Smt. Vijaya T Birar,, Nashik v. CIT-I Nashik., Nashik

ITA 794/PUN/2012 | 2009-2010
Pronouncement Date: 22-07-2013 | Result: Allowed

Appeal Details

RSA Number 79424514 RSA 2012
Assessee PAN AAUPB2031J
Bench Pune
Appeal Number ITA 794/PUN/2012
Duration Of Justice 1 year(s) 3 month(s) 5 day(s)
Appellant Smt. Vijaya T Birar,, Nashik
Respondent CIT-I Nashik., Nashik
Appeal Type Income Tax Appeal
Pronouncement Date 22-07-2013
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted A
Tribunal Order Date 22-07-2013
Assessment Year 2009-2010
Appeal Filed On 17-04-2012
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH A PUNE BEFORE SHRI SHAILENDRA KUMAR YADAV JUDICIAL MEMBER AND SHRI R.K. PANDA ACCOUNTANT MEMBER ITA NO. 794/PN/2012 (ASSESSMENT YEAR 2009-10) SMT. VIJAYA T. BIRAR S.NO.93 AT POST : LASALGAON TAL : NIPHAD DIST : NASHIK. PAN NO.AAUPB 2031J .. APPELLANT VS. CIT-I NASHIK .. RESPONDENT APPELLANT BY : SHRI V.L. JAIN RESPONDENT BY : SHRI Y.K. BHASKAR DATE OF HEARING : 16-07-2013 DATE OF PRONOUNCEMENT : 22-07-2013 ORDER PER R.K. PANDA AM : THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAIN ST THE ORDER DATED 17-02-2012 OF THE CIT(A)-I NASHIK RELATING TO ASSE SSMENT YEAR 2009- 10. 2. THE ONLY EFFECTIVE GROUND RAISED BY THE ASSESSEE READS AS UNDER : THE LD.CIT(A) HAS ERRED ON FACTS AND IN LAW IN CONF IRMING THE ADDITION OF RS.37 62 664/- BY THE ASSESSING OFFICER BY INVOKING THE PROVISIONS OF SECTION 50C(1) OF THE INCOME TAX ACT 1961 AND IGNORING THE PROVISIONS OF SECTION 50C(2) OF THE IN COME TAX ACT 1961. 2.1 FACTS OF THE CASE IN BRIEF ARE THAT THE ASSES SEE IS AN INDIVIDUAL AND FILED RETURN OF INCOME ON 31-03-2010 DISCLOSING INC OME AT RS.2 39 140/-. DURING THE COURSE OF ASSESSMENT PROCEEDINGS THE ASS ESSING OFFICER NOTED 2 THAT THE ASSESSEE HAS SHOWN TO HAVE SOLD A PROPERT Y FOR A CONSIDERATION OF RS.10 LAKHS AS AGAINST THE GOVERNMENT VALUATION AT RS.79 50 000/-. THE SAID PROPERTY WAS PURCHASED ON 10-11-2003 AND T HE SALE TRANSACTION WAS MADE ON 11-04-2008. ON BEING QUESTIONED BY THE ASSESSING OFFICER REGARDING THE CAPITAL GAIN EARNED FROM THE SALE CON SIDERATION IT WAS STATED THAT THE SAID PROPERTY WAS SOLELY PURCHASED BY HER HUSBAND WHO HAS GIVEN HER SHARE OUT OF NATURAL LOVE AND AFFECTI ON. TOTAL CONSIDERATION OF RS.10 LAKHS OF THE SAID PROPERTY HAS BEEN RECEIV ED BY HER HUSBAND BY CHEQUE WHICH WAS DEPOSITED INTO BANK ACCOUNT. IT W AS STATED THAT THE LAND WAS UNDER COMPULSORY ACQUISITION BELT. IT WAS FURTHER SUBMITTED THAT SINCE THE WHOLE TRANSACTION HAS NOT AFFECTED B Y BOOKS OF ACCOUNTS THE ASSESSEE HAS NOT SHOWN ANY TREATMENT. 3. HOWEVER THE ASSESSING OFFICER WAS NOT SATISFIED WITH THE EXPLANATION GIVEN BY THE ASSESSEE. HE NOTED THAT T HE ASSESSEE IS HAVING 50% SHARE IN THE PLOT OF LAND AT BLOCK NO.266 AT LO SALGAON TALUQ: NIPHAD OF DIST : NASHIK. THE PROPERTY HAS BEEN SOL D ON 11-04-2008 FOR A CONSIDERATION AT RS.10 LAKHS WHEREAS THE GOVERNME NT VALUATION IS AT RS.79 50 000/-. APPLYING THE PROVISIONS OF SECTION 50C OF THE I.T. ACT THE ASSESSING OFFICER DETERMINED THE LONG TERM CAPI TAL GAIN AT RS.37 62 664/- BEING 50% SHARE OF THE ASSESSEE. 