MAESH CHADDA G. BAJOSHI, v. ITO WD 12(3)(3),

MA 815/MUM/2009 | 2003-2004
Pronouncement Date: 20-01-2010 | Result: Allowed

Appeal Details

RSA Number 81519924 RSA 2009
Assessee PAN AABPJ5598F
Bench Mumbai
Appeal Number MA 815/MUM/2009
Duration Of Justice 1 month(s) 17 day(s)
Appellant MAESH CHADDA G. BAJOSHI,
Respondent ITO WD 12(3)(3),
Appeal Type Miscellaneous Application
Pronouncement Date 20-01-2010
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted B
Tribunal Order Date 20-01-2010
Assessment Year 2003-2004
Appeal Filed On 03-12-2009
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH MUMBAI BEFORE SHRI D. MANMOHAN VP & SHRI R.K. PANDA AM M.A. NO. 815/MUM/2009 ARISING OUT OF I.T.A. NO. 4729/MUM/08 (ASSESSMENT YEAR 2003-04) SHRI MAHESHCHANDRA G. JOSHI 401 RAHEJA CENTRE 24 NARIMAN POINT MUMBAI-400 021 PAN: AABPJ5598F VS. I.T.O. 12(3)(3) MUMBAI APPELLANT RESPONDENT APPELLANT BY: SHRI C.N. VAZE RESPONDENT BY: MRS. VANDANA SAGAR O R D E R DATE OF HEARING: 15.01.2010 DATE OF ORDER: 20.01.2010 PER R.K. PANDA AM: THE ASSESSEE THROUGH THIS MISCELLANEOUS APPLICATIO N (MA) REQUESTS THE TRIBUNAL TO RECTIFY THE ORDER PASSED B Y IT IN I.T.A. NO.4729/ MUM/08 DATED 6 TH OCTOBER 2009 FOR THE A.Y. 2003-04. 2. FACTS OF THE CASE IN BRIEF ARE THAT THE ASSESSEE DURING THE IMPUGNED ASSESSMENT YEAR SOLD A FLAT IN THANE FOR A CONSIDERATION OF RS. 5 LAKHS. THE STAMP DUTY VALUATION AUTHORITY HA S ADOPTED THE VALUE OF RS.8 18 646. ON BEING OBJECTED BY THE ASS ESSEE FOR THE ADOPTION OF THE ABOVE VALUE THE ASSESSING OFFICER REFERRED THE MATTER TO THE DVO WHO VALUED THE PROPERTY AT RS.11 09 000. THE ASSESSING OFFICER ADOPTED THE VALUE AT RS.11 09 000 AS DETERMINED BY THE DVO FOR CALCULATION OF CAPITAL GAIN TAX LIAB ILITY WHICH WAS CONFIRMED BY THE CIT(A). WHEN THE MATTER CAME TO T HE TRIBUNAL THE TRIBUNAL UPHELD THE ORDER OF THE CIT(A). M.A. NO. 815/MUM/09 SHRI MAHESHCHANDRA G. JOSHI ==================== 2 3. THE LEARNED COUNSEL FOR THE ASSESSEE REFERRING TO T HE ORDER OF THE TRIBUNAL SUBMITTED THAT ALTHOUGH THE FACTS AS W ELL AS CONTENTION OF THE ASSESSEE HAD BEEN STATED CORRECTLY HOWEVER THE TRIBUNAL WHILE ARRIVING AT THE CONCLUSION HAD WRONGLY INTERP RETED THE PROVISIONS OF SUBSECTION (3) OF SECTION 50C OF THE INCOME-TAX ACT 1961 (THE ACT). REFERRING TO THE PROVISIONS OF SEC TION 50C(3) HE SUBMITTED THAT IF THE VALUE DETERMINED BY THE DVO E XCEEDS THE VALUE ADOPTED BY THE STAMP VALUATION AUTHORITY THEN THE V ALUE SO ADOPTED OR ASSESSED BY SUCH AUTHORITY SHALL BE TAKEN AS THE FULL VALUE OF THE CONSIDERATION RECEIVED OR ACCRUING AS A RESULT OF T HE TRANSFER. HE SUBMITTED THAT THIS PROVISION HAS ALSO BEEN CLARIFI ED BY THE CBDT VIDE CIRCULAR NO. 8 OF 2002 DATED 27 TH AUGUST 2002. ACCORDING TO THE SAID CIRCULAR IF FAIR MARKET VALUE (FMV) DETERM INED BY THE VALUATION OFFICER IS MORE THAN THE VALUE ADOPTED OR ASSESSED FOR STAMP DUTY PURPOSES THE ASSESSING OFFICER SHALL NO T ADOPT SUCH FMV AND SHALL TAKE THE FULL VALUE OF CONSIDERATION TO B E THE VALUE ADOPTED OR ASSESSED FOR STAMP DUTY PURPOSES. THIS AMENDMEN T WILL TAKE EFFECT FROM 1 ST APRIL 2003 AND WILL ACCORDINGLY APPLY IN RELATION TO THE A.Y. 2003-04 AND SUBSEQUENT YEARS. HE ACCORDIN GLY SUBMITTED THAT IN THE ORDER OF THE TRIBUNAL THE MISTAKE BEING APPARENT THE SAME MAY BE RECTIFIED. 