TaxTMI 
TaxTMI 
2018 (9) TMI 343
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....havnagar under Section 143(3) of the Income-tax Act, 1961(hereinafter referred to as "the Act") for the Assessment Year 2012-13. 2. The grievances raised by the assessee in this appeal are against the order of the CIT(A) (i) in confirming the action of the Assessing Officer in making an addition of Rs. 28,37,120/- u/s. 50C of the Act, (ii) in confirming the adoption of Rs. 41,68,600/- as the full value of sale consideration for each of the two plots u/s. 50C of the Act as against actual sale consideration of Rs. 27,50,000/- for each plot as per market price and (iii) in upholding the action of the Assessing Officer of not referring the matter to the DVO u/s 50C of the Act. 3. The brief facts of the case are that, during the assessment....
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.... On perusal of the calculation sheet, the Assessing Officer came to the conclusion that the Stamp Valuation Authority has considered the jantri rate @ 11500/- sq. mtr. and the value of each plot assessed at Rs. 41,68,800/-. According to the Learned Assessing Officer, the following conditions provided under Section 50C have been fulfilled:- 1. There is a transfer of land or building or both. 2. The asset may be long term capital asset or short term capital asset. 3. It may be depreciable or non-depreciable asset. 4. The sale consideration is less than value adopted by stamp duty authority. And, therefore, the valuation done by the Stamp Valuation Authority has been taken as full value consideration rece....
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....elies upon the orders passed by the authorities below. 6. We have heard the Learned representatives of the parties and perused the material available on record. We find that it is mandatory on the part of the Assessing Officer to refer the matter to the DVO, even if it is not asked by the assessee before the authorities below, before computation of capital gains under the facts and circumstances of the case in hand as decided by number of judgments passed by the Co-ordinate Bench of this Tribunal, the Hon'ble jurisdictional High Court as well as Hon'ble High Court of Calcutta, which the Assessing Officer has failed to do. The relevant portion of the judgments passed by the Co-ordinate Bench of this Tribunal, as relied upon by the represe....
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....g observations made by the Tribunal in the case of Narendra Dahyabhai Patel vs. ITO (supra). "2. It is a case in which the Assessing Officer has adopted stamp duty valuation of the property sold, for computation of capital gains, under section 50C of the Income Tax Act, 1961. In appeal before the learned CIT(A), the assessee's contention was that despite his request, the matter was not referred to DVO under section 50C(2) but the appeal was turned down on the ground that assessee could not substantiate his claim of having made such a request in the course of assessment proceedings. The assessee is not satisfied and is in further appeal before me. 3. I have heard the rival submissions, perused the material on record and duly conside....
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.... even in the absence of a specific request from the assessee, the A.O. has to give an option to the assessee to follow the course provided by law under section 50C(2). There is a direct decision to this effect by Hon'ble Calcutta High Court in the case of Sunil Kumar Agarwal vs. CIT [(2015) 372 ITR 83 (Cal]. No judicial precedence to the contrary has been brought to my notice. Respectfully following the esteemed view of the Hon'ble Calcutta High Court in the case of Sunil Kumar Agarwal vs. CIT (supra), I uphold the plea of the assessee and remit the matter to the file of Assessing Officer for adjudication denovo after referring the matter to the DVO under section 50C(2). As the matter has been remitted to the file of Assessing Officer with ....
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....im an option to follow the course provided by the law''. In the light of these discussions, as also bearing in mind entirety of the case, we deem it fit and proper to remit the matter to the file of the Assessing Officer with a direction to refer the valuation of property to the Departmental Valuation Officer, and to frame the fresh assessment in the light of, inter alia, Departmental Valuation Officer's report, in accordance with the law, after affording an opportunity of hearing to the assessee and by way of a speaking order. The matter thus stands restored to the file of the Assessing Officer in the terms indicated above. 6. As we part with the matter, we may add that there is apparently also a dispute with respect of the point ....