TMI Blog2022 (9) TMI 240X X X X Extracts X X X X X X X X Extracts X X X X ..... in on sale of land and bungalow after taking the value as on 1st April 1981 as declared by the assessee. Hence the ground of appeal of the assessee is allowed. Exemption u/s 54F - As we have allowed the main ground of the assessee with regard to value of the property as on 1st April 1981 which will result into long term capital loss in the hand of the assessee. Therefore, the issue of allowance of exemption under section 54F of the Act become redundant. Hence the ground of appeal of the assessee is hereby dismissed being infructuous. Addition u/s 68 on account of loans or gifts - cash deposit in the bank of the creditors - HELD THAT:- The provision of section 68 of the Act fastens the liability on the assessee to provide the identity of the lenders, establish the genuineness of the transactions and creditworthiness of the parties. The assessee in order to prove the identity and credit worthiness of creditor and genuineness of transaction has furnished the details such as copy of ITR, copy of ledger account confirmation, bank statements, etc. The authorities below also not doubted the identity of the creditor and genuineness of the transaction. The addition was made only f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fficer under s. 143(3) of the Income Tax Act, 1961 (herein- after referred to as the Act ) relevant to the Assessment Year 2011-2012. 2. The assessee has raised the following grounds of appeal: 1.1 The order passed u/s.250 on 13.01.2016 for A.Y. 2011-12 by CIT(A)-7, Abad upholding partly the additions/disallowances made by AO is wholly illegal, unlawful and against the principles of natural justice. 2.1 The Ld.CIT(A) has grievously erred in law and -on facts in confirming the following disallowances/additions: (a) FMV as on 01.04.1981 of Chankheda land (b) FMV as on 01.04.81 of Tribhovan Park Bungalow - (c) Stamp duty value U/S.50C Rs.42,91,837/- (d) Exemption u/s.54F - (e) Unexplained loan and gifts Rs. 12,63, 000/- (f) Unexplained cash deposits in bank Rs. 5,90, 000/ 2.2 That in the facts and circumstances of the case as well as in law, the Ld.CIT(A) ought not to have upheld the above said additions/disallowances. 3.1 The Ld.CIT(A) has grievously erred in law and on facts in confirming the. reference made u/s.55A for valuation as on 01.04.1981 to DVO made by AO as well as the valuation determined by DVO at Rs.183/- per sqm in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quantity Date of sale Date of purchase Sales value (Rs.) Purchases Improvement Transfer Cost Gain / Loss Value Indexed Value Indexed 1 31, Tribhovan Park Co. Op. Housi. Sabarmati, A bad. 24/05/10 01/04/81 2000000 687600 4888836 -2888836 2 Survey No. 621/3 Sim Chandkheda, A bad 05/04/10 01/04/81 2509888 292000 2076120 433768 Index of 2010-11: 711 Total -2455 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1. Land Sur. No. 621/3 05.04.2010 01.04.1981 Rs.25.09.888/- Rs.42,254/- Rs.77,230/- Rs.24,32,658/- Index of 2010-11 : 711 Index of 1999 : 389 In view of the above, an amount of Rs. 24,32,658/- is considered as long term capital gain from the sale of above mentioned land. 4.3 Likewise, the AO also found that the Assistant Valuation Officer of the Income Tax Department has considered the value of the building as on 1 April 1981 at ₹ 2,67,805.00 only. According to the AO, the capital gain needs to be revised after considering the value of the property taking cost of acquisition as on 1 April 1981 at ₹ 2,67,805.00 instead of 6,87,600.00 shown by the assessee. The AO further has also adopted the sale consideration by taking the stamp duty value in the manner provided under section 50C of the Act. As such, the AO has revised the long-term capital gain with respect to the impugned bung ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly, the assessee transferred two properties being land and bungalow and the cost of the same as on 1 April 1981 was valued by the registered valuer which were not believed by the AO for the reason that the registered valuer not provided the basis of valuation and evidence thereto. In the opinion of the AO the value made by the registered valuer was exorbitant. Thus the AO referred the issue to the DVO under the provision of section 55A of the Act. Thus, the issue before us arises for our adjudication whether the AO can substitute the value determined by the registered valuer as on 1st April 1981 in the given facts and circumstances. For this purpose we refer to the provisions of section 55A of the Act as applicable for the year under consideration which reads as under: [Reference to Valuation Officer. 