TMI Blog2018 (1) TMI 859X X X X Extracts X X X X X X X X Extracts X X X X ..... er Appellant by : Sh. Gurjeet Singh, Adv. Respondent by : Sh. Ravi Kant Gupta, Sr.DR ORDER Per O. P. Kant, A. M. This appeal preferred by the assessee is directed against order dated 28/03/2013 passed by the Ld. Commissioner of Income-tax (Appeals)-VIII, New Delhi [ in short the Ld. CIT-(A) ] for assessment year 2009-10 raising following grounds: 1. Because the action for denying the admission of Additional Evidence to issue in dispute is being challenged on facts law since defeating the case of substantial justice. 2. Because the action for upholding the addition of ₹ 1,15,44,888/- attributable to the difference in the valuation qua the declared amount is being challenged on facts and law. 2. Briefly stated facts of the case as culled out by the lower authorities are that in the return of income filed for the year under consideration, the assessee claimed capital loss of ₹ 26,28,113/- on sale of property, namely, No. BG-5, Ansal Plaza, HUDCO, New Delhi. In the scrutiny proceedings under section 143(3) of the Income-tax Act, 1961 (in short the Act ), the assessee stated that the said property was purchased on 09/07/2005 for a c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en specified. He submitted that for the purpose of computing the capital gain cost of acquisition of the asset and any expenditure incurred in connection with transfer of the said is required to be deducted from the full value consideration received or occurring as a result of the transfer of the capital asset. 3.2 He further submitted that in case of capital asset being land or building or both the full value consideration could have been substituted by the value adopted or assessed by the stamp valuation authority in accordance with the provision of section 50C of the Act. He submitted that as per the provisions of Section 50C existed during relevant period, in case the value of the land or building or both was less than the value adopted or assessed by the stamp valuation authority then, value so adopted or assessed shall for the purpose of Section 48 of the Act was deemed to be full value consideration received or accruing as a result of the transfer. He submitted that in the case of the assessee, the property was transferred on agreement to sale and it was not registered with the stamp valuation authority so no value was assessed or adopted by the stamp valuation authority ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the reference under section 55A of the Act could be made in the circumstances occurring in section 45(4) and 45(1A) of the Act. In the case of Dev Kumar Jain (supra), the Hon ble High Court of Delhi following the decision in the case of Smt. Nilofer I Singh (supra) held that the actual sale consideration recorded in the agreement to sale could not be substituted by the value of the property arrived at by the DVO under section 55A for the purpose of computing the capital gains. In the case of CIT Vs. Gauranginiben S. Shodhan INDL (supra) , the Hon ble Gujarat High Court has given similar finding that reference to DVO for ascertaining the fair market value of the capital asset as on the date of the sale in the case would be wholly redundant. 3.5.1 We are bound to follow the ratio laid down in above decisions and accordingly the full value of consideration received by the assessee of ₹ 2,50,000/- cannot be replaced by the fair market value of ₹ 3,91,53,000/- determined by the Ld. DVO. But we also note that as far as transfer of capital assets being land or building or both are concerned, a special provision i.e. section 50C of the Act has been introduced w.e.f. 01/0 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1957 (27 of 1957), shall, with necessary modifications, apply in relation to such reference as they apply in relation to a reference made by the Assessing Officer under sub-section (1) of section 16A of that Act. Explanation 1.-For the purposes of this section, Valuation Officer shall have the same meaning as in clause (r) of section 2 of the Wealth-tax Act, 1957 (27 of 1957). Explanation 2.-For the purposes of this section, the expression assessable means the price which the stamp valuation authority would have, notwithstanding anything to the contrary contained in any other law for the time being in force, adopted or assessed, if it were referred to such authority for the purposes of the payment of stamp duty. 3.5.2 Thus, sub-section (1) creates a deeming fiction under which sale consideration received or occurring as a result of the transfer of land or building or both, can be replaced by the value adopted or assessed or assessable by the stamp valuation authority for the purpose of payment of stamp duty in relation to such transfer. Further, subsection (2), permits the assessee to dispute such valuation adopted by the state stamp valuation authority and ..... 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