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2016 (7) TMI 835

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..... the A.O. adopting ₹ 1,71,75,000/- as full value of consideration under deeming provisions of Section 50C of the Act for the purposes of Section 48 of the Act Non-granting of credit for tax deducted at source and non-granting of credit for self assessment tax paid - CIT(A) has dismissed these grounds observing that the alternative remedies for the grievances of the assessee are available with the assessee which could be availed - Held that:- his aspect of non grant of prepaid taxes as claimed by the assessee needs verification by the authorities below and we are inclined to set aside and restore these issues of non-credit of pre-paid taxes by the AO as set-out above back to the file of the A.O. and the A.O. shall examine and verify the claim of the assessee on merits and proper tax credit should be granted to the assessee on merits after due verification by the AO. Thus, we set aside the orders of the learned CIT(A) on both these issues and restore these issues to the file of AO for de-novo determination on merits after examination and verification of the claim of the assessee as indicated above. - I .T.A. No. 6555/Mum/2013 - - - Dated:- 13-7-2016 - Shri Amit Shukla, .....

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..... of the Income Tax Act, 1961, and thereby erred in enhancing the income of the appellant by an amount of ₹ 17,19,800/-, which is wrong and contrary to the facts and circumstances of the case, provisions of Income Tax Act, 1961 and the Rules made thereunder. 3. (a) On the facts and in the circumstances of the case and in law, the learned Commissioner of Income Tax (Appeals) erred in dismissing the ground of appeal of the appellant against non-granting of credit for tax deducted at source amounting to ₹ 11,165/- claimed by the appellant, which is wrong and contrary to the facts and circumstances of the case, provisions of Income Tax Act, 1961 and the Rules made thereunder. (b) On the facts and in the circumstances of the case and in law, the learned Commissioner of Income Tax (Appeals) ought to have directed the learned Assessing Officer to grant the appropriate credit of Tax Deducted at Source and not doing so is wrong and contrary to the facts and circumstances of the case, provisions of Income Tax Act, 1961 and the Rules made thereunder. 4. (a) On the facts and in the circumstances of the case and in law, the learned Commissioner of Income Tax (Appeals .....

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..... Thus, the A.O. pending receipt of valuation report from DVO, to protect the interest of the Revenue considered the Stamp Valuation Authority Value of ₹ 1,71,75,000/- in accordance with mandate of Section 50C(1) of the Act instead of sale consideration of ₹ 1,60,00,000/- as full value of consideration u/s 48 of the Act received or accruing as a result of transfer for the purposes of computing the short term capital gains u/s 50 of the Act , and accordingly ₹ 11,75,000/- was added to the short term capital gains earned by the assessee being difference between the sale consideration of ₹ 1,60,00,000/- and stamp duly value of ₹ 1,71,75,000/- , and additions were accordingly made to the income of the assessee of ₹ 11,75,000/- vide assessment order dated 22-12-2011 passed by the AO u/s. 143(3) of the Act. 4. Aggrieved by the assessment order dated 22-12-2011 passed by the A.O. u/s. 143(3) of the Act, the assessee filed its first appeal before the learned CIT(A). 5. Before the learned CIT(A), the assessee submitted that the title to the said premises was not free from dispute which has adversely affected the contract amount or fair market value o .....

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..... s become infructuous as the value adopted by the DVO as per valuation report has arrived and value as per DVO comes to ₹ 1,88,94,800/-. The assessee was given due opportunity by the Departmental Valuation Officer to submit various documents and thus requirement for providing opportunity to the assessee for the purpose of valuation was also fulfilled. The said valuation report of the DVO exhibits details of methods, rates and criteria for determining the value so adopted by the DVO. The ld. CIT(A) thus adopted the value of ₹ 1,88,94,800/- as full value of consideration for the purposes of 48 of the Act as per the valuation report submitted by the DVO which was higher than the value as per stamp duty valuation of ₹ 1,71,75,000/-, therefore, there was an enhancement of ₹ 17,19,800/- to the assessed income by appellate orders dated 20-08-2013 of the learned CIT(A) and thus the A.O. was directed to pass necessary order giving effect to the further enhancement of ₹ 17,19,800/- to the assessed income made by the learned CIT(A) vide appellate orders dated 20.08.2013. 6. Aggrieved by the appellate orders dated 20-08-2013 passed by the ld. CIT(A), the assesse .....

