JAYRAJ VASANT PARLEKAR, MUMBAI v. ITO 26(2)(1), MUMBAI

ITA 2902/MUM/2013 | 2009-2010
Pronouncement Date: 26-10-2016 | Result: Allowed

Appeal Details

RSA Number 290219914 RSA 2013
Assessee PAN AGBPP7518F
Bench Mumbai
Appeal Number ITA 2902/MUM/2013
Duration Of Justice 3 year(s) 6 month(s) 10 day(s)
Appellant JAYRAJ VASANT PARLEKAR, MUMBAI
Respondent ITO 26(2)(1), MUMBAI
Appeal Type Income Tax Appeal
Pronouncement Date 26-10-2016
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted J
Tribunal Order Date 26-10-2016
Date Of Final Hearing 11-02-2015
Next Hearing Date 11-02-2015
Assessment Year 2009-2010
Appeal Filed On 15-04-2013
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL J BENCH MUMBAI BEFORE SHRI MAHAVIR SINGH JM AND SHRI RAJESH KUMAR AM ./ I.T.A. NO. 2902 /MUM/20 1 3 ( / ASSESSMENT YEAR : 20 0 9 - 10 ) SHRI JAYRAJ VASANT PARLEKAR 403 4 TH FLOOR KRYPTON TWIN TOWER WING A KRISHNA PRESS COMPOUND 156 JAKARIA BUNDER ROAD SEWARI (W) MUMBAI - 400015 / VS. INCOME TAX OFFICER 26 ( 2 ) ( 1 ) MUMBAI . ./ PAN : AGBPP7518F / ASSESSEE BY SHRI M S SHETH / REVENUE BY S MT.S HABANA PARVIN / DATE OF HEARING : 1 0 .5.2016 / DATE OF PRONOUNCEMENT : 26. 10.2 016 / O R D E R PER RA JESH KUMAR A. M: THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER DATED 13.2. 201 3 OF COMMISSIONER OF INCOME TAX (APPEALS) - 28 MUMBAI (HEREINAFTER CALLED AS THE CIT(A) FOR ASSESSMENT YEAR 200 9 - 10. . 2. FACTS OF THE CASE ARE THAT THE ASSESSEE FILED HIS RETURN OF INCOME ON 16.9.2009 DECLARING A TOTAL INCOME OF RS.1 43 220/ - . THE CASE WAS SELECTED FOR SCRUTINY AND THE STATUTORY NOTICES UNDER SECTION 143(2) AND 142(1) OF THE 2 ITA NO. 2902 /MUM/ 20 1 3 INCOME TAX ACT 1961 WERE ISSUED AND SERVED UPON THE ASSESSEE. DURING TH E COURSE OF ASSESSMENT PROCEEDINGS THE AO ON THE BASIS OF AIR INFORMATION FOUND THAT THE ASSESSEE HAS NOT OFFERED TO TAX THE LONG TERM CAPITAL GAINS ON THE TRANSFER OF IMMOVABLE PROPERTY AND THE VALUE OF THE SAME AS APPEARING IN THE AIR INFORMATION W AS RS.31 08 651/ - . DURING THE COURSE OF ASSESSMENT PROCEEDING THE ASSESSEE FILED A COPY OF SALE DEED WHICH HE CLAIMED TO BE IGNORANT AND NOT KNOWING . THE ASSESSEE ALSO SUBMITTED THAT HE NEVER EXECUTED ANY SALE DEED ON 1.12.2008 HOWEVER IT IS EVIDENT FR OM THE SALE DEED THAT THE ASSESSEE HA S SOLD THE TENEMENT NO.606 6 TH FLOOR OMKAR CO - OPERATIVE HOUSING SOCIETY GRANT ROAD (W) MUMBAI - 400007 ADMEASURING TO 