The ACIT, Circle-3,, Surat v. Smt. Kanchanben B,Moradia, Surat

ITA 3048/AHD/2009 | 2006-2007
Pronouncement Date: 22-01-2010 | Result: Dismissed

Appeal Details

RSA Number 304820514 RSA 2009
Bench Ahmedabad
Appeal Number ITA 3048/AHD/2009
Duration Of Justice 2 month(s) 9 day(s)
Appellant The ACIT, Circle-3,, Surat
Respondent Smt. Kanchanben B,Moradia, Surat
Appeal Type Income Tax Appeal
Pronouncement Date 22-01-2010
Appeal Filed By Department
Order Result Dismissed
Bench Allotted A
Tribunal Order Date 22-01-2010
Assessment Year 2006-2007
Appeal Filed On 13-11-2009
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH 'A' (BEFORE SHRI T K SHARMA AND N S SAINI) ITA NO.3048/AHD/2009 (ASSESSMENT YEAR: 2006-07) THE ASSISTANT COMMISSIONER OF INCOME-TAX CIRCLE-3 SURAT V/S SMT. KANCHANBEN B MORADIA 13 UPVAN ROW HOUSE NEAR SAHAJ SUPER STORE ADAJAN SURAT (APPELLANT) (RESPONDENT) APPELLANT BY :- SHRI GOVIND SINGHAL SENIOR DR RESPONDENT BY:- WRITTEN SUBMISSION O R D E R PER N S SAINI (ACCOUNTANT MEMBER) : THIS APPEAL HAS BEEN FILED BY THE REVENUE AGAINST THE ORDER OF THE CIT(A) DATED 1 0-08-2009 FOR ASSESSMENT YEAR 2006-07. THE ONLY GROUND RAISED BY THE REVENUE READS AS UNDER:- ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE LD. CIT(A) HAS ERRED IN DELETING THE ADDITION MADE ON ACCOUNT OF U NEXPLAINED INVESTMENT U/S 69B OF THE ACT OF RS.8 99 200/-. 2 THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSE E FILED RETURN OF INCOME DECLARING TOTAL INCOME OF RS.6 08 538/-. DURING THE COURSE OF ASSESSMENT PROCEEDINGS THE LEARNED ASSESSING OFFIC ER NOTICED THAT THE ASSESSEE HAD PURCHASED A PLOT FOR STATED CONSIDERAT ION OF RS.3 86 000/. ON FURTHER ENQUIRY THE LEARNED ASSESSING OFFICER N OTICED THAT THE ASSESSEE HAD PAID ADDITIONAL STAMP DUTY OF RS.75 45 7/- ON THE JANTRI BASED VALUE OF PROPERTY DETERMINED AT RS.12 85 200/ -. ON COMPARING THE JANTRI BASED VALUE WITH THE DISCLOSED CONSIDERA TION THE LEARNED ASSESSING OFFICER ASKED THE ASSESSEE TO EXPLAIN WH Y THE DIFFERENTIAL AMOUNT OF RS.8 99 200/- SHOULD NOT BE TREATED AS UN EXPLAINED INVESTMENT AND ADDED TO HER TOTAL INCOME U/S 69-B O F THE ACT. THE 2 2 ASSESSEE FILED HER DETAILED REPLY AND SUBMITTED THA T COST OF PURCHASE OF PROPERTY HAS BEEN DULY REFLECTED IN THE PURCHASE DE ED AND NO CONSIDERATION OVER AND ABOVE THE DISCLOSED CONSIDER ATION HAS BEEN PAID. THE PROPOSED ADDITION IS THEREFORE WITHOUT ANY BA SIS. THE ASSESSEE ALSO RELIED UPON THE DECISION OF HONBLE JURISDICTI ONAL ITAT IN THE CASE OF BHARATKUMAR N PATEL VS. ACIT