Income Tax Appellate Tribunal - Ahmedabad
Parimal Somnathbhai Pandit, Ahmedabad vs Ito, Ward-3(2)(4), Ahmedabad on 6 September, 2019
आयकर अपील य अ धकरण, अहमदाबाद यायपीठ 'SMC' अहमदाबाद ।
IN THE INCOME TAX APPELLATE TRIBUNAL "SMC" BENCH, AHMEDABAD BEFORE SHRI MAHAVIR PRASAD, JUDICIAL MEMBER & SHRI WASSEM AHMED, ACCOUNTANT MEMBER आयकर अपील सं./I.T.A. No. 272/Ahd/2019 ( नधा रण वष / Assessment Year: 2015-16) Parimal Somnathbhai बनाम/ ITO Pandit Ward- 3(2)(4), Vs. 6, Firstchoice Association Ahmedabad Meghana Bungalows, B/h.
Inductotherm Factory, South Bopal, Ahmedabad- 380058 थायी ले खा सं . /जीआइआर सं . /PAN/GIR No. : AHU PP1 322 R (अपीलाथ /Appellant) .. ( यथ / Respondent) अपीलाथ ओर से /Appellant by : Shri Artiben N. Shah, AR यथ क ओर से / Respondent Shri Uma Shankar, Sr. DR by :
सन ु वाई क तार ख / Date of 23/08/2019 Hearing घोषणा क तार ख /Date of 06/09/2019 Pronouncement आदे श/O R D E R PER MAHAVIR PRASAD - JM:
This appeal has been preferred by the assessee against the order of Ld. CIT(A)-3/ITO Ward-3(2)(4)/354/2017-18 dated 12.12.2018 arising out of assessment order dated 27.12.2017 and assessee has taken following grounds:
"1. The Learned Commissioner of Income Tax(Appeals)-3, Ahmedabad has erred in law and on facts of the case by confirming the addition of Rs. 12,14,300/- u/s. 56(2)(vii) of the I.T. Act, 1961 made by the Assessing Officer in respect of purchase of immovable property by relying on the market value determined by the Stamp Valuation Authority though the area I T A N o . 2 7 2 / Ah d / 2 0 1 9 [ P a r i m a l S o m n a t h b h a i P a n d i t v s . I T O ] A. Y . 2 0 1 5 - 1 6 - 2 -
of land purchased was 75 sq. mtrs less than the area of 363 sq. mtrs stated in the document of sale.
2. The Learned Commissioner of Income Tax (Appeals)-3, Ahmedabad has erred in law and on facts of the case by not taking into consideration the above deduction of 75 sq. mtrs made according to cutting of 15 mtrs on Plot No. 6 according to AUDA TP Road Scheme resulting into reduction in the area by 75 sq. mtrs."
2. Facts of the case are that during the year under consideration assessee has purchased non-agriculture plot situated at Mouje Bopal, Block No. 355/A for a consideration of Rs. 41,40,000/- as per sale deed executed in the office of the Sub Registrar (Ahmedabad-9), Bopal (Reg. No. 2154/2014). Against the said property, assessee has paid stamp duty of Rs. 2,62,500/-. In view of the above, the market value (jantri rate) of the property in question was obtained from Sub Registrar, (Ahmedabad-9), Bopal by issuing notice u/s. 133(6) of the Act. In response, Sub- Registrar (Ahmedabad-9), Bopal vide letter dated 24.11.2017 reported the market value of the property at Rs. 53,54,300/- as against Rs. 41,40,000/- shown in the sale deed. In view of the above, as per order sheet entry dated 30.11.2017, AR of the assessee was asked as to why the provisions of section 56(2)(vii) should not be applied in this case and he was requested to furnish his reply, if any, by 06.12.2017. As no such reply was received by this office by that date, a notice u/s. 142(1) dated 07.12.2017 was issued to the assessee mentioning the above facts and fixing the hearing on 13.12.2017. In response, assessee vide submission dated 26.12.2017 stated as under:-
"I have purchased a plot at Bopal as per the copy of sale deed already filed. The value of the plot as per the deed executed is Rs. 41,40,000/- whereas I have paid stamp duty on the amount of Rs. 53,54,250/- as per the valuation. In this context, it may kindly be I T A N o . 2 7 2 / Ah d / 2 0 1 9 [ P a r i m a l S o m n a t h b h a i P a n d i t v s . I T O ] A. Y . 2 0 1 5 - 1 6 - 3 -
noted that the valuation authority has valued plot on the basis of 363.00 sq. mtr (as per copy of 7/12 record attached). Whereas there is land cutting of 75.00 sq. mtr. as per T.P. Scheme. A copy of the same is attached herewith. Therefore, the value of the land should be calculated on 288.00 sq. mtr (366.00-75.00sq. mtr) and in fact the deal for the purchase of land in on this basis only. I have attached a copy of plan for construction which clearly shows plot area as per record 363.00 sq. mtr and plot area as per site (after deduction) 288.00 sq. mtr.
