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TMI Blog2020 (8) TMI 150X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee submitted the complete documents in support of his claim. 3. On the facts and in the circumstances of the case and in law the ld. CIT(A) erred in not considering the claim of the assessee that the provision of Section50C are not applicable on the land so sold by the assessee because the assessee was not the absolute owner of such land but only having the Khatedari rights thereon and he transferred his tenancy rights on such land and ld. CIT(A) erred in not giving her finding on this issue. 4. On the facts and in the circumstances of the case and in law the ld. CIT(A) erred in not confirming the action of the AO wherein he did not deal with the objection of the assessee with regard to applying higher DLC by registrar authorities in the statutory manner. 5. That the order of the ld. CIT(A), confirming the addition made by the AO is arbitrary, capricious and against the law and facts of the case. The order of the ld.CIT(A) in this regard deserves to be set aside and addition made by the AO deserves to be deleted. 6. On the facts and in the circumstances of the case and in law the ld. CIT(A) erred in confirming the addition of Rs. 61.50 lacs made by the AO.'' 2.1 Riv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enclosure). The ld CIT(A) also called remand report from AO on the additional evidence. The AO submitted remand report and the assessee submitted rejoinder. The finding of ld. CIT (A) is at Page 13 of the order of ld. CIT (A). The ld. CIT (A) rejected the argument and claim of assessee for the following reasons: - (i) The assessee himself declared capital gain on sale of land as long term capital gain and even during assessment proceedings it was never pleaded hence the plea is afterthought. (ii) The certificate of Patwari is not appropriate as he is not competent authority to issue the same. (iii) The assessee has not objected to the valuation before the appropriate authorities. If the assessee did not agree with the valuation by Sub registrar, he should have made a request before assessing officer for referring the matter to DVO which was not done. 2.4 With regard to the merit of the addition, the ld. AR of the assessee contended that the agriculture land so sold by the assessee is an rural agriculture land (Page copy of sale deed 14-21 & copy of Jamabandi at page 1-2 of enclosure). The land was situated in Village Chimanpura, Urf Dhab Ka Na, Tehsil Amber, District Jaipur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... [page 13 para 3.5.3 and 3.5.4 of order of CIT(A)]. However ld. CIT (A) has not adjudicated this matter on merit. The ld. CIT (A) has co-terminus powers of the Assessing Officer. Hence, if some claim is not made during assessment proceedings and subsequently it is raised before ld.CIT (A) the same should be adjudicated in the interest of justice which has not been done by ld.CIT (A) in instant case. The another objection of the ld. CIT (A) is with respect to certificate submitted by the assessee in support of distance of the land from municipal limit which was obtained from Village Patwari. The ld. CIT (A) rejected such certificate by holding certificate of Patwari which is not appropriate as he is not competent authority to issue the same. In this regard, this is to submit that the Patwari is also a government revenue authority, therefore the certificate given by him cannot be doubted. Further in the Income Tax Act, there is no prescribed rule regarding submitting the certificate. Further in the remand report, the AO also accepted the contents of such certificate. For this purpose, the ld. AR of the assessee relied on following circular and judgements (i) CBDT vide Circular No. 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e deed the description of the land is agricultural land and at the point of the sale the land was not converted or developed land. The DLC rate of the land was 44,35,410/- per bigha. Accordingly the value of the land as per the DLC rate comes to Rs. 3,66,36,487/-. The sale value declared by the assessee was Rs. 4,92,00,000/- which comes to Rs. 59,56,416/- per bigha. The stamp duty authority levied the stamp duty by assessing the value @ 150% of value declared in the sale deed valued for stamp duty purpose at Rs. 7,38,00,000/- for stamp duty purpose. During the course of assessment proceedings as well as before Ist appellate authority, the assessee objected the value adopted by stamp duty authorities. The assessee sold the agriculture land without any conversion, change in land use or any short of commercial activities. It was explained to AO that since the agriculture land was sold to the company, therefore by virtue of letter No. F7(39) JAN/2013/Part-1/2845-3385 dated 14.07.2014 issued by Director General, Registrar & Stamps Deptt. Kar Bhawan, Ajmer the duty was collected from buyer of land, by assessing the value of land 1.5 time to the normal rate. However, in the case of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -tax Act, 1961 which enabled the Assessing Officer to refer the property under transfer to the Valuation. Officer for determining market value. However, in K.P. Varghese v.ITO (1981) 131 ITR 597 (Supreme Court), it was held that Section 52(2) cannot be applied to genuine transaction unless there are evidences to show that consideration declared in the sale deed is understated. In other words unless the Revenue was able to show that something over and above the sale consideration had passed hands between the transferee and the transferor, Section 52(2) could not be invoked. It became almost a herculean task for the Assessing Officer to collect evidence to show the exchange of additional money for consideration was other than apparent sale consideration. Accordingly, it was considered to insert a deeming provision by way of Section 50C for substituting apparent sale consideration by valuation done by SVA subject to certain conditions., calculating capital gains under Section 48. For the purpose of levy of stamp duty, local committee prescribes circle rate or DLC rate. The DLC rates are considered as indicative of fair market value of the property. The real spirit behind the inserti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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