS IN THE RETURN OF INCOME FILED IN RESPONSE TO NOTICE UNDER SECTION 14 8 OF THE ACT. THE ASSESSEE ALONG WITH OTHER FIVE MEMBERS HAD SOLD AGRICULTURAL LAND SITUATED AT GAT NO. 150 & 151 MAKHMALABAD NASHIK TO SUYOJIT GROUP FOR A TOT AL CONSIDERATION OF RS.24 50 000/-. THE SAID LAND WAS SITUATED WITHIN 8 KILOMETRES OF THE MUNICIPAL LIMITS AND HENCE GAIN ARISING OUT OF SALE OF CAPITA L ASSET WAS CHARGEABLE TO TAX. SINCE THE LAND WAS ANCESTRAL LAND THE ASSESSEE TOO K THE FAIR MARKET VALUE OF THE SAID ASSET AS ON 01-04-1981 AS PER THE REPORT OF AP PROVED VALUER AT RS.27 59 320/-. THE ASSESSING OFFICER DID NOT ACCEPT THE SAID VALUA TION AND MADE A REFERENCE TO THE DEPARTMENTAL VALUATION OFFICER (IN SHORT DVO) TO DETERMINE THE FAIR MARKET VALUE OF THE SAID LAND AS ON 01-04-1981. THE AO DETERMINED THE INCOME FROM CAPITAL GAIN AND MADE ADDITION OF RS.2 54 869/-. 5. THE SAID ADDITION WAS UPHELD BY THE CIT(A) HOLDI NG THAT THE AMENDMENT TO SECTION 55A BY THE FINANCE ACT 2012 CAME INTO EFFE CT ON 01-07-2012. THE ASSESSING OFFICER IN THE PRESENT FACTS HAD MADE A R EFERENCE TO THE DVO ON 14-11-2013 I.E. AFTER THE AMENDMENT. THE CIT(A) H ELD THE SAME TO BE AS PER THE PROVISIONS OF THE ACT. THE ASSESSEE HAD RELIED ON THE RATIO LAID DOWN BY THE HONBLE BHAGIRATHIBAI S. BHAGARE & OTHERS 4 BOMBAY HIGH COURT IN THE CASE OF CIT VS. PUJA PRINT S 360 ITR 697 (BOM.) WHEREIN THE REFERENCE WAS MADE UNDER SECTION 55A OF THE ACT MUCH BEFORE 01-04-2012 AND HENCE IT WAS HELD BY THE CIT(A) THAT THE SAID RATIO WAS NOT APPLICABLE. 6. THE ASSESSEE IS IN APPEAL AGAINST THE ORDER OF T HE CIT(A). 7. THE LD. AUTHORISED REPRESENTATIVE FOR THE ASSESS EE POINTED OUT THAT THE ISSUE RAISED IN THE PRESENT APPEAL IS SQUARELY COVE RED BY THE JUDGMENT OF THE HONBLE BOMBAY HIGH COURT IN THE CASE OF CIT VS. PU JA PRINTS (SUPRA) AND THE SAME PRINCIPLE HAS BEEN APPLIED BY THE PUNE BENCH OF THE TRIBUNAL IN THE CASE OF ACIT VS. SHRI BHIMA DADA KHARATE IN ITA NO. 1582/PUN/201 5 FOR THE ASSESSMENT YEAR 2009-10 ORDER DATED 31-10-2017. 8. THE LD. DEPARTMENTAL REPRESENTATIVE FOR THE REVE NUE ON THE OTHER HAND HEAVILY RELIED ON THE ORDER OF THE CIT(A). 9. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE RECORD. THE ISSUE WHICH ARISES IN THE PRESENT BUNCH OF APPEALS IS AGA INST THE DETERMINATION OF FAIR MARKET VALUE AS ON 01-04-1981 IN ORDER TO COMPUTE T HE INCOME FROM LONG TERM CAPITAL GAINS ON SALE OF ANCESTRAL AGRICULTURAL LAN D IN THE HANDS OF THE ASSESSEE. THE ASSESSEE HAD ADOPTED THE SAID COST OF ACQUISITI ON ON THE BASIS OF THE REPORT OF THE REGISTERED VALUER. HOWEVER THE ASSESSING OFFI CER WAS OF THE VIEW THAT THE SAID COST OF ACQUISITION DECLARED BY THE ASSESSEE WAS HI GHER AND A REFERENCE WAS MADE TO THE