225 SQ.FT. TO MRS. SA YALI SATISH SAWANT FOR A TOTAL CONSIDERATION OF RS.10 LAKHS. THE AO ADOPTED THE VALUE OF THE SAID FLAT AS PER STAMP VALUATION AUTHORITY AT RS.31 08 651/ - IN ORDER TO CALCULATE CAPITAL GAIN ON THE SAID PROPERTY . T HE ASSESSEE DURING THE COURSE OF ASSESSMENT PROCEEDINGS SUBMITTED THAT THE SAID PROPERTY WAS INHERITED PROPE RTY AND THE SAME WAS DEVOLVED TO ME FROM HIS MOTHER WHO DIED IN THE YEAR 1974. THE ASSESSEE SUBMITTED THAT HE WAS THREATENED TO SIGN DOCUMENTS QUA THE TENEMENT TO MRS. SAYALI SATISH SAWANT WITHOUT ANY CONSIDERATION OF WHATEVER NATURE AN D TILL THAT DA TE HE HAS NOT RECEIVED ANY MONEY AT ALL . ACCORDING TO THE AO THE RE WAS A RECEIPT /ACKNOWLEDGEMENT ATTACHED WITH THE SALE DEED WHICH STATED THAT THE ASSESSEE HAS RECEIVED RS.10 LAKSH AS FULL AND FINAL CONSIDERATION ON TRANSFER OF THE SAID PROPERTY . I N O RDER TO 3 ITA NO. 2902 /MUM/ 20 1 3 CORROBORATE THE AO VIDE ORDER - SHEET NOTING DATED 17.10.2011 THE ASSESSEE WAS ASKED TO PRODUCE MRS. SAYALI S SAWANT TO KNOW THE TRUTH BEHIND THE SAID TRANSFER. HOWEVER THE ASSESSEE STATED THAT HE COULD NOT FOUND MRS. SAYALI S SAWANT AN D COULD NOT FILE ANY CONFIRMATION AS DESIRED BY THE AO. ULTIMATELY T HE ASSESSEE SUBMITTED BEFORE THE AO THAT HE DID NOT RECEIVE ANY MONEY WHICH COULD BE VERIFIED FROM THE BANK ACCOUNT AND THEREFORE THE GAIN ON SAID TRANSACTION WAS NO LIABLE TO CAPITA L GAIN TAX IN HIS HAND . HOWEVER THE AO DISBELIEVED AND REJECTED THE SUBMISSIONS OF THE ASSESSEE AND CALCULATED THE CAPITAL GAIN AT RS.30.36 193/ - AND ADDED THE SAME TO THE TOTAL INCOME OF THE ASSESSEE. IN APPELLATE PROCEEDINGS THE LD.FAA ALSO CONFIRM ED THE ACTION OF THE AO AND DISMISSED THE APPEAL OF THE ASSESSEE BY OBSERVING AND HOLDING AS UNDER : 6. I HAVE CONSIDERED THE FACTS OF THE CASE I AM OF THE CONSIDERED OPINION THAT THE PROPERTY HAD ACTUALLY BEEN TRANSFERRED BY THE A S SES S EE IN TERMS OF SALE DEED DATE 1. 1 2 . 2008 AND HAS BEEN REGISTERED BY THE SUB - REGIST R AR . THIS PROPERTY HAS BEEN VALUED BY THE STAMP VALUATION AUTHORITY AT RS.31 08 651/ - RS.31 08 651/ - . IT ALSO APPEARS THAT THE ASSESSEE HAS RECEIVED A SUM OF RS. 10 OO OOO/ - IN LIEU OF TRA NSFER OF THIS PROPERTY. IF THAT BE THE CA SE THE TRANSACTION IS COMPLETED AND TRA NSACTION WAS DONE FRAUDULENTLY BY TRANSFEREE DOES NOT HELP HIM MUCH IN INCOME TAX PROCEEDINGS UNLESS AND UNTIL THE ASSESSEE GETS AN ORDER FROM A CRIMINAL COURT TO THIS EFFECT . THE ASSESSEES CLAIM THAT PROPERTY WAS CO - OWNED BY HIS THREE SISTERS IS NOT ACCEPTABLE AS NO EVIDENCE IN THIS REGARD IS GIVE BY THE ASSESSEE. HAS IT BEEN SO THE REGISTRAR MIGHT HAVE NOT REGISTERED TH E PROPERTY . 