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Income Tax Appellate Tribunal, “C” BENCH: KOLKATA
Per Shri A.T.Varkey, JM The appeal preferred by the assessee is against the order of the Ld. CIT(A)-10, Kolkata dated 17.08.2016 for AY 2012-13.
The only ground of appeal of assessee is against the action of Ld. CIT(A) in upholding the addition of Rs.98,82,643/- on account of Long Term Capital Gain on sale of property.
Briefly stated facts are that the assessee is a partner in a partnership firm M/s. Narsing Chunder Daw & Co. 9, Dalhousie Square (East) ( now Known as B.B.D. Bag) Kolkata -700001. PAN: ADQPD1847F who runs the business of trading of guns. During the Assessment Year 2012-13 (relating to the Previous year 2011-12) the assessee filed Income Tax Return electronically in ITR Form NO -3 slowing income under the heads (a) Income from House Property (b) Income from Business (c) Capital Gain and (d) Income from Other Sources. Scrutiny Assessment was selected through CASS. The assessee was the owner of 1/4th share in an ancestral joint family property comprising of land and building situated at 152,153,154, & 155, Maniktala Main Road, Kolkata -700054 which was totally sold out by
2 ITA No. 2157/Kol/2016 Subrata Daw, AY 2012-13 a Registered Deed dated 14.10.2011 at a consideration of Rs. 2,50,00,000 .and accordingly the assessee got share of sales money of 1/4th of total sales consideration of Rs.2,50,00,000/- i.e Rs.62,50,000/- . It was brought to the notice of AO that the property was in dilapidated condition encroached by trespassers, unauthorized occupants, and defaulting tenants and shopkeepers resulting in discounted sale of the property on 'as is where is basis'. The assessee offered value of consideration being 1/4th of stamp duty value of Rs.13,00,73,603/- or Rs.3,25,18,401/- in view of provisions of section 50(c) of Act in the return of income for the Assessment Year 2012-13. The property being inherited prior to 01.04.81, the assessee has considered fair market value of the property as per valuer's report as on 01.04.81 as Rs.12,92,53,440/- and 1/4th of such fair- market value or Rs.3,23,13,460/- has been treated as cost of acquisition. Thus the difference between proportionate value of sales consideration of Rs.3,25,18,401/- and proportionate value of cost of acquisition of Rs.3,23,13,460/- or Rs.2,04,941/- has been shown as long term capital gain for the assessment year 2012-13 (relating to the previous year 2011-12).
In its return of income for the AY 2012-13, the assessee has computed its income from sale of property and offered the same for taxation under the head ‘Long Term Capital Gain’ as under: Full value of consideration : Rs. 3,25,18,401/- Deduction u/s. 48: 1. Cost of acquisition after indexation Rs. 3,23,13,460/- Balance : Rs. 2,04,941/- Deduction u/s. 54/54B/54D/54EC/54F/54GA : Nil Net Balance: Rs. 2,04,941/-
Cost of acquisition and indexation thereon adopted by the assessee on the basis of a valuation report of the property as on 01.04.81 which was valued at Rs.1,64,65,457/-. The copy of valuation report filed shows the date of valuation as 14.02.13. Thus as stated above, Rs.2,04,941/- was offered by the assessee as Long Term Capital Gain in the return of income. However, AO had a difference of opinion in respect to the valuation of the property as adopted by the assessee as on 01.04.1981. Therefore, the case was referred to the DVO
3 ITA No. 2157/Kol/2016 Subrata Daw, AY 2012-13 by AO u/s. 55A of the Act on 25.03.2014 to ascertain fair market value as on 01.04.1981. Acting on such reference, the AO notes that the DVO issued letter to the assessee on 31.03.2014 to furnish various details as contained in the letter to enable him to value the property. The AO also took note of the fact that on 16.04.14 the assessee filed a letter requesting to refer the issue u/s. 55A of the Act, 1961 to value the fair market value on the date of sale also. However, the DVO did not accede to the request of the assessee to value the fair market value as on the date of sale and estimated the fair market value as on 01.04.1981 for the total joint property at Rs.1,15,34,144/-. The AO, thereafter, calculated the LTCG as under: Full Value of consideration : Rs. 3,25,18,401/- (As adopted by the assessee)
Deduction u/s. 48: i) Cost of acquisition after indexation (based on the value as determined by the DVO i.e. Rs.1,15,34,144/4x785/100) Rs. 2,26,35,758/-
Balance Rs. 98,82,643/- Deduction u/s. 54/54B/54D/54EC/54F/54GA Nil Net Balance : Rs. 98,82,643/-
Hence, Long Term Capital Gain was determined by AO at Rs.98,82,643/- instead of Rs.2,04,941/- as computed by the assessee. Total addition under this head was made at Rs.96,77,702/- (Rs. 98,82,643 – Rs.2,04,941). Aggrieved by the AO’s order, the assessee preferred an appeal before the Ld. CIT(A), who has passed an ex parte order confirming the AO’s action.
