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TMI Blog2016 (4) TMI 505X X X X Extracts X X X X X X X X Extracts X X X X ..... sessee is not the owner of the land and it has only a right to claim compensation. Although the assessee had filed various documents to demonstrate that the land of the assessee is a forest land, however, we find the CIT(A) is silent on this issue. The AO in his remand report has also not dwelt upon this issue. It is also a fact that the above claim was not made before the AO although this claim was made before CIT(A) for the first time. Considering the totality of the facts of the case, we are of the considered opinion that the matter requires a re-visit to the file of the AO for proper appreciation of the facts. We therefore deem it proper to restore the issue to the file of the AO with a direction to examine the contention of the assessee that the land in question is a forest land and the assessee is not the owner of the land and it is only entitled to claim compensation. The AO shall decide the issue afresh and in accordance with law after giving due opportunity of being heard to the assessee. - Decided in favour of assessee for statistical purposes. - ITA No.159/PN/2011 - - - Dated:- 4-3-2016 - SHRI R.K. PANDA, AM AND SHRI VIKAS AWASTHY, JM For The Assessee by : Writte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or adjudication at the instance of the assessee has reduced the value by 30% and has determined the value of ₹ 1,19,35,000/-. Since the matter was already referred to the Collector who is an authority higher than the sub registrar, therefore, the AO held that there is no need to refer the matter to the DVO for valuation of the property. The AO accordingly determined the long term capital gain at ₹ 1,09,43,736/-. After allowing for investment u/s.54F on account of purchase of a flat at ₹ 3,57,576/- and deduction u/s.54EC on account of investment in Nabard bonds, the AO determined the long term capital gain at ₹ 13,67,971/-. 5. The AO further noted from the computation of income that the assessee has claimed short term capital loss in respect of a shed at Wakad which is as under : Opening WDV of shed at Wakad Rs.4,37,677/- Less : Sale price Rs.2,55,000/- Short Term Capital Loss Rs.1,82,677/- This loss has been set off against long term capital gain on sale of land. From the details furnished by the assessee, the AO noted that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of appeal or revision or it could be treated as a reference to any authority. In this case the actual market value as per 'ready reckoner' taken out by the State Government for stamps duty purpose was ₹ 1,70,00,000/-. Since the appellant was not agreeable to this valuation, reference was made to the Collector of Stamps for adjudication, who vide order No. 440/545/06 dated 27.02.2006 has recomputed the value of capital asset for the purpose of stamp duty at ₹ 1,19,30,500/-. From the copy of Bombay Stamp Act, furnished by the appellant it is clear that the adjudication u/s 31 was different than appeal 1 revision which could have been filed against the adjudication order at different levels. However, the wordings of section 31 regarding adjudication of the proper stamps, and the facts of the case shows that such adjudication could be covered within the ambit of the phrase reference made before any other authority. This is since as per the ready reckoner rate prescribed by the State Government, there existed a stamp duty valuation of ₹ 1.70 crores in respect of the impugned property; which was on a firm basis, and the assessee had referred the matter for adju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... zette as Forest Land u/s.35 of the Central Act, 1927. Referring to pages 156 and 157 of the paper book the Ld. Counsel for the assessee drew the attention of the Bench to the Gazette Notification dated 16-11- 1961. Referring to pages 45, 47 and 49 of the paper book he drew the attention of the Bench to the Notification of Declaration under the Central Act. Referring to pages 157 and 158 of the paper book he drew the attention of the Bench to the Notice No.31/2723 dated 21-06-1961. He accordingly submitted that the Notification has been issued u/s.35 of the Forest Act, 1927 before the appointed date. Referring to the various pages of the paper book he submitted that the land sold by the assessee was a Forest Land on the appointed date when Maharashtra Act, 1975 came into force. Although various documents were produced before CIT(A) in shape of additional evidence, he submitted that the Ld.CIT(A) has not adjudicated the issue relating to the chargeability of the capital gain on a forest land. He submitted that because of vesting of the land on Government of Maharashtra by virtue of section 3 4 of the Maharashtra Private Forest Prohibition Act, 1975 and Notification under Central Fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2)(b) the matter does not need any reference to the valuation officer. So far as the issue of computation of short term capital gain on sale of shed is concerned he submitted that the matter may be restored back to the file of the AO for re-consideration as held by the Tribunal in the earlier decision. 14. We have considered the rival arguments made by both the sides, perused the orders of the AO and CIT(A) and the paper book filed on behalf of the assessee. We have also considered the various decisions cited before us. We find in the instant case the assessee has challenged the order of the CIT(A) in confirming the action of the AO in bringing to tax an amount of ₹ 13,67,971/- as long term capital gain and ₹ 2,03,700/- as short term capital gain. We find the CIT(A) has observed that the assessee has not submitted anything on the issue of short term capital loss and accordingly confirmed the order of the AO on the said issue. It is the submission of the Ld. Counsel for the assessee that although the balance sheet for the year ending 31-03-2005 and 31-03- 2006 were produced before the CIT(A) and arguments had taken place on different dates, however, the CIT(A) has bru ..... X X X X Extracts X X X X X X X X Extracts X X X X
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