ACIT, Faridabad v. M/s Dinesh garg,, Faridabad

ITA 1677/DEL/2010 | 2007-2008
Pronouncement Date: 15-07-2011 | Result: Dismissed

Appeal Details

RSA Number 167720114 RSA 2010
Assessee PAN ACFPK1178E
Bench Delhi
Appeal Number ITA 1677/DEL/2010
Duration Of Justice 1 year(s) 3 month(s)
Appellant ACIT, Faridabad
Respondent M/s Dinesh garg,, Faridabad
Appeal Type Income Tax Appeal
Pronouncement Date 15-07-2011
Appeal Filed By Department
Order Result Dismissed
Bench Allotted B
Tribunal Order Date 15-07-2011
Date Of Final Hearing 08-07-2011
Next Hearing Date 08-07-2011
Assessment Year 2007-2008
Appeal Filed On 15-04-2010
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH B : NEW DELHI) BEFORE SHRI RAJPAL YADAV JUDICIAL MEMBER AND SHRI B.C. MEENA ACCOUNTANT MEMBER ITA NO.1677/DEL./2010 (ASSESSMENT YEAR : 2007-08) ACIT CIRCLE 1 VS. SHRI DINESH GARG FARIDABAD. C/O PAWAN KUMAR AMIT KUMAR SARAI KHAWAJA FARIDABAD. (PAN : ACFPK1178E) (APPELLANT) (RESPONDENT) ASSESSEE BY : MS. CHARITRA GUPTA CA REVENUE BY : MS. Y. KAKKAR SENIOR DR ORDER PER B.C. MEENA ACCOUNTANT MEMBER : THIS APPEAL FILED BY THE REVENUE ARISES OUT OF THE ORDER OF THE CIT (APPEALS) FARIDABAD DATED 03.02.2010 FOR THE ASSES SMENT YEAR 2007-08. THE GROUNDS OF APPEAL TAKEN BY THE REVENUE READ AS UNDER :- 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE THE LEARNED CIT (A) HAS ERRED ON FACTS AND IN LAW IN DE CLARING THE REFERENCE TO VALUATION OFFICER INVALID DISREGARDING THE FACT THAT THE ASSESSEE HAD FAILED TO SHOW THE CORRECT VALUE O F PROPERTIES PURCHASED AND SOLD BY HIM. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E THE LEARNED CIT (A) HAS ERRED ON FACTS AND IN LAW IN DE LETING THE ADDITION OF RS.7 02 160/- MADE BY THE ASSESSING OFF ICER ON ACCOUNT OF DIFFERENCE IN VALUATION IN RESPECT OF PR OPERTY B-859 GREEN FIELD COLONY FARIDABAD ESPECIALLY WHEN THE A SSESSEE HAD ITA NO.1677/DEL./2010 2 FAILED TO EXPLAIN THE REASON IN RESPECT OF DIFFEREN CE SHOWN BY THE ASSESSEE AND ESTIMATED BY THE VALUATION OFFICER. 3. THAT THE APPELLANT CRAVES FOR THE PERMISSION TO ADD DELETE OR AMEND THE GROUNDS OF APPEAL BEFORE OR AT THE TIM E OF HEARING OF APPEAL. 2. THE ASSESSEE IS ENGAGED IN THE BUSINESS OF TRADI NG OF PLOTS AND PROPERTIES AND WHOLESALE OF KIRYANA GOODS. THE ASS ESSING OFFICER MADE A REFERENCE TO THE VALUATION BY HOLDING THAT THE PROP ERTIES APPEAR TO HAVE BEEN SOLD AT LOWER PRICE THAN THE CIRCLE RATE PRESCRIBED IN THE AREA. THERE WAS A POSITIVE DIFFERENCE IN VALUATION AND SALE VALUE DEC LARED IN RESPECT OF PROPERTY NO.B-859 GREEN FIELD COLONY FARIDABAD. THE ADDIT ION OF RS.7 02 160/- WAS MADE ON ACCOUNT OF THIS DIFFERENCE WHICH HAS BEEN D ELETED BY CIT (A). 