TMI Blog2019 (1) TMI 844X X X X Extracts X X X X X X X X Extracts X X X X ..... In such situation no addition ought to be made. In the present case, variation is only 2.55% which is less than 10%. FMV adopted by the assessee in the sale deed itself does not require to be replaced, with the help of deeming fiction under section 50C(2). This ground of appeal and delete addition from the full sale consideration for the purpose of computing capital gain in the hands of the assessee. - Appeal of the assessee is allowed. - ITA No.697/Ahd/2017 - - - Dated:- 15-1-2019 - SHRI RAJPAL YADAV, JUDICIAL MEMBER AND SHRI WASEEM AHMED, ACCOUNTANT MEMBER For The Assessee : Shri Manoj Acherya, AR For The Revenue : Shri B.P. Srivastava, Sr.DR ORDER PER RAJPAL YADAV, JUDICIAL MEMBER: Assessee is in ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on sale of property was determined by taking full sale consideration at ₹ 1,02,55,000/- as against ₹ 1,49,31,000/- adopted by the AO. Dissatisfied with this action of the ld.CIT(A), assessee is in appeal before the Tribunal. 4. The stand of the assessee is that once a reference under section 50C(2) is being made to the DVO, he was required to determine fair market value of the property on the date of sale. His view point is estimated one and element of guess work is always involved in the value determined by the DVO. Since the variation between the actual sale consideration received by the assessee and the one determined by the DVO is only ₹ 2,55,000/-, which is just 2.55%, then such variation cannot be added to the in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere is no dispute to the fact that the assessee received an amount of ₹ 19,00,000 as sale consideration on account of sale of basement Nos. 2 and 3 at Rahul Chambers. There is also no dispute to the fact that the stamp valuation authorities have adopted the value at ₹ 28,73,000 for the purpose of stamp duty. There is also no dispute to the fact that on being objected by the assessee for substitution of the same figure under s. 50C(2) of the Act, the AO referred the matter to the DVO who determined the FMV of the property on the date of sale at ₹ 20,55,000. We find that the learned CIT(A) upheld the action of the AO in substituting the value determined by the DVO on the ground that the assessee has not objected to the valua ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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) a sub-ss. (6) and (7) of s. 23A, subs. (5) of s. 24, s. 34AA, s. 35 and s. 37 of the WT Act, 1957 (27 of 1957), shall, with n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o such reference as they apply in relation to a reference made by the AO under sub-s. (1) of s. 16A of the WT Act. We find the provisions of s. 16A of the WT Act deal with reference to the Valuation Officer by the AO. Similarly s. 23A(1)(i) inter alia confers right of appeal to the CIT(A) to any person objecting to any order of the DVO under s. 35 having the effect of enhancing the valuation of any asset or refusing to allow the claim made by the assessee under the said section. We find the provisions of s. 23A(6) and s. 23A(7) and s. 24(5) of the WT Act read as under : 23A(6) If the valuation of any asset is objected to in any appeal under cl. (a) or cl. (i) of sub-s. (1) the CWT(A) shall,- (a) in case where such valuation has been made b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... subject to appeal and the same is not final. In the instant case we find that as against the value of ₹ 28,73,000 adopted by the stamp valuation authorities, the DVO has determined the FMV on the date of transfer at ₹ 20,55,000. This itself shows that there is wide variation between the two values. Further, the value adopted by the DVO is also based on some estimate. We find that the difference between the sale consideration shown by the assessee at ₹ 19,00,000 and the FMV determined by the DVO at ₹ 20,55,000 is only ₹ 1,55,000 which is less than 10 per cent. The Courts and Tribunals are consistently taking a liberal approach in favour of the assessee where the difference between the value adopted by the assess ..... X X X X Extracts X X X X X X X X Extracts X X X X
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