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TMI Blog2019 (4) TMI 1022X X X X Extracts X X X X X X X X Extracts X X X X ..... operties should be assessed under the head profit of the business. In the instant case before us, neither the assessee made any request for reference to the valuation officer nor filed any valuation report of the registered valuer in support of claim of fair market value of the properties. In view of the aforesaid, we reject the contention of the learned counsel that the Assessing Officer was bound to refer the matter to the learned DVO. In our opinion, the findings of the Ld. CIT(A) on the issue in dispute are well reasoned and we do not find any error in the same and accordingly, we uphold the same. - Decided against assessee. - ITA No.12/Del/2019 - - - Dated:- 12-4-2019 - Shri Bhavnesh Saini, Judicial Member And Shri O.P. Kant, Accountant Member For the Appellant : S/shri I.P. Bansal Vivek Bansal, Advocates For the Respondent : Smt. Rinku Singh, Sr.DR ORDER PER O.P. KANT, A.M.: This appeal by the assessee is directed against order dated 05/10/2018 passed by the Ld. Commissioner of Income-tax (Appeals)-XXVI, New Delhi [in short the Ld. CIT(A) ] for assessment year 2013-14, raising following grounds: 1. That under the facts and circumstan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iew of the provisions of section 50C of the Act, the sale consideration for the purpose of computing capital gain, was to be taken as actual sale consideration or the value adopted by the Stamp Valuation Authority (SVA) of the state government, whichever is higher. The learned Assessing Officer computed the short-term capital gain from sale of 13 properties at ₹ 1,01,56,314/- in the assessment passed under section 143(3) of the Act, as against the short-term capital gain of ₹ 52,44,274/- declared by the assessee. On further appeal, the Ld. CIT(A) upheld the addition made by the Assessing Officer. Aggrieved, the assessee is in appeal before the Tribunal raising the grounds as reproduced above. 3. The sole issue involved in the grounds raised by the assessee is of invoking section 50C of the Act and computing the short-term capital gain. 3.1 Before us, the ld. counsel of the assessee submitted that in the grounds of appeal, the assessee has contested addition of ₹ 50,61,000/-, which has two components as under: (i) By invoking section 50C Rs.49,12,040/- (ii) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3(f) 3.5 Further, the learned counsel submitted that without prejudice that the income should have been taxed under the head profit and gains of the business , as an alternative, prior to invoking section 50C of the Act, the Assessing Officer should have referred the matter for valuation of the property to the Ld. District Valuation Officer. In support of his contention that for invoking section 50C of the Act, the Assessing Officer was bound to make reference to the DVO under section 50C(2) of the Act, the Ld. counsel relied on following case laws: ❖ Sunil Kumar Aggarwal Vs CIT 372 ITR 83 (Cal) - Para -8 ❖ Voltas Ld. Vs. ITO 161 ITD 199 (Mumbai) - Para 4.1 Page 7 3.6 On the contrary, the Ld. DR on the issue of addition of ₹ 49,12,040/- submitted that, (i) the assessee himself has shown these assets as capital asset in the return of income and shown long-term capital gain (LTCG) and short-term capital gain (STCG) on their sale and also claimed deduction under section 54F against the long-term capital gain. (ii) the audit report for the proprietary business shows him as a trader of Agarbatties , Papads and Badies. It does no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 50C(1) is mandatory whereby there is no option to the Assessing Officer but to adopt the valuation done by the SVA in place of apparent consideration shown by the assessee. It has been held that where there was material on record that valuation done by the SVA was more than apparent sale consideration and the Assessing Officer did not adopt the valuation done by the SVA as full value of consideration the order of the Assessing Officer would be erroneous and could be revised by the Commissioner under Section 263 (A.K.G. Consultants (P.) 4. ONUS AND ITS DISCHARGE -Under Section 50C when stamp duty valuation of a property is higher than apparent sale consideration shown in the instrument of transfer then onus to prove that fair market value of the property is lower than such valuation by the SVA is on the assessee who can reasonably discharge this onus by submitting necessary material before the Assessing Officer, such as valuation by an approved valuer. Thereafter onus shifts to the Assessing Officer to show that material submitted by the assessee about fair market value of the property is false or not reliable .(Ravi Kant v.ITO(2007)110 TTJ Delhi 297). 3.8 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... taxed under the head profit and gains of the business or capital gain , should be decided. 4.1 We find that this issue had never been raised before the lower authorities and it is raised for first-time before the Tribunal. In view of the decision of the Hon ble Supreme Court in the case of National Thermal Power Co. Ltd. Vs. CIT, (1998) 229 ITR 383 (SC), legal issues can be entertained by the appellate authorities so long no investigation of fresh facts is required. 4.2 Irrespective of the facts, whether the ground has been filed by way of regular ground or additional ground, we admit the same following the Hon ble Supreme Court in the case of NTPC Ltd. (Supra). We are not agreed with the claim of the learned counsel that nomenclature given in the return of income is not relevant. In the case laws relied upon by the learned counsel, the ratio is that entries made in the books of accounts in case of the transactions are not determinative of the character of the transaction and the transaction must be seen according to the provisions of the Income-tax Act. The case laws are not in relation to income declared by the assessee in the return of income itself. The assesse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he capital asset to a Valuation Officer and where any such reference is made, the provisions of sub-sections (2), (3), (4), (5) and (6) of section 16A, clause (i) of sub-section (1) and sub-sections (6) and (7) of section 23A, subsection (5) of section 24, section 34AA, section 35 and section 37 of the Wealth-tax Act, 1957 (27 of 1957), shall, with necessary modifications, apply in relation to such reference as they apply in relation to a reference made by the Assessing Officer under sub-section (1) of section 16A of that Act. 4.7 On plain reading of the above section, it is clear that it is the assessee who has to claim that the value adopted by the Stamp Valuation Authority is more than the fair market value of the property, and then the Assessing Officer may refer the valuation of the capital assets to the valuation officer. In the case of Ravi Kant (supra) also this onus has been casted on the assessee. In the case of Md. Shoib (supra) also it is held that claim for making reference to the valuation officer has to be justified by the assessee with prima-facie material. In the case of Shard Dinesh Photographer (supra), the Tribunal has held that the Assessing Officer is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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