TMI Blog2018 (3) TMI 1200X X X X Extracts X X X X X X X X Extracts X X X X ..... stamp value) being caused in the absence of any such claim (per the return of income or during the assessment proceedings) would lie. No such claim stands preferred even in the appellate proceedings. The difference itself is nominal, and which in fact would work both ways, so that, if anything, the inference would be of the stamp value being reasonable. Irrespective of the quantum of difference (or in ratio), we may add, being deemed consideration, it would, unless challenged, hold. True, valuation is the matter of estimation, but the same is on scientific basis and, besides, has been accorded statutory recognition u/s. 50C(1) and, further, could be challenged (for its correctness) both under the Stamp Act as well as, where not disputed there-under, before the VO, adhering to the principles of equity and fair procedure. The assessee’s case is wholly without merit. Disallowance of the claim for expenditure toward earning commission income - Held that:- The assessee’s claim remains wholly unsubstantiated. In fact, the basis of a claim for expenditure is to be of incurring it wholly and exclusively for the purposes to the assessee’s business. Basing the claim for expenditure on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7; 85,165/-, on a premise different from the AO. 4. That after himself having accepted that assessee had withdrawals to meet the impugned expenses of ₹ 42,582/-, the ld. CIT(A) ought to have accepted the assessee s contention to delete this addition. 8. That all the additions having been made by the AO without affording proper opportunity, the ld. CIT(A) even after conceding on the issue, erred in still upholding the additions disputed hereinabove. Inasmuch as Ground 8 refers to all the grounds, i.e., including qua which there has been no recall by the tribunal (being Grounds 5, 6 7), clarification regarding the scope of Ground 8 in the instant proceedings, was obtained from the ld. Authorized Representative (AR), the asessee s counsel. He conceded to Gd. 8 (in the instant proceedings) being considered as in relation only to Grounds 1 to 4, which is only fair as the other grounds do not survive for consideration. The need for filing an amended Gd. 8 (or another in lieu thereof), which in fact raises an argument which could even otherwise be assumed by the assessee in relation to the issues arising, was accordingly dispensed with. 3.1 Continuing further ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sub-section (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. ( emphasis, through italics, ours) The terms of sec.50C, as apparent, he would submit, are not absolute, so that the AO was bound to confront the assessee before invoking sec.50C, substituting thus the actual sale consideration (on the sale of a plot of land by the assessee) of ₹ 11 lacs by its stamp value of ₹ 12 lacs (as per the transfer document), satisfying thus the principle of natural justice. 3.2 The ld. Departmental Representative (DR) would, on the other hand, rely on the impugned order, stating that the ld. CIT(A) had elaborately discussed the issue at hand, reading out the relevant part (paras 2.3 to 2.5/pgs. 4-6), and whose order has not at all been addressed by the assessee. The mechanism for referring the matter to the Valuation Officer (VO) for resolving any dispute as to valuation, where so, is provided u/s. 50C(2). The assessee in the present case, as pointed out by the ld. CIT(A), had made no such claim before him for the AO to initiate and follow the procedure (for r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the computation u/s. 48, with the stamp value, in the circumstance specified u/s. 50C(1), applicable in the present case. In short, in a case of transfer of a capital asset, being land or building or both, sec.48 is to be read along with sec.50C for computing the capital gains chargeable u/s. 45. The assessee, whose return is to be in terms of the law, ought to have applied s. 50C(1) himself, or specifically state in his return that he considers sec. 50C(1) as not applicable as the conditions of sec.50C(2) are satisfied. That is, it is at the assessee s instance, claiming the fair market value (FMV) of the capital asset/s transferred as being, in his view, lower than the stamp value and, further, the stamp value/s being not under dispute, that the Assessing Officer is to follow the procedure for reference to the Valuation Officer (VO) as prescribed u/s. 50C(2). No such claim stands preferred either per the return of income (as admitted by the ld. counsel before us) or during the assessment proceedings. How, then, we wonder, is the AO in the wrong? What, then, we wonder is the prejudice caused to the assessee ? Why, no such claim stands made even at the first appellate stage ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reinbefore. We have in fact further observed that it is for the assessee to exercise the right for seeking reference under and in terms of sec. 50C(2), and no presumption as to prejudice (i.e., the fair market value being lower that the stamp value) being caused in the absence of any such claim (per the return of income or during the assessment proceedings) would lie. In fact, no such claim stands preferred even in the appellate proceedings. Further, the difference itself is nominal, and which in fact would work both ways, so that, if anything, the inference would be of the stamp value being reasonable. Irrespective of the quantum of difference (or in ratio), we may add, being deemed consideration, it would, unless challenged, hold. True, valuation is the matter of estimation, but the same is on scientific basis and, besides, has been accorded statutory recognition u/s. 50C(1) and, further, could be challenged (for its correctness) both under the Stamp Act as well as, where not disputed there-under, before the VO, adhering to the principles of equity and fair procedure. The assessee s case is wholly without merit. Before parting with this order, we may - our order being appea ..... X X X X Extracts X X X X X X X X Extracts X X X X
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