IN INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH C, MUMBAI BEFORE SHRI AMIT SHUKLA, JUDICIAL MEMBER AND SHRI MANOJ K AGGARWAL, ACCOUNTANT MEMBER ITA No. : 4810/Mum/2014 (Assessment year: 2010-11) Vs DCIT-26 (2), Prashant Arjunrao Kolhe, K G Mittal Hospital Bldg, B-1304/1404, Bldg No.1, Charni Road, Lok Everest Kachan Janga, Mumbai -400 020 Jatashankar Dosa Road, Mulund (West), Mumbai -400 080 PAN:AKTPK 4197 P (Appellant) (Respondent) ITA No. :5155/Mum/2015 (Assessment year: 2010-11) DCIT-26 (2), Vs K G Mittal Hospital Bldg, Prashant Arjunrao Kolhe, Mumbai -400 020 B-1304/1404, Bldg No.1, Mumbai -400 080 (Cross Objector) (Respondent) Assessee by : Shri Ajay Thakare Shri C Bohra Revenue by : Shri C S Sharma Date of Hearing : 26-09-2016 /Date of Pronouncement : 26-09-2016 ORDER , : PER AMIT SHUKLA, J.M.: 2 Prashant Arjunrao Kolhe ITA 4810/Mum/2014 ITA 5155/Mum/2014 aforesaid cross appeals has been filed by assessee as well as by revenue against impugned order dated 16.05.2014, passed by Ld. CIT(Appeals)-20, Mumbai for quantum of assessment passed under section 143(3) for assessment year 2010-11. We will first take-up assessee s appeal, vide which following grounds have been raised:- 1(a) On facts and circumstances of case, learned CIT(A) erred in confirming addition of Rs.3,04,238/- on account of suppression of sale proceeds of flat which was higher than value of determined by Stamp Duty Valuation Authority. 1(b) On facts and circumstances of case Ld CIT(A) failed to appreciate that consideration received on sale of flat was higher as compared to stamp duty valuation and there was no reason to disbelieve actual consideration received and resort to other sale instance in arriving at erroneous conclusion of suppression of sales. 1(c) On facts and circumstances of case condition and location of capital asset sold in question was vastly different as compared to capital asset considered for purpose of sale instance . 2. brief facts qua issue involved are that, assessee is individual who had purchased four flats in Rejoice building, Mulund (West), Mumbai. In first transaction assessee had purchased Flat No. 305 and 306 on 17.04.2005 and Flat No.303 and 304 on 2nd August, 2006. All four flats were sold by assessee during previous year relevant to assessment year 2010-11 on following sale price and dates:- Flat No. Sale Price Rs. Date of Sale 305 36,50,000 24/06/2009 306 36,50,000 24/06/2009 303 35,00,000 14/07/2009 304 25,00,000 14/07/2009 Assessing Officer observed that, first two flats which were sold on 24.06.2009 to one party was sold at much 3 Prashant Arjunrao Kolhe ITA 4810/Mum/2014 ITA 5155/Mum/2014 higher figure, whereas, other two flats sold after 20 days were sold at lesser prices. If areas of both flats are by and large same, then how assessee has sold other two flats at almost 20% of lesser price than first transaction of sale of two flats. He further noted that, assessee could not give proper satisfactory reply for reasons of sale of two flats at lower price. Solely on this premise he inferred that assessee had suppressed sales of subsequent two flats and accordingly, he estimated sale consideration of these two flats at Rs.73 lakhs, that is, price of two flats sold in first transaction and accordingly worked out short-term-capital-gain of Rs.3,04,238/- in following manner:- Total Sale consideration Rs. 73,00,000 Rs. 60 lacs shown by assessee and Rs. 13 lacs estimated as suppression Less: Expenses on transfer Rs. 72,750 Rs. 72,27,250 Less: Total cost of acquisition as given by assessee Rs. 69,23,012 Short Term Capital Gain Rs. 3,04,238 3. Ld. CIT(A), upheld action of Assessing Officer on ground that, no convincing explanation has been filed by assessee for selling second transaction of flats at lower price than earlier transaction of two flats. 4. Before us, Ld. Counsel for assessee, drew our attention to Sale Deeds of two flats and submitted that, Flat No.303 and 304 were sold at Rs.35 lakhs and Rs.25 lakhs and Stamp duty value of these two flats were determined at Rs.29,60,784/- and Rs. 24,51,382/- 4 Prashant Arjunrao Kolhe ITA 4810/Mum/2014 ITA 5155/Mum/2014 respectively. Thus, assessee has sold flats more than stamp value which is consonance with deeming provision of section 50C, because assessee had sold property at higher FMV stipulated under section 50C. Reasons for selling other two flats at lower price were that, these two flats lacked location/view advantage and also assessee wanted to get rid of these flats from said building as early as possible and, therefore, sale was made at comparable lower price. In any case, he submitted that, once flats have been sold more than purchase consideration and at higher FMV assessed under stamp duty valuation, then without there being any contrary material on record, or enquiry by Assessing Officer, sale consideration cannot be enhanced. 