9911796707
TMI Blog2012 (8) TMI 394X X X X Extracts X X X X X X X X Extracts X X X X ..... 3. Brief facts of the case are that the assessee had sold its Kolkata plot in September, 2006 for Rs. 3.5 crores with structures etc. In assessment proceedings, it stated that plot was acquired on 1.4.1981 for Rs. 3,73,000/- (enclosed valuer's report in support) and also declared Long Term Capital Loss of Rs. 2.21 lacs. The Assessing Officer came to exfacie conclusion that since the vendee in question had not paid any value with regard to structure etc., the assessee was not entitled to include it in value of structure as cost of asset. 4. The AO made a reference to the Stamp Valuation Authority, Kolkata u/s 50C(1) of the Income Tax Act, 1961 (hereinafter to be referred as the Act) seeking information of assessable value of plot. As there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and cheques from them were dishonoured. 867 cottahs of the property was encumbered and occupied by local mafias and anti-social elements and it became difficult for the appellant to enter the premises. The appellant approached Dr. Sajida Bano by an MOU dated 18.10.2004 to clear the premises of 867 cottahs from mafias and illegal occupants. Dr. Sajida Bano, inspite of being influential and powerful, failed to clear the property from local mafias. The appellant also filed cases against illegal occupants and the cases are pending in the courts. In the facts and circumstances of the case it is to be concluded that this is not a normal sale in the open market but a distress sale as the assessee was unable to find a purchaser who can give him ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 597 held that "the burden lies on the revenue to show that there is understatement of the consideration. It was held that "to throw the burden of showing that there is no understatement of the consideration, on the assessee would be to case on almost impossible burden upon him to establish a negative, namely, that he did not receive any consideration beyond that declared by him." Similar view was taken in the case of CIT vs. Shivakamin Co (P) Ltd (1986) 159 ITR 71 (SC) providing that "Unless there is evidence that more consideration than what was stated in the document of transfer was received, the declared sale consideration was to be accepted." The Assessing Officer has not brought on record any other material to show that the sale consi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sessee could not be served by DVO before sending the valuation report in question, the case in hand be remitted back to the AO so that the assessee could also be associated with for determining the appropriate value of plot in question. 8. Opposing the arguments, learned AR has submitted before us that agreement in question was executed in September 2006 for consideration of Rs. 3.5 crores and its authenticity has not been disputed by the Revenue and there is no dispute so far as the value of the plot as on 1.4.1981 is concerned. The only issue is regarding valuation of the agreement (regarding plot) executed in the year 2006 wherein the Revenue has declared the value as Rs. 73.93 crores as opposed to the assessee's valuation of Rs. 3.5 cr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he AO. 12. We have heard both the learned representatives. Since facts are not in dispute, the same need not be reiterated here. The only issue involved is that of the value of the property in hand regarding which unregistered agreement has been executed in September 2006. Before we may proceed further, it is relevant to reproduce sec. 50C as under: "50C. (1) Where the consideration received or accruing as a result of the transfer by an assessee of a capital asset, being land or building or both, is less than the value adopted or assessed [or assessable] by any authority of a State Government (hereafter in this section referred to as the "stamp valuation authority") for the purpose of payment of stamp duty in respect of such transfer, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is simply charged by deeming certain transaction as transfer as per other provisions of the Act or some transactions of transfer are not registered or are not legally required to be registered under the Registration Act, section 50C cannot be put into operation. Navaneet Kumar Thakkar vs. ITO (2007) 112 TTJ (Jd) 76 : 110 TTJ 525 (Jd) approved. 15. The assessee has adopted / assessed the value of the consideration as Rs. 3.5 crores. Although the Ld. CIT (A) has applied K.P. Varghese case (supra), but in our opinion, once sec. 50C itself is not applicable qua the facts of the instant case, there is no other provision in the Act which could govern the peculiar circumstances in hand. Therefore, we hold that the Ld. CIT (A) has not committed a ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