DVO TO ASCERTAIN THE FAIR MARKET VALUE AS ON 01-04-1981. THE DVO HAS DETERMINED THE VALUE AS LOWER THAN THE VALUE DECLAR ED BY THE ASSESSEE ON THE BASIS OF THE REPORT OF THE REGISTERED VALUER. THE ISSUE WHICH ARISES BEFORE US IS AS TO WHETHER UNDER SECTION 55A OF THE ACT SUCH A REFEREN CE CAN BE MADE IN ORDER TO DETERMINE THE FAIR MARKET VALUE AS ON 01-04-1981 W HICH IS LOWER THAN THE VALUE DECLARED BY THE ASSESSEE IN THE COMPUTATION OF INCO ME. 10. WE FIND THAT SIMILAR ISSUE AROSE BEFORE THE TRI BUNAL IN THE CASE OF RELATED PARTIES. WE MAKE REFERENCE TO THE ORDER OF THE TRI BUNAL IN THE CASE OF ACIT VS. SHRI BHAGIRATHIBAI S. BHAGARE & OTHERS 5 BHIMA DADA KHARATE (SUPRA) WHEREIN AFTER RELYING ON THE RATIO LAID DOWN BY THE HONBLE BOMBAY HIGH COURT IN THE CASE OF CIT VS. PU JA PRINTS (SUPRA) THE TRIBUNAL HELD AS UNDER : 6 . WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. WE F IND THAT THE IMPUGNED ORDER DATED 18 FEBRUARY 2011 ALLOWING THE RESPONDENT ASSESSEE'S APPEAL HOLDING THAT NO REFERENCE TO THE DEPARTMENTAL VALUATION OFFICER CAN BE MADE UNDER SECTION 55A OF THE ACT O NLY FOLLOWS THE DECISION OF THIS COURT IN THE MATTER OF DAULAL MOHTA HUF (SU PRA). THE REVENUE HAS NOT BEEN ABLE TO POINT OUT HOW THE AFORESAID DECISION I S INAPPLICABLE TO THE PRESENT FACTS NOR HAS THE REVENUE POINTED OUT THAT THE DECISION IN DAULAL MOHTA HUF (SUPRA) HAS NOT BEEN ACCEPTED BY THE REVE NUE. ON THE AFORESAID GROUND ALONE THIS APPEAL NEED NOT BE ENTERTAINED. HOWEVER AS SUBMISSIONS WERE MADE ON MERITS WE HAVE INDEPENDENTLY EXAMINED THE SAME. 7 . WE FIND THAT SECTION 55A(A) OF THE ACT VERY CLE ARLY AT THE RELEVANT TIME PROVIDED THAT A REFERENCE COULD BE MADE TO THE DEPARTMENTAL VALUATION OFFICER ONLY WHEN THE VALUE ADOPTED BY THE ASSESSEE WAS LESS THAN THE FAIR MARKET VALUE. IN THE PRESENT CASE IT IS AN UNDISPU TED POSITION THAT THE VALUE ADOPTED BY THE RESPONDENT-ASSESSEE OF THE PROPERTY AT RS.35.99 LAKHS WAS MUCH MORE THAN THE FAIR MARKET VALUE OF RS.6.68 LAK HS EVEN AS DETERMINED BY THE DEPARTMENTAL VALUATION OFFICER. IN FACT THE ASSESSING OFFICER REFERRED THE ISSUE OF VALUATION TO THE DEPARTMENTAL VALUATIO N OFFICER ONLY BECAUSE IN HIS VIEW THE VALUATION OF THE PROPERTY AS ON 1981 A S MADE BY THE RESPONDENT-ASSESSEE WAS HIGHER THAN THE FAIR MARKET VALUE. IN THE AFORESAID CIRCUMSTANCES THE INVOCATION OF SECTION 55A(A) OF THE ACT IS NOT JUSTIFIED. 