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2016 (12) TMI 950 - ITAT JAIPUR

2016 (12) TMI 950 - ITAT JAIPUR - TMI - Addition of Long term capital gain - sale of plot - determination of price - fair market value of the property - Held that:- It is observed that in the Master Development Plan - 2011 of the JDA, this plot was shown for residential purposes. The registered document also mentions that the plot was only for residential purpose. JDA Patta and Site Plan also show that plot was for residential purpose. However, spot inspection report shows that this plot was of .....

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rcial property and illegally used for commercial purposes. This fact has not been taken into consideration while arriving at the fair market value of the plot on the date of transfer for the purpose of provisions of Section 50C of the Act. Therefore, in the interest of justice and equity, the issue is restored to the file of the AO to decide it afresh after ascertaining the fair market value of the property with due weightage given to the fact that plot was not a commercial plot but capable to b .....

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circumstances of the case and in law the ld. CIT(A) erred in confirming the addition of ₹ 43,98,575/- on account of Long term capital gain on sale of plot by taking the sale consideration of ₹ 84,75,000/- on the basis of value adopted by the registration authority as against sale consideration of ₹ 35,00,000/- declared in the sale deed. 2. On the facts and in the circumstances of the case and in law the ld. CIT(A) erred in confirming the action of the AO as well as Valuation O .....

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treating the same as commercial property against residential property declared by the assessee and accepted by the Sub- Registrar while registering the sale deed. No any other material was brought on record to justify the market value or no independent enquiries were conducted. 2.1 The facts on the issue in question as emerges from the order of the ld. CIT(A) is reproduced as under:- 3.1.2 Determination (i) I have carefully perused the submissions of the assessee, the remand report submitted by .....

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was also confirmed by the Collector (Stamps). (ii) During assessment proceedings, the assessee contested the revaluation of the property at ₹ 84,89,500/- and submitted that the same should not be taken into account for computing capital gains thereof and requested that the matter may be referred to the valuation cell for determining the fair market value of the property. On a reference from AO, the Assistant Valuation Officer determined the Fair Market Value of the property on the date of .....

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roperty under consideration i.e. 1, Officers Campus Extension and as on 15.10.2009 i.e. the date of sale of the property by the assessee, the said property was shown as residential in Master Development Plan, 2011. The assessee prayed for the admission of the above letter as additional evidence. The AO in his remand report objected to the admission of the above additional evidence as the same was not produced before him. It would be relevant to mention here in brief some of the judicial pronounc .....

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eal on merit. Further, held that since CIT(A) is no more empowered to restore back any matter to AO, it necessitated compulsory admission of the evidence produced before him in the interest of justice. Anmol Colouring India Pvt Ltd. vs ITO 121 TTJ 269 ITAT (Jaipur) In this case the assessee had given all the evidences to his counsel for filing with the AO. but he did not file the same. Thereafter there was change in the counsel who filed all the evidences before CIT(A) as additional evidence. It .....

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he appeal on merits- It was justified in holding that the CIT(A) ought to have exercised its power to admit additional evidence- No question of law arises. ITO vs. Bajouria Foundation 71 TTJ (Cal) 343 Filing of additional evidence before CIT (A) was covered by Rule 46A( 1) (c) as well as the scheme of powers vested in him under Sec. 250(4)- There was no infirmity in admitting the additional evidence. It is settled in law that when a statutory authority has the powers to do something, then it has .....

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pur) (P) Ltd., (Supra) In view of the above judicial pronouncements, the letter dated 29.03.2014 of JDA is admitted as additional evidence under Rule 46A of the IT Rules. In his remand report, it was submitted by the AO that:- The submission of the AO is in Hindi at page 10 & 11 of ld. CIT(A) s order……. (iv) I have gone through the above points raised by the AO in his remand report and the letter dated 29.03.2014 issued by the JDA. It is pertinent to mention here that the JDA h .....

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against the decision of Sub Registrar / Collector (Stamps). Hence the letter dated 29.03.2014 issued by the JDA is of no help to the assessee as the AO has adopted the sale consideration on the basis of the valuation report of the valuation officer (Rs. 84,75,000) as if is lower than the valuation taken by the Sub Registrar i.e. the registering authority. It would be relevant to reproduce here the provisions of section 50C of the Act as under:- [Special provision for full value of consideration .....

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tion 48. be deemed to be the full value of the consideration received or accruing as a result of such transfer. [2] Without prejudice to the provisions of sub-section [1 ], where- (a) the assessee claims before any Assessing Officer that the value adopted or assessed [or assessable] by the stamp valuation authority under sub-section [1] exceeds the fair market value of the property as on the date of transfer; (b) the value so adopted or assessed [or assessable] by the stamp valuation authority u .....

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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 16A of that Act. [Explanation l].-For the purposes of this section, "Valuation Officer" shall have the same meaning as in clause (r) of section 2 of the Wealth-tax Act, 1957 (27of1957). [Explanation 2-For the purposes of this section, the expression "assessable&quo .....

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the value so adopted or assessed [or assessable] by such authority shall be taken as the full value of the consideration received or accruing as a result of transfer]. (v) In view of the above discussion and provisions of section 50C of the Act, it is held that the AO has rightly taken the sale consideration at ₹ 84,75,000/- u/s 50C of the IT Act and thus he has rightly made addition of ₹ 49,75,000/- on account of Long Term Capital Gains to the income of the assessee. Thus, this gro .....

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