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TMI Blog2022 (7) TMI 1577X X X X Extracts X X X X X X X X Extracts X X X X ..... ITAT JAIPUR] and Gautam Bhakat [2018 (12) TMI 1551 - ITAT KOLKATA] we remit the issue to the file of AO for limited purpose to decide the issue afresh after getting valuation report from the DVO for determination of Full Market Value of the alleged land. Thus, we allow the sole ground of assessee for statistical purposes. X X X X Extracts X X X X X X X X Extracts X X X X ..... al for referring the matter to the DVO for valuation of the alleged land at the time of transfer (i.e., on 1-3-14), while the Id CIT(A) has also rejected such plea by saying that reference to the DVO is not required and simply applied sec 56(2)(vii)(b)(ii) and sustained the alleged addition of Rs. 40,89,614 (i.e., correct figure Rs. 40,88,615) made by the Id AO, which is not justified; 1.5 Reliance is placed on Sunil Kumar Agarwal (2015) 372 ITR 83 (Cal HC) dt. 13-3-14 which says that a reference u/s 50C has to be mandatorily made even if the assessee concerned fails to make such request, ...in light of proviso hereinabove to restore the 'FMV' issue back to the AO for afresh adjudication after making necessary reference to the DVO as per law; 1.6 The Hon'ble Raipur-Tribunal in the case of Narendra Kumar Lunia (2019) (Raipur-Trib) ITA No. 202/RPR/2014 has concluded that "In view of the view so expressed by the division bench as also Sunil Kumar Agarwal (2014) (Cal HC), I deem it fit and proper to remit the matter to the file of the AO with the direction to refer the valuation of property to the DVO u/s 50C(2). This is precisely what the learned Counsel for the assessee before us ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng necessary reference to the DVO as per law." [as extracted from Gautam Bhakat (2018) (Kol-Trib) ITA No. 869/Kol/2018, AY 14-15] 1.9. It is submitted that Prem Chand Jain (2020) (Jai-Trib) dt. 8-620, held as under: "2. The ld AR submitted that the appellant is a wholesale grain & seed merchant. During the year, he had purchased 2 piece of agriland admeasuring l/6th of 40.25 bighas i.e., 6.71 bighas and also l/6th of 25 bighas i.e., 4.17 bigha respectively from Smt. Rajbala w/o Sh Satveer Singh and Sh. Satveer Singh s/o the file of the AO with the direction to refer the valuation of property to the DVO u/s 50C(2). This is precisely what the learned Counsel for the assessee before us has prayed for." It is requested to refer the matter to the DVO for determining the FMV of the alleged land on the date of transfer on 1-3-14 before applying the deeming sec 56(2)(vii) (b)(ii); reliance is placed on: Gautam Bhakat (2018) (Kol-Trib) dt. 5-10-18 Prem Chand Jain (2020) (Jai-Trib) dt. 8-6-20 Narendra Kumar Lunia (2019) (Raipur-Trib) dt.22-9-16 Aavishkar Film (P) Ltd (2019) (Mum-Trib) dt. 21-6-19 Kishore Kumar (2018) (Visak-Trib) dt.l 1-7-18 Sunil Kumar Agarwal (2015) 372 I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Satveer Singh s/o Sh. Surja Ram, for a consideration of Rs. 3,50,000 and Rs. 2,00,000 which were valued by the Sub-Registrar at Rs. 5,26,660 and Rs. 3,26,976 respectively. The AO worked out the deemed sales consideration as per the aforesaid DLC value and added the difference of Rs. 3,03,596 u/s 56(2)(vii)(b) in the hands of the appellant, under the "IFOS". 14. Without prejudice, it was further submitted that during the course of assessment proceedings, the assessee has objected to the DLC value adopted by the AO and therefore, before applying the DLC value, the matter should have been referred to the DVO for determination of FMV and given that the matter was not referred to the DVO, necessary relief may be provided to the assessee. 16. We have heard. The relevant sec56(2)(vii)(b) which are u/c read as under: "(vii) where an Indl or a HUF receives, in any PY, from any person or persons on or after the 1-10-09 but before the 1-4-17,-*** 17. The above provisions thus provide that where an individual receives in any PY, from any person or persons on or after the 110-09 but before the 1-4-17, any immoveable property for a consideration which is less than the SD value of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h more than the stated consideration on sale of land. It was in this backdrop that the AO adopted the 'FVC' at SDV u/s 50C as against value on which the property was actually sold. Aggrieved, assessee carried the matter in appeal before the ld CIT(A) but without any success. Assessee is not satisfied and is in further appeal before me. 3. I have heard the rival contentions, perused the material on