CIRCLE-3 SURAT I TA NO.1749/AHD/2008 DATED 29-02-2008 WHEREIN THE TRIBU NAL DELETED THE ADDITION MADE U/S 69B ON ACCOUNT OF UNEXPLAINED INV ESTMENT IN RESIDENTIAL HOUSE PROPERTY. THE ASSESSEE ALSO RELIE D UPON VARIOUS DECISIONS TO SUPPORT HER CASE. HOWEVER THE LEARNED ASSESSING OFFICER DID NOT AGREE WITH THE SUBMISSIONS OF THE ASSESSEE AND ADDED THE DIFFERENTIAL AMOUNT TO HER TOTAL INCOME. 3 ON APPEAL THE LEARNED COMMISSIONER OF INCOME-TA X (APPEALS) DEALT WITH THE ISSUE IN DETAIL AND FOLLOW ING THE DECISION OF THE JURISDICTIONAL ITAT IN THE CASE OF BHARATKUMAR N PATEL VS. ACIT CIRCLE-3 SURAT ITA NO.1749/AHD/2008 DATED 29-02-2 008 DIRECTED THE AO TO DELETE THE ADDITION OF RS.8 99 200/- BY OBSER VING AS UNDER: 6 BEING AGGRIEVED BY THE ORDER OF THE ASSESSING OF FICER AR REPRESENTED THE CASE WITH WRITTEN SUBMISSIONS. THE APPELLANT AR GUED THAT SECTION 50-C IS VERY SPECIFIC AND INSERTED SPECIFICALLY TO TAX THE CAPITAL GAIN FROM TRANSFER OF IMMOVABLE PROPERTY AND IT CANNOT BE APPLIED TO THE BUYER OF THE PROPERTY. ACCORDING TO THE AR THE DEEMING PROVISION OF SECTI ON 50-C IS VERY SPECIFIC AND LIMITED. THE APPLICABILITY OF THE PROVISION OF THIS SECTION CANNOT BE EXTENDED IN A MANNER THAT IS NOT PERMITTED UNDER TH E SECTION. THE AR FURTHER ARGUED THAT THE SUBJECT APPEAL IS SQUARELY COVERED BY THE DECISION OF HONBLE AHMEDABAD BENCH OF ITAT IN THE CASE OF BHARATKUMAR N PATEL VS. ACIT CIRCLE-3 SURAT WHEREIN THE HONBLE TRIBUNAL ON SIM ILAR FACTS OF THE CASE HAS DELETED VERY SAME ADDITION U/S 69-B MADE BY THE VER Y SAME ASSESSING OFFICER. IT WAS CONTENDED THAT JUDICIAL DISCIPLINE MANDATED THE ASSESSING OFFICER TO FOLLOW THE DECISION OF JURISDICTIONAL ITAT. THE AR PLACED RELIANCE ON SEVERAL JUDICIAL DECISIONS AGAINST THE ADDITION MADE UNDER SECTION 69-B OF THE ACT NAMELY : A) ITO VS. SATYANARAYAN AGRAWAL (2007) 112 TTJ (JD) 71 7 B) SMT. BHANU R SHAH & ANR. VS. DCIT (2004) 3 SOT 792 (BANG) 3 3 C) ACIT VS. SWAMI COMPLEX (P) LTD. (2007) 111 TTJ (JP) 531 D) CIT VS. STAR BUILDERS (2007) 294 ITR 338 (GUJ) E) JAGMOHAN SINGH ARORA & ORS. VS. DCIT (2006) 10 TTJ (MUMBAI) 6 F) ANAND PRAKASH SONI VS. DCIT (2006) 101 TTJ (JD) 97/ 7 I HAVE CONSIDERED THE VIEWS OF THE ASSESSING OFFI CER SUBMISSIONS OF THE APPELLANT AND JUDICIAL DECISIONS REFERRED TO BY THE APPELLANT. I FIND THAT THE ACTION OF THE ASSESSING OFFICER IS NOT SUSTAINABLE. THE HONBLE ITAT IN THE CASE OF BHARATKUMAR N PATEL VS. ACIT CIRCLE-3 SURAT HA S DELETED THE ADDITION ON ACCOUNT OF UNEXPLAINED INVESTMENT IN PROPERTY MADE BY THE VERY SAME ASSESSING