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TMI Blog2019 (12) TMI 1435X X X X Extracts X X X X X X X X Extracts X X X X ..... the order to the file of the AO. In such a scenario, the order passed by the Ld. CIT(A) being not in conformity with section 251 of the Act is bad in law. Consequently, we annul the impugned order. Assessee appeal is allowed. X X X X Extracts X X X X X X X X Extracts X X X X ..... n the impugned assessment year, it has sold the abovementioned three units for a consideration of ₹ 1,11,30,000/- and since it had claimed depreciation on these units, profit from the same was offered to tax as STCG as per provisions of section 50 of the Act. It was further stated before the AO that for unit B-106, the sale consideration value is more than the market value and for the remaining units i.e B-104 and B-105, the provisions of section 50C are not applicable as these units constitute stockin-trade and depreciated assets. However, the AO was not convinced with the above explanation of the assessee for the reason that section 50C applies where the subject matter of transfer is a capital asset being land or building or both; ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing reference to valuation officer in accordance with provisions of section 50C(2), the Ld. CIT(A) held as under : "In this case the 3 units were sold, not on uniform prices. I find that in paragraph 9 of letter dated 27.10.2014 the assessee had made the submissions as an alternative claim. This was to be considered by the Assessing officer. This procedural lacunae needs to be cleared. Accordingly Assessing Officer is directed to make a reference to Valuation Officer in accordance with provisions of section 50C(2) and adopt figure as determined by him read with provisions of relevant section. The ground is treated as partly allowed." 5. Before us, the Ld. counsel for the assessee relies on the decision in ITO v. M/s Aditya Narain Verma ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tant case the Ld. CIT(A) has only corrected a procedural lacunae and therefore, there is no violation of the provisions of section 251 of the Act. 7. We have heard the rival submissions and perused the relevant materials on record. Now we discuss the relevant case laws relied on by the Ld. counsel. In M/s Aditya Narain Verma (HUF) (supra), the Tribunal held that when the assessee had claimed before the Assessing Officer that the value adopted or assessed by the stamp valuation authority under sub-section (1) exceeds the fair market value of the property as on the date of transfer, the Assessing Officer should have referred the valuation of the capital asset to a Valuation Officer instead of adopting the value taken by the state authority f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the stamp duty valuation. 7.2 It is found that the property was initially held as stock and then converted to fixed assets; from 1993-94 to 2003-04 depreciation was actually claimed; from 2004-05 to 2009-10 depreciation was not claimed as it was leased out; however, despite lease it continued to be depreciable asset even though no depreciation was claimed; the asset was not reconverted to stock. In view of the above factual matrix, the case of the appellant in the instant appeal is distinguishable from the case-laws relied on by the Ld. counsel. We hold that the asset is depreciable. Thus we agree with the view of the Ld. CIT(A). 7.3 However, it is found that in para 15 of the order dated 23.03.2018 the Ld. CIT(A) has directed the AO to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .e.f. 1-6-2001) by the Finance Act, 2001 (14 of 2001) of certain words, viz.,- -"or he may set aside the assessment and refer the case back to the Assessing Officer for making a fresh assessment in accordance with the directions given by the Commissioner (Appeals) and after making such further inquiry as may be necessary, and the Assessing Officer shall thereupon proceed to make such fresh assessment and determine, where necessary, the amount of tax payable on the basis of such fresh assessment" from section 251(1)(a), the power for the first appellate authority to set aside the assessment order has been withdrawn (w.e.f. 1-6-2001). Further, the first appellate authority cannot- -(w.e.f. 1-6-2001) refer the case back to the Assessing Of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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