9911796707
TMI Blog2010 (12) TMI 435X X X X Extracts X X X X X X X X Extracts X X X X ..... y adopted the circle rate fixed by the Stamp Valuation Authority for the purpose of computing Capital Gain. 2. That the order of the Ld. Commissioner of Income Tax (Appeals)-II, Kanpur is erroneous in law and on facts as Ld. CIT(A)-II, Kanpur has ignored the ratio of the judgment passed by the Jurisdictional ITAT, in the case of Mohd. Shoib vs Dy. CIT (2010) 1 ITR 452 (Luck.)/(2010) 127 TTJ 459 (Luck.) wherein it has been held "When sale consideration is less than the price determined by the stamp valuation authority, Assessing Officer has no option but to adopt the valuation made by the Stamp Valuation Officer". 3. The Commissioner of Income Tax (Appeals)-II, Kanpur has failed to appreciate that the power conferred on the A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of income. The assessee calculated long term capital gain on sale consideration instead of market value (value for stamp purpose). The Assessing Officer required the assessee to explain as to why the long term capital gain should not be calculated as per the provisions of section 54C of the Act and the difference be made as income on account of long term capital gain. The assessee submitted that total sale proceeds received from sale of both the plots was Rs.23,40,000/- although stamp duty was paid on market price/value assessed by the Registrar office at Rs.39,03,000/-. The Assessing Officer was not satisfied with the explanation of the assessee and worked out the long term capital gain by adopting the market value of the plots at Rs.39,03 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e rate of Rs.39,03,000/-. The learned CIT (A) directed the Assessing Officer to adopt the aforesaid value for the purposes of computing the capital gain. Being aggrieved, the department is in appeal. 4. The learned D. R. submitted that the learned CIT (A) has no authority to refer the matter for valuation to the D.V.O. in terms of section 50C of the Act, therefore, the value adopted by the learned CIT (A) was not justified. 5. In his rival submissions, the learned counsel for the assessee submitted that the assessee made his claim before the Assessing Officer to refer the matter to the D.V.O. instead of adopting the circle rate but the Assessing Officer ignored the request of the assessee, therefore, the learned CIT (A) was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction (1) exceeds the fair market value of the property as on the date of transfer; (b) the value so adopted or assessed [or assessable] by the stamp valuation authority under sub-section (1) has not been disputed in any appeal or revision or no reference has been made before any other authority, court or the High Court, the Assessing Officer may refer the valuation of the capital asset to a Valuation Officer and where any such reference is made, the provisions of sub-sections (2), (3), (4), (5) and (6) of section 16A, clause (i) of sub-section (1) and subsections (6) and (7) of section 23A, sub-section (5) of section 24, section 34AA, section 35 and section 37 of the Wealth-tax Act, 1957 (27 of 1957), shall, with necessary modifica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .V.O. was not justified because the facts are altogether different as the reference was made by the Assessing Officer and not by the learned CIT (A). We, therefore, do not see any infirmity in the order of the learned CIT (A) particularly in view of the provisions contained in sub section (4) of section 250 of the Act which reads as under: "(4) The Commissioner (Appeals) may, before disposing of any appeal, make such further inquiry as he thinks fit, or may direct the Assessing Officer to make further inquiry and report the result of the same to the Commissioner (Appeals)." 6.2 In the present case also since the request of the assessee for referring the matter to the D.V.O. was not accepted by the Assessing Officer, therefor ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
