9911796707
TMI Blog2019 (9) TMI 339X X X X Extracts X X X X X X X X Extracts X X X X ..... perty to someone else because vendee in whose favour right in persona is created has legitimate right to enforce such specific performance of the agreement, if the vendor for some reason is not executing the sale deed. By virtue of agreement to sell, some right is given to the vendee by the vendor. It is encumbrance on the property and on relinquishment of such right confirming parties were getting ₹ 23 lakhs which has also been made subject to tax in their hands. In this situation, we are of the view that the issue needs to be remitted back to the Assessing Officer for determining the fair market value of the property sold by the assessee on the date of sale. He will keep two factors in mind, (a) the fair market value determine ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3. The brief facts of the case are that the assessee has filed his return of income on 29/03/2011 declaring total income at ₹ 2,74,356/-. The case of the assessee was selected for scrutiny assessment and a notice u/s.143(2) of the Act was issued and served upon the assessee. The assessee had acquired a land and building at Darjipura, Dist.Baroda in AY 2005-06 for an alleged consideration of ₹ 16,66.259/-. He entered into an agreement for sale of this property on 12/10/2008 with S/Shri Bhavik B.Trivedi, Milind V. Varavadekar and Smt.Madhuben J. Trivedi. The sale consideration was fixed at ₹ 22 lakhs. This was by way of a notarized agreement. The property was ultimately sold on 21/11/2008 vide Registration No.30154 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d after debiting Indexation cost, determined the capital gain assessable in the hands of assessee at ₹ 59,79,441/-. 5. Appeal to the CIT(A), did not bring any relief to the assessee. 6. Before us, ld.counsel for the assessee submitted that assessee has filed an application for permission to lead additional evidence. He submitted while determining the capital gain assessable in the hands of confirming parties, this property was referred to the District Valuation Officer (DVO) for determination of fair market value, who has determined that value at ₹ 52,56,245/- and in view of this development it is incorrect at the end of revenue to take the sale consideration under the deeming fiction at ₹ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eration on which value of the property was adopted for the purpose of payment of stamp duty. 10. Sub-section (2) of section 50C further contemplates that in case assessee alleges that stamp duty valuation authority under sub-section (1) exceeds the fair market value of the property as on the date of transfer, then the Assessing Officer may refer the valuation of the capital asset to the Valuation Officer. 11. In the present case, following two factors have been pointed out to us. (i) That in the hands of confirming party exercise u/s.50C(2) has been carried out and the DVO has determined the value of the property at ₹ 52,62,245/-. In this situation, full consideration required to be d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the fair market value determined by the DVO while considering the case of confirming parties, and (b) encumbrance created on the property by virtue of agreement dated 10/12/2008 in favour of three buyers S/Shri Bhavik B.Trivedi, Milind V. Varavadekar and Smt.Madhuben J. Trivedi. After assessing the effect of these factors, he will determine the fair market value of the property which can be considered as deemed full consideration u/s.50C for the purposes of computing capital gain u/s.48 of the Act. 13. With the above observation, the issue is remitted back to the file of Assessing Officer for fresh adjudication. 14. In the result, appeal of the Assessee is allowed for statistical purposes. ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
