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Income Tax Appellate Tribunal, MUMBAI BENCHES “G”, MUMBAI
Before: Shri Mahavir Singh & Shri Rajesh Kumar
O R D E R Per Rajesh Kumar, Accountant Member
This appeal by assessee arises out of the order of the CIT(A) – 32 , Mumbai, dated 04.12.2015, for A.Y. 2009-10. The assessment was framed by the Assessing Officer u/s. 143(3) r.w.s. 147 of the Income Tax Act, 1961.
The assessee has raised the following Grounds of appeal:
“(1) On the facts and in the circumstances of the case and in law the learned Assessing Officer erred in :- (i) Not referring the valuation to Valuation Officer u/s. 50C(2); (ii) Not accepting the appellant’s contention that the consent terms signed before the Thane Court and other encumbrances on the property have not been considered by the valuation officer and the valuation is therefore bad in law;
(iii) Not accepting that after investing the entire consideration in bonds u/s 54EC there is no reason to invoke section 50C.” 3. At the outset, the learned counsel for the assessee pointed out that identical issue, in the case of another co-owner (ITA No.5344/Mum/2012 for A.Y.2009-10 & Ors.), has been set aside by the Tribunal, vide its order dated 04.09.2017, to the file of the Assessing Officer to decide the issue after considering the assessee’s claim of handing over of 28% of land to the original buyer under the court settlement and to decide the matter afresh after providing reasonable opportunity of being heard to the assessee. The learned AR submitted that the issue of giving 28% land was not considered by the Departmental Valuation Officer (DVO) and since it is a very important aspect affecting the valuation, it should be referred to the Assessing Officer to decide the issue afresh as per the fact and law after taking into account the said material fact.
The learned DR, on the other hand, opposed to the arguments of the learned AR and relied on the orders of the authorities below.
We have heard rival submissions and perused the material available on record. We find that in this case the assessee has received 7.5% as her share in the sale consideration of the property, bearing Survey No. 21 Hissa No.1, Survey No.24 Hissa No.1, Survey No.25 Hissa No.1, Survey No.26 Hissa Nos. 7,8 & 9 and survey No.112 Hissa No.2 at Village Ghod Bunder, District Thane, out of total consideration of ` 4 crores. However, the market value of the said property as per Stamp Valuation Authority was ` 19,40,58,400/-. Thereafter, the case was referred DVO on the request of the assessee and the DVO valued the said property at ` 13,02,34,650/-. Accordingly, after allowing opportunity to the assessee, the Assessing Officer added an amount of ` 9,0,69,722/- to the income of the assessee and after allowing deduction u/s. 54EC of the Act the income was assessed at ` 61,23,945/-. On careful perusal of the decision of the Co-ordinate Bench in the case of one of the co-owners in (supra), we find that identical issue has been restored to the file of the Assessing Officer on the ground that 28% of the land has been handed over to the original buyer under the court order, which has not been considered by the DVO. We, therefore, respectfully following the decision of the co-ordinate Bench set aside the order of the CIT(A) and restore the matter back to the file of the Assessing Officer to consider the court orders and also the fact of handing over 28% of the land to the original buyer and then assess the income of the assessee as per fact and law. Accordingly, the issue is restored to the file of the Assessing Officer.
In the result, the appeal of the assessee is allowed for statistical purposes.
Order pronounced in the open court on this day of 7th August 2018.