Income Tax Appellate Tribunal - Mumbai
Acit 17(3), Mumbai vs Mithailal S. Dalsingar Singh, Mumbai on 10 April, 2017
1 ITA No. 2525/Mum/203 &
ITA No. 3528/Mum/2013
आयकर अपील य अ
धकरण "B"
यायपीठ मब
ुं ई म ।
IN THE INCOME TAX APPELLATE TRIBUNAL "B" BENCH, MUMBAI
BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER
AND SHRI RAMIT KOCHAR, ACCOUNTANT MEMBER
आयकर अपील सं./I.T.A. No.2525/Mum/2013
( नधा रण वष / Assessment Year : 2006-07)
Shri Mithailal S. Dalsingar बनाम/ ACIT - 17(3) ,
Singh, 614, 6 t h floor,
v.
501/502, 5 t h Floor, Piramal Chambers,
Royal Status CHS Ltd., Lalbaug , Parel,
Sir Bh alchandra Road, Mumbai - 400 012.
Dadar (E) ,
Mumbai - 400 014.
थायी ले खा सं . / PAN : AOHPS3278K
(अपीलाथ /Appellant) .. ( यथ / Respondent)
आयकर अपील सं./I.T.A. No.3528/Mum/2013
( नधा रण वष / Assessment Year : 2006-07)
ACIT - 17(3) , बनाम/ Shri Mithailal S.
614, 6 t h floor, Dalsingar Singh,
v.
Piramal Chambers, Shop No. 18,
Lalbaug , Parel, Ti mber Terrace,
Mumbai - 400 012. K.A. Subramanium Road,
Matunga,
Mumbai 400 019.
थायी ले खा सं . / PAN : AOHPS3278K
(अपीलाथ /Appellant) .. ( यथ / Respondent)
Assessee by Shri Hari S. Raheja
Revenue by : Shri Suman Kumar, D.R.
सन
ु वाई क तार ख /Date of Hearing : 03-04-2017
घोषणा क तार ख /Date of Pronouncement : 10-04-2 017
आदे श / O R D E R
PER RAMIT KOCHAR, Accountant Member
These are cross appeals filed by the assessee and the Revenue before the Income-tax Appellate Tribunal, Mumbai (hereinafter called "the tribunal"). Since common issues are involved, these cross appeals are heard together and are disposed of by this common order for the 2 ITA No. 2525/Mum/203 & ITA No. 3528/Mum/2013 sake of convenience and brevity. These appeals are directed against the appellate order dated 15th February, 2013 passed by learned Commissioner of Income Tax (Appeals)- 29, Mumbai (hereinafter called "the CIT(A)"), for the assessment year 2006-07, the appellate proceedings before the learned CIT(A) arising from the assessment order dated 24th December, 2008 passed by learned Assessing Officer (hereinafter called "the AO") u/s 143(3) of the Income-tax Act,1961 (hereinafter called "the Act").
2. The grounds of appeal raised by the assessee in ITA No. 2525/Mum/2013 for assessment year 2006-07 in the memo of appeal filed with the Income-Tax Appellate Tribunal, Mumbai (hereinafter called "the tribunal") read as under:-
"1. On the facts and in the circumstances of the case, the learned Commissioner of Income tax (Appeals) erred in holding that provisions of section 50C are applicable on sale/transfer of capital assets being plot No. 749 and 750. The appellant submits that the provisions of section 50C are not applicable as the Agreement for Sale was not registered.
2. On the facts and in the circumstances of the case, the learned Commissioner of Income tax (Appeals) erred in accepting the Stamp Duty Valuation of Power of Attorney registered with the Sub-Registrar of Assurances without considering various negative factors attached to the property sold.
3. On the facts and in the circumstances of the case, the learned Commissioner of Income tax (Appeals) erred in taking the appellant's share in plot No.750 at 1/4th share as against appellant's claim of 1/8th share.
4. On the facts and in the circumstances of the case, the learned Commissioner of Income tax (Appeals) erred in taking the deemed sale price of the subject property at Rs. 3,72,42,000/- on the basis of valuation done by the Stamping Authorities as on date of registration of Power of Attorney i.e. on 12.09.2005. The appellant submits that the market value should be taken as on 25.05.1996 i.e. date on which the M.O.U. was signed with the Purchaser.3 ITA No. 2525/Mum/203 & ITA No. 3528/Mum/2013
5. On the facts and in the circumstances of the case, the learned Commissioner of Income tax (Appeals) erred in accepting the Valuation Report of the DV.O. without considering any of the negative factors attached to the property.
3. The grounds of appeal raised by the Revenue in ITA No. 3528/Mum/2013 for assessment year 2006-07 in the memo of appeal filed with the tribunal read as under:-
"1. On the facts and in the circumstances of the case and in law, the Ld. CIT(A) as erred in considering the aasessee's share in the property situated at CTS NO.749 at 1/8th without appreciating the fact that the assessee on his own shown his share in the said property at 1/4th and worked out the taxable capital gains accordingly in his computation of income filed along with return of income.
On the facts and in the circumstances of the case and in law, the Ld.CIT(A) has erred in directing the AO to allow deduction u/s 54E to the assessee without appreciating the fact that the assessee neither claimed the same as deduction in his original return nor the return was revised and hence against the ratio laid down in the case of Goetze India Ltd. vs CIT reported in 2841TR 323(SC).
2. The appellant prays that the order of the CIT(A) on the above ground(s) be set aside and that of the Assessing Officer restored."