Aggrieved, the assessee is before us.
We have heard rival submissions and gone through the facts and circumstances of the case. We note that the impugned order of Ld. CIT(A) is an ex parte order. We note that assessee was the owner of 1/4th share in an ancestral joint family property comprising of land and building situated at 152,153,154, & 155, Maniktala Main Road, Kolkata -700054 which was totally sold out by a Registered Deed dated 14.10.2011 at a consideration of Rs. 2,50,00,000 .and accordingly the assessee got share of sales money of 1/4th of total sales
4 ITA No. 2157/Kol/2016 Subrata Daw, AY 2012-13 consideration of Rs.2,50,00,000/- i.e Rs.62,50,000/- . It was brought to our notice the fact that the property when sold was in a dilapidated condition, which was encroached by trespassers and occupied by unauthorized occupants, very long term defaulting tenants and shopkeepers occupying the property resulted in discounted sale of the property on 'as is where is basis'. The assessee offered value of consideration being 1/4th of stamp duty value of Rs.13,00,73,603/- or Rs.3,25,18,401/- in view of provisions of section 50(c) of Act in the return of income for the Assessment Year 2012-13. Since the property in question was an inherited property prior to 01.04.81, the assessee has taken into consideration the fair market value of the property as per valuer's report as on 01.04.81 at Rs.12,92,53,440/- and 1/4th of such fair- market value or Rs.3,23,13,460/- has been treated as cost of acquisition. Thus the difference between proportionate value of sales consideration of Rs.3,25,18,401/- and proportionate value of cost of acquisition of Rs.3,23,13,460/- worked out to Rs.2,04,941/-, which was offered as long term capital gain for the assessment year 2012-13. However, the AO referred to DVO the fair market value of property as on 01.04.1981 and DVO estimated it at Rs.1,15,34,144/- for the entire joint property. Thus, the value as on 01.04.1981 on assessee’s 1/4th share was at Rs.28,83,536/- (without indexation). After getting the report of the DVO the AO computed the LTCG and made an addition of Rs.96,77,702/-. The main grievance of the assessee is that when the assessee had itself offered the value of consideration being 1/4th of the stamp duty value of Rs.13,00,73,603/- or Rs.3,25,18,401/- in view of section 50C of the Act, the LTCG computed on the basis of the valuation report of the valuation of the property since inherited as on 01.04.1981 at Rs.41,16,364.25 (without indexation) as per valuer’s report was brought down to Rs.28,83,536/- by the DVO without the DVO acceding to the request of the assessee to value the fair market value on the date of sale which action, according to assessee, is against justice and fair play. We note that the AO as well as the DVO rejected the plea of the assessee to value the fair market value of the property on the date of sale on the ground that since the assessee itself has adopted the stamp duty value as per the provisions of sec. 50C of the Act and because the assessee had not questioned the stamp duty valuation made by the authority, there is no question of reference of the fair market value of the property on the date of sale is necessary. We do not countenance such action of the AO/DVO. There is no estoppel against law. Since the AO has referred to the DVO, the valuation report on the basis of which the assessee had valued
5 ITA No. 2157/Kol/2016 Subrata Daw, AY 2012-13 the property as on 01.04.1981 at Rs.1,64,65,457/- then, in all fairness assessee’s request for determination by DVO the fair market value of the property on the date of sale should have been considered in the light of the fact that the property in question was in dilapidated condition encroached by trespassers and defaulting tenants and shopkeepers resulted in discounted sale of the property on as is where is basis. Therefore, in the interest of natural justice and fair play the AO being a quasi juridical authority should have referred not only the value of the property as on 01.04.1981 but also the fair market value as on the date of sale. 9. It is well settled in law that every authority exercising quasi judicial power has inherent/incidental powers in discharging of its function to ensure that justice is done between the parties i.e. no prejudice is caused to any of the parties. This power has not to be traced to any provision of the Act, but inheres in every quasi judicial authority. This has been observed by the Hon’ble Supreme Court in Grindlays Bank Vs. Central Govt. Industrial Tribunal 1980(Supp) SCC 420. The Hon’ble Supreme Court in ITO Vs. CH. Atchaiah (1996) 218 ITR 239 (SC) has held ) has held that the income should be assessed on the right person, right year and it should be on the right income.
