Shri J. Nithyanandan, CHENNAI V. ITO, CHENNAI

ITA 2991/CHNY/2016

• Counselvise Citation: [2017] 130 COUNSELVISE.COM (IT) 7504 (ITAT-CHENNAI)
• Duration Of Justice: 4 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-03-2017
• Appeal Filed By: Assessee
• Bench Allotted: B
• Assessment Year: 2010-2011
• Appeal Filed On: 21-10-2016
• Court: TRIBUNAL
• Department Lawyers: SUPRIYO PAL
• Assessee Lawyers: S SRIDHAR
• Keywords: Reopening of assessment; Sale consideration of property below Jantri Value; Value adopted by valuation officer; Capital asset; Cost of acquisition; Fair market value; Corroborative evidences; Valuation report; Revised return; Reason to believe
• Section: 50C; 142(1); 147; 148; 37

Judgement Text

, , IN THE INCOME - TAX APPELLATE TRIBUNAL B BENCH, CHENNAI , . , BEFORE SHRI CHANDRA POOJARI , ACCOUNTANT MEMBER & SHRI DUVVURU RL REDDY , JUDICIAL MEMBER ./ I.T.A.NO. 2991 /MDS/2016 / ASSESSMENT YEAR :20 1 0 - 1 1 SHRI J. NITHYANANDAN, 32, 18 TH WEST CROSS STREET, MKB NAGAR, VYASARPADI, CHENNAI 600 039. [PAN: A GXPN9489K ] VS. THE INCOME TAX OFFICER , NON - CORPORATE WARD 5(2), CHENNAI 600 006 . ( / APPELLANT ) ( / RESPONDENT ) / APPELLANT BY : SHRI S. SRIDHAR, ADVOCATE / RESPONDENT BY : SHRI SUPRIYO PAL , J CIT / DATE OF HEARING : 21 . 12 .201 6 / DATE OF P RONOUNCEMENT : 15 . 0 3 .201 7 / O R D E R PER DUVVURU RL REDDY , JUDICIAL MEMBER : THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS) 5 , DATED 2 9 . 0 8 .20 1 6 RELEVA NT TO THE ASSESSMENT YEAR 20 10 - 11. THE ONLY EFFECTIVE GROUND RAISED IN THE APPEAL OF THE ASSESSEE IS THAT THE LD. CIT(A) HAS ERRED IN CONFIRMING THE ADDITION OF .1,17,14,585/ - BEING ADDITIONAL CAPITAL GAIN MADE BY INVOKING THE PROVISIONS OF SECTION 50C OF THE INCOME TAX ACT, 1961 [ ACT IN SHORT] . I.T.A. NO.2991/M/16 2 2. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE IS AN ADVOCATE, A LEGAL PROFESSIONAL AND FILED HIS RETURN OF INCOME ON 01.11.2012 ADMITTING INCOME FO .2,55,67,170/ - . THE RETURN FILED BY THE ASSESSEE WAS PROCE SSED UNDER SECTION 143(1) OF THE ACT. SUBSEQUENTLY, THE CASE OF THE ASSESSEE WAS REOPENED UNDER SECTION 147 OF THE ACT AS THERE WAS REASON TO BELIEVE THAT CAPITAL GAIN WHICH AROSE FROM SALE OF PROPERTY HAS BEEN ESCAPED ASSESSMENT AND ACCORDINGLY, NOTICE UN DER SECTION 148 OF THE ACT DATED 21.06.2013 WAS SERVED ON THE ASSESSEE. N OTICE UNDER SECTION 143(2) OF THE ACT DATED 20.09.2013 WAS SERVED ON THE ASSESSEE. THEREAFTER, NOTICE UNDER SECTION 142(1) OF THE ACT DATED 19.09.2013 WAS SERVED ON THE ASSESSEE. IN R ESPONSE THERETO, THE ASSESSEE FURNISHED ALL THE DETAILS INCLUDING SETTLEMENT DEED, PATTAS AND OTHER DOCUMENTS IN SUPPORT OF HIS CLAIM ON ADOPTING THE SALE CONSIDERATION AT .400/ - PER SQ.FT. 2.1 DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE ASSESSING OFFICER HAS OBSERVED THAT THE ASSESSEE HAS SOLD PROPERTY AT ZAMIN P ALLAVARAM TO SOUTH INDIA ASSEMBLIES OF GOD REGISTERED AT MUMBAI RESULTING IN LONG TERM CAPITAL GAINS. THE ASSESSEE HAD OFFERED SALE CONSIDERATION OF .2.80 CRORES. ON EXAMINATION OF THE SAL E DOCUMENT OF THE PROPERTY, THE ASSESSING OFFICER HAS OBSERVED THAT THE PROPERTY WAS SOLD FOR .3,79,90,860/ - @ .555/ - PER SQ.FT., WHEREAS THE SALE CONSIDERATION SHOWN IN THE DOCUMENT WAS .2.80 I.T.A. NO.2991/M/16 3 CRORES @ .400/ - PER SQ.FT., THEREBY ATTRACTING THE PROVISIO NS OF SECTION 50C OF THE ACT. 2.2 ON PERUSAL OF THE DOCUMENTS PROVIDED BY THE ASSESSEE, THE ASSESSING OFFICER HAS NOTICED THAT THE STAMP VALUE ADOPTED BY THE SRO HAS BEEN CHALLENGED AND APPEALED BEFORE ANOTHER AUTHORITY I.E., DISTRICT REVENUE OFFICER (ST AMPS), CHENNAI. THE DRO HAD INSPECTED THE PROPERTY AND DETERMINED THE MARKET VALUE OF THE PROPERTY AT .555/ - PER SQ.FT. (AGAINST THE GUIDELINE VALUE OF .400/ - PER SQ.FT. AS ON THE DATE OF SALE ) I.E., 01.06.2009. THE ABOVE FACTS APPEAR ON PAGE 29 OF THE DOCUMENT, WHICH WAS RELEASED AFTER PAYMENT OF THE EXCESS STAMP DUTY ON 16.08.2011. 