TMI Blog2021 (2) TMI 1024X X X X Extracts X X X X X X X X Extracts X X X X ..... d in the said land and during the monsoon season part of the land remains water logged. All those factors are duly mentioned in clause 5 of the agreement to sale and that the market value of the land was less than the market value of surrounded land and was fixed keeping in view of such circumstances and relied upon the decision of Co-ordinate Bench in [ 2017 (4) TMI 1531 - ITAT AHMEDABAD] 4 - Assessee before the ld.CIT(A) categorically pleaded that rate of land was determined on the basis of actual position of considering the various factors as illustrated in clause 5 of agreement to sale dated 29.03.2011. Valuation of DVO has not considered those factors as illustrated in para 5 of agreement to sale deed. Co-ordinate Bench in Shri Vinubhai V.Navadia Vs. DCIT, [ 2017 (4) TMI 1531 - ITAT AHMEDABAD] while considering the various factors effecting the sale consideration granted 50% reduction in the deemed value of consideration in the basis of DVO Report. As assessee has brought on record that in second plot, there was a 5 feet deep hole in the ground and a drainage next to the land, Slum cluster next to the plot, water of waste drainage was flooded in the said land and dur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r (A.Y.) 2012-13 on 31.03.2013 declared taxable income of ₹ 53,21,469/-. The case was selected for scrutiny. During the assessment, the Assessing Officer (AO) noted that assessee has sold two pieces of land and have claimed capital gain in the computation of total income. The assessee shown sale consideration less than the stamp value determined by the Stamp Valuation Authority. The AO invoked the provision of section 50C and made reference for determining the Fair Market Value (FMV) by District Valuation Officer (DVO). The AO noted that valuation report was not received from the office of the DVO till the finalization of assessment order. The AO made the following summary of sale consideration shown, rate adopted by stamp valuation authority for the purpose of collection of stamp and the difference therein for both the pieces of land: Land Details Sale Deed Amount (Rs.) Stamp Duty Value (Rs.) Difference (Rs.) Moje Vankla, R.S. No.24 2,40,25,000/- 3,72,43,800/- 1,36,20,133/- Moje Saniya Hemad, R.S. N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tual sale consideration, value determined on Jantri rate and the cost determined by the DVO in following manner: Land Details Sale Deed Amount Rs. Value as per Government Ready Rescknor Prevailing on the date of sale Agreement i.e. up to 31.03.2011 Amount as per DVO Value Rs. Difference Amt. Rs. Difference % Moje Vankla, R.S.No. 24 24025000/- 2,68,98,300/- 26215500/- 21,90,500/- 9.11% Moje Saniya Hemad, R.S.No.56,57/1 57/2 6500000/- 78,91,000/- 8759000/- 13,91,000/- 15.88% 5. On the basis of aforesaid summery, the assessee explained that the variation in the sale consideration and the value determined by DVO is not at much variance and is acceptable. The learned CIT(A) disregarded the contention of the assessee and directed AO to pass rectification order under section 154 by adopting the rate suggested by DVO. 6. The learned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entered into agreement to sale with purchaser vide agreement dated 29.03.2011 and received part consideration by Cheque no.616316 and 616317 drawn on Varcha Cooperative Bank for ₹ 15 lakhs each dated 29.03.2011. The details of cheques are duly mentioned in the agreement to sale, copy of agreement to sale between the seller and the purchaser is on record at page no 42 to 48 of the paper book. The learned AR further invited our attention on Clause 5 of the said agreement wherein various factors regarding fixing the value of sale consideration is recorded. The learned AR for the assessee submits that there was a 5 feet deep hole in the ground and a drainage next to the land. Further, there was Slum cluster next to the plot and water of waste drainage was flooded in the said land. During the monsoon season part of the land remains water logged. All those factors are duly mentioned in clause 5 of the agreement to sale. Thus, the market value of the land was less than the market value of surrounded land and was fixed keeping in view of such circumstances. The learned AR for the assessee submits that though there is no much variation in the sale consideration received by the assesse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the assessee vehemently submitted that with regard to plot no.1 there is variation of 9.11% only and vehemently relied upon the decision of Mumbai Tribunal in Maria Fernandes Cheryl Vs. ITO (supra), wherein the coordinate bench held that amendment in scheme of section 50C(1), by inserting third proviso thereto and by enhancing tolerance band for variations between stated sale consideration vis- -vis stamp duty valuation from 5 percent to 10 percent, are curative in nature, and, therefore, these provisions, even though stated to be prospective, must be held to relate back to date when related statutory provision of section 50C, i.e. 1-4-2003. Considering the decision of Co-ordinate Bench, we find that the difference between sale consideration and the value adopted by DVO is merely 9.11%, as it does not exceed 10%, fiction of section 50C of the Act will not came into play, therefore, capital gain will have to be computed with reference to actual sale consideration only. Hence, we direct the A.O. to delete the addition qua plot no.1. 12. So far as addition with regard to plot no.2 is concerned, the ld.AR of the assessee vehemently submitted there was a 5 feet deep hole in the g ..... X X X X Extracts X X X X X X X X Extracts X X X X
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