SUDHIR KUMAR PATEL,BHUBANESWAR vs. ITO, WARD-5(3), BHUBANESWAR

आयकर अपीऱीय अधिकरण, कटक न्यायपीठ,कटक IN THE INCOME TAX APPELLATE TRIBUNAL CUTTACK BENCH, CUTTACK श्री चन्द्र मोहन गगग, न्द्याययक सदस्य एवं श्री एऱ.ऩी.साहु, ऱेखा सदस्य के समऺ । BEFORE SHRI CHANDRA MOHAN GARG, JM AND SHRI L.P. SAHU, AM आयकर अऩीऱ सं./ITA Nos.29 & 30/CTK/2018 (नििाारण वषा / Assessment Year :2013-2014 & 2014-2015) Sudhir Kumar Patel, Vs. ITO, Ward-5(3), Co: Umiya Saw Mill, Bhubaneswar Cuttack Road, Budheswari, Bhubaneswar-751006 स्थायी ऱेखा सं./ PAN No. : ABMPP 6090 L (अऩीऱाथी /Appellant) (प्रत्यथी / Respondent) ..

यनधागररती की ओर से /Assessee by : Shri K.K.Bal, AR राजस्व की ओर से /Revenue by : Shri Subhendu Dutta, DR सुनवाई की तारीख / Date of Hearing : 04/09/2019 घोषणा की तारीख/Date of Pronouncement : 05/09/2019 आदेश / O R D E R Per L.P.Sahu, AM: These are the appeals filed by the assessee against the order of CIT(A)-1, Bhubaneswar, both dated 16.11.2017 for the assessment years 2013-2014 & 2014-2015. 2. Since the issue involved in both these appeals is identical, except difference in figures, therefore, with the consent of both the parties, both the above appeals have been taken for hearing and disposed off by this consolidated order. For the sake of convenience, we shall take into consideration the facts mentioned in appeal of the assessee for the

2 ITA Nos.29&30/CTK/2018 assessment year 2013-2014 in ITA No.29/CTK/2018, as a lead appeal, wherein the assessee has raised grounds as under :- 1. For that the order of the forum below is arbitrary, illegal and unjust in the facts and circumstances of the case and liable to be quashed. 2. For that Ld A.O erred in adopting incorrect Bench mark value of stamp valuation officer. He should have verified the actual Benchmark value taking into consideration the adjacent plots. Therefore the assessment is non application of mind and liable to be quashed. 3. For that Ld A.O in computing the sale consideration mechanically by adopting the Bench mark value and without making necessary reference to the valuation officer as required u/s 50C(2) is a fatal error. Therefore the assessment is liable to be annulled. 4. For that Ld Assessing officer has no where said that the value as per the sale deed fall short of the fair market value. He has simply adopted the bench mark valuation without any enquiry or comparative cases. Therefore the assessment is non application of mind and liable to be quashed. 5. For that by adopting the Bench mark value of the property Ld. Assessing officer has computed the capital gain tax at Rs.14,15,548/-, which is nearly the sale consideration of the property. The Act of Ld A.O amounts penalizing the assessee for transferring his capital asset at a price at his choice and also constitute unreasonable restriction on the fundamental rights of the assessee. Therefore the assessment is illegal and liable to be quashed. 6. For that the assessment has been completed without granting sufficient opportunity for filing the details in support of the claim. Therefore there is gross violation of principles of natural justice, hence the assessment is liable to be quashed. 7. For that Ld CIT(A) erred in not considering the objection letter dated 27.10.2016 filed before the Assessing officer. 8. For that other grounds if any will be urged at the time of hearing. 3. Brief facts of the case are that the assessee is engaged in the timber business filed return of income on 27.06.2014 declaring total

