TMI Blog2019 (9) TMI 1227X X X X Extracts X X X X X X X X Extracts X X X X ..... the AO to adopt the value as fixed by the DVO. In the case of the sale of the third property i.e. Chowbaga (West) which was sold by way of a Power of attorney there is no value fixed by the Stamp Valuation Authority as there was no sale deed. This was the reason why the DVO did not fix any value to the property. In our considered opinion, as the properties at Chowbaga (West) are located adjacent to each other, the value fixed by the DVO for plot no. 2, may be taken as the value of plot no. 3 for the purpose of Section 50C of the Act. When this is computed on proportionate basis, the sale value of property would work out to ₹ 6,87,382.39. In our view this value would be fair and reasonable and may be considered as the value fixed by the DVO. Hence we direct the AO to adopt this figure as the full value of consideration u/s 50C of the Act for the purpose of computing LTCG of property no. 3 as this is the sale value declared by the assessee and is in excess of ₹ 6,87,382.39 computed above. Appeal of the assessee is partly allowed. - I.T.A. No. 1780/Kol/2018 (Assessment Year: 2013-14) - - - Dated:- 30-8-2019 - Sri J. Sudhakar Reddy, Accountant Member And Sri S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he reasons vide letter dated 06.01.2016. Thereafter an assessment u/s 143(3) of the Act was framed on 31.03.2016 determining the total income of ₹ 2,36,33,290/-, inter alia determining the LTCG on sale of property at ₹ 2,33,76,477/-. 5. Aggrieved, the assessee filed an appeal. The ld. First appellate authority vide his order dated 08.05.2018 grant part relief. Further, aggrieved, the assessee is before us on the following revised grounds: 1. For that on the facts and in the circumstances of the case, the Ld. CIT(A) ought to have quashed the re-assessment order framed u/s 147 r.w. 143(3) dated 31.03.2016 holding the re-assessment proceedings to be invalid in law. 2. For that the Ld. CIT(A) ought to have accepted the sale consideration value of ₹ 20 lacs as per the sale deed in place of the erroneous fair market value of ₹ 30,24,819/- determined by the DVO in respect of the property at Diamond harbour Road (Madhabpur). 3. For that the Ld. CIT(A) ought to have accepted the FMV of the assessee s share of property located at Chowbga (West) as on 01.04.1981 at ₹ 12,70,020/- in place of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s he submitted that the matter of valuation, for the purpose of Section 50C of the Act, was referred to the Departmental Valuation Officer ( DVO ), by the AO, and as the AO had not received the report of the DVO, he proceeded to adopt the SDV valuation for the purpose of computation of LTCG, by adopting the value fixed by the SDO for the purpose of stamp duty as sale consideration. 9. AS the DVO s report was available before the ld. First appellate authority, he directed the AO to adopt the value of the asset as arrived at by the DVO, for computation of capital gains of sale of property at (1) Mouza Mashapur, P.S. Diamond Harbour, (2) Chowbaga [West][Sale through sale deeds]. As regards the property no.-3 at Chowbaga (West) which was sold through POA, he submitted that the property was located in such a locality, that it became impossible for the assessee to sale for various reasons and hence a POA was given to politically connected persons for the purpose of sale. He submitted that the ld. CIT(A) has directed the AO to apply the SDV rate that is adopted for stamp duty levy purpose. He pointed out that the AO, in the absence of stamp duty value, as the plots were ad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7 and thereafter the AO issued notice u/s 148 of the Act on 01.11.2017. In other words notice u/s 148 of the Act was issued, when the assessee had filed his return of income. The Tribunal held that such notice cannot be given by the AO by ignoring the return of income filed by the assessee. The facts in the case are different and hence this case does not apply. In the case of UP Housing Development Board (supra) Lucknow Bench of ITAT was dealing with the case where the return of income was filed u/s 139(4) of the Act on 31.03.2006. The Tribunal at pages-7 and 8 held as follows: In our considered opinion, if the assessee does not file any return of income on or before the due date as prescribed u/s 139(1) of the Act, then the Assessing Officer may issue notice to the assessee for filing return of income u/s 142(1) of the Act. For the sake of ready reference, we reproduce the provisions of section 142(1)(i) as under: 142(1) (i) where such person has not made a return within the time allowed under subsection (1) of section 139 or before the end of the relevant assessment year to furnish a return of his income or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the AO to adopt the value as fixed by the DVO. In the case of the sale of the third property i.e. Chowbaga (West) which was sold by way of a Power of attorney there is no value fixed by the Stamp Valuation Authority as there was no sale deed. This was the reason why the DVO did not fix any value to the property. In our considered opinion, as the properties at Chowbaga (West) are located adjacent to each other, the value fixed by the DVO for plot no. 2, may be taken as the value of plot no. 3 for the purpose of Section 50C of the Act. When this is computed on proportionate basis, the sale value of property would work out to ₹ 6,87,382.39. In our view this value would be fair and reasonable and may be considered as the value fixed by the DVO. Hence we direct the AO to adopt this figure of ₹ 13,94,126 as the full value of consideration u/s 50C of the Act for the purpose of computing LTCG of property no. 3 as this is the sale value declared by the assessee and is in excess of ₹ 6,87,382.39 computed above. In the result, this ground of the assessee is allowed in part. 17. In the result the appeal of the assessee is partly allowed. Kolkat ..... X X X X Extracts X X X X X X X X Extracts X X X X
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