OFFICER ACIT CIR.3 SURAT FOR THE ASSES SMENT YEAR 2005-06 AND HAS HELD AS UNDER : 10 AFTER CAREFUL CONSIDERATION OF THE RIVAL SUBMIS SIONS FACTS AND CIRCUMSTANCES OF THE CASE PROVISIONS OF LAW AS WELL AS DECISION(S) OF HON'BLE SUPREME COURT AND VARIOUS BENCHES RELIED UPON BY THE PARTIES WE ARE OF THE OPINION T HAT THE CIT(A) WAS NOT JUSTIFIED IN CONFIRMING THE ADDITION BY DRAWING THE ANALOGICAL PROVISIONS OF SECTION 50-C O F THE ACT. THE CIT(A) CONFIRMED THE ADDITION BY OBSERVING THAT IF THIS PROPOSITION IS TO BE ACCEPTED THEN THE DEEMING PRO VISIONS OF SECTION 50-C OF THE ACT WILL BECOME INOPERABLE. HE FURTHER HELD THAT SECTION 50-C OF THE ACT IS APPLICABLE TO THE SELLER AND PROVIDES THAT THE VALUATION MADE BY THE STAMP V ALUATION AUTHORITY IS TO BE DEEMED AS THE CONSIDERATION RECE IVED BY THE SELLER. HAVING SAID SO THE CIT(A) FURTHER HELD THAT THE CONVERSE WILL ALSO HAVE TO BE ACCEPTED AS TRUE I.E . THE VALUATION OF STAMP VALUATION AUTHORITY WILL HAVE TO BE DEEMED AS THE CONSIDERATION PAID BY THE PURCHASER OF THE P ROPERTY AS WELL. 10.1 WE ARE UNABLE TO AGREE WITH THE AFORESAID ANAL OGY DRAWN BY THE CIT(A) BECAUSE HAD THE LEGISLATURE INT ENDED SO IT COULD HAVE EASILY SPECIFIED SUCH A PROPOSITION I N THE PROVISION ITSELF. 10.2 IN VIEW OF THE SETTLED PROPOSITION OF LAW THAT THE APPELLATE AUTHORITY HAS NO RIGHT EITHER TO ADD OR T O DELETE ANY WORD FROM THE PROVISIONS OF LAW UNLESS AND UNTIL TH E SAME ARE FOUND TO BE HAVING SOME AMBIGUITY WE ARE UNABLE TO SUSTAIN THE STAND OF THE CIT(A) THERE BEING NO AMBIGUITY I N THE SECTION 50-C OF THE ACT WE ARE OF THE OPINION THAT THESE PROVISIONS ARE NOT APPLICABLE TO THE PURCHASER. 4 4 8 THE DECISION OF THE HONBLE ITAT IS VERY CLEAR ON THE SUBJECT ISSUE UNDER APPEAL. THE DECISION OF THE JURISDICTIONAL IT AT IS BINDING ON THE TAX AUTHORITIES WORKING IN THE SAME JURISDICTION. JUDIC IAL DISCIPLINE AND PROPRIETY MANDATES STRICT ADHERENCE OF THE ORDER OF JURISDICT IONAL COURT OR TRIBUNAL. THE ASSESSING OFFICER HAS ERRED IN NOT FOLLOWING THE OR DER OF THE JURISDICTIONAL ITAT WHICH WAS BROUGHT TO HIS NOTICE AT THE TIME OF ASSESSMENT PROCEEDINGS AND REFERRED TO IN PARA 4.1 OF THE ASSESSMENT ORDER . 9 IT IS ALSO PERTINENT TO MENTION THAT THE ASSESSIN G OFFICER HAS NOT CARRIED OUT ANY INDEPENDENT INVESTIGATION TO SHOW THAT THE ASSESSEE HAS MADE ANY INVESTMENT IN THE PROPERTY OTHER THAN THE DISCLOSED CONSIDERATION WHICH IS EITHER NOT RECORDED IN HER BOOKS OR EXPLANATION OFF ERED BY HER IN RESPECT OF SUCH INVESTMENT IS NOT FOUND TO BE SATISFACTORY. IN VIEW OF THE ABOVE AND RESPECTFULLY FOLLOWING THE DECISION OF THE HONBLE ITAT AHMEDABAD BENCH I DIRECT THE ASSESSING OFFICER TO DELETE THE ADDITION OF RS.8 99 200/- MADE U/S 69- B OF THE ACT . 