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TMI Blog2014 (5) TMI 46X X X X Extracts X X X X X X X X Extracts X X X X ..... tion is referred to it. 2) On the facts and in the circumstances of the case and in law, the Ld. CIT(A) failed to appreciate that the assessee only acquired right in the property by making advance payment for the galas and the same was neither in possession of the assessee nor was put to use for the purpose of business during the relevant Financial Year therefore it cannot form part of the Block of Assets for the relevant Financial Year for the purpose of capital gain. 3) On the facts and in the circumstances of the case and in law, the Ld. CIT(A) failed to appreciate that the reference to the DVO for the valuation of the property in Section 50C(2) of the I. T. Act is discretionary as the word used in the Act is 'may' and not 'shall' and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... FY ending 31. 03. 2008, that the premises was sold by the assessee on 05. 04. 2007, that same was reduced from the block of assets then the block of asset would cease to exist, that the excess sale proceeds were taxable as the income of the assessee for the year under consideration. He further held that the assessee had not disputed the value adopted by the stamp authorities in any appeal, that value of the property could be taken could be adopted at Rs. 48, 47, 850/-, as per the provisions of section 50C of the Act. In view of the above facts amount of Rs. 47, 69, 046/- was treated as Short term capital gain u/s. 50 of the Act and was taxed as income of the assessee for the year under appeal , by the AO. 3. In the appellate proceedings, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... AO was is deleted by the FAA. 4. During the course of hearing before us Departmental Representative (DR) supported the order of the AO. Authorised Representative (AR) submitted that assessee had paid Rs. 40 lacs, that formalities of registration were over during the year under appeal, that assessee had acquired the asset, that for the purpose of section under consideration there was no difference between purchaser and acquirer of the asset, that use of the asset was not an essential condition for availing the benefits of provisions of section 50 unlike the provisions of section 32. He referred to page no. 29, 31 and 35 of the paper book. He relied upon the decision of Mrs Hilla J. B. Wadia (216 ITR 376) delivered by the Hon'ble Bombay Hig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s cancelled. The allottee, thereupon, gets title to the property on the issuance of the allotment letter and the payment of instalments is only a follow-up action and taking delivery of possession is only a formality. The Board has directed that such an allotment of a flat under this scheme should be treated as a case of construction for the purpose of capital gains. " In the case of Lalbhai Kalidas & Co. Ltd. (supra), to which one of us was the party, similar view has been taken by the Tribunal. Respectfully following the above decisions, we uphold the order of the FAA. Ground nos. 1 & 2 are decided against the AO. 5. Ground No. 3 is about reference to be made to the District Valuation Officer (DVO) for the valuation of property as per t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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