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2015 (8) TMI 1159 - ITAT AHMEDABAD

2015 (8) TMI 1159 - ITAT AHMEDABAD - TMI - Addition made by following the valuation method u/s.50C - Held that:- In the present case, the AO had made addition on the basis of the difference in value of the property declared by the assessee as sale consideration and the value that was adopted by the Stamp Valuation Authority. The submission of ld.AR that in the case of co-owners, the matter has been restored to AO by the Tribunal has not been controverted by ld.DR. We find that in the case(s) of .....

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ore, the orders of the authorities below on this issue are hereby set aside and the additional ground raised by the assessee is restored back to the file of AO to decide the same in accordance with law. Needless to say that the AO would afford reasonable opportunity of being heard to the assessee before passing the order. Thus, additional ground raised by the assessee is allowed for statistical purposes - I.T.A. No.178/Ahd/2012 - Dated:- 7-8-2015 - SHRI RAJPAL YADAV AND SHRI ANIL CHATURVEDI, JJ. .....

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sessee has filed his return of income for AY 2008-09 on 08/08/2008 showing total income of ₹ 65,820/-. The case was selected for scrutiny and thereafter the assessment u/s.143(3) of the I.T. Act (hereinafter referred to as the Act) was framed by the AO vide order dated 13/12/2010 and the total income was determined at ₹ 10,58,230/-. Aggrieved by the order of the AO, assessee carried the matter before the ld.CIT(A), who vide his order dated 14/11/2011 dismissed the appeal of the asses .....

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the date of passing the assessment order. 4. The CIT(A) erred in not appreciating valuation report valuing the property as on 01/04/1981 filed with the revised return. 5. That the orders of authorities below viz.CIT(A) & A.O. may kindly be set aside & the matter may kindly be restored back to the file of A.O. with necessary directions to recomputed the Long Term Capital Gain working as per revised return filed. 6. The CIT(A) erred in not giving deduction of Section 50EC for ₹ 1,00 .....

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10/12/2010 (AO page 3 para-6). Thus the facts about such request made to the AO is on record. On identical facts in the case of another joint holder (seller of said property alongwith appellant) namely Shri Nileshkumar H.Jariwala, the valuation is referred to the DVO and the DVO has arrived at fair market value as per copy attached. The ground has remained to be taken in the Memo of appeal inadvertently but is a legally allowable claim and is raised as such being mandatory in law once the objec .....

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of assessment proceedings, the AO noticed that assessee owned 14 properties with 17 other co-owners and his share in the property was shown at 1/18th part in the sale proceeds. He also noticed that assessee has sold properties whose document value was ₹ 2,37,34,750/- and assessee s share in sale proceeds was at ₹ 13,18,595/-. Assessee had worked out Long Term Capital Loss (LTCL) of ₹ 1,83,713/- by claiming the cost of acquisition at ₹ 2,70,258/- and the index cost of acq .....

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assessee as per the provisions of section 50C of the Act was ₹ 24,91,704/- and the capital gain was ₹ 9,89,396/-. The submissions of the assessee before AO that in their opinion, the sale rate of ₹ 10,000/- per sq.meter was true and fair market value and that the purchaser paid stamp duty at ₹ 18,500/- per sq.meter without their knowledge was not found acceptable to the AO. Before the AO, assessee also submitted that the case may be referred to DVO which was also not acce .....

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her parameters in respect of determination of Long term capital gain, i.e. cost of acquisition as on 01.04.1981 and expenses incurred for the transaction. From the written submissions of the appellant, his grievance is that the revised return which was filed before the period of limitation but after the completion of assessment should have been considered by the A.O. and not having done that the A.O. had denied justice and on this base it is pleaded that the revised return should be accepted as .....

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e in the revised return the appellant has himself adopted the stamp duty valuation as the full value of consideration, thereby putting to rest any controversy in regard to value to be adopted as consideration in computation of capital gain. In the revised return the appellant claimed that the fair market value of his share of the property as on 01.04.1981 was ₹ 386667/- and not ₹ 270258/- as taken by him in the original return. Though in his support the appellant has filed a valuatio .....

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e allowed. It is therefore held that the action of the A.O.in applying Section 50C was in order and computation of capital gain made by him requires no interference. 6. In the result, the appeal is dismissed. 4. Aggrieved by the order of ld.CIT(A), assessee is now in appeal before us. 5. Before us, ld.AR for the assessee reiterated the submissions as were made before the AO and ld.CIT(A) and further submitted that before the AO a request was made to him to seek report of DVO on the market value .....

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d AO to make assessment in accordance with the valuation made by the DVO. He therefore submitted that since in the case of co-owners the matter has been set aside, and the issue being identical to that of the co-owners in the present case also, the matter be set aside to the file of AO. The ld.DR, on the other hand, for the Revenue supported the orders of the AO and CIT(A). 6. We have heard the rival submissions, perused the material available on record and gone through the orders of the authori .....

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of this Tribunal (ITAT Bench A Ahmedabad) in ITA Nos.179 & 180/Ahd/2010 respectively for AY 2008-09 vide its order dated 14/05/2015 had set aside the issue to the file of AO, by holding as under:- 4. Matter was carried before the First Appellate Authority, wherein various contentions were raised on behalf of assessee and having considered the same CIT(A) upheld the order of Assessing Officer. Before us, learned Authorized Representative submitted that Assessing Officer should have refer the .....

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heard the rival submissions, perused the material available on record and gone through the orders of the authorities below. We find that in the instant case, the AO has made addition on the basis of the difference in the value of the property declared by the assessee as sale consideration and adopted by the stamp valuation authority. The contention of the ld.counsel for the assessee is that in terms of the provisions of section 50C(1) of the Act, where the AO finds that the consideration receive .....

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submitted that the AO adopted the full value of the consideration as adopted by the stamp valuation authority . However, the AO failed to take note of the mandate of sub-section(2) of Section 50C of the Act. At this juncture, it would be appropriate to reproduce hereunder the section 50C(2) of the Act for the better appreciation of the submission of ld.counsel for the assessee. Section 50C(2):- Without prejudice to the provisions of sub-section (1), where- (a) the assessee claims before any Asse .....

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to a Valuation Officer and where any such reference is made, the provisions of sub-sections (2), (3), (4), (5) and (6) of section 16A, clause (i) of subsection (1) and sub-sections (6) and (7) of section 23A, sub-section (5) of section 24, section 34AA, section 35 and section 37 of the Wealth-tax Act, 1957 (27 of 1957), shall, with necessary modifications, apply in relation to such reference as they apply in relation to a reference made by the Assessing Officer under sub-section (1) of section 1 .....

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hority for the purposes of the payment of stamp duty.] 5.1. The ld.counsel for the assessee has drawn our attention towards para-6 of the assessment order in support of the contention that before the AO a request was made to refer the case to DVO for seeking his report on the fair market value of the property. Para-6 of the assessment order is reproduced hereinbelow:- 6. The reply of the assessee dated 10.12.2010 is reproduced as under:- We just come to know that one open land in the same locali .....

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1) 249 ITR 424 (Mad.) K.R. Palanisamy Vs. UOI 306 ITR 61 (Mad.). In which the juntry value is a guideline & not instrument to lay down on the assessee . 5.2. Therefore, in view of the provisions of section 50C(2) of the Act, we are of the considered view that the AO was not justified in adopting the value of the property as adopted by the stamp valuation authority without referring to the DVO for ascertaining the fair market value of the property. Therefore, the orders of the authorities bel .....

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