3. WHILE PLEADING ON BEHALF OF THE REVENUE LEARNED DR SUBMITTED THAT THE CIT (A) WAS NOT JUSTIFIED IN DELETING THE ADDITION BECAUSE THERE WAS A WIDE VARIATION IN THE SALE PRICE DECLARED BY THE ASSESSE E AND THE VALUE ADOPTED BY THE VALUATION OFFICER. THEREFORE THE CIT (A) WAS NOT JUSTIFIED IN DELETING THE ADDITION. HE ALSO RELIED ON THE ORDER OF THE ASSES SING OFFICER. LEARNED DR ALSO RELIED ON THE DECISION OF HON'BLE RAJASTHAN HI GH COURT IN THE CASE OF SMT. AMAR KUMARI SURANA VS. CIT REPORTED IN 226 ITR 344 4. ON THE OTHER HAND THE LEARNED AR SUBMITTED THAT THE ASSESSEE WAS TRADING IN THE PROPERTIES AND THE ASSESSING OFFICER HAS NOT REJECTED THE BOOKS OF ACCOUNT. HE HAS REFERRED TO THE VALUATION ONLY ON THE APPREHENSION WHICH ITA NO.1677/DEL./2010 3 IS CLEAR FROM HIS OBSERVATION IN PARA 3 OF HIS ORDE R WHERE HE STATES THAT THE ASSESSEE HAS PURCHASED AND SOLD VARIOUS PROPERTIES WHICH H APPEAR TO HAVE BEEN SOLD AT LOWER PRICE THAN CIRCLE RATES. THUS ASSESSING OFFICER HIMSELF WAS NOT SURE ABOUT THE LOW PRICE OF THE PLOT SOLD. THEREFORE THE REFERENCE TO VALUATION CELL ITSELF IS NOT JUSTIFIED. FURTHER AS SESSEE WAS TRADING OF PROPERTIES HENCE THESE WERE TRADING ASSETS THEREF ORE WITHOUT REJECTING THE BOOKS OF ACCOUNT NO ADDITION CAN BE MADE. HE FINA LLY RELIED ON THE ORDER OF THE CIT (A). LEARNED AR ALSO SUBMITTED THAT THE FACTS OF THE CASE IN SMT. AMAR KUMAR SURANA RELIED ON BY THE LEARNED DR ARE C OMPLETELY DIFFERENT FROM THE FACTS OF THE ASSESSEES CASE. IN THAT CAS E THE ADDITION WAS MADE FOR AMOUNT OF INVESTMENT NOT FULLY DISCLOSED IN BOOKS O F ACCOUNT U/S 69B OF INCOME-TAX ACT ON THE BASIS OF VALUATION BASED ON C OMPARABLE CASES. IN ASSESSEES CASE IT IS TRADING ASSETS AND NOT AN IN VESTMENT. BOOKS OF ACCOUNT ARE NOT REJECTED. THE VALUATION IS NOT BASED ON AN Y COMPARABLE SALES. FURTHER THE REVENUE HAS FAILED TO PROVE THAT THE A CTUAL CONSIDERATION WAS MORE THAN WHAT IS DISCLOSED IN BOOKS BY THE ASSESSEE. T HERE IS NO MATERIAL ON RECORD WHICH COULD SHOW THAT THE ASSESSEE HAS NOT D ECLARED THE CONSIDERATION RECEIVED IN RESPECT OF SALE OF THE PLOT. IN VIEW O F THESE THE CASE LAW IS NOT APPLICABLE. THE APPEAL OF REVENUE DESERVES TO BE D ISMISSED. 5. WE HAVE HEARD BOTH THE SIDES. AFTER CONSIDERATI ON THE FACTS AND CASE LAWS RELIED UPON WE HOLD THAT THE ASSESSEE WAS DOI NG THE BUSINESS OF SALE OF ITA NO.1677/DEL./2010 4 PROPERTIES AND PLOTS. THE ASSESSING OFFICER DID NO T REJECT THE BOOKS OF ACCOUNT AND MADE A REFERENCE TO THE VALUATION OFFIC ER ONLY ON THE BASIS OF AN APPREHENSION. HE HAS MADE THE ADDITION IN RESPECT OF THE PROPERTY WHERE THERE WAS A POSITIVE DIFFERENCE BUT HE HAS IGNORED THE VALUATION OF OTHER PROPERTIES WHERE THE DIFFERENCE WAS IN NEGATIVE. T HE ASSESSING OFFICERS PRESUMPTION THAT THE ASSESSEE SHOULD HAVE SOLD THE PROPERTY AT HIGHER PRICE IS NOT SUPPORTED BY ANY CREDITABLE EVIDENCE. NO EVIDE NCE OF ANY FORM THAT SHOWS THAT THE ASSESSEE HAS COLLECTED MORE THAN WHA TEVER STATED IN THE SALE DEEDS. THE VALUATION IS ALSO NOT BASED ON COMPARAB LE CASE. IN SUCH A SITUATION WE UPHOLD THE ORDER OF THE CIT (A) AND D ISMISS THE GROUNDS TAKEN BY THE REVENUE IN THE APPEAL. 6. IN THE RESULT THE APPEAL OF THE REVENUE STANDS DISMISSED. ORDER PRONOUNCED IN OPEN COURT ON THIS 15 TH DAY OF JULY 2011. SD/- SD/- (RAJPAL YADAV) (B.C. MEENA) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED THE 15 TH DAY OF JULY 2011/TS COPY FORWARDED TO: 1.APPELLANT 2.RESPONDENT 3.CIT 4.CIT(A) FARIDABAD. 5.CIT(ITAT) NEW DELHI. AR ITAT NEW DELHI.