4. THE LEARNED DR ON THE OTHER HAND STRONGLY OPPOSED THE MA FILED BY THE ASSESSEE. SHE SUBMITTED THAT THERE IS NO MISTAKE APPARENT IN THE ORDER. REFERRING TO THE DECISION O F THE HONBLE BOMBAY HIGH COURT IN THE CASE OF CIT VS. RAMESH ELE CTRIC & TRADING CO. REPORTED IN 203 ITR 497 SHE SUBMITTED THAT THE POWER OF RECTIFICATION U/S. 254(2) OF THE ACT CAN BE EXERCIS ED ONLY WHEN THE MISTAKE WHICH IS SOUGHT TO BE RECTIFIED IS AN OBVIO US AND PATENT MISTAKE WHICH IS APPARENT FROM RECORD AND NOT A MIS TAKE WHICH REQUIRES TO BE ESTABLISHED BY ARGUMENTS AND A PROLO NGED PROCESS OF REASONING FROM POINTS ON WHICH THERE MAY CONCEIVABL Y BE TWO OPINIONS. M.A. NO. 815/MUM/09 SHRI MAHESHCHANDRA G. JOSHI ==================== 3 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS MADE BY BO TH THE SIDES AND PERUSED THE MATERIAL AVAILABLE BEFORE US. A COMBINED READING OF PROVISIONS OF SUBSECTION 50C(3) READ WIT H CBDT CIRCULAR NO. 8 OF 2002 DATED 27 TH AUGUST 2002 CLEARLY STATES THAT WHERE FMV DETERMINED BY THE VALUATION OFFICER IS MORE THAN TH E VALUE ADOPTED OR ASSESSED FOR STAMP DUTY PURPOSES THE ASSESSING OFFICER SHALL NOT ADOPT SUCH FMV AND SHALL TAKE THE FULL VALUE OF CON SIDERATION TO BE THE VALUE ADOPTED OR ASSESSED FOR STAMP DUTY PURPOS ES. SINCE THE TRIBUNAL HAS ERRONEOUSLY DECIDED THE ISSUE WE THE REFORE ARE OF THE OPINION THAT A MISTAKE HAS CREPT IN THE ORDER OF TH E TRIBUNAL WHICH REQUIRES RECTIFICATION U/S. 254 (2) OF THE ACT. WE THEREFORE AMEND PARA 11 OF THE ORDER OF THE TRIBUNAL WHICH SHOULD B E READ AS UNDER: 11. ACCORDING TO THE CBDT CIRCULAR NO. 8 OF 2002 DATED 27 TH AUGUST 2002 IF THE FMV DETERMINED BY THE DVO IS MORE THAN THE VALUE ADOPTED OR ASSESSED FOR STAMP DUTY PURPOSES THE ASSESSING OFFICER SHALL NO T ADOPT SUCH FMV AND SHALL TAKE THE FULL VALUE OF CONSIDERATION TO BE THE VALUE ADOPTED OR ASSESSED F OR STAMP DUTY PURPOSES. A COMBINED READING OF THE CBDT CIRCULAR STATED ABOVE AND THE PROVISIONS OF SECTION 50C(3) SHOWS THAT WHEN THE VALUE ADOPTED BY THE DVO IS MORE THAN THE VALUE ADOPTED BY THE STAMP DUTY VALUING AUTHORITY THE VALUE DETERMINED BY THE STAMP DUTY VALUING AUTHORITY HAS TO BE TAKEN. SINC E IN THE INSTANT CASE THE VALUE DETERMINED BY THE DVO AT RS.11 09 000 IS MORE THAN THE VALUE AS PER THE VALU E ADOPTED BY THE STAMP DUTY VALUATION AUTHORITY AT RS.8 18 646 THEREFORE IN VIEW OF THE PROVISIONS O F SECTION 50C(3) READ WITH CBDT CIRCULAR NO. 8 CITED ABOVE THE VALUE ADOPTED BY THE STAMP DUTY AUTHORIT Y AT RS.8 18 646 HAS TO BE ADOPTED FOR DETERMINING TH E M.A. NO. 815/MUM/09 SHRI MAHESHCHANDRA G. JOSHI ==================== 4 CAPITAL GAIN TAX. WE THEREFORE DIRECT THE ASSESS ING OFFICER TO SUBSTITUTE THE VALUE OF RS.8 18 646 AS AGAINST RS.11 09 000 ADOPTED BY HIM AND CONFIRMED BY THE CIT(A) FOR THE PURPOSE OF CALCULATION OF CAP ITAL GAIN TAX LIABILITY. THE GROUND RAISED BY THE ASSES SEE IS ACCORDINGLY ALLOWED. 6. IN THE RESULT THE MA FILED BY THE ASSESSEE IS ALLO WED. ORDER PRONOUNCED ON 20 TH JANUARY 2010. SD/- (D. MANMOHAN) VICE PRESIDENT SD/- (R.K. PANDA) ACCOUNTANT MEMBER MUMBAI DATED 20 TH JANUARY 2010 COPY TO: (1) THE APPELLANT (2) THE RESPONDENT (3) THE CIT(A)-XIII MUMBAI (4) THE CIT-13 MUMBAI (5) THE DR B BENCH ITAT MUMBAI. //TRUE COPY// BY ORDER ASSISTANT REGISTRAR ITAT MUMBAI BENCHES MUMBAI TPRAO