43 55A.With a view to ascertaining the fair market value of a capital asset for the purposes of this Chapter 44, the 45[Assessing] Officer may refer the valuation of capital asset to a Valuation Officer- (a) in a case where the value of the asset as claimed by the assessee is in accordance with the estimate made by a registered valuer, if the 45[Assessing] Officer is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r thereto. Clause (b) of section 55A is in two parts and permits a reference to DVO if the Assessing Officer is of the opinion that (i) the fair market value of the asset exceeds the value of the asset so claimed by the assessee by more than such percentage of the value of the asset so claimed or by more than such amount as may be prescribed in this behalf; or (ii) that having regard to the nature of the asset and other relevant circumstances, it is necessary so to do. Subclause( i) of clause (b) also for the same reasons recorded above, would have no bearing on the fair market value as on 1.4.1981. The Assessing Officer had not resorted to sub-clause(ii) of clause (b). In any case, clause (b) would apply where clause(a) does not apply since it starts with the expression in any other case . In other words if assessee has relied upon a Registered Valuer's Report, Assessing Officer can proceed only under clause (a) and clause (b) would not be applicable. 16. In the present case, admittedly the assessee had relied on the estimate made by the Registered Valuer for the purpose of supporting its value of the asset. Any such situation would be governed by clause (a) of section 5 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (i) that the fair market value of the asset exceeds the value of the asset as claimed by the assessee by more than such per centage81 of the value of the asset as so claimed or by more than such amount81 as may be prescribed in this behalf ; or (ii) that having regard to the nature of the asset and other relevant circumstances, it is necessary so to do, 8.4 A plain reading of the above-amended provisions reveals that the AO was given power to refer the matter to the valuation officer if he s of the opinion that the value claimed by the assessee is at variance with the fair market value. Indeed the AO can refer the matter to the valuation officer if registered valuer value the property as on 1st April 1981 which is at variance with the fair market value. However such amendment is prospective in nature and therefore the same cannot be applied to the earlier years. In this regard, we find support and guidance from the judgment of Hon ble Gujarat High Court in the case of CIT Vs. Gauranginiben S. Shodhan Indl (supra). The relevant extract of the judgment has already been extracted in the preceding paragraphs. 8.5 As the dispute before us relates to the year prior to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tor not established. Hence the AO added the same to the income of the assessee by treating the same as unexplained cash credit under section 68 of the Act. 14. On appeal by the assessee, the learned CIT(A) also confirmed the addition made by the AO. 15. Being aggrieved by the order of the learned CIT(A), the assessee is in appeal before us. 15.1 The learned AR for the assessee before us submitted that the assessee has discharged primary onus cast under section 68 of the Act by furnishing confirmation from the creditor, their bank statement and copy of ITR. The assessee is not required to prove the sources of source. Therefore no addition under section 68 of the Act needs to be made. 15.2 On the other hand the learned DR vehemently supported the order of the authorities below. 16. We have heard the rival contentions of both the parties and perused the materials available on record. The provision of section 68 of the Act fastens the liability on the assessee to provide the identity of the lenders, establish the genuineness of the transactions and creditworthiness of the parties. The assessee in order to prove the identity and credit worthiness of creditor and genuinene ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9.2 are in respect of addition of Rs.5,90,000/- on account of cash deposits on various dates. The AO did not accept that the same was out of agricultural income in the absence of any evidence on agricultural land-holding or income from agricultural produce. The appellant has not offered any explanation in respect of this ground during the appellate proceedings and hence the addition is confirmed. Grounds of appeal Nos. 9.1 9.2 are therefore dismissed. 20. Being aggrieved by the order of the learned CIT(A), the assessee is in appeal before us. 20.1 The learned AR before us contended that the cash was deposited out of the agricultural operations which is exempted income and therefore the same cannot be added to the total income of the assessee. 20.2 On the other the learned DR vehemently supported the order of the authorities below. 21. We have heard the rival contentions of both the parties and perused the materials available on record. The onus lies upon the assessee to justify the cash deposit in the bank account represents the agriculture income. But the assessee has failed to submit any documentary evidence before the lower authorities. At the time of hearing be ..... X X X X Extracts X X X X X X X X Extracts X X X X
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