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TMI Blog2014 (1) TMI 349X X X X Extracts X X X X X X X X Extracts X X X X ..... sold the Visweswarapuram property, which is in dispute for the purpose of determination of fair market value on 22.10.2003 - He has purchased the property at Chamiers Road [Chamiers Road property] and sale deed was executed on 15.07.2002 - The CIT(Appeals) without examining the facts in correct prospective, simply following some case law decided the issue - Even the assessee has not explained as to how the property was purchased prior to the date of sale of Visweswarapuram property is eligible for exemption under section 54 - The issue requires reconsideration afresh order of the CIT(A) set aside and the mater remitted back to CIT(A) for reconsideration. Mandatory requirement of notice u/s 251(2) of the Act - Income enhanced without giving notice Held that:- CIT(Appeals) has enhanced the cost of acquisition without issuing notice to the assessee - As per section 251(2), before enhancing any income, a prior notice should be given to the assessee order of the CIT(A) set aside and the matter remitted for reconsideration Decided in favour of Assessee and Revenue both. - ITA No. 109/Mds/2012, ITA No. 261/Mds/2012 - - - Dated:- 27-5-2013 - Shri Abraham P. George And Shri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es beyond control of the assessee, the sale was registered on 22.10.2003 even though the sale agreement has been entered into on 26.10.2001 and also submitted that section 50C have no application to the assessee. The Assessing Officer, after considering the explanation given by the assessee observed that the impugned property was transferred for a sale consideration of Rs.1,03,00,000/- through sale deed executed and registered on 22.10.2003, the property was given possession on the same day i.e. 22.10.2003. As such, the date of transfer cannot be any date other than 22.10.2003. Hence, the stamp duty valuing authority as adopted the value of the property as on 22.10.2003 of Rs.1,24,10,015/- stands adopted. 5. On being aggrieved, the assessee carried the appeal before the CIT(Appeals). 6. The ld. CIT(Appeals) has observed that the assessee, originally had entered into a transaction with the vendor on 01.11.2001when section 50C was not incorporated in the statute. No section can be interpreted retrospectively unless it is mentioned in the section itself. Further he has relied on the decisions of the Hon'ble Supreme Court in the case of Alex George 271 ITR 290 and M/s. Varas Intern ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation. On the date of registration, he has received Rs.76,30,000/-. The case of the Assessing Officer is that on the date of transfer of the property i.e. on 22.10.2003, the fair market value as per the Stamp Valuation Authority of State of Tamil Nadu of Rs.1,24,10,015/- and the same was adopted as deemed sale consideration of the property. The ld. Counsel for the assessee has submitted that even through the sale deed was executed on 22.10.2003, the assessee was originally entered into an agreement with Shri A.T. Krishnakumar for sale consideration of Rs.1,03,00,000/- on 01.10.2001 has to be taken into consideration for the purpose of fair market value of the property for the reason that the delay was beyond the control of the assessee. In appeal, the CIT(Appeals) considered the issue whether section 50C is prospective or retrospective by relying on the decisions of the Hon'ble Supreme Court in the case of Alex George (supra) and M/s. Varas International (supra). In this case, the actual dispute is the date of transfer of the property for determination of fair market value. The CIT(Appeals), without considering this important aspect, simply went on whether section 50C of the Act ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the assessee under section 54 of the Act. Aggrieved, the assessee carried the matter before the CIT(Appeals). 11. The CIT(Appeals) allowed the ground raised by the assessee by following certain decisions without discussing the facts of the case and observed that the assessee had purchased the property within 15 months, where there was a stay of Hon'ble Madras High Court and if the limitation is excluded, it can be treated the assessee has purchased the property within one year. Aggrieved, the Revenue preferred an appeal before the Tribunal. 12. We have heard both parties and perused the orders of lower authorities and find that in this case, the assessee has claimed exemption under section 54 of the Act to the extent of Rs.27,49,809/-. The assessee has sold the Visweswarapuram property, which is in dispute for the purpose of determination of fair market value on 22.10.2003. He has purchased the property at Chamiers Road [Chamiers Road property] and sale deed was executed on 15.07.2002 for a consideration of Rs.32,50,000/-. According to the Assessing Officer the assessee purchased Chamiers Road property on 15.07.2002 i.e. one year prior to sale of Visweswarapuram property on ..... X X X X Extracts X X X X X X X X Extracts X X X X
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