2.3 SINCE THE ASS ESSEE HAS BEEN CONFRONTING THE VALUE WITH DOCUMENTS IN SUPPORT OF HIS CLAIM, THE ASSESSING OFFICER HAS REFERRED THE CASE TO THE VALUATION OFFICER, UNIT II, VALUATION CELL, CHENNAI TO ASCERTAIN THE CORRECT VALUE OF THE PROPERTY, WHO HAS VALUED THE PROPERTY AT .555/ - PER SQ. FT. AND THE SALE CONSIDERATION AT .3,79,90,860/ - AS ADOPTED BY THE APPELLATE AUTHORITY I.E., DRO (STAMPS). ACCORDINGLY, THE ASSESSING OFFICER HAS DETERMINED THE LONG TERM CAPITAL GAINS AND THE ADDITIONAL CAPITAL GAIN OF .1,17,14,585/ - WAS BROUGHT TO TAX. 3. THE ASSESSEE CARRIED THE MATTER IN APPEAL BEFORE THE LD. CIT(A). AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE, VARIOUS CASE LAW, THE LD. I.T.A. NO.2991/M/16 4 CIT(A) HAS SUSTAINED THE ADDITION MADE BY THE ASSESSING OFFICER BY OBSERVING AS UNDER: COMP UTATION UNDER SECTION 50C - VALUATION OF PROPERTY THE ASSESSEE HAS TRIED TO JUSTIFY SALE CONSIDERATION MENTIONED IN THE SALE DEED BY STATING THAT THOUGH THE AREA OF LAND AS PER THE DOCUMENT WAS 623 SQ. YDS. BUT LAND PHYSICALLY AVAILABLE WAS ONLY 580 SQ. YDS. IT IS THE FURTHER CONTENTION THAT DUE TO SEVERE VAASTU DEFECT AREA OF 125 SQ. YDS. WAS NOT USABLE FOR CONSTRUCTION PURPOSES AND THE BUYER HAS ALSO SPENT AN AMOUNT OF RS.30 LAKHS TOWARDS LEVELLING AND CONSTRUCTION OF RETENTION WALL. IT IS SEEN THAT, TH OUGH THE OVA HAS ACCEPTED CERTAIN SPECIFIC ISSUES RAISED BY THE ASSESSEE IN THIS REGARD, HE HAS NOT PROPERLY GIVEN DISCOUNT TOWARDS THE SAME. FURTHER, AS CAN BE SEEN FROM THE VALUATION REPORT, WHICH CONTAINS SALE INSTANCES CONSIDERED BY THE OVA FOR COMPARA BILITY PURPOSE, IN ALL THESE CASES SALES WERE EFFECTED IN FINANCIAL YEAR 2007 - 08, WHEREAS ASSESSEE HAS SOLD THE PROPERTY IN FINANCIAL YEAR 2006 - 07 RELEVANT TO ASSESSMENT YEAR 2007 - 08. IF AT ALL THE DVO IS TO CONSIDER COMPARABLE SALE INSTANCES, THEN, HE HAS TO CONSIDER THE SALE INSTANCES OF THE RELEVANT DATE WHEN THE ASSESSEE SOLD PROPERTY OR DATES PROXIMATE TO THAT DATE. HE CANNOT TAKE COMPARABLE INSTANCES OF SALE WHICH HAPPENED 7/8 MONTHS AFTER THE DATE OF SALE OF PROPERTY BY THE ASSESSEE. FURTHER, CONSIDE RING THE APPRECIATION IN VALUE OF THE PROPERTY AS PER THE SRO GUIDELINE THE DISCOUNT GIVEN BY THE DVO ON BACKWARD CALCULATION, IS NOT FAIR. IN THE AFORESAID VIEW OF THE MATTER, THE VALUE DETERMINED BY THE DVO CANNOT BE TREATED AS THE FAIR MARKET VALUE OF T HE PROPERTY. AT THE SAME TIME, THE SALE CONSIDERATION SHOWN BY THE ASSESSEE IN ABSENCE OF ADEQUATE EVIDENCE COULD NOT BE ACCEPTED. THOUGH, THE ASSESSEE HAS CONTENDED THAT THE ACTUAL EXTENT OF LAND AS PHYSICALLY AVAILABLE IS LESS THAN WHAT IS MENTIONED IN DOCUMENT, BUT, THE SAME NEEDS TO BE SUBSTANTIATED BY PRODUCING SUPPORTING EVIDENCE. AS IT APPEARS NEITHER ANY PHYSICAL VERIFICATION HAS BEEN DONE AT ANY STAGE TO ASCERTAIN THE EXACT EXTENT OF LAND NOR ANY CONCLUSIVE EVIDENCE HAS BEEN BROUGHT ON RECORD TO ESTABLISH SUCH CLAIM. SO, SIMPLY RELYING UPON THE CONFIRMATION OF THE BUYER, ASSESSEE'S CLAIM OF SHORTAGE OF LAND CANNOT BE ACCEPTED WHEN THE