TaxTMI 
TaxTMI 
2018 (6) TMI 1184
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.... valuation by the Valuation Officer, as the direction to this effect to the AO, tantamount to setting aside of the assessment order. 3. Whether on the facts and in the circumstances of the case and in law, the Ld.CIT(A) has nor erred in not considering the fact that during the assessment proceeding the assessee did not file any objection to the proposal of the AO to invoke the provisions of section 50C of the Act in the case of the assessee to value the property in question, thereby, leaving no option than to value the property as per section 50C of the Act." 2. The brief facts of the case are that the assessee is an individual, filed her return of income for AY2012-13 on 26-07-2012 declaring total income at Rs. 1,46,409. The assessment was completed u/s 143(3) on 04-03-2015 determining the total income at Rs. 57,96,409 by making addition towards long term capital gain derived from sale of immovable property by taking into account differential sale consideration by applying provisions of section 50C of Income-tax Act, 1961. During the course of assessment proceedings, the AO observed that the assessee has transferred an immovable property for a sale consideration of Rs.....
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....aimed that the building was in a dilapidated condition and the cost of repairs was mounting j for the assessee. It is also claimed that the title of the assessee was not perfect since the conveyance of the plot was not given to her by the original sellers and for this reason the developer buyer retained Rs. 5 lacs from the consideration agreed upon. The AR has claimed that the AO was apprised of these problems in the sale of the property. In the submissions the assessee has mentioned that she is a senior citizen with no fixed income and she only draws income from other sources. The assessee has claimed that she has . complied with all the notices issued by the AO but the alleged show cause letter dated 19.02.2015 issued by the AO whereby the AO had asked to explain as to why the provisions of Section 50C of the Act not be invoked in her case was never received by her. Further the date of compliance of the alleged show cause notice was 04.03.2015 which is also the date of passing of the assessment order. The assessee has filed copies of her replies addressed to the AO dated 25.08.2013 (filed on 02.09.2013), 05.11.2014 (filed on 11.11.2014) & 27.01.2015. It was mentioned tha....
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....990) 187 ITR 688 (SC) the Supreme Court again analysed the powers of the CIT(A). During the hearing of the appeal, the assessee had raised an additional ground claiming deduction of Rs. 11,54,995 on the ground of liability of purchase tax based on the decision of the Supreme Court in Kedarnath Jute Mfg. Co. Ltd. v. CIT [1971] 82 ITR 363. The AAC permitted the assessee to raise the additional ground and allowed the deduction. The Tribunal held that the AAC had no jurisdiction to entertain an additional ground or to grant relief to the assessee on a ground which had not been raised before the ITO. The Tribunal set aside the order of the AAC placing reliance on the decision of the Supreme Court in Addl. CIT v. Gurjargravures (P.) Ltd, [1978]. A Division Bench of the Calcutta High Court held that the Tribunal was right in rejecting the assessee's application. The Supreme Court observed that the question is whether the AAC while hearing an appeal under section 251(I)(a) has jurisdiction to allow the assessee to raise an additional ground in assailing the order of the assessment before it. The Act certainly does not contain any express provision debarring an assessee from raising an ....
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.... "Whether, on the facts and in the circumstances of the case, the Tribunal is right in law in holding that referring the matter to the Valuation Officer under section 16A of the Wealth-tax Act, 1957, is a discretion given by the statute to the Assessing Officer only and hence the Commissioner of Income-tax (Appeals) cannot direct the Assessing Officer to redetermine the value of the property after referring the matter to the Valuation Cell ?" The Court observed that the scope of the appellate power under the provisions of the Income- tax Act was considered in the decisions rendered by the Supreme Court in the cases of CIT v. Kanpur Coal Syndicate [1964] 53 ITR 225 ; Jute Corpn. of India Ltd. v. CIT [1991] 187 ITR 6881 and CIT v. Nirbheram Daluram [1997] 224 ITR 610 That the power of the appellate authority is as wide as that of the Assessing Officer was emphatically stated and reiterated in the decisions. The Court further held that what was said by the Apex Court in relation to the appellate power under the Incometax Act is equally applicable to the scope of the appellate power under the Wealth-tax Act, as in that Act also, no restriction or limitation has been placed o....
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....e made when there is -no objection from the assessee on record of the AO: There is a direct decision in this regard from the Kolkata High Court in the case of Shri Sunil Kumar Agarwal V CIT, Siliguri, (2014) 225 Taxman 211 (Cal) where the High Court has held | that in all such cases where the AO seeks to take the assessed for Stamp Duty purposes as the full value of the sale consideration, the AO is under a bounden duty to give the assessee an option to get p -the property valued by the Valuation Officer as prescribed u/s 50C(2) of the Act. The High Court had directed as under: "For the aforesaid reasons, we are of the opinion that the valuation by the departmental valuation officer, contemplated under Section 50C, is required to avoid miscarriage of justice. The legislature did not intend that the capital gain ! should be fixed merely on the basis of the valuation to be made by the District Sub Registrar for the purpose of stamp duty. The legislature has taken care to provide adequate machinery to give a fair treatment to the citizen/taxpayer. There is no . : reason why the machinery provided by the legislature should not be used and the i benefit thereo....
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....AR for the assessee strongly supported the order of CIT(A). The Ld. AR further submitted that there is no cause of grievance for the revenue to file this appeal, as the Ld.CIT(A) has directed the AO to recompute capital gain by ascertaining the correct market value of the property in accordance with provisions of section 50C(2). Therefore, there is no error in the directions given by the Ld.CIT(A) and his order should be upheld. 7. We have heard both the parties and perused the material available on record. The AO has recomputed long term capital gain derived from transfer of immovable property by applying the provisions of section 50C. According to the AO, the assessee never opposed to the proposalfor invoking provisions of section 50C. It is the contention of the assessee that in a case where the AO seeks to adopt the value of property assessed for stamp duty purpose as the full value of sale consideration, then the AO is under obligation to give the assessee an option to get the property valued by the valuation officer or he shall refer the matter to valuation cell to determined the correct value of the property. Since the AO has determined the value of the property without f....