TMI Blog2009 (1) TMI 920X X X X Extracts X X X X X X X X Extracts X X X X ..... counting 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 ₹ 53,56,200 and the long-term capital gain was computed at ₹ 32,12,013. The assessee had 50 per cent share in this property and, therefore, ₹ 15,06,007 was offered for tax as long-term capital gain. 3. The AO invoked the provisions of Section 50C of the Act and took the full value of consideration at ₹ 74,93,130. The assessee's share in the long-term capital gain was accordingly computed by the AO at ₹ 26,74,471. The CIT(A) confirmed the AO's action and his order has been challenged by the assessee in the present ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Section 50C and Section 52(2) of the Act are in pari materia with each other, and ther ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ration received or accruing as a result of such transfer. (2) Without prejudice to the provisions of Sub-section (1), where: (a) the assessee claims before any AO that the value adopted or assessed by the stamp valuation authority under Sub-section (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-section (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-sections (2), (3), (4), (5) and (6) of Section 16A, C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itioner begs to submit that he was afforded no opportunity by the learned ITO to prove that the valuation by the stamp valuation 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 Section 50C of the Act. 8.1 In our opinion the approach of the CIT(A) is unsustainable. It is true that Section 50C(1) does not require the AO to issue a show-cause notice to the assessee before invoking the deeming provisions of Section 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-section (2), it need not be summarily rejected. 8.2 The Sub-section (1) of Secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lteram partem, is the bedrock of all quasi judicial determinations. 10. And, the Supreme Court has aptly cautioned, saying that when substantial justice and technical 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 v. ITO (2008) 114 TTJ (Jd) 841: (2008) 4 DTR (Jd)(Trib) 509 the Tribunal held that the word 'may' used in Sub-section (2) of Section 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 dis ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
