TMI Blog2015 (6) TMI 1236X X X X Extracts X X X X X X X X Extracts X X X X ..... ost sincerity and with an open mind. In the instant case the appeal appears to have been filed in a routine fashion in as much as the AO has no basis for valuing each flat at ₹ 35 lakhs, which is more than double the value adopted by the Stamp Valuation authorities. Even as on date the valuation report has not been obtained from the DVO. Under these circumstances it is difficult to fathom as to how a responsible officer such as Commissioner of Income Tax 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 r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 respect of transfer of these rights. 3. Facts necessary for disposal of the appeal are stated in brief. Assessee was employed with M/s. Minimax Ltd. till 1990 and thereafter he was not having any taxable income. Assessee owned a plot of land being as ancestral property situated in Vile Parle (E) which consisted of ground + 2 floors ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which he estimated the value of the property at ₹ 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 the claim of exemption under section 54F of the Act besides the fact that the cost of acquisition of FSI being Nil it is not assessable to capital gain tax. 7. The learned CIT(A) examined the issue thoroughly to notice that the plea of the assessee deserves acceptance. In this regard he observed, in para 4.2 of his ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... T 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 as on date the valuation report was not obtained from the Valuation Officer and even the AO has no basis for computing the value of the flat at ₹ 35 lakhs, which is beyond the value adopted by the Stamp Valuation Authorities. He also submitted that when there is no cost of acquisition of FSI there ..... X X X X Extracts X X X X X X X X Extracts X X X X
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