DCIT Cir, 22(1), v. Khosla Cold Storage,

ITA 1724/DEL/2008 | 2004-2005
Pronouncement Date: 25-01-2010 | Result: Allowed

Appeal Details

RSA Number 172420114 RSA 2008
Assessee PAN AAAFK4962G
Bench Delhi
Appeal Number ITA 1724/DEL/2008
Duration Of Justice 1 year(s) 8 month(s) 19 day(s)
Appellant DCIT Cir, 22(1),
Respondent Khosla Cold Storage,
Appeal Type Income Tax Appeal
Pronouncement Date 25-01-2010
Appeal Filed By Department
Order Result Allowed
Bench Allotted D
Tribunal Order Date 25-01-2010
Date Of Final Hearing 25-01-2010
Next Hearing Date 25-01-2010
Assessment Year 2004-2005
Appeal Filed On 06-05-2008
Judgment Text
ITA NO. 1724/DEL/2008 A.Y. 2004-05 1 IN THE INCOMETAX APPELATE TRIBUNAL DELHI BENCH D: NEW DELHI BEFORE SHRI C.L. SETHI JUDICIAL MEMBER & SHRI SHAMIM YAHYA ACCOUNTANT MEMBER ITA NO. 1724/DEL/2008 A.Y. : 2004-05 ASST . COMMISSIONER OF INCOME TAX VS. M/S KHOSLA COLD STORAGE CIRCLE-22(1) NEW DELHI M-42 GREATER KAILASH PART-II NEW DELHI (PAN: AAAFK4962G) (APPELLANT) (RESPONDENT) ASSESSEE BY : NONE DEPARTMENT BY : SHRI B.K. GUPTA SR. DR O R D E R PER SHAMIM YAHYA : AM THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST THE ORDER OF LD. CIT(A) 5.2.2008 FOR THE ASSESSMENT YEAR 2004-05. 2. THE ISSUES RAISED READ AS UNDER:- (I) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE LD. CIT(A) HAS ERRED IN DIRECTING THE AO TO CONSIDER THE PROPE RTY AS COMMERCIAL PROPERTY AND NOT AS RESIDENTIAL PROPERT Y TO FIND OUT THE VALUE AS ON 1..4.81. (II) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE LD. CIT(A) HAS ERRED IN IGNORING THE FACT THAT AS PER MASTER P LAN OF DELHI THE PROPERTY IS RESIDENTIAL PROPERTY. 3. IN THIS CASE THE ASSESSEE HAD SHOWN CAPITAL GAIN INCOME DURING THE YEAR. THE CAPITAL GAIN WAS EARNED ON SALE OF 221 5 SQ.YARD LAND AT 6 BHAMA SHAH MARG DELHI. THE ASSESSEE HAS TAKEN FAI R MARKET VALUE AS ON 1.4.81 AS RS. 32 40 000/-. AO WAS OF THE OPINI ON THAT THE SAID LAND ITA NO. 1724/DEL/2008 A.Y. 2004-05 2 WAS RESIDENTIAL PROPERTY AND BASED ON REPORT APPEAR ING IN FINANCIAL EXPRESS HE HAS OPINED THAT RATE SHOULD BE RS. 800 PER SQMTR. 4. AGAINST THIS ORDER THE ASSESSEE APPEALED BEFORE THE LD. CIT(A). LD. CIT(A) OBSERVED THAT AO HAD CONSIDERED THE PROPERTY IN QUESTION AS THE RESIDENTIAL PROPERTY BASICALLY ON THE GROUND THAT T HE STRUCTURE I.E. COLD STORAGE WAS DEMOLISHED AND NO SANCTION WAS GIVEN B Y THE MCD FOR THE CHANGE OF LAND USE. LD. CIT(A) FURTHER OPINED THA T THE TYPE OF PROPERTY AS WHETHER IT WAS RESIDENTIAL OR COMMERCIAL HAS TO BE DECIDED ON THE BASIS OF ITS USING AS ON 1.4.81 AND NOT ON THE BASI S OF ITS PRESENT USE. LD. CIT(A) CONCLUDED THAT IT WAS OBVIOUS FROM THE D ETAILS FURNISHED BY THE ASSESSEE THAT PROPERTY WAS BEING USED FOR COMM ERCIAL PURPOSES AS ON DATE WITH FAIR MARKET VALUE HAS BEEN COMPUTED. ACCORDINGLY HE DIRECTED THE AO TO ADOPT THE RATE FOR COMMERCIAL PU RPOSES OF COMPUTATION OF CAPITAL GAIN. 5. AGAINST THIS ORDER THE REVENUE IS IN APPEAL BEFO RE US. 6. WE HAVE HEARD THE LD. DR AND PERUSED THE RECORDS . NONE APPEARED ON BEHALF OF THE ASSESSEE DESPITE SERVICE OF NOTI CE. WE FIND THAT THE LD. CIT(A) DIRECTED THE AO TO TREAT THE SAME AS COMMERC IAL PROPERTY ON 1.4.81 ON THE BASIS OF SUBMISSION BY ASSESSEE BEFOR E LD. CIT(A). IT IS ALSO NOT THE CASE THAT THE DISPUTED MATTER OF VALUA TION HAS BEEN REFERRED TO DVO FOR DETERMINATION OF VALUE. UNDER THE CI RCUMSTANCES WE DEEM IT APPROPRIATE TO REMIT THIS ISSUE TO THE FILES OF THE AO TO CONSIDER THE SAME AFRESH. NEEDLESS TO ADD THAT THE ASSESSEE SH OULD BE GIVEN ADEQUATE OPPORTUNITY OF BEING HEARD. ITA NO. 1724/DEL/2008 A.Y. 2004-05 3 7. IN THE RESULT THE APPEAL FILED BY THE REVENUE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 25/01/2010 UP ON CONCLUSION OF THE HEARING. SD/- SD/- [C.L. SETHI] [SHAMIM YAHYA] JUDICIAL MEMBER ACCOUNTANT MEMBER DATE: 25/01/ 2010 SRB COPY FORWARDED TO: - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT (A) 5. DR ITAT TRUE COPY BY ORDER DEPUTY REGISTRAR ITAT DELHI BENCHES