7. IN THIS REGARD I WOULD ALSO LIKE TO REPRODUCE THE PROVISIONS OF SECTION 50C OF THE INCOME TAX ACT AS UNDER : 4 ITA NO. 2902 /MUM/ 20 1 3 50C. (1) WHERE THE CONSIDERATION RECEIVED OR ACCRUING AS A RESULT OF THE TRANSFER BY AN ASSESSEE OF A CAPITAL ASSET BEING LAND OR BUILDING OR BOTH IS LESS THAN THE VALUE ADOP TED OR ASSESSED 16 [OR ASSESSABLE] BY ANY AUTHORITY OF A STATE GOVERNMENT (HEREAFTER IN THIS SECTION REFERRED TO AS THE 'STAMP VALUATION AUTHORITY' ) FOR THE PURPOSE OF PAYMENT OF STAMP DUTY IN RE SPECT OF SUCH TRANSFER THE VALUE SO ADOPTED OR ASSESSED 16 [OR ASSESSABLE] SHALL FOR THE PURPOSES OF SE CTION 48 BE DEEMED TO BE THE FULL VALUE OF THE CONSIDERATION RECEIVED OR ACCRUING AS A RESULT OF SUCH TRANSFER. (2) WITHOUT PREJUDICE TO THE PROVISIONS OF SUB - SECTION (1) WHERE (A) THE ASSESSEE CLAIMS BEFORE ANY ASSESSING OFFICER THAT THE VALUE ADOPT ED OR ASSESSED 16 [OR ASSESSABLE] BY THE STAMP VALUATION AUTHORITY UNDER SUB - SECTION (1) EXCEEDS THE FAIR MARKET VALUE OF THE PROPERTY AS ON THE DATE OF TRANSFER; (B) THE VALUE SO ADOPTED OR ASSES SED 16 [OR ASSESSABLE] BY THE STAMP VALUATION AUTHORITY UNDER SUB - SECTION (1) HAS NOT BEEN DISPUTED IN ANY APPEAL OR REVISION OR NO REFERENCE HAS BEEN MADE BEFORE ANY OTHER AUTHORITY COURT OR THE HIGH COURT T HE ASSESSING OFFICER MAY REFER THE VALUATION OF THE CAPITAL ASSET TO A VALUATION OFFICER AND WHERE ANY SUCH REFERENCE IS MADE THE PROVISIONS OF SUB - SECTIONS (2) (3) (4) (5) AND (6) OF SECTION 16A CLAUSE (I) OF SUB - SECTION (1) AND SUB - SE CTIONS (6) AND (7) OF SECTION 23A SUB - SECTION (5) OF SECTION 24 SECTION 34AA SECTION 35 AND SECTION 37 OF THE WEALTH - TAX ACT 1957 (27 OF 1957) SHALL WITH NECESSARY MODIFICATIONS APPLY IN RELATION TO SUCH REFERENCE AS THEY APPLY IN RELATION TO A REFE RENCE MADE BY THE ASSESSING OFFICER UNDER SUB - SECTION (1) OF SECTION 16A OF THAT ACT. [EXPLANATION 1]. FOR THE PURPOSES OF THIS SECTION 'VALUATION OFFICER' SHALL HAVE THE SAME MEANING AS IN CLAUSE (R) OF SECTION 2 OF THE WEALTH - TAX ACT 1957 (27 OF 1957 ). [EXPLANATION 2. FOR THE PURPOSES OF THIS SECTION THE EXPRESSION 'ASSESSABLE' MEANS THE PRICE WHICH THE STAMP VALUATION AUTHORITY WOULD