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TMI Blog2020 (4) TMI 321X X X X Extracts X X X X X X X X Extracts X X X X ..... t for referring the matter of the valuation to DVO which was not accepted. Set aside the issue raised to the file of the Ld. AO with a direction that the assessing officer will refer the matter of valuation of the impugned land to the DVO and after receiving the valuation report decide accordingly as per the provisions of law. Assessee s appeal allowed for statistical purposes. - ITA No.333/Ind/2018 - - - Dated:- 29-1-2020 - Shri Kul Bharat, Judicial Member And Shri Manish Borad, Accountant Member For the Appellant : Shri Gagan Tiwari Ayush Gupta, ARs For the Revenue : Shri Ashish Porwal, DR ORDER PER MANISH BORAD, AM. The above captioned appeal filed at the instance of assessee pertaining to Assessment Year 2014-15 is directed against the orders of Ld. Commissioner of Income Tax (Appeals)-1 (in short Ld.CIT(A) ], Indore dated 11.01.2018 which is arising out of the order u/s 143(3) of the Income Tax Act 1961(In short the Act ) dated 29.12.2016 framed by ACIT (3)-1, Indore. 2. Assessee has raised following grounds of appeal; 1. That the assessment is illegal, void and without jurisdiction. The Assessing Officer has relied on the stateme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . CIT(A) raising following grounds of appeal: 1. In computation of Long Term Capital, the AO has erred in adopting the sale consideration of ₹ 4,67,18,000/- u/s 50C against actual sale value of ₹ 2,45,00,000/-, without referring to valuation officer despite prior request for the same by assessee. 2. The ld. AO erred in not allowing the exemption claimed u/s 54F amounting to ₹ 35,18,588/- in respect of investment in house property against the addition made in income from Long Term Capital Gain. 3. The ld. AO erred in not allowing the exemption claimed 54EC amounting to ₹ 50,00,000/- in respect of investment in infrastructure Bonds, against the addition made in Income From Long Term Capital Gain. 4. The ld. AO erred in addition of Employee s Contribution towards PF/ESIC of ₹ 20509/- u/s 36(1)(va) of the IT Act 1961. 5. Ld. CIT(A) partly allowed the assessee s appeal by allowing ground no.2, 3 4 as referred above and dismissed assessee s ground No.1 in the alleged addition for Long Term Capital Gain at ₹ 4,33,31,197/-. 6. Aggrieved assessee is now in appeal before the Tribunal. 7. ld. counsel for the assessee did not m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ied copy of the sale deed at ₹ 4,67,18,000/-. During the course of assessment proceedings assessee filed valuation report issued by Mr. Pramod Saraf and Shri D.K. Jain valuing the impugned land at ₹ 226.59 lacs and 225.00 lacs respectively. Since there was a difference in market value of land as appearing in the registered sale deed, valuation report issued by Mr. Pramod Saraf and Shri D.K. Jain and sale consideration shown by assessee, request was made by the assessee to refer the matter to DVO. Section 50C of the Act reads as follows: Special provision for full value of consideration in certain case. 50C. (1) Where the consideration received or accruing as a result of the transfer by an assessee of a capital asset, being land or building or both, is less than the value adopted or assessed [or assessable] by any authority of a State Government (hereafter in this section referred to as the stamp valuation authority ) for the purpose of payment of stamp duty in respect of such transfer, the value so adopted or assessed [or assessable] shall, for the purposes of section 48, be deemed to be the full value of the consideration received or accruing as a result ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the date of transfer, then the assessing officer may refer the valuation of the capital asset to a Valuation Officer. Though during the course of hearing Ld. DR submitted that the word used may in section 50C(2) of the Act means that the assessing Officer has description to refer or not to refer the matter to the Valuation Officer. 14. We however, observe that in the recent decision of the Coordinate Bench Mumbai in the case of Aavishkar Film (P.) Ltd. vs. ITO,(supra), similar issue came for adjudication wherein the Coordinate Bench after referring to the judgments of Hon'ble High Courts has held that even if in a case where no request is made by the assessee to make a reference to the DVO, the Assessing Officer while discharging a quasi-judicial function is duty-bound to act fairly by giving the assessee an option to follow the course provided by law to have the valuation made by the DVO . 15. The relevant portion of the decision of Mumbai Tribunal in the case of Aavishkar Film (P.) Ltd. vs. ITO,(supra) is reproduced below: We have considered rival submissions and perused the material on record. We have also applied our mind to the decisions relied upon. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessing Officer to make a reference to the DVO for determining the value of the property sold. The contention of the Department that the reference to DVO was not made because the assessee raised the objection before the Assessing Officer purposefully at the fag end to see to it that the proceeding gets barred by limitation, in our view, is unacceptable. Further, at the first appellate stage also learned Commissioner (Appeals) could have directed the Assessing Officer to get the valuation of the property done by the DVO and thereafter proceeded in accordance with law. In case of S. Muthuraja v/s CIT, [2014] 369 ITR 483 (Mad.), the Hon'ble Madras High Court has held that where the assessee objects to the adoption of stamp duty valuation as deemed sale consideration during the assessment proceedings, the Assessing Officer is duty bound to make a reference to the DVO to determine the value of the property as per section 50C(2) of the Act. The other decisions cited by the learned Authorised Representative also express similar view. In fact, the Hon'ble Calcutta High Court in Sunil Kumar Agarwal v/s CIT, [2015] 372 ITR 83 (Cal.), have gone a step further to observe tha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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