9911796707
TMI Blog2022 (7) TMI 1577X X X X Extracts X X X X X X X X Extracts X X X X ..... ee is an individual filed return of income on 14.11.2014 declaring total income Rs. 2,17,220/- along with agricultural income of Rs. 2,00,000/-. The return of the assessee was processed u/s. 143(1) of the Act. The case of the assessee was selected for scrutiny through CASS and on issuance of statutory notices by the AO, the assessee appeared and filed related documents. During the course of assessment proceedings the assessee requested for referring the matter to the District Valuation Officer, however, the AO rejected the referral u/s. 50C of the Act. Further the AO made various additions. 3. Against the said order of AO, the assessee preferred appeal before the CIT(A) and the CIT(A) partly allowed the appeal of the assessee. Now, the assessee is in further appeal before the Tribunal. 4. Ld. AR of the assessee filed his written submission which read as under :- 1.1 In this case, the assessee has filed his ROI for AY 14-15 on/14-11-14 by declaring income Rs. 2,17,220; case of the assessee has been selected for scrutiny under CASS & notice u/s 143(2) has been issued; assessment has been made u/s 143(3) on 29-12-16; Id AO has made addition of Rs. 40,89,614 u/s 56(2)(vii)(b) on th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 11 -7-18 Sunil Kumar Agarwal (2015) 372 ITR 83 (Cal HC) dt. 13-3-14 1.8. It is submitted that Gautam Bhakat (2018) (Kol-Trib) dt. 5-1018, held as under: "3. ...There is no dispute about the assessee having purchased 4 immovable properties involving less than stamp value(es) rate(s) to the tune of Rs. 6,60,962. He raised various legal arguments before the CIT(A) which rejected. I find that sec 56(2)(vii)(b) is applicable in case of an Indl or an HUF receiving any immovable property having stamp value exceeding Rs. 50,000 without consideration or such a consideration to be less than stamp price of the property by an amount exceeding Rs. 50,000. Ld counsel vehemently contended that both the lower authorities have erred in law as well as on facts in invoking the impugned statutory provision. I find no merit in this argument since the legislature has mad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ute about the assessee having purchased 4 immovable properties involving less than stamp value(es) rate(s) to the tune of Rs. 6,60,962. He raised various legal arguments before the CIT(A) which rejected. I find that sec 56(2)(vii)(b) is applicable in case of an Indl or an HUF receiving any immovable property having stamp value exceeding Rs. 50,000 without consideration or such a consideration to be less than stamp price of the property by an amount exceeding Rs. 50,000. Ld counsel vehemently contended that both the lower authorities have erred in law as well as on facts in invoking the impugned statutory provision. I find no merit in this argument since the legislature has made it clear in last proviso to sec 56(2)(vii) that this clause does not apply to any sum of money or any property received from any relative or donor as per clauses (a) to (g) therein. This is not the assessee's case that his 4 transactions are in any way covered in the last proviso. I therefore, do not find any reason to interfere with the lower authorities' action invoking sec 56(2)(vii)(b)(ii). 4. Now comes FMV of the assets in issue. It is an admitted fact that neither of the lower authorities made an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under the head "IFOS". 18. In the instant case, the assessee has purchased 2 plots of land during the year u/c. The sale consideration as per the respective sale deeds amounts to Rs. 5,50,000 and the SD value of such properties as determined by the SD authority amounts to Rs. 8,53,636 and therefore, there is difference to the tune of Rs. 3,03,636 between the sale consideration as per the sale deeds and the stamp valuation determined by the SVA. To this extent, the facts are not disputed and have been accepted by both the parties. 21. ...In this regard, the contention of the Id AR is 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. 22. ...The AO considered the submissions of the assessee but held that sec 56(2)(vii) are applicable from the AY 14-15 and the case of the assessee is squarely covered by sec 56(2)(vii) as amended by the FA, 2013. However, we find that the AO has not appreciated the objection of the assessee regarding adoption of DLC value as against the sale consideration. Therefore ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... A to dispute the valuation, or filed appeal or revision or made reference before any authority, court or the HC u/s 50C(2)(b) is not of any relevance in this case, as the AO himself observed that the assessee did not dispute the stamp valuation before the SVA. There may be several reasons for the purchaser not to file such objection. A purchaser may not go into litigation, and pay SD, as fixed by the SVA, which may be over and above the FMV of the property, as on the date of transfer, though the amount so determined has not been actually received by owner of the property". The position as to whether reference should be made to the DVO, even when there is no specific plea to that effect by the assessee, is now well set out in Hon'ble Cal HC's judgment in Sunil Kumar Agarwal (2014) (Cal HC) dt. 13-3-14, wherein Their Lordships have, inter alia, observed as follows: "....we are of the opinion that the valuation by the DVO, contemplated u/s 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 SD. The legislature has tak ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re shown by the assessee the AO has adopted the value determined by the SVA at Rs. 2,51,45,500, as deemed sale consideration u/s 50C(l).... In the facts of the present appeal, undisputedly, in the course of assessment proceedings the assessee has objected to adoption of SD value as the deemed sale consideration for whatever may be the reason. That being the case, it was the duty of the AO to make a reference to the DVO for determining the value of the property sold. The contention of the Deptt that the reference to DVO was not made because the assessee raised the objection before the AO purposefully at the fag end to see to it that the proceeding gets barred by limitation, in our view, is unacceptable. Further, at the first appellate stage also Id CIT(A) could have directed the AO to get the valuation of the property done by the DVO and thereafter proceeded in accordance with law. In S Muthuraja (2013) (Mad HC), the Hon'ble Mad HC has held that where the assessee objects to the adoption of SD valuation as deemed sale consideration during the assessment proceedings, the AO is duty bound to make a reference to the DVO to determine the value of the property as per sec 50C(2). ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e capital asset to VO and the value determined by the valuation authority shall be taken as full value for the purpose of capital gains. In the instant case, the assessee has not disputed the valuation made by the SVA for the purpose of stamp duties but objected for adoption of the same for capital gains. The assessee explained that SRO value was not disputed because of payment of SD by the buyer. The assessee also did not request the AO for making reference to the DVO for valuing the property. However, the assessee brought on record regarding the non exclusion of tenants share and complexities involved in sale of the property and for getting the lesser rate. Therefore, in all fairness the AO should have referred to the Depttal Valuation cell for valuing the property as provided in sec 50C(2). Since, the AO has ignored the objections of the assessee and failed to refer the valuation of property to the DVO, we are of the opinion that the case should be remitted back to the file of the AO to make reference to the DVO to determine the FMV of the property for the purpose of computation of capital gains. 10. On the similar facts the Chen-Trib in ITA No. 2115/Mds/2016 for the A ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
