Mr. Manoj Singhal, New Delhi v. DCIT, New Delhi

ITA 6023/DEL/2015 | 2009-2010
Pronouncement Date: 17-10-2016 | Result: Allowed

Appeal Details

RSA Number 602320114 RSA 2015
Assessee PAN OZXPS8161B
Bench Delhi
Appeal Number ITA 6023/DEL/2015
Duration Of Justice 11 month(s) 11 day(s)
Appellant Mr. Manoj Singhal, New Delhi
Respondent DCIT, New Delhi
Appeal Type Income Tax Appeal
Pronouncement Date 17-10-2016
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted SMC 2
Tribunal Order Date 17-10-2016
Date Of Final Hearing 20-09-2016
Next Hearing Date 20-09-2016
Assessment Year 2009-2010
Appeal Filed On 05-11-2015
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH SMC-2 NEW DELHI BEFORE SHRI H.S. SIDHU JUDICIAL MEMBER I.T.A. NO. 6023/DEL/2015 A.Y. 2009-10 MR. MANOJ SINGHAL H.NO. 9-10 SARASWATI KUNJ 8 ALIPUR ROAD CIVIL LINE NEW DELHI 110 054 (PAN: AOZXPS8161B) VS. DCIT CIRCLE 14(2) NEW DELHI (APPELLANT) (RESPONDENT) ASSESSEE BY : SH. V.K. GUPTA CA DEPARTMENT BY : SH. UMESH CHANDER DUBEY SR. DR ORDER PER H.S. SIDHU JM ASSESSEE HAS FILED THE APPEAL AGAINST THE ORDER DATED 2 8.8.2015 PASSED BY THE LD. COMMISSIONER OF INCOME TAX (APPEALS)V NEW DELHI PERTAINING TO ASSESSMENT YEAR 2009-10 2. THE GROUNDS RAISED BY THE ASSESSEE READ AS UNDER:- 1. THAT THE LD. CIT(A) WAS NOT JUSTIFIED IN ADOPTING THE FAIR MARKET VALUE (FMV) VALUE OF THE PROPERTY RS. 88 50 000/- INSTEAD O F RS. 80 00 000/- AS PER SALE DEED OF THE PROPERTY SOLD. 2. THAT LD. CIT(A) HAVE ERRED IN ACCEPTING THE CALCUL ATION OF FMV CALCULATED BASED ON THE AVERAGE OF THREE COMPARABLE ACT UAL SALE INSTANCES WHICH INCLUDES 2 INSTANCES OF ADJACENT SHAKTI KHAND II INSTEAD OF BASED ON THE I SALE INSTANCE SINCE ALL IMPORTANT PARAMETERS MATCH WITH THAT OF PROPERTY SOLD OUT BY APPELLANT. ITA NO.6023/DEL/2015 2 3. THE LD. CIT(A) WAS NOT JUSTIFIED IN ACCEPTING THE P ARAMETERS GIVEN IN SALE INSTANCE I OF DVBOS VALUATION REPORT WHICH MOSTLY MATCHED WITH THE PROPERTY SOLD OUT BY THE APPELLANT. 4. ANY OTHER GROUND BEFORE OR AT THE TIME OF HEARIN G OF APPEAL. 3. THE BRIEF FACTS OF THE CASE ARE THAT ASSESSEE FILED RET URN OF INCOME ON 24.9.2009 DECLARING TOTAL INCOME OF RS. 9 98 234/-. TH IS RETURN WAS REVISED SUBSEQUENTLY DURING THE COURSE OF ASSESSMENT PROCEEDINGS ON 2 3.6.2010 TO DECLARE TOTAL INCOME OF RS. 20 28 330/-. THE REVISED RE TURN WAS FILED TO INCLUDE THE SHORT TERM CAPITAL GAIN OF RS. 10 30 000/ - ON SALE OF PROPERTY REPRESENTING PLOT NO. 384 NITI KHAND PHASE-I INDR APURAM DISTT. GHAZAIBAD. THE SALE CONSIDERATION FOR PURPOSES OF COMPUTA TION OF CAPITAL GAINS WAS DECLARED AS RS. 80 00 000/- AS SHOWN IN THE S ALE DEED. THERE IS NO DISPUTE REGARDING THE PURCHASE CONSIDERATION. SINCE TH E STAMP DUTY HAD BEEN PAID ON THE SALE CONSIDERATION OF RS. 1 05 95 028/ - THE ASSESSEE WAS SHOW CAUSED AS TO WHY THE FULL VALUE OF CONSIDERATION M AY NOT BE TAKEN AS PER STAMP DUTY VALUATION AS AGAINST RS. 80 00 000/- SHOW N IN THE SALE DEED. TO THIS QUERY THE ASSESSEE POINTED OUT THAT THE STAMP DU TY HAD BEEN PAID CORRESPONDING TO THE STAMP DUTY VALUATION OF RS. 1 02 8 6 000/- WHEREAS IN THE AIR IT HAD BEEN INCORRECTLY SHOWN AT RS. 1 05 95 028/-. AS PER THE VALUATION REPORT OF THE