2012 (12) TMI 749 - AT - Income Tax

Brokerage Expenses adoption of Fair Market Value - reference u/s 142A - Held that - Assessee has filed his objection on 16.12.2009 alongwith documents which were forwarded by the AO to AVO, who has given revised report dated 23.12.2009, which was not confronted to the assessee, which is contrary to the provisions of section 142A AO is duty bound to give assessee an opportunity of being heard such report and making such assessment meaning thereby before completion of the assessment, the AO has to give an opportunity of being heard to the assessee, which has not been granted to the assessee and is contrary to the provisions of section 142A. In the interest of justice, order passed by first appellate authority is not according to law - impugned order deserves to be cancelled, same is cancelled and set aside the issue to the file of AO to decide the issue in dispute afresh in accordance with law after giving opportunity of being heard to the assessee for substantiating the claim and dispute especially on the objections filed by the assessee - AO has to decide the same after providing sufficient opportunity to the assessee before completion of the assessment - appeal of assessee is allowed for statistical purposes.

Summary

Issues:
1. Discrepancy in Fair Market Value determination by CIT(A)
2. Justification of reference u/s 142A
3. Adequate opportunity provided to the appellant during assessment proceedings
4. Rejection of claim of brokerage paid
5. Compliance with provisions of section 142A

Analysis:
1. The appellant challenged the Fair Market Value (FMV) determined by the CIT(A), arguing that the CIT(A) erred in relying on the Assessing Officer's report without properly considering the appellant's written submission. The appellant contended that the FMV should be Rs.892800, not Rs.409380 adopted by the CIT(A.

2. The appellant contested the correctness of the reference made under section 142A, claiming that the CIT(A) was unjustified in holding the reference as per law. The appellant sought a review of the reference's validity and compliance with statutory provisions.

3. The appellant asserted that adequate opportunity was not provided during the assessment proceedings, particularly regarding the revised report of the Authorized Valuation Officer (AVO). The appellant argued that the Assessing Officer (AO) failed to confront the revised report to the appellant and did not grant an opportunity to be heard before making the assessment.

4. The appellant's claim of brokerage paid at Rs.86,400 was rejected by the CIT(A) due to lack of evidence, as the broker did not issue any receipt. The appellant's contention regarding brokerage expenses was not substantiated with supporting documentation, leading to the rejection of the claim.

5. The Tribunal analyzed the provisions of section 142A, emphasizing the requirement for the AO to provide the assessee with an opportunity of being heard after receiving the Valuation Officer's report. The Tribunal found that the AO did not comply with section 142A as the revised report of the AVO was not confronted to the appellant, contravening the statutory provisions. Consequently, the Tribunal set aside the CIT(A)'s order and remanded the issue to the AO for a fresh decision after granting the appellant a proper opportunity to be heard. The Tribunal allowed the appeal for statistical purposes, ensuring compliance with procedural fairness and legal requirements.