Shri Shrikant Shukla, Indore v. The ACIT 5(1), Indore

ITA 470/IND/2010 | 2006-2007
Pronouncement Date: 19-07-2011 | Result: Allowed

Appeal Details

RSA Number 47022714 RSA 2010
Assessee PAN BDNPS9624K
Bench Indore
Appeal Number ITA 470/IND/2010
Duration Of Justice 1 year(s) 7 day(s)
Appellant Shri Shrikant Shukla, Indore
Respondent The ACIT 5(1), Indore
Appeal Type Income Tax Appeal
Pronouncement Date 19-07-2011
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted DB
Tribunal Order Date 19-07-2011
Assessment Year 2006-2007
Appeal Filed On 12-07-2010
Judgment Text
1 IN THE INCOME TAX APPELLATE TRIBUNAL INDORE BENCH INDORE BEFORE SHRI JOGINDER SINGH JUDICIAL MEMBER AND SHRI R.C. SHARMA ACCOUNTANT MEMBER ITA NOS.469 & 470/IND/2010 AY: 2006-07 1. KRISHNAKANT SHUKLA INDORE PAN BDNPS 9624 K 2. SHRIKANT SHUKLA INDORE PAN AGOPS 5043 F ..APPELLANTS V/S. ACIT-5(1) INDORE ..RESPONDENT ASSESSEE BY : S/SH. ASHISH GOYAL & GIRISH AGR AWAL DEPARTMENT BY : SHRI ARUN DEWAN SR. DR ORDER PER JOGINDER SINGH JUDICIAL MEMBER THESE APPEALS BY THE DIFFERENT ASSESSEES ARE AGAIN ST THE COMMON ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS)-II INDORE DATED 5.3.2010 ON THE FOLLOWING COMMON GROUNDS THAT ON THE FACTS AND IN T HE CIRCUMSTANCES OF THE CASE THE LD. FIRST APPELLATE AUTHORITY ERRED IN: 2 A. SUSTAINING THE ADDITION OF RS.5.69 LACS U/S 50C. B. IN ADOPTING THE FIGURE OF RS.75.12 LACS AS VALUED BY THE DVO WHEREAS THE VALUATION BY THE DVO WAS ACTUALLY AT RS.71.52 LACS WITHOUT CONSIDERING THAT THE VALUATION OF THE DVO WAS WITHOUT ANY BASIS AND FURTHER WITHOUT CONSIDERING THE CASE OF NAVNEET KR. THAKKAR (110 ITD 525) (JODH). 2. DURING HEARING OF THESE APPEALS THE LD. COUNSEL FOR ASSESSEES CONTENDED THAT THE AGREEMENT TO SELL WAS ENTERED INTO ON 25.10.2005 WHEREAS THE SALE DEED WAS REGISTERED ON 25.1.2007 CONSEQUENTLY TRANSFER TOO K PLACE WHEN THE AGREEMENT TO SELL WAS ENTERED (FY:20 05- 06) AND THE REGISTRY WAS DONE IN FY 2006-07. IT WAS SUBMITTED THAT WHEN TRANSFER TOOK PLACE THE SALE D EED WAS NOT REGISTERED THUS SEC. 50C DOES NOT APPLY A S THERE WAS ONLY AGREEMENT TO SELL AND NOT ACTUAL TRA NSFER. THE LD. COUNSEL FOR ASSESSEES RELIED UPON THE DECIS IONS IN NAVNEET KR. THAKKAR (112 TTJ 76) ITO VS. MS. 3 KUMUDANI VENUGOPAL (5 ITR (TRIBUNAL) 145) (CHE) M.SHIVAPARVATI (129 TTJ 463) (VISHKHA) SINGAR INDI A (P) LTD. (ITA NO. 1785/MUM/2007). ALTERNATIVELY A PLEA WAS RAISED AS TO WHETHER THE RECORD OF THE DVO IS SACRO SANCT FOR WHICH RELIANCE WAS PLACED IN SANTOSH KR. DALMIA (208 ITR 337) (CAL) WENGER & CO. (115 ITR 648) (DEL) RAJKUMAR (182 ITR 486) (ALL) RAVIKANT (110 TTJ 297 ) (DEL) AND VARIOUS OTHER DECISIONS. ON THE OTHER HAN D THE LD. SR. DR DEFENDED THE IMPUGNED ORDER BY SUBMITTIN G THAT THE DVO IS A WELL-QUALIFIED TECHNICAL PERSON THEREFORE HIS REPORT CANNOT BE SIMPLY BURST ASIDE ESPECIALLY WHEN THE ASSESSEE HAS FAILED TO MAKE OUT THEIR CASE TO SUPPORT THEIR CONTENTION. THE PROVISION OF SEC. 50C WAS ARGUED TO BE BROUGHT ON STATUTE W.E.F. 1.4. 