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TMI Blog2024 (7) TMI 1016X X X X Extracts X X X X X X X X Extracts X X X X ..... d. AO should have referred the valuation of capital asset to the Valuation Officer instead of outrightly rejecting the valuation reports and without pointing out any error in the rate or the area adopted for the valuation. Thus, the order of the Ld. CIT(A) is set aside and the AO is directed to adopt the FMV of the properties as per the rates adopted by the registered valuer and which reports were filed during the course of the assessment proceeding as he did not form any opinion that the value so claimed was at variance with the FMV but outrightly rejected the report of the registered valuer which he was not legally authorised to do as the valuer is a technical expert in respect of valuation and unless there was any error or discrepancies in the reports the valuation as shown by him ought to have been adopted. Assessee appeal allowed. - Shri Sonjoy Sarma, Judicial Member And Shri Rakesh Mishra, Accountant Member For the Appellant : Shri S. K. Tulsiyan, Advocate For the Respondent : Shri Chandan Das, Addl. CIT, Sr. DR ORDER PER RAKESH MISHRA, ACCOUNTANT MEMBER: This appeal filed by the assessee is against the order of the Ld. Commissioner of Income Tax (Appeals), National Faceles ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ground that the loss arose in F.Y. 2011-12 (Gr. Nos. 5 6) though not claimed in that year cannot be claimed in F,.Y. 2013-14 in view of provisions of sec. 80 of the Act when as per CBDT Circular No.14 (XL-35) dated 11.04.1955, even a concession by a tax-payer does not give authority to the tax collector to recover more than what is actually due from the tax-payer under the law. 6. That, the Ld. CIT(A) was also not justified in not entertaining the LTCL Rs. 2,07,054/- claimed in F.Y. 2013-14 when the transaction entered into during F.Y. 2011-12 was completed in F.Y. 2013-14 and as per settled position in law, date of registration of an immovable property is not a conclusive test of transfer because the date of acquisition/transfer has to be understood in the context of extended definition of transfer u/s 2(47) of the Act. 7. That, the Ld. CIT(A) erred in having upheld the LTCG on sale of property at Aurangabad (Dag No. 211) estimated by the A.O. at Rs. 32,31,633/- as against Rs. 93,495/- claimed in the revised computation of income based on valuation report from a Govt. regd. approved valuer in spite of the fact that despite objections raised by the Ld. A.O. against the said valuat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion as shown by the assessee in his original computation at Rs. 23,24,025/- and stamp duty value of Rs. 59,42,144/- and, accordingly, recomputed the LTCG at Rs. 36,18,119/- in respect of the said property, which was added to the total income. For the property at Aurangabad (Dag Nos.206 207), the property was sold on 19.03.2012 relevant to F.Y. 2011-12 vide registered sale deed at a total consideration of Rs. 18,00,000/-. The registering authority adopted the value at Rs. 28,14,411/-. As per the valuation report of the registered valuer, the FMV was taken at Rs. 3,84,900/- as on 01.04.1981 and the indexed cost of acquisition was arrived at Rs. 30,21,465/-. Based on the valuation report, the assessee claimed capital loss on account of the sale of the said property at Rs. 2,07,054/-. As the transaction was finally completed in the F.Y. 2013-14, the assessee has claimed the said capital loss of Rs. 2,07,054/- during the F.Y. 2013-14, which he did not claim during the F.Y. 2011- 12. The Ld. A.O. did not entertain such claim and disallowed the capital loss on the ground that the assessee had not claimed such loss during FY. 2011-12, when the sale deed was registered. The assessee claimed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er the valuation report of the registered valuer submitted during the assessment proceedings valuing the FMV of the aforesaid properties as on 01.04.1981 and the indexed cost of acquisition of the said properties. Despite the objections raised, the Ld. A.O. did not refer the matter to the DVO as was statutorily required. Hence, the computation of capital gains made by the Ld. A.O. on the sale of the aforesaid properties has no legal sanctity and is liable to be quashed, it was so submitted before the Ld. CIT(A). 4. Being aggrieved, the assessee preferred appeal before the Ld. CIT(A). In the appeal, the Ld. CIT(A) while dismissing the grounds no. 2 and 3 of the appeal of the assessee in respect of denial of the valuation report submitted by the assessee from the registered valuer, observed that the Ld. AO had rightly rejected to admit the valuation report submitted by the assessee. The valuer visited the house on 03.10.2016 whereas the assessee sold the property on 09.12.2013. According to Ld. AO, it meant that valuation was done after a lapse of three years from the transfer of property. Therefore, according to the Ld. CIT(A), the estimation of the cost of the property is not corre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d changed the calculation of capital gains as per his requirement. In the original computation of income, the assessee adopted the FMV at Rs. 6,42,700/- against the value mentioned in the sale deed at Rs. 27,00,000/-. Once the provisions of sec. 50C were adopted, the assessee immediately enhanced the FMV placing a valuation report to suit his requirement. In view of the above, he had no reason to interfere with the decision of the Ld. AO and accordingly, dismissed this ground of appeal of the assessee. Aggrieved, the assessee is in appeal before this Tribunal. 5. We have heard the Ld. AR as well as the Ld. DR. It was argued by the Ld. AR that the Ld. AO refused to accept the registered valuer s report for the cost of acquisition and he has relied upon section 55A to emphasize that in case the AO was not in agreement with the valuation made by the registered valuer, he ought to have referred the property for valuation by the departmental valuer. In this respect the provisions of section 55A are reproduced as under: [55A. Reference to Valuation Officer. With a view to ascertaining the fair market value of a capital asset for the purposes of this Chapter, the 7 [Assessing Officer] may ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s cited above. The Ld. AO should have referred the property to the DVO if he was not satisfied with the registered valuer s report. The property is an old one, was received as a gift by the assessee from his mother and, therefore, the value was unascertainable and the cost of acquisition was required to be taken as the fair market value as per clause (3) of Explanation to section 48. It is also submitted in the written submission filed that the Ld. CIT(A) failed to appreciate the fact that the assessee obtained a valuation report from a Registered valuer who after spot verification of the premises, past history and character of the land and property thereon, period and stage of construction and other documents in relation to the said property fairly assessed the FMV of the impugned property as on 01.04.1981 at Rs. 6,33,800/- and Rs. 5,92,000/- vide valuation report dated 03.10.2016. The said valuation is not based on a guess work as alleged by the Ld. CIT(A). The Ld. AO as well as the Ld. CIT(A) have not brought any material on record to prove that the value determined by the valuer is a guess work and based on any estimate. Both the Ld. AO and the Ld. CIT(A) therefore, acted in co ..... X X X X Extracts X X X X X X X X Extracts X X X X
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