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TMI Blog2019 (8) TMI 846X X X X Extracts X X X X X X X X Extracts X X X X ..... e s appeal for consideration and adjudication. LTCG computation - applicability of provisions of section 50C - HELD THAT:- In the case on hand, the circumstances are even more acute as the AO who had admittedly made a reference to the DVO vide letter No.ACIT C-3(2)(1)/16-17/105 dated 13.12.2016, strangely did not wait for the DVO s valuation report and hurriedly proceeded to pass the impugned order of assessment on 27.12.2016; just 14 days later; when the DVO had already initiated valuation proceedings by calling for details to be filed by the assessee on 02.01.2017 and had time to submit his Valuation Report upto 30.06.2017. Hon ble Calcutta High Court in the case of Sunil Kumar Agarwal Vs. CIT [ 2014 (6) TMI 13 - CALCUTTA HIGH COURT] has held that there is no reason why the machinery provided by Legislature should not be used and the benefit thereof refused, even in a case where no prayer has been made by the assessee, who may not have been properly instructed. Since the AO, discharging a quasi-judicial function, has the bounden duty to act fairly; he should in all fairness make a reference to the DVO to have the valuation of the said property contemplated under section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appeal on 17/05/2019. Hence, there was delay of 46days in filing the appeal. 4. The delay was due to the reason that, there was no proper advice by my tax consultant within the reasonable period of time to file the appeal. On repeated request made by me to my tax consultant to file the appeal, he finally referred to the Channappa R Nulvi, Chartered Accountants for filing an app. In the process of approaching to Channappa R Nulvi there was a delay of 46days and on 15/05/2019, I approached him and he is preferring an appeal filing on 17/05/2019, before the ITAT. The said delay was beyond my control and not intentional on my part. 2.2 Before us, it was prayed that the delay of 46 days in filing the appeal be condoned in keeping with the principles laid down by the Hon ble Apex Court in MST Katiji and Others (1987) 167 ITR 471 (SC) and the decision of the Hon ble Karnataka High Court in the case of CIT Vs. ISRO Satellite Centre (2013) 263 ITR 549 (Kar). 2.3 The learned DR for Revenue opposed the assessee s plea for condonation of delay. 2.4 We have heard and considered the rival contentions and the material on reco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he IT(A)-3, Bangalore, dated 30.01.2019 for Assessment Year 2014-15, has filed this appeal before the Tribunal wherein he has raised the following grounds:- 1. The order of the Assessing Officer as well as the Commissioner of Income Tax (Appeals) is against the fact and circumstances of the case and against equity and justice. 2. On the fact and circumstances of the case, the Assessing Officer erred in passing the order u/s 143(3) of the Income Tax Act, 1961 hurriedly which is one month earlier to the last date of the passing the order without waiting for the valuation report from the DVO and adopting the stamp duty valuation as the sale consideration received by the Appellant on the sale of the property. 3. On the fact and circumstances of the case, the Commissioner of Income Tax (Appeals) erred in dismissing the appeal on the ground that the valuation of the property referred to the DVO by the Assessing Officer on his own initiation and not at the request of the Appellant. Hence, the Assessing Officer is right in passing the order without waiting for the DVO report. Such action of the Commissioner of Incom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an appraisal of the records before us, it is seen that the assessee sold a property at Site No.11/15-490 vide Khata No.504 situated at Jattipalya Village, Kengeri Hobli, Bangalore South Taluk vide sale deed dated 26.06.2013 for sale consideration of ₹ 80 lakhs and computed LTCG thereon at ₹ 2,94,164/-. In the course of assessment proceedings, the AO noticed that stamp duty was paid by the purchaser as per stamp authorities valuation of the property at ₹ 1,30,68,000/-; while the assessee had only offered ₹ 80 lakhs as sale consideration in the sale agreement. The AO states that in view of the above, the provisions of section 50C of the Act were invoked taking ₹ 1,30,68,000/- as the sale consideration and the LTCG was re-computed at ₹ 50,68,000/-. 3.4.2 In the statement of facts filed by the assessee, in its appeal before the CIT(A) and which the CIT(A) purportedly utilized to dispose of the assessee s appeal ex-parte for non-prosecution, the assessee has submitted as under:- Since the market value mentioned in the sale deed was not the actual consideration, the appellant objected to the adoption of market val ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 50,68,000/-and added the same to the. income returned. The order of assessment is bad in law, in as much as, the Assessing Officer has not adopted the value as per Valuation Officer, after having made a reference to him. The appellant did not have fair opportunity to furnish the particulars to the Valuation Officer, study his proposal and obtain a final Valuation Report. The order of the Assessing Officer is, therefore, opposed to principles of natural justice. 3.4.3 In the impugned order the CIT(A) has dismissed the assessee s appeal holding as under at para 4.7 of the impugned order:- 4.7 The claim of the appellant during appellate proceedings (as in the statement afflicts) that he had made a request to the AO to refer the matter to Valuation Officer is without any basis as neither any such documents have been produced by the appellant during appellate proceedings nor there are any such documents on the assessment records which support the claim of the appellant. el The order sheet notings available on the assessment records also do not show that any such claim was ever made by the appellant before the AO. So the contention ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt; after detailed consideration of the provisions of section 50C of the Act; has held that the valuation by the DVO, contemplated under section 50C of the Act, is required to give fair treatment to the tax-payer and avoid the miscarriage of justice as the Legislature did not intend that the capital gains should be fixed merely on the basis of the valuation to be made by the District Sub-Registrar for the purpose of stamp duty. There is no reason why the machinery provided by Legislature should not be used and the benefit thereof refused, even in a case where no prayer has been made by the assessee, who may not have been properly instructed. Since the AO, discharging a quasi-judicial function, has the bounden duty to act fairly; he should in all fairness make a reference to the DVO to have the valuation of the said property contemplated under section 50C of the Act. In this regard, the Hon ble Calcutta High Court finally at paras 9 to 11 thereof has held as under:- .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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ents in favour of the assessee and against the assessee, then the view favourable to the assessee should be adopted. Respectfully, following the ratio of the aforesaid decision of the Hon ble Apex Court in Vegetable Products Ltd., (supra) and from we drew support, we hold that the decision of the Hon ble Calcutta High Court in the case of Sunil Kumar Agarwal Vs. CIT (2015) 372 ITR 83 (Cal) is to be followed and applied and do so. In this view of the matter, the orders passed by the authorities below i.e., CIT(A) and AO are set aside and we restore the matter of computation of LTCG on sale of the said property by the assessee to the file of the AO. The AO shall obtain the DVO s Valuation Report, as called for by him in his reference dated 13.12.2016 , and after such valuation is made by the DVO, the computation of LTCG shall be made on this issue, de novo in accordance with law and after affording the assessee adequate opportunity of being heard in the matter by both the DVO for valuation proceedings and the AO and to file details required which shall be duly considered by the DVO / AO before deciding the issue. We hold and direct accordingly. Consequently, the grounds raised by the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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