SHRI ANIL GOPIRAM KOKRA,AHMEDABAD vs. THE INCOME TAX OFFICER, WARD-5(3)(4), AHMEDABAD

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ITA 2649/AHD/2016Status: DisposedITAT Ahmedabad10 May 2018AY 2012-134 pages
AI SummaryRemanded

What did the Tribunal hold?

The Tribunal condoned the delay in filing the appeal. It held that the AO should have referred the valuation of the property to a Valuation Officer as per Section 50C(2) of the Income Tax Act, as the assessee was not given a proper opportunity to object.

What were the facts?

The assessee's appeal was filed 14 days late due to issues with the tax consultant and personal problems. The Assessing Officer (AO) treated the sale consideration of property for capital gains tax purposes as the stamp duty valuation, citing Section 50C. The assessee contended that the AO did not provide a proper opportunity to refer the valuation to a Valuation Officer.

What were the issues?

Whether the AO erred in not referring the property valuation to a Valuation Officer under Section 50C(2) before deeming the stamp duty value as the full sale consideration. Whether the assessee was provided with a proper opportunity to object to the AO's proposed action.

Which sections of the Income-tax Act were involved?

Section 50C,Section 48,Section 143(2)

AI-generated summary — verify with the full judgment below

Income Tax Appellate Tribunal, AHMEDABAD – BENCH ‘SMC’

Before: SHRI RAJPAL YADAV

For Appellant: Shri P.K.Ajmera, AR
For Respondent: Shri Prasson Kabra, Sr.DR
Hearing: 13/04/2018Pronounced: 10/05/2018

आयकर अपील�य अ�धकरण, अहमदाबाद �यायपीठ - अहमदाबाद । IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD – BENCH ‘SMC’

BEFORE SHRI RAJPAL YADAV, JUDICIAL MEMBER आयकर अपील सं./ ITA No. 2649/Ahd/2016 �नधा�रण वष�/Assessment Year: 2012-13

Anil Gopiram Kokra ITO, Ward-5(3)(4) D-307, Ground Floor Vs Ahmedabad. Sumel Business Park-2 B/h. Vanijya Bhavan Kankariya, Ahmedabad. PAN : AADPK 7102 L

अपीलाथ�/ (Appellant) �� यथ�/ (Respondent) Assessee by : Shri P.K.Ajmera, AR Revenue by : Shri Prasson Kabra, Sr.DR

सुनवाई क� तार�ख/Date of Hearing : 13/04/2018 घोषणा क� तार�ख /Date of Pronouncement : 10/05/2018 O R D E R

Present appeal is directed at the instance of assessee against order of ld.CIT(A), Ahmedabad-5 dated 15.6.2016 for Asstt.Year 2012-13.

2.

Registry has pointed out that appeal filed by the assessee is barred by 14 days. In order to explain the delay, the assessee has filed condonation application as well as his affidavit. In that affidavit he deposed that order of ld.CIT(A) was received on 1.8.2016. It was handed over to the tax consultant for filing appeal. Due date of filing appeal was 30.9.2016. But tax consultant was busy in time barring work and/or filing of tax returns of income. Assessee has family problems. He was not well and on account of cumulative effect of all these issues,

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the appeal became time barred by 14 days. The ld.counsel for the assessee prayed for condonation of delay. On the other hand, the ld.DR opposed prayer of the assessee.

3.

On due consideration of the above facts and circumstances, I am convinced that the assessee was prevented by sufficient reasons for not filing appeal before the Tribunal in time. There is no deliberate attempt at the end of the assessee to make his appeal time barred because by making an appeal time bared, the assessee was not going to gain anything. Therefore, I condone the delay in filing the appeal and decide the same on merit.

4.

On merit, grievance of the assessee is that the ld.CIT(A) has erred in confirming computation of capital gain by adopting the sale consideration equivalent to the amount considered by the stamp duty valuation authority for the purpose of payment of stamp duty.

5.

Brief facts of the case are that the assessee has filed his return of income on 30.9.2012 declaring total income at Rs.6,73,870/-. The case of the assessee was selected for scrutiny assessment notice under section 143(2) was issued and served upon the assessee. On scrutiny of the accounts, it revealed to the AO that the assessee had sold his house for a consideration of Rs.40 lakhs. Similarly, he has sold his office premises for a consideration of Rs.10 lakhs. On further verification, it revealed that for the purpose of payment of stamp duty value of house was adopted at Rs.55,14,286/- and office at Rs.13,30,612/-. On strength of section 50C, the ld.AO confronted the assessee as to why sale consideration be not deemed equivalent to the value adopted for the

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purpose of stamp duty payment. According to the AO, a show cause notice vide order-sheet entry dated 23.3.2015 was given to the assessee and authorized representative did not object. Accordingly, he worked out net long term capital gain of Rs.8,80,757/- and made addition. Dissatisfied with the assessment order, the assessee carried the matter in appeal before the ld.CIT(A). The assessee contended that the AO has not given any show cause notice, hence his order is not sustainable. However, the ld.CIT(A) did not accept contentions of the assessee and upheld computation of long capital gain as computed by the AO.

6.

With the assistance of the ld.representatives, I have gone through the record. Section 50C provides that where the consideration received or accruing as a result of transfer by an assessee of a capital asset, being land or building or both, is less than the value adopted or assessed by any authority for the purpose of payment of stamp duty in respect of such transfer, the value so adopted or assessed shall for the purposes of section 48, be deemed to be the full value of the consideration. In other words, full consideration mentioned in section 48 is to be replaced by the consideration on which value of the property was adopted for the purpose of payment of stamp duty. However, sub-section (2) of section 50C provides that where (a) the assessee claims before AO that value adopted or assessed or assessable by the stamp valuation authority under sub-section (1) exceeds the fair market value of the property as on the date of transfer; or such value has not been disputed in any appeal or revision before any authority or court, the AO may refer the valuation of the capital assets to a Valuation Officer. The grievance of the assessee is that as per section sub-clause (2) of section 50C he has a right to

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requisite the assessee for making a reference to the DVO for determining value of the property. In other words, instead of adopting sale consideration equivalent to the amount on which stamp duty was paid, the ld.AO ought to have referred it to the DVO. Thus, opportunity was not given to the assessee, because he confronted the assessee on 23.3.2015 and on that very day he has passed the assessment order. The ld.AO has recorded that authorized representative of the assessee did not object to this proposition about adopting the sale consideration equivalent to the amount taken by stamp duty valuation authority. On the hand, I find that in the grounds of appeal taken before the ld.First Appellate Authority, the assessee has specifically taken the objection that his authorized representative did not agree with the proposition of the AO. Thus, this stand of the assessee would indicate that proper opportunity was not given by the AO. Therefore, I set aside the orders of the Revenue authorities below and remit this issue to the file of the AO. The ld.AO shall call for report from the DVO as per section 50C(2) of the Income Tax Act. He thereafter would determine capital gain assessable in the hands of the assessee.

7.

In the result, appeal of the assessee is allowed for statistical purpose.

Pronounced in the Open Court on 10th May, 2018.

Sd/- (RAJPAL YADAV) JUDICIAL MEMBER

Ahmedabad; Dated, 10/05/2018

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