REGISTERED SALE DEED CLEARLY MENTIONS THE AREA OF LAND AT 623SQ. YARDS. SIMILARLY, IT IS A FACT ON RECORD THAT WHI LE ASSESSEE HAS MENTIONED THE SALE CONSIDERATION AT RS. 90,50,000, THE SRO ADOPTED FAIR MARKET VALUE FOR STAMP DUTY PURPOSES I.T.A. NO.2991/M/16 5 AT RS.1,87,36,000 AND THE OVO HAS ADOPTED FMV AT RS. 1,75,32,000. THE ASSESSEE ON HIS PART HAS NOT SUBMITTED ANY REPORT FROM A REGI STERED VALUER TO SUBSTANTIATE THAT SALE CONSIDERATION SHOWN BY HIM IS THE ACTUAL FAIR MARKET VALUE. NO OTHER EVIDENCE HAS ALSO BEEN PRODUCED BY THE ASSESSEE IN THE NATURE OF COMPARATIVE INSTANCES OF SALE IN THE SAME LOCALITY ON RELEVANT DATE TO SHOW THAT S ALE CONSIDERATION MENTIONED IN THE REGISTERED SALE DEED IS THE ACTUAL FAIR MARKET VALUE ON THE RELEVANT DATE. THEREFORE, IN THE ABSENCE OF ALL THESE EVIDENCES, ASSESSEE'S CLAIM ALSO CANNOT BE ACCEPTED IN TOTO. [PARA 17]. 6.3 FOR THE ABOVE STATED REASONS ALL THE GROUNDS OF APPEAL OF APPELLANT WITH RESPECT TO REOPENING OF ASSESSMENT ARE DISMISSED AND THE ACTION OF THE ASSESSING OFFICER TO REOPEN THE ASSESSMENT IS UPHELD. 7. 50C - OPPORTUNITY NOT GIVEN: 7.1 THE ASSESSING OFFICER VIDE LETTER DT.10.09.2014 ASKED THE ASSESSEE TO EXPLAIN WHY 50C SHOULD NOT BE INVOKED. THE ASSESSEE FILED HIS OBJECTION FOR THE PROPOSAL IN WRITING ALONG WITH SOME DOCUMENTS. 7.2 HENCE THE GROUND OF THE APPELLANT THAT THE NO PROPER OPPORTUNITY WAS GIVEN AFTER OBTAINING THE VAL UATION REPORT FROM THE VALUATION CELL IN THE ASSESSMENT PROCEEDINGS IS DISMISSED AS FACTUALLY NOT CORRECT. 8. 50C 8.1 THE ASSESSEE CHALLENGED THE STAMP VALUE ADOPTED BY THE SRO AND APPEALED BEFORE THE DISTRICT REVENUE OFFICER (STAMPS), CHENNAI. THE DR O INSPECTED THE PROPERTY AND DETERMINED THE MARKET VALUE OF THE PROPERTY AT RS.S55/ - PER SQ. FT (AGAINST THE GUIDELINE VALUE OF RS.400/ - PER SQ.FT. AS ON THE DATE OF SALE) I.E. 01.06.2009. 8.2.1 IN HIS NOTES OF ARGUMENTS FILED ON 11.07.2016 THE AR OF TH E ASSESSEE PLACED RELIANCE ON [2012] 28 TAXMANN.COM 93 (DELHI) HIGH COURT OF DELHI, COMMISSIONER OF INCOME - TAX, DELHI - I1, V. KHOOBSURAT RESORTS (P.) LTD. S. RAVINDRA BHAT AND R.V. EASWAR, JJ. IT APPEAL NO. 776 OF 2011, NOVEMBER 5, 2012. I.T.A. NO.2991/M/16 6 SECTION 50C OF TH E INCOME - TAX ACT, 1961 - CAPITAL GAINS - FULL VALUE OF CONSIDERATION IN CERTAIN CASES, SPECIAL PROVISION FOR - STAMP DUTY VALUATION - ASSESSMENT YEAR 2007 - 08 - ASSESSEE - RESORT PURCHASED PROPERTIES - DECLARED VALUE OF PROPERTY WAS FOUND TO BE LESS THAN VALU E ON WHICH STAMP DUTY WAS PAID FOR ACQUISITION - ASSESSING OFFICER ADDED BACK TO ASSESSEE'S INCOME DIFFERENCE BETWEEN CONSIDERATION MENTIONED IN SALE DEEDS AND CONSIDERATION DECLARED FOR PURPOSE OF STAMP DUTY - WHETHER PROVISIONS OF STAMP ACT LEVY STAMP DUT Y AT PREDETERMINE OR NOTIFIED RATES - HELD, YES - WHETHER WHERE HIGHER COST OF ACQUISITION IS DECLARED FOR STAMP DUTY, ASSESSING AUTHORITY SHOULD ANALYZE CONTEMPORARY COMPARABLE SALES BEFORE ADOPTING SUCH HIGHER COST AS COST OF ACQUISITION AND WITHOUT DOIN G SO NO ADDITION COULD BE MADE - HELD, YES [PARA 15] [IN FAVOUR OF ASSESSEE] FACTS - I FACTS DURING THE PREVIOUS YEAR, THE ASSESSEE - COMPANY HAD PURCHASED SIX PROPERTIES. THE MARKET VALUE DECLARED BY THE ASSESSEE FOR THE PURPOSE OF STAMP DUTY WAS MORE TH AN THE CONSIDERATION MENTIONED IN THE SALE DEEDS. THE ASSESSING OFFICER ADDED BACK THE DIFFERENCE BETWEEN THE CONSIDERATION MENTIONED IN THE SALE DEEDS AND THE CONSIDERATION DECLARED FOR THE PURPOSE OF STAMP DUTY, TO THE INCOME OF THE