The ITO, Ward-2(4),, Surat v. Smt. Shardaben Hiralal Prajapati, Surat

ITA 2073/AHD/2011 | 2005-2006
Pronouncement Date: 24-04-2015 | Result: Dismissed

Appeal Details

RSA Number 207320514 RSA 2011
Assessee PAN ABCPP1405F
Bench Ahmedabad
Appeal Number ITA 2073/AHD/2011
Duration Of Justice 3 year(s) 8 month(s)
Appellant The ITO, Ward-2(4),, Surat
Respondent Smt. Shardaben Hiralal Prajapati, Surat
Appeal Type Income Tax Appeal
Pronouncement Date 24-04-2015
Appeal Filed By Department
Order Result Dismissed
Bench Allotted B
Tribunal Order Date 24-04-2015
Date Of Final Hearing 22-04-2015
Next Hearing Date 22-04-2015
Assessment Year 2005-2006
Appeal Filed On 23-08-2011
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH AHMEDABAD BEFORE SHRI G.D. AGRAWAL VICE PRESIDENT AND SHRI RAJPAL YADAV JUDICIAL MEMBER ITA NO. 2073/AHD/2011 / ASSESSMENT YEAR: 2005-06 INCOME-TAX OFFICER WARD-2(4) SURAT VS. SMT. SHARDABEN HIRALAL PRAJAPATI 2/627 SURMAVAD RUSTAMPURA SURAT PAN : ABCPP 1405 F / // / (APPELLANT) / // / (RESPONDENT) REVENUE BY : SHRI ROOPCHAND SR. DR ASSESSEE(S) BY : SHRI DIVYAKANT PARIKH AR ! '#$ ! '#$ ! '#$ ! '#$ / DATE OF HEARING : 22/04/2015 %& ! '#$ / // / DATE OF PRONOUNCEMENT: 24/04/2015 '( '( '( '(/ // / O R D E R PER G.D. AGRAWAL VICE PRESIDENT: THIS IS AN APPEAL FILED BY THE REVENUE AND IS DIREC TED AGAINST THE ORDER OF THE COMMISSIONER OF INCOME-TAX(APPEALS)-II SURAT DATED 07.06.2011 PERTAINING TO THE ASSESSMENT YEAR 2005-0 6. 2. THE ONLY GROUND RAISED IN THIS APPEAL BY THE REV ENUE READS AS UNDER: ON THE FACTS AND CIRCUMSTANCE OF THE CASE AND IN LA W THE LD. CIT(A)-II SURAT HAS ERRED IN DELETING THE DIFFERENCE IN VALUE OF RS.19 48 500/- (RS.42 48 500 RS.23 00 000) AND CORRESPONDING VAL UE OF DIFFERENTIAL STAMP ITA NO.2073/AHD/2011 - SMT SHARDABEN HIRALAL PRAJAPATI VS. ITO AY: 2005-06 2 DUTY OF RS.1 62 875/- WERE ADDED TO THE TOTAL INCOM E OF THE ASSESSEE U/S 69B OF THE INCOME TAX ACT 1961. 3. AT THE TIME OF HEARING BEFORE US THE LD. DEPART MENTAL REPRESENTATIVE SOUGHT FOR TIME ON THE GROUND THAT SOME INFORMATION IS REQUIRED FROM THE ASSESSING OFFICER. HOWEVER IT IS AN OLD MATTER AN D WE FIND THAT ALL THE NECESSARY DETAILS ARE ALREADY ON RECORD. THEREFORE THE LD. DEPARTMENTAL REPRESENTATIVES REQUEST FOR ADJOURNMENT IS REJECTE D AND WE PROCEEDED FOR HEARING THE APPEAL. 4. IT IS SUBMITTED BY THE LD. DEPARTMENTAL REPRESEN TATIVE THAT DURING THE ACCOUNTING YEAR RELEVANT TO ASSESSMENT YEAR UNDER C ONSIDERATION THE ASSESSEE HAD PURCHASED NON-AGRICULTURAL LAND FOR A CONSIDERATION OF RS.23 LACS. HOWEVER FROM THE SALE DEED IT WAS FOUND TH AT THE STAMP DUTY AUTHORITIES HAVE VALUED THIS PROPERTY AT RS.42 48 5 00/-. THE ASSESSEE AS A BUYER OF THE LAND HAS PAID THE STAMP DUTY ON THE A BOVE VALUE. HE THEREFORE SUBMITTED THAT THE ACTUAL PURCHASE PRICE CAN NEVER BE LESS THAN THE STAMP DUTY VALUATION AND THEREFORE THE ASSESSI NG OFFICER RIGHTLY TREATED THE DIFFERENCE BETWEEN THE STAMP DUTY VALUA TION AND SALE PRICE SHOWN BY THE ASSESSEE AS UNEXPLAINED INVESTMENT U/S 69B OF THE ACT. THE CIT(A) DELETED THE ADDITION WITHOUT PROPERLY CONSID ERING THE FACTS OF THE CASE. HE THEREFORE SUBMITTED THAT THE ORDER OF T HE CIT(A) SHOULD BE REVERSED AND THAT OF THE ASSESSING OFFICER SHOULD B E SUSTAINED. 