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TMI Blog2015 (8) TMI 1159X X X X Extracts X X X X X X X X Extracts X X X X ..... 14/11/2011 dismissed the appeal of the assessee. Aggrieved by the aforesaid order of ld.CIT(A), the assessee is now in appeal before us and has raised the following grounds. 1. The CIT(A) erred in not considering the revised return filed prior to the date of receipt of assessment order. 2. The CIT(A) erred in not considering & admitting the revised return filed as additional ground vide rule 46A(1)(a) & 46A(1)(c). 3. The CIT(A) erred in not considering the contents of affidavit filed. The assessee cannot be presumed to be aware of the date of passing the assessment order. 4. The CIT(A) erred in not appreciating valuation report valuing the property as on 01/04/1981 filed with the revised return. 5. That the orders of authorities below viz.CIT(A) & A.O. may kindly be set aside & the matter may kindly be restored back to the file of A.O. with necessary directions to recomputed the Long Term Capital Gain working as per revised return filed. 6. The CIT(A) erred in not giving deduction of Section 50EC for Rs. 1,00,000 invested. 7. The appellant craves leave to add, alter, amend, delete/change or modify any or all the grounds of appeal at the time of hearing. 2.2. Subsequ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 04/- and the capital gain was Rs. 9,89,396/-. The submissions of the assessee before AO that in their opinion, the sale rate of Rs. 10,000/- per sq.meter was true and fair market value and that the purchaser paid stamp duty at Rs. 18,500/- per sq.meter without their knowledge was not found acceptable to the AO. Before the AO, assessee also submitted that the case may be referred to DVO which was also not accepted by AO. The AO thereafter proceeded and worked out the capital gain at Rs. 9,89,396/- as against the LTCL of Rs. 1,83,713/- that was worked out by the assessee. Aggrieved by the order of the AO, assessee carried the matter before the ld.CIT(A), who upheld the order of the AO and dismissed the appeal of the assessee by holding as under:- "5. I have gone through the facts of the case. The A.O. has applied Section 50C to determine the Long term capital gain income. He has accepted all other parameters in respect of determination of Long term capital gain, i.e. cost of acquisition as on 01.04.1981 and expenses incurred for the transaction. From the written submissions of the appellant, his grievance is that the revised return which was filed before the period of limitation but ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng to the DVO for ascertaining the fair market value of the property. He further submitted that on identical issue, in the case of co-owners, the matter has been set aside by the Hon'ble Tribunal (ITAT Bench "A" Ahmedabad), order dated 14/05/2015, to the file of AO and the Hon'ble Tribunal has directed AO to make assessment in accordance with the valuation made by the DVO. He therefore submitted that since in the case of co-owners the matter has been set aside, and the issue being identical to that of the co-owners in the present case also, the matter be set aside to the file of AO. The ld.DR, on the other hand, for the Revenue supported the orders of the AO and CIT(A). 6. We have heard the rival submissions, perused the material available on record and gone through the orders of the authorities below. In the present case, the AO had made addition on the basis of the difference in value of the property declared by the assessee as sale consideration and the value that was adopted by the Stamp Valuation Authority. The submission of ld.AR that in the case of co-owners, the matter has been restored to AO by the Tribunal has not been controverted by ld.DR. We find that in the case(s) o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Act for the better appreciation of the submission of ld.counsel for the assessee. "Section 50C(2):- Without prejudice to the provisions of sub-section (1), where- (a) the assessee claims before any Assessing Officer that the value adopted [or assessed or assessable] by the stamp valuation authority under sub-section (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 subsection (1) and sub-sections (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 modifications, apply in relation to such reference as they apply in relation to a reference made by the Assessing Officer under sub-section (1) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to our knowledge. Facts being similar, so following same reasoning, we hold that Assessing Officer was not justified in adopting value of property as adopted by Stamp Valuation Authority without referring to District Valuation Officer for ascertain fair market value of the property. Therefore, following the reasoning of Shri Nikunjkumar H. Jariwala, we set aside the order of authorities below on the issue and issue raised by way of additional ground by assessee is restored back to the file of Assessing Officer with direction to decide the same in accordance with law after providing due opportunity of being heard to assessee". 7. Since the facts of the case are identical to that of co-owners which has been decided by the Coordinate Bench of Tribunal, we, therefore set aside the issue with similar directions as given by the Coordinate Bench of Tribunal,in the case of co-owners, to the file of AO to decide the same in accordance with law after providing reasonable opportunity of hearing to the assessee. Thus, all the grounds raised by the assessee are allowed for statistical purposes. 8. In the result, the appeal of the assessee is allowed for statistical purposes. Order pronounc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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