ASSESSEE. ON APPEAL , THE COMMISSIONER (APPEALS) DELETED THE IMPUGNED ADDITION OF RS. 12 LAKHS HOLDING THAT THE STAMP DUTY WAS CHARGED BY THE LOCAL AUTHORITY/SUB - REGISTRAR BASED ON BROAD PARAMETERS FIXED BY THE STATE GOVERNMENT FOR A PARTICULAR AREA FROM TIME TO TIME AND THAT SUCH PARAMETERS DID NOT NECESSARILY SUGGEST THAT ANY AMOUNT OVER AND ABOVE THE CONSIDERATION DISCLOSED IN THE SALE DEEDS HAD BEEN PAID. HELD - I IN THE INSTANT CASE, THE REVENUE DID NOT RELY ON ANY OBJECTIVE FACT OR CIRCUMSTANCES. CONSEQUENTLY, THERE W AS NO INFIRMITY IN THE APPROACH OF THE APPELLATE AUTHORITIES IN DELETING THE IMPUGNED ADDITION OF RS. 12 L AKHS. [PARA 15] IN THIS CASE THE ASSESSING OFFICER ADOPTED CONSIDERATION DECLARED FOR PURPOSE OF STAMP DUTY FOR THE PURPOSE OF SEC. 50C WITHOUT R EFERRING TO THE VALUATION. I.T.A. NO.2991/M/16 7 HENCE, THIS CASE LAW IS NOT APPLICABLE TO THE FACTS OF THE CASE OF THE APPELLANT. 8.2.2 THE AR ALSO PLACED RELIANCE ON [2014] 49 TAXMANN.COM 513 (MADRAS) HIGH COURT OF MADRAS, APPADURAI VIJAYARAGHAVAN, V. JOINT COMMISSION ER OF INCOME - TAX (OSD), CHENNAI. SECTION 50C OF THE INCOME - TAX ACT, 1961 - CAPITAL GAINS - SPECIAL PROVISION FOR COMPUTATION OF FULL VALUE CONSIDERATION (REFERENCE TO VALUATION OFFICER) - ASSESSMENT YEAR 2007 - 08 - WHETHER WHERE ASSESSEE MADE AN OBJECT ION WITH REGARD TO ADOPTION OF MARKET VALUE UNDER SECTION 50C( N, ASSESSING OFFICER SHOULD HAVE REFERRED VALUATION OF CAPITAL ASSET TO VALUATION OFFICER UNDER SECTION 50C(2) - HELD, YES [PARA 15][IN FAVOUR OF ASSESSEE/MATTER REMANDED] IN THIS CASE THE ASSESSEE MADE AN OBJECTION WITH REGARD TO ADOPTION OF MARKET VALUE UNDER SECTION 50C(1). THE ASSESSING OFFICER ADOPTED THE MARKET VALUE UNDER 50C(1) WITHOUT REFERRING TO VALUATION. HENCE, THIS CASE LAW IS NOT APPLICABLE TO THE FACTS OF THE CASE OF TH E APPELLANT. 8.3 AS PER THE REPORT OF THE VALUATION OFFICER, UNIT - IL, VALUATION CELL, INCOME TAX DEPARTMENT, CHENNAI DT.18.01.2015 RECEIVED ON 19.02.2015, IT IS STATED THAT: 'AS PER THE DETAILS SUBMITTED/ENCLOSED BY THE ASSESSING OFFICER, IT IS LEARNT T HAT THE GUIDELINE VALUE ADOPTED BY THE PURCHASER HAD BEEN OBJECTED BY THE SRO OF PALLAVARAM, GUIDLINE VALUE OF THE LAND AT THE TIME OF TRANSFER 01.06.2009 KEPT AS PENDING DOCUMENT VIDEP.NO.103/2009, UNDER SECTION 47A(1) OF TRANSFER PROPERTY ACT BY STATING THE REASON BEING THE VALUE OF TRANSACTION/TRANSFER IS VERY HIGH AND FIELD INSPECTION WAS AWAITED. THEN LAND WAS REGISTERED UNDER SECTION 47(A) OF INDIA STAMP DUTY ACT FROM THE COPY OF SALE DEED FURNISHED. SINCE THE STAMP DUTY ADOPTED BY THE SRO HAS BEEN CHALLENGED AND APPEALED BEFORE ANOTHER AUTHORITY I.E. DISTRICT REVENUE OFFICER (STAMPS), CHENNAI AND THE DRO IN TURN INSPECTED THE PROPERTY AND FIXED THE MARKET VALUE FOR THE SUBJECT PROPERTY AT RS.555/ - (AGAINST THE GUIDELINE VALUE OF RS.400/ - AS ON THE DATE OF SALE I.E. 01.06.2009) ISSUED VIDE D140/09 DT. 02.07.2011 AS FOUND IN PAGE 29 OF THE I.T.A. NO.2991/M/16 8 DOCUMENT. THE DOCUMENT REALISED AFTER OBTAINING EXCESS STAMP DUTY ON 16.08.2011. AS PER THE PROVISION OF SUB - SECTION 2 OF SECTION 50C OF THE INCOME - TAX ACT, INSER TED BY THE FINANCE ACT, 2002, 'THE ASSESSING OFFICER CAN ENTERTAIN ANY APPEAL BY THE ASSESSEE OF SUCH VALUE ASSESSED BY THE STAMP DUTY VALUATION AUTHORITY AND ADOPTED BY THE ASSESSING OFFICER, ONLY IF THE VALUE SO ADOPTED BY THE STAMP VALUATION AUTHORITY H AS NOT BEEN DISPUTED IN ANY APPEAL OR REVISION BEFORE ANY AUTHORITY, COURT OR HIGH COURT. 