TaxTMI 
TaxTMI 
2021 (9) TMI 97
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....ed to the DVO as per the provisions of section 50OC (2) of the Act, has failed to follow the procedure laid down in sub section (2) & (3) of section 5OC of the Act. 5. The Ld. CIT (A) erred in confirming the .assessment where an sale consideration of Rs. 17,68,83,350/ _ had been adopted instead of the actual sale consideration of Rs. 15,00,00,000/ - 6. The Ld. CIT (A) ought to have appreciated the fact that the engaged property sold was in litigation with the tenant and it was adjacent to a dumping yard of GHMC grave yard and a Government Park. 7. The assessee may add, alter or modify or substitute any other point to the Grounds of appeal at any time before or at the time of hearing of the appeal. 1.1 The assessee filed a petition requesting to admit the following additional grounds: "8. As per the ratio laid down by the Hon'ble Supreme Court of India in the case of National Thermal Power Co. Ltd vs. CIT (1998) 229 ITR 383 (SC) the !TAT has jurisdiction to examine the question of law though not arisen before the CIT (A) but has arisen before the ITAT for the first time. 9. The Ld. CIT (A) erred in disallowing the expenditure of Rs....
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....83 (SC) the ITAT has jurisdiction to examine any question of law though not raised before the CIT (A) but is raised before the IT AT for the first time. 20. The Ld. CIT (A) ought to have appreciated that the audited books of account were never rejected by AO during the assessment, and thus reference made to valuation officer without rejecting books of accounts is not tenable as per the judgement of Hon'ble Apex court in the case of Sargam Cinema V. CIT [2011] 197 Taxmann 203 (SC). 11. The appellant may add or alter or amend or modify or substitute or delete or rescind all or any of the grounds of appeal at any time before or at the time of hearing of the appeal. 1.2 We admit the said additional grounds raised by the assessee as they do not require any fresh investigation. 2. Briefly the facts of the case are that the assessee company was incorporated in 1991 and since then the assessee has not filed returns. A survey was conducted on 17/03/2011. Consequent to survey, the assessee filed its return of income for AY 2011-12 on 30/09/2011. Subsequently, the case was taken up for scrutiny and statutory notices were issued accordingly. The assessee filed....
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....efore, the same was executed on 24th day of January, 2011. Therefore, he submitted that the SRO value considered on the date of first payment received by the assessee, which is much lower than the amount determined on total consideration of Rs. 15 crores, to which, the assessee has offered sale consideration for the purpose of computation of capital gains. Further, he submitted that the property was sold after getting vacated the tenants from the land and the property cannot be sold without vacating them. Due to the circumstances around the land, the land value cannot fetch at fair market value as determined by the SRO for stamp duty purpose. He, therefore, contended that the authorities were not justified to take the sale consideration at Rs. 17,68,83,850/-, which is the SRO value. In support of his arguments, he relied on the following judgments: "1. Appadurai Vijayaraghavan Vs. JCIT, 49 Taxmann 513 (Mad. HC) 2. S. Muthuraja Vs. CIT, 37 taxmann 352 (HC Mad) 3. Lalitha Karan Vs. ITAT, ITA No. 1130/Hyd/2015 4. Ajay Kochar Vs. ITO, ITA No. 1066/Hyd/2017 5. Smt. Chalasani Nagar Ratna Kumari Vs ITO, 70 taxmann.com 104 6. Rahul G Pa....
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....out earlier agreements orally or written, on the basis of which the assessee was receiving any paymens. Therefore, considering the facts and circumstances of the case and as per the definition of transfer as per section 2(47) of the Act, the arguments advanced by the ld. AR in this regard is hereby rejected. From the assessment order, we observe that the AO has referred the matter to the DVO for determining fair market value as per section 50C(2) of the Act, but, it was not mentioned in the order the details of reference to DVO. He has completed the assessment without waiting for the report of the DVO. As per the judgment of the Hon'ble Calcutta High Court in the case of Sunil Kumar Agarwal Vs. CIT(GA No. 3686 of 2013/ ITAT No. 221 of 2013), judgment dated 13th March, 2014, if there is a difference in the value of the property as determined by the assessee and the SRO value, the AO is bound to refer the matter to the DVO and the assessment should be done on the basis of DVO report. Similar issue has been decided by the coordinate bench of ITAT, Bengaluru in the case of Shri Somashekar Venkataswamappa Vs. ACIT in ITA No. 1086/Bang/2016 vide order dated 14/08/2019 wherein it was held....
