Case Law Details

Case Name : Amarshiv Construction Pvt. Ltd. Vs. D.C.I.T. (ITAT Ahmedabad)
Appeal Number : ITA No. 3061/Ahd/2015
Date of Judgement/Order : 29/12/2017
Related Assessment Year : 2011-12
Courts : All ITAT (5168) ITAT Ahmedabad (372)

Amarshiv Construction Pvt. Ltd. Vs. DCIT (ITAT Ahmedabad)

There is no dispute from the above narrated facts and circumstances that both the lower authorities have gone by the reduced jantri price for the purpose of invoking Section 50C of the Act so as to make the impugned long term capital gains addition. The CIT(A) particularly is of the opinion that the above reduced jantri price in Stamp Act Appellate proceedings coming to Rs. 95,73,102/- is just and proper. We however see no reason to concur with the above extracted findings as the impugned addition u/s.50C(2) of the Act mandates reference to the DVO in case an assessee contests the jantri price in question to be higher than fair market value of the relevant capital asset. Honorable Calcutta high court’s judgment in (2015) 372 ITR 83 (Cal.) Sunil Kumar Agarwal vs. CIT holds that such a reference is mandatory even if an assessee does not make any such prayer. We therefore accept assessee’s sole substantive grievance for statistical purposes and remit the issue back to the Assessing Officer to proceed afresh as per law u/s.50C(2) of the Act by making reference to the DVO.

FULL TEXT OF THE ITAT ORDER IS AS FOLLOWS:-

This assessee’s appeal for assessment year 2011-12 arises against the CIT(A)-1, Vadodara’s order dated 21.08.2015 in case no. CAB-1/176/2014-15, upholding Assessing Officer’s action making long term capital gains addition of Rs. 62,21,877/- after invoking Section 50C, in proceedings u/s. 143(3) of the Income Tax Act, 1961; in short “the Act”.

Heard both the parties. Case file perused.

2. We come to the relevant facts now. The assessee company had sold its capital assets in question i.e. a plot measuring 37838sq.ft. comprised in land survey no.974/27 for consideration of Rs.75,67,600/- at Timba, R.S. No.974/14 ad measuring 40,772sq.ft. for Rs. 81,54,400/- and R.S. No. 974/26 ad measuring 39625 sq.ft. for Rs.79,25,000/-; respectively. The said transactions also attracted additional stamp duties. Net effect thereof was that the total consideration amount stood notionally increased to Rs. 95,69,273/-, Rs. 1,03,08,584/- and Rs. 99,91,020/-; respectively. The Assessing Officer adopted the above enhanced consideration(s) to invoke Section 50C of the Act resulting in long term capital gains in addition in question of Rs.62,21,877/- in assessment order dated 26.03.2014.

3. The CIT(A) affirms the impugned addition as under:

“5.2.3. From the details furnished by the appellant during the course of the appellate proceedings and the submissions made along with these, it is seen that the market value of the land fixed by the Stamp Duty Officer had been disputed by the purchaser and accordingly, they had approached in appeal to the Collector, Stamp Duty Valuation Division, Panchmahals for correct valuation as per the market price. The translation of the letter issued by the Sub Registrar, Godhra to the purchaser asking for the payments of additional Stamp Duty in regard of one of these plots is reproduced below:

“We have to inform you that a document for change of ownership/sale was received on 07.09.2010 vide Acknowledgement No. 600/2010 for Rs. 75,67,600/- for registration. The price as per the Jantri record as on date is Rs. 1,87,29,900/-. On the said price the stamp duty payable is Rs. 9,17,766/-. In the documents submitted by you the Stamp Duty paid is Rs. 3,71,000/-.

In view of this the short fall in Stamp Duty works out to Rs. 5,46,766/- which is desired by you to be paid the same should be paid within the period of 30 days from the receipt of this notice. After the receipt of the payment the necessary entries would be made in the sale deed and the same would be returned.

If the said Stamp Duty is not paid within a period of 30 days the said document would be referred to the Collector Stamp Duty Valuation Division – 1/2, Panchmahals for correct valuation of market price as per the provisions of Section 32(ka)(1).”

5.2.4. Thus, the Stamp Duty as per the jantri rate has not been accepted in this case and the same had been appealed against and, accordingly, a fresh market value was determined by the Collector, Stamp Duty Valuation which was substantially lower than the valuation of the land as per the jantri rate. For e.g. in case of R.S. No. 974/27, the sale consideration Vhown by the appellant is Rs. 75,67,600/- as against which the jantri rate was Rs. 1,87,29,900/-. After filing appeal against this jantri rate, the market value was determined at Rs. 95,73,102/- on which the Stamp Duty was paid for the registration of the sale deed. Thus, the appellant had already been given substantial relief by the Collector Stamp Duty Valuation Division and hence, as per the provisions of clause (b) of sub section (2) of Section 50C of the It Act, 1961, the AO was not obliged to refer the matter for fresh valuation to the District Valuation Officer.

5.2.5 Hence, it is held that since the market value of the land has already been determined by the higher authority as per the appeal filed by the purchaser of the land and market value of the lands have already been substantially reduced as compared to the market value as per jantri rate, hence, the AO was correct in adopting such market value of the lands as determined by the Collector as the sale consideration received by the appellant as as per the provisions of Section 50C of the IT Act, 1961. Accordingly, there is no requirement of remanding the matter back to the AO for referring the valuation of the land to the District Valuation Officer. The addition made by the AO is as per law and hence, the appellant is not entitled to receive any further relief. Accordingly, this ground of appeal is dismissed.”

4. Heard both the parties. Case file perused. There is no dispute from the above narrated facts and circumstances that both the lower authorities have gone by the reduced jantri price for the purpose of invoking Section 50C of the Act so as to make the impugned long term capital gains addition. The CIT(A) particularly is of the opinion that the above reduced jantri price in Stamp Act Appellate proceedings coming to Rs. 95,73,102/- is just and proper. We however see no reason to concur with the above extracted findings as the impugned addition u/s.50C(2) of the Act mandates reference to the DVO in case an assessee contests the jantri price in question to be higher than fair market value of the relevant capital asset. Honorable Calcutta high court’s judgment in (2015) 372 ITR 83 (Cal.) Sunil Kumar Agarwal vs. CIT holds that such a reference is mandatory even if an assessee does not make any such prayer. We therefore accept assessee’s sole substantive grievance for statistical purposes and remit the issue back to the Assessing Officer to proceed afresh as per law u/s.50C(2) of the Act by making reference to the DVO.

5. This assessee’s appeal is allowed for statistical purposes.

[Pronounced in the open Court on this the 29th day of December, 2017.]

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Category : Income Tax (27505)
Type : Judiciary (11709)
Tags : Capital Gain (400) ITAT Judgments (5352) section 50C (112)

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