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TMI Blog2022 (7) TMI 1304X X X X Extracts X X X X X X X X Extracts X X X X ..... consequently the AO is duty bound to refer the valuation of the property in question to the DVO for determination of fair market value of the property. Only after getting the fair market value determined by the DVO, the Assessing Officer ought to have computed the capital gain and consequential addition, if any. Thus the impugned order is set aside and the matter is remanded to the record of the Assessing Officer to redo computation of the capital gain after referring valuation of the property to the DVO for determination of the fair market value, as per section 50C(2) of the Income Tax Act. Needless to say, the assessee be given an appropriate opportunity of hearing before passing the fresh order. Appeal of the assessee is allowed for statistical purposes - ITA No.09/VNS/2020 - - - Dated:- 28-7-2022 - Shri. Vijay Pal Rao, Judicial Member For the Appellant : Sh. Praveen Godbole, C.A. For the Respondent : Sh. A.K. Singh, Sr. D.R. ORDER SHRI VIJAY PAL RAO, JUDICIAL MEMBER: This appeal by the assessee is directed against the order dated 24.10.2019 of CIT(A) for the assessment year 2015-16. The assessee has filed following revised grounds:- 1. Tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessee is the actual prevailing market price and further submitted that there was a dispute over the said land between the assessee and Devendra Nath Mishra which is pending before the Hon'ble High Court as well as before District Judge, Ballia. The Assessing Officer did not accept the reply of the assessee and made the addition under section 50C of the Income Tax Act to the short term capital gain by adopting full value consideration at Rs. 28,05,000/-. The assessee challenged the action of the Assessing Officer before the CIT(A) but could not succeed. 3. Before the Tribunal, the learned AR of the assessee has submitted that the assessee purchased the land at mauja Newari Ballia measuring 0.210 hectare (52 decimal) or about 17 Kattha for a consideration of Rs. 16,00,000/- on 27.02.2015. Out of the said land measuring 0.210 hectare, the assessee sold only 0.025 hectare or (6.14 decimal) or about 2 Kattha for a consideration of Rs. 2,00,000/- on 24th March, 2015 and thereby disclosed the short term capital gain of Rs. 85,000/-. 4. He has further contended that during the course of assessment proceedings, the assessee has objected to adoption of Stamp Duty Valuation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of purchase and sale of land happened within a period of one month. The Assessing Officer has made an addition under section 50C of the Act to the short term capital gain by adopting the Stamp Duty Valuation of Rs. 28,05,000/- as full value consideration as against the sale consideration of Rs. 2,00,000/- shown by the assessee. Consequently, an addition of Rs. 26,90,000/- has been made by the Assessing Officer to the total income of the assessee. It is evident from the assessment record that the assessee has submitted its reply explaining the reasons for the sale consideration of Rs. 2,00,000/- as fair market value of the land in question and also contended that the entire piece of land was valued by the Stamp Duty at Rs. 16,88,000/- at the time of purchase on 27th February, 2015 and within one month only 10% of the said land was valued at the time of sale on 24th March, 2015 at Rs. 28,05,000/- which itself shows that the Stamp Duty Valuation is not reasonable and abnormally high. It is a matter of fact that the Stamp Duty authority has valued the property in question at Rs. 16,88,000/- on 27th February, 2015 and then within a period of one month, 10% of the said land was valued ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lea to that effect by the assessee, is now well set out in Hon ble Calcutta High Court s judgment in the case of Sunil Kumar Agarwal CIT (GA No 3686/2013 in ITAT No 221/ 2013; judgment dated 13th March 2014), wherein Their Lordships have, inter alia, observed as follows:- .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 the capital gain should be fixed merely on the basis of the valuation to be made by the District Sub Registrar for the purpose of stamp duty. The legislature has taken care to provide adequate machinery to give a fair treatment to the citizen/taxpayer. There is no reason why the machinery provided by the legislature should not be used and the benefit thereof should be refused. Even in a case where no such prayer is made by the learned advocate representing the assessee, who may not have been properly instructed in law, the assessing officer, discharging a quasi-judicial function, has the bounden duty to act fairly and to give a fair treatment by giving him an option to follow the course provided by law. 7. As ..... X X X X Extracts X X X X X X X X Extracts X X X X
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