9911796707
TMI Blog2014 (9) TMI 1199X X X X Extracts X X X X X X X X Extracts X X X X ..... ioner of Income Tax (Appeals) erred confirming adoption of sale consideration at Rs. 9,33,36,352/-. 4. The learned Commissioner of Income Tax (Appeals) erred in confirming action of the Assessing Officer in denying benefit of deduction u/s. 801B(1O). 5. The learned Commissioner of Income Tax (Appeals) erred in directing adoption of value determined by DVO as cost of acquisition. 2. Ld. AR did not press Ground No.1,2 & 4 and consequential relief relating to those grounds, therefore, Ground No.1,2 & 4 are dismissed being not pressed. 3. Apropos Ground No.3, the relevant facts are that the assessee was owner of a piece of land at Kavsar Village, Thane bearing Survey No.199/4 and entered into a development agreement of the said land on 14/11/2006 with M/s. Lalani Builders and Developers. According to Development Agreement the assessee being owner of the land was beneficiary of 35% of the developed carpet area and developer being beneficiary of 65% of the carpet area of the developed land. According to the calculation made by the AO the assessee was beneficiary of 38,457.50 sq.fts to which calculation the assessee has no grievance. However, the grievance of the assessee is with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d reducing the said amount from Rs. 9,33,36,352/- net long term capital gain assessable at 20% was computed at Rs. 9,30,69,256/-. 3.3 The taxability of aforementioned amount as capital gain was agitated in the appeal filed before Ld. CIT(A) alongwith other grounds. The assessee contested the taxability of capital gain in the year under consideration and also the value taken by the AO at Rs. 9,33,36,352/- on the ground that the said value taken was wrong. It was submitted that instead of the said value the value should have been taken at Rs. 3,45,87,500/- which was the value determined by Stamp Valuation Authority in the development agreement. This is evident from Ground No.4 taken by the assessee before Ld. CIT(A). The ground which is reproduced at page-2 of the order of Ld. CIT(A) states as under: "IV. Without prejudice to the above grounds, on the facts and circumstances of the case and in law the AO has erred in determining the impugned capital gain as Rs. 9,66,35,052/- as against Rs. 3,45,87,500/- determined by the stamp valuation authority." 3.4 Further, the assessee had produced additional evidence before Ld. CIT(A) with a request to admit the same under rule 46A. Evid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le as the amendment was made effective only from 1/7/2012. Thus, it was submitted that reference to by the CIT(A) to Valuation Officer was bad in law. It was pleaded by Ld.AR that the valuation adopted by the assessee was not less than the fair market value, therefore, reference under section 55A could not be made by Ld. CIT(A) to the DVO. 5. On the other hand, it was submitted by Ld. DR that the value of sale consideration has rightly been adopted by AO by taking clue from clause 3(g) of the development agreement. He submitted that Ld. CIT(A) has rightly confirmed the action of AO. Thus he pleaded that the order by Ld. CIT(A) should be upheld. 5.1 So far as it relates to ground No.5, Ld. DR submitted that the value has been determined by DVO and Ld. CIT(A) has given the reason for upholding the value determined by the DVO. He submitted that the valuation done by DVO has been given preference by Ld. CIT(A) on the ground that it was based on comparable cases. He submitted that as against that in the valuation submitted by the assessee no comparables were taken into consideration. 6. We have heard both the parties and their contentions have carefully been considered. We have al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... will be different from the value of vacant land. As per clause 18(a) the period of completion of project is mentioned as 48 months from the date of receipt of commencement certificate. The constructed area to be received by the assessee is in an undeveloped project which is yet to commence. Therefore, the value which can be assessed as sale consideration in the hands of the assessee should be akin to the value of similar property in an underdeveloped project which was yet to commence and to be completed in 4 years from the date of commencement of the project as mentioned in the development agreement signed by the assessee. This factor was brought to the notice of both the parties during the course of hearing of the appeal and both of them have agreed that to determine the fair market value for the purpose of determining the sale consideration assessable as capital gain in the above manner, the matter may be restored back to the file of AO. Therefore, we restore the issue raised by the assessee in Ground No.3 to the file of AO with a direction to determine the consideration on which the assessee is liable to pay capital gain as described in the manner aforesaid after giving the asse ..... X X X X Extracts X X X X X X X X Extracts X X X X
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