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.... 1 to Section 153, in computing the period of ITA No. 1086/Bang/2019 limitation, the period commencing from the date on which the Assessing Officer makes a reference to the Valuation Officer under sub-section (1) of section 142A and ending with the date on which the report of the Valuation Officer is received by the Assessing Officer shall be excluded. According to sub-section (6) of section 142A, the Valuation Officer shall send a copy of the report of the estimate made under sub-section (4) or sub-section (5), as the case may be of Section 142A, to the Assessing Officer and the assessee, within a period of six months from the end of the month in Which a reference is made under sub-section (1) of section 142A. The Valuation Officer having got a letter 13.12.2016 from the Assessing Officer had time up to 30.6.2017 to send the report. The period of six months odd taken by the Valuation Officer could have been excluded for the purpose of completion of assessment. The Assessing Officer, on the contrary, rushed through the assessment on 27.12.2016 without waiting for the valuation report itself. He has fixed the value of the property at Rs. 1,30,68,000/- for the purpose of com....
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....the assessee has to put forth a request in writing to the AO for making a reference to the DVO. In our view, the AO, after having made the reference to the DVO; ostensibly on the assessee's objections to the AO's proposal invoking the provisions of section 50C of the Act; the AO ought to have completed the assessment in accordance with the valuation report rendered by the DVO. 3.4.5 The CIT(A)'s view is that since the assessee did not make a written request to the AO for reference for valuation of the said property and therefore has not availed the opportunity under section 50C of the Act, the AO had no option but to proceed to apply provision of section 50C of the Act and in this regard placed reliance on the decision of the Hon'ble Madras High Court in the case of Ambattur Clothing Co. Ltd., Vs. ACIT (2010) 326 ITR 245 (Madras). The CIT(A)'s attempt ITA No. 1086/Bang/2019 to buttress this claim was in his observation that the AO's reference to the DVO was made suo-moto and invalid as the AO exceeded his jurisdiction. 3.4.6 Per contra, the learned AR has placed reliance on the decision of the Hon'ble Calcutta High Court in the case of ....
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....r in accordance with law. After such valuation is made, the assessment shall be made de novo in accordance with law." We must observe that in the case on hand, the circumstances are even more acute as the AO who had admittedly made a reference to the DVO vide letter No.ACIT C-3(2)(1)/16-17/105 dated 13.12.2016, strangely did not wait for the DVO's valuation report and hurriedly proceeded to pass the impugned order of assessment on 27.12.2016; just 14 days later; when the DVO had already initiated valuation proceedings by calling for details to be filed by the assessee on 02.01.2017 and had time to submit his Valuation Report upto 30.06.2017. 3.4.7 We now have slightly contrasting judicial pronouncements on the issue before us; wherein Revenue has relied on the Hon'ble Madras High Court in the case of Ambattaur Clothing Co. Ltd., (2010) 326 ITR 235 (Mad) and the learned AR of the assessee has placed reliance on the decision of the Hon'ble Calcutta High Court in the case of Sunil Kumar Agarwal Vs. CIT (2015) 372 ITR 83 (Cal). In our view, in the circumstances that prevail on the issue before us, the Hon'ble Apex Court in the case of CIT Vs. Vegetable....
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....ein the coordinate bench has held as under: "14. The CIT (A) after receiving the submission of assessee, remand report of Assessing Officer and Comments of assessee, went on to decide the issue as to assessibility of gain arising on transfer of development rights. It may be pointed out herein itself, the said issue of assessibility of capital gain was completed before the Assessing Officer who accepted the stand of assessee that the said gain was to be assessed as income from capital gains. There was no dispute about the assessibility of gains as income - from Long Term Capital Gain. The only dispute was that whether against such gains, the assessee could claim deduction under section 54 F of the Act on account of investment in new asset. In this regard, action of the CIT (A) in holding that the said income on sale of development rights was to be treated as adventure in the nature of trade/ business income, was not correct as per provisions of the Act. The powers of CIT (A) are coterminous with the power of Assessing Officer. In other words, the CIT (A) has wide power while deciding the appeal. However, as per Clause (2) of Section 251 of the Act, it is provided that the C....