HAVE NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN 5 ITA NO. 2902 /MUM/ 20 1 3 ANY OTHER LAW FOR THE TIME BEING IN FORCE ADOPTED OR AS SESSED IF IT WERE REFERRED TO SUCH AUTHORITY FOR THE PURPOSES OF THE PAYMENT OF STAMP DUTY.] (3) SUBJECT TO THE PROVISIONS CONTAINED IN SUB - SECTION (2) WHERE THE VALUE ASCERTAINED UNDER SUB - SECTION (2) EXCEEDS THE VALUE ADOPTED OR ASSESSED 18 [OR ASSESSABLE] BY THE STAMP VALUATION AUTHORITY REFERRED TO IN SUB - SECTION (1) THE VALUE SO ADOPTED OR ASSESSED 18 [OR ASSESSABLE] BY SUCH AUTHO RITY SHALL BE TAKEN AS THE FULL VALUE OF THE CONSIDERATION RECEIVED OR ACCRUING AS A RESULT OF THE TRANSFER.] 8. SINCE THE VALUE ADOPTED BY THE STAMP VALUATION AUTHORITY IS A VALID FIGURE FOR COMPUTATION FOR CAPITAL GAIN AS PER PROVISIONS OF SECTION 50C OF THE IT ACT AND THE SAME HAS BEEN ADOPTED BY THE AO AND THE SAME MAY NOT BE BRUSHED ASIDE BY THE ASSESSEE. I ALSO WOULD LIKE TO PLACE IT ON RECORD OVER HERE THAT THE ASSESSEE DID NOT DESIRE TO REFER THIS PROPERTY TO THE VALUATION CELL EITHER DURING T HE COURSE OF ASSE SS MENT PROCEEDINGS OR DURING THE APPELLANT PROCEEDINGS IT IS A KNOWN FACT THAT REGISTRATION O F THE PROPERTY AT MUCH LESSER THAN THE ACTUAL VALUE IS QUITE PREVALENT IN INDIA AND A LOT OF BLACK MONEY GETS INVESTED IN THE TRANSACTIONS OF THE PROPERTY. ACCORDINGLY THE COMPUTATION OF CAPITAL GAIN WORKED OUT BY THE AO DOES NOT WARRANTED ANY INTERFERENCE. THE SAME IS THEREFORE CONFIRMED AND THIS GROUND OF APPEAL OF T HE AS S E S SEE IS REJECTED 3 . THE LD.AR VEHEMENTLY SUBMITTED BEFORE US THAT TH E ASSESSEE IS A PERSONS OF NO L OW MEANS AND WAS FORCED TO SIGN DOCUMENTS UNDER COERCION WHICH HE WAS KNOWING TO BE SALE DEED AND THUS SADDL ING HIM WITH THE INCOME TAX LIABILITY IN CONNECTION WITH TRANSFER OF IMMOVABLE PROPERTY AND THE NEVER RECEIVED AN Y CONSIDERATION FROM THE PURCHASER . THE LD. AR ARGUED THAT IF THE ORDERS OF LOWER AUTHORITIES BELOW WERE UPHELD A GRAVE INJUSTICE WOULD BE PERPET RATED ON THE ASSESSEE AS HE WAS NOT KNOWING ANY SUCH SALE DEED HAVE TAKEN PLACE . I T WAS CAME TO HIS NOTICE FO R THE FIRST TIME WHEN POINTED OUT BY THE AO ON THE BASIS OF 6 ITA NO. 2902 /MUM/ 20 1 3 AIR INFORMATION . THE LD. AR FURTHER SUBMITTED THAT THE SO CALLED BUYER OF THE PROPERTY COULD NOT BE PRODUCED BEFORE THE AO OR THE IMPUGNED SALE CONSIDERATION COULD NOT BE CONFIRMED DURING T HE COURSE OF ASSESSMENT PROCEEDINGS EXCEPT THAT THE SALE DEED WHICH IS OBTAINED FROM THE OFFICE OF REGISTRAR OF AUTHORITIES. THE LD. AR FINALLY SUBMITTED THAT THE MATTER BE RESTORED BACK TO THE FILE OF THE AO FOR FURTHER VERIFICATION FROM THE BUYER WHE TH ER SUCH MONEY WAS EVER GIVEN TO THE ASSESSEE AND THE MATTER BE DECIDED AFRESH ACCORDINGLY . 