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2015 (12) TMI 610 - ITAT MUMBAI

2015 (12) TMI 610 - ITAT MUMBAI - TMI - Taxing of capital gain by invoking the provisions of section 50C on the sales of property - Held that:- This is the second round of proceedings passed in pursuance of direction given by the Tribunal, wherein it was directed that the Assessing Officer will process the assessee’s claim u/s 50C(2)(a) and referred the matter to the DVO for ascertaining the fair market value. In pursuance thereof, the assessing officer had made the reference to the DVO who has .....

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im, Assessing Officer has to refer the matter to the Valuation Cell and in such cases, the Assessing Officer is bound by such a valuation. Here in this case, since value adopted by the DVO is more than the stamp valuation, therefore, the Assessing Officer had rightly adopted the FMV as per the stamp valuation authority. To wriggle out from such a situation here in this case, the assessee should have rebutted the entire DVO’s report before the CIT(A) by evidence and proper material as to how and .....

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t PER AMIT SHUKLA, AM: The aforesaid appeal has been filed by the assessee against impugned order dated 26.11.2012 passed by CIT(A)-III, Mumbai for quantum of assessment passed u/s 143(3) in pursuance of direction given by the Tribunal u/s 254 for the assessment year 2004-05. 2. In the grounds of appeal, the assessee has challenged the taxing of capital gain by invoking the provisions of section 50C on the sales of property. 3. Brief background of the case is that original assessment was made u/ .....

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O) in terms of section 50C(2)(a) and compute the capital gains in accordance with the law. The relevant observation and the direction of the Tribunal reads as under:- 5. The assessee is in further appeal before the Tribunal. We have heard the rival contentions and also gone through the relevant statutory provisions. Under sub-section (1) of Section 50C, if the sale consideration for the property is less than the value adopted by the stamp duty authorities, the capital gains can be computed by th .....

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de by the assessee under the aforesaid provisions on the basis of the approved valuer s report, according to which the fair market value of the property was ₹ 11,28,000/- which is less than the stamp duty value of ₹ 20,06,500/-. He has not disputed the assessee s claim that the aforesaid provision is applicable and that a reference has to be made to the departmental valuation officer. All that he has stated in the assessment order is that there is no time left to carry out the exerci .....

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ng Officer on 26.10.2006. It cannot therefore be stated that the delay was entirely on the part of the assessee. Under the circumstances, we are of the view that the orders of the departmental authorities on this point have to be set aside. We do so and direct the Assessing Officer to process the assessee s claim made under section 50C(2)(a) and refer the matter to the departmental valuation officer as contemplated by the statutory provisions and compute the capital gains in accordance with law. .....

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; 23,27,000/-, which was higher than the stamp value. The said report was forwarded to the assessee as to why the FMV valued by the AVO should not be taken as sale consideration. In response, the assessee submitted that the assessee had only received the amount of consideration at ₹ 13 lakhs and the valuation done by the DVO cannot be accepted as the same was done on November, 2011 whereas, the property was already sold in March, 2004. At the time of inspection, the structure / property wa .....

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per the stamp duty valuation has to be adopted as the Assessing Officer is bound by the decision of the Tribunal. Now that the valuation by the DVO is more than valuation of the property by stamp valuation authority, therefore, the market value as per the stamp duty would be adopted. Thus he took FMV at ₹ 20,06,500/-. 5. The Ld. CIT(A), too confirmed the said addition on the ground that Assessing Officer has bound to follow the direction of the Tribunal. 6. Before us the Ld. Counsel, stro .....

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