TMI Blog2014 (3) TMI 62X X X X Extracts X X X X X X X X Extracts X X X X ..... e is upheld that reference should have been made by the Assessing Officer to the Departmental Valuation Officer (DVO) – thus, the matter remitted back to the AO with a direction that he refer the same to the DVO – Decided in favour of Assessee. Denial of brought forward loss excluding depreciation – Held that:- The assessee submits that during the financial year 2005-06, there was only re-constitution of the partnership firm by way of admission of partners and that no partner had retired - the assessee is correct in its claim - But as the factual position has not been considered by the Assessing Officer, the matter is remitted back to the Assessing Officer for fresh adjudication – decided partly in favour of Assessee. Unabsorbed depre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s Clothing Co. is a partnership firm. Originally Mr. Sanjiv Makkar and Sharmila Makkar were partners. 2. Mr. Rohit and Mr. Manoj Jain joined partners in the year 2004-05 (Paper Book page 98-101) 3. Mr. Sanjiv Makkar and Mrs. Sharmila Makkar resigned as partners and Mr. Ramesh Madan and Mr. Manoj Bhasin joined as partners on 15.09.2005 (Paper Book Page 102-106). 4. The property in dispute bearing No.479 Udyog Vihar Phase V Gurgaon was acquired by the firm on 08.11.2001 (Paper book Page 24). 5. A sale agreement was executed on 7th September 2005 for a sum of Rs.30 Lacs between Nexus Clothing Company and L P Garments Limited. The agreement was executed at Rs.30 lacs being than the stamp value on the given date. (Paper Book Page 32- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lacs of consideration mentioned in the sale deed do not pass between seller and buyer. In fact the seller makes Rs.30 lacs draft from his account gives to ex partners. (Paper book page 72-75). 18. These Rs.30 lacs draft are part of compromise deed. (Paper Book Page 67). 19. HSIDC registers the sale deed and issue allotment letter in name of L P Garments Pvt. Ltd. on the basis of application dated 09.11.2005. (Paper Book Page 25). 20. The A.O. has recorded in his order our statement that sale of property was done in 15.09.2005 and due to dispute and circumstances beyond our control the sale deed could not be registered. The fair market value as per prevailing circle rate as on 15.09.2005 is Rs.30 lacs only. 21. The valuation of p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation, condition and other attributes such as it occupation by tenant, any charge or legal encumbrances. 11. The question as to whether the assessee filed any objections before the Stamp Valuation Authority to dispute the valuation, or filed appeal or revision or made reference before any authority, court or the High Court under sub section (2) (b) of Section 50 C of the Act is not of any relevance in this case, as the AO himself observed that the assessee did not dispute the stamp valuation before the Stamp Valuation Authority. There may be several reasons for the purchaser not to file such objection. A purchaser may not go into litigation, and pay stamp duty, as fixed by the Stamp Valuation Authority, which may be over and above the fa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion with the provisions of Section 50 C (1) of the Act. He also found that in the present case both ingredients of provisions of Section 50 C (2) are present, which made it necessary for the AO to refer the matter for valuation to DVO in accordance with provisions of Section 55-A of the Income Tax Act. The ITAT in allowing the appeal committed serious error of law in finding that in such circumstances and facts of the case, the value of the capital asset as determined by the approved valuer for the month of October 2004 at Rs. 33,77,186/- has to be taken as the sale consideration and similarly the value taken by the approved valuer as on 1.4.1981 has to be taken for the purposes of arriving at indexed cost of acquisition. The ITAT failed t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Assessing Officer, we set aside this issue also to the file of the Assessing Officer for fresh disposal in accordance with the law. 10. Ground No.3 is on the issue of disallowance of donation of Rs. 4,600/-. In view of the smallness of the amount, the ld. Counsel for the assessee submitted that he would not press the ground. Hence, the same is dismissed as not pressed. 11. In the result, the appeal of the assessee is allowed in part. ITA No.157/Del/2013. 12. The revenue's appeal is on the following grounds:- 1. On the facts and in the circumstances of the case, the Ld. CIT (A) has erred in law and on facts in giving a relief of Rs.12,86,506/- on account of unabsorbed depreciation out of total brought forward losses o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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