4 . THE LD. DR ON THE OTHER HAND RELIED ON THE ORDERS OF AUTHORITIES BELOW. 5 . WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL PLACE D BEFORE US. WE FIND THAT THE ASSESSEE HAD DENIED TO HAVE RECEIVED ANY MONEY IN LIEU OF TRANSFER OF IMMOVABLE PROPERTY WHERE SALE DEED WAS ACTUALLY SIGNED BY THE ASSESSEE AND A RECEIPT WAS ALSO FOUND ATTACHED WITH THE SALE DEED WHICH WAS OBTAINED FROM TH E OFFICE OF THE REGISTRAR BY THE ASSESSEE AFTER AO RAISED A QUERY IN RESPECT OF THE SAID DEED ON THE BASIS OF AIR INFORMATION . THE ASSESSEE PLEADED THAT HE WAS FORCED TO SIGN THE PAPERS/DOCUMENTS WHICH HE WAS NOT KNOWING TO THE DOCUMENTS CONCERNING S ALE DEED TRANSFERRING THE PROPERTY TO MRS. SAYALI S SAWANT. WE ALSO FIND FROM THE RECORD THAT THE ASSESSEE HAS INHERITED THE PROPERTY FROM HIS MOTHER . T HE ASSESSEE HAS TOTALLY DENIED TO HAVE RECEIVED ANY SALE CONSIDERATION AND 7 ITA NO. 2902 /MUM/ 20 1 3 EXECUTED ANY SALE DEED IN FAVOUR OF MRS. SAYAL I S SAWANT. ALSO DURING T HE COURSE OF ASSESSMENT PROCEEDINGS THE TRANSACTION COULD NOT BE CONFIRMED. IN OUR OPINION THE ENDS OF JUSTICE WOULD BE MET IF THE MATTER IS RESTORE BACK TO THE FILE OF THE AO TO DECIDE THE ISSUE AFRE SH O N THE FACTS AND CIRCUMSTANCES OF THE CASE AFTER PROVIDING REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE AND AFTER MAKING NECESSARY INQUIRIES FROM THE BUYER OF THE PROPERTY AS TO THE PAYMENT OF CONSIDERATION . ACCORDINGLY WE SET ASIDE THE ORD ER OF THE LD. CIT(A) AND DIRECT THE AO TO DECIDE THE MAT T ER DE - NOVO. 6 . SINCE WE HAVE RESTORED THE ISSUE OF CAPITAL GAIN TO THE FILE OF AO REMAINING GROUNDS BECAME ACADEMIC IN NATURE THEREFORE DISMISSED AS INFRUCTUOUS. 7 . IN THE RESULT THE APPEA L OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 26TH OCT 2016 S D SD ( MAHAVIR SINGH ) ( RAJESH KUMAR ) / J UDICIAL MEMBER / A CCOUNTANT MEMBER MUMBAI ; DATED : 26. 10. 2016 SRL SR.P.S.: 8 ITA NO. 2902 /MUM/ 20 1 3 / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. ( ) / THE CIT(A) 4. / CIT CONCERNED 5. / DR ITAT MUMBAI 6. / GUARD F ILE / BY ORDER T RUE COPY / (DY./ASSTT. REGISTRAR) / ITAT MUMBAI