TMI Blog2017 (1) TMI 116X X X X Extracts X X X X X X X X Extracts X X X X ..... ould be referred to the DVO. Hence, in the present case, we are inclined to set aside the order of the CIT(A) and restore the issue back to the file of the AO for fresh adjudication of the issue of long term capital gain arising out of sale of plot after referring the matter to DVO and hearing the assessee by affording a fair and reasonable opportunity. The appeal of the assessee is allowed for statistical purposes. - I.T.A. No.5846/Mum/2014 - - - Dated:- 14-12-2016 - SHRI MAHAVIR SINGH, JM AND SHRI RAJESH KUMAR, AM For The Appellant : Shri Kshipra Singhvi For The Respondent : Shri Shivaji Ghade ORDER PER RAJESH KUMAR, AM Appeal by the assessee is directed against the order dated 17.2.2014 passed by the ld. CIT(A)-22, Mumbai for the assessment year 2007-08. 2. Only issue raised in all these grounds of appeal pertains to upholding the order of the AO by the ld. CIT(A) qua adopting the value of the property as per Stamp Valuation Authorities for the purpose of section 50C of the Income Tax Act, 1961 by ignoring the fact that the lower authorities have not referred the matter to the Valuation Officer under section 50C(2) of the Act before substituting t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e AO, the assessee could not furnish any explanting to the said show cause notice and accordingly the AO substituted the value as per the value of stamp authorities of ₹ 3,84,00,000/- in place of actual consideration of ₹ 3,00,00,000/- and accordingly computed the gain as under : Full value of consideration as discussed above ₹ 3,84,00,000 Assessee s share in the property @1/3 ₹ 1,28,00,000 Less cost of acquisition Value on 1.4.1981 Rs.9,24,250 Assessee s share @ 1/3rd Rs.3,08,083 Indexed cost of acquisition of assessee s share Rs.15,98,951 Long term capital gain ₹ 1,12,01,049 Index cost of the plot of land Less deduction u/s 54 as per return Rs.82,67,600 Balance Taxable long term capital gain Rs.29,33,450 4. Finally, the AO framed the assessment under sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 sub-section (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 modi-fications, 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 1].-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 (27 of 1957). [Explanation 2.-For the purposes of this section, the expression assessable means the price which the stamp valuation authority would have, notwithstanding anything to the contrary contained in any other law for the time being in force, adopted or assessed, if it were referred to such authority for the purposes of the payment of stamp duty.] 3.6 As per sub-section 2 of section 50C, the assessee needs to make a claim before the AO that the value adopted or assessed by the Stamp Valuati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... argued that the whole issue was represented before the ld. CIT(A) in a very detailed manner by bringing to his notice specifically that FMV of the plot was lower than the stamp duty valuation and therefore the value as per stamp duty authority could not be taken for the purposes of calculating the capital gains. The ld. AR therefore prayed that following the ratio laid down in the decision of Hon ble Calcutta High Court, the order of ld. CIT(A) be set aside and the matter be restored to the file of the AO to make assessment after referring the matter of valuation to the DVO. 6. On the other hand, the ld. DR strongly objected the to the arguments of the ld.AR and submitted that the assessee has not raised this issue before the AO and now taking this plea before the Tribunal to get advantage of provisions of section 50C. Accordingly, the ld. DR prayed that the orders of authorities below be confirmed and the appeal of the assessee be dismissed . 7. We have carefully considered the rival contentions and perused the material placed before us including the orders of authorities below and case law relied upon by the assessee. We find that the assessee has sold plot of land at Band ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... set out hereinabove the recital appearing in the Deeds of Conveyance upon which the assessee was relying. Presumably, the case of the assessee was that price offered by the buyer was the highest prevailing price in the market. If this is his case then it is difficult to accept the proposition that the assessee had accepted that the price fixed by the District Sub Registrar was the fair market value of the property. No such inference can be made as against the assessee because he had nothing to do in the matter. Stamp duty was payable by the purchaser. It was for the purchaser to either accept it or dispute it. The assessee could not, on the basis of the price fixed by the Sub-Registrar, have claimed anything more than the agreed consideration of a sum of ₹ 10 lakhs which, according to the assessee, was the highest prevailing market price. It would follow automatically that his case was that the fair market value of the property could not be ₹ 35 lakhs as assessed by the District Sub Registrar. In a case of this nature the assessing officer should, in fairness, have given an option to the assessee to have the valuation made by the departmental valuation officer contempla ..... X X X X Extracts X X X X X X X X Extracts X X X X
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