TMI Blog2012 (1) TMI 229X X X X Extracts X X X X X X X X Extracts X X X X ..... he value adopted by the assessee and the value adopted by the DVO is less than 10 per cent. Since the difference is less than 10 per cent and considering the fact that valuation is always a matter of estimation where some degree of difference is bound to occur, we are of the considered opinion that the AO in the instant case is not justified in substituting the sale consideration at ₹ 20,55,000 as against the actual sale consideration of ₹ 19,00,000 disclosed by the assessee. We, therefore, set aside the order of the CIT(A) and direct the AO to take ₹ 19,00,000 only as the sale consideration of the property. The grounds raised by the assessee are accordingly allowed. In the result, the appeal filed by the assessee is allowed. - MUKUL SHRAWAT J.M. and R. K. PANDA A.M. For the Appellant : Nikhil Pathak For the Respondent : Mukulesh Dube JUDGMENT This appeal filed by the assessee is directed against the order dt. 14th Aug., 2007 of the CIT(A)-II, Pune, relating to asst. yr. 2004-05. 2. Facts of the case, in brief, are that the assessee firm is engaged in the business of construction activities/promoters-developers-builders. The AO duri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Act are unambiguous. Since the assessee objected to valuation of the stamp valuation authorities, the AO referred the matter to the DVO who valued the property at ₹ 20,55,000. The assessee has not objected to this valuation either before the DVO or before the AO or even before him. He observed that the assessee in its statement of facts has contended that the value as per the ready reckoner was not correct at ₹ 28,73,000 since the same cannot be comparable to commercial rate for shops, rear shops, front basement, rear basement, etc. Further depreciation was said to be only 20 per cent flat rate applied and if the ready reckoner was correctly interpreted the value would come to ₹ 17,32,500. According to the learned CIT(A) the various contentions raised by the assessee in its statement of facts deal with the aberrations in the Government ready reckoner. According to him provisions of s. 50C entails that the AO is bound to take the rate as per the stamp valuation authorities and the AO is not empowered to go beyond the valuation made by the stamp valuation authorities in the Government ready reckoner to justify those rates. Distinguishing the decision of the Hon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the rival submissions made by both the sides, perused the orders of the AO and the CIT(A) and the paper book filed on behalf of the assessee. We have also considered the various decisions cited before us. There is no dispute to the fact that the assessee received an amount of ₹ 19,00,000 as sale consideration on account of sale of basement Nos. 2 and 3 at Rahul Chambers. There is also no dispute to the fact that the stamp valuation authorities have adopted the value at ₹ 28,73,000 for the purpose of stamp duty. There is also no dispute to the fact that on being objected by the assessee for substitution of the same figure under s. 50C(2) of the Act, the AO referred the matter to the DVO who determined the FMV of the property on the date of sale at ₹ 20,55,000. We find that the learned CIT(A) upheld the action of the AO in substituting the value determined by the DVO on the ground that the assessee has not objected to the valuation either before the DVO or before the AO or even before him. Further, according to him, as per the provisions of s. 50C, the AO is bound to take the valuation as per the stamp valuation authorities and he is not empowered to go beyond the v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in sub-s. (2), where the value ascertained under sub-s. (2) exceeds the value adopted or assessed by the stamp valuation authority referred to in sub-s. (1), the value so adopted or assessed by such authority shall be taken as the full value of the consideration received or accruing as a result of the transfer. 11. A bare reading of the above provisions shows that as per the provisions of s. 50C(1) the value adopted by the stamp valuation authorities in respect of transfer of a capital asset shall be deemed to be the full value of consideration received or accruing as a result of transfer if such value is more than the value of consideration received by the assessee. As per the provisions of sub-s. (2) of the said section if the assessee claims before the AO that such valuation by the stamp valuation authorities under sub-s. (1) exceeds the FMV of the property as on the date of transfer the AO may refer the valuation of the capital asset to the DVO. As per the said sub-section where any such reference is made the various provisions of WT Act as mentioned in sub-s. (2) referred above shall, with necessary modifications, apply in relation to such reference as they apply in relati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stamp valuation authorities, the DVO has determined the FMV on the date of transfer at ₹ 20,55,000. This itself shows that there is wide variation between the two values. Further, the value adopted by the DVO is also based on some estimate. We find that the difference between the sale consideration shown by the assessee at ₹ 19,00,000 and the FMV determined by the DVO at ₹ 20,55,000 is only ₹ 1,55,000 which is less than 10 per cent. The Courts and Tribunals are consistently taking a liberal approach in favour of the assessee where the difference between the value adopted by the assessee and the value adopted by the DVO is less than 10 per cent. 14. We find that the Pune Bench of the Tribunal in the case of Asstt. CIT vs. Harpreet Hotels (P) Ltd. vide ITA Nos. 1156-1160/Pn/2000 and relied on by the learned counsel for the assessee had dismissed the appeal filed by the Revenue where the CIT(A) had deleted the unexplained investment in house construction on the ground that the difference between the figure shown by the assessee and the figure of the DVO is hardly 10 per cent. 15. Similarly, we find that the Pune Bench of the Tribunal in the case of ITO vs ..... X X X X Extracts X X X X X X X X Extracts X X X X
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