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2018 (4) TMI 792

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..... the case at hand, has not come about, as discussed and so, recourse to section 50C(1) of the Act is not as per law. Accordingly, as also requested by the assessee, the matter is remitted to the file of the AO to be decided afresh in accordance with law, in view of the provisions of the complete section 50C. For this purpose, on reference being made to him by the AO, the DVO shall take into consideration apropos the application or otherwise of the rent capitalization method. - I.T.A No. 97/Agra/2015 - - - Dated:- 13-4-2018 - SHRI A. D. JAIN, JUDICIAL MEMBER For The Assessee : Shri Navin Gargh, AR. For The Revenue : Shri Waseem Arshad, Sr.DR. ORDER This is assessee s appeal for assessment year 2007-08, taking th .....

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..... , illegal and bad in law, and are liable to be quashed/annulled. 7.2 Because in any view, the proceedings initiated u/s 147 by issue of notice u/s 148 in the peculiar facts and law taking recourse to section 50C of the IT Act is wrong, illegal and bad in law. 3. The additional grounds and ground no. 4 are not pressed. Rejected as not pressed. 4. The facts of the case are that on the basis of information received in the office of the AO, during the financial year 2006-07, the assessee has sold a residential property measuring 913.93 sq.mt., having stamp value of ₹ 42,83,000/- to Shri Yogendra Kumar Agarwal for a consideration of ₹ 12,00,000/-. A notice under section 148 of the Act was issued to the assessee on 12.1 .....

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..... ated 18.10.2012, the assessee answered negative. Therefore, the appellant has failed to prove the reasons given by him that the rate of the property is less than the circle rate for the stamp duty valuation. Also, the registered valuer, whose report has been submitted by the assessee, has also not controverted the circle rate by any example or giving any finding which could have been based upon the reasons given by the appellant himself that the sale consideration was less than the value determined for stamp duty purposes. Therefore, considering the above facts, in my view the AO has rightly adopted the market value of the property as per the Stamp Duty valuation for working out the long term capital gain u/s 50C of the Act. Accordingly, th .....

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..... filed before the ld. CIT(A). 7. Per contra, the ld. DR has placed strong reliance on the impugned order. The assessee s written submissions dated 30.07.2012 before the DVO (APB 41-86) have been referred to and it has been submitted that therein, no encumbrance over the property stands mentioned. It has been contended that section 50C is specific and in the present case, the option available there-under has not been exercised by the assessee. 8. Heard. First off as per the two replies filed by the assessee before the DVO, it is evident that the assessee did file the information required by the DVO. It was stated that the assessee has sold 913.93 Sq. Mtr. land to the tenant on 15/03/2007. This Land was on rent @45/- per month with the s .....

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..... , as also considered in CIT vs. Chandra Narain Chaudhri , 1989 UPTC 791 (PB 98/1- 98/10). Under such an encumbrance, the property could not have attracted the same value as compared to that of the case of a vacant or unencumbered property. In CIT vs. Chandra Narain Chaudhri (supra), it was also held that the Stamp Valuation Authority does not take into consideration the attributes of the property, such as encumbrance, for determining the fair market value in case, as in the present one, it is offered for sale and is purchased. He is required to value the property in accordance with the Circle rate. The object of the valuation by the Stamp Valuation Authority is to secure revenue on such sale and not to determine the true, correct and fai .....

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