REGISTERED VALUER THE FAIR M ARKET VALUE ON 24.6.2008 WAS ARRIVED AT RS. 78 71 850/-. THE ASSESSEE S CONTENTION WAS THAT SINCE SALE CONSIDERATION HAD BEEN SHOWN AT RS. 80 00 000/- IN HIS REVISED RETURN THE SAME MAY BE ACCEPTED. THE FINAL CON TENTION OF THE ASSESSEE WAS THAT IN ACCORDANCE WITH CERTAIN JUDICIAL RULING S IT IS INCUMBENT ON THE PART OF THE AO TO REFER THE MATTER TO THE VALUATION OFFICER WHENEVER THE VALUATION AS PER STAMP VALUATION AUTHORITY IS NOT ACCEPTED BY THE TRANSFEROR OF THE PROPERTY. THE AO P ROCEEDED HOWEVER TO APPLY THE DEEMING PROVISIONS OF SECTION 50C AND COMPUT ED THE SHORT TERM CAPITAL GAINS BASED ON THE ASSESSMENT OF THE STAMP ITA NO.6023/DEL/2015 3 VALUATION AUTHORITY. THE AO ASSESSED THE INCOME AT RS. 43 14 230/- U/S. 143(3) OF THE I.T. ACT 1961 ON 21.11.2011 BY MAKING ADDITION ON ACCOUNT OF SHORT TERM CAPITAL GAIN. 4. AGAINST THE ASSESSMENT ORDER DATED 21.11.2011 ASSESSEE APPEALED BEFORE THE LD. CIT(A) WHO VIDE IMPUGNED ORDER DATE D 28.8.2015 HAS PARTLY ALLOWED THE APPEAL OF THE ASSESSEE. 5. AGGRIEVED WITH THE AFORESAID ORDER OF THE LD. CIT (A) ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL. 6. LD. COUNSEL OF THE ASSESSEE DURING THE HEARING HAS ST ATED THAT THE ISSUE IN DISPUTE IS SQUARELY COVERED BY THE DECISION OF T HE HONBLE SUPREME COURT OF INDIA IN THE CASE OF CN GAUTAM VS. UNION OF I NDIA (1993) 199 ITR 0530 WHICH HAS BEEN FOLLOWED BY THE VARIOUS BENCHES O F THE TRIBUNAL. THEREFORE HE REQUESTED THAT THE APPEAL OF THE ASSESSEE MAY BE ALLOWED BY FOLLOWING THE PRECEDENTS. IN ORDER TO SUPPORT HIS CONT ENTION HE FILED THE PHOTOCOPIES OF ORDERS OF THE TRIBUNAL AND THE HONBLE S UPREME COURT OF INDIA. 7. ON THE CONTRARY LD. DR OPPOSED THE REQUEST OF THE LD. COUNSEL OF THE ASSESSEE AND RELIED UPON THE ORDERS OF THE AUTHORITIES BE LOW. 8. I HAVE HEARD BOTH THE PARTIES AND PERUSED THE RELE VANT RECORDS AVAILABLE WITH ME ESPECIALLY THE ORDERS PASSED BY THE REVENUE AUTHORITIES ALONGWITH CASE LAWS REFERRED BY THE LD. COUNSEL OF THE ASSESSEE. I NOTE THAT THE ASSESSEE HAS ESTABLISHED THE DIFFERENCE BETWEEN T HE VALUE ADOPTED BY THE STAMP VALUATION AUTHORITY AND DECLARED BY TH E ASSESSEE IS LESS THAN 10% AND THEREFORE THE ISSUE IS SQUARELY COVERED BY THE DECISION OF THE HONBLE SUPREME COURT OF INDIA IN THE CASE OF CB GUTA M VS. UOI & ORS. (1993) 199 ITR 0530. ITA NO.6023/DEL/2015 4 8.1 I FURTHER FIND THAT THE AFORESAID DECISION OF THE HONBLE SUPREME COURT OF INDIA HAS BEEN FOLLOWED BY THE VARIOUS BENCHES OF T HE TRIBUNAL INCLUDING THE JAIPUR BENCH IN THE CASE OF SMT. SITA BAI KHETAN V S. ITO PASSED IN ITA NO. 826/JP/2013 (AY 2010-11) ON 27.7.2016. THE REL EVANT PARA OF THE TRIBUNALS ORDER IS REPRODUCED BELOW FOR THE SAKE OF CL ARITY AS UNDER:- 4. GROUND NO. 2 IS WITH REGARD TO ADOPTING THE SAL E CONSIDERATION AT RS. 6 12 70 120/- AGAINST THE SALE CONSIDERATION OF RS. 6 00 000/- ADOPTED BY THE ASSESSEE. THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE DIFFERENCE BETWEEN THE SALE CONSIDERATION OF THE PROPE RTY AS PER REGISTERED SALE DEED AS AGAINST THE VALUE ADOPT ED BY THE STAMP VALUATION AUTHORITY WAS RS. 12 70 120/- I.E. 2.11 %. SINCE THE DIFFERENCE WAS WITHIN THE TOLERABIE LIMITS WHICH IS 15% OF VARIATION AS RECOGNIZED BY THE HON'BLE SUPREME COURT IN THE CASE OF C.B. GAUTAM VS. UNION OF INDIA & ORS. (1993) 199 ITR 530 NO ADDITIO N SHOULD BE MADE. THIS DECISION HAS BEEN FOLLOWED BY THE COORDINATE BENCH IN THE CASE OF RAHUL CONSTRUCTION VS. DCIT IN ITA NO. 1543/PN/2007 (2010) 38 DTR (PUNE TRIB.). 