The Hon’ble Gujarat High Court in S. R. Costhi Vs. CIT (2005) 276 ITR 165 (SC) held, inter alia, “the authorities under the Income-tax Act, 1961 are under an obligation to act in accordance with law. Tax can be collected only as provided under the Act. If an assessee, under a mistake, misconception or on not being properly instructed, is over- assessed, the authorities under the Act are required to assist him and ensure that only legitimate taxes due are collected.”
Therefore, the short question is whether the DVO ought to have acceded to the request of the assessee to ascertain the fair market value of the property on the date of sale also. This issue is no longer res integra. The Hon’ble Calcutta High Court in the case of Sunil Kr. Agarwal Vs. CIT in GA No.3686 of 2013 ITAT No.221 of 2013 vide judgment dated 13.03.2014, wherein it was held as under: “We have considered the rival submissions advanced by the learned advocates appearing for the parties. The submission of Ms. Ghutghutia that the requirement of clauses a) and (b) of sub-Section 2 of Section 50C has not been met by the assessee, can hardly be accepted. The requirement of clause (b) of sub-Section 2 of Section 50C was evidently met. The only question
6 ITA No. 2157/Kol/2016 Subrata Daw, AY 2012-13 is whether the requirement of clause (b) of sub-Section 2 of Section 50C was evidently met. The only question is whether the requirement of clause (a) of sub-Section 2 of Section 50C was met by the assessee. We have already set out hereinabove the recital appearing in the Deeds of Conveyance upon which the assessee was relying. Presumably, the case of the assessee was that price offered by the buyer was the highest prevailing price in the market. If this is his case then it is difficult to accept the proposition that the assessee had accepted that the price fixed by the District Sub Registrar was the fair market value of the property. No such inference can be made as against the assessee because he had nothing to do in the matter. Stamp duty was payable by the purchaser. It was for the purchaser to either accept it or dispute it. The assessee could not, on the basis of the price fixed by the Sub-Registrar, have claimed anything more than the agreed consideration of a sum of Rs.10 lakhs which, according to the assessee, was the highest prevailing market price. It would follow automatically that his case was that the fair market value of the property could not be Rs.35 lakhs as assessed by the District Sub Registrar. In a case of this nature the assessing officer should, in fairness, have given an option to the assessee to have the valuation made by the departmental valuation officer contemplated under Section 50C. As a matter of course, in all such cases the assessing officer should give an option to the assessee to have the valuation made by the departmental valuation officer. For the aforesaid reasons, we are of the opinion that the valuation by the departmental valuation officer, contemplated under Section 50C, is required to avoid miscarriage of justice. The legislature did not intend that the capital gain should be fixed merely on the basis of the valuation to be made by the District Sub Registrar for the purpose of stamp duty. The legislature has taken care to provide adequate machinery to give a fair treatment to the citizen/taxpayer. There is no reason why the machinery provided by the legislature should not be used and the benefit thereof should be refused. Even in a case where no such prayer is made by the learned advocate representing the assessee, who may not have been properly instructed in law, the assessing officer, discharging a quasi judicial function, has the bounden duty to act fairly and to give a fair treatment by giving him an option to follow the course provided by law.”(emphasis given by us). 12. Therefore in the light of the aforesaid facts and circumstances of the case and relying on the decision of the Hon’ble High Court in Sumit Kr. Agarwal, Supra, we set aside the order of the DVO/AO and remand the matter back to the AO with a direction to refer the valuation to DVO for determination of the fair market value as on the date of sale of the property as well as on 01.04.1981`after giving opportunity to the assessee and thereafter to compute LTCG in accordance to law. 9 In the result, the appeal of assessee is allowed for statistical purposes.
Order is pronounced in the open court on 10/07/2018 Sd/- Sd/- (J. Sudhakar Reddy) (A. T. Varkey) Accountant Member Judicial Member Dated: 10th July, 2018
Jd.(Sr.P.S.)
7 ITA No. 2157/Kol/2016 Subrata Daw, AY 2012-13 Copy of the order forwarded to:
1 Appellant – Shri Subrata Daw, C/o D. J. Shah & Co., Kalyan Bhavan, 2, Elgin Road, Kolkata-700 020. 2 Respondent – ITO, Ward-36(2), Kolkata. . 3 CIT(A)-10, Kolkata (sent through e-mail) CIT , Kolkata 4 DR, Kolkata Benches, Kolkata (sent through e-mail) 5
/True Copy, By order,
Sr. Pvt. Secretary