Income Tax Appellate Tribunal - Pune
Arun Dattajirao Gawade,, Kolhapur vs Income-Tax Officer, Ward - 1(4),, ... on 26 November, 2018
आयकर अपील
य अ धकरण पण
ु े यायपीठ "एक-सद य" मामला पण
ु े म
IN THE INCOME TAX APPELLATE TRIBUNAL
PUNE BENCH "SMC", PUNE
ी वकास अव थी, या यक सद य के सम
BEFORE SHRI VIKAS AWASTHY, JM
आयकर अपील सं./ ITA No.169/PUN/2018
नधा!रण वष! / Assessment Year : 2010-11
Snehal Ramchandra Jadhav,
3040, A- Ward, Tarabai Road,
Kolhapur-416 012
PAN : AHWPJ1867B
.......अपीलाथ / Appellant
बनाम / V/s.
The Income Tax Officer,
Ward 1(2), Kolhapur.
...... यथ / Respondent
आयकर अपील सं./ ITA No.191/PUN/2018
नधा!रण वष! / Assessment Year : 2010-11
Arun Dattajirao Gawade,
1190, B-Ward, Mangalwar
Peth, Opp. Maratha Bank,
Kolhapur-416 012
PAN : AEXPG4261L
.......अपीलाथ / Appellant
बनाम / V/s.
The Income Tax Officer,
Ward 1(4), Kolhapur.
...... यथ / Respondent
आयकर अपील सं./ ITA No.192/PUN/2018
नधा!रण वष! / Assessment Year : 2010-11
Kalpana Anil Jadhav
A-Ward, 3123, Jadhav Galli,
Narayan Niwas, Kapilthirth Market,
2
ITA Nos.169 & 191 to 195/PUN/2018
A.Y.2010-11
Tarabai Road, Kolhapur-416012
PAN : ANGPJ2417B
.......अपीलाथ / Appellant
बनाम / V/s.
The Income Tax Officer,
Ward 1(2), Kolhapur.
...... यथ / Respondent
आयकर अपील सं./ ITA No.193/PUN/2018
नधा!रण वष! / Assessment Year : 2010-11
Nandkumar Janardhan Jadhav,
3062, A-Ward, Jadhav Galli,
Tarabai Road,
Kolhapur-416 012
PAN : ALBPJ1773D
.......अपीलाथ / Appellant
बनाम / V/s.
The Income Tax Officer,
Ward 1(2), Kolhapur.
...... यथ / Respondent
आयकर अपील सं./ ITA No.194/PUN/2018
नधा!रण वष! / Assessment Year : 2010-11
Pratibha Ramchandra Jadhav,
3040, A- Ward, Opp. Shri
Mahalaxmi Dharma, Tarabai
Road, Kolhapur-416012
PAN : AMIPJ6657N
.......अपीलाथ / Appellant
बनाम / V/s.
The Income Tax Officer,
Ward 1(2), Kolhapur.
...... यथ / Respondent
3
ITA Nos.169 & 191 to 195/PUN/2018
A.Y.2010-11
आयकर अपील सं./ ITA No.195/PUN/2018
नधा!रण वष! / Assessment Year : 2010-11
Abhijit Janardhan Jadhav,
A-Ward, 3062, Rajopadhya
Lane, Kolhapur-416 012
PAN : AIKPJ4619E
.......अपीलाथ / Appellant
बनाम / V/s.
The Income Tax Officer,
Ward 1(2), Kolhapur.
...... यथ / Respondent
Appellant by : Shri M.K. Kulkarni
Respondent by : Shri M.K. Verma
सन
ु वाई क तार ख / Date of Hearing : 22.11.2018
घोषणा क तार ख / Date of Pronouncement : 26.11.2018
आदे श / ORDER
PER VIKAS AWASTHY, JM
These bunch of six appeals have been filed by six different assessees. The appeals are directed against the order of Commissioner of Income Tax (Appeal)-1, Kolhapur for assessment year 2010-11 in the case of respective assessees/appellants. All the impugned orders are of even date i.e. 12.12.2017.