5. THE LD. COUNSEL FOR THE ASSESSEE ON THE OTHER H AND STATED THAT MERELY BECAUSE THE STAMP DUTY VALUATION WAS MORE THAN THE ACTUAL PRICE CONSIDERATION CANNOT BE A GROUND FOR MAKING ADDITIO N U/S 69B OF THE ACT. THE REVENUE HAS NOT BROUGHT ON RECORD ANY EVIDENCE THAT THE PAYMENT ITA NO.2073/AHD/2011 - SMT SHARDABEN HIRALAL PRAJAPATI VS. ITO AY: 2005-06 3 MADE BY THE ASSESSEE WAS MORE THAN THE PAYMENT RECO RDED IN THE SALE DEED. HE FURTHER SUBMITTED THAT THE SECTION 50C WHEREIN T HE STAMP DUTY VALUATION IS CONSIDERED THE ACTUAL SALE PRICE FOR THE PURPOSE OF CAPITAL GAIN IS APPLICABLE ONLY IN THE CASE OF SELLER AND CORRESPON DING PRESUMPTION CANNOT BE MADE IN THE CASE OF THE BUYER. IN SUPPORT OF TH IS CONTENTION HE RELIED UPON THE DECISION OF HONBLE JURISDICTIONAL HIGH CO URT IN THE CASE OF CIT VS. MEGHJIBHAI POPATBHAI VIRANI VIDE TAX APPEAL NO.46 O F 2013. 6. WE HAVE CAREFULLY CONSIDERED THE ARGUMENTS OF BO TH THE SIDES AND PERUSED THE MATERIAL PLACED BEFORE US. THE ASSESSI NG OFFICER MADE THE ADDITION FOR THE DIFFERENCE BETWEEN THE STAMP DUTY VALUATION AND ACTUAL SALE CONSIDERATION AS UNEXPLAINED INVESTMENT U/S 69 B. HOWEVER THE ACTUAL SALE PRICE AND THE STAMP DUTY VALUATION CAN BE DIFF ERENT FOR VARIETY OF REASONS. THAT IF THE PURCHASE PRICE PAID BY THE ASS ESSEE IS LESS THAN THE STAMP DUTY VALUATION IT MAY BE GOOD AND SUFFICIENT CAUSE FOR MAKING NECESSARY INQUIRY BY THE ASSESSING OFFICER SO AS TO FIND OUT WHETHER THE ASSESSEE MADE ANY PAYMENT OVER AND ABOVE THE DISCLO SED SALE CONSIDERATION; BUT IT BY ITSELF IS NOT SUFFICIENT TO PRESUME THAT THE ASSESSEE MADE THE INVESTMENT WHICH WAS NOT DISCLOSED BY THE ASSESSEE SO AS TO INVOKE THE PROVISIONS OF SECTION 69B. ADMITTEDLY THE ASSESSING OFFICER HAS NOT BROUGHT ON RECORD ANY EVIDENCE THAT THE ACTUAL PURCHASE CONSIDERATION PAID BY THE ASSESSEE WAS OVER AND ABOVE THE SUM OF RS.23 LACS RECORDED IN THE SALE DEED. THE DEEMING PROVISION OF SECTION 50C WHEREIN THE STAMP DUTY VALUATION IS CONSIDERED ACTUAL SALE CONSIDERAT ION FOR THE PURPOSE OF CAPITAL GAIN IS APPLICABLE ONLY IN THE CASE OF SELL ER AND NOT IN THE CASE OF BUYER FOR THE RELEVANT ASSESSMENT YEAR. WHILE TAKIN G THIS VIEW WE DERIVE SUPPORT FROM THE DECISION OF HONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF MEGHJIBHAI POPATBHAI VIRANI (SUPRA). IN VIEW OF ABOVE FACTUAL AND LEGAL ITA NO.2073/AHD/2011 - SMT SHARDABEN HIRALAL PRAJAPATI VS. ITO AY: 2005-06 4 POSITION WE DO NOT FIND ANY JUSTIFICATION TO INTER FERE WITH THE ORDER OF THE CIT(A) AND THE SAME IS SUSTAINED. THUS THE REVENUE S APPEAL IS DISMISSED. 7. IN THE RESULT THE APPEAL FILED BY THE REVENUE I S DISMISSED. ORDER PRONOUNCED IN THE COURT ON 24 TH APRIL 2015 AT AHMEDABAD. SD/- SD/- (RAJPAL YADAV) JUDICIAL MEMBER (G.D. AGRAWAL) VICE-PRESIDENT AHMEDABAD; DATED 24/04/2015 BIJU T. PS '( ! ') *')' '( ! ') *')' '( ! ') *')' '( ! ') *')'/ COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ++ ' / CONCERNED CIT 4. ( ) / THE CIT(A) 5. )/0 ' / DR ITAT AHMEDABAD 6. 02 3 / GUARD FILE . '( '( '( '( / BY ORDER TRUE COPY 4 44 4/ // / +5 +5 +5 +5 ( DY./ASSTT.REGISTRAR) / ITAT AHMEDABAD