4. The genesis of these cross appeals are the income from long term capital gain which had arisen to the assessee on the sale of two plots by the assessee both situated at village Nahur, Taluka Kurla Bhandup , one plot bearing survey number 73, CTS no. 750 admeasuring 1600 square yards and second plot bearing survey no. 63 , CTS no. 749 admeasuring 4000 square yards. The dispute had arisen between the rival parties with respect to the share of the assessee in the said plot bearing survey no. 63 , CTS no. 749 admeasuring 4000 square yards situated at village Nahur, Taluka 4 ITA No. 2525/Mum/203 & ITA No. 3528/Mum/2013 Kurla Bhandup wherein learned CIT(A) held that assessee's share is 1/8th in the plot said plot based on DVO findings , while learned DR is contending that the assessee share in the said plot bearing survey no. 63 , CTS no. 749 admeasuring 4000 square yards situated at village Nahur, Taluka Kurla Bhandup is 1/4 , which as per learned DR has led to grave mistake committed by learned CIT(A) leading to appellate order of learned CIT(A) being seriously vitiated as the determination of the share of the assessee in the said plot goes to the root of the matter . It was submitted by learned DR that learned CIT(A) has merely accepted DVO report without any application of mind, while no finding of fact has been given by learned CIT(A) as to share of the assessee in the said plot of land. It was submitted by learned DR that no remand report was called by learned CIT(A) from the AO for his comments before accepting the assessee's contention as to share in said plot and principles of natural justice are breached and it is in violation of Rule 46A(3) of Income-tax Rules, 1962 as no opportunity for rebuttal was granted to AO. It was submitted by learned DR that DVO is not competent to decide about the share of the assessee in plot and the DVO exceeded his jurisdiction by so deciding the share of the assessee in plot as his mandate is only restricted to determine the valuation based on provisions and mandate of 1961 Act and 1962 Rules. Thus, learned DR prayed that the appellate order of learned CIT(A) be set aside and issue may be restored to the file of learned CIT(A) for de-novo adjudication of the matter on merits. The ld. Counsel for the assessee submitted that there was no registered agreement with the builder. The documents registered were power of attorney's only and not the agreement for sale, hence, section 50C of 1961 Act is not applicable. It is contended that the authorities below adopted stamp duty valuation which is legally unsustainable. It is also submitted that the DVO has not considered the objections raised by the assessee vide letter dated 8.3.2011, submitted in response to notice dated 09-02-2011 issued by DVO . The said non-consideration of objections has led to serious prejudice to the assessee. It was 5 ITA No. 2525/Mum/203 & ITA No. 3528/Mum/2013 submitted that the MOU w.r.t. these properties was registered on 25.05.1996 and power of attorney was registered on 12.09.2005.It was submitted by learned counsel for the assessee also that matter may be set aside so that there is proper consideration of the objections by the authorities below. Thus, in nutshell both the ld. Counsel for the assessee and the ld. D.R. had both fairly agreed that these issues in cross appeal requires reconsideration by authorities below and matter need to be set aside for re-determination of the issues on merits, after granting proper and sufficient opportunity to the assessee and the AO as per Rule 46A(3) of 1962 Rules, also after considering the objections of the assessee. Thus, keeping in view factual matrix of the case , submissions made by both the parties before us as detailed above and in the interest of substantial justice, and also keeping in view that proceedings had been vitiated at the appellate stage with ld. CIT(A) as detailed above, we are inclined to set aside this matter back to the file of the ld. CIT(A) for de novo determination of the issue on merits after considering the objections raised by the assessee. Needless to say the assessee may be granted proper and sufficient opportunity of being heard in accordance with principles of natural justice in accordance with law by learned CIT(A).The cogent evidences and explanations so submitted by the assessee in its defence shall be admitted by learned CIT(A) in accordance with law before adjudicating the issues in appeal , after following the mandate of Section 46A(3) of 1962 Rules. We order accordingly.
5. In the result, appeal of the assessee in ITA No. 2525/Mum/2013 and appeal of the Revenue in ITA No. 3528/Mum/2013 for assessment year 2006-07 are allowed for statistical purposes.
6 ITA No. 2525/Mum/203 & ITA No. 3528/Mum/2013Order pronounced in the open court on 10th April, 2017.
आदे श क घोषणा खल
ु े यायालय म" #दनांकः 10-04-2017 को क गई ।
Sd/- sd/-
(JOGINDER SINGH) (RAMIT KOCHAR)
JUDICIAL MEMBER ACCOUNTANT MEMBER
मब
ुं ई Mumbai; #दनांक Dated 10-04-2017
व.)न.स./ R.K., Ex. Sr. PS
आदेश क त"ल#प अ$े#षत/Copy of the Order forwarded to :
1. अपीलाथ / The Appellant
2. यथ / The Respondent.
3. आयकर आयु*त(अपील) / The CIT(A)- concerned, Mumbai
4. आयकर आय* ु त / CIT- Concerned, Mumbai
5. +वभागीय )त)न-ध, आयकर अपील य अ-धकरण, मुंबई / DR, ITAT, Mumbai "B" Bench
6. गाड0 फाईल / Guard file.
ु ार/ BY ORDER, आदेशानस स या+पत )त //True Copy// उप/सहायक पंजीकार (Dy./Asstt. Registrar) आयकर अपील य अ धकरण, मंब ु ई / ITAT, Mumbai