Therefore, in view of above, I humbly request your goods selves to kindly allow the rate for the purchase of land as per the rate mentioned in sale deed. Hence the provisions of section 56(2)(vii) of I.T. Act, 1961 will not be applicable."
But the Ld. AO was not agree with the contention of the assessee as assessee has not disputed the stamp duty adopted in respect of property and determined the market value of the property as per Stamp Valuation Authority to the tune of Rs. 53,54,300/- as per Sec. 56(2)(vii) of the Act as against Rs. 41,40,000/- shown by the assessee and a difference of Rs. 12,14,300/- was added to the total income of the assessee under sec. 56(2)(vii) of the Act against the said addition. Assessee has preferred first statutory appeal before the Ld. CIT(A) who confirmed the action of the Ld. AO.
3. We have gone through the relevant record and impugned order the appellant contention is that as per the Land Revenue 7/12 Document records the Area of Land at Block No. 355/A, F.P. No. 84/1 Sub Plot No. 6 is 363 square Meter at Boapl, Ahmedabad. There has been a cutting of 15 meters on Plot No. 6 according to the AUDA T.P. Road Scheme, which resulted in 75 square meter cutting on Block No. 355/A in Plot No. 6, Bopal, Ahmedabad. AT the time of preparation of Stamp Duty document the area of land is considered 363 Square Meter instead of 288 square meter (i.e. 363 square meters less 75 square meters cutting I T A N o . 2 7 2 / Ah d / 2 0 1 9 [ P a r i m a l S o m n a t h b h a i P a n d i t v s . I T O ] A. Y . 2 0 1 5 - 1 6 - 4 -
as per the T.P. Scheme) because the Land Revenue records are not updated as the new AUDA T.P. Road Scheme. As per the sale deed made by the transferor Mr. Parimal Somanth Pandit transferred the property at a consideration of Rs. 41,40,000/- which was based on land available to use after the cutting as per the New AUDA T.P. Road Scheme which is 288 square meter only. But to execute the transaction without any further delay the transferor and transferee agreed to pay the Stamp Duty on the total Plot area of 363 Square meter though the actual Plot area transferred was 288 square meter only. Even though Construction permission on this plot given by the Ahmedabad Municipal Corporation the authority for the same, is of 288 Square meters only. The appellant has submitted a copy of construction plan showing the plot area as per record is 363 Square meter and plot area as per site (after deduction) 288.00 Square meter. However, the AO has made addition of Rs. 12,14,300/- by invoking the provision of sec. 56(2)(vii). The appellant wanted to execute the sale deed as soon as possible and doesn't want to be part of any legal proceeding and stamp duty was paid with bona fide intention.
4. Ld. AR contention is that at the time of preparation of stamp duty document the area of land was considered 363 square meter instead of 288 square meter that is 75 square meter was gone for town plan scheme purpose and land revenue were not updated as per the new AUDA T.P. Road Scheme for rectification of this mistake is long time consuming process and seller and buyer were both in hurry for the agreement of the above said land, though, payment was made as per Stamp Valuation Authority for 363 I T A N o . 2 7 2 / Ah d / 2 0 1 9 [ P a r i m a l S o m n a t h b h a i P a n d i t v s . I T O ] A. Y . 2 0 1 5 - 1 6 - 5 -
square meter but actual position of 288 square meter has been taken by the appellant.
5. In the interest of the justice we set-aside this matter to the file of the Ld. AO to visit the site and make the measurement of plot and will also verify the land acquisition documents of 75 square meter by the authorities for town planning scheme. Though, appellant has also filed a copy of the Plan passed by the order wherein sized of the plot is 288 square meter is mentioned.
6. Thus, we direct the AO to make physical verification of the plot and verify above said documents and thereafter, will decide matter in accordance with law.
7. In the result, appeal filed by the assessee is allowed for statistical purpose.
This Order pronounced in Open Court on 06/09/2019
Sd/- Sd/-
(WASEEM AHMED) (MAHAVIR PRASAD)
ACCOUNTANT MEMBER JUDICIAL MEMBER
Ahmedabad: Dated 06/09/2019
TANMAY TRUE COPY
आदे श क त!ल"प अ#े"षत / Copy of Order Forwarded to:-
1. राज व / Revenue
2. आवेदक / Assessee
3. संबं*धत आयकर आयु,त / Concerned CIT
4. आयकर आयु,त- अपील / CIT (A)
5. 0वभागीय 3त3न*ध, आयकर अपील य अ*धकरण, अहमदाबाद / DR, ITAT, Ahmedabad
6. गाड9 फाइल / Guard file.
By order/आदे श से, उप/सहायक पंजीकार आयकर अपील य अ*धकरण, अहमदाबाद ।