The DCIT, Central Circle-1,, RAJKOT-GUJARAT v. Shri Tulsibhai Limbabhai Parsana,, RAJKOT-GUJARAT

ITA 998/RJT/2009 | 2007-2008
Pronouncement Date: 18-03-2011 | Result: Allowed

Appeal Details

RSA Number 99824914 RSA 2009
Assessee PAN ADDPP8193P
Bench Rajkot
Appeal Number ITA 998/RJT/2009
Duration Of Justice 1 year(s) 5 month(s) 24 day(s)
Appellant The DCIT, Central Circle-1,, RAJKOT-GUJARAT
Respondent Shri Tulsibhai Limbabhai Parsana,, RAJKOT-GUJARAT
Appeal Type Income Tax Appeal
Pronouncement Date 18-03-2011
Appeal Filed By Department
Order Result Allowed
Bench Allotted DB
Tribunal Order Date 18-03-2011
Assessment Year 2007-2008
Appeal Filed On 24-09-2009
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL RAJKOT BENCH RAJKOT BEFORE SHRI A.L. GEHLOT (AM) AND SHRI N.R.S. GANESA N (JM) I.T.A. NO.996/RJT/2009 (ASSESSMENT YEAR 2007-08) DY.CIT CENT.CIR.1 VS SHRI MA QGANBHAI LIMBABHAI RAJKOT PARSANA NARSI PARK 2 NR SHREE COLONY OPP SNOWHILL APARTMENT RAJKOT PAN : ADDPP8193P (APPELLANT) (RESPONDENT) I.T.A. NO.997/RJT/2010 (ASSESSMENT YEAR 2007-08) DY.CIT CENT.CIR.1 VS SHRI LA KHABHAI LIMBABHAI RAJKOT PARSANA NARSI PARK 2 NR SHREE COLONY OPP SNOWHILL APARTMENT RAJKOT PAN : AGCPP4932F (APPELLANT) (RESPONDENT) I.T.A. NO.998/RJT/2010 (ASSESSMENT YEAR 2007-08) DY.CIT CENT.CIR.1 VS SHRI TU LSIBHAI LIMBABHAI RAJKOT PARSANA NARSI PARK 2 NR SHREE COLONY OPP SNOWHILL APARTMENT RAJKOT PAN : AGCPP4921H (APPELLANT) (RESPONDENT) I.T.A. NO.999/RJT/2010 (ASSESSMENT YEAR 2007-08) DY.CIT CENT.CIR.1 VS SMT. HA NSABEN MADHUKANT RAJKOT PARSANA NARSI PARK 2 NR SHREE COLONY OPP SNOWHILL APARTMENT RAJKOT PAN : AGCPP4915F (APPELLANT) (RESPONDENT) ITA NO.996/RJT/2009 ITA NO.997/RJT/2009 ITA NO.998/RJT/2009 ITA NO. 999/RJT/2009 2 APPELLANTS BY : SHRI AVINASH KUMAR RESPONDENT BY : SHRI DM RINDANI O R D E R PER BENCH THESE APPEALS FILED BY THE REVENUE ARE DIRECTED AG AINST THE SEPARATE ORDERS OF CIT(A)-IV AHMEDABAD ALL DATED 07-05-2009 FOR THE ASSESSMENT YEAR 2007-08. GROUNDS RAISED IN THE APPEALS ARE ON IDEN TICAL SET OF FACTS. THEREFORE FOR THE SAKE OF CONVENIENCE ALL THE APPEALS ARE DE CIDED BY THIS COMMON ORDER. 2. THE LEARNED REPRESENTATIVES OF THE PARTIES SUBMI TTED THAT THE FACTS OF THE CASE LEAD TO ITA NO.996/RJT/2009 IN THE CASE OF SHR I MAGANBHAI LIMBABHAI PARSANA. WE ACCORDINGLY TAKE THE FACTS FROM THAT C ASE. 3. THE EFFECTIVE COMMON GROUNDS RAISED READ AS BELO W: 1. THE LD.CIT(A) HAS ERRED IN LAW AND ON FACTS AND CIRCUMSTANCES OF THE CASE IN DELETING THE ADDITION OF RS.91 56 307/- ON ACCOUNT OF LONG TERM CAPITAL GAIN . 