TMI Blog2014 (1) TMI 442X X X X Extracts X X X X X X X X Extracts X X X X ..... g Officer to refer the matter for valuation to a Valuation Officer has provided in sub-section 50C(2) of the Act - the view taken by the Assessing Officer as well as the Commissioner of Income Tax(A) is not correct - the Assessing Officer failed to refer the matter to the valuation officer u/s 50C(2) of the Act, it would be fit and proper to restore the matter back to the file of the Assessing Officer for a fresh adjudication after referring the matter to the Valuation Officer u/s 50C(2) of the Act – Decided in favour of Assessee. - ITA No.5331/Del/2012 - - - Dated:- 26-4-2013 - G D Agrawal and Chandra Mohan Garg, JJ. For the Appellants : Shri Ved Jain Smt Rano Jain For the Respondent : Smt Sumana Sen, Sr. DR ORDER:- Pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... S. Notices u/s 143(2) and 142(1) of the Income Tax Act, 1961 (for short the Act) were served on the assessee and Shri Sunil Jain, brother of the assessee attended the proceedings. The Assessing Officer observed that the assessee has shown short term capital gain of Rs.1,98,250 on sale of property at Indirapuram and Vaishali From the perusal of the sale deed, the Assessing Officer noted that the stamp duty on the sale of the property has been paid on Rs.78,10,000/- as per circle rate of the area at the time of sale. The Assessing Officer took a view that as per provisions of section 50C(1) of the Act for calculating capital gain, the sale price of the property was to be deducted on which stamp duty has been paid and on the half share of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... value adopted and assessed by the stamp valuation authority and a vital right of the assessee was denied. Replying to the above, DR submitted that the assessee was provided due opportunity of hearing and he could have made specific request to the Assessing Officer to refer the matter to the Valuation Officer. The DR further stated that if this Tribunal finds it appropriate that the Assessing Officer should have referred the matter to the Valuation Officer, then he has no serious objection to restore the matter to the file of the Assessing Officer. 6. The counsel of the assessee has placed his reliance on the judgment of ITAT Jodhpur Bench in the case of Meghraj Baid vs. 2008) 114 TTJ(JD) 841 where in it has been held as under:- Aft ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) of section 50C in respect to the property sold is much higher than the actual fair market value and the property has been sold on the consideration as stipulated in the sale deed. In the last operative part of the assessment order, the Assessing Officer held that the assessee has not given any explanation in respect of applicability of provisions of section 50C(1) of the Act, therefore, for calculating short term capital gain, the value of half share of the property is taken at Rs.39,05,000 as per value adopted by stamp valuation authority while registering the sale deed. 8. From this finding recorded by the Assessing Officer, it is clear that the assessee made a claim before the Assessing Officer that the circle rate was much higher th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sent case, we hold that the view taken by the Assessing Officer as well as confirmed by the Commissioner of Income Tax(A) is not correct. Since the Assessing Officer failed to refer the matter to the valuation officer u/s 50C(2) of the Act, we find it fit and proper to restore the matter back to the file of the Assessing Officer for a fresh adjudication after referring the matter to the Valuation Officer u/s 50C(2) of the Act. The Assessing Officer shall provide reasonable opportunity of being heard to the assessee and then decide the issue accordingly. We also make it clear that the matter with regard to the determination of sale consideration and capital gain shall remain open before the Assessing Officer and both the parties shall be at ..... X X X X Extracts X X X X X X X X Extracts X X X X
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