MANOJ SHANKARRAO BHAGAT,,YAVATMAL vs. ITO-WARD-1,, AMARAVATI

PER BENCH This appeal by assessee is arising out of the order of Ld.CIT(A)-II, Nagpur

vide Order No.CIT(A)-II/02/12-13 dated 04.02.2014. The assessment was

framed by ITO, Ward-1, Amravati u/s 143(3) of the Income Tax Act, 1961 (in

short “Act”) for A.Y. 2009-10 vide his order dated 28.12.2011.

Ld.CIT(A) confirming the action of the AO in making addition of short term

capital gain without referring the same D.V.O in terms of section 50C(2) of the

Act. For this, the assessee has raised following two grounds:-

ITA No. 312/NAG/2014 3. Brief facts of the case are that Sh. Manoj Shankarrao Bhagat, the

assessee purchased agricultural land admeasuring 2.91 hectares from two

sisters namely (i) Smt. Vatsalabai Dange and (ii) Smt. Tulsabai Bhoyar. This

property was purchased vide agreement dated 01.12.2006 and the relevant

feature of the agreement is reproduced in the assessment order which reads as

under:-

“The land is acquired under Urban land ceiling Act, 1976 and the assessee was required to make the land free from acquisition and after that the land will be converted into layout. The assessee will sell the plots and the owners will get Rs.50/- per sw. Ft. on sale. The agreement was affixed with thumb impression of the two ladies and signed by the assessee.” 4. This property was sold by the assessee during the year under

consideration for a sum of Rs.1.55 crore as per agreement. The AO received

information and according to him, the fair market value as adopted by stamp

duty authorities u/s 50C of the Act is Rs.4.44 crores. The AO taking the fair

market value at Rs.4.44 crores assessed the short term capital gain at Rs.4.43

crores. Aggrieved, the assessee preferred appeal before Ld.CIT(A) who also

confirmed the action of the AO by observing in para 6.5 as under:_

6.5. “With regard to the contention of the appellant that the provisions of section 50C should not be applied, there is no substance in the submission made by the appellant. The facts of the case law relied upon by the appellant are different and are not applicable to the case under consideration. It was evident that the fair market value of the said property as per the stamp valuation authorities was Rs.44400000/- and in the absence of any request made by the appellant with the Ld. AO to refer the said property for valuation to the DVO, there was no reason for Page | 2

ITA No. 312/NAG/2014 the Ld. AO to do so. Also the appellant has not alternatively furnished any valuation report of registered valuer so as to establish that the fair market value of the said property is less than Rs. 44400000/-. In view of the above situation, I see no infirmity in the action of the appellant to apply the provisions of section 50C of the Act. Considering the totality of facts I see no reason to interfere with the action of the Ld. AO to compute the short term capital gain arising on the said transaction at Rs. 44300000/-. The addition made in this regard is hereby confirmed.”

Now the assessee is in appeal before the Tribunal.

of the grounds regarding non-reference of this property to the D.V.O for

ascertaining the fair market value u/s 50C(2) of the Act, he fairly conceded that

the matter can be set aside to the file of the AO for fresh adjudication of the

issue after allowing opportunity of being heard to the assessee and also

referring the property to D.V.O to ascertain the correct market value in terms

of section 50C(2) of the Act for the purpose of computation of capital gain. In

view of the above, we set aside this issue to the file of the AO and remand the

matter back for fresh adjudication.

purposes.

Order pronounced in the open court on 08th March, 2018.

Sd/– Sd/– (G.D.AGRAWAL) (MAHAVIR SINGH) HON’BLE PRESIDENT JUDICIAL MEMBER

Dated: 08th MARCH, 2018 *Amit Kumar*

ITA No. 312/NAG/2014

Copy to: 1. The Appellant 2. The Respondent 3. The CIT(A), Nagpur 4. The CIT, Nagpur 5. The DR, Bench, ITAT, Nagpur

By Order Assistant Registrar ITAT, Nagpur Bench, Nagpur