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2022 (7) TMI 629 - ITAT MUMBAICapital gain - AO had considered the market value of the property based on the value fixed by the builder i.e. Sudarshan Housing and Finance Ltd., which is relevant for the purpose of levy of transfer charges payable to the builder - HELD THAT:- As it is a fact that assessee had filed valuation report dated 16/09/2014 wherein the valuer had valued impugned property at Rs.30,47,633/- and assessee had sold the property for Rs.31,00,000/-. When this valuation report is placed on record, it is incumbent on the part of the lower authorities to either dispute the said valuation report or refer the matter to the ld. Department Valuation Officer (DVO) in terms of Section 50C(2) to determine the fair market value of the property. We find that assessee had indeed objected to adoption of market value of Rs.56,07,907/- and had indeed requested for reference to DVO before the ld. AO. This request has been rejected by the lower authorities without any basis which action, in our considered opinion, is grossly against the provisions of the Act. Hence, in order to meet the ends of justice, we deem it fit and appropriate to remand this issue to the file of the ld. AO, with a direction to refer the valuation of subject mentioned property to the ld. DVO for determination of fair market value and also to consider the value fixed by the stamp duty authority in terms of Section 50C of the Act as on the date of sale and determine the sale consideration as per law. Accordingly, the ground No.1 raised by the assessee is allowed for statistical purposes. Disallowance of brought forward depreciation - Action of the lower authorities ignoring the revised return along with revised computation of income filed by the assessee wherein the assessee seem to rectify the error in the claim of unabsorbed depreciation of earlier year - HELD THAT:- We find that the ld. CIT(A) had accepted to the fact that there was an error in the original return filed by the assessee with regard to set off of unabsorbed depreciation and the same was duly rectified by way of a revised return and revised computation of income. From the perusal of the manner in which total income has been determined by the ld. AO in the assessment order, we find that the ld. AO had completely ignored the revised return of income filed by the assessee as it was filed belatedly. AO accordingly has also ignored the revised computation of income filed by the assessee during the course of assessment proceedings - we find that there cannot be any grievance to the assessee in the instant case as it is an admitted fact that there was an error committed by the assessee in the set off of unabsorbed depreciation for A.Y.2006-07 and A.Y.2010-11 to the total extent of Rs.8,51,508/-. Hence, this error needs to be brought in the computation of total income by the ld. AO which has been rightly done by the ld. AO. Hence, we uphold the action of the ld. AO in this regard. Accordingly, the ground No.2 raised by the assessee is dismissed.
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