3 ITA Nos.29&30/CTK/2018 income at Rs.2,42,610/- from the profit and gains from timber business. The case was reopened u/s.147/148 of the Act by issuing notice on 25.01.2016 to the assessee on the high value transaction. On verification of the high value transaction data received from the sub-Registrar, Khurda, it has been found that the assessee has sold an immovable property for a sum of Rs.55 lakhs during the financial year 2012-2013 to Shri Suresh Kumar Patel, however, the assessee had not disclosed any capital gain in the return of income filed by the assessee and other statutory notices were issued to the assessee. The ld. AR of the assessee appeared from time to time and on 28.10.2016 a final opportunity was given to the assessee and finally show cause notice was also issued to the assessee on 15.11.2016 but the assessee did not appear before the AO. Accordingly, the AO completed the assessment ex-parte on the basis of material available before him. The AO noticed that the assessee had sold property with the stamp duty value of Rs.55 lakhs as per the stamp duty authority. The AO applied Section 50C of the Income Tax Act, 1961. The stamp duty was paid of Rs.2,75,000/- on the circle rates on determining by the stamp duty authorities of Rs.55 lakhs. In response to the notice u/s.148 of the Act the assessee had declared long term capital gain of Rs.75,982/- in addition to the returned income from business and profession. Accordingly, the AO calculated the long term capital gain of Rs.53,03,006/- on the basis of stamp duty value of Rs.55 lakhs of the impugned property.

4 ITA Nos.29&30/CTK/2018 4. Feeling aggrieved by the order of AO, the assessee appealed before the CIT(A) and the CIT(A) dismissed the appeal of the assessee. 5. Further feeling aggrieved, the assessee is now in appeal before the Income Tax Appellate Tribunal. 6. Ld. AR reiterated the submissions made before the lower authorities and filed written submissions as under :- 1. That the Assessee above named filed his return of income voluntarily for the assessment year 2013-14 disclosing income from all sources at Rs.2,42,610/-. 2. That thereafter the Assessee's case was reopened u/s 147 of the income tax Act on the ground that during the assessment year the Assessee sold an immovable property for a sum of Rs.55,00,000/-did not disclose any income from capital gain. Copy of the Sale deed is annexed herewith as Annexure-A. 3. That while assessing capital gain tax, Ld. Assessing officer adopted the special provision for full value consideration without considering the objection of the Assesee. The value adopted by the state stamp valuation authority is the basis for the payment of stamp duty only not for the valuation required u/s 48 of the income tax Act. The adoption of the stamp valuation authority's value without verifying the fair market value of the land amounts violation of provision of sec 50-C(2) of the Income tax Act.. By doing this Ld A.O has not exercised his power and has not acted the manner in which he should have been under the said provision. He should have utilised the report of the expert (the valuation Officer) for the determination of the value of land in question. Therefore the assessment is illegal and liable to be quashed. 4. That the provisions of sec 50-C enabling the revenue to treat the value declared by an assessee for payment of stamp duty, ipso facto, can't be legitimate ground for concluding that there was under valuation in acquisition of immovable property. If parliamentary intention was to enable such a finding, a provision akin to sec-50-C would have been included in the statute Book, to assess income on the basis of a similar fiction in the case of the assessee who acquires such an asset. No doubt the declaration of the higher cost of acquisition for stamp duty might be the starting point for an inquiry in this regard, that inquiry might extend to analyzing sale or transfer deed executed in respect of similar or neighbouring properties, contemporaneously at the time of the transaction . Yet the