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ITA Nos.169 & 191 to 195/PUN/2018 A.Y.2010-11
2. Since, the grounds raised in all the six appeals are identical and are arising from same transaction of sale of land, these appeals are taken up together for adjudication and are being disposed of vide this common order.
3. Shri M.K. Kulkarni appearing on behalf of the assessees narrating the facts common for all the appeals submitted that all the assessees are related to each other and have inherited share in agricultural land comprising in Survey No.79/3, E-Ward, New Palace, Kolhapur admeasuring 36700 sq. mtrs. The aforesaid land was jointly sold by all the owners including assessees to M/s.Sanghvi Estate Developers vide sale deed dated 29.03.2010 for a total consideration of Rs.3,60,00,000/-. The market value of land for stamp duty and registration purpose at the time of execution of sale deed was Rs.5,06,97,000/-. The assessee adopted stamp duty value for computing Capital Gain. The only dispute in the present set of appeals is value of acquisition of land as on 01.04.1981. The assessee had sought valuation of land from Government approved valuer. The Government approved Valuer determined the market value of property as on 01.04.1981 at Rs.60,55,500/-. The assessee on the basis of Government approved Valuer's report computed long term capital gain. In scrutiny assessment proceedings, the Assessing Officer rejected the valuation of Government approved Valuer as on 01.04.1981 and referred the matter to District Valuation Officer (DVO). The DVO determined the fair market value of land as on 01.04.1981 at Rs.23,81,800/-. The Assessing Officer on the basis of value determined by the DVO computed long term capital gain and made addition in the hands of respective assessees/co-owners in proportion to their share in land.
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ITA Nos.169 & 191 to 195/PUN/2018 A.Y.2010-11
4. Aggrieved by the assessment order in their respective cases, assessees filed appeals before the Commissioner of Income Tax (Appeal). Out of total 8 co-owners, six appeals were filed before the Commissioner of Income Tax (Appeal)-1, Kolhapur and in the case of other two co-owners, appeals were adjudicated by the Commissioner of Income Tax (Appeal)-2, Kolhapur. The Commissioner of Income Tax (Appeal)-2, Kolhapur deleted the addition by following the decision of Hon'ble Bombay High Court in the case of CIT Vs. Puja Prints, reported as 360 ITR 697. The ld. Counsel furnished copy of the order of Commissioner of Income Tax (Appeals)-2, Kolhapur, dated 06.03.2018 in the case of Uma Arun Gavade for the assessment year 2010-
11. However, in the six appeals decided by Commissioner of Income Tax (Appeal)-1, Kolhapur, the addition made by Assessing Officer on account of long term capital gain were confirmed.
4.1 The ld. Counsels for the assessees submitted that the provisions of section 55A(a) were amended by Finance Act, 2012 w.e.f. 01.07.2012. Thus, the amendment would not be applicable on the transactions carried out by assessees in assessment year under appeal i.e. assessment year 2010-11. To support his submissions, the ld. Counsels draws support from the ratio laid down by Hon'ble Bombay High Court in the case of CIT Vs. Puja Prints (supra.).
5. On the other hand, Shri M.K. Verma representing the Department vehemently defended the order of Commissioner of Income Tax (Appeal) and prayed for dismissing the appeals of the assessees. 6
ITA Nos.169 & 191 to 195/PUN/2018 A.Y.2010-11
6. Both sides heard. Orders of the Authorities below perused. I have also considered the decisions on which ld. Counsel for the assessees have placed reliance. The solitary issue raised in all the appeals is against valuation of land as on 01.04.1981 adopted by Assessing Officer for determining long term capital gain in the case of each assessee/appellant. It is an undisputed fact that all the assessees are co-owners of the land comprising in Survey No. 79/3, E-ward, New Palace, Kolhapur. There were in total eight co- owners, out of which six are in appeal before the Tribunal. In the cases of other two co-owners, though similar additions were made, but they got relief from Commissioner of Income Tax (Appeal)-2, Kolhapur. The Assessing Officer did not accept valuation of aforesaid land as on 01.04.1981 as the value of land adopted by the assessees was more than the fair market value determined by DVO. On reference made by Assessing Officer u/s.55A, the DVO determined value of land as on 01.04.1981 at Rs.23,81,800/- vis-a-vis valuation of Government approved Valuer at Rs.60,55,500/- adopted by the assessee.
