TMI Blog2009 (1) TMI 333X X X X Extracts X X X X X X X X Extracts X X X X ..... unting year relevant to asst. yr. 2004-05, the assessee had sold a property which was jointly held by him with his wife Smt. K.M.M. Sithi Fousia Beevi. The sale consideration was shown at Rs. 53,56,200 and the long-term capital gain was computed at Rs. 32,12,013. The assessee had 50 per cent share in this property and, therefore, Rs. 15,06,007 was offered for tax as long-term capital gain. 3. The AO invoked the provisions of s. 50C of the Act and took the full value of consideration at Rs. 74,93,130. The assessee's share in the long-term capital gain was accordingly computed by the AO at Rs. 26,74,471. The CIT(A) confirmed the AO's action and his order has been challenged by the assessee in the present appeal. 4. Shri R. Vijayaraghavan, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ven in the context of s. 52(2) and are not applicable to the present case. - that no claim was made by the assessee before the AO saying that the value adopted by the stamp valuation authority exceeded the fair market value of the property on the date of transfer. - that, in the circumstances, the AO was under no obligation to refer the valuation of the property to valuation officer. - that there was no need to remit the matter back to the file of the AO as suggested by the learned Authorised Representative. 6. We have considered the rival submissions in the light of material on record and the precedent cited. The first argument of the learned Authorised Representative was that s. 50C and s. 52(2) of the Act are in pari materia with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ived or accruing as a result of such transfer. (2) Without prejudice to the provisions of sub-s. (1), where- (a) the assessee claims before any AO that the value adopted or assessed by the stamp valuation authority under sub-s. (1) exceeds the fair market value of the property as on the date of transfer; (b) the value so adopted or assessed by the stamp valuation authority under sub-s. (1) has not been disputed in any appeal or revision or no reference has been made before any other authority, Court or the High Court, the AO may refer the valuation of the capital asset to a valuation officer and where any such reference is made, the provisions of sub-ss. (2), (3), (4), (5) and (6) of s. 16A, cl. (i) of sub-s. (1) and sub-ss. (6) and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aluation authority is excessive." 8. The CIT(A) rejected the plea by saying that there was no need for the AO to obtain the assessee's approval for invoking the provisions of s. 50C of the Act. 8.1 In our opinion the approach of the CIT(A) is unsustainable. It is true that s. 50C(1) does not require the AO to issue a show-cause notice to the assessee before invoking the deeming provisions of s. 50C(1). But if an assessee claims that he did not get a chance to avail of the opportunity provided by the statute under sub-s. (2), it need not be summarily rejected. 8.2 The sub-s. (1) of s. 50C is a deeming provision and sub-s. (2) gives a concession to the assessee in the form of an opportunity to claim that the value adopted for stamp duty ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ical consideration were pitted against each other, the cause of substantial justice deserved to be preferred. 11. It also needs to be mentioned here that in the case of Meghraj Baid vs. ITO (2008) 114 TTJ (Jd) 841 : (2008) 4 DTR (Jd)(Trib) 509 the Tribunal" held that the word 'may' used in sub-s. (2) of s. 50C signified that in case the AO was not satisfied with the explanation of the assessee, he 'should' refer the matter to the DVO. In other words, the Tribunal was of the view that 'may' be read as 'should'. 12. In view of above discussion, we are of the considered opinion that the matter needs to be remitted back to the file of the AO in both the cases. He should re-examine the issue in the light of the directions given in the above ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
