MEENABEN RAMESHBHAI PARMAR,AHMEDABAD vs. THE INCOME TAX OFFICER, WARD-6(3), AHMEDABAD

ITA 2388/AHD/2013Status: DisposedITAT Ahmedabad26 September 2017AY 2009-103 pages

In favour of the assessee: the assessee's appeal was allowed. From the AI summary of this appeal.

AI SummaryAllowed

What did the Tribunal hold?

The Tribunal held that the difference between the stated consideration and stamp duty valuation was less than 10%, following a co-ordinate bench decision. It also held that interest paid on capital borrowed for property acquisition should be allowed as a deduction from the cost of improvement.

What were the facts?

The assessee challenged an addition made by the AO to the capital gains by substituting the full value of consideration and by excluding interest paid on capital borrowed for property acquisition. The AO's additions were based on assumptions and in ignorance of evidence.

What were the issues?

Whether the AO was justified in substituting the full value of consideration for capital gains computation and in excluding interest paid on borrowed capital from the cost of improvement.

Which sections of the Income-tax Act were involved?

Section 143(3)

AI-generated summary — verify with the full judgment below

Income Tax Appellate Tribunal, AHMEDABAD SMC BENCH, AHMEDABAD

ITA No.2388/Ahd/2013 Assessment/Year : 2009-10 Page 1 of 3 IN THE INCOME TAX APPELLATE TRIBUNAL, AHMEDABAD SMC BENCH, AHMEDABAD [Coram : Pramod Kumar, Accountant Member] ITA No. 2388/Ahd/2013 Assessment Year: 2009-10 Meenaben R. Parmar …...…..………Appellant A-1, Kartik Society O/s. Shahpur Gate, Ahmedabad-380004. [PAN : AGVPP 1767 C] Vs. Income Tax Officer Ward 6(3), Ahmedabad. …………….Respondent Appearances by : Vivek Chavda, for the appellant Prasoon Kabra, for the respondent Date of concluding the hearing : 06.07.2017 Date of Pronouncing the order : 26.09.2017 O R D E R

By way of this appeal, the assessee appellant has challenged correctness of the order dated 23rd July, 2013, passed by the learned CIT(A)-XI, Ahmedabad, in the matter of assessment under section 143(3) of the Income tax Act, 1961 (‘the Act hereinafter’), for the Assessment Year 2009-10.

Ground no.1 is general and does not call for any specific adjudication. 3. In groundno.2, the grievance raised by the assessee is as follows :- “That without any prejudice to the aforesaid ground of this memorandum of appeal, on the facts in the circumstances of the case, for the purpose of computation of capital gain, the learned AO did not justify in substituting the amount of Rs.40,57,700/- as full value of consideration for the amount of Rs.40,00,000/- as shown by the appellant in her return of income and thereby making the impugned addition of Rs.57,700/- to the appellant’s returned income. The addition has been made by the II. AO merely on assumption and surmises and in ignorance of evidence on records. He made the addition without appreciating evidence on records and the appellant’s explanation in this regard. The appellant appeals for directing the learned AO for deleting this addition.”

ITA No.2388/Ahd/2013 Assessment/Year : 2009-10 Page 2 of 3 4. Learned representatives fairly agree, even as learned Departmental Representative vehemently relied on the stand of the authorities below, that this issue is now covered, in favour of the assessee, by a co-ordinate bench decision dated 06.06.2017 in the case of Balwant Singh vs. ACIT (ITA No.4104/Del/2016) wherein it has been inter alia observed as follows :- “3. I have heard the rival submissions and perused the relevant material on record. The Assessing Officer has made an addition of Rs.5,15,578/- on the basis of the report of DVO which indicated that the assessee has spent this much amount on construction of hotel/banquet during the year. It can be seen from the Valuation report itself that the assessee declared an investment of Rs.4,92,380/- in the previous year relevant to the assessment year under consideration. The total investment spreading over five years declared by the assessee, as mentioned in the Valuation Report, stands at Rs.3,65,47,888/- as against the estimate made by the DVO for a total sum of Rs.3,97,48,433/-. The Assessing Officer has noted this fact in his order for the assessment year 2011-12, whose copy has been placed on record. Para 3 of such order discusses about the total investment made by the assessee and the estimate made by the DVO at Rs.3.97 crore divided in five years from financial year 2007-08 to 2011-12. No addition has been made on this count by specifically mentioning in the order: ‘No addition is called for on this point.’ Thus it is apparent that the AO has accepted the genuineness of investment made in the construction. I fail to see any reason for sustaining any addition in the year under consideration as the DVO’s report is dated July, 2013 and the DVO has recorded that the assessee has declared investment of Rs.4.92 lac against his estimate of cost of construction at Rs.5.15 lac for the year, which is less than 10%. The Hon'ble J & K High Court in Honest Group of Hotel (P) Ltd. vs. CIT (2002) 177 CTR J&K) 232, has held that difference upto 10% in the DVO’s report and the amount shown by the assessee is liable to be ignored. In the facts of the instant case, it is seen that the overall difference between the investment declared by the assessee at Rs.3.65 crore and as estimated by the DVO at Rs.3.97 crore is less than 10% of the DVO’s estimate. As such, no addition is called for. I order for the deletion of addition.” 5. In the present case also, the difference in stated consideration vis-a-vis stamp duty valuation is less than 10%. In this matter, and respectfully following the binding judicial precedent, I uphold the plea of the assessee and direct the Assessing Officer to adopt, for the purpose of computation of capital gains, sale consideration of Rs.40,00,000/- as against Rs.40,57,000/- adopted by him. 6. Ground no.2 is thus allowed. 7. In ground no.3, the assessee has raised the following grievance: “That without any prejudice to the aforesaid grounds of this memorandum of appeal, on the facts and in the circumstances of the case, while calculating the amount of capital gain, the learned AO did not justify the excluding the amount of Rs.5,48,582/- being the interest pain on capital borrowed for acquisition of the sold property

ITA No.2388/Ahd/2013 Assessment/Year : 2009-10 Page 3 of 3 from the cost improvement of that property and thereby in increasing the amount of capital gain by Rs.5,48,582/- which resulted in addition of Rs.5,48,582/- to the appellant’s returned income. The addition has been made by learned AO merely on assumptions and surmises and in ignorance of evidence on records. He made the addition without appreciating evidence on records and the appellant’s explanation in this regard. The appellant appeals for directing the learned AO for deleting this addition.” 8. On this issue also, learned representatives agree, even as learned Departmental Representative vehemently relies on the stand of the authorities below, that this issue is also covered in favour of the assessee, by a Division Bench decision in the case of Ashok Kumar s Vaswani vs. DCIT (ITA No.1528/Ahd/2012; order dated 24.01.2017). Respectfully following this precedent, I direct the Assessing Officer to delete this disallowance of Rs.5,48,542/- as well. 9. Ground no.3 is thus allowed. 10. In ground nos.4 & 5, assessee only prays for consequential relief. No adjudication is thus called for. In the result, the appeal is allowed in the terms indicated above. Pronounced in 11. the open court today on the 26th day of September, 2017.

Sd/- Pramod Kumar (Accountant Member) Dated: Ahmedabad, the 26th day of September, 2017. PBN/* Copies to: (1) The appellant (2) The respondent (3) CIT (4) CIT(A) (5) DR (6) Guard File

By order Assistant Registrar Income Tax Appellant Tribunal Ahmedabad Benches, Ahmedabad

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