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TMI Blog2017 (1) TMI 116X X X X Extracts X X X X X X X X Extracts X X X X ..... Act. Thereafter the case of the assessee was selected for scrutiny and the notices under section 143(2) and 142(1) were sent to the assessee and duly served upon him. During the course of assessment proceedings, the AO found that the assessee has shown Long Term Capital Gain of Rs. 1,33,450/- on sale of Plot at Bandra on a sale consideration of Rs. 3,00,00,000/- which was purchased on 14.8.1953 in co-ownership and the assessee's share was 1/3rd. The value of the said flat as on 1.4.1981 was Rs. 9,24,250/- as per the register valuer report which was indexed and capital gains was calculated as under : Date of sale 24.11.2006 Total sale consideration as per agreement [1/3rd share] Rs.1,00,00,000 Date of purchase of flat 14.8.1953 Value of plot as on 1.4.1981 Rs. 9,24,250= 1/3rd share Rs. 3,08,083 Index cost of the plot of land 3,08,083 x 519 100 Rs.15,98,950 Long term capital gain Less deduction u/s 54 Rs.84,01,050 Rs.82,67,600 Taxable long term capital gain Rs.1,33,450/- The assessee claimed deduction under section 54 of the Act to the tune of Rs. 82,67,600/- and offered remaining capital ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 50C(1) is reproduced hereunder ;- "50C. Special provision for full value of consideration in certain cases (1) Where the consideration received or accruing as a result of the transfer by an assessee of a capital asset, being land or building or both, is less than the value adopted or assessed [or assessable] by any authority of a State Government (hereafter in this section referred to as the "stamp valuation authority" ) for the purpose of payment of stamp duty in respect of such transfer, the value 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. (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 16[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 autho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unity provided under sec. 50C(2) of the Act, the Assessing Officer was held to be rigl1t in treating the value of the immovable property by the stamp valuation authority as deemed sale consideration accruing to the assessee on transfer" 3.8 In view of the above discussion, the action of the Assessing Officer in computing Capital Gains based on the value arrived at by the Stamp Duty Authority is upheld and this ground of appeal is dismissed." 5. The ld.AR vehemently submitted before us that the valuation as per the stamp valuation authority of Rs. 3,84,00,000/- was substituted in place of actual sale consideration without referring the matter to the DVO which was in contravention of section 50C (2) of the Act. The ld. AR heavily relied on the order of Calcutta High Court in the case of Sunil Kumar Agarwal v. CIT[2015] 372 ITR 83 (Calcutta). The ld. AR further submitted that the assessee never agreed before the AO for capital gain as computed u/s 50C of the Act and even filed a sworn affidavit dated 21.10.2011 affirming the same. Another copy of valuation report was also filed before the FAA which valued the property at Rs. 17.77 lakhs. The ld. CIT(A) called the remand report fro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... p valuation authority. The case of the assessee is also supported by a decision in which identical issue has been decided by the Hon'ble Calcutta High Court in the case of Sunil Kumar Agarwal (supra), wherein it has been held that in order to ascertain the value of consideration in the case of transfer of capital asset, l value of consideration of capital gain is to be taken on the basis of valuation adopted by the stamp valuation authorities under section 50C(1) of the Act or capital asset is to be referred to the valuation officer for determination of FMV of the property for assessing the capital gain. In terms of decision of Hon'ble Calcutta High Court in the case of Sunil Kumar Agarwal, the Hon'ble High Court has held as under : "We have considered the rival submissions advanced by the learned advocates appearing for the parties. The submission of Ms. Ghutghutia that the requirement of clauses a) and (b) of sub-Section (2) of Section 50C has not been met by the assessee, can hardly be accepted. The requirement of clause (b) of sub-Section (2) of Section 50C was evidently met. The only question is whether the requirement of clause (a) of sub-Section (2) of Section 50C was met b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Hon'ble High Court in the case of Sunil Kumar Agarwal, supra, if the assessee disputes the value as per stamp valuation authority to be substituted in place of sales consideration for the purpose of calculation of capital gain , then the AO should refer the capital asset to valuation Officer to determine the full value of the consideration received or accruing as a result of transfer of capital asset u/s 50C(2) of the Act. In the instant case before us the assessee is disputing the substitution of stamp valuation as per stamp valuation authority as FMV for the purpose of calculation of capital gain and the matter of determining the FMV should be referred to the DVO. Hence, in the present case, we are inclined to set aside the order of the CIT(A) and restore the issue back to the file of the AO for fresh adjudication of the issue of long term capital gain arising out of sale of plot after referring the matter to DVO and hearing the assessee by affording a fair and reasonable opportunity. The appeal of the assessee is allowed for statistical purposes. 9. In the result, appeal of assessee is allowed for statistical purpose. Order has been pronounced in the Open Court on 14.12.20 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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