9911796707
TMI Blog2023 (9) TMI 1507X X X X Extracts X X X X X X X X Extracts X X X X ..... f INR 4,37,55,300/- assessable by the Stamp Valuation Authority exceeds 110% of the sale consideration of INR 3,96,00,000/- disclosed by the Appellant. However, since the DVO has determine the fair market value of the capital asset at INR 4,00,32,000/-, the assessing officer is directed to re-compute LTCG by taking the same as full value of consideration. Disallowance of deduction claimed by the Appellant in respect of the expense being fee paid for valuation, and expenses pertaining to travel of Appellant to India - We concur with the AO and the DRP that the deduction for the aforesaid expenses cannot be allowed as the same were not connected with the transfer of the capital asset. Expenses were incurred after the transfer of capital asset ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e his liability as per Clause 15 of the Deed of Transfer which crystallized on execution of Deed of Transfer on 12/02/2018. We hold that the payment made by the Appellant to the Society by way of cheque was expense connected to transfer of capital asset and therefore, the same should be reduced from the full value of consideration while determining the amount of LTCG. AO is directed accordingly. - SHRI S RIFAUR RAHMAN, ACCOUNTANT MEMBER SHRI RAHUL CHAUDHARY, JUDICIAL MEMBER For the Appellant/Assessee : Shri. Ketan Vajani For the Respondent/Department : Shri. Anil Sant ORDER Per Rahul Chaudhary, Judicial Member: 1. The present appeal is directed against the Assessment Order, dated 22/06/2022, passed under Section 143(3) read with Section 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assing a speaking order in relation to the claim of the appellant for the expenses in connection with transfer and has cursorily dismissed the claim of the appellant in a mechanical manner. 3. Objection against not adjudicating ground in relation to initiation of penalty 3.1 The DRP has erred in not adjudicating the Ground in relation to initiation of penalty proceedings vide the Draft Assessment Order by treating the same as pre-matured. The DRP has erred in not appreciating the fact that the impugned additions and disallowances cannot be stated as underreporting of income much less as misreporting of income by the appellant. 3. The relevant facts in brief are that the Appellant, a non-resident Indian, filed return of income for Assessment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... TCG at INR 1,79,23,460/- as against INR 121,62,780/- computed by the Appellant. While doing so the Assessing Officer adopted 4,37,55,300/- as full value of consideration (as till the date of passing of Final Assessment Order the valuation report of the DVO was not available) and disallowed deduction of expenses of INR 16,05,380/- as proposed in the Draft Assessment Order. 3.2. Being aggrieved, the Appellant is now before us in Appeal against the Final Assessment Order, dated 22/06/2022. 4. During the pendency of the present appeal, report of the DVO, dated 15/05/2023, was received by the Appellant which has been placed on record as part of the paper-book. As per the aforesaid report, the DVO has determined the fair market value of capital a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ria Fernandes Cheryl v. ITO, it is presumed that the safe harbour of 10% would be available right from the time when section 50C was inserted in the Act i.e. April 1, 2003 events in the case of the assessee fails because the variation being 10.49% is more than 10%. Hence the objection of the assessee that it does not fall under the rigours of section 50C of the Income Tax Act is not tenable. Accordingly, objection No. 2 of the assessee is rejected . 6. We concur with the above finding of the DRP. Even if the benefit the decision of the Tribunal in the case of Maria Fernandes Chery Vs. ITO (International Taxation), 2(3)(1), Mumbai : [2021] 85 ITR (T) 674 (Mumbai-Trib.) is granted to the Appellant, the provision of Section 50C of the Act woul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the aforesaid Deed of Transfer, the Appellant took over the obligation to pay the transfer fee payable to the Society for transfer of the capital asset in the records of the Society. On perusal of the details of cheque issued by the Appellant and receipt issued by the Society, we find that the Appellant had made payment of INR 11,70,000/- to the Society. In our view, the Appellant had no reason to make a voluntary payment of around 3% of the sale consideration of INR 3,96,00,000/- to the Society after execution of Deed of Transfer except to aid registration of transfer in the name of the purchaser in records of the Society in terms of Clause 15 of the Deed of Transfer. The fact that the Society choose to treat the amount paid by the Appel ..... X X X X Extracts X X X X X X X X Extracts X X X X
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