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TMI Blog2019 (12) TMI 1435X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessee in this appeal read as under : 1. The Ld. CIT(A) erred in confirming action of the Assessing Officer in adding Rs. 31,09,920/- to Short Term Capital Gain under section 50C of the IT Act, 1961 by taking Sale consideration based on value assessed by Stamp valuation authority. 2. The Ld. CIT(A) failed to understand that appellant is engaged in business of construction and development of properties and units sold were stock in trade and not capital asset and therefore provisions of Section 50C are not applicable in appellant's case. 3. The Ld. CIT(A) erred in setting aside the assessment to make reference to DVO. 4. The Ld. CIT(A) erred in holding that not making reference to DVO is a procedural lacunae. 3. Briefly stated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng or both; there is a difference between apparent consideration and the value adopted by the Stamp Valuation Authority. Therefore, the AO computed STCG u/s. 48 after substituting the apparent consideration shown in the agreement by the value adopted or assessed by the Stamp Valuation Authority for the purpose of payment of stamp duty in terms of section 50C. Relying on the decision of the Special Bench of the Tribunal in the case of ITO v. United Marine Academy dated 28.04.2011, the AO re-computed the STCG on sale of office premises at Rs. 1,35,46,940/- as against Rs. 1,09,42,850/- shown by the assessee. 4. In appeal, the ld. CIT(A) held that as per the history of the property submitted before him, it had three different characters prior ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tya Narain Verma (HUF) (ITA No. 4166/Del/2013) for AY 2009-10; ACIT v. Tarun Agarwal (ITA No. 343/Agra/2017) for AY 2013-14; K.P. Varghese v. ITO (1981) 131 ITR 597 (SC) ; UoI v. A. Sanyasi Rao (1996) 219 ITR 330 (SC) ; Karanpura Development Co. Ltd. v. CIT (1962) 44 ITR 362 (SC). Also the Ld. counsel files a copy of the written submission furnished before the AO and CIT(A). 5.1 Referring to para 15 of the order of the Ld. CIT(A), the Ld. counsel submits that as per section 251 of the Act, the CIT(A), in an appeal against an order of assessment, may confirm, reduce, enhance or annul the assessment and therefore, he has no power to restore/set aside the matter to the file of the AO. 6. On the other hand, the Ld. Departmental Represen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the state authority for the purpose of stamp duty ; the very purpose of sub-section (2) to section 50C is that a valuation officer is an expert of the subject for such valuation and is certainly in a better position than the Assessing Officer to determine the valuation ; the non-compliance of the provisions laid down under sub-section (2) by the Assessing Officer cannot be held valid and justified. In Tarun Agarwal (supra), the Tribunal held that the Department cannot be allowed a second inning, by sending the matter back to the AO, enabling him to fill the lacunae and shortcomings and putting the assessee virtually to face a retrial for no fault of him and to again prove before the AO that the sale consideration was the "fair mar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CIT(A) has directed the AO to make a reference to Valuation Officer in accordance with the provisions of section 50C(2) and adopt figure as determined by him read with provisions of relevant section. As per section 50C(2), if the following conditions are satisfied, the Assessing Officer may refer the valuation of relevant asset to a Valuation Officer in accordance with section 55A of the Act : i. Where the assessee claims before the Assessing Officer that the value adopted or assessed of assessable by the stamp valuation authority exceeds the fair market value of the property as on the date of transfer ; and ii. The value so adopted or assessed or assessable by stamp valuation authority has not been disputed, in any appeal or rev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the case back to the Assessing Officer for making a fresh assessment in accordance with the directions given by the Commissioner (Appeals) and after making such further inquiry as may be necessary, the Assessing Officer shall thereupon- -(w.e.f. 1-6-2001) proceed to make such fresh assessment and -(w.e.f. 1-6-2001) determine, where necessary, the amount of tax payable on the basis of such fresh assessment. 7.4 In the instant case, the Ld. CIT(A) has directed the AO to make a reference to the Valuation Officer in accordance with provisions of section 50C(2) of the Act. As mentioned earlier, the CIT(A), in an appeal against an order of assessment, may confirm, reduce, enhance or annul the assessment. He has no power to set aside/restore ..... X X X X Extracts X X X X X X X X Extracts X X X X
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