2023 (7) TMI 801 - AT - Income Tax

LTCG on sale of residential property - FMV of property inherited - co-owners - assessee a non resident individual - AO noticed that property was inherited and its valuation was carried out on 09.11.2018 to determine its Fair Market Value (FMV) as on 01.04.2001 - AO noticed that property was inherited and its valuation was carried out on 09.11.2018 to determine its Fair Market Value (FMV) as on 01.04.2001 - As explained assessee s property commanded a much higher rate as on 01.04.2001 than the value estimated by the DVO - HELD THAT - AO noted that this property was inherited by the assessee from his parents who had purchased the property in 1967/69. Since the property was purchased prior to 1st April 2001 the assessee got it valued from a registered valuer and used the value for determining tax payable on long term capital gain arising from this transaction. AO accepted the FMV as on 01.04.2001 as determined by the registered valuer of the assessee. Similarly in the case of Ms. Poonam Sachdev sister of the assessee the assessment for AY 2019-20 was completed on 28.09.2021 after complete scrutiny under CASS without making any addition though the assessee had declared 1/3rd share of capital gain arising from the sale of the same property. Therefore impugned addition in the case of the assessee is not warranted at all when the same FMV has been accepted in the cases of other co-owners. Decided in favour of assessee.

Summary

Issues Involved:
The judgment involves issues related to the assessment order passed under section 143(3) r.w.s. 144C(13) of the Income Tax Act, 1961 for the Assessment Year 2019-20. The main issues raised by the assessee in the appeal include challenging the assessment order on various factual and legal grounds, addition of long term capital gains, valuation of inherited property, fairness of the assessment process, and the legality of interest and penalty imposed.

Long Term Capital Gains Addition:
The appeal primarily contested the addition of Rs 2,23,23,116 towards long term capital gains on the sale of a residential property. The dispute arose from the valuation of the property as on 01.04.2001, with the assessee claiming a higher Fair Market Value (FMV) based on a registered valuer's report. However, the Assessing Officer (AO) referred the matter to the District Valuation Officer (DVO), who determined a lower FMV, leading to the disputed addition. The Dispute Resolution Panel directed the AO to address specific objections, but the final assessment upheld the addition based on the DVO's report.

Natural Justice and Co-Owners' Assessments:
The argument presented by the assessee emphasized the violation of principles of natural justice in the assessment process. The registered valuer's report was challenged, highlighting the failure of the DVO to consider property-specific features and provide relevant sale deed copies. Moreover, the discrepancy in treating the FMV among co-owners, where in other cases the FMV as per registered valuer was accepted, was highlighted to question the fairness of the assessment.

Judgment and Decision:
The Tribunal analyzed the facts and submissions from both sides. It noted the equal ownership of the property among the assessee and her siblings, the valuation discrepancies, and the treatment of FMV in other co-owners' assessments. Citing the decision of the Hon'ble Delhi High Court, the Tribunal ruled in favor of the assessee on grounds related to long term capital gains addition. The Tribunal found the AO's reference to the DVO without substantial basis and the failure to address the objections adequately as unjust. The appeal was allowed, rejecting the addition and emphasizing fairness in assessment.

Interest and Penalty Issues:
The Tribunal considered the issues of levy of interest under section 234D, which was deemed consequential, and the initiation of penalty under section 270A(2), which was deemed premature and not requiring immediate adjudication. The general nature of other grounds raised in the appeal was acknowledged without specific adjudication at that stage.

Conclusion:
In conclusion, the Tribunal's decision favored the assessee, overturning the addition of long term capital gains based on the DVO's report. The judgment highlighted the importance of fair assessment practices, adherence to natural justice principles, and consistency in treating co-owners' assessments. The appeal was allowed, emphasizing the need for a just and reasoned assessment process.

Separate Judgment by Judges:
The judgment was delivered by Shri G.S. Pannu, Hon'ble President, and Ms. Astha Chandra, Judicial Member.