'HAVING CONSIDERED ALL THE COPY OF DETAILS F URNISHED BY THE ASSESSING OFFICER AND HAVING TAKEN INTO ACCOUNT ALL THE RELEVANT MATERIAL AND CONSIDERING THE PROVISI ON OF SECTION 50C OF INCOME - TAX ACT, I HEREBY SUGGEST TO CONSIDER THE FAIR MARKET VALUE OF THE PROPERTY @ RS.555/ - AS BY THE APPELLATE AUTHORITY (I.E. DRO (STAMPS), CHENNAI) AMOUNTING TO RS.3,79,90,860/ - (RUPEES THREE CRORES SEVENTY NINE LAKHS NINETY THOU SAND EIGHT HUNDRED AND SIXTY ONLY) AS ON 01.06.2009.' 8.4 SECTION 50C (2) OF IT ACT 1961, READS AS 'WITHOUT PREJUDICE TO THE PROVISIONS OF SUB - SECTION (1), WHERE (A) THE ASSESSEE CLAIMS BEFORE ANY ASSESSING OFFICER THAT THE VALUE ADOPTED OR ASSESSE D 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 AP PEAL 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 IS MADE, THE PROVISIONS OF SUB - SECTIO NS (2), (3), (4), (5) AND (6) OF SECTION 16A, CLAUSE (I) 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), S HALL, 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. I.T.A. NO.2991/M/16 9 IN THIS CASE THE ASSESSEE HAD ALREADY APPEALED TO DISTRICT REVENUE OFFICER (STAMPS ), CHENNAI. THE DRO INSPECTED THE PROPERTY AND DETERMINED THE MARKET VALUE OF THE PROPERTY AT RS.555/ - PER SQ. FT. HENCE REFERENCE TO VALUATION OFFICER IS NOT NECESSARY AS PER SECTION 50C(2) MENTIONED ABOVE. 8.5 WHETHER VALUATION CAN BE CHALLENGED BY AN ASSESSEE BEFORE THE ASSESSING OFFICER EVEN THOUGH SAME WAS CHALLENGED BEFORE THE STAMP AUTHORITIES AND HIS PLEA HAS BEEN REJECTED? IN JITENDRA MOHAN SAXENA 2007 (7) TMI 361 - ITAT LUCKNOW - B, IT WAS HELD THAT BOTH THE REMEDIES U/S. 50C ARE ALTERNATI VE. IF GUIDELINE VALUE HAS BEEN CHALLENGED BEFORE THE STAMP VALUATION AUTHORITY, SAME CANNOT BE AGAIN CHALLENGED BEFORE THE AO. IN OTHER WORDS, ASSESSEE CAN CHALLENGE THE GUIDELINE VALUE BEFORE AO ONLY IF HE HAS NOT CHALLENGED THE SAME BEFORE STAMP VAL UATION AUTHORITY. TO THE SAME EFFECT IS THE DECISION IN THE CASE OF MOHD. SHOIB V. DY. CIT 2008 (11) TMI 300 - ITAT LUCKNOW - B. 8.6 SEKSARIA INDUSTRIES PVT. LTD VS. ITO (ITAT MUMBAI), COURT: ITAT - MUMBAI, CORAM: 1. P. BANSAL (JM), R. C, R. C. SHARMA ( AM) SECTION: 50C DATE: OCTOBER 31, 2014 (DATE OF PRONOUNCEMENT) AY: 2009 - 10. CITATION: S. 50C(2): REFERENCE TO DVO CANNOT BE MADE IF ASSESSEE HAS CHALLENGED THE VALUATION BY THE STAMP AUTHORITIES AND EVEN IF THE SAID CHALLENGE IS DISMISSED ON GROUND TH AT AS PURCHASER PAID THE DUTY, ASSESSEE HAD NO LOCUS STANDI TO CHALLENGE STAMP VALUATION. THE MANDATE OF SECTION 50C IS CLEAR AND THE SALE CONSIDERATION SHALL BE DEEMED TO BE THE VALUE ADOPTED OR ASSESSED BY THE STAMP VALUATION AUTHORITY. THE ONLY EXCEP TION PROVIDED IS THAT FIRSTLY THE ASSESSEE SHOULD CLAIM BEFORE AO THAT SUCH VALUE ADOPTED OR ASSESSED BY THE STAMP VALUATION AUTHORITY EXCEED FAIR MARKET VALUE AND SECONDLY THE ASSESSEE SHOULD NOT HAVE DISPUTED SUCH VALUATION ADOPTED IN ANY APPEAL OR REVIS ION AND NO REFERENCE IS MADE BEFORE ANY OTHER AUTHORITY, COURT OR HIGH COURT CHALLENGING THE VALUE ADOPTED BY THE STAMP VALUATION AUTHORITY. IN THE LIGHT OF AFOREMENTIONED FACTS IT CAN BE SAID THAT THE VALUE ADOPTED AND ASSESSED BY THE STAMP VALUATION AUTH ORITY UNDER SUB - SECTION (1) WAS DISPUTED BY THE ASSESSEE IN THE APPEAL, REVISION AND EVEN BEFORE HON'BLE HIGH COURT. IF IT IS SO, THEN ACCORDING TO THE PROVISIONS OF SECTION 50C THE ASSESSEE CANNOT OBTAIN THE BENEFIT AS PROVIDED IN SUB - SECTION(2) OF SECTIO N SAC AS NEITHER OF THE CONDITIONS DESCRIBED IN SUB - SECTION(2) HAS BEEN FULFILLED BY THE I.T.A. NO.2991/M/16 10 ASSESSEE. IN THIS VIEW OF THE SITUATION, NEITHER THE AO NOR LD. CIT(A) COULD ADOPT SALE CONSIDERATION OF THE PROPERTY ANY AMOUNT LESS THAN THE VALUE ADOPTED OR ASSESSE D BY THE STAMP VALUATION AUTHORITY AS SECTION SAC DOES NOT RECOGNIZE SUCH CURTAILMENT OF THE SALE CONSIDERATION IN ANY MANNER. 