TaxTMI 
TaxTMI 
TaxTMI 
2016 (4) TMI 77
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....IT(A) has erred in confirming the same. On the facts and circumstances of the case and the law applicable, the provisions of sec. 50C are not applicable to the case of the appellant. The action of authorities below being contrary to available facts and law are to be disregarded and addition as made / sustained is to be deleted in entirety. 3.2 In any case, the addition as made / sustained is erroneous and excessive. 3.3. The appellant had correctly computed the Long Term Capital Gain on sale of land and building and same is to be accepted without any variation. 4. The Learned CIT(A) has erred in not admitting the sale agreement executed in the year 2005, filed as additional evidence by the appellant and erred in confirming the stand taken by the Assessing Officer. The various reasons mentioned for rejection of sale agreement being erroneous on facts and law are to be ignored and the additional evidence as filed is to be admitted in the interest of justice. 5. In any case and without further prejudice, the Learned Assessing Officer had erred in adopting the Fair Market value as on the date of sale deed without referring the matter to the valuation officer, and the learned CI....
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....referred to the details of payment as reproduced by the CIT(A) at pages 3 and 4 of the impugned order and submitted that the assessee received part payment in the year 2005, 2006 and finally in 2007. Thus, learned AR of the assessee has submitted that even if the agreement for sale is not registered, sale consideration was agreed upon between the parties in the year 2005 itself and therefore, the rate prevailing in the year 2005 shall be applied for the purpose of sec.50C. In support of his contention, he has relied upon the decision of the Delhi Tribunal in the case of Anil Kumar Jain vs. ITO (143 ITD 659). He has further contended that the assessee filed additional evidence before the CIT(A) but the CIT(A) has declined to admit the additional evidence on the ground that the assessee has not filed a specific application. He has referred to application field on 30/8/2003 and submitted that the assessee made a specific application before the CIT(A) for admission of additional evidence in the shape of agreement to sell which was not accepted by the CIT(A). Thus, the learned AR of the assessee has submitted that when the assessee entered into agreement for sale of the property in ques....
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....e deed was executed in the year 2007 when final payment was made to the assessee by the purchaser. It is not the case of the AO that the payment received by the assessee prior to sale deed was not part of the sale consideration. Therefore, when the assessee has received part sale consideration since 11/5/2005, then for the purpose of sec.50C of the Act, the Fair Market Value has to be applied in the year in which the parties have decided and agreed upon the sale consideration and not in the year when the sale deed was executed. The payment in question was not in dispute as the same was received by the assessee through cheques and through banking channels. Therefore, timing of receipt of payment has not been disputed by the AO. In the case of Anil Kumar Jain (supra) Delhi bench of the Tribunal has held in paras.7 to 10 as under: "7. We have heard both the parties and carefully gone through the orders of the authorities below. The first and foremost point that arises for consideration is as to whether the Assessing Officer should have referred the matter to the Valuation Officer u/s 50C(2) of the Act to determine the fair market value before invoking provisions of section 50C(1) of....
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....upon the Assessing Officer to refer the matter for valuation to a Valuation Officer has provided in sub-section 50C(2) of the Act. 10. On the basis of foregoing discussion and factual matrix of the present case, we hold that the view taken by the Assessing Officer as well as confirmed by the Commissioner of Income Tax (A) is not correct. Since the Assessing Officer failed to refer the matter to the valuation officer u/s 50C(2) of the Act, we find it fit and proper to restore the matter back to the file of the Assessing Officer for a fresh adjudication after referring the matter to the Valuation Officer u/s 50C(2) of the Act. The Assessing Officer shall provide reasonable opportunity of being heard to the assessee and then decide the issue accordingly. We also make it clear that the matter with regard to the determination of sale consideration and capital gain shall remain open before the Assessing Officer and both the parties shall be at liberty to raise any other contention submitted by any other document or evidence as they may think fit and proper under the law. The Assessing Officer will consider all the contentions and evidence placed before him and decide the issue de novo ....