Income Tax Appellate Tribunal - Delhi
Govind Narain Verma, Huf, Moradabad vs Department Of Income Tax on 4 January, 2016
ITA NO.4180/Del/2013
IN THE INCOME TAX APPELLATE TRIBUNAL
DELHI BENCH "C", NEW DELHI
BEFORE SHRI H.S. SIDHU, JUDICIAL MEMBER
AND
SHRI O.P. KANT, ACCOUNTANT MEMBER
I.T.A. No.4180/DEL/2013
A.Y. 2009-10
INCOME TAX OFFICER, VS. M/S GOVIND NARAIN VERMA,
WARD 2(1), (HUF),
MORADABAD A-36, DEV VIHAR COLONY,
KANTH ROAD, MORADABAD
(PAN:AADHG1204P)
(APPELLANT) (RESPONDENT)
Department by : Sh. T. Vasanthan, Sr. DR
Assessee by : None Present
Date of Hearing : 11
11--12-2015
2015
Date of Order : 04-
04-1-2016
2016
ORDER
PER H.S. SIDHU : JM The Revenue has filed this Appeal against the Order dated 11.4.2013 passed by the Ld. CIT(A), Bareilly on the following grounds:-
1. The Ld. Commissioner of Income Tax(Appeal) has erred in law in allowing the assessee's appeal and annulling the order passed by the AO.
2. The order of Ld. Commissioner of Income Tax/Appeal) is erroneous and bad in law and deserves to be cancelled-rand the order passed by the A.O. deserves to be sustained on the facts of the case.
3. The spirit of section SOC regarding full value, of consideration has not been appreciated by the Ld. Commissioner of Income Tax(Appeal).
The full value of consideration and index cost of acquisition were rightly adopted by the AO in respect of both the properties.
4. Even if the Ld. Commissioner of Income Tax(Appeal) was of the view that the matter should have been referred to the valuation officer uls SOC 2(a) of I.T.Act, 1961, he might have directed the A.O. to make valuation after 1 ITA NO.4180/Del/2013 referring to Valuation Officer, if A.O. has made valuation without any such reference.
5. The order of the Ld. Commissioner of Income Tax(Appeal) ih annulling the assessment is not acceptable as far as the matter of referring the case to Valuation Officer is concerned. The matter may be set aside to the file of the A.O. for referring the case to Valuation Officer as required u/s SOC 2(a) of the I.T.Act, 1961.
6. Any grounds of appeal which may be taken at the time of hearing of the appeal.
2. The brief facts of the case are that the assessee filed the return of income on 30.03.2010 showing total income of Rs 8,17,996/- and income from agriculture Rs. 10,200/-. From AIR, the information was received that the assessee has sold a property and the assessee failed to disclose the income from capital gain in its return. AO issued a notice u/s 148 of the I.T. Act, 1961 to the Assessee on 05.01.2012 which was duly served upon the assessee on 18.01.2012. The assessee did not file any return of its income and a notice u/s 142(1) was also issued on 28.02.2012 which was also served upon the assessee on 02.03.2012. In compliance to notice u/s 148 the assessee filed its return of income on 14.03.2012. A notice u/s 143(2) and 142(1)(ii) was issued on 30.04.2012 which was duly served on 04.05.2012. In compliance to above notices Shri Ashish Verma Legal Heir of Late Shri Govind Narain Verma Karta of assessee H.U.F. alongwith Shri Sanjeev Kumar Agrawal, FCA, his authorized representative attended the assessment proceedings from time to time and produced the required documents and filed the required details and explanations. The assessee computed long term capital gain treating the fair market value as consideration received on the transfer of property. In the return filed in compliance to notice u/s. 148. Vide notice u/s. 142(1)(ii) dated 24.5.2012 the assessee was asked why the fair market may not be taken, as taken by the authority of State Government for the purpose of payment of stamp duty, as per 2 ITA NO.4180/Del/2013 the provisions of Section 50C of the I.T. Act, 1961. Assessee filed its reply, which was not acceptable because the land under question is within 8 kms. from municipal limit of Moradabad as certified by the Tehsildar Sadar, Moradabad. AO observed that as per the provisions of section 2(14) of the I.T. Act, 1961 it is urban land and not agricultural land. Therefore, the fair market value is taken as per value determined by the authority of the State Government for Stamp duty purposes as per the provisions of section 50C of the I.T. Act, 1961 and capital gain is worked out accordingly. Thereafter, the AO assessed the total income of Rs. 75,74,760/- u/s. 148/143(3) of the I.T. At, 1961 vide his order dated 15.6.2012.