4.1. ON THE CONTRARY THE ID. D/R OPPOSED THE SUBMIS SIONS OF THE ASSESSEE ON THIS ISSUE. ITA NO.6023/DEL/2015 5 4.2. WE HAVE HEARD RIVAL CONTENTIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. WE FIND THAT THE HON'BLE COORDIN ATE BENCH IN ITA NO. 1543/PN/2007 IN THE CASE OF RAHUL CONSTRUCTION VS. DCIT (SUPRA) HAS HELD AS UNDER :- ' WE FIND THAT THE PUNE BENCH OF THE TRIBUNAL IN THE CASE OF ASSTT. CIT VS. HARPREET HOTELS (P) LTD. VIDE ITA NOS. 1156-1160/PN/2000 AND RELIED ON BY THE LEARNED COUNSEL FOR THE ASSESSEE HAD DISMISSED THE APPEAL FILED BY THE REVENUE WHERE THE CIT (A) HAD DELETED THE UNEXPLAINED INVESTMENT IN HOUSE CONSTRUCTION ON THE GROUND THAT THE DIFFERENCE BETWEEN THE FIGURE SHOWN BY THE ASSESSEE AND THE FIGURE OF THE DVO IS HARDLY 10 PER CENT. SIMILARLY WE FIND THAT THE PUNE BENCH OF THE TRIBUNAL IN THE CASE OF ITO VS. KAADDU JAYGHOSH APPASAHEB VIDE ITA NO. 441/PN/2004 FOR THE ASST. YR. 1992-93 AND RELIED ON BY THE LEARNED COUNSEL FOR THE ASSESSEE FOLLOWING THE DECISION OF THE J&K HIGH COURT IN THE CASE OF HONEST GROUP OF HOTELS (P) LTD. VS. CIT (2002) 177 CTR (J&K) 232 HAD HELD THAT WHEN THE MARGIN BETWEEN THE VALUE AS GIVEN BY THE ASSESSEE AND THE DEPARTMENTAL VALUER WAS LESS THAN 10 PER CENT THE ITA NO.6023/DEL/2015 6 DIFFERENCE IS LIABLE TO BE IGNORED AND THE ADDITION MADE BY THE AO CANNOT BE SUSTAINED. SINCE IN THE INSTANT CASE SUCH DIFFERENCE IS LESS THAN 10 PER CENT AND CONSIDERING THE FACT THAT VALUATION IS ALWAYS A MATTER OF ESTIMATION WHERE SOME DEGREE OF DIFFERENCE IS BOUND TO OCCUR WE ARE OF THE CONSIDERED OPINION THAT THE AO IN THE INSTANT CASE IS NOT JUSTIFIED IN SUBSTITUTING THE SALE CONSIDERATION AT RS. 20 55 000/- AS AGAINST THE ACTUAL SALE CONSIDERATION OF RS. 19 00 000/- DISCLOSED BY THE ASSESSEE. WE THEREFORE SET ASIDE THE ORDER OF THE CIT(A) AND DIRECT THE AO TO TAKE RS. 1 90 000/- ONLY AS THE SALE CONSIDERATION OF THE PROPERTY. THE GROUNDS RAISED BY THE ASSESSEE ARE ACCORDINGLY ALLOWED. IN THE INSTANT CASE THE DIFFERENCE BETWEEN THE VALUATION ADOPTED BY THE STAMP VALUATION AUTHORITY AND DECLARED BY THE ASSESSEE IS LESS THAN 100%. THEREFORE RESPECTFULLY FOLLOWING THE DECISION OF THE HONBLE COORDINATE BENCH WE HEREBY DIRECT THE AO TO ADOPT TH E ITA NO.6023/DEL/2015 7 VALUE AS DECLARED BY THE ASSESSEE. THE GORUND OF THE ASSESSEE IS ALLOWED. 8.2. IN THE BACKGROUND OF THE AFORESAID DISCUSSIONS AND RE SPECTFULLY FOLLOWING THE PRECEDENTS AS AFORESAID I DECIDE THE I SSUES IN DISPUTE IN FAVOUR OF THE ASSESSEE AND AGAINST THE REVENUE. 9. IN THE RESULT THE APPEAL FILED BY THE ASSESSEE STAN DS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 17/10/2016. SD/- [H.S. SIDHU] JUDICIAL MEMBER DATE: 17/10/2016 SRBHATNAGAR COPY FORWARDED TO: - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT (A) 5. DR ITAT TRUE COPY BY OR DER ASSISTANT REGISTRAR ITAT DELHI BENCHES