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Income Tax Appellate Tribunal, “SMC” BENCH, AHMEDABAD
Before: SHRI RAJPAL YADAV & SMT.ANNAPURNA GUPTA
आयकर अपीलीय अिधकरण आयकर अपीलीय अिधकरण, अहमदाबाद �यायपीठ आयकर अपीलीय अिधकरण आयकर अपीलीय अिधकरण अहमदाबाद �यायपीठ अहमदाबाद �यायपीठ ‘SMC’ अहमदाबाद। अहमदाबाद �यायपीठ अहमदाबाद। अहमदाबाद। अहमदाबाद। IN THE INCOME TAX APPELLATE TRIBUNAL “SMC” BENCH, AHMEDABAD (through web-based video conferencing platform) ] ] BEFORE SHRI RAJPAL YADAV, VICE PRESIDENT AND SMT.ANNAPURNA GUPTA, ACCOUNTANT MEMBER ITA Nos. 594 & 595/Ahd/2019 Assessment Years : 2009-10 Shri Atul Chandrakant Shah, Dy. Commissioner of C/o. Prakash Chemical Agency, Vs Income-tax, Mahajan Gali, Raopura, Vadodara Circle 2(1)(2), PAN: AFSPS 8326 J Baroda अपीलाथ�/ (Appellant) �� यथ�/ (Respondent) Assessee by : Shri Surendra Modiani, CA Revenue by : Shri S.S. Shukla, Sr.DR सुनवाई क� तार�ख/Date of Hearing : 21/12/2021 घोषणा क� तार�ख /Date of Pronouncement: 10/01/2022 आदेश/O R D E R PER RAJPAL YADAV, VICE PRESIDENT : The present two appeals are at the instance of the assessee. ITA No.594/Ahd/2019 is directed against order of the ld.CIT(A)-V, Baroda dated 19.8.2013, which arose out of the order passed by the AO under section 143(3) of the Income Tax Act, 1961, and ITA No.595/Ahd/2019 is against order of the ld. Commissioner of Income-tax (Appeals)-3, Vadodara dated 23.01.2019 passed under section 154 of the Act. In both the cases, assessment year involved is 2009-10.
At the outset, the ld.counsel for the assessee submitted that ITAT, Ahmedabad has decided identical issues in the case of another joint owner of the property i.e. Shri Hardik Suryakant Shah. The ITAT in ITA No.592 and 593/Ahd/2019 decided the issue in favour of that joint owner. A copy of order of the ITAT dated 10.11.2021 is placed on record. In the present
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case also facts and issues are same, that is to say, the issues related to addition under section 50C of the Act in respect of capital gain on transfer of immovable properties, of which the present assessee was also one of the co- owners. Shri Hardkik Suryakant Shah had also filed above two appeals; one against order under section 250, and another against order under section 154 of the Act. The appeal against the order under section 250 was dismissed by the Tribunal as being time barred, however, appeal against 154 was allowed with direction that sale consideration be taken at the value determined by the DVO which was much lower than the value determined under the rule by stamp valuation authority for levy of stamp duty and addition was directed to be substantially reduced from Rs.11,12,018/- to Rs.21,581/-. It is therefore prayed by the ld.counsel for the assessee that since matters and issues are same, applying the principle of consistency, both appeals of present assessee may be decided accordingly.
On the other hand, the ld.DR has not disputed factum of similar issue raised in the case of another joint owner, nor pointed out any disparity of the present case with that of the joint-owner of the same property which is also subject matter in the present appeals also.
We have heard both the parties and perused material available on record. We have also gone through order of the ITAT (one of us, i.e. Vice- President being author) passed in the case of another joint owner of the property in question, which also subject matter before the Tribunal in the present two appeals. We find that the ITAT in the case of one of the joint- owners, viz. Shri Harik Suryakant Shah in ITA No.592 & 593/Ahd/2019 had dealt with similar issues, and vide order dated 10.11.2021 dismissed the appeal of the assessee qua challenge to order of the CIT(A) passed under
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section 250 in ITA No.592/Ahd/2019, but allowed appeal of the joint- owner, and set aside order of the CIT(A) passed under section 154 of the Act with direction to adopt the value determined by the DVO instead of applying deeming provision under section 50C of the Act. For better conceptualization of the issue, we would take note of order of the Tribunal decided in the case of Hardik Suryakant Shah (supra), which reads as under:
“First we take up ITA No.593/Ahd/2019. It is an appeal filed by the assessee against the order of the learned CIT(A) dated 26.08.2013. The Registry has pointed out that the appeal of the assessee is time barred by 1969 days. In order to explain the delay, the assessee has filed a letter dated 5th April 2019, along with the appeal paper. This letter reads as under:-
“From: Shri Hardik Suryakant Shah Prakash Chemicals Agencies Mahajan Lane, Roapura, Vadodara. Date: 05.04.2019 To, Income Tax Appellate Tribunal, 3rd and 4th Floor, Abhinav Arcade, Opposite Municipal school, Ellis bridge, Ahmedabad - 380006
Respected Sir, Sub: Appeal before ITAT in case of Shri Hardik Suryakant Shah for AY 2009-10 In the matter of the above referred assessee, we were in receipt of the appellate order u/s 143(3) dated 26.08.2013 on 17.09.2013 wherein the appellate order had confirmed the addition of Rs. 11,12,018/- u/s 50C. However your Honour we disagree with the said addition. This
ITA Nos. 594 & 595/Ahd/2019 Shri Atul Chandrakant Shah Vs. DCIT 4 addition was made in respect of other co-owners of the concerned property. However we were in respect of the valuation report from the DVO in case of other co-owners, thereby the appellate order was being awaited. On account of this reason, there was a delay in the filing of the appeal. Secondly, our earlier CA is situated at Ahmedabad, so there was a communication gap and inadvertently appeal was remained to be filed so in the intent of justice, we request your Honour to condone the delay. Thus, as the appellate order was held in favour of the assessee, therefore w e request your Honour to accept the appeal and condone the delay. Thanking You, Yours Faithfully Shri Hardik Suryakant Shah (Authorized Signatory) 3. With the assistance of learned representatives, we have gone through the record carefully. We have perused the application for condonation of delay. To our mind, this application does not disclose any reason for not challenging the order of the learned CIT(A). The only argument raised in the application is that there were co-owners in whose cases a valuation report was called for from the DVO and they were waiting the outcome of those appeals. The learned Counsel for the assessee also contended that since it was an addition made under Section 50C of the Income-tax Act by assuming the sale consideration equivalent to the amount on which stamp duty was paid; therefore it was necessary to ascertain the true value of the property under Section 50C(2) of the Act. This exercise was going on in the case of other co- owners and, therefore, the assessee did not file the appeal. When the appeals of the other co-owners have been decided, the assessee also thought to file the appeal. We are not impressed by all these contentions. It is the assessee who should have taken vigilant step in his own case. The assessee could file application before the Assessing Officer under Section 50C(2) of the Act. He could raise plea before the learned CIT(A), but after the decision of the learned CIT(A), he has accepted the result and did not chose to file the appeal for long six years. There is hardly any plausible explanation for this delay. Therefore, we do not find any merit in the explanation for condonation of delay. The appeal of the assessee is, therefore, dismissed being time barred.
