TMI Blog2021 (11) TMI 95X X X X Extracts X X X X X X X X Extracts X X X X ..... sale consideration in pursuance to the provisions of section 50C - HELD THAT:- Admittedly, the capital asset was transferred by the assessee in the year under consideration through the agreement to sale with possession. All the conditions of section 53A of the Act have been duly satisfied. Therefore, in our considered view the provisions of section 50C of the Act shall be applicable for computing the capital gain. In the present case the property has been transferred by way of an agreement as discussed above. Accordingly, the AO has taken the stamp value for the purpose of computing the capital gain under the provisions of section 50C of the Act which was worked out at ₹ 41,74,217/- only. In view of the above, we hold that the provisions of section 50C of the Act are applicable in the present case for computing the capital gain. Rejection valuation report filed by the assessee - AO cannot reject the valuation report filed by the assessee without referring the same to the DVO under the provisions of sub section (2) of section 50C.AO has not referred the matter to the DVO for determining the fair value of the property as contemplated above - we are inclined to restore ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Disclosed in ITS As per return Income not disclosed 194A 6,76,888 3,68,233 3,08,655 194C 2,39,466 0 2,39,466 194H 59,03,613 52,63,938 6,39,675 4.1 On question by the AO, the assessee with respect to the commission income submitted that he has been raising the invoice to his clients after charging the amount of service tax. However the clients have deducted the TDS under section 194H of the Act on the amount inclusive of service tax. Therefore, there is the difference arising between the income shown in the books viz a viz income shown in the form 26AS issued by the revenue as far as commission income is concern. 4.2 Likewise, the assessee submitted that he has not done any contractual job requiring the parties to deduct the TDS under section 194C of the Act. However one of the party namely M/s Chemplast Sanmar Ltd. has wrongly deducted th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing the course of appellate proceedings, the appellant has contended that the reconciliation statement alongwith the copy of ledger account on the basis of AIR nation is enclosed and from the said reconciliation statement it may please be seen i is duly reconciled and therefore the question of any addition doesn't arise. 7.5 The facts of the case and contentions of the appellant are considered. The appellant has made the same submission which was made before the A.O. during the assessment proceedings. The details furnished by the appellant were duly considered by the AO during the assessment proceedings and as the appellant failed to fully reconcile, A.O has made the addition which is justified and the same is confirmed. Thus the md of appeal is dismissed. 6. Being aggrieved by the order of the learned CIT (A), the assessee is in appeal before us. 7. The learned Authorized Representative before us filed two paper books running from pages 1 to 46 and 1 to 17 and contended that the assessee has furnished the reconciliation statement as per AIR information and the copies of the ledgers which are placed on pages 1 to 37 of the 2nd paper book. But none of the autho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the AO for adopting the sale consideration equal to the janatry/stamp value as per the provision of section 50C of the Act, the assessee filed the valuation report wherein the property was valued at ₹ 3,20,000/- only. 11.2 Besides the above, the assessee also contended that the impugned godown is located in the unauthorized area and the title of this is also not clear. The agreement was also executed at stamp duty of ₹ 100/- which was also accepted by the Registrar of Properties at the time of registration of such agreement. Thus, the assessee contended that the sale consideration cannot be valued for the purpose of stamp duty and therefore the sales declared at ₹ 3,31,000/- should be adopted for the purpose of capital gain. 11.3 However, the AO disagreed the contention of the assessee by observing that the assessee has handed over the possession of the godown to the buyer against the receipt of the payment. Therefore such transaction for the sale of the property is a valid transfer within the meaning of the provisions provided under section 2(47) of the Act read with section 53A of Transfer of Property Act. 11.4 The valuation report furnished by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... AR before us contended that that the property in dispute was unauthorized and therefore the same cannot be subject matter of dispute under the provisions of section 50C of the Act. It was further contended that the land in the revenue records was registered as agricultural land. For this reason as well, the impugned property cannot be subjected to the provisions of section 50C of the Act. 16. On the contrary the learned DR before us contended that there is no ground by the assessee suggesting that the land in question is an agricultural land. Therefore such plea of the learned AR cannot be entertained. Likewise, the ownership of the impugned property has not been disputed by the assessee. Accordingly, the sale consideration has to be determined in the manner as provided under section 50C of the Act. The learned DR vehemently supported the order of the authorities below. 17. We have heard the rival contentions of both the parties and perused the materials available on record. In the present case the assessee vide agreement dated 18 August 2001 has acquired godowns numbers 108 and 109 in Mahalaxmi Estate, revenue survey No. 259 situated at Mauje Village Okaf-Sarkhej, Taluka ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erms necessary to constitute the transfer can be ascertained. (b) Transferee has taken possession of the property. (c) Transferee has performed or is willing to perform his part of his contract. (d) The contract that is required to be registered. (e) The transferor shall be debarred from claiming any right in respect of the property in possession of transferee. 17.3 If the above conditions are satisfied, such transaction would constitute transfer within the meaning of Income-tax Act. In the present case, all the conditions as discussed above have been satisfied. There is no dispute to this effect as well for the reason that the assessee himself had disclosed the income on the transfer of impugned capital asset. 17.4 The provision of section 48 of the Act provides the manner to compute the income chargeable under the head Capital gains , by deducting from the full value of the consideration52 received or accruing52 as a result of the transfer of the capital asset the cost of acquisition of the capital asset. However, the full value of consideration with respect to capital asset being land and building is subject to the provisions of section 50C of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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