8.7 FOR THE ABOVE STATED REASONS ALL THE GROUNDS OF APPEAL OF THE APPELLANT WITH RESPECT TO INVOKING OF SECTION 50C ARE DISALLO WED AND ADDITION MADE BY THE ASSESSING OFFICER BY INVOKING SECTION 50C IS UPHELD. 4. ON BEING AGGRIEVED, THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL. BY REFERRING TO THE GROUNDS OF APPEAL, THE LD. COUNSEL FOR THE ASSESSEE HAS VEHEMENTLY ARGUED THAT TH E PROVISIONS OF SECTION 50C OF THE ACT HAS NO APPLICATION TO THE FACTS OF THE CASE AND OUGHT TO HAVE APPRECIATED THAT THERE WAS NO VARIATION BETWEEN THE STATED CONSIDERATION AND THE GUIDELINE VALUE INASMUCH AS OUGHT TO HAVE APPRECIATED THAT THE SUBSEQUENT EVENTS WERE WRONGLY APPLIED TO SUBSTITUTE THE SALE CONSIDERATION IN THE COMPUTATION OF LONG TERM CAPITAL GAINS AND PLEADED THAT THE ADDITION MADE BY THE ASSESSING OFFICER BY INVOKING THE PROVISIONS OF SECTION 50C OF THE ACT SHOULD BE DELETED. 5. ON THE OTHER HAND, THE LD. DR STRONGLY SUPPORTED THE ORDERS OF AUTHORITIES BELOW. 6. WE HAVE HEARD BOTH SIDES, PERUSED THE MATERIALS AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF AUTHORITIES BELOW. THE ASSESSEE IS AN ADVOCATE BY PROFESSION AND SOLD THE PR OPERTY AT ZAMIN PALLAVARAM FOR A I.T.A. NO.2991/M/16 11 CONSIDERATION AS SHOWN IN THE DOCUMENT AT .2,80,00,000/ - @ .400 PER SQ.FT., WHEREAS, ON EXAMINATION OF SALE DOCUMENT OF THE PROPERTY, THE ASSESSING OFFICER HAS NOTICED THAT THE PROPERTY WAS SOLD FOR .3,79,90,860/ - AND TH E RATE PER SQ.FT. WAS .555/ - AS APPEAR AT PAGE 29 OF THE DOCUMENT, WHICH WAS RELEASED AFTER PAYMENT OF THE EXCESS STAMP DUTY ON 16.08.2011. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE ASSESSING OFFICER HAS FURTHER NOTICED THAT THAT THE STAMP VALUE AD OPTED BY THE SRO HAS BEEN CHALLENGED AND APPEALED BEFORE ANOTHER AUTHORITY I.E., DISTRICT REVENUE OFFICER (STAMPS), CHENNAI. AFTER INSPECTING THE PROPERTY, THE DRO HAS DETERMINED THE MARKET VALUE OF THE PROPERTY AT .555/ - PER SQ.FT. AGAINST THE GUIDELINE VALUE OF .400/ - PER SQ.FT. AS ON THE DATE OF SALE I.E. 01.06.2009. FURTHERMORE, THE ASSESSEE HAS CONFRONTED THE VALUE, THE ASSESSING OFFICER HAS REFERRED THE CASE TO THE VALUATION OFFICER, UNIT II, VALUATION CELL, CHENNAI TO ASCERTAIN THE CORRECT VALUE OF THE PROPERTY, WHO HAS ALSO DETERMINED THE VALUE OF THE PROPERTY @ .555/ - . ACCORDINGLY, BY ADOPTING THE SALES CONSIDERATION @ .555/ - , THE ASSESSING OFFICER DETERMINED THE LONG TERM CAPITAL GAINS. THUS, THE DIFFERENCE BETWEEN THE LONG TERM CAPITAL GAINS A DMITTED IN THE RETURN BY ADOPTING THE SALE CONSIDERATION AT .2,80,00,000/ - AND THE LTCG DETERMINED BY THE ASSESSING OFFICER BY TAKING THE SALE CONSIDERATION AT .3,79,90,860/ - WAS BROUGHT TO TAX. ON APPEAL, BY PASSING A DETAILED SPEAKING ORDER, THE LD. CI T(A) CONFIRMED THE ADDITION MADE BY THE ASSESSING OFFICER. I.T.A. NO.2991/M/16 12 6.1 THE PROVISIONS OF S ECTION 50C OF THE ACT ARE APPLICABLE ONLY TO TRANSFER OF LAND OR BUILDING OR BOTH PROVIDED IT IS A CAPITAL ASSET. THUS, IN CASES WHEN SUCH ASSETS ARE HELD AS STOCK - IN - TRADE, THE SECTION DOES NOT APPLY. BY IMPLICATION, IT DOES NOT AFFECT SALE OF LAND OR BUILDING BY A BUILDER OR A DEVELOPER BECAUSE LAND, BUILDING, SHOPS, FLATS, ETC SOLD BY THE BUILDERS AND DEVELOPERS ARE GENERALLY STOCK - IN - TRADE IN THEIR HANDS AND NOT THE CAPIT AL ASSETS. ADMITTEDLY, IN THE INSTANT CASE, THE ASSESSEE SOLD HIS IMMOVABLE PROPERTY, WHICH IS A CAPITAL ASSET. THEREFORE, THE PROVISIONS OF SECTION 50C OF THE ACT CLEARLY ATTRACTS TO THE CASE OF THE ASSESSEE. 