SMT. RANJANBEN D PATEL,VADODARA vs. THE. INCOME TAX OFFICER,WARD-2(5), BARODA

By way of this appeal, the assessee appellant has challenged correctness of order dated 26.11.2014 passed by the CIT(A) in the matter of assessment under Section 143(3) the Income-tax Act, 1961, for the assessment year 2008-09. 2. In the first ground of appeal, the assessee has raised following grievance:-

So far as this grievance of the assessee is concerned, the relevant material facts are like this. During the course of assessment proceedings, the Assessing Officer noticed that while the assessee has sold the property for the sale consideration of Rs.60,00,000/-, but the value of the said property as per the stamp duty valuation was Rs.87,39,118/-. It was in this backdrop that the Assessing Officer computed the capital gains, inter alia, by adopting stamp duty valuation as the value at which the property was sold. Aggrieved, the assessee carried the matter in Smt Ranjanben D Patel vs. ITO Assessment year: 2008-09 appeal before the CIT(A) but without any success. Assessee is not satisfied and is in further appeal before me.

I have heard the rival contentions, perused the material on record and duly considered facts of the case in the light of the applicable legal position.

During the course of the arguments before me, learned Counsel for the assessee has made a short point with respect to reference to the DVO for the purpose of valuation of this property under scheme of Section 50C(2) of the Act. He, however, fairly accepts that no such specific request was made before any of the authorities below. Having said that he invited my attention to the decision of the Co- ordinate Bench in the case of Raj Kumari Agarwal Vs DCIT, reported in 150 ITD 597, wherein, following the esteemed views of the Hon’ble Calcutta High Court’s judgment in the case of Sunil Kumar Agarwal vs. CIT (GA No 3686/2013 in ITAT No 221/ 2013; judgment dated 13th March 2014), the division bench has held that “even in a case where no such prayer is made by the learned advocate representing the assessee, who may not have been properly instructed in law, the assessing officer, discharging a quasi judicial function, has the bounden duty to act fairly and to give a fair treatment by giving him an option to follow the course provided by law.” In other words, learned Counsel’s stand is that whether or not the assessee specifically requests for a reference to the DVO, the Assessing Officer has to give him an option for the same which, beyond any controversy, has not given in the present case.

Learned Departmental Representative, on the other hand, submits that when the assessee does not seek any reference to the DVO, obviously such a reference cannot be thrust upon him. It is for the assessee, according to the learned Departmental Representative, to take a call as to whether or not he seeks a reference being made to the DVO.

I find this issue is covered in favour of the assessee, as rightly pointed out by the learned Counsel, by the division bench order of this Tribunal in the case of Raj Kumari Agarwal (supra), wherein, following the views expressed by the Hon’ble Court above, the division bench has held that irrespective of whether or not the assessee has made a specific request for reference being made to the DVO in the case of stamp duty value being in absence of stated sales consideration, the Assessing Officer is required to give an option to the assessee for a reference being made to the DVO. These views, which are reproduced below for ready reference, constitute binding judicial precedent to this bench.