TMI Blog2019 (12) TMI 451X X X X Extracts X X X X X X X X Extracts X X X X ..... the FMV determined by the DVO and further objections raised by the assessee were rejected. Accordingly under the facts of the case the addition made by the AO was confirmed to the extent of ₹ 8,40,000/- and the balance addition was deleted by the Ld. CIT(A) against which the assessee is in appeal before the Tribunal. In the case of Rahul Constructions vs. DCIT [ 2012 (1) TMI 229 - ITAT PUNE ] passed in ITA No. 1543/Pn/2007 (AY 2004-05) wherein the Tribunal has adjudicated and decided the similar issue in favour of the assessee, where it was held that the margin between the value as given by the assessee and the Departmental Valuer was less than 10 percent and the difference is liable to be ignored and the addition made by the lower authorities on this count cannot be sustained and accordingly, the same was deleted. In the case in hand, the difference between sale consideration shown by the assessee at ₹ 90 lacs and fair market value estimated by the DVO at ₹ 98,40,000/- which was less than 10% and hence, the same is liable to be ignored and, therefore, the addition confirmed by the Ld. CIT(A) is not tenable and needs to be deleted - the addition in disput ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... revailing market rate at that time. However, the AO has not referred the matter to the DVO for the determination of the fair market value of the flat purchased as required under the relevant provisions of the Act. Accordingly the AO has been directed during the appellate proceedings to make such reference to the DVO to meet the principle of natural justice. The DVO, after considering the objections of the assessee and other evidences produced before him by the assessee, has determined the fair market value of the said flat at ₹ 98,40,000/-. The AR has raised certain more objections against the determination FMV by the DVO during the appellate proceedings by stating that the DVO has not considered comparable sale deeds and location of the flat, properly. However, the AR also stated during the appellate proceedings that objections could not be sent to the DVO once again and should be considered in deciding the ground of appeal by the Ld. CIT(A). From the facts of the case, it is noted that reference has been made to the DVO to determine the FMV of the flat purchased by the assessee only due to objection of the assessee and the DVO has determined the FMV at ₹ 98,40,000/- a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by the DVO as per the provisions of s. 50C(2) of the Act. However, according to the learned Departmental Representative once the matter is referred to the DVO and the value determined by the DVO is less than the value adopted by the stamp valuation authorities, the AO has no other option but to adopt the value so determined by the DVO. We find the provisions of s. 50C read as under: 50C. (1) Where the consideration received or accruing as a result of the transfer by an assessee of a capital asset, being land or building or both, is less than the value adopted or assessed by any authority of a State Government (hereafter in this section referred to as the 'stamp valuation authority') for the purpose of payment of stamp duty in respect of such transfer, the value so adopted or assessed shall, for the purposes of s. 48, be deemed to be the full value of the consideration received or accruing as a result of such transfer. (2) Without prejudice to the provisions of sub-so (1), where- (a) the assessee claims before any AO that the value adopted or assessed by the stamp valuation authority under sub-so (1) exceeds the fair market value of the property as on the date of transfe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... VO under S. 35 having the effect of enhancing the valuation of any asset or refusing to allow the claim made by the assessee under the said section. We find the provisions of S. 23A(6) and S. 23A(7) and S. 24(5) of the WT Act read as under: 23A(6) If the valuation of any asset is objected to in any appeal under cl. (a) or cl. (i) of sub-so (1) the CWT(A) shall,- (a) in case where such valuation has been made by a Valuation Officer under S. I6A, give such Valuation Officer an opportunity of being heard; (b) in any other case on request being made in this behalf by the AO, give an opportunity of being heard to any Valuation Officer nominated for the purpose by the AO. (a) at the hearing of an appeal, allow an appellant to go into any ground of appeal not specific in the grounds of appeal; (b) before disposing of-any-appeal, make such further enquiry as he thinks fit or cause further enquiry to be made by the AO or, as the case may be, by the Valuation Officer. 23A(7). The CWT(A) may, 24(5) The Tribunal may, after giving both parties to the appeal an opportunity of being heard, pass such orders thereon as it thinks fit, and any such orders may include an order enhancing the asses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... luer was less than 10 per cent, the difference is liable to be ignored and the addition made by the AO cannot be sustained. Since in the instant case such difference is less than 10 per cent and considering the fact that valuation is always a matter of estimation where some degree of difference is bound to occur, we are of the considered opinion that the AO in the instant case is not justified in substituting the sale consideration at ₹ 20,55,000 as against the actual sale consideration of ₹ 19,00,000 disclosed by the assessee. We, therefore, set side the order of the CIT(A) and direct the AO to take ₹ 19,00,000 only as the sale consideration of the property. 17. The grounds raised by the assessee are accordingly allowed. 5.2 After perusing the aforesaid findings of the Tribunal, I find considerable cogency in the contention of the Ld. Counsel for the assessee that the issue in dispute involved in ground no. 2 is squarely covered by the decision dated 12.01.2019 of the ITAT, Pune-B, Bench, in the case of Rahul Constructions vs. DCIT passed in ITA No. 1543/Pn/2007 (AY 2004-05) wherein, it has been held that the margin between the valu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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