8. THE CONTENTION OF THE REVENUE THAT IN VIEW O F THE AMENDMENT TO SECTION 55A(A) OF THE ACT IN 2012 BY WHICH THE WORDS 'IS LE SS THEN THE FAIR MARKET VALUE' IS SUBSTITUTED BY THE WORDS ' 'IS AT VARIANC E WITH ITS FAIR MARKET VALUE' IS CLARIFACTORY AND SHOULD BE GIVEN RETROSPECTIVE E FFECT. THIS SUBMISSION IS IN FACE OF THE FACT THAT THE 2012 AMENDMENT WAS MADE E FFECTIVE ONLY FROM 1 JULY 2012. THE PARLIAMENT HAS NOT GIVEN RETROSPECTI VE EFFECT TO THE AMENDMENT. THEREFORE THE LAW TO BE APPLIED IN THE PRESENT CASE IS SECTION 55A(A) OF THE ACT AS EXISTING DURING THE PERIOD REL EVANT TO THE ASSESSMENT YEAR 2006-07. AT THE RELEVANT TIME VERY CLEARLY RE FERENCE COULD BE MADE TO DEPARTMENTAL VALUATION OFFICER ONLY IF THE VALUE DE CLARED BY THE ASSESSEE IS IN THE OPINION OF ASSESSING OFFICER LESS THAN ITS F AIR MARKET VALUE. 9. THE CONTENTION OF THE REVENUE THAT THE REFERENC E TO THE DEPARTMENTAL VALUATION OFFICER BY THE ASSESSING OFFICER IS SUSTA INABLE IN VIEW OF SECTION 55A(A) (II) OF THE ACT IS NOT ACCEPTABLE. THIS IS F OR THE REASON THAT SECTION 55A(B)OF THE ACT VERY CLEARLY STATES THAT IT WOULD APPLY IN ANY OTHER CASE I.E. A CASE NOT COVERED BY SECTION 55A(A) OF THE ACT. IN THIS CASE IT IS AN UNDISPUTABLE POSITION THAT THE ISSUE IS COVERED BY SECTION 55A(A) OF THE ACT. THEREFORE RESORT CANNOT BE HAD TO THE RESIDUARY CL AUSE PROVIDED IN SECTION 55A(B)(II) OF THE ACT. IN VIEW OF THE ABOVE THE CB DT CIRCULAR DATED 25 NOVEMBER 1972 CAN HAVE NO APPLICATION IN THE FACE O F THE CLEAR POSITION IN LAW. THIS IS SO AS THE UNDERSTANDING OF THE STATUTO RY PROVISIONS BY THE REVENUE AS FOUND IN CIRCULAR ISSUED BY THE CBDT IS NOT BINDING UPON THE ASSESSEE AND IT IS OPEN TO AN ASSESSEE TO CONTEND T O THE CONTRARY. 10. THE CONTENTION OF THE REVENUE THAT THE ASSES SING OFFICER IS ENTITLED TO REFER THE ISSUE OF VALUATION OF THE PROPERTY TO THE DEPARTMENTAL VALUATION OFFICER IN EXERCISE OF ITS POWER UNDER SECTIONS 131 133(6) AND 142(2) OF THE ACT IS ENTIRELY BASED UPON THE DECISION OF THE GUWA HATI HIGH COURT IN SMT. AMIYA BALA PAUL (SUPRA). HOWEVER THE APEX COURT IN SMT. AMIYA BALA PAUL (SUPRA) HAS REVERSED THE DECISION OF THE GUWAHATI H IGH COURT AND HELD THAT IF THE POWER TO REFER ANY DISPUTE WITH REGARD TO THE V ALUATION OF THE PROPERTY WAS ALREADY AVAILABLE UNDER SECTIONS 131(1) 136(6) AND 142(2) OF THE ACT THERE WAS NO NEED TO SPECIFICALLY EMPOWER THE ASSES SING OFFICER TO DO SO IN BHAGIRATHIBAI S. BHAGARE & OTHERS 6 CIRCUMSTANCES SPECIFIED UNDER SECTION 55A OF THE AC T. IT FURTHER HELD THAT WHEN A SPECIFIC PROVISION UNDER WHICH THE REFERENCE CAN BE MADE TO THE DEPARTMENTAL VALUATION OFFICER IS AVAILABLE THERE IS NO OCCASION FOR THE ASSESSING OFFICER TO INVOKE THE GENERAL POWERS OF E NQUIRY. IN VIEW OF THE ABOVE AND PARTICULARLY IN VIEW OF CL EAR PROVISIONS OF LAW AS EXISTING DURING THE PERIOD RELEVANT TO ASSESSMENT Y EAR 2006-07 WE ARE OF THE VIEW THAT QUESTIONS (A) AND (B) DO NOT RAISE AN Y SUBSTANTIAL QUESTION OF LAW. REGARDING QUESTION (C):- 11 . THE TRIBUNAL BY ITS IMPUGNED ORDER HAS MERELY