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..... p duty valuation is ₹ 1,71,75,000/- while sale consideration in agreement to sale dated 29-05-2008 is ₹ 1,60,00,000/. The sale deeds and agreement to sale with respect to units sold both on first floor and second floor are placed in paper book page 23-161 filed with the Tribunal. There was some dispute with respect to the title of property sold i.e. units situated on first floor before the Small Cause Court, Mumbai which find mentioned in para 6 of agreement to sale deed dated 29-05-2008 which is placed at paper book page 51-52 filed with the Tribunal , hence the property consisting of units on first floor was sold on lower rate and hence higher value than sale consideration cannot be adopted. The A.O. has adopted the stamp duty valuation while the ld. CIT(A) enhanced the value keeping in view DVO report. The learned counsel submitted that Section 50C of the Act can be invoked and value adopted if the said value as per stamp duty valuation is higher than the actual consideration , but if DVO valued the property at higher than the stamp duty value, the said valuation by DVO cannot be adopted as per provisions of Section 50C of the Act , while if the DVO value is lower th .....

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..... purposes of computation of capital gains and cannot be clubbed together as contended by the assessee in view of provisions of Section 50C of the Act and hence this contention of the assessee is rejected. Thus, now the dispute is only with respect to the determination and adoption of full value of consideration for the purposes of Section 48 of the Act keeping in view provisions of Section 50C of the Act for computing short term capital gain u/s 50 of the Act with respect to units situated at first floor sold vide agreement to sale dated 29-05-2008 for sale consideration of ₹ 1,60,00,000/- as against the value adopted by stamp duty authorities for registration purposes of ₹ 1,71,75,000/- . There is no dispute with respect to agreement to sale dated 29-05-2008 with respect to units sold situated on 2nd Floor as sale consideration was ₹ 2,00,00,000/- which was higher than the stamp duty valuation as adopted by stamp duty valuation authorities of ₹ 1,64,52,590/- and hence Section 50C is not applicable to the units sold on second floor. The A.O. has rightly invoked the deeming provisions of section 50C of the Act with respect to units sold situated in first floor .....

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..... less than the value adopted by the stamp duty authority , the value as determined by stamp duty authorities shall be adopted as full value of consideration for the purposes of Section 48 of the Act under the deeming provisions of Section 50C(1) of the Act, but if the assessee challenges the same , then the AO has to refer the matter to DVO under provisions of Section 50C(2) of the Act and in case the value adopted by DVO exceed the value as determined by stamp duty valuation authorities then in that case, the value as adopted by stamp duty authorities shall be deemed to be the full value of consideration for the purposes of Section 48 of the Act under the provisions as stipulated u/s 50C(3) of the Act. In the instant case, the value determined by the DVO is higher than the value adopted by the stamp duty authority. The value adopted by the stamp duty registration authority was ₹ 1,71,75,000/- while DVO valued the property at ₹ 1,88,94,800/-. The Departmental Valuation Officer s value in the instant appeal thus cannot be accepted keeping in view provisions of Section 50C(3) of the Act. The said Section 50C of the Act as applicable for the relevant assessment year is rep .....

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..... om infirmity to the extent that the learned CIT(A) has not given any notice to the assessee before making the enhancement and principles of natural justice are breached. Thus, in our considered view keeping in view the interest of justice as well mandate of Section 50C of the Act as per our detailed reasoning and discussions as set out above, we hold that the A.O. has rightly invoked and applied the deeming provisions of section 50C of the Act whereby the value adopted by the stamp duty authorities of ₹ 1,71,75,000/- was adopted by the AO as full value of consideration for the purposes of Section 48 of the Act in which we donot find any infirmity in law and on facts , keeping in view the fact that the DVO report received subsequent to the assessment order has valued the said property at higher than the value adopted by stamp duty valuation authorities , thus keeping in view provisions of Section 50C(3) of the Act the value adopted by the AO of ₹ 1,71,75,000/- as full value of consideration for the purposes of Section 48 of the Act stands confirmed by us. Hence, we set aside the order of the ld. CIT(A) and confirm the orders of the A.O. adopting ₹ 1,71,75,000/- as .....

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