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TMI Blog2018 (12) TMI 759X X X X Extracts X X X X X X X X Extracts X X X X ..... of ₹ 56,19,000/- after taking into consideration the cumulative effect of all the relevant factors and entertaining the objections taken by ld. AR. In view of foregoing facts the argument of the AR to the effect of ignoring the value determined by the DVO and taking the actual sale consideration as full value of consideration, when the former is more than the later, deserves to be and is hereby jettisoned. I, ergo, uphold the impugned order. - Decided against assessee. - ITA No.1821/PUN/2017 - - - Dated:- 13-12-2018 - Shri R.S. Syal, Vice President For the Assessee : Shri Sanket M. Joshi For the Revenue : Shri M.K. Verma ORDER PER R.S. SYAL, VP : This appeal by the assessee emanates from the order passed by the CIT(A)-1, Nashik on 01.05.2017 in relation to the assessment year 2013-14. 2. The only issue raised in the present appeal is against confirming the addition of ₹ 4,96,400/- made by applying the provisions of section 50C of the Income Tax Act, 1961 ( hereinafter referred to as the Act ). 3. Succinctly, the facts of the case are that the assessee sold a plot on 23.11.2012 situated in Nashik Municipal limits at S. No.726/1-B thro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n CIT VS. Dr. Indra Swaroop Bhatnagar (2012) 349 ITR 210 in which case also the similar proposition has been reiterated by holding that : `it is crystal clear that generally, when the A.O. has obtained the D.V.O. Report then the same is binding . It is thus clear that the report of the DVO is binding on the AO, unless the assessee shows some glaring mistakes in such valuation. I, therefore, uphold the stand taken by the ld. CIT(A), in principle, on this score. 6. Now, I turn to the specific objections of the assessee against the report of the DVO. Firstly, the ld. AR submitted that the DVO considered three sale instances with varying rates of ₹ 10900/-, ₹ 15614/- and ₹ 15714/- per square metre respectively, but determined the fair market value of the property at ₹ 18,808/- p.s.m. It was submitted that the DVO should have restricted himself to the rates as per the sale instances rather than increasing the fair market value of the property beyond such rates. This was opposed by the ld. DR. 7. I do not find any substance in the argument of the ld. AR. It is apparent from sale instances noted by the DVO on page 38 of the paper book that these sales took ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erty also. Since no litigation was pending as on the date of sale, there can be no relevance of any future litigation in the valuation of property. The DVO has rightly noted this fact in para 8.2 of his report while dealing with the objection (1) of the assessee. There is no force in this contention as well, which is hereby repelled. 10. The ld. AR submitted that difference between fair market value as determined by the DVO and the sale consideration is only 10.57%. It was urged that such a difference should be ignored. For this proposition, he relied on an order passed by Pune Bench of the Tribunal in the case of Rahul Constructions Vs. Deputy Commissioner of Income Tax (2010) 38 DTR 0019 (Pune). This argument was opposed by ld. DR who relied on an order of the Kolkata Bench of the Tribunal in Heilgers Development Construction Co. (P) Ltd. Vs. Deputy Commissioner of Income Tax, Central Circle-II, Kolkata, (2013) 32 taxmann.com 147 (Kolkata-Trib.), in which it has been held that in the absence of any tolerance band prescribed in section 50C, where difference in stamp duty value and stated sale consideration was less than 15 per cent of stamp duty value, section 50C could be in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has intended and made its view clear with full force, which becomes manifest from the use of the word `shall in the deeming provision. Once there is a compulsory command of deeming the stamp value as the full value of consideration, the moment it is more than the actual sale consideration, the provision gets triggered at that stage itself. One cannot claim that this substitution will be made effective only if the difference between the actual sale consideration and stamp value is more than a particular percentage, which position is plainly absent in the provision. Once some difference is found in the stamp value and the sale consideration on a positive side, section 50C gets activated and the deeming fiction has to come to give logical conclusion to its prescription. There can be no question of searching for any rationality or equity in a deeming provision. One cannot artificially read certain limitations in a deeming provision, which the law has not spelt out. 14. At this juncture, it is pertinent to note the language of subsection (2) of section 50C, which runs as under : - (2) Without prejudice to the provisions of sub-section (1), where- (a) the assessee claims before ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l gains, there can be no warrant for ignoring the stamp value/value determined by the DVO etc. in case the difference between the actual sale consideration and the stamp value/value determined by the DVO is less than a certain specified percentage. Invariably, the stamp value or the value determined by the DVO etc. will have to be substituted with the sale consideration as the full value of consideration, even if the later is a rupee less than the former. 17. Adverting to the facts of the extant case, it is found that DVO, in all fairness, scaled down the fair market value of the plot at ₹ 46,96,400/- as against stamp value of ₹ 56,19,000/- after taking into consideration the cumulative effect of all the relevant factors and entertaining the objections taken by ld. AR. In view of foregoing facts, I am of the considered opinion that the argument of the ld. AR to the effect of ignoring the value determined by the DVO and taking the actual sale consideration as full value of consideration, when the former is more than the later, deserves to be and is hereby jettisoned. I, ergo, uphold the impugned order. 18. In the result, appeal of the assessee is dismissed. Orde ..... X X X X Extracts X X X X X X X X Extracts X X X X
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