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TMI Blog2017 (9) TMI 516X X X X Extracts X X X X X X X X Extracts X X X X ..... ly rights were transferred and not the land or building. In the appellate proceedings, the ld.CIT(A) partly allowed the appeal of the assessee by direction the AO to calculate capital gains as per the value of stamp valuation authority u/s 50C and not as per DVO valuation. In our opinion, the ld.CIT(A) has taken a correct view by directing the AO to adopt the value u/s 50C of the Act for the purpose of bringing the capital gain to tax as the transfer price for the purpose of capital gain can not be higher than the FMA u/s 50C of the Act. Accordingly, we uphold the same by dismissing the appeal of the revenue. In the result, the appeal of the revenue is dismissed. - ITA NO.258/Mum/2015 And ITA NO.782/Mum/2015 - - - Dated:- 16-8-2017 - SHRI MAHAVIR SINGH, JM AND SHRI RAJESH KUMAR, AM For The Revenue : Shri Aarsi Prasad For The Assessee : Shri Yogesh Thar ORDER PER RAJESH KUMAR, A. M: The captioned are cross-appeals by the assessee and revenue pertaining to assessment year 2010-11. The appeals are directed against the order of the CIT(A)-12, Mumbai, dated 24.11.2014 which in turn has arisen from an order passed by the Assessing Officer dated 26.3.2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order dated 30.4.2014 wherein the matter was restored to the file of the AO to decide the issue afresh after affording reasonable opportunity of hearing. The ld AR prayed before the Bench that the issue be restored to the file of the AO with similar direction. The ld. DR appeared to be fairly agreed with the contentions of the of AR. 6. We have heard the rival contentions and perused the material placed before us including the orders of authorities below. We find from the record that the similar issue arose in the assessment year 2008-09 and 2009-10 and the same was restored back to the file of the AO. For the sake of convenience, we reproduce operative part of the order as under : 6. From the above, it IS clear that the nexus must exist between the expenditure and the exempt income to attract the provisions of section 14A of the Act. Therefore, the disallowance of expenditure is always in relation to the claim of expenditure and it cannot be more than the claim itself. An identical issue has been considered by the Delhi Benches of the Tribunal in case of Gillette Group India Pvt. Ltd. Vs ACIT (supra). Moreover, in the present case, there are certain expenditures debited to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... edings the AO observed that ₹ 3,03,93,383/- was appearing under the head of loan and advances as on 31.3.2009 as given to Bharat Diamond Bourse whereas the said advanced was not appearing at all in the balance sheet as on 31.3.2010. As there was no corresponding addition in the fixed assets, the assessee was asked vide letter dated 27.7.2012 to furnish details requiring statement of advances and correspondence with Bharat Diamond Bourse with respect to the said advances. The ld. AR of the assessee vide letters dated 7.9.2012, 4.10.2012 replied the querries raised by the AO submitting therein that the advances given to the tune of ₹ 3,03,93,383/- to Bharat Diamond Bourse were transferred in favour of three persons namely Mr.Jaykumar Dhadda, Mr.Narendra Kumar Dhadda and Mr.Dhanraj Dhadda and Sons Private Limited. It was also submitted that the said advances was paid to Bharat Diamonds Bourse for the allotment of commercial office spaces and parkings in the Bandra Kurla Complex which were provisionally allotted to the assessee on different dates. The assessee submitted before the AO that it has transferred rights in the said properties at cost to the persons stated hereina ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ximum limit of stamp duty valuation. As regards the reference of the case to the Dva is concerned, I do not find any infirmity in it because the same can always be a matter of discretion of AO to get an expertise assistance from a specialist like DVO to ascertain the fair market value of an asset to prove that the sale consideration is suppressed. However, in case of immovable property or a right in immovable property (as in the instant case) where the property is under construction, while calculating the capital gains in the cases, where the AO is not satisfied with the sale consideration actually received, the stamp duty valuation can be replaced under the provisions of sec.SOC of LT. Act. Since I have held that in the instant case the provisions of sec.SOC are applicable because the right in question are in respect of an immovable property, therefore, the AO is directed to restrict the sale consideration to the stamp duty valuation as prescribed u/s 50C of IT Act. This ground of appeal is partly allowed . 12. After hearing the rival contentions and perusing the material placed before us including the impugned order on this issue. We find that in this case, the assessee was ..... X X X X Extracts X X X X X X X X Extracts X X X X
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