SRI SHABBIR KUTUBUDDIN LOKHANDWALA,,VISAKHAPATNAM vs. CIT(A)-1,, VISAKHAPATNAM

IN THE INCOME TAX APPELLATE TRIBUNAL VISAKHAPATNAM BENCH, VISAKHAPATNAM BEFORE SHRI V. DURGA RAO, HON’BLE JUDICIAL MEMBER & SHRI D.S. SUNDER SINGH, HON’BLE ACCOUNTANT MEMBER S.A.No. 02/VIZ/2018 And ITA No. 460/VIZ/2017 (Asst. Year : 2007-08) Shabbir Kutubuddin vs. ITO, Ward-1(2), Lokhandwala, D.No. 28-9-85, Visakhapatnam. Suryabagh, Visakhapatnam. PAN No. ABMPL 2743 A (Appellant) (Respondent)

Assessee by : Shri Sanjeeva Rao – Advocate. Department By : Shri P.S. Murthy – Sr.DR Date of hearing : 30/07/2018. Date of pronouncement : 10/08/2018. O R D E R PER V. DURGA RAO, JUDICIAL MEMBER

The above captioned Stay Application and appeal filed by the assessee are directed against the order of Commissioner of Income Tax (Appeals)-1, Visakhapatnam, dated 26/05/2017 for the Assessment Year 2007-08. 2. This appeal is barred by limitation by 16 days. The assessee has filed an application along with affidavit for condonation of delay. Ld. Departmental Representative opposed the same. From

2 ITA No.460 /VIZ/2017 S.A.No. 02/VIZ/2018 (Shabbir Kutubuddin Lokhandwala) the affidavit filed by the assessee, it is seen that the order dated 26/05/2017 of the ld. CIT(A) has to file an appeal on or before 26/07/2018. In the intervening period, the assessee was travelling for Haj Pilgrimage and immediately after reaching Visakhapatnam on 09/08/2017, he filed the appeal before the ITAT, Visakhapatnam. Therefore, he prayed that the delay of 16 days may be condoned. We find that there is a sufficient cause for non-filing the appeal in time. Therefore, we are of the opinion that it is a fit case to condone the delay. Accordingly, delay is condoned. 3. Facts of the case, in brief, are that assessee is an individual filed his return of income declaring total income of Rs. 3,31,890/-. The return filed by the assessee was initially processed under section 143(1) of the Income Tax Act, 1961 (hereinafter referred to as 'Act'). Thereafter, case was selected for scrutiny and assessment was completed under section 143(3) of the Act. On verification of the sale document No.2862/2006, dated 12/04/2006, it is noticed that the assessee has sold non-agricultural land admeasuring 5.00 acres for a consideration of Rs. 10.00 lakhs, whereas market value as per SRO was Rs.15.00 lakh. Therefore, the Assessing Officer invoked section

3 ITA No.460 /VIZ/2017 S.A.No. 02/VIZ/2018 (Shabbir Kutubuddin Lokhandwala) 50C and determined the sale consideration of Rs. 15.00 lakhs instead of Rs. 10.00 lakhs as received by the assessee. 4. The assessee carried the matter in appeal before the ld.CIT(A) and submitted that he has received Rs. 10.00 as sale consideration, therefore sale consideration cannot be considered as Rs. 15.00 lakhs. The ld. CIT(A) confirmed the order of the Assessing Officer on the ground that the assessee has not made any request before the Assessing Officer to refer the matter to the Departmental Valuation Officer (DVO) as per sub-section (2) of section 50C of the Act. 5. On being aggrieved, assessee carried the matter in appeal before the Tribunal. 6. Ld. counsel for the assessee has submitted that the assessee has received only Rs. 10.00 lakhs as a sale consideration and, therefore, Assessing Officer is not justified in invoking section 50C and determining sale consideration of Rs. 15.00 lakhs and submitted that the Assessing Officer ought to have been referred the matter to the DVO to determine the faire market value. 7. On the other hand, ld. Departmental Representative has submitted that the assessee has not requested the Assessing Officer to refer the matter to the DVO, but only disputed that he received only Rs. 10.00 lakhs.

4 ITA No.460 /VIZ/2017 S.A.No. 02/VIZ/2018 (Shabbir Kutubuddin Lokhandwala) 8. We have heard both the sides, perused the material available on record and orders of the authorities below. 9. In this case, according to the assessee, he sold the property and received sale consideration of Rs. 10.00 lakhs. According to the Assessing Officer as per section 50C, the sale consideration of Rs. 15.00 lakhs has to be considered for computation of short term capital gain. Therefore, Assessing Officer had determined deemed sale consideration as Rs.15.00 lakhs. The case of the assessee before the Assessing Officer is that he received only Rs.10.00 lakhs. Though, the assessee has not specifically requested the Assessing Officer to refer the matter to the DVO to determine the fair market value, in our opinion, when assessee has specifically raised an objection for adoption of SRO value of Rs. 15.00 lakhs and submitted that fair market value of the property is only of Rs. 10.00 lakhs and he received the same. Under these above facts and circumstances of the case and also the objection raised by the assessee for adoption of SRO value, the Assessing Officer ought to have referred the matter to the DVO to ascertain the correct fair market value. Ld.CIT(A) also failed to consider this aspect and simply confirmed the order of the Assessing Officer. In view of the above, we set aside the order of the ld. CIT(A) and remit the matter back to the file of the

5 ITA No.460 /VIZ/2017 S.A.No. 02/VIZ/2018 (Shabbir Kutubuddin Lokhandwala) Assessing Officer. The Assessing Officer is directed to refer the matter to the DVO to ascertain the correct fair market value and complete the assessment, after affording reasonable opportunity of hearing to the assessee. 10. So far as Stay Application filed by the assessee is concerned, we have already disposed of the appeal of the assessee, no separate adjudication is required, therefore same has become infructuous and accordingly, dismissed. 11. In the result, appeal filed by the assessee is allowed for statistical purpose and the Stay Application is dismissed. Order Pronounced in open Court on this 10th day of August, 2018. Sd/- sd/- (D.S. SUNDER SINGH) (V. DURGA RAO) Accountant Member Judicial Member Dated : 10th August, 2018. vr/- Copy to: 1. The Assessee – Shabbir Kutubuddin Lokhandwala, D.No. 28-9-85, Suryabagh, Visakhapatnam. 2. The Revenue – ITO, Ward-1(2), Visakhapatnam. 3. The Pr.CIT-1, Visakhapatnam. 4. The CIT(A)-1, Visakhapatnam. 5. The D.R., Visakhapatnam. 6. Guard file. By order

Sr. Private Secretary, ITAT, Visakhapatnam.