7. As per the provisions of Section 55A(a) [ as it was applicable in the assessment year under appeal] the Assessing Officer with a view to ascertain fair market value of Capital Asset may make reference to the Valuation Officer wherein his opinion the value of the asset as claimed by the assessee is less than its fair market value. The provisions of section 55A(a) were amended by the Finance Act, 2012 w.e.f. 01.07.2012. By virtue of amendment, the word 'is less than its fair market value' were substituted by the words 'is at variance with a fair market value'. The Hon'ble Bombay High Court in the case of CIT Vs. Puja Prints (supra.) held the amendment 7 ITA Nos.169 & 191 to 195/PUN/2018 A.Y.2010-11 to be prospective in nature. The relevant extract of the judgment of the Hon'ble High Court reads as under:
"7. We find that Section 55A(a) of the Act very clearly at the relevant time provided that a reference could be made to the Departmental Valuation Officer only when the value adopted by the assessee was less than the fair market value. In the present case, it is an undisputed position that the value adopted by the respondent assessee of the property at Rs.35.99 lakhs was much more than the fair market value of Rs.6.68 lakhs even as determined by the Departmental Valuation Officer. In fact, the Assessing Officer referred the issue of valuation to the Departmental Valuation Officer only because in his view the valuation of the property as on 1981 as made by the respondent assessee was higher than the fair market value. In the aforesaid circumstances, the invocation of Section 55A (a) of the Act is not justified.
8. The contention of the revenue that in view of the amendment to Section 55A(a) of the Act in 2012 by which the words "is less than the fair market value" is substituted by the words " "is at variance with its fair market value"
is clarifactory and should be given retrospective effect. This submission is in face of the fact that the 2012 amendment was made effective only from 1 July 2012. The Parliament has not given retrospective effect to the amendment. Therefore, the law to be applied in the present case is Section 55A(a) of the Act as existing during the period relevant to the Assessment Year 200607. At the relevant time, very clearly reference could be made to Departmental Valuation Officer only if the value declared by the assessee is in the opinion of Assessing Officer less than its fair market value." Thus, the amended provisions of Clause (a) to Section 55A would operate prospectively and would not alter the position in assessment years prior to the amendment.
8. The ld. Counsel has placed on record copy of the order of Commissioner of Income Tax (Appeals)-2, Kolhapur (supra.) in the cases of Uma Aurn Gavade. A perusal of the said order shows that she was one of the co-owners of the land comprising in Survey No. 79/3, E-Ward, New Palace, Kolhapur and in identical set of facts, Commissioner of Income Tax (Appeal) placing reliance on the decision of Puja Prints (supra.) deleted the addition.
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ITA Nos.169 & 191 to 195/PUN/2018 A.Y.2010-11
9. Thus, in view of the facts emanating from records and the decision of Hon'ble Bombay High Court in the case of CIT Vs. Puja Prints (supra.), the reference made by Assessing Officer to DVO for ascertaining the fair market value of land where the value of land declared by assessees as on 01.04.1981 was much higher than the fair market value, was unwarranted. I find merit in the present set of appeals. Accordingly, the impugned orders are set aside and the appeals filed by respective assessees are allowed.
10. In the result, all the appeals are allowed.
Order pronounced on Monday the 26th day of November, 2018.
Sd/-
( वकास अव थी /VIKAS AWASTHY) या यक सद य/JUDICIAL MEMBER पुणे / Pune; !दनांक / Dated : 26th November, 2018. SB आदे श क% & त(ल प अ)े षत / Copy of the Order forwarded to :
1. अपीलाथ / The Appellant.
2. यथ / The Respondent.
3. The CIT(Appeal)-1, Kolhapur.
4. The Pr. CIT-1, Kolhapur.
5. %वभागीय त न(ध, आयकर अपील य अ(धकरण, "एक-सद य" ब,च, पुणे / DR, ITAT, "SMC" Bench, Pune.
6. गाड/ फ़ाइल / Guard File.
// True Copy // आदे शानस ु ार / BY ORDER, नजी स(चव /Private Secretary आयकर अपील य अ(धकरण, पण ु े / ITAT, Pune.