6.2 IT IS HOWEVER PROVIDED IN SECTION 50C OF THE ACT THAT EVEN THOUGH THE HIGHER VALUATION BY STAMP DUTY AUTHORITIES HAS NOT BEEN DISPUTED, THE SELLER OF THE PROPERTY MAY REPRESENT BEFORE THE ASSESSING OFFICER THAT THE VALUATION ADOPTED BY STAMP DUTY AUTHORITIES IS HIGHER THAN THE FAIR MARKET VALUE OF PROPERTY ON THE DATE OF TRANSFER AND THAT THE ASSESSING OFFICER MAY REFER THE MATTER OF VALUATION TO THE VALUATION OFFICER OF THE INCOME TAX DEPARTMENT ITSELF. ALTHOUGH THE WORD USED IS MAY , THE ASSESSING OFFICER HAS TO REFER THE CASE FOR VALUATION ON CE REQUESTED BY THE ASSESSEE. IF THE VALUATION BY THE VALUATION OFFICER OF THE IT DEPARTMENT IS LOWER, THEN SUCH LOWER VALUATION IS TO BE ADOPTED BY THE INCOME TAX DEPARTMENT FOR THE PURPOSE OF CAPITAL GAINS TAXATION UNDER SECTION 50C OF THE ACT . IN THE PR ESENT CASE, BEFORE CONFRONTING THE FAIR MARKET VALUE ADOPTED BY THE SRO A S HIGHER, THE I.T.A. NO.2991/M/16 13 ASSESSEE HAS NOT DIRECTLY APPROACHED THE ASSESSING OFFICER TO REFER THE MATTER BEFORE THE DEPARTMENTAL VALUATION OFFICER TO DETERMINE THE FAIR MARKET VALUE, BUT AGAINST THE VALUE ADOPTED BY THE SRO, THE ASSESSEE HAS APPEALED BEFORE ANOTHER AUTHORITY I.E., DISTRICT REVENUE OFFICER (STAMPS), CHENNAI. AFTER INSPECTING THE PROPERTY, THE DRO HAS DETERMINED THE MARKET VALUE OF THE PROPERTY AT .555/ - PER SQ.FT. ONCE THE DISTRICT REVENUE OFFICER (STAMPS), CHENNAI DETERMINED THE MARKET VALUE OF THE PROPERTY, THE ASSESSEE CANNOT CONFRONT THE VALUE BEFORE THE ASSESSING OFFICER NOR THE ASSESSING OFFICER CAN REFER THE MATTER BEFORE THE DVO FOR DETERM INING THE MARKET VALUE. AGAINST THE GUIDELINE VALUE OF .400/ - , THE SRO HAS FIXED THE VALUE OF THE PROPERTY @ .555/ - , ON APPEAL, THE VALUE DETERMINED BY THE DRO @ .555/ - WOULD BE THE FINAL, AS THE PROVISIONS OF SECTION 50C OF THE ACT DOES NOT RECOGNIZE A NY CURTAILMENT OF THE SALE CONSIDERATION IN ANY MANNER. OVER AND ABOVE, AGAINST THE VALUE DETERMINED BY THE DISTRICT REVENUE OFFICER (STAMPS), CHENNAI, WHICH WAS ADOPTED AS MARKET VALUE OF THE PROPERTY BY THE SRO, NEITHER THE DEPARTMENT NOR THE TRIBUNAL CA N ALTER OR MODIFY THE VALUE. THE DISPUTE OVER THE VALUATION OF MARKET VALUE ENDED WITH REVENUE AUTHORITIES OF THE STATE GOVERNMENT. THEREFORE, THE VALUE ADOPTED BY THE DRO CANNOT BE CHALLENGED BEFORE THE TRIBUNAL. 6.3 THE CASE LAW RELIED ON BY THE ASSESS EE DURING THE COURSE OF APPELLATE PROCEEDINGS HAS BEEN PROPERLY DISTINGUISHED BY THE LD. CIT(A) WHILE I.T.A. NO.2991/M/16 14 CONFIRMING THE ADDITION MADE BY THE ASSESSING OFFICER BY INVOKING THE PROVISIONS OF SECTION 50C OF THE ACT. FURTHER, IN THE CASE OF SEKSARIA INDUSTRIES PV T. LTD. V. ITO IN I.T.A. NO. 2835/MUM/2013 FOR THE ASSESSMENT YEAR 2009 - 10 VIDE ORDER DATED 31.10.2014, THE MUMBAI BENCHES OF THE TRIBUNAL HAS OBSERVED AND HELD AS UNDER: 7. IN THE LIGHT OF ABOVE DISCUSSION, WE HAVE CAREFULLY CONSIDERED THE SUBMISSIONS M ADE BY BOTH THE PARTIES AND WE HAVE ALSO CAREFULLY PERUSED THE ORDER PASSED BY AO AS WELL AS LD. CIT(A) WITH REFERENCE TO DOCUMENTS SUBMITTED BY THE ASSESSEE IN PAPER BOOK AND REFERRED TO DURING THE COURSE OF HEARING. 