2. THE LD.CIT(A) HAS ERRED IN LAW AND ON FACTS AND CIRCUMSTANCES OF THE CASE IN DIRECTING A.O. TO ALLO W PAYMENT OF RS.63 LAKH TO ONE TOPIYA AS COST OF ACQUISITION WHILE CALCULATING LONG TERM CAPITAL GAIN. 4. THE BRIEF FACTS OF THE CASE ARE THAT A SEARCH U/ S 132 OF THE ACT WAS CARRIED OUT ON 22-12-2006. DURING THE COURSE OF SEARCH THE ASSESSEE MADE DISCLOSURE OF RS.7.92 CRORES ON ACCOUNT OF SALE OF LAND BEARIN G REVENUE SURVEY NO.435 ADMEASURING 6760.78 SQ.MTRS. THE SALE DEED WAS REG ISTERED ON 19-10-2006 ON DOCUMENTED PRICE OF RS.2.07 CRORES. HOWEVER IN TH E STATEMENT RECORDED U/S 132(4) OF THE ACT THE ASSESSEE HAD DEPOSED THAT ACT UAL SALE CONSIDERATION WAS RS.9.90 CRORES AND ACCORDINGLY MADE DISCLOSURE OF R S.7.92 CRORES. THE SAID TOTAL CONSIDERATION HAS BEEN SHOWN BY THE RESPECTIV E CO-OWNERS IN THEIR RETURNS OF INCOME. THE ASSESSEE CALCULATED HIS SHARE OF CA PITAL GAIN CONSIDERING TOTAL ITA NO.996/RJT/2009 ITA NO.997/RJT/2009 ITA NO.998/RJT/2009 ITA NO. 999/RJT/2009 3 CONSIDERATION OF RS.2 49 75 000 (RS.9.90 CRORES / ). THE COST OF LAND AS ON 01- 04-1981 WAS WORKED OUT BY APPLYING RATE OF 1674 PER SQ.MTR. THE ASSESSING OFFICER WAS NOT SATISFIED WITH THE RATE OF VALUATIO N AT RS.1674 PER SQ.MTR AS ON 01- 04-1981. THE ASSESSING OFFICER HAS NOTICED THAT HI GHER RATE AMONGST THE DETAILS OF LAND FURNISHED BY THE ASSESSEE HIMSELF WAS RS.76 5 PER SQ.MTR AS ON 29-03- 1982. THE ASSESSING OFFICER WAS OF THE VIEW THAT T HE RATE OF LAND AS ON 01-04- 1981 SHOULD BE LESSER THAN 765 PER SQ.MTR. THE ASS ESSING OFFICER ACCORDINGLY TAKEN THE FAIR MARKET VALUE OF THE LAND AS ON 01-04 -1981 AT RS.550 PER SQ.MTR AND ACCORDINGLY HE RECALCULATED THE CAPITAL GAIN AN D DETERMINED 1/4 TH SHARE OF THE ASSESSEE IN THE CAPITAL GAIN. THE CIT(A) DECID ED THE ISSUE REGARDING FAIR MARKET VALUE OF THE LAND AS ON 01-04-1981 IN FAVOUR OF THE ASSESSEE BY OBSERVING THAT THE ASSESSING OFFICER HAS CONSIDERED THE DOCUMENT DATED 12-11- 1993. HOWEVER HE DID NOT CONSIDER THE DOCUMENT DA TED 01-08-1984 BETWEEN THE ASSESSEE AND M/S SUJITRA DEVELOPMENT RAJKOT WH O WERE DOING THE BUSINESS OF LEVELING OF LAND AND EXCAVATION OF HUTMENTS OF I LLEGAL OCCUPANTS. THE CIT(A) HAS ALSO OBSERVED THAT THE ASSESSING OFFICER CAN RE FER FOR VALUATION OF LAND TO THE DVO U/S 55A OF THE ACT IF THE VALUE SHOWN BY THE AS SESSEE IS LESS THAN THE MARKET VALUE. THE CIT(A) ALSO OBSERVED THAT AS PER PROVISIONS OF SECTION 48 THE COST OF ACQUISITION OF THE LAND INCLUDE THE COST OF ANY IMPROVEMENT ON THE LAND INCURRED ON OR AFTER 01-04-1981 ONLY. 4. BEFORE THE CIT(A) ONE MORE GROUND RAISED BY THE ASSESSEE IS IN RESPECT OF ALLOWING REDUCTION IN CALCULATION OF CAPITAL GAIN F OR RS.63 LAKHS PAID TO SHRI SANDIP TOPIA WHO SAID TO BE NAME LENDER ONLY (RS.3 5 LAKHS & RS.28 LAKHS). IT WAS SUBMITTED BY THE ASSESSEE THAT DURING THE COURS E OF SEARCH PROCEEDINGS THE ASSESSEE STATED IN THE STATEMENT RECORDED THAT THE PAYMENT OF RS.28 LAKHS WAS GIVEN TO SANDIP TOPIA AND RS.34 50 000 PAID TO SHRI SANDIP TOPIA ON 19-10- 2006 VIDE CHEQUE NO.205756. THE SAME WAS ALSO RECO RDED IN THE CONVEYANCE DEED. SIMILARLY IN CASE OF AGREEMENT OF LAND DEVEL OPMENT WITH K AND K PROPERTIES (GUJ) PVT LTD AN AMOUNT OF RS.34 50 000 IS REFLECTED IN THE ITA NO.996/RJT/2009 ITA NO.997/RJT/2009 ITA NO.998/RJT/2009 ITA NO. 999/RJT/2009 4 CONVEYANCE DEED. THE CIT(A) ACCEPTED THE ASSESSEE S CONTENTION AND DIRECTED THE ASSESSING OFFICER TO GIVE THE CREDIT WHILE CALC ULATING LONG TERM CAPITAL GAIN AS COST OF ACQUISITION FOR RS.34 50 000. 4. THE LD.DR SUBMITTED THAT THE ASSESSEE HAS FAILED TO SUPPORT THE RATE OF FAIR MARKET VALUE TAKEN BY THE ASSESSEE AS ON 01-04-1981 . THE BURDEN LIES ON THE ASSESSEE TO SUPPORT THE VALUE TAKEN AS ON 01-04-198 1. THE LD.DR SUBMITTED THAT THE CIT(A) WRONGLY DIRECTED THE ASSESSING OFFI CER TO ALLOW DEDUCTION OF RS.34 50 000 IN CALCULATION OF THE CAPITAL GAIN WHE REAS NO SUCH DISCUSSION IS MADE IN THE ORDER OF THE ASSESSING OFFICER. THE LD .AR ON THE OTHER HAND SUBMITTED FOLLOWING CALCULATION IN SUPPORT OF THE V ALUE AS ON 01-04-1981 BY THE ASSESSE: LAND RATE PER MTR AMOUNT RS. SIZE MTRS SALE VALUE ADMITTED IN SEARCH 6760.78 9 99 00 00 0 FMV ON 04/01/1981 750 5070585 ADD : VALUE PAID TO THIRD PARTIES FOR TITLE SANDEEP TOPIA PAYMENTS 6250000 ------------ TOTAL FMV TAKEN BY ASSESSEE 1674.45 11320585 RATE ON 1-4-81 BY AO 550 (OTHER EXPENSES NOT ADDED BACK) IF ADDED BACK: 1330000 825000 6250000 8405000 1243.2 TOTAL RATE 1793.2 ITA NO.996/RJT/2009 ITA NO.997/RJT/2009 ITA NO.998/RJT/2009 ITA NO. 999/RJT/2009 5 DURING THE HEARING IT WAS ASKED TO FURNISH THE FREE ENGLISH TRANSLATION OF SALE DEED DATED 19-10-2006 WHICH IS ORIGINALLY IN GUJARA TI TO RECORD COMPLETE FACTS BY THE AUTHORITIES OF THE DEPARTMENT. 5. WE HAVE HEARD THE LEARNED REPRESENTATIVES OF THE PARTIES RECORD PERUSED. WE FIND THAT THE RELEVANT COMPLETE FACTS OF THE CAS E ARE NOT PUT ON RECORD BY THE REVENUE AUTHORITIES AFTER EXAMINING THE RELEVANT MA TERIAL. AS PER THE CERTIFICATE GIVEN IN THE PAPER BOOK A COPY OF SALE DEED DATED 1 9-10-2006 AND COPY OF CONFIRMATION FROM K AND K PROPERTIES (GUJ) PVT LTD DATED 13-04-2009 WERE FILED BEFORE THE CIT(A). THE CIT(A) WITHOUT EXAMINING AN D RECORDING THE RELEVANT FACTS DECIDED THE ISSUES. IT IS NOT CLEAR FROM THE RECORD THE NATURE OF PAYMENT OF RS.63 LAKHS WAS PAID TO SHRI SANDIP TOPIA. IN THE ABSENCE OF COMPLETE FACTS THE MATTER CANNOT BE DECIDED AT THIS STAGE. SINCE THE COMPLETE FACTS ARE REQUIRED TO BE PUT ON RECORD AFTER EXAMINING THE RELEVANT MATER IAL WE FIND IT PROPER TO SEND BACK THIS MATTER TO THE FILE OF THE CIT(A) WITH A D IRECTION TO DECIDE THE ISSUES AFRESH IN ACCORDANCE WITH LAW AFTER RECORDING THE C OMPLETE FACTS BY SPEAKING ORDER AND AFTER PROVIDING REASONABLE OPPORTUNITY OF HEARING TO BOTH THE SIDES. 6. IN THE RESULT REVENUES APPEALS ARE TREATED AS ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON 18-03-2011. SD/- SD/- (N.R.S. GANESAN) (A.L. GEHLOT) JUDICIAL MEMBER ACCOUNTANT MEMBER RAJKOT DT : 18 TH MARCH 2011 PK/- COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A)-IV AHMEDABAD 4. THE CIT CENTRAL-II AHMEDABAD 5. THE DR (TRUE COPY) BY ORDER ASSTT.REGISTRAR ITAT RAJKOT