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2018 (6) TMI 1651 - ITAT MUMBAIDetermining the LTCG as per the deeming provisions of Sec. 50C - as per assessee ‘reserve price’ of the property was to be taken as that which was applicable on 27.08.2009 i.e the date on which the ‘agreement to sell’ was executed - HELD THAT:- As is discernible from the records, the requisite conditions envisaged in the provisos to Sec. 50C appears to have been satisfied by the assessee viz. (i). that, the date of the agreement fixing the amount of consideration and the date of registration for the transfer of the property are not the same; and (ii). that, part of the sale consideration as claimed by the assessee was received by the assessee by way of account payee cheques, on and before the date of the agreement for transfer. However, at the same time, we also cannot remain oblivious of the fact that the ‘agreement to sell’, dated 27.08.2009 was never filed by the assessee in the course of the proceedings before the lower authorities, and was in fact furnished for the very first time before us. Matter requires to be restored to the file of the A.O, who shall remain at a liberty to verify the veracity of the ‘agreement to sell’, dated 27.08.2009, as well as the claim raised by the assessee on the basis of the same to bring its case within the realm of the provisos to Sec. 50C. In case, the A.O is satisfied with the genuineness of the ‘agreement to sell’, and the claim raised by the assessee on the basis of the same are found to be in order, then, he shall redetermine the LTCG in the hands of the assessee u/s 50C in terms of our aforesaid observations. Entitlement for claim of deduction under Sec. 54F in respect of an investment that was made by him towards purchase of a property, vide a registered agreement dated 10.07.2013 - HELD THAT:- The said claim was never raised by the assessee before the lower authorities. The assessee in support of his aforesaid entitlement towards deduction under Sec.54F had placed on record the copy of the ‘purchase deed’, dated 10.07.2013. Admittedly, an A.O in the backdrop of the judgment of the Hon’ble Supreme Court in the case of Goetze (India) Ltd. Vs. CIT [2006 (3) TMI 75 - SUPREME COURT] is not vested with any powers to entertain a claim for deduction/relief raised by the assessee, except for those raised either in his original return of income or through a revised return. However, we are of the considered view that as observed by the Hon’ble High Court of Bombay in the case of CIT Vs. Pruthvi Broker and Share Holders Ltd [2012 (7) TMI 158 - BOMBAY HIGH COURT] no such restriction is placed on the appellate authorities for entertaining an additional claim of the assessee. Accordingly, we restore the matter to the file of the A.O, with a direction to him to consider the said claim of the assessee in the course of the ‘set aside’ proceedings. Needless to say, the A.O shall in the course of the ‘set aside’ proceedings afford a reasonable opportunity of being heard to the assessee, who shall remain at a liberty to substantiate his aforesaid claim of deduction on the basis of supporting documentary evidence. Not allowing deduction of the ‘cost of acquisition’ of the property while computing the LTCG on the sale of the property under consideration - HELD THAT:- We find ourselves to be in agreement with the said contention. Admittedly, the assessee had failed to place on record the copy of the ‘purchase deed’ which would had supported the ‘cost of acquisition’ of the property under consideration. It is the claim of the assessee that the property under consideration was an ancestral property that was acquired by him alongwith the other four co-owners prior to 01.04.1981. Accordingly, the assessee has before us relied on a ‘Valuation report’ of a government approved valuer, as per which the ‘Fair Market Value’ of the property under consideration on 01.04.1981 u/s 55(2)(b)(ii) is stated to be ₹ 1,68,807/-. As the said ‘valuation report’, dated 18.02.2018 was not filed with the A.O in the course of the assessment proceedings, therefore, we restore the issue as regards determination of the ‘cost of acquisition’ of the property to his file. The A.O shall in the course of the ‘set aside’ proceedings remain at a liberty to verify the ‘cost of acquisition’ of the property under consideration - Assessee shall be afforded a reasonable opportunity of being heard and therein substantiate his aforesaid claim in the course of the ‘set aside’ proceedings. - Appeal of the assessee is allowed for statistical purposes
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