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TMI Blog2016 (1) TMI 165X X X X Extracts X X X X X X X X Extracts X X X X ..... of by way of this consolidated order for the sake of convenience. 2. First, we take up the Revenue's appeal in ITA No.1981/Ahd/2009 for AY 2006-07. The Revenue has raised the following grounds of appeal:- 1. The Ld.CIT(A)-XIV, Ahmedabad erred in law and on facts in directing to consider the business income from share trading of Rs. 1,15,01,549/- as short term capital gain eligible for concessional tax treatment u/s.111. 2. On the facts and in the circumstances of the case, the ld.Commissioner of Income-tax(A)-XIV, Ahmedabad ought to have upheld the order of the Assessing Officer. 3. It is therefore, prayed that the order of the ld.Commissioner of Income-tax(A)-XIV, Ahmedabad may be set-aside and that of the Assessing Officer be res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orted the order of ld.CIT(A) and pointed out that the ld.CIT(A) has observed that in earlier assessment, i.e. AY 2005-06, the AO has accepted his treatment as STCG. He further submitted that in the case of brother of the assessee, under the identical facts, the matter travelled upo the stage of Tribunal (ITAT "B" Bench Ahmedabad) in ITA No.706/Ahd/2009 for AY 2006- 07 in the case of ITO vs. Rajesh Balwantbhai Brahmbhatt, dated 31/08/2012, the Tribunal has decided the issue in favour assessee. 4. We have heard the rival submissions, perused the material available on record and gone through the orders of the authorities below. we find that the ld.CIT(A) has given a finding on fact that reads as under:- "3.3. I have considered the facts of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s to make investments and to make gain on sale of shares and it was not to do share trading. Even in earlier year, ie. A.Y.2005-06 the appellant has shown short term capital gain of Rs. 2.16 crores which has been accepted by the A.O. as short term capital gain in assessment made u/s.143(3) of the I.T. Act on 7/12/2007. Considering these facts I hold that the appellant has earned short term capital gain and not business income and so I direct the AO to treat the income as short term capital gain taxable at concessional rte of 10%. This ground is thus allowed." 4.1. The Revenue has not pointed out as to how the facts of the present case are different from the earlier year. When the Revenue in earlier year, i.e. AY 2005-06 has treated the su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the learned CIT(A) erred in confirming the order of the Assessing Officer to the effect that while computing income from long term capital gain, the value adopted for the purpose of payment of Stamp Duty shall be deemed to be the full value of the consideration as per the provisions of Section 50C of the Income-tax Act. 5.1. The ld.counsel for the assessee submitted that the AO has adopted the Jantri value of the property as sales consideration. He submitted that the assessee has declared a LTCG of Rs. 5,19,014/- on the sale of immovable property. The assessee had declared sale consideration of property of Rs. 8,71,400/-. The property was purchased in 1996 at Rs. 1,52,500/-. The AO has observed that the Sub Registrar had assessed the va ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so adopted [or assessed or assessable] shall, for the purposes of section 48, be deemed to be the full value of the consideration received or accruing as a result of such transfer. However, as per sub-clause(2) of Section 50C of the Act, where 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. 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 sub-sections (6) and (7) of section 23A, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... then the valuation as per stamp valuation authority has to be adopted. 10. Now, the main issue for consideration is that if the assessee disputes the valuation as per stamp valuation authority before the Assessing Officer then whether the Assessing Officer is bound to refer the matter to the DVO or not, impliedly whether the term used "may" is to be read as "shall" or not. We find that in subsection (2), an exception has been carved out to the adoption of valuation as per stamp valuation authority and if the conditions laid down in the sub-section are fulfilled, then the claim of the assessee that the valuation as per stamp valuation authority is more than the fair market value, cannot be rejected by the Assessing Officer without comply ..... X X X X Extracts X X X X X X X X Extracts X X X X
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