4. IN APPEAL THE LD.CIT(A) UPHELD THE ACTION OF THE ASSESSING OFFICER. WHILE DOING SO HE REJECTED THE CONTENTIO N OF THE ASSESSEE THAT THE MATTER SHOULD HAVE BEEN REFERRED TO THE DVO. W HILE DOING SO HE NOTED THAT IN THE INSTANT CASE THE ASSESSEE DID NOT CHALLENGE THE STAMP DUTY VALUATION BEFORE THE ASSESSING OFFICER. FURTH ER THE ASSESSEE IN THE 3 INSTANT CASE HAS NOT DEMONSTRATED THAT THE FAIR MAR KET VALUE IS LESS THAN THE STAMP VALUATION AUTHORITY. HE ALSO REJECTED TH E VALUATION REPORT FILED BY THE ASSESSEE ON THE GROUND THAT THE SAME IS AN A DDITIONAL EVIDENCE WHICH WAS NOT PLACED BEFORE THE ASSESSING OFFICER. 4.1 AGGRIEVED WITH SUCH ORDER OF THE CIT(A) THE ASS ESSEE IS IN APPEAL BEFORE US. 5. THE LD. COUNSEL FOR THE ASSESSEE DREW THE ATTENT ION OF THE BENCH TO THE SUBMISSION DATED 24-08-2011 FILED BEFORE THE ASSESSING OFFICER (A COPY OF WHICH IS PLACED AT PB PAGES 26 AND 27). HE DREW THE ATTENTION OF THE BENCH TO THE FOLLOWING : THOUGH THE GOVERNMENT VALUATION OF SAID PROPERTY I S RS.79.50 LACS WE HAVE ACTUALLY RECEIVED RS.10.00 LACS AS THE LAND WAS UNDER COMPULSORY ACQUISITION BELT. SINCE WHOLE TRA NSACTION HAS NOT AFFECTED BY BOOKS OF ACCOUNT I HAVE NOT SHOWN A NY TREATMENT FOR SAME. 5.1 SIMILARLY REFERRING TO PAGE 28 OF THE PB HE SU BMITTED THAT THE ASSESSEE VIDE LETTER DATED 06-09-2011 HAS AGAIN SUB MITTED BEFORE THE ASSESSING OFFICER AS UNDER : THOUGH THE GOVERNMENT VALUATION OF SAID PROPERTY I S RS.79.50 LACS WE HAVE ACTUALLY RECEIVED RS.10.00 LA CS AS THE LAND WAS UNDER COMPULSORY ACQUISITION BELT. SINCE WHOLE TRANSACTION HAS NOT AFFECTED BY BOOKS OF ACCOUNT I HAVE NOT SHO WN ANY TREATMENT FOR SAME. 5.2 HE SUBMITTED THAT THE ASSESSING OFFICER INSTEAD OF REFERRING THE MATTER TO THE DVO TOOK THE STAMP DUTY VALUATION FOR THE PURPOSE OF DETERMINING THE CAPITAL GAIN . REFERRING TO VARIOU S DECISIONS HE SUBMITTED THAT IN CASE THE ASSESSING OFFICER DOES N OT AGREE WITH THE 4 EXPLANATION OF ASSESSEE WITH REGARD TO LOWER SALE C ONSIDERATION THAN THE VALUE ADOPTED BY STAMP VALUATION AUTHORITY HE SHOU LD REFER THE MATTER TO THE DVO UNDER SUB-SECTION (2) OF SECTION 50C. HE S UBMITTED THAT THE ASSESSEE HAS ALREADY PLACED BEFORE THE ASSESSING OF FICER THAT ALTHOUGH THE VALUATION OF THE SAID PROPERTY BY THE STAMP VAL UATION AUTHORITY IS RS.79.50 LAKHS SHE HAS RECEIVED ONLY RS.10 LAKHS AS THE LAND WAS UNDER COMPULSORY ACQUISITION BELT. HE SUBMITTED THAT IN THE INTEREST OF JUSTICE THE MATTER SHOULD BE RESTORED TO THE FILE OF THE AS SESSING OFFICER WITH A DIRECTION TO REFER THE MATTER TO THE DVO AND DECIDE THE ISSUE AFRESH. HE RELIED ON THE FOLLOWING DECISIONS : 1. MEGHRAJ BAID VS. ITO (JOD) 114 TTJ 841 2. ITO VS. SMT. MANJU RANI JAIN (DEL) 24 SOT 24 3. RAVIKANT VS. ITO (DEL) 110 TTJ 297 4. ASHUTOSH BHARGAVA VS. DCIT (JAI) 138 TTJ 479 6. THE LD. DEPARTMENTAL REPRESENTATIVE ON THE OTHE R HAND HEAVILY RELIED ON THE ORDER OF THE CIT(A). HE SUBMITTED TH AT THE ASSESSEE HAS NOT CATEGORICALLY REQUESTED THE ASSESSING OFFICER TO RE FER THE MATTER TO THE DVO. THEREFORE THE LD.CIT(A) WAS FULLY JUSTIFIED IN UPHOLDING THE ORDER OF THE ASSESSING OFFICER. 