5 ITA Nos.29&30/CTK/2018 fining cannot start and conclude with the fact that such stamp duty vale or basis is higher that the consideration mentioned in the deed. The compulsion for such higher value is the mandate of stamp act and provisions which levy stamp duty at pre-determined or notified dates. 5. That in course of assessment the Assessee Claimed before the Assessing officer that the value adopted or assessed by the Govt. Of Odisha Stamp Valuation Authority is much higher than the fair market value of the Property and also requested to refer matter to the valuation officer to know the fair market value of the Capital Asset. But unfortunately Ld. Assessing officer did not refer the matter to the valuation officer to know the fair market value of the land and completed the assessment accepting the Bench mark value as the sale consideration of the capital asset for computation of capital gain tax u/s 48 of the IT act. Copy of the objection letter dated 27.10.2016 annexed herewith as Annexure -B . 6. That before the first appellate authority the assessee submitted that Ld Assessing officer completed the assessment without considering the objection dated 27.10.2016 against adoption of Bench mark value for calculation of capital gain tax and also filed the copy of the said letter in course of hearing of the appeal. CIT(A) disposed of the appeal without considering the objection and also referring the valuation officer to find the fair market value of the capital asset for computation of capital gain tax. Copy of the order Sheet of CIT(A) is annexed herewith as Annexure-C. 7. That Ld Assessing officer has assessed to tax the income which no rational sense can be regarded as income or even receipt of a person. Therefore the computation of Long term capital gain adopting the Bench mark valuation of the revenue department of the Govt, of Odisha is highly arbitrary and liable to be reduced to the valued declared by the Assessee. 8. That by adopting the Bench mark value of the property Ld Assessing officer has computed the capital gain tax at Rs.14,15,548/-, which is nearly the sale consideration of the property. The Act of Ld A.O amounts panelising the assessee for transferring his capital asset at a price at his choice and also constitute unreasonable restriction on the fundamental rights of the assesee. Therefore the assessment is illegal and liable to be quashed. 9. That while completing the assessment Ld Assessing officer has not where brought into record any material that the assessee has received much more consideration than the sale consideration shown in the sale deed. It has not been said that the assessee has not correctly declared the consideration

6 ITA Nos.29&30/CTK/2018 received by him and there is understatement or concealment of consideration in respect of the transfer of the property in question. 10. That Ld Assessing officer has no where said that the value as per the sale deed fell short of the fair market value. He has simply adopted the bench mark valuation without any enquiry or comparative cases. Therefore the assessment is non application of mind and liable to be quashed. 11. That once A.O says that the consideration received by the Assessee is more than what is disclosed by him then the burden shifted on the department to establish the facts and circumstances from which reasonable inference can be drawn that the Assessee has not correctly declared the consideration received by him. In the present case Ld Assessing officer has not discharged the burden properly, therefore the assessed capital gains tax is not just and proper, hence the assessment is liable to be quashed and liability to be reduced to the return figure. 12. That the disallowance of deductions claimed by the Assessee towards the expenses for sale and index cost of improvement without verifying the details furnished and without granting sufficient opportunity to furnish further details is highly arbitrary. Hence the assessment completed arbitrarily without granting sufficient opportunity is liable to be quashed. Under the above facts and circumstances the assessment completed without referring to the valuation officer and adopting stamp valuation Authority's value is a fatal error committed by the Assessing officer in the light of the judgement passed by the ITAT Delhi Bench in ITA No- 4166/Del/2013 and ITAT Mumbai Bench in ITA No- 2243/Mum/2015. Therefore it is humbly submitted that the assessment may annulled. Copies of the judgements are annexed herewith as Annexure-D & Annexure-E. In addition to the written submissions, ld. AR submitted that the assessee has submitted two paper books separately for assessment year 2013- 2014 and 2014-2015, which is placed on record and he also drew our attention at page no.10 of the paper book and he submitted that this letter has not been considered by the AO as well as the ld. CIT(A) while deciding the case of the assessee. The AR of the assessee has

