9911796707
TMI Blog2012 (9) TMI 682X X X X Extracts X X X X X X X X Extracts X X X X ..... e transfer of immovable property took place in AY 2003-04 and as such the provision of section 2(47) will apply". 1b. "On the facts and in the circumstances of the case the Ld. CIT(A) failed to appreciate that going by the sequence of events and as per the Award of Arbitration between transferor and transferee, which was accepted by both the parties, the transfer of immovable property crystallized in AY 2003-04 and as such the provision of section 2(47) of the Income Tax Act will apply". 1c. "On the facts and in the circumstances of the case, the Ld. CIT(A) failed to appreciate that as the transfer of immovable property took place during the AY 2003-04, the provision of section 50C applicable from AY 2003-04 will be attracted wherever consideration shown by the assessee is less than the value as per the records of Stamp Duty Authority". 1d. "On the facts and in the circumstances of the case, the Led. CIT(A) failed to appreciate that from the AY 2003-04 regarding transfer of immovable property as per provisions of section 50C where the consideration for transfer shown by the assessee is less than the value adopted for stamp duty purposes to arrive at the capital gain forme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... @ Rs. 1,800/- per sq. mt. The assessee, on signing of the MOU and having taken almost the entire sale consideration at the time of signing of the MOU, applied for the requisite NOC from the Appropriate Authority, under the provisions of Chapter XX-C of the Income Tax Act and received the same on 16-12-1998 (copy of the NOC was provided by the assessee during the course of the hearing). It is seen from the orders of the revenue authorities, that the final payment and documented transfer took place on 20-09-2002. 5. In these sequence of events, the AO disallowed the valuation adopted by the assessee and recomputed the value of land as per the provisions of section 50C. The AO based his computation on general rates as per the stamp duty ready reckoner and arrived at the rate of Rs. 8,800/- per sq. mt. and thus arrived at the transfer figure of Rs. 213,24,94,518/- in place of Rs. 56,78,52,782/- taken by the assessee as per its MOU dated 31-07-1998, thus arrived at the long term capital gains figure of Rs. 226,46,41,736/-. On arriving at this figure, the AO reopened the assessment proceedings under section 147, which were unsuccessfully agitated by the assessee before the first appella ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such valuation was made by the local Stamp Duty authorities in respect of the said property The Assessing Officer had repeatedly averred to the order for the A.Y. 2005-06 where it was held that the value as calculated in terms of the section 50C must be adopted as the sale value The opinion of the Assessing Officer was that had the interested parties approached the Stamp Valuation Authority for the purpose of valuation during the relevant period, a different value would have been there. Admittedly this property had been valued for Stamp Duty purpose by the Stamp Authorities in January 2000 when it was registered on 10/1/2000 and there is no provision in law to get it valued again I am in agreement with the submission of the appellant that Section 50C does not empower the Assessing Officer to adopt any or alter any value for the purpose of the Stamp Duty payment for a property other than what is adopted by the authorities. The statute has not empowered the Assessing Officer to fix such value if it has not been assessed or adopted by authorities or to suggest in any manner as to what, should be the value for the purpose or what should the assessee in the given circumstances while det ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... consideration is whether the AO was within his legal authority to import the figure of stamp duty valuation without actually referring to them and that too in a case when certificate u/s 269 UL(3) had been obtained way back on 16-12-1998. We have seen from the order of the AO, that the expression used by the AO are "... it transpires that the valuation as per stamp authority, which is prescribed as per the provisions of section 50C can be one of the parameters to arrive at the full value of the property that is to be transferred". We, are therefore, in agreement with the assessee that the observation made by the AO in para 7.18 of the assessment order is basically a surmise. On the other hand, we endorse the findings of the CIT(A) that "the transfer of the land has to be considered on occurring in the year 2000, when the provisions of section 50C were not in force". 11. In the light of this, we do not find any merit in the appeal filed by the department, we therefore, uphold the decision of the CIT(A) that the capital gains computed by the AO on the basis of valuation adopted as per section 50C was totally unjustified and the enhancement made on capital gains be deleted. & ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... acts narrated by the Assessing Officer it could he seen that the appellant had received Rs 136 Crores during the relevant year which is less than 10% of the total consideration, for the said property. The appellant had received more than 90% of the consideration prior to FY 2005-06. The Assessing Officer had not brought any materials to substantiate his finding that he property was conveyed during the FY 2005-06. The appellant through its submissions had amply demonstrated that the property had been conveyed prior to FY 2005-06, which has been reinforced by the findings of the CIT(A) for the AY 2005-06. In view of the above, it is held that the Assessing Officer was not justified in taxing the capital gain erroneously shown by the appellant as taxable in the AY 2006- 07. The Assessing Officer was also not justified in taxing the capital gain erroneously shown by the appellant as taxable in the AY 2006- 07sing Officer was also not justified in applying the provisions of the section 5OC of the Act for the purpose of determining the consideration of impugned property. What is not permitted by law cannot be assumed by the Assessing Officer as no valuation for the Stamp duty purpose dur ..... X X X X Extracts X X X X X X X X Extracts X X X X
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