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TMI Blog2014 (1) TMI 1625X X X X Extracts X X X X X X X X Extracts X X X X ..... appellate proceeding. 1.3 The learned commissioner of Income Tax (Appeal) has erred in not taking in to account circle rate which is Rs. 24,00,000/- and has taken the rate adopted by the parties at Rs. 64,10,000/-. 1.4 The learned Commissioner of Income Tax (Appeal) has not considered the fact that the value adopted by the assessing officer Rs. 64,10,000/- is not the circle rate adopted by the stamp duty authority but the higher amount of valuation agreed between the parties for paying stamp duty though the property was actually sold for Rs. 10,00,000/- 1.5 The learned Commissioner of Income Tax (Appeal) while passing the order has not appreciated the fact in the same period certain other land were sold by some other parties in the same ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order wherein the AO had mentioned that the section 50C (2) uses the word "may" or not "shall" refer the matter to the valuation officer defined u/s 2(r) of the Wealth Tax Act 1957. The AO has further mentioned that sufficient evidence was not produced before her to enable her to make reference to the valuation sale under clause 50C(2)(b) of the Act. In support the Ld. AR referred following decisions :- 1. ITO vs. Smt. Manju Rani Jain (2008) 24 SOT 24 (Delhi) 2. K.K. Nag Ltd. vs. ACIT (2012) 52 SOT 381 (Pune) 3. N. Minakeshi vs. ACIT 226 CTR 625 (Madras) 4. Nathu Ram Premchand v. CIT. 49 ITR 561 (Allahabad) 5. Commissioner Of Income Tax. v. Gillanders Arbuthnot And Co.( 1973) 87 ITR 407 (SC) 6. Commissioner of Income-tax v. Shakuntala ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ding assessed by stamp valuation authority exceeded fair market value of property , then in terms of section 50C(2) (a) the AO ought to have referred matter to valuation officer instead of straightaway deeming the value adopted by the stamp valuation authority as full value of consideration. Similar are the facts in the cited case of Pune bench in the matter of K.K. Nag Ltd. vs. ACIT (supra) wherein the AO applying provisions of section 50C, adopted stamp duty value of land and building as total sale consideration for the purpose of computing the capital gain. The assessee raised the objection that since it had claimed that the value assessed by the stamp valuation authority exceeded the fair market value, the AO ought to have referred the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to have referred the matter to the Valuation Officer instead of straightaway deeming the value adopted by the stamp valuation authority as the full value of consideration. The point made out by the revenue that it is only discretionary on the part of the Assessing Officer to refer the matter to the Valuation Officer, is quite untenable. The discretion vested in the Assessing Officer in such a situation is required to be used in a judicious manner. Section 50C is a deeming provision and ostensibly involve creation of an additional tax liability on the assessee and, therefore, notwithstanding the presence of the expression 'may' in section 50C (2)(a), the Assessing Officer in this case ought to have referred the matter to the Valuation Office ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... valuation cell under clause 50C(2)(b)." The Ld. CIT(A) has upheld this action of the AO. Thus the point made out by the revenue was that it is only discretion on the part of the AO to refer the matter to the valuation officer to which we in view of the provisions laid down u/s 50(c) of the Act do not concur with. The Pune Bench of the Tribunal in the case of K.K. Nag Ltd. vs. ACIT (supra) after detailed discussion of the provisions laid down u/s 50C of the Act has held that the discretion granted in such a situation is required to use in a judicious manner. Section 50C is a deeming provision and ostensibly involve creation of an additional tax liability on the assessee and, therefore, notwithstanding the presence of the expression 'may' in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in getting the property registered at a lower value. The Ld. AR on the other hand placed reliance on the first appellate order with this submission that relevant facts relating to the claimed capital gain was disclosed fully and truly on the basis of which only the AO had worked out the addition and had levied penalty in question u/s 271(1)(c) relied upon before the Ld. CIT(A) including the decision of Hon'ble Supreme Court in the case of CIT vs. Reliance Petroproducts Pvt. Ltd. 322 ITR 158 (SC). 12. Considering the above submissions we fully concur with the finding of the Ld. CIT(A) in the present case that the valuation of property for stamp duty purposes was rebuttable issue hence in order to prove concealment or furnishing of inaccurat ..... X X X X Extracts X X X X X X X X Extracts X X X X
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