record and duly considered facts of the case in the light of the applicable legal position. I find that even though the assessee may not have made a specific request for reference to the DVO, it was bounden duty of the AO to act fairly and should have given the assessee opportunity of referring the matter to the DVO for verification, u/s 50C(2). As I say so, I may only refer to the following observation made by a DB of this Tribunal in Raj Kumari Agarwal 150 ITD 597: "6. We find that here is a case in which the assessee has specifically objected to the adoption of SDV rate. The mere fact that the appellant has not challenged the SDV cannot be put against the assessee. The authority for the this proposition is contained in, Hon'ble jurisdictional HC's judgment, in Chandra Narain Chau ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncumbent upon the AO to refer the valuation of said land or building to the departmental valuation officer. In the present case, the AO has not done so. In view of this factual position, and in the light of the discussions above, we deem it fit and proper to remit the matter to the file of the AO for adjudication de novo after making a reference to the DVO, and completing the assessment on the basis of the valuation so received from the DVO. While so deciding the matter afresh, the AO will decide the matter in accordance with the law, by way of a speaking order and after giving a reasonable opportunity of hearing to the assessee. We direct so." 4. In view of the view so expressed by the division bench as also Sunil Kumar Agarwal (2014) (Cal HC), I deem it fit and proper to remit the matter to the file of the AO with the direction to refer the valuation of property to the DVO u/s 50C(2). This is precisely what the learned Counsel for the assessee before us has prayed for." [as extracted from Narendra Kumar Lunia (2019) 33 NYPTTJ 945 (Raipur-Trib) ITA No. 202/RPR/2014, AY 10-11] 1.11. It is submitted that Aavishkar Film (P) Ltd (2019) (Mum-Trib) dt. 21-6-19, held as under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llowed the mandate of sec 50C(2) by making a reference to the DVO to determine the value of the property sold. The AO having not done so and the ld CIT(A) also failing to rectify the error committed by the AO, we have no hesitation in restoring the issue to the AO with a direction to make a reference to the DVO to determine the value of the property sold in terms of sec 50C(2) and thereafter, proceed to compute capital gain in accordance with law." [as extracted from Aavishkar Film (P) Ltd (2019) 108 taxmann.com 270 (Mum-Trib) ITANo. 2256/Mum/2016, AY 11-12] 1.12. It is submitted that Kishore Kumar (2018) (Visak-Trib) dt.l 17-18, held as under: "9. ...As per sec 50C for computing the capital gains in case of a capital asset being land or building or both, if it is less than the value adopted or assessed by any authority of a State Govt, for the purpose of SD in respect of such transfer the value so adopted or assessed shall for the purpose of sec 48 be deemed to be the 4FVC' received or accruing as a result of transfer. In case of dispute, the assessee is free to approach the SVA. In case the assessee did not dispute in any appeal or revision or no reference has been made ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... usal of the assessment order, we found that the AO made disallowance u/s. 56(2)(vii)(b)(ii) of the Act rejecting the request of the assessee to refer the matter to the District Valuation Officer (DVO) because he has to complete the assessment to avoid delay in completing the assessment. The CIT(A) also affirmed the view taken by the AO as the assessee could not produce the evidence by way of sale deeds last executed before getting the plots transferred from the other member of joint venture. Ld. AR before us submitted that the assessee is having all the required documents, and, therefore, the issue may be restored back to the file of AO for limited purpose to decide the same after referring the matter to the DVO for valuation of the alleged land. In view of the above, we are of the considered opinion that the AO is required to refer the matter to the DVO for determining the full market value of the alleged land, Accordingly, respectfully following the case laws relied on by the ld. AR of the assessee in his written submission in the case of Prem Chand Jain, 117 taxmann.com 370 (Jai-Trib) and in the case of Gautam Bhakat, ITA No. 869/Kol/2018, order dated 05.10.2018, we remit the is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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