7.1 THE FIRST AND FOREMOST CONTENTI ON OF THE ASSESSEE IS REGARDING THE ADOPTION OF THE SALE CONSIDERATION FOR THE PURPOSE OF COMPUTATION OF CAPITAL GAIN. TO DECIDE THIS ISSUE, FIRST CONTENTION OF THE ASSESSEE IS THAT THE SALE CONSIDERATION CANNOT BE TAKEN MORE THAN THE ACTUAL SALE CONSIDERA TION SHOWN IN THE TRANSFER DEED I.E. A SUM OF RS.41.51 CRORES. THE ALTERNATIVE CONTENTION IS THAT IF THE SALE CONSIDERATION IS TAKEN AS VALUATION DONE BY THE STAMP VALUATION AUTHORITIES THEN THERE IS A MISTAKE IN CALCULATION OF SALE CONSIDERATION AS TDR VA LUE HAS BEEN TAKEN AT 100%. 7.2 THE SALE CONSIDERATION TAKEN AT RS.57,74,51,000/ - HAS BEEN AGITATED FIRSTLY, ON THE GROUND THAT AS PER VALUATION DONE BY JOINT DIRECTOR TOWN PLANNING (VALUATION) MAHARASTRA, PUNE ON 18/06/2010 THE VALUE HAS BEEN ASCERTAIN ED AT RS.41.51 CRORES, THEREFORE, ANY VALUE MORE THAN THAT CANNOT BE TAKEN AS SALE CONSIDERATION. THE AO HAS TAKEN SALE CONSIDERATION AS PER PROVISIONS OF SECTION 50C WHICH IS A SPECIAL PROVISION REGULATING FULL VALUATION OF CONSIDERATION IN CERTAIN CASES. IT CLEARLY DESCRIBE THAT IN A CASE WHERE CONSIDERATION RECEIVED OR ACCRUING AS A RESULT OF TRANSFER BY AN ASSESSEE OF CAPITAL ASSET, WHICH INTER - ALIA INCLUDE LAND OR BUILDING OR BOTH IS LESS THAN THE VALUE ADOPTED OR ASSESSED OR ASSESSABLE BY ANY AUTHORIT Y OF A STATE GOVERNMENT (STAMP VALUATION AUTHORITY) FOR THE PURPOSE OF PAYMENT OF STAMP DUTY IN RESPECT OF SUCH TRANSFER THE VALUE SO ADOPTED OR ASSESSED OR ASSESSABLE, SHALL FOR THE PURPOSES OF SECTION 48, BE DEEMED TO BE FULL VALUE OF THE CONSIDERATION R ECEIVED OR ACCRUING AS A RESULT OF SUCH TRANSFER. EXCEPTION IS PROVIDED IN SUBSECTION (2)WHICH PRESCRIBES THAT IN A CASE WHERE ASSESSEE CLAIMS BEFORE THE AO THAT THE VALUE ADOPTED OR ASSESSED OR ASSESSABLE BY THE STAMP VALUATION AUTHORITY EXCEEDS THE FAIR MARKET VALUE OF THE PROPERTY AS ON THE DATE OF THE TRANSFER AND THE VALUE SO ADOPTED OR ASSESSED BY THE STAMP VALUATION AUTHORITY UNDER SUB - SECTION (1) OF SECTION 50C HAS NOT BEEN DISPUTED IN ANY APPEAL OR REVISION OR NO REFERENCE HAS BEEN MADE BEFORE ANY OTHER AUTHORITY, COURT OR HIGH COURT, THEN THE AO MAY REFER THE VALUATION OF I.T.A. NO.2991/M/16 15 THE CAPITAL ASSET TO VALUATION OFFICER OF THE DEPARTMENT. THUS, ACCORDING TO SUB - SECTION (2) IN A CASE WHERE ASSESSEE CLAIMS BEFORE THE AO THAT THE VALUE ADOPTED OR ASSESSED BY ST AMP VALUATION AUTHORITY IS EXCEEDS THE FAIR MARKET VALUE ON THE DATE OF TRANSFER AND ASSESSEE DOES NOT DISPUTE THE VALUATION DONE BY THE STAMP VALUATION AUTHORITY IN ANY APPEAL OR REVISION OR REFERENCE THEN AO MAY REFER THE VALUATION OF THE SAID PROPERTY T O VALUATION OFFICER AND AS PER SUB - SECTION (3) IN CASE WHERE VALUATION DONE BY THE VALUATION OFFICER IS LESS THAN THE VALUE ADOPTED BY STAMP VALUATION AUTHORITY THEN THE VALUATION DONE BY DISTRICT VALUATION OFFICER SHALL BE TAKEN AS FULL VALUE OF THE CONSI DERATION RECEIVED OR ACCRUING AS A RESULT OF THIS TRANSFER. IN THE LIGHT OF PROVISIONS OF SECTION 50C IT HAS TO BE DECIDED THAT WHETHER LD. CIT(A) HAS COMMITTED ANY ERROR IN TAKING THE VALUE DETERMINED BY STAMP VALUATION AUTHORITY. THE MANDATE OF SECTION 5 0C IS CLEAR. AT THE FIRST PLACE THE SALE CONSIDERATION SHALL BE DEEMED TO BE THE VALUE ADOPTED OR ASSESSED BY THE STAMP VALUATION AUTHORITY. THE ONLY EXCEPTION PROVIDED IS THAT FIRSTLY THE ASSESSEE SHOULD CLAIM BEFORE AO THAT SUCH VALUE ADOPTED OR ASSESSED BY THE STAMP VALUATION AUTHORITY EXCEED FAIR MARKET VALUE AND SECONDLY THE ASