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Income Tax Appellate Tribunal - Mumbai

Rajul S. Sanghavi, Mumbai vs Acit 19(3), Mumbai on 11 December, 2017

           IN THE INCOME TAX APPELLATE TRIBUNAL,
                  MUMBAI BENCH "D", MUMBAI

     BEFORE SHRI D.T. GARASIA, JUDICIAL MEMBER AND
        SHRI N.K. PRADHAN, ACCOUNTANT MEMBER

                            ITA No.4329/M/2015
                          Assessment Year: 2009-10

       Shri Rajul S. Sanghavi,              ACIT-19(3), 3rd Floor,
       301, Vaibhav Chambers,               Piramal Chambers,
       Opp. Income Tax Office,              Lalbaug, Parel,
                                        Vs.
       Bandra Kurla Complex,                Mumbai - 400 012
       Bandra (East)
       Mumbai-400 051
       PAN: AEFPS 3273L
            (Appellant)                                 (Respondent)

     Present for:
     Assessee by                 : Shri S.C. Tiwari, A.R.
                                   Shri Rutuja N. Pawar, A.R.

     Revenue by                  : Shri Purushottam Kumar, D.R.

     Date of Hearing       : 12.09.2017
     Date of Pronouncement : 11.12.2017

                                   ORDER

Per D.T. GARASIA, Judicial Member:

The present appeal has been preferred by the assessee against the order dated 27.05.2015 of the Commissioner of Income Tax (Appeals) [hereinafter referred to as the CIT(A)] relevant to assessment year 2009-10.

2. The only effective ground is ground No.1 which reads as under:

"On the facts and circumstances of the case, the Learned Commissioner of Income Tax (Appeals) ("CIT(A)") erred in confirming the order of the assessing officer determining the long term capital gain arising on the sale of Units No. L-

Shri Rajul S. Sanghavi 95, L-96, L-97, G-91, G-92 and G-93 situated at Dreams - The Mall lying and situated at CTS Nos. 642, 642/1 to 642/29 & 654 of Village Kanjur & CTS No. 426 of Village Bhandup, Taluka Kurla, L.B.S. Marg, Bhandup West, Mumbai - 400 078 ('the property") by substituting the value as determined by Stamp Authorities in place of the consideration mentioned in the agreement as per provision of section 50C of Income Tax Act, 1961 by relying on the valuation report of the District Valuation Officer ("DVO")."

3. The short facts of the case are as under:

The Assessing Officer (hereinafter referred to as the AO) during the course of assessment proceedings noticed that the assessee declared long term capital gain from sale of property being shop Nos.L-95, L-96, L-97, G-91, G-92 and G-93 at Rs.20,86,940/-. He, therefore, asked the assessee to explain why the value adopted by the stamp duty authority in respect of sale of above property be not taken as sale consideration in terms of provisions of section 50C of the Act and after considering the reply he held that as the Sub-Registrar for the purpose of stamp duty valuation has determined the market value of the above shops at Rs.1,80,34,632/-. The same, therefore, is taken after taking into consideration the location of the property and all related factors. The AO has worked out long capital gain from the sale of above ships at Rs.38,33,582/-.

4. Matter carried to the Ld. CIT(A) and the Ld. CIT(A) has dismissed the same.

5. The Ld. A.R., during the course of hearing, has drawn our attention to page 41 of the report of the government valuer wherein the Valuation Officer has valued the shop Nos.G-91, G-92 & G-93 at the rate of Rs.94,770/- per sq. mtr. while shop No.L-95 to L-97 were 3 ITA No.4329/M/2015 Shri Rajul S. Sanghavi assessed at the rate of Rs.1,14,390/-. The Ld. A.R. submitted that this property is a disputed sale of property of L-95, L-96 & L-97 and G-92 & G-93 was taken at Rs.20,86,940/-. The Ld. A.R. submitted that while the assessee had given sale instance of L-390, L-225, L- 270 where the sale consideration is Rs.14,84,000/-. The valuation officer has completely ignored the valuation adopted by the assessee. Therefore, reasonable estimation of the shop may be made.

6. On the other hand, the Ld. D.R. relied upon the order of the Revenue.

7. We have heard the rival contentions of both the parties. Looking to the facts and circumstances of the case, we find that for property No.G-91, G-92 & G-93 the value taken by the assessee is Rs.75,900/- while the assessee has submitted the ground sale instance on the same date is Rs.54,976/- and highest is Rs.62,899/-. Therefore, overall value comes to Rs.75,900/-. Looking to facts and circumstances of the case, we find that the assessee has given the sale instance, date of agreement and area of sq. ft. for sale instance by the assessee and sale instance by valuation officer for ground level shops which read as under:

Sr.No Doc. Date of Unit Consideration Area Rate Average No. Agreement No. per Rate per Sq. Sq. Mtr.

Mt. Sale Instance of Appellant 4 ITA No.4329/M/2015 Shri Rajul S. Sanghavi 1 4627/20 7/2/08 L-390 1,484,000 23.64 62,774

08 Sq.mtr 2 4682/20 7/3/08 L-255 1,400,000 22.3 62,780 Sq. mtr 08 4683/20 7/3/08 L-244 1,400,000 22.3 62,780 3 Sq. mtr 08 4684120 7/3/08 L-292 1400,000 22.3 62,780 70,641 4 08 Sq. mtr 5 4795/20 7/15/08 L-306 829,500 15.05 55,116 Sq.mtr 08 6 4907/20 7/24/08 L-190 1,225,000 22.3 54,932 Sq. mtr 08 7 5285/20 8/7/08 L-208 1,519,000 27.66 54,916 Sq.

08 mtr 8 5284/20 8/7/08 L-207 1,893,500 34.46 54,947 Sq.

mtr Sale Instance of Valuation Report 9 1882/20 3/20/08 L-387 2,100,000 22.3 94,170 Sq.

mtr 10 4652/20 7/14/08 L-359 2,310,000 24.53 94,170 Sq.

mtr 11 1908/20 3/16/08 L-203 8,715,000 74.05 117,69 Sq.

mtr Sale Instance of Appellant 12 5071/20 7/31/08 G-221 1,060,500 19.29 54,976 Sq.

mtr 5615/20 8/29/08 G-238 1,900,000 271 62,889 75,900 13 Sq.

ft.Carp et 14 4742/20 5/6/10 G-258 1,225,000 22.3 54,933 Sq.

Shri Rajul S. Sanghavi 10 mtr Sale Instance of Valuation Report 15 4886/20 7/24/08 G-71 3,078,000 32.67 94,215 Sq.mtr 08 16 5065/20 7/31/08 G-123 2,100,000 22.3 94,170 Sq.mtr 08 17 5099/20 7/31/08 G-30 3,078,000 32.67 94,215 Sq.mtr 08

8. Considering the above facts, we estimate the average sq. mtr. for ground levels at 70,641/- and Rs.75,900/-. We accordingly allow the appeal of the assessee.

Order pronounced in the open court on 11.12.2017.

         Sd/-                                                        Sd/-
   (N.K. Pradhan)                                              (D.T. Garasia)
ACCOUNTANT MEMBER                                          JUDICIAL MEMBER

Mumbai, Dated: 11.12.2017.
* Kishore, Sr. P.S.



Copy to: The Appellant
        The Respondent
        The CIT, Concerned, Mumbai
        The CIT (A) Concerned, Mumbai
        The DR Concerned Bench
//True Copy//                                [




                                                     By Order

Dy/Asstt. Registrar, ITAT, Mumbai.