TaxTMI 
TaxTMI 
2013 (6) TMI 288
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....rder u/s 147, without appreciating the facts and evidences of the case. The reassessment order u/s 147 is bad in law, and liable to be quashed. 2. Without prejudice to above the learned CIT(A) failed to appreciate that the appellant had only entered in to memorandum of agreement and agreement was neither registered nor passing was given relevant year hence, capital gain cannot be assessed for the relevant year. 3. Without prejudice to above the learned CIT(A) erred is confirming the addition of short term capital gain of Rs.71,20,034/- as against capital gain of Rs.19,33,500/- declared by the assessee, thereby confirming the addition of Rs. 6,92,66,634/- (7,12,00,134 - 19,33,500/-) on notional basis.  ....
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....nly entered in to memorandum of agreement and agreement was neither registered nor passing was given relevant year hence, capital gain cannot be assessed for the relevant year. 3. Without prejudice to above the learned CIT(A) erred is confirming the addition of short term capital gain of Rs.51,98,440/- as against capital gain of Rs.12,50,000/- declared by the assessee, thereby confirming the addition of Rs. 39,48,440/- (51,98,440- 12,50,000/-) on notional basis. 4. Without prejudice to above the learned CIT(A) ought to have directed the Assessing officer to accept the Stamp valuation or valuation report of valuation officer. 5. The learned CIT(A) erred in holding that no reference can be made ....
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....nd has computed the long term capital gain of Rs.7,12,00,134/- in place of long term capital gain declared by the assessee at Rs.19,33,500/-. The capital gain computed by the AO in respect of aforementioned three plots is as under: A. LTCG on sale of plot at CTS 749,750,794 = Rs.6,10,58,875/- B. LTCG on sale of plt at CTS 2633 = Rs.98,78,250/- C. LTCL on sale of plot with structure at CTS 2633 = Rs.2,63,009/- Total Long Term Capital Gain = Rs.7,12,00,134/- While assessing the income of the assessee at Rs.7,14,32,650/- which include the aforementioned capital gain of Rs.7,12,00,134/- the remarks of the AO as given in para-7 of the assessment order are as under: "Assessed u/s. 143(3) r.w.s.....
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.... in respect of A.Y 2009-10 no report was received. However, certificate from BMC was received. Ld. CIT(A) has held that as none of the sale agreement was registered, section 50C could not be applied, therefore, reference by the AO to DVO under section 55A was invalid and cognizance of the report of DVO cannot be taken. Therefore, he has upheld the action of AO for both the years after rejecting all the contentions raised by the assessee, which inter-alia included the challenge to the capital gain computed by the AO. 4. Before us it was pleaded by Ld. AR that AO himself has referred the valuation to the DVO and has written in the assessment order itself that computation made by him is subject to rectification/revision on receipt of report....
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....ect to rectification/revision on receipt of valuation report of the DVO, Mumbai which also include letter written to BMC in respect of assessment year 2009-10, have already been reproduced. Therefore, it was in the mind of AO that his calculation may vary subject to these valuations and letter from BMC. These are evidences of AO and department cannot go back from his own stand to contend that cognizance of such report cannot be taken as AO has no authority to refer the valuation under section 55A of the Act. Even if AO does not have such power then also the valuation report and letter from BMC is available as evidence on the record of AO for computing the value for the purpose of determining capital gain. The AO for determining the capital ....