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TMI Blog2017 (11) TMI 1060X X X X Extracts X X X X X X X X Extracts X X X X ..... d out and to compound the matters further, even before the Tribunal the copy of the agreement has not being filed. Therefore, in my view, it would be appropriate if the matter is revisited by the Assessing Officer who shall consider all the facts which have a bearing on the tax liability of the assessee vis-a-vis the transaction with the builder with respect to the Deonar property, and decide afresh. There is another fallacy which is quite apparent and needs to be examined. Pertinently, assessee had pointed out that the three flats have not been received and, therefore, the stated value of consideration was not crystallized. At this stage, the stated consideration was required to be crystallized, and only then it could be compared with the value adopted by the Stamp Duty Valuation authority for the purposes of section 50C of the Act. However, the Assessing Officer adopted the Stamp Duty valuation of the entire property; and, the same ought to have been appropriately dealt with by the lower authorities. However, I find that it has also been given a go-by and the CIT(A)who has upheld the action of the Assessing Officer in adopting the Stamp Duty valuation as the full value of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellant is an individual who filed her return of income for the Assessment Year 2009-10 on 23.07.2010 declaring total income of ₹ 2,49,310/-. The return of income was picked-up for scrutiny assessment, and in the course of such proceedings, the Assessing Officer noted that the assessee alongwith five other co-owners sold a property located at Deonar for a total consideration of ₹ 60,00,000/-. The Assessing Officer also noted that the assessee had not offered any income by way of Capital Gains on such transaction, and that the same was noticed by virtue of the AIR information. The Assessing Officer noted that the stamp duty valuation authorities valued the property at ₹ 2,01,80,000/-, and assessee being 1/6th owner, her share came to ₹ 33,63,333/-. On account of the provisions of Sec. 50C of the Act the Assessing Officer show-caused the assessee as to why the value determined by the Stamp Valuation authorities be not taken as the full value of consideration for the purposes of computing the Capital Gains as against the stated consideration. For the said reason, the Assessing Officer disregarded the contention of the assessee that her 1/6th share in the con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Act by the Assessing Officer for the purposes of determining the full value of consideration while computing the Capital Gains. The CIT(A) noted that in order to tax the Capital Gains it was not necessary that the entire amount should have been actually received by the assessee, and that since the builder has contracted with the assessee and the other co-owners and has undertaken the liability to pay the consideration which, inter-alia, included the three flats, the decision of the Assessing Officer in adopting the Stamp Duty valuation of the property as the full value of the consideration in terms of Sec. 50C of the Act was quite justified. Against such a decision of the CIT(A), assessee is in further appeal before the Tribunal. 6. In the above background, at the outset, the learned representative for the assessee pointed out that the assessee was a salaried employee working with Bhabha Atomic Research Centre as a Scientific Officer and her salary earnings were quite meagre and for that reason an experienced tax consultant could not be afforded by the assessee before the lower authorities. The learned representative has referred to the following averments contained in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iver with BEST. (7) That the income tax assessment of my other family members were completed in March, 2015 by reopening the cases and similar additions were made. That I came to know from my brother, Mr. Sanjay Vaity, that they have filed appeals through a Chartered Accountant, Mr. Shekhar Gupta who is representing them. They have filed the appeals in time before the CIT (Appeals) and the same are pending. (8) That I also requested Mr. Shekhar Gupta, Chartered Accountant to represent me in the matter. That after meeting with Mr. Shekhar Gupta sometimes in 2016, there has been some delay thereafter since I could not get leave from my job, had a daughter to look after and due to death of my father in August, 2016. (9) That I am now filing the appeal before the Hon'ble Tribunal and considering the above facts of the case I request the Hon'ble Tribunal to condone the delay and admit the appeal since I believes my case is legally strong. The learned representative fairly conceded that the delay was enormous, so however, it was strongly urged that it is not the period of delay, but the reasons for the delay which is paramount while considering an applicat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tiji Ors., 167 ITR 471 (SC) opined that when technical consideration and substantial justice are pitted against each other, the courts are expected to further the cause of substantial justice. For the said reason, the Hon'ble Supreme Court has opined that while considering matters relating to condonation of delay, a judicious and liberal approach ought to be persued. In fact, the Hon'ble Supreme Court in the case of N. Balakrishnan vs. M. Krishnamurthy, (1998) 7 SCC 123 observed that in every case of delay there can be some lapse on the part of the litigant concerned, but that alone is not enough to turn down his plea and to shut the door against him . What has been emphasised is that if the explanation furnished by the assessee does not smack of mala fides or it is not put forth as part of a dilatory strategy , the delay would deserve to be condoned. 9. In the present case, the absence of appropriate legal assistance to the assessee is starkly evident from the record. Ostensibly, at the level of the CIT(A), assessee was not represented by any professional, but chose to present her case by herself alongwith her husband. The background of the assessee, which has been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed out that there was no likelihood of getting the three flats inasmuch as the construction of the property had not even started. The learned representative pointed out that even the possession has not been taken over by the builder and, therefore, it is a case where the Transferee has not performed his part of the contract and, therefore, the amount of ₹ 60,00,000/- received in terms of the said arrangement is merely an advance and cannot be considered as an amount exigible to Capital Gains. Reliance was placed on the judgment of the Hon ble High Court of Bombay in the case of Zauri Estate Development and Investment Co. Pvt td, vs CIT (Assessment) and another, 271 ITR 269 (Bom.) 11. On this aspect, the ld. DR has relied upon the stand of the lower authorities in support of the case of the Revenue. 12. I have carefully considered the rival aspects and find that the assessee has a prima facie case based on the reasoning upheld by the Hon'ble Bombay High Court in the case of Zuari Estate Development and Investment Co. Pvt. Ltd. (supra). In the instant case, it appears that the assessee alongwith her other family members, being the co-owners of the property at Deonar, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vis-a-vis the transaction with the builder with respect to the Deonar property, and decide afresh. 14. There is another fallacy which is quite apparent and needs to be examined. Pertinently, assessee had pointed out that the three flats have not been received and, therefore, the stated value of consideration was not crystallized. At this stage, the stated consideration was required to be crystallized, and only then it could be compared with the value adopted by the Stamp Duty Valuation authority for the purposes of section 50C of the Act. However, the Assessing Officer adopted the Stamp Duty valuation of the entire property; and, the same ought to have been appropriately dealt with by the lower authorities. However, I find that it has also been given a go-by and the CIT(A)who has upheld the action of the Assessing Officer in adopting the Stamp Duty valuation as the full value of the consideration for the purposes of computing Capital Gains. For all the above reasons, I deem it fit and proper to set-aside the order of the CIT(A) and direct the Assessing Officer to consider the issue relating to taxability of the transaction with the builder in accordance with law and on the basi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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