3. Aggrieved by the aforesaid assessment order, Assessee appealed before the Ld. CIT(A), who vide impugned order dated 11.4.2013 has annulled the assessment order.
4. Now the Revenue is in appeal before the Tribunal against the order dated 114.2013 passed by the Ld. CIT(A).
5. In this case, Notice of hearing to the assessee was sent by the Registered AD post, in spite of the same, assessee, nor his authorized representative appeared to prosecute the matter in dispute, nor filed any application for adjournment. Keeping in view the facts and circumstances of the present case and the issue involved in the present Appeal, we are of the view that no useful purpose would be served to issue notice again and again to the assessee, therefore, we are deciding the present appeal exparte qua assessee, after hearing the Ld. DR and perusing the records.
6. Ld. Departmental Representative relied upon the order of the AO and reiterated the contention raised in the Grounds of Appeal filed by them. He 3 ITA NO.4180/Del/2013 stated spirit of section 50C regarding full value of consdieration has not been appreciated by the Ld. CIT(A). The full value of consideration and index cost of acquisition were rightly adopted by the AO in respect of both the properties. He further stated that the Ld. CIT(A) was of the view that the matter should have been referred to the Valuation Officer u/s. 50C2(a) of the I.T. Act, 1961, he might have directed the AO to make valuation after referring to Valuation Officer, if AO has made valuation without any such reference. That the Ld. CIT(A) has annulled the assessment which is not acceptable as far as the matter of referring the case to Valuation Officer is concerned. Therefore, he requested the Bench that matter may be set aside to the file of the AO for referring the case to Valuation Officer as required u/s. 50C2(a) of the I.T. Act, 1961.
7. We have heard the Ld. DR and perused the records especially the orders of the Revenue authorities. We find considerable cogency in the argument of the Ld. DR that Ld. CIT(A) was of the view that the matter should have been referred to the Valuation Officer u/s. 50C(2) of the I.T. Act, 1961, he might have directed the AO to make valuation after referring to Valuation Officer, but AO has made valuation without any such reference. The request of the Ld. DR of setting aside the matter to the file of the AO for referring the case to Valuation Officer as required u/s. 50C2(a) of the I.T. Act, 1961 seems to be genuine one. We also find that Ld. CIT(A) in his impugned order vide order dated 11.4.2013 at page 23 has held as under:-
"Thus from what has been discussed above, and also keeping in view the various judicial pronouncements cited by the Counsel and the reply of the appellant before the AO, it is clear that the AO ignored the provisions of section 50C(2)(a) varied the cost of acquisition of property without allowing any opportunity to the 4 ITA NO.4180/Del/2013 assessee in this regard. In this back ground of the facts, and circumstances of the case, the assessment so framed by the AO is not valid in the eyes of law and is void ab-initio. As such the assessment order passed by the AO is annulled."
7.1 In the background of the aforesaid discussions, we are of the considered view that the issue in dispute needs to be remitted back to the file of the AO to decide the same. Accordingly, we remit back the issue in dispute to the file of the AO for referring the case to Valuation Officer as required under section 50C2(a) of the I.T. Act, 1961 and thereafter decide the issue in dispute afresh, under the law, after giving adequate opportunity of being heard to the assessee.
8. In the result, the Appeal filed by the Revenue stands allowed for statistical purposes.
Order pronounced in the Open Court on 04/1/2016.
Sd/-
Sd/- Sd/-
Sd/-
[O.P. KANT]
KANT] [H.S. SIDHU]
SIDHU]
ACCOUNTANT MEMBER JUDICIAL MEMBER
Date: 04-1-2016
"SRBHATNAGAR"
Copy forwarded to: -
1. Appellant -
2. Respondent -
3. CIT
4. CIT (A)
5. DR, ITAT TRUE COPY By Order,
Assistant Registrar,
ITAT, Delhi Benches
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