Case Law Details

Case Name : Mohd Shoib Vs DCIT (ITAT Lucknow 'B' Bench)
Appeal Number : ITA No. 431/Luc./08
Date of Judgement/Order : 21/11/2008
Related Assessment Year :
Courts : All ITAT (4449) ITAT Lucknow (70)

RELEVANT PARAGRAPH

8.       We have considered the rival submissions and perused the material on record. In our considered view, the argument of ld.AR that the AO has to necessarily refer the capital asset for valuation to the DVO even though there is no claim made by the assessee is not acceptable. In this regard, we refer to Section 50C(2) as under:

“Special provision for full value of consideration in certain cases. SOC.

(2) Without prejudice to the provisions of sub-section (1), where—

(a)      the assessee claims before any Assessing Officer that the value adopted or assessed by the stamp valuation authority under sub section (1) exceeds the fair market value of the property as on the date of transfer;

(b)      the value so adopted or assessed by the stamp valuation authority under sub-section (1) has not been disputed in any appeal or revision or no reference has been made before any other authority, court or the High Court, the Assessing Officer may refer the valuation of the capital asset to a Valuation Officer and where any such reference ts made, the provisions of sub-sections (2), (3), (4), (5) and (6) of section 16A, clause (/) of sub-section (1) and sub-sections (6) and (7) of section 23A, sub-section (5) of section 24. section 34AA, section 35 and section 37 of the Wealth-tax Act, 1957 (27 of 1957), shall, with necessary modifications, apply in relation to such reference as they apply in relation to a reference made by the Assessing Officer under sub-section (1). of section 16A of that Act*

9.          Clause (a) and (b) are placed in continuation to each other. They are not separated by the conjunction “or”. Even though conjunction “an<F is not there but a semi-colon is placed between the two clauses which only indicates that the two clauses are in continuation to each other and therefore, conditions laid down in both of them are required to be satisfied together. In other words, the assessee has to claim before the AO that valuation as per SVA exceeds the fair market value of the capital asset under transfer and further that such valuation is not in dispute before any appellate authority under Stamp Duty Act If we accept the argument of ld.AR that both the clauses should be read independently and in other words, should be read as separated by conjunction “or”, then its effect would be that clause (a) will become otiose and only on valuation as per SVA not being disputed before appellate authorities under Stamp Duty Act, the AO will have to refer the property to the DVO without comparing the valuation as per SVA with the fair market value. As per this argument, the assessee has only to show that valuation as per SVA is undisputed before their appellate authorities. It will be enough for the AO to refer the property to the DVO. In other words, there is no occasion for the AO to apply his mind to the facts of the case and take .an appropriate decision whether to refer the property to the DVO or not. However, we do not agree. The word used in Section 50C(2) is “may**, as it is mentioned therein that the uA O  may refer the valuation of the capital asset to a Valuation Officer……….”. In other words, a discretion is provided to the AO to refer the property to the valuation cell provided he is satisfied that FMV of the capital asset under transfer is less than valuation as per SVA. The application of mind by the AO has been provided by the Legislature in order to mitigate the difficulties of the tax payers in cases where valuation as per SVA is more than fair market value and such valuation by SVA is not under challenge. Thus, where fair market value of the capital asset under transfer is less than the valuation as per SVA and such Valuation as per SVA becomes final under Stamp Duty Act then the assessee is left with no choice and has to pay tax on the notional sale consideration on the valuation as per SVA. This will cause a genuine hardship to the tax payers. Intention of the Legislature in enacting Section 50C is to plug loopholes whereby certain tax payers used to understate sale consideration and pass on the difference in cash presumably unaccounted. It was considered to substitute the sale consideration by valuation as per SVA as reflective of the fair market value of the capital asset under transfer and therefore, substitute the same for declared sale consideration for charging capital gains. But where fair market value is actually less than valuation as per SVA and AO has mandate to substitute sale consideration by valuation as per SVA [in accordance with Section 50C(1)] then it will cause genuine hardship to the tax payers and therefore, it was provided in Section 50C(2) that assessee has to provide material before the AO to show that fair market value of the capital asset under transfer is less than valuation as per SVA and such valuation as per SVA is not under challenge under Stamp Duty Act, therefore, it is causing a genuine hardship to him. Thus, on this claim and material placed before the AO, the AO has to judiciously apply his mind, use his discretion and refer the property to the DVO for determining fair market value of the capital asset But where AO is not satisfied about genuineness of the claim of the assessee that fair market value is less than the valuation as per SVA, he may also decide against such reference to the DVO. That is why the word used by the Legislature in Section 50C(2) is “may”. It cannot mean “shalF because if it is made mandatory to refer every claim of the assessee to the DVO then application of mind by the AO about such claim would become redundant and the word “may” would loose its significance. Therefore, we reject the contention of the ld.AR that in every case where valuation as per SVA is not challenged under Stamp Duty Act then AO has to necessarily refer die property to the DVO without there being any claim to this effect and without there being any material submitted by the assessee to show that fair market value of the property is less than the valuation as per SVA. 10.     Much emphasize has been laid by ld.AR on the effect of semicolon which separates clause (a) and (b) of Section 50C(2). Semicolon is a mark for coordination. Its function is to show relationship between elements of a sentence. A full stop might break or make the relationship absurd. It coordinates the two clauses in the same section or sub-section though these clauses are independent but having a relationship close enough to render it desirable that the clauses be joined in one sentence yet remote enough to mark a difference by a semi-colon rather than by means of conjunction ‘or’. It is also used to coordinate a series of paragraph or sub-paragraphs. In fact, semi-colon is nothing better than a comma. It is so explained by the Hon’ble MP High Court in the case of Bal Krishna Das vs Perfect Potteries Co. Ltd, AIR 1985 MP 42. In Advance Law Lexicon by P Ramanatha Aiyer Third Edition [2005] on page 4289, it is described as under: The semi-colon and the comma are both used for the same purpose in punctuation, namely, to divide sentences and parts of sentences, the only difference being that the semi-colon makes the division a litter more prolonged than the comma.”

More Under Income Tax

Posted Under

Category : Income Tax (25536)
Type : Judiciary (10287)
Tags : ITAT Judgments (4629) section 24 (53) section 35 (17) tax act (19)

Leave a Reply

Your email address will not be published. Required fields are marked *