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2019 (4) TMI 756 - ITAT AMRITSARReference u/s. 55A to DVO - capital gain u/s. 50 to be arrived at with reference to the ‘full value of the consideration’ - FMV determination of depreciable assets - HELD THAT:- The matter, accordingly, vacating the findings by the assessing and the first appellate authority, is set aside to the file of the AO for adjudication of this issue afresh in light of the foregoing per a speaking order, issuing definite findings of fact. The assessee claiming non-grant of opportunity by the VO, shall be allowed reasonable opportunity of hearing before him, i.e., where his report becomes relevant. This is even otherwise necessary as valuation is a technical matter. It may though be clarified that a failure to explain the transaction value may invite adverse inference – the adoption of fmv, or any other value, should only be a clear inferential finding of that being the actual consideration. It is for this reason that it stands clarified that the matter should be closed where no tax advantage is found. In K. P. Verghese v. ITO [1981 (9) TMI 1 - SUPREME COURT] read down section 52(2) (since omitted) deeming the fmv as the full value of the consideration on the shortfall in the latter exceeding 15% by holding that the same shall not impinge on a honest and bona fide transaction. The parties in that case were related, and the asset, personal. In the instant case, though the parties are related, the assets are business assets. Also firms are separate persons under the Act, so that there could be no question of the emotions having influenced the transaction, which is commercial in nature. The said decision should, in my view, be regarded as final arbiter in the matter. That is, only on the bonafides being impugned, as where there is a tax avoidance coupled with no reasonable explanation with regard to the stated consideration, that the same could be disturbed. And, further, only consistent with the irresistible inferential findings - assessee’s and the Revenue’s appeal is allowed for statistical purposes
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