4 THE LEARNED DEPARTMENTAL REPRESENTATIVE SUPPORTE D THE ORDER OF THE LEARNED ASSESSING OFFICER. 5 THE LEARNED AUTHORISED REPRESENTATIVE OF THE ASS ESSEE HAS FILED A WRITTEN SUBMISSION WHEREIN IT HAS BEEN ST ATED THAT THE ISSUE UNDER CONSIDERATION IS COVERED IN FAVOUR OF THE ASS ESSEE BY THE DECISION OF THIS TRIBUNAL IN THE CASE OF BHARATKUMAR N. PATE L V. ACIT CIR.3 SURAT ITA NO.1749/AHD/2008 DATED 29-8-2008 IN THE A SSESSMENT YEAR 1995-1996 FOLLOWING WHICH THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS) HAS DELETED THE ADDITION MADE BY THE L EARNED ASSESSING OFFICER. THEREFORE THE ORDER OF THE LEARNED COMMI SSIONER OF INCOME TAX(APPEALS) SHOULD BE CONFIRMED. 6 WE HAVE HEARD THE LEARNED DEPARTMENTAL REPRESENT ATIVE AND CONSIDERED THE WRITTEN SUBMISSIONS OF LEARNED A UTHORISED REPRESENTATIVE OF THE ASSESSEE AND PERUSED THE ORDE RS OF THE LOWER AUTHORITIES AND THE MATERIALS AVAILABLE ON RECORD. WE FIND THAT IN THE INSTANT CASE ADDITION OF RS.8 99 200/- UNDER SECTIO N 69B OF THE ACT WAS MADE BY THE LEARNED ASSESSING OFFICER MAINLY ON THE BASIS OF DIFFERENCE BETWEEN THE CONSIDERATION SHOWN IN THE S ALE DEED AND JANTRI BASED VALUE OF THE PROPERTY. WE FIND THAT NO MATER IAL WAS BROUGHT ON 5 5 RECORD BY THE REVENUE TO SHOW THAT THE ASSESSEE HAS IN FACT MADE PAYMENT OF ANY AMOUNT EXCEEDING THE AMOUNT DISCLOSE D BY HIM IN HIS RETURN OF INCOME. IN THE ABOVE CIRCUMSTANCES THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS) HAS DELETED THE ADDITION OF RS.8 99 200/- BY FOLLOWING THE ORDER OF THIS TRIBUN AL PASSED IN THE CASE OF BHARATKUMAR N. PATEL (SUPRA). THE LEARNED DEPAR TMENTAL REPRESENTATIVE COULD NOT POINT OUT ANY ERROR IN THE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS). WE THEREFORE FOLLOWING THE ORDER OF THIS TRIBUNAL IN THE ABOVE STATED CASE CON FIRM THE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS) AND DIS MISS THE APPEAL OF THE REVENUE. ORDER PRONOUNCED IN THE COURT IN THE PRESENCE OF TH E PARTIES ON 22-01-2010 SD/- SD/- (T K SHARMA) JUDICIAL MEMBER (N S SAINI) ACCOUNTANT MEMBER DATE : 22-01-2010 COPY OF THE ORDER FORWARDED TO : 1. SMT. KANCHANBEN B MORADIA 13 UPVAN ROW HOUSE NEAR SAHAJ SUPER STORE ADAJAN SURAT 2. THE ACIT CIRCLE-3 SURAT 3. THE CIT CONCERNED 4. THE CIT(A)-V SURAT 5. THE DR ITAT AHMEDABAD 6. GUARD FILE BY ORDER DY.R/AR ITAT AHMEDABAD