TaxTMI 
TaxTMI 
2018 (3) TMI 1200
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.... ld. CIT(A) has erred in law and on facts in upholding the addition of Rs. 1,00,000/- made by AO by invoking section 50C, by substituting apparent consideration of Rs. 11 lacs by that of Rs. 12 lacs adopted for stamp duty, more so when assessee was never confronted in assessment on this issue. 2. That the ld. CIT(A) even after accepting that no query was raised by AO to recomputed capital gain, ought to have deleted the above addition on this very premise. 3. That the ld. CIT(A) was not justified in confirming the disallowance of Rs. 42582/- claimed as expenses incurred to earn commission income of Rs. 85,165/-, on a premise different from the AO. 4. That after himself having accepted that assessee had withdrawals to meet the impugned expenses of Rs. 42,582/-, the ld. CIT(A) ought to have accepted the assessee's contention to delete this addition. 8. That all the additions having been made by the AO without affording proper opportunity, the ld. CIT(A) even after conceding on the issue, erred in still upholding the additions disputed hereinabove." Inasmuch as Ground 8 refers to all the grounds, i.e., including qua which there has been no recall....
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....ications, apply in relation to such reference as they apply in relation to a reference made by the Assessing Officer under sub-section (1) of section 16A of that Act made by the Assessing Officer under sub-section (1) of section 16A of that Act. Explanation.- For the purposes of this section, "Valuation Officer" shall have the same meaning as in clause (r) of section 2 of the Wealth-tax Act, 1957 (27 of 1957). (3) Subject to the provisions contained in sub-section (2), where the value ascertained under sub-section (2) exceeds the value adopted or assessed by the stamp valuation authority referred to in sub-section (1), the value so adopted or assessed by such authority shall be taken as the full value of the consideration received or accruing as a result of the transfer.' (emphasis, through italics, ours) The terms of sec.50C, as apparent, he would submit, are not absolute, so that the AO was bound to confront the assessee before invoking sec.50C, substituting thus the actual sale consideration (on the sale of a plot of land by the assessee) of Rs. 11 lacs by its stamp value of Rs. 12 lacs (as per the transfer document), satisfying thus the principle of natu....
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....g or both, at a consideration lower than the stamp value, i.e., the value of the capital asset transferred under the Stamp Act, so that, for the purposes of sec.48, stamp value shall be deemed to be the full value of the consideration received or arising as a result of the said transfer. Sec.48 provides for the mode of computation of income chargeable under the head 'capital gains' (sec.45) on the transfer of a capital asset. Section 50C(1) only seeks to substitute the full value of the consideration received or accruing as a result of transfer (i.e., of the capital asset), which is the starting point for the computation u/s. 48, with the stamp value, in the circumstance specified u/s. 50C(1), applicable in the present case. In short, in a case of transfer of a capital asset, being land or building or both, sec.48 is to be read along with sec.50C for computing the capital gains chargeable u/s. 45. The assessee, whose return is to be in terms of the law, ought to have applied s. 50C(1) himself, or specifically state in his return that he considers sec. 50C(1) as not applicable as the conditions of sec.50C(2) are satisfied. That is, it is at the assessee's instance, claiming the f....
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....10] 321 ITR 362 (SC). In fact, the assessee could raise a claim u/s. 50C(2), where not reserved through his return of income, only in the verification proceeding u/s. 143(3), initiated upon service of notice u/s. 143(2), issue of which is not under question or challenge. The observation by the ld. CIT(A) of it being advisable for the AO to confront the assessee, is, in view of his categorical finding of the AO being not obliged to do so under law, without any significance, and is merely an 'obiter dicta', and would not operate to override the express provision of law, noted and discussed hereinbefore. We have in fact further observed that it is for the assessee to exercise the right for seeking reference under and in terms of sec. 50C(2), and no presumption as to prejudice (i.e., the fair market value being lower that the stamp value) being caused in the absence of any such claim (per the return of income or during the assessment proceedings) would lie. In fact, no such claim stands preferred even in the appellate proceedings. Further, the difference itself is nominal, and which in fact would work both ways, so that, if anything, the inference would be of the stamp value being r....