REMANDED THE ISSUE TO THE ASSESSING OFFICER TO DETERMINE THE DATE ON W HICH THE RESPONDENT- ASSESSEE ACQUIRED THE PROPERTY FOR THE PURPOSE OF W ORKING OUT THE COST OF ACQUISITION. NO SPECIFIC SUBMISSIONS IN REGARD TO T HIS ISSUE WAS MADE BY THE REVENUE DURING THE ORAL SUBMISSIONS. IN ANY EVENT AN ORDER OF REMAND IN THESE FACTS DOES NOT GIVE RISE TO ANY SUBSTANTIAL Q UESTION OF LAW. 12. ACCORDINGLY WE SEE NO REASON TO ENTERTAIN QUE STIONS (A) (B) AND (C) AS FORMULATED BY THE REVENUE AS THEY DO NOT RAISE ANY SUBSTANTIAL QUESTIONS OF LAW. ACCORDINGLY APPEAL IS DISMISSED WITH NO ORDER AS TO COSTS. 11. THE TRIBUNAL WHILE DECIDING THE ISSUE HAD ALSO REFERRED TO THE OBSERVATION OF THE HONBLE BOMBAY HIGH COURT IN THE CASE OF CIT VS . PUJA PRINTS (SUPRA) THAT THE PARLIAMENT HAD NOT GIVEN RETROSPECTIVE EFFECT TO TH E AMENDMENT AND IT WAS HELD THAT THE LAW TO BE APPLIED WAS AS PER THE SECTION AS EXI STING DURING THE PERIOD RELATING TO THE ASSESSMENT YEAR 2006-07. 12. THE ISSUE ARISING IN THE PRESENT APPEAL BEFORE US IS IDENTICAL TO THE ISSUE BEFORE THE HONBLE BOMBAY HIGH COURT IN THE CASE OF CIT VS. PUJA PRINTS (SUPRA) AND ALSO BEFORE THE PUNE BENCH OF THE TRIBUNAL IN T HE CASE OF ACIT VS. SHRI BHIMA DADA KHARATE (SUPRA). FOLLOWING THE SAME PARITY OF REASONING WE REVERSE THE ORDER OF THE CIT(A) AND HOLD THAT THE FAIR MARKET V ALUE DECLARED BY THE ASSESSEE AS ON 01-04-1981 ON THE BASIS OF REPORT OF REGISTERED VALUER IS TO BE ADOPTED FOR COMPUTING THE INCOME FROM LONG TERM CAPITAL GAINS. THE AMENDMENT WHICH WAS BROUGHT IN BY FINANCE ACT 2012 IS TO BE APPLIED PR OSPECTIVELY AND NOT TO THE YEAR UNDER CONSIDERATION I.E. ASSESSMENT YEAR 2009-10. ACCORDINGLY WE ALLOW THE CLAIM OF THE ASSESSEE. THE GROUNDS OF APPEAL RAISED BY T HE ASSESSEE ARE THUS ALLOWED. 13. IN THE BUNCH OF APPEALS IN THE CASE OF OTHER AS SESSEES THE YEARS UNDER APPEAL ARE 2009-10 AND 2011-2012 WHICH ARE ALSO PRI OR TO ASSESSMENT YEAR 2012- BHAGIRATHIBAI S. BHAGARE & OTHERS 7 13 AND CONSEQUENTLY THE AMENDED PROVISIONS OF SECTI ON 55A OF THE ACT ARE NOT APPLICABLE. ACCORDINGLY WE ALLOW THE CLAIM OF THE OTHER ASSESSEES IN THE ABOVE APPEALS LISTED FOR HEARING. THUS GROUNDS OF APPEA L RAISED BY THE RESPECTIVE ASSESSEES ARE ALLOWED. 14. IN THE RESULT ALL THE APPEALS OF THE RESPECTIV E ASSESSEES ARE ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 30 TH DAY OF NOVEMBER 2017. SD/- SD/- (ANIL CHATURVEDI) (SUSHMA CHOWLA) / ACCOUNTANT MEMBER / JUDICIAL MEMBER PUNE; DATED : 30 TH NOVEMBER 2017. / COPY OF THE ORDER FORWARDED TO : / BY ORDER //TRUE COPY// //TRUE COPY// SENIOR PRIVAT E SECRETARY / ITAT PUNE 1. / THE APPELLANT 2. / THE RESPONDENT 3. THE CIT(A)-I NASHIK 4. CIT-I NASHIK 5. B BENCH PUNE; 6. / GUARD FILE.