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TMI Blog2018 (6) TMI 287X X X X Extracts X X X X X X X X Extracts X X X X ..... in view factual matrix of the case we are not inclined to interfere with the order of learned CIT(A) which we confirm. The assessee fails on this ground. - I.T.A. No.1038/Mum/2016 - - - Dated:- 1-6-2018 - SHRI SAKTIJIT DEY, JUDICIAL MEMBER AND SHRI RAMIT KOCHAR, ACCOUNTANT MEMBER For The Assessee : Shri. Devdata Mainkar For The Revenue : Shri. Rajesh Kumar Yadav ORDER PER RAMIT KOCHAR, Accountant Member This appeal, filed by the assessee, being ITA No. 1038/Mum/2016, is directed against appellate order dated 17.11.2015 passed by learned Commissioner of Income Tax (Appeals)-3, Thane (hereinafter called the CIT(A) ), for assessment year 2011-12 , the appellate proceedings had arisen before learned CIT(A) from assessment order dated 25-03-2014 passed by learned Assessing Officer (hereinafter called the AO ) u/s 143(3) of the Income-tax Act, 1961 (hereinafter called the Act ) for AY 2011-12. 2. The grounds of appeal raised by the assessee in the memo of appeal filed with the Income-Tax Appellate Tribunal, Mumbai (hereinafter called the tribunal ) read as under:- Being aggrieved by the order dated 17.11.2015 passed by the learned Commiss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the market value adopted by office of Sub-Registrar, Ulhasnagar-2 for the purposes of stamp duty was ₹ 9,03,000/- . The assessee adopted actual value of consideration of ₹ 4,00,000/- for computing long term capital gains while the AO adopted ₹ 9,03,000/- as full value of consideration of afore-said plot of land for the purpose of computing long term capital gains u/s 48 keeping in view provisions and mandate of section 50C, vide assessment order dated 25-03-2014 passed by the AO u/s 143(3). The AO also observed that when confronted with the provisions of Section 50C , the assessee agreed for enhancement of long term capital gains by an amount of ₹ 5,03,000/-. 4. Aggrieved by assessment order dated 25-03-2014 passed by the AO u/s 143(3), the assessee filed an appeal before learned CIT(A). One of the dispute before learned CIT(A) was that the assessee surrendered this amount before the AO which is emanating from the assessment order to which the assessee denied . The learned CIT(A) called for remand report from the AO and this issue was settled in favour of assessee as it emerged from remand report submitted by the AO that the assessee never surrendered th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . We have considered rival contentions and have perused the material on record . We have observed that assessee had sold its plot of land at Serial no. 8 , Shirgaon for consideration of ₹ 4,00,000/- against which stamp duty valuation was ₹ 9,03,000/- as adopted by Sub-Registrar, Ulhasnagar. The AO adopted valuation of ₹ 9,03,000/- as full value of consideration for the purposes of Section 48 for computing long term capital gains keeping in view provision of section 50C. The assessee did not ask for the reference to DVO before the AO for undertaking valuation of the said plot of land for the purposes of computing full value of the consideration on sale of said plot of land u/s 48. However, before CIT(A) the assessee sought reference to DVO for valuation and has also referred to the decision of Hon ble Calcutta High Court in the case of Sh. Sunil Kumar Agarwal (supra) but to no avail . The Ld. CIT(A) did not refer the matter to DVO citing two reasons:- (a) It will delay the proceedings, (b) assessee has not sought the reference to DVO for valuation before the AO during assessment proceedings. In our considered view , power of learned CIT(A) is co-terminus with the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... officer should give an option to the assessee to have the valuation made by the departmental valuation officer. 8. For the aforesaid reasons, we are of the opinion that the valuation by the departmental valuation officer contemplated under Section 50C, is required to avoid miscarriage of justice. The legislature did not intend that the capital gain should be fixed merely on the basis of the valuation to be made by the District Sub Registrar for the purpose of stamp duty. The legislature has taken care to provide adequate machinery to give a fair treatment to the citizen/taxpayer. There is no reason why the machinery provided by the legislature should not be used and the benefit thereof should be refused. Even in a case where no such prayer is made by the learned advocate representing the assessee, who may not have been properly instructed in law, the assessing officer, discharging a quasi judicial function, has the bounden duty to act fairly and to give a fair treatment by giving him an option to follow the course provided by law. The Hon ble Mumbai tribunal in the case of Dilip V Mohindra v ITO in ITA no. 5846/Mum/2014 vide order dated 14.12.2016 had followed the deci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt 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 assesse 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 by the assessee. We have already set out hereinabove the recital appearing in the Deeds of Conveyance upon which the assessee was relying. Presumably, the case of the assessee was that price offered by the buyer was the highest prevailing price in the market. If this is his case then it is difficult to accept the proposition that the assessee had accepted that the price fixed by the District Sub Registrar was the fair market value of the property. No such inference can be made as against the assessee because he had nothing to do in the matter. Stamp duty was payable by the purchaser. It was for the purchaser to either accept it or dispute it. The assessee could not, on the basis of the price fixed by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... resent 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. Thus keeping in view ratio of above decisions and in all fairness to both the rival parties in order to render substantial justice , we set aside the order of learned CIT(A) and restore the matter back to the file of the AO for fresh adjudication of the entire issue on merits after referring the matter to DVO for valuation. The AO/DVO shall give proper and adequate opportunity of being heard to the assessee in accordance of principles of natural justice in accordance with law. The AO/DVO shall admit all necessary evidence submitted by the assessee in its defence which shall then be adjudicated on merits in accordance with law. We order accordingly. 7. The second issue is with regards to purchases made by the assessee from the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the additions. 8. The assessee has now come in an appeal before the tribunal . The learned counsel for the assessee fairly submitted that the assessee surrendered this amount before the authorities below and assessee does not have any record to prove movement of goods such as transport receipt , octroi receipts etc are not available nor consumption/utilisation of goods/ material for the purposes of its business could be proved as no stock records are maintained. It is submitted that no stock register was maintained by the assessee . Only invoices are available along with the ledger account and payments were made by cheque. The Ld. DR strongly contended that the appellate order of learned CIT(A) be confirmed. 9. We have considered rival contentions and perused the material on record . We have observed that the assessee is engaged in business of Builders Developers . The assessee allegedly made purchases from the following five parties to the tune of ₹ 19,92,426/- as detailed hereunder:- S. No. Name of the Party Claimed Purchase Amount 1 Ami Traders ₹ ..... X X X X Extracts X X X X X X X X Extracts X X X X
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