9911796707
TMI Blog2017 (4) TMI 810X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee, in his letter, dated 21/10/2016,has made a request to admit additional grounds of appeal.It was stated that ground raised by it was legal in nature and would go to the root of the matter.We find that in the additional ground the assessee has raised the issue of transfer of development rights to the builder and taxability of such right.We find that the issue does not require investigation of the facts and that it is a pure legal issue. Therefore, he admitted additional evidence raised by him. Brief Facts: 3. As stated earlier,the AO had passed original scrutiny assessment in the month of December, 2010.Subsequently,the CIT-22 Mumbai, on perusal of the record found that said assessment order was erroneous and prejudicial to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on, that the contention of the assessee that cost of construction was included in the valuation done by the stamp duty authorities were not tenable, that assessee had received a flat of 1580 sq.ft. free of cost in addition the monetary consideration,that the assessee had availed exemption u/s. 54 of the Act for the said flat received as part of consideration, that he had offered only monetary consideration for taxation.The CIT directed the AO to examine the above-mentioned two issues. In his order, passed u/s. 143 (3) r.w.s. 263 of the Act, the AO observed that as per the provisions of section 50 C for transfer of immovable property, the value fixed at Rs. 3.55 crores by the stamp valuation authority,was to be adopted if the value was more ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eement dated 31/12/2006. The FAA referred to the provisions of section 50 C of the Act and stated that the assessee had granted workable power of attorney in favour of the developers, that there was transfer of land by the assessee in favour of the developer for consideration, that provisions of section 50C of the Act were applicable, that the AO had rightly invoked the said provisions. He issued a show cause notice to the assessee asking to explain as to why the market value adopted by the state government should not be considered in place of the agreement value considered by the AO. He further asked the assessee as to why the value of the recommendation should not be taxed as forming part of sale consideration.The FAA in a tabular form ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cost of construction of Rs. 7,500 per sq. ft., that the F AA had not referred the matter to the District Valuation Officer (DVO) though the assessee had disputed the valuation arrived at by the stamp duty authorities, that the actual development rights transferred pertained to half of the piece of land only,that balance was retained by the assessee and members of HUF along with the tenants,that the FAA had not adjudicated the claim of the assessee u/s.54 of the Act with regard to cost of construction received, that the AO/FAA had not considered the facts with regard to valuation of the property, that the valuation of the property adopted by both the authorities was incorrect, that the valuation should have been done on the area offered for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d decided the issue in favour of the assessee,that during the assessment/appellate proceedings,challenging the order passed u/s.143(3)r.w.s.263 the order of the then FAA was not considered,that one of the grounds raised the assessee before the FAA remained unadjudicated.In our opinion,in these circumstances,the matter should be restored back to the file of the FAA for fresh adjudication,in the interest of justice.The FAA is directed to decide the issue de novo after affording a reasonable opportunity of hearing to the assessee.Effective ground of appeal is decided in favour of the assessee,in part.
As a result,appeal filed by the assessee stands partly allowed.
Order pronounced in the open court on 12th April, 2017. X X X X Extracts X X X X X X X X Extracts X X X X
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