TMI Blog2023 (1) TMI 955X X X X Extracts X X X X X X X X Extracts X X X X ..... y applying section 50C ignoring all other provisions. Therefore, we direct the ld. Assessing Officer to calculate the capital gain assessable in the hands of the assessee on the basis of computation made by the assessee (extracted supra). The capital gain will be calculated at Rs.47,77,384/-, out of that assessee has already calculated and shown at Rs.11,22,636/-. The addition is to be restricted to Rs.36,54,748/- instead of Rs.54,84,714/-. To be very specific, the capital gain including the gain disclose d by the assessee is directed to be calculated in the hands of the assessee at Rs.47,77,384/-. The credit of already shown of Rs.11,22,636/- is to be given to the assessee (Rs.47,77,384/- minus Rs.11,22,636/-) = net Rs.36,54,748/-. Appeal of the assessee is allowed. - I.T.A. No. 86/KOL/2021 - - - Dated:- 16-12-2022 - Shri Rajpal Yadav, Vice-President (KZ) AND Shri Girish Agrawal, Accountant Member For the Assessee : Shri S.K. Tulsiyan, Advocate and Smt. Mita Rizvi For the Revenue : Smt. Ranu Biswas, Addl. CIT (D.R.) ORDER PER RAJPAL YADAV, VICE-PRESIDENT (KZ):- The assessee is in appeal before the Tribunal against the order of ld. Commissioner of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fected alike. All the offices/ establishments and Trains remained shutting on account of coronavirus pandemic. I am also 74 years old and could not visit Kolkata during this pandemic situation. 5) It was only at the last week of January, 2021 that I could come to Kolkata and consult a Senior Lawyer at Kolkata and on his advice that the order of the Ld. C.I.T.(A) is an appealable order, necessary papers/records relating to the case were handed over to him for preparation and filing of the appeal before this Hon ble Tribunal. It was then found that in the papers handed over to the Senior Lawyer, there was no assessment order in relation to this appeal for A.Y. 2014-15 which was essential for filing an appeal before the Hon ble Tribunal. 6) Being faced with such a situation, the erstwhile A.R. was immediately contacted over phone who denied to have retained any such order with him and rather stated to have handed over all the income-tax related papers to me. Thus letter was written to the Ld. I.T.O., Ward-3(3), Darjeeling requesting for certified copy of the assessment order for A.Y. 2014-15 which was received on 15/02/2021. Thereafter I had to visit Kolkata from Darjeeling ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be construed to be reasonable. 11. On the facts and circumstances as explained above, your appellant could not expect to have derived any mileage on account of the appeal getting delayed for filing and hence the appellant can be said to have been prevented by a sufficient cause from filing the appeal on a date earlier that the same is filed before this Hon ble Tribunal. Hence, it is prayed that the delay may kindly be condoned and the appeal may kindly be admitted for adjudication on merits of the case to meet the ends of justice. An Affidavit in this connection is also filed along with this petition for condonation of delay. Yours faithfully, Sd/- (PURAN PRADHAN) 3. With the assistance of ld. Representative, we now go through the record carefully. The ld. Counsel for the assessee submitted that the impugned order was passed on 06.08.2019 and it was received on 20.08.2019. The papers were given to Shri B.K. Pradhan, ld. Authorized Representative, who assured filing this appeal within the time. Somehow, that the appeal was not filed by Mr. Pradhan on behalf of the assessee. This fact came to the notice of assessee only in March, 2020 and there after C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the assessee along with his co-owners had handed over the possession of the landed property to the developer M/s. Arjun Grace Homes on 28.11.2013 with the registering of Development Agreement before the District Sub- Registrar, Darjeeling and thereby creating liability to pay capital gain on Transfer of capital assets as define d in section 2( 27) of the I.T . Ac t, 1961. Therefore, the long-term capital gain in the h and s of the assessee r .w.s. 50(C) of the I.T. Act, 1961 is computed as under:- Cost of the property as on 06.0 8.1 979 Rs.4,500/- Index cost of acquisition of the proper ty as on 01.04.2014 Rs.4,500 x 939/100 Rs.42,255/- Assessee s sh are in the said property i.e. 28.16% of Rs. 42,255/- Rs.11,899/- Total sale con side ration Rs.2,35,05 ,857/- Assessee s sh are in the said property i.e. 28.16% of Rs.2,35,05 ,85 7/- Rs.66,19,2 49/ - Long term capital gain = Sale con sideration less index cost of acquisition = R s.66,1 9,2 49/- min ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rs.1,86,94 ,154/ Assessee s share [28.16%] Rs.52,64,2 74/ - Fair market value of the impugned property as on 01.04.1981 Rs.1,84,13 5/- Assessee s sh re [28.16%] Rs.51,852/- Indexed cost of acquisition of the assessee s sh are in the impugned property as on 01.04.2014 (R s.51,8 52 x 939/100) Rs.4,86,89 0/- Long T erm Capital Gain = Sale con sideration le ss Indexed cost of acquisition = Rs.52 ,64 ,27 4/- minus Rs.4 ,86 ,890/- = Rs.47 ,77 ,38 4/- In view of the above, it is prayed most respectfully that taking into con sideration the Valuation Report of the DVO dated 26.04.2019 , the long-term capital gain arising in the hand s of the assessee shall be R s.47,77,384/- and not Rs.66,07,3 50/ -, as calculated by the AO and the ref ore, addition made on account of alleged long- term capital gain shall be restricted to Rs.3 6,54,748/- [i.e. R s.47,77,384/- minus Rs.11 ,22 ,636/- (LTCG as declared by the assessee in his return of income filed u/s 148 of the Act)] only, inst ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he first proviso shall apply only in a case where the amount of consideration, or a part thereof, has been received by way of an account payee cheque or account payee bank draft or by use of electronic clearing system through a bank account or through such other electronic mode as may be prescribed, on or before the date of the agreement for transfer: Provided also that where the value adopted or assessed or assessable by the stamp valuation authority does not exceed one hundred and five per cent of the consideration received or accruing as a result of the transfer, the consideration so received or accruing as a result of the transfer shall, for the purposes of section 48, be deemed to be the full value of the consideration. (2) Without prejudice to the provisions of sub-section (1), where- (a) the assessee claims before any Assessing Officer that the value adopted or assessed or assessable 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 or assessable by the stamp valuation authority under sub-section (1) has not been disputed in any appeal or re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation. In such situation, sub-clause (2) is provided i.e. in case an assessee disputes deeming of that full sale consideration, then a reference would be made to the DVO for determination of the fair market value required to be adopted on the date of transaction. 15. In the light of above, if we examine the facts of the present case, then it would reveal that ld. Assessing Officer in the assessment order adopted total sale consideration at Rs.2,35,05,857/-. The DVO in its report submitted on 26.04.2019 determined this sale consideration at Rs.1,86,94,154/-. The calculations are available in Annexure-1 of the DVO s report available at pages no. 66 67 of the paper book. We have gone through this exercise. 16. The second dispute raised by the ld. Counsel for the assessee relates to cost of acquisition. The ld. Assessing Officer in the computation of capital gain took the cost of the property as on 06.08.1979 at Rs.4,500/-. He took the index cost at Rs.42,255/- and worked out share of the assessee at Rs.11,899/-, whereas according to the valuation submitted by the assessee, the fair market value of the impugned property as on 01.04.1981, i.e. the appointed date for calculating ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oes not have any meri t. Accordingly, the addition of Rs.54,54,7 14/ - made by the A.O. is hereby confirmed and the ap peal is dismissed. 5. In the result, appeal is dismissed . 17. The assessee has brought to the notice of the ld. CIT(Appeals), the report of DVO, his submission which has duly been noticed by the ld. 1s t Appellate Authority, but he failed to take cognizance of this report. The reference to the DVO was made during the pendency of the assessment proceeding. In such situation, its cognizance ought to have been taken. Therefore, ld. 1s t Appellate Authority failed in its duty to follow the correct procedure required for the disposal of the appeal. Similarly both the authorities have erred in rejecting the calculation submitted by the assessee regarding cost of acquisition. They have calculated the long-term capital gain simply by taking into consideration the stamp duty valuation by applying section 50C ignoring all other provisions. Therefore, we direct the ld. Assessing Officer to calculate the capital gain assessable in the hands of the assessee on the basis of computation made by the assessee (extracted supra). The capital gain will be calculated at Rs.4 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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