TMI Blog2023 (2) TMI 708X X X X Extracts X X X X X X X X Extracts X X X X ..... ant for determining the sale consideration. Hence, considering the peculiar facts and circumstances, we deem it appropriate to direct the Assessing Officer to take into consideration, the average of three instances as mentioned at Sl. No. 2 to 4 of the chart referred to above and also add the fair market value of covered car parking as well, while estimating the fair market value of the property, as on the date of transfer and determine/compute the capital gain accordingly. Appeal filed by the Assessee stands allowed. - ITA No. 471/Del/2022 - - - Dated:- 17-2-2023 - SHRI PRADIP KUMAR KEDIA , ACCOUNTANT MEMBER AND SHRI N. K. CHOUDHRY , JUDICIAL MEMBER For the Appellant : Sh. Amit Goel , Ld. CA Sh. Nipun Mittal , Ld. CA For ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in as to why the difference in the consideration of the property may not be added to the income of the Assessee and the expenses claimed against the capital gain/loss may not be disallowed as no business activities were carried out during the year. 2.2 In response to the said show cause, the Assessee primarily raised the objections on the valuation report and claimed that the cost of property transacted be computed by adding the expenses incidental to the transfer of property and reiterated that no capital gain is applicable in view of the cost being higher than the sale consideration. The Assessee also claimed that the addition of cost of Rs.16,47,42,469/- and expenses of Rs.84,78,957/- be added to arrive at the cost of asset on the dat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t allowed as the company is not eligible to claim this expense against transfer of property activities and the computation of income furnished by the Assessee is also not correct, so the claim is rejected as such. 3. The Assessee being aggrieved before the ld. Commissioner , also challenged adopting the value of the property to the tune of Rs.17,72,11,000/- as fair market value instead of actual sale consideration to the tune of Rs.15,39,45,000/- by the AO and claimed as under : 3. The assessing officer however disregarded the submission of the assessee and made the addition on the basis of report of DVO. It is humbly submitted that the action of the AO in adopting the value as per report of DVO is and making the addition is erroneo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not be basis for making addition u/s 50C of the Act. Without prejudice to the above, it is submitted that even otherwise the valuation done by DVO is erroneous and excessive. In the report of DVO, the valuation of the property has been made Rs.346148/- per square meter whereas as per the 4 sales instances provided in the valuation report itself the value prevailing was Rs.347141/, Rs.336316/-, Rs.336321A and Rs. 336317/respectively. Thus, the most prevalent rate as per the DVO report itself was around Rs. 336000/per square meter and this rate was also the nearest to the date of sale of property by the assessee among the 4 sales instances provided in the valuation report. The area of property sold by the appellant company is 486.87 sq. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... submitted that since the value as per report of DVO is less than the value adopted for stamp duty purpose, no adverse inference could have, been drawn by AO u/s 50C of the Act. The provisions of sub-section(3) for adoption of value as per stamp duty purpose can be done only where the value determined by DVO exceeds the value as per stamp duty purpose. The provisions of sub-section (3) of section 50C is reproduced as under:- 3) Subject to the provisions contained in sub-section (2), where the value ascertained under sub-section (2) exceeds the value adopted or assessed or assessable by the stamp valuation authority referred to in subsection (1), the value so adopted or assessed or assessable by such authority shall be taken as the full ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rate Date i) Rs.3,47,141/- per sqm 26/12/2013 ii) Rs.3,36,316/- per Sqm 07/08/2014 iii) Rs.3,36,321/- per Sqm 07/08/2014 iv) Rs.3,36,317/- per Sqm 07/08/2014 By referring the aforesaid chart, the Assessee claimed that the DVO in its report, recorded four sale instances referred to above and valued the property at Rs.17,72,11,000/- @ 3,46,148/- per sqm. 5.1 We observe that the DVO has taken into consideration the highest sale instance as mentioned at Sl ..... X X X X Extracts X X X X X X X X Extracts X X X X
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