2003 AND THE SALE DEEDS WERE ACTUALLY REGISTERED SUBSEQU ENTLY ON 11.12.2006 & 25.1.2007 THEREFORE THE ASSESSEE CANNOT DRAW SUPPORT FROM THE CASES RELIED UPON. 4 3. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS OF LD. REPRESENTATIVES OF BOTH SIDES AND PERUSED THE MATER IAL AVAILABLE ON RECORD. BRIEF FACTS ARE THAT THE RETUR N DECLARING INCOME OF RS.5 50 080/- (INCLUDING CAPITA L GAINS AT RS.4 42 829) WAS FILED ON 25.7.2007 IN THE CASE OF SHRI KRISHNAKANT SHUKLA. REFERENCE TO DVO WAS MA DE ON 29.8.2008/29.9.2008 (PAPER BOOK PAGES 47-49) AND THE REPORT OF THE DVO WAS ON 15.12.2008 (PAPER BOOK PAGES 50-56). THE ASSESSEE ALSO FURNISHED THE REPOR T OF THE AVO BEFORE THE LD. CIT(A) AS ADDL. EVIDENCE WHI CH HAS BEEN MADE PART OF THE PAPER BOOK (PAPER BOOK 58-61 AND 62-65). THE AMBIT AND SCOPE OF SEC. 50C WAS ARGUED TO BE DELIBERATED UPON IN THE CASE OF RAVIKANT VS. ITO (110 TTJ 297). IT IS SEEN THAT THE REMAND REPORT WAS CONSIDERED BY THE LD. CIT(A). IT IS FURTHER SEEN TH AT IN THE VALUATION REPORT OF THE ASSESSEE CERTAIN COMPARABL E INSTANCES WERE MENTIONED BUT THE REPORT OF THE AVO WAS NOT CONSIDERED BY THE ASSESSING OFFICER. THE PLEA W AS ALSO RAISED BY THE LD. COUNSEL FOR ASSESSEE THAT TH E 5 REPORT OF THE DVO IS BASELESS AS THE SAME WAS PREPA RED WITHOUT CONSIDERING THE TRUE FACTS. THERE IS NO MEN TION IN THE ASSESSMENT ORDERS AS TO WHY THE LD. ASSESSIN G OFFICER HAS NOT CONSIDERED THE REPORT OF THE VALUAT ION OFFICER OF THE ASSESSEE. IN VIEW OF THESE FACTS AND KEEPING IN VIEW THE PRINCIPLE OF NATURAL JUSTICE WE ARE OF THE CONSIDERED OPINION THAT NO PERSON SHOULD BE CONDEMN ED UNHEARD THEREFORE THE ASSESSING OFFICER IS DIRECT ED TO CONSIDER THE CASES RELIED UPON BY THE ASSESSEES ALO NG WITH THE REPORT OF THE AVO AND THEN DECIDE IN ACCOR DANCE WITH LAW FOR WHICH DUE OPPORTUNITY OF BEING HEARD B E PROVIDED TO THE ASSESSEE. THE ASSESSEES ARE FURTHER AT LIBERTY TO FURNISH EVIDENCE IF ANY TO SUBSTANTIAT E THEIR CLAIMS. BOTH THESE APPEALS ARE THEREFORE SENT TO THE FILE OF THE LD. ASSESSING OFFICER FOR FRESH ADJUDICATION . FINALLY BOTH THESE APPEALS OF THE ASSESSEES ARE ALLOWED FOR STATISTICAL PURPOSES ONLY. 6 ORDER PRONOUNCED IN THE OPEN COURT IN THE PRESENCE OF LEARNED REPRESENTATIVES OF BOTH THE SIDES AT THE CONCLUSION OF HEARING ON 19 TH JULY 2011. (R.C. SHARMA) (JOGINDER SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER DATE: 19 TH JULY 2011 COPY TO: APPELLANT/RESPONDENT/CIT/CIT(A)/DR/GUARD F ILE !VYS! 7