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2015 (6) TMI 481 - ITAT CHENNAI

2015 (6) TMI 481 - ITAT CHENNAI - TMI - Reference to Valuation Officer to determine the fair market value - Whether in view of Section 50C when the fair market value is less than the registration value adopted by the registering authority, the matter has to be referred to the Valuation Officer? - Held that:- When the fair market value is less than the value adopted by the registering authority, Section 50C of the Act clearly says that the matter has to be referred to the Valuation Officer to det .....

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mined by the registering authority. However, the actual sale consideration shown in the sale deed cannot be disregarded unless and until the valuation report obtained by the Assessing Officer as required under Section 50C. Therefore, this Tribunal is of the considered opinion that the matter needs to be referred to the Valuation Officer. - Decided in favour of assessee for statistical purposes.

Allowability of TDS - Held that:- The ground relating to TDS certificates to the extent of .....

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the assessee. Accordingly, the matter is remitted back to the file of the Assessing Officer. - Decided in favour of assessee for statistical purposes.

Assessability of surplus on the sale of land - Held that:- It is not the case of the Revenue that the order of the Tribunal was stayed by the High Court for assessment year 2004-05. In those circumstances, the mere pendency of appeal before the High Court cannot be a reason to take a different view. Therefore, by following the order of .....

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nue : Dr. S. Moharana, CIT ORDER PER N.R.S. GANESAN, JUDICIAL MEMBER: Both assessee and Revenue have filed the appeals against the respective orders of the Commissioner of Income Tax (Appeals) for assessment year 2005-06. Since both are for the same assessment year, we heard both the appeals together and disposing of by this common order. 2. First, let s take assessee s appeal in I.T.A. No.409/Mds/2013. 3. Shri Manuel Thomas, the Ld. representative for the assessee, submitted that the assessee h .....

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nored the request of the assessee and completed the assessment by taking the value adopted by the registering authority for stamp duty purpose. Referring to Section 50C of the Income-tax Act, 1961 (in short 'the Act'), the Ld. representative submitted that when the value adopted by the registering authority is higher than the fair market value, the matter ought to have been referred to the Valuation Officer. In this case, according to the Ld. representative, it was not referred to the Va .....

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he assessee has not raised any objection before the Assessing Officer with regard to adoption of the value taken by the Sub-Registrar for registration of property. According to the Ld. D.R., the Sub-Registrar has taken the value of the property at ₹ 9,73,58,800/-. However, the sale consideration shown in the sale deed is only at ₹ 5,58,25,000/-. Since the value taken by the Sub-Registrar for valuation of the property is more than the consideration disclosed in the sale deed, accordin .....

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,58,25,000/-. However, the Sub-Registrar, for the purpose of registration, has taken the fair market value at ₹ 9,73,58,800/- and collected the stamp duty accordingly. Now the assessee claims that in view of Section 50C of the Act, when the fair market value is less than the registration value adopted by the registering authority, the matter has to be referred to the Valuation Officer to determine the fair market value. 6. We have carefully gone through the provisions of Section 50C of the .....

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the Assessing Officer at ₹ 9,73,58,800/-. In order to avoid dispute with registering authority and for early registration of the document, stamp duty might have been paid for the value determined by the registering authority. However, the actual sale consideration shown in the sale deed cannot be disregarded unless and until the valuation report obtained by the Assessing Officer as required under Section 50C of the Act. Therefore, this Tribunal is of the considered opinion that the matter .....

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. 7. The next ground of appeal is with regard to allowability of TDS to the extent of ₹ 3,83,236/-. 8. Shri Manuel Thomas, the Ld. representative for the assessee, submitted that the assessee has filed five TDS certificates aggregating to ₹ 3,83,236/-. The Ld. representative submitted that the same was not claimed in the return of income. According to the Ld. representative, the TDS certificates filed before the lower authorities to the extent of ₹ 3,83,236/- have to be conside .....

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see has raised this ground as Ground No.10 in the grounds of appeal. However, the CIT(Appeals) has not discussed the same in the appellate order. In other words, the ground relating to TDS certificates to the extent of ₹ 3,83,236/- was not disposed of by the CIT(Appeals). This Tribunal is of the considered opinion that when the tax was deduced at source as per the scheme of the Income-tax Act, the Assessing Officer is bound to give credit for the tax deducted at source, otherwise, the very .....

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y issue arises for consideration is assessability of surplus on the sale of land. 12. Dr. S. Moharana, the Ld. D.R. submitted that the Assessing Officer reopened the assessment by issuing notice under Section 148 of the Act. According to the Ld. D.R., the assessee claims the profit on sale of the land under the head capital gains . However, this issue had not been decided in the original assessment. Therefore, the Assessing Officer reopened the assessment and treated the profit on sale of the la .....

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of the assessee. 13. On the contrary, Shri Manuel Thomas, the Ld. representative submitted that for the assessment year 2004-05, the Assessing Officer had treated the profit on sale of land as business income. On appeal by the assessee, the CIT(Appeals) considered the same as capital gain and that was confirmed by this Tribunal. Therefore, according to the Ld. representative, the profit on sale of lands has to be assessed only as capital gain and not as business income. Mere pending of appeal be .....

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