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TMI Blog2015 (6) TMI 1236X X X X Extracts X X X X X X X X Extracts X X X X ..... not appreciating the facts that the stamp duty valuation at Rs. 30.03 Lakhs did not pertain to the valuation of the said two flats received by the assessee from the developer. 2. On the facts and in the circumstances of the case and in law, the Ld. CIT(A) erred in not appreciation the facts that the stamp duty valuation at Rs. 30.03 Lakhs pertained to the transfer of development rights by the owner and not the two flats received by the owner from developer in lieu of development rights." 3. On the facts and in the circumstances of the case and in law, the Ld. CIT(A) erred in holding that the right to construct the additional floors under the DCR, 1991 was acquired without incurring any cost, the assessee was not chargeable to tax in re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... addition of Rs. 70 lakhs by rejecting the contention of the assessee that he is entitled to exemption under section 54. It may be noted that with regard to valuation of the property the AO referred it to the DVO but no valuation report was obtained till completion of the assessment. The AO has also not given any basis on which he estimated the value of the property at Rs. 70 lakhs. 6. Aggrieved, assessee preferred an appeal before the CIT(A). Placing reliance upon several decisions of the ITAT Mumbai Benches it was contended that even under section 50C of the Act the value of the property cannot be in excess of the value adopted by the Stamp Duty authorities and, at any rate, the AO has no business to estimate the value and also reject th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... akia (supra), where jurisdictional ITAT, Mumbai has categorically held that in a development agreement with the developer, the receipt by the assessee is a capital receipt, which cannot be brought to tax as per the law laid down by the Hon'ble Supreme Court in the case of B.C. Srinivass Shetty. The ITAT has rendered this decision in the light of the decision of the Hon'ble Apex Court. Therefore, following the decision of the jurisdictional ITAT, it is held that in the instant case also there is no scope for taxing the capital gain in the hands of the appellant. Accordingly, the addition made by the AO deserves to be deleted. 8. Aggrieved, Revenue is in appeal before us. At the time of hearing the learned counsel submitted that even ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ax has approved the request of the AO to prefer an appeal against the order of the CIT(A). We take this opportunity to advice all the Commissioners not to grant authorisation in cases where there is no chance of winning an appeal. In fact we called for the record to verify as to the reasons given by the AO which might have prompted the learned Commissioner to give his authorisation. The record was not made available to us. Be that as it may, in the peculiar facts and circumstances of the case the AO has not made out any case under section 50C of the Act or under any other provisions of the Act to make an addition whereas the learned CIT(A) has given cogent reasons to delete the addition on both the counts. We, therefore, approve the order p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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