7. WE HAVE CONSIDERED THE RIVAL ARGUMENTS MADE BY B OTH THE SIDES PERUSED THE ORDERS OF THE ASSESSING OFFICER AND THE CIT(A) AND THE PAPER BOOK FILED ON BEHALF OF THE ASSESSEE. WE HAV E ALSO CONSIDERED THE VARIOUS DECISIONS CITED BEFORE US. THERE IS NO DIS PUTE TO THE FACT THAT THE LAND IN QUESTION HAS BEEN SOLD FOR A CONSIDERATION OF RS.10 LAKHS WHEREAS THE GOVERNMENT VALUATION OF THE PROPERTY WAS AT RS. 79.50 LAKHS. THERE IS ALSO NO DISPUTE TO THE FACT THAT THE ASSESSEE BE FORE THE ASSESSING OFFICER ON TWO OCCASIONS HAD STATED THAT THOUGH THE GOVERNMENT 5 VALUATION OF THE SAID PROPERTY IS RS.79.50 LAKHS TH EY HAVE ACTUALLY RECEIVED RS.10 LAKHS AS THE LAND WAS UNDER COMPULSO RY ACQUISITION BELT. HOWEVER WE FIND THE ASSESSING OFFICER HAS NOT REFE RRED THE MATTER TO THE DVO FOR DETERMINING THE FAIR MARKET VALUE. ON BEIN G QUESTIONED BY THE BENCH AS TO WHAT HAS HAPPENED IN THE HANDS OF THE H USBAND OF THE ASSESSEE NEITHER THE LD. COUNSEL FOR THE ASSESSEE NOR THE LD. DEPARTMENTAL REPRESENTATIVE COULD SAY ANYTHING ABOU T THE SAME. 8. WE FIND THE JODHPUR BENCH OF THE TRIBUNAL IN THE CASE OF MEGHRAJ BAID VS. ITO REPORTED IN 114 TTJ 841 HAS HELD THAT IN CASE THE ASSESSING OFFICER DOES NOT AGREE WITH THE EXPLANATI ON OF ASSESSEE WITH REGARDS TO LOWER SALE CONSIDERATION THAN VALUATION ADOPTED BY STAMP VALUATION AUTHORITY HE SHOULD REFER THE MATTER TO DVO UNDER SUB-SECTION (2) OF SECTION 50C. IT HAS BEEN HELD THAT THE WORD MAY IN SECTION 50C(2) HAS TO BE READ AS SHOULD SO THAT THE PROVI SION IS NOT RENDERED REDUNDANT. THE DELHI BENCH OF THE TRIBUNAL IN THE CASE OF RAVIKANT VS. ITO 110 TTJ 297 HAS HELD THAT IN CASE THE ASSESSEE CLAIMS THAT THE VALUE FIXED FOR STAMP DUTY PURPOSES IS HIGHER THAN THE FA IR MARKET VALUE THE ASSESSING OFFICER SHALL REFER THE MATTER TO DVO UND ER SECTION 50C(2) FOR DETERMINATION OF FAIR MARKET VALUE WHICH IF LESS TH AN THE STAMP DUTY VALUATION SHALL BE CONSIDERED AS FAIR MARKET VALUE. SIMILAR VIEW HAS BEEN TAKEN BY THE JAIPUR BENCH OF THE TRIBUNAL IN T HE CASE OF ASHUTOSH BHARGAVA VS. DCIT. CONSIDERING THE TOTALITY OF THE FACTS OF THE CASE AND IN THE LIGHT OF THE DECISIONS CITED ABOVE WE DEEM IT PROPER TO RESTORE THE MATTER TO THE FILE OF THE ASSESSING OFFICER WITH A DIRECTION TO REFER THE MATTER TO THE DVO FOR DETERMINING FAIR MARKET VALUE . HE SHOULD ALSO VERIFY WHAT HAS HAPPENED IN THE HANDS OF THE HUSBAN D OF THE ASSESSEE 6 WHO ADMITTEDLY HOLDS 50% OF THE SHARE IN THE PROPER TY. THE ASSESSING OFFICER SHALL ALSO VERIFY AS TO WHETHER THERE IS AN Y NOTIFICATION GIVING PERMISSION TO THE ASSESSEE SINCE THE SAID LAND WAS UNDER COMPULSORY ACQUISITION BELT AS STATED BY THE ASSESSEE. HE SHA LL DECIDE THE ISSUE AFRESH AND IN ACCORDANCE WITH LAW AFTER GIVING DUE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. WE HOLD AND DIRECT ACCORDIN GLY. THE GROUND RAISED BY THE ASSESSEE IS ACCORDINGLY ALLOWED FOR S TATISTICAL PURPOSES. 9. IN THE RESULT THE APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. PRONOUNCED IN THE OPEN COURT ON THIS THE 22 ND DAY OF JULY 2013. SD/- SD/- (SHAILENDRA KUMAR YADAV) (R.K. PANDA ) JUDICIAL MEMBER ACCOUNT ANT MEMBER PUNE DATED: 22 ND JULY 2013 SATISH COPY OF THE ORDER FORWARDED TO : 1. ASSESSEE 2. CIT(A)-I NASHIK 3 THE D.R A PUNE BENCH 4. GUARD FILE BY ORDER // TRUE COPY // SENIOR PRIVATE SECRETARY ITAT PUNE BENCHES PUNE