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2018 (10) TMI 1849 - AT - Income TaxLong term capital gain - Reference to DVO - whether it is discretion of the AO to refer or not to refer to DVO for valuation of a capital asset u/s Section 50C(2) in the peculiar facts of the case ? - assessee had sold its ancestral property at Etah (U.P) for a consideration of ₹ 36,00,000/- whereas for the purpose of payment of stamp duty the property was valued at ₹ 3,06,86,000/- - HELD THAT:- AO neither discussed the contentions of the assessee for taking actual consideration as fair market value of the property sold nor referred the matter to the DVO as was required U/s 50C(2) despite specific prayer made by the assessee at the first stage. AO has also not found or alleged that the assessee received any excess amount over the sale consideration mentioned in the deeds. On the failure of the AO to follow the course as prescribed under section 50C(2) no infirmity in the order of the CIT(A) in quashing the addition made by the AO. Department cannot be allowed a second inning, by sending the matter back to AO, enabling it to fill in the lacunae and shortcomings of the assessment order, and putting the assessee virtually to face a re-trial for no fault of hisandto again put him to prove before the AO that the sale consideration was the “fair market value” of the property sold by him. This would amount to giving life to an order which on the basis of facts on records is unsustainable in law. In view of our findings in the cases of ‘Tarun Agarwal [2018 (8) TMI 1989 - ITAT AGRA] and ‘Dr. Sanjay Chaubey (HUF) [2018 (7) TMI 133 - ITAT AGRA] and ANIMA INVESTMENT LTD. [2000 (1) TMI 150 - ITAT DELHI-D] with LALITHA KARAN, HYDERABAD [2017 (1) TMI 505 - ITAT HYDERABAD] we hold that at this stage, the AO cannot be allowed a second inning, by sending the matter back enabling him to make good his own shortcomings and putting the assessee virtually to face a re-trial for no fault on his part and to again prove before the AO that the sale consideration was the "fair market value" of the property sold by him. This would amount to giving a lease of life to an order which on the basis of facts on records is unsustainable in law. Failure of the AO to follow the procedure as prescribed under section 50C(2) in particular, we do not find any infirmity in the order of the CIT(A) in quashing the addition made by the AO. - Decided against revenue.
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