TaxTMI 
TaxTMI 
2012 (5) TMI 177
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....h Court has set aside this appeal to Tribunal to decide afresh after considering the material placed before it earlier, by holding as under:- "This matter is taken up after admitting for final hearing itself. It appears from the impugned judgment and order of the Learned Tribunal that though the assessee argued with the materials, that the valuation arrived at by the assessing officer was not proper and justified, Learned Tribunal, it appears to us has not considered this aspect of the matter. Wherefore, are of the view that this matter needs to be reconsidered. Accordingly, the operation of judgment and order is kept in abeyance and the same is remanded for fresh hearing by the Learned Tribunal, who will hear afresh considering the materials placed before it earlier, and will take a fresh decision. If it is found that the present judgment is required to be changed or varied the same may be done with an open mind and without being influenced and/or swayed by the earlier observation. After considering all the aspects if it is found that this judgment does not require any change, in that event stay granted by this Court will stand automatically vacated." 3. Brief facts re....
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....and or building or both, is less than the value adopted or assessed by any authority of a State Government (referred to as Stamp Valuation Authority) for the purpose of payment of stamp duty for such transfer, the value so adopted or assessed shall, for the purpose of section 48, be deemed to be the full value of consideration received or accruing as a result of such transfer. In other words, when the stated sale consideration of a land or house property is less than stamp duty valuation for the said property, it is the stamp duty valuation which shall prevail for the purposes of computation of capital gain u/s. 48 of the Act. (7) The provision is, however, subject to an important exception scheme of which is set out in sub-section (2) & (3) of Section 50C. Section 50C(2) provides that where assessee claims before the A.O. that the value adopted by the Stamp Valuation Authority, u/s. 50C(l), exceeds fair market value of the property as on the date of transfer, and unless such valuation is subject matter of litigation before any. Authority or Court, the A.O. may refer the matter for determination of fair market value of the property in question to the D.V.O. and the same shall be....
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....ourt, first time on 11/01/2012 and on that date, the matter was partly heard. On 20/1/2012, the matter was further taken up for hearing and during the course of hearing, learned counsel for the assessee, Sri S.M. Surana, first of all desired to produce the copy of valuation report made by the Office of ADSR, Sutahata, dated 08/9/2008, which reads as under : Government of West Bengal Office of the A.D.S.R. Sutahata Market Value/Chargeability Assessment Slip Query No./Year 007552/2008 Date 08/09/2008 Applicant Name Lakshmi Kanta Maity Applicant Status Others Type of Deed [0101] Sale Document Market Value Rs. 76,18,872/- Stampduty Payable Rs. 5,33,321/- Stamp Duty: Schedule 1A, Article-23 Registration Fee payable Rs. 83,798/- Sch No. Plot No. Proposed Land use Area Set Forth Value (Rs.) Market Value (Rs.) Depreciation/Appreciation Dist. Purba Medinapaore, P.S. - Durgachak, Mini. - HALDIA, Mouza- Basudevpur 1 1472 Bastu 17 Dec. ....
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.... building under consideration as Rs. 10751 per sqm (plinth area) Plinth area 1154.76 sqm. @ Rs. 10750/- sqm. = Rs. 1,24,13,670/-. Plinth area - GF = 310.59 sqm. 1st to 3rd floor 3 x 323.83' = 971.49 sqm. 1282.08 sqm Less already sold (-) 127.32 sqm 1154.76 sqm. Valuation for property at 1472, Basudevpur HPL Link Road, Haldia The property is located on mail HPL Link Road PS Durgachak. Considering the factors such as good commercial area, frontage of building, location, transport facilities and other amenities being very good the rate adopted is Rs. 10750 per sqm. Sd/- Valuation Officer-VI Income Tax Department 54/1, Rafi Ahmed Kidwai Road, Kolkata-700016." 5. We find that by Finance Act, 2002, a new section 50C has been inserted in the Act to make a special provision for determining deemed full value of consideration in case of transfer of immovable property. Sub-sec. (1) of sec. 50C of the Act provides that where the sale consideration declared to be received or accruing as....
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.... this very date 29/07/2005. The AO proposed to take full value of consideration at Rs. 1,24,14,400/- in view of property assessed by A.D.S.R., Sutahata being deemed sale consideration of the property and accordingly computed LTCG on the same. The assessee objected and on that basis, and on objection of assessee AO referred the matter to DVO, who vide report dated 29/12/2008 assessed the property by applying plinth area rates @ Rs. 10,750/- per sq.mt. and ascertained the fair market value of this property as on the date of sale dated 29/7/2005 at Rs. 1,24,13,620/-. The AO assessed the deemed sale consideration, as assessed by DVO at Rs. 1,24,13,670/- and computed LTCG accordingly. The assessee before appellate authorities made argument that there is no fixed rate or there is no circle rate fixed by West Bengal Government for assessing the fair market value for the purpose of stamp duty during the relevant period when property was sold by assessee for the area where assessee's property. He referred the matter to Govt. of West Bengal, who assessed the fair market value of this property as on 08/9/2008, whereas the sale was made as on 29/7/2005, at Rs. 76,18,872/- referring the same pr....
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....situation, general appearance in the area, availability of shopping and marketing facilities, conditions of public ways and transportation, availability of utilities etc. and etc. We have gone through the DVO.'s report, which is a cryptic one, and the assessment is based on value as assessed by A.D.S.R., Sutahata and that also on the basis of additional stamp duty asked for. If such is the situation, there is no purpose for referring the matter to DVO reason being if the DVO is to adopt the value taken by stamp duty authority, then he has not applied his independent mind and that itself is based on irrelevant considerations and germane considerations have not been considered while assessing the value. Hon'ble Supreme Court has ruled for determining the fair market value, no doubt in the context of Land Acquisition Act, 1894, but the same holds the field even in the case of valuation to be made by the DVO. Hon'ble Apex Court has considered the issue in Chimanlal Hargovinddas v. Special Land Acquisition Officer AIR 1988 SC 1652, 1656-58, in Suresh Kumar v. Town Improvement Trust, Bhopal [1989] 2 SCC 329 (SC) and in Land Acquisition Collector v. Sukhdev Singh AIR 1995 HP 150, laid dow....
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....) factors:- Plus factors Minus factors 1. Smallness of size. 1. Largeness of area 2. Proximity to a road. 2. Situation in the interior at a distance from the road. 3. Frontage on a road. 3. Narrow strip of land with very small frontage compared to depth. 4. Nearness to developed area. 4. Lower level requiring the depressed portion to be filled up. 5. Regular shape. 5. Remoteness from developed locality. 6. Level vis-à-vis land under acquisition 6. Some special disadvantageous factor which would deter a purchaser. 7. Special value for an owner of an Adjoining property to which it may Have some very special advantage. (11) The evaluation of these factors of course depends on the facts of each case. There cannot be any hard and fast or rigid rule. Common sense is the best and most reliable guide. For instance, take the factor regarding the size. A building plot of land say 500 to 1000 sq. yds. cannot be compared with a large tract or block of land of say 1000....