5. On other hand, Ld. DR strongly relied upon order of Assessing Officer and ld. CIT(A) and submitted that, if two flats in same building were sold for Rs.36.50 lakhs then how can there was difference in sale price, especially when flats are located in same building and were sold in and around same time. Thus, preponderance of probability does not favour assessee. 6. We have heard rival submissions, perused relevant finding given in impugned orders as well as material placed on record. assessee had purchased four flats in one building from M/s Nirmal Life Styles. date of agreement for purchase, purchase consideration, date of sale, sale consideration and value as per Stamp valuation of four flats are as under:- 5 Prashant Arjunrao Kolhe ITA 4810/Mum/2014 ITA 5155/Mum/2014 S Flat No./ Date of Purchase Date of Sale price FMV as per No. Area Purchase Price in Rs. Sale in Rs. as Stamp Duty As Per per Valuation Agreement Agreement (Rs.) 1 305 441 Sq. ft. 17.4.2005 14,90,000 24.06.2009 36,50,000 2 306 )53,55,210 519 Sq. ft. 17.4.2005 17,50,000 24.06.2009 36,50,000 3 303 525 Sq. ft. 02.8.2006 29,60,784 14.07.2009 35,00,000 29,78,820 4 304 435 Sq. ft. 02.8.2006 24,51,312 14.07.2009 25,00,000 23,76,990 From above, it can be seen that so far as two flats in dispute i.e. Flat No.303 and 304, same have been sold at slightly higher price than FMV assessed by Stamp duty authority as per stamp valuation. Thus, even under deeming provisions of section 50C it cannot be held that, assessee has suppressed sales. If sale price of two flats sold in second transaction was comparatively lower than sale price of two flats in first transaction, then same should have been starting point for conducting basic enquiry by Assessing Officer to ascertain sale price and to controvert sale price shown by assessee. At least some material or information should have been brought on record by AO to rebut that sale price shown by assessee is lower. Had there been case where sale price shown was lower than stamp duty valuation, then sale price would have been deemed to be value assessed under stamp duty valuation in accordance with section 50C. However, this is not case here as assessee s sale prices are evidenced by sale agreements placed in paper book and is also higher than FMV assessed. Thus, without any contrary material, we do not find any reason to uphold reasoning and view taken by authorities below that sale of two flats sold 6 Prashant Arjunrao Kolhe ITA 4810/Mum/2014 ITA 5155/Mum/2014 subsequently should be taken at same price on which two flats were sold 20 days earlier. Thus, addition made by Assessing Officer on account of short-term-capital-gain of Rs.3,04,238/- is deleted and sale consideration shown by assessee as per sale agreement of two flats, viz. flat no. 303 and 304 is to be taken as such. Accordingly, ground raised by assessee is allowed. 7. Now, we will take-up revenue s appeal, vide which various grounds have been raised with regard , firstly, denial of benefit under section 54(1); secondly, addition of Rs.3,04,328/- on account of Stamp duty valuation; and lastly, Rs.5 lakhs on account of unsecured loans. 8. At outset, Ld. Counsel submitted that, tax effect on disputed issues raised in grounds of appeal by revenue is less than Rs.10 lakhs. 9. Ld. DR also admitted that tax effects on disputed issues are below prescribed monetary limit of Rs.10 lakhs in light of latest CBDT Circular No.21 of 2015. 10. Thus, in wake of CBDT s Circular No. 21 of 2015 dated 10.12.2015, monetary limit prescribed for filing of appeal before Tribunal is Rs. 10 lakhs. Further it has also been clarified that this circular will apply on pending appeals also which is evident from para 10 of impugned Circular, which reads as under:- 10. This instruction will apply retrospectively to pending appeals to be filed henceforth in High Courts/Tribunals. Pending appeals 7 Prashant Arjunrao Kolhe ITA 4810/Mum/2014 ITA 5155/Mum/2014 below specified tax limits in para 3 above may be withdrawn/not pressed. Appeals before Supreme Court will be governed by instructions on this subject, operative at time when such appeal was filed . Thus, appeal of revenue is treated as dismissed as non-maintainable. 11. In result, appeal of assessee stands allowed and that of revenue dismissed. Order pronounced in open court on 26th September, 2016. Sd/- Sd/- (MANOJ K AGGARWAL) (AMIT SHUKLA) ACCOUNTANT MEMBER JUDICIAL MEMBER Mumbai, Date: 26th September, 2016Copy to:- 1) Appellant. 2) /The Respondent. 3) CIT(A) 28, Mumbai. 4) CIT 26, Mumbai 5) D.R. C Bench, Mumbai. 6) Copy to Guard File. By Order True Copy Dy./Asstt. Registrar I.T.A.T., Mumbai Chavan, Sr.PS Prashant Arjunrao Kolhe v. DCIT-26(2), Mumbai