TaxTMI 
TaxTMI 
2018 (5) TMI 52
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....oceeded to complete time barring assessment. The report from DVO was received on 5.12.2008 stating the value of the property as under:- Value as on 1,4.1981 Rs.8.10,290/- Assessee's share 43% Rs. 3,48,425/- Value as on 4.9.2003 Rs.6,74,78,000/- Assessee's share 43% Rs.2,90,03,540/- 4. The Assessing Officer stated that Authorised Representative of the appellant was asked if he had any objection to adopt the value of the DVO. The Assessing Officer stated that according to the Authorised Representative although he has reservations the value adopted by the DVO can be taken for computation of capital gain. Accordingly, the Assessing Officer proceeded to calculate long term capital gain at Rs. 2,73,04,333/- on these figures. 5. During assessment proceedings, the Assessing Officer stated that appellant filed a letter dated 24.12.2009 stating that appellant has wrongly shown the sale of property in capital account. However, it was argued that the true nature of transaction was only retirement of partners from partnership firm. The assessee drew attention to the deed of retirement dated 4.9.2003 wherein the amount of Rs. 60,00,000/- had been paid by the continuing ....
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.... partners in the shape of retirement. The Assessing Officer stated that long term capital gains will arise even in case of transfer of right in the property. Accordingly LTCG amounting to Rs. 2,59,02,333/- has been computed and taxed. 8. By the impugned order CIT(A) deleted the addition after observing as under:- 5. I have carefully considered the facts of the case, arguments of the Assessing Officer and the written submissions of the Authorised Representative of the appellant. The issue to be adjudicated is whether there was a transfer of an immovable property and if so whether the provisions of 50C can be applied to substitute the value of the property with that of the valuation done by district valuation officer. As per the facts of the case there can be no addition made by substituting the value of actual consideration with that of the value determined by the district valuation officer, for the following reasons. 1) The transaction under consideration is not a sale of property. It can at best be considered the transfer of right to the new partners. This right includes all the interest in the partnership firm including that of the ownership of the property. The retirement d....
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....partners for the transfer of interest in the partnership firm. 5) In fact the stamp duty valuation of the very property has been done on 3rd August 2004 at Rs..20,23,646/-. 6) This property has been actually transferred by the continuing partners by an agreement for sale on 3rd August 2004 to M/s.Silver Land Developers Pvt Ltd for a consideration of ^.40 lakhs. The details of payments made by the purchasing company are also available on the sale deed. The details of cheque numbers etc are also available on the last page. This is a third party evidence and cannot be disregarded. 7) The question is what could be the reason for such a difference between the value adopted by district valuation officer and the value of stamp duty authorities and actual consideration of sale at a later date. This calculation is also available in the worksheet for determining stamp duty valuation. In the stamp duty valuation it has been calculated that gross value of the property at the rate of Rs. 17,100/- multiplied by 3252.68 will amount to ?. 5,56,20,828/-. However cost of construction for providing alternative accommodation to tenants for an area of 4715.52 m2 at the rate of Rs. 6500 will work ....
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....pellant himself had offered it as capital gains and now any revised claim cannot be made without filing a revised return of income as per that the season of Supreme Court in the case of Goetze India Ltd. Therefore the gain of the appellant has to be taxed as capital gains only. Considering the above, the value adopted by the DVO cannot be substituted for the consideration amount received by the appellant for the transfer of interest in the partnership firm. Therefore the determination of capital gain by the Assessing Officer by substituting the value of property by the value determined by the DVO cannot be sustained and is deleted. 9. However, the CIT(A) has confirmed the reopening of assessment u/s.147. 10. Against the above order of CIT(A), Revenue is in further appeal before us and assessee has also filed cross objection challenging the reopening of assessment. 11. We have considered rival contentions and carefully gone through the orders of the authorities below and found from record that assessee has got money on her retirement from the partnership firm. Clause 14(a) of the retirement deed mentions that the retiring partners have been paid Rs. 60 lakhs by the continuing p....