Now we take up ITA No. 592/Ahd/2019. As observed in the earlier appeal, it emerges out that the appeal of the assessee was decided on 26.08.2013. Thereafter, the assessee moved an application on 30.12.2016
ITA Nos. 594 & 595/Ahd/2019 Shri Atul Chandrakant Shah Vs. DCIT 5 under Section 154 of the Act pointing out apparent error in the order of the learned CIT(A). The case of the assessee was that nine persons have sold a property for a sale consideration of Rs.54,00,000/-. Each vendor got Rs.6 lakhs; however, for the purpose of stamp duty valuation, it was valued at Rs.1,54,08,163/- and, therefore, the sale consideration for the purpose of computation of capital gain was taken at Rs.11,12,018/- in each hand. Thereafter, in one of the co-owner’s case, a reference was made to the Valuation Officer who determined the value of the property at Rs.55,94,230/- . This valuation report came on 29.03.2016. On the basis of this valuation report, each co-owner was deemed to have received the sale consideration at Rs.6,21,581/- and, on the basis of this amount, the capital gain was to be computed. The assessee filed an application within four years from the date of the order of the learned CIT(A) pleading therein that there is an apparent error in the order. This application of the assessee has been rejected by the learned CIT(A) on the ground that when the appeal was decided there was no apparent error, because this document was not available.
With the assistance of the learned representatives we have gone through the record carefully. The nine co-owners have sold the property and the co-owners have equivalent shares i.e. 1/9 in each hand. Under sub-clause (2) of Section 50C of the Act, the Assessing Officer himself could made a reference to the DVO for determining the true value of the property, because Section 50C authorizes the Assessing Officer to take a deeming consideration for sale of the property on the ground that stamp duty was paid on a higher amount. In one of the co-owner’s case, the District Valuation Officer of the Department has determined the value at a very lower figure, i.e. Rs.55,94,230/- as against value adopted under the deeming provision at Rs.1,54,08,163/-. To our mind, for doing the complete justice to an assessee, the learned First Appellate Authority ought to have treated it as an apparent error. Each co-owner should have been treated at par. It is pertinent to observe that the quasi-judicial authorities are being respected not on account of their powers to legalize the injustice on technical ground, but for their capabilities of removing injustice and is expected to do so. In the present case, the learned First Appellate Authority failed to remove the injustice with the assessee. We deem it that there was an apparent error available on record. The valuation report is in existence though in the case of other assessees and, in the moment it is brought to the notice of the learned CIT(A), it should have taken cognizance of that report. Considering that aspect of the matter, we allow the application of the assessee moved under Section 154 of the Act and set aside the impugned order dated 23.01.2019. The error committed in the order dated 26.08.2013 is rectified. The Assessing Officer is directed to take sale consideration in the hands of the assessee equivalent to the amount
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taken in the case of Prakash Chunilal Shah and Chirag Prakash Shah. Though we have not interfered in the order of the learned CIT(A) dated 26.08.2013 because the appeal was time barred before us, but by rectifying the error, which is a proceeding well taken by the assessee within the limitation, the assessee is able to achieve the same result.
In the result, the appeal of the assessee in ITA No.592/Ahd/2019 is allowed, whereas the appeal in ITA No.593/Ahd/2019 is dismissed.”
In line with the aforesaid order of the Tribunal, facts and issues involved in the present appeal being identical, observations and findings of the Tribunal in the case of co-owners cited (supra) shall apply mutatis mutandis in the case on hand as well, more so when, the ld.DR has not pointed out any material difference in facts and circumstances. Therefore, we dispose of both appeals of the assessee with similar directions.
In the result, appeal of the assessee in ITA No.594/Ahd/2019 is dismissed, whereas the appeal in ITA No.595/Ahd/2019 is allowed.
Order pronounced in the Court on 10th January, 2022 at Ahmedabad. Sd/- Sd/- (ANNAPURNA GUPTA) (RAJPAL YADAV) ACCOUNTANT MEMBER VICE-PRESIDENT
Ahmedabad, Dated 10/01/2022