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Income Tax Appellate Tribunal, “SMC” BENCH : RANCHI
Before: Hon’ble Shri S.S. Godara, JM]
These two appeals of the different assessees for assessment year 2014-15 are directed against the CIT(A)-Ranchi’s order dated 09.07.2018 and 26.06.2018 respectively passed in case nos. CIT(A), Ranchi/10555/2016-17 and CIT(A), Ranchi/ 10392/2016-17 involving proceedings u/s 143(3) of the Income Tax Act, 1961 ( in short the ‘Act’).
Heard both the parties. Case files perused.
Dilip Kumar & Namita Pandey ITA Nos.318 & 278/Ran/2018 Assessment Year: 2014-15 2. The assessees’s sole substantive ground challenges correctness of both lower authorities action adding capital gains arising from transfer of different residential properties amounting to Rs. 27,20,000/- after applying section 50C of the Act. The CIT(A)’s detailed discussion to this effect read as under: “5. The appellant, with regard to grounds 1-3 has stated that the calculation of capital gains at Rs. 27,20,000/- was unjustified. The appellant stated that he had also purchased a flat for a consideration of Rs. 30,72,750/-(See page 2 of the assessment order). The ld. Assessing Officer erred in not allowing deduction u/s 54 of the Act.
5.1. The ld. Assessing Officer has stated that the appellant had purchased and sold the following properties during the FY relevant to A.Y. 2014-15:- Sl. Name of the Transaction Purchase / sale Stamp Registration Jurisdictional No. purchaser / date consideration duty paid no. registration office seller 1. Dilip Kumar 24.06.2013 Rs. 30,72,750/- Rs. 2956 Dist. Registration ADLPK408 (purchase) 1,22,910/- office, Kutchery 5H complex (Purchase) 2 Dilip Kumar 22.10.2013 Rs. 18,18,080/- Rs. 5880 Dist. Registration ADLPK408 72,723/- office, Kutchery 5H complex (Seller) 3 Dilip Kumar 24.06.2013 Rs. 23,60,000/- Rs. 2936 Dist. Registration ADLPK408 94,400/- office, Kutchery 5H complex (Seller)
5.2. The ld. Assessing Officer noted that the appellant had sold a property (flat) situated at Satyam Shivam Sunderam Apartment for a consideration of Rs. 17,50,000/- by deed no. 2936. However, the stamp duty value of the same was Rs. 23,60,000/-. Therefore, there was a difference of Rs. 6,10,000/-. Similarly, the appellant had sold a plot of land at Contanta Co-operative Swablambi Society for a sale consideration of Rs. 2,50,000/-. However, the stamp duty value of the same was Rs. 23,60,000/-. Therefore, there was a difference of Rs. 21,60,000/-. The ld. Assessing Officer, accordingly, made an addition of Rs. 27,20,000/-.
5.3. I have considered the submissions of the appellant and have perused the assessment order. As regards invocation of the provisions of section 50C of the Act it has to be seen that section 50C is applicable, in the circumstances defined in section 50C(1) i.e. where, as in the instant case, there is transfer of a capital asset, being land or building or both, at a consideration lower than the stamp value, i.e. the value of the capital asset transferred under the Stamp Act, so that, for the purposes of section 48, stamp value shall be deemed to be the full value of the consideration received or arising as a result of the said transfer. Section 48 provides for the mode of computation of income chargeable under the head ‘capital gains’ (section 45) on the transfer of a capital asset. Section 50C(1) only seeks to substitute the full value of the consideration received or accruing as a result of transfer (i.e. of the capital asset), which is the starting point for the computation under section 48, with the stamp value, in the circumstance specified under section 50C(1), applicable in the instant case. In short, in a case of transfer of a capital asset, being land or building or both, section 48 is to be read along with section 50C for computing the capital gains chargeable under section 45. Page | 2
Dilip Kumar & Namita Pandey ITA Nos.318 & 278/Ran/2018 Assessment Year: 2014-15 5.4. Further, it is an admitted position that the appellant did not claim deduction u/s 54 of the Act in his return of income. The Hon’ble Supreme Court in the case of Goetz (India) Ltd. v CIT [2006] 284 ITR 323 (SC) has held that a claim for deduction which has not been made in the return of income cannot be made other than by filing a revised return. Accordingly, the ld. Assessing Officer was justified in not allowing the claim of deduction u/s 54 of the Act. Grounds of appeal are dismissed.”
It emerges from a perusal of the CIT(A)’s findings that the lower authorities have not made any reference to DVO u/s 50(C)(2) of the Act. Mr. Das vehemently contends that the assessee nowhere raised such a plea in the lower proceedings. I find no merit in Revenue’s instant argument. Hon’ble Calcutta high court decision in Sunil Kr. Agarwal vs. CIT reported in [2015] 372 ITR 83 (Cal) wherein it was held that the Assessing Officer has to make the impugned reference, even if, there is no such plea raised at the assessee’s behest. I therefore restore the instant former issue back to the Assessing Officer for further appropriate proceedings. He shall also examine the assessee’s claim section 54 deduction as hon’ble apex court’s decision in Goetz (India) Ltd.(supra) makes it clear that the same nowhere impinges upon the appellate authorities’ jurisdiction under the Act to entertain a new plea in absence of revised return.
Same order to follow in latter assessee’s appeal I.T.A. No. 278/Ran/2018 since the lower authorities have not made any reference to the DVO u/s 50C(2) whilst adding the impugned capital gains.
These assessees’ appeals are allowed for statistical purposes in above terms.
Order pronounced in the Court on 09.04.2019
Sd/- [ S.S.Godara ] Judicial Member
Dated : 09.04.2019 SB, Sr. PS
Dilip Kumar & Namita Pandey ITA Nos.318 & 278/Ran/2018 Assessment Year: 2014-15 Copy of the order forwarded to: 1. i) Dilip Kumar,4B, K.D. Chowdhary Apartment, South, Office Para, Doranda, Ranchi-834002. ii) Namita Pandey, Church Road, Daltonganj, Palamu-822101, Jharkhand. 2. i) DCIT, Circle-1, Ranchi ii) DCIT, Circle-3, Ranchi 3..C.I.T(A).- 4. C.I.T.- Ranchi 5. CIT(DR), Ranchi Bench.