7 ITA Nos.29&30/CTK/2018 requested for referring the matter to the departmental valuation officer for determining the fair market value of the property but both the authorities have ignored. To support his claim, ld.AR relied on the following judgments:- i) M/s Aditya Narain Verma (HUF), ITA No.4166/Del/2013, order dated 07.06.2017; ii) Sir Mohd. Yusuf Trust, ITA No.2243/Mum/2015, order dated 08.03.2019; iii) K.P.Varghese Vs. ITO, 131 ITR 597 (SC); iv) S.P.Balsubramaniam Vs. ACIT (Mad HC); v) Meghraj Baid Vs. ITO (2008) 114 TTJ Jodh 841(ITAT Jodhpur); and vi) CIT(UP) Vs. Kanpur Coal Syndicate, 1965 AIR 325 (SC) 7. On the other hand, ld.DR relied on the order of lower authorities and submitted that the assessee has not cooperated before the AO. Ld. DR further submitted that the authorities below have rightly decided the case as per the provisions of Income Tax Act. 8. After hearing both the sides, perusing the entire materials available on record and the orders of authorities below along with the paper books filed by the assessee, prima facie, we noticed that the AO has passed the order ex-parte as the assessee could not appear before him. Ld. AR during the course of hearing drew our attention to page No.10 of the paper book and submitted that the AO completed the assessment without considering the objection dated 27.10.2016 against adoption of bench mark value for calculation of capital gain tax. We find that the AO adopted the special provision for full value consideration without considering the objection of the assessee. The value adopted by the state stamp valuation authority is the basis for the payment of stamp duty only not for

8 ITA Nos.29&30/CTK/2018 the valuation required u/s 48 of the Income Tax Act. During the course of assessment preceding the assessee claimed before the AO that the value adopted or assessed by the Govt. Of Odisha Stamp Valuation Authority is much higher than the fair market value of the Property and also requested to refer matter to the department valuation officer to know the fair market value of the Capital Asset. However, the AO did not refer the matter to the department valuation officer to know the fair market value of the land and completed the assessment accepting the bench mark value as the sale consideration of the capital asset for computation of capital gain tax u/s 48 of the IT Act. Keeping in view the above facts and circumstances of the case and in the interest of justice, this case is sent back to the file of AO with a direction to work out the capital gain after getting the report from the departmental valuation officer. Needless to say, the assessee shall be given reasonable opportunity of hearing. The assessee is also directed to cooperate with the department for completing the case. Accordingly, the grounds of appeal of the assessee raised in ITA No.29/CTK/2018 for the assessment year 2013-2014 are allowed for statistical purposes. 9. Since, the grounds of appeal raised in ITA No.30/CTK/2018, are similar, therefore, our observations made in the appeal of the assessee for assessment year 2013-2014 in ITA No.29/CTK/2018 shall apply mutatis mutandis to the grounds raised in appeal i.e. IT No.30/CTK/2018 for the assessment year 2014-2015. Accordingly, the appeal of the assessee for A.Y.2014-2015 is also allowed for statistical purposes.

9 ITA Nos.29&30/CTK/2018 10. In the result, the appeal of the assessee is allowed for statistical purposes. Order pronounced in the open court on 05/09/2019. Sd/- Sd/- (C.M.GARG) (L.P.SAHU) न्यानयक सदस्य / JUDICIAL MEMBER ऱेखा सदस्य / ACCOUNTANT MEMBER कटक Cuttack; ददनांक Dated 05/09/2019 प्र.कु.मम/PKM, Sr.P.S. आदेश की प्रनिलऱपप अग्रेपषि/Copy of the Order forwarded to : 1. अऩीऱाथी / The Appellant- . Sudhir Kumar Patel, Co: Umiya Saw Mill, Cuttack Road, Budheswari, Bhubaneswar-751006 प्रत्यथी / The Respondent- 2. ITO, Ward-5(3), Bhubaneswar आयकर आयुक्त(अऩीऱ) / The CIT(A), 3. 4. आयकर आयुक्त / CIT 5. ववभागीय प्रयतयनधध, आयकर अऩीऱीय अधधकरण, कटक / DR, ITAT, Cuttack 6. गार्ग पाईऱ / Guard file. सत्यावऩत प्रयत //True Copy// आदेशािुसार/ BY ORDER,

(Senior Private Secretary) आयकर अपीऱीय अधिकरण, कटक / ITAT, Cuttack