2019 (5) TMI 1506 - AT - Income Tax

Computation of capital gain on sale of property - valuation - disputed property in the possession of tenants - CIT(A) directed the AO to adopt market value the property - AO did not receive the valuation report from the DVO till the date of order and the value of the property was ascertained on the basis of ready reckoner rates - whether Assessing Officer was justified in referring the matter to the Valuation officer u/s 50C? - HELD THAT - the development of the said property has not even started till date due to the litigations going on. - the director of the company Shri. Jaikishan Awtani have not got any convenience of the property in his favour till date. The possession of the property still with the tenants and the assessee. The purhcaser director having no authority to collect the rent from the tenants. In other words even after elapse of 23 years, the status of the property is same. Thus in such a scenario the valuation done by the valuation officer on the basis of development method by considering the developmental potential and by considering the built up area rate analyzed /sale and ready flat available in the nearby locality was totally wrong and against the principle of method of valuation of the immovable properties. We are quite convince with the arguments of Ld. AR that the said property which is occupied by the tenants should be valued on the basis of capitalization rental method and not any other method. See SIR MOHD. YUSUF TRUST VERSUS ACIT-18 (1) , MUMBAI 2019 (3) TMI 1455 - ITAT MUMBAI Thus we hold that the property in question cannot be valued as has been directed by the ld CIT in view of the litigations underway and also the fact that the property is in the possession of the tenants. Accordingly, we set aside the order of CIT(A) and direct the AO delete the disallowances. - Appeal of the assessee is allowed.

Summary

Issues Involved:
1. Adoption of Market Value for Property
2. Treatment of Gain on Property as Long Term Capital Gain
3. Applicability of Section 50C for Valuation
4. Acceptance of Valuation Report under Section 55A
5. Consideration of Objections Raised by the Assessee
6. Acceptance of Assessee's Valuation Report

Detailed Analysis:

1. Adoption of Market Value for Property:
The primary issue raised by the assessee was against the order of the CIT(A) directing the AO to adopt the market value of the property known as Sharma House at ?4,05,35,360 for the purpose of calculating the capital gain on sale of property as against the sale price of ?28 lakhs. The assessee argued that the valuation should consider the property's condition, including tenant occupation and ongoing litigation, which significantly impacted its market value.

2. Treatment of Gain on Property as Long Term Capital Gain:
The assessee contended that the gain on Sharma House should be assessed under the head business income, not as long-term capital gain. However, the CIT(A) observed that the property was held as a capital asset and not as stock-in-trade. The AO was justified in treating the gain as long-term capital gain, considering the property's holding period and the nature of the transaction.

3. Applicability of Section 50C for Valuation:
The assessee argued that Sharma House, being stock-in-trade, should not come under the purview of Section 50C of the Income Tax Act. However, the CIT(A) held that the AO was justified in referring the matter to the Valuation Officer under Section 50C, as the property was held as a capital asset and not as stock-in-trade.

4. Acceptance of Valuation Report under Section 55A:
The assessee objected to the acceptance of the Valuation Report under Section 55A, arguing that the provisions were not applicable to the case. The CIT(A) accepted the Valuation Report, noting that the property was sold for a meager profit despite significant potential value due to enhanced FSI and prime location.

5. Consideration of Objections Raised by the Assessee:
The assessee raised various objections regarding the valuation, including the property's tenant occupation, ongoing litigation, and the method used for valuation. The CIT(A) considered these objections but ultimately directed the AO to adopt the market value determined by the Valuation Officer, ?4,05,35,360, for computing the long-term capital gains.

6. Acceptance of Assessee's Valuation Report:
The assessee's registered valuer, Kanti Karamsey & Co., valued the property at ?27 lakhs. The CIT(A) did not accept this valuation, noting discrepancies and the significant difference from the Valuation Officer's report. The Tribunal, however, found merit in the assessee's arguments, particularly the property's disputed status and tenant occupation, and directed the AO to delete the disallowances, allowing the appeal of the assessee.

Conclusion:
The Tribunal concluded that the property in question, due to ongoing litigations and tenant occupation, should not be valued as directed by the CIT(A). The Tribunal set aside the CIT(A)'s order and directed the AO to delete the disallowances, thereby allowing the appeal of the assessee. The Tribunal's decision was influenced by the substantial evidence provided by the assessee, including the property's condition and supporting case laws.