SMT. RAGINIBEN D. PANDYA,NA vs. ARIVS.INCOME TAX OFFICER, WARD-1,, NAVSARI

सुनवाईकी तारीख/ Date of Hearing : 28/06/2022 घोषणाकी तारीख/Date of Pronouncement : 29/08/2022 आदेश / O R D E R PER DR. A. L. SAINI, ACCOUNTANT MEMBER: Captioned appeal filed by the assessee, pertaining to assessment year 2013-14, is directed against the order passed by the Learned Commissioner of Income Tax(Appeals)-Valsad [‘Ld. CIT(A)’ for short] dated 06.12.2017, which in turn arises out of an assessment order passed by the Assessing Officer (‘AO' for short) u/s 143(3) r.w.s 147 of the Income Tax Act, 1961 (hereinafter referred to as ‘the Act’) vide order dated 27.12.2016.

raised by assessee are as follows:-

1. Reference to Departmental Valuation Officer (DVO) u/s 55A(a) of the Income-Tax Act, 1961: As per Ld. AO the Fair Market Value as on 01-04-1981 is Rs.8/Sq. Mt. (supported by Sale Instances) whereas as per assessee it is Rs.20/- Sq.Mt. Section.55A(a) of Income Tax Act before Amendment on 01-07-2012 clearly says that if Fair Market Value is more than Value as per assessee than only mater can be referred to DVO. The Ld. CIT(Appeal) has also adopted the Fair Market Value given by DVO which is also not proper as reference to DVO in itself is against the Sec.55A(a) not according to law and therefore liable to be quashed.

2. Non-Applicability of Section 50C: The Ld. AO has not been justified in making the addition u/s 50C of the Act without considering the facts of the case. Section 50C is applicable only to Capital Assets for limited purposes of calculation of full value of consideration received / accruing as a result of transfer. The Ld. AO is taxing the sale of Land which is already sold and taxed in 1980 to 1985 and in 207-08 and again in 2012-13 and thus taxing the income on sale of same land which is double taxation. The Ld. AO can at the most tax incremental revenue received as business income not as capital gain u/s 50C of the Income Tax Act.

3. The assessee prays to your honor to either quash the entire proceeding or remand back the case to the Ld. AO for fresh consideration.” 3. Notice of hearing of this appeal was sent to the assessee at the address given by the assessee in Form No.36. The said notice has not been returned unserved. This appeal was listed for hearing before this Tribunal on several time. Today i.e. on 28.06.2022 when the case was called for hearing, none appeared on behalf of the assessee nor any request for adjournment was made. It means that assessee is not interested in prosecuting this appeal. Therefore, we have heard ld DR for the Revenue and perused the material available on record.

4. The relevant material facts, as culled out from the material on record, are as follows. The Assessing Officer had computed long term capital gain as per provision of Section 50C of the Act whereby the sale consideration of the land was taken at Rs.10,90,75,456/- on the basis of stamp duty valuation of the land on the date of sale. Further, the AO has taken fair market value of the land as on 01.04.1981 (for cost of acquisition) at Rs. 8 per sq.mtr. on the basis of sale instances of similar property sold in 1981. Based on the assessee’s request at the time of assessment proceedings, reference was also made to the DVO u/s 50C(2) of the Act. However, the DVO report was not received till the date of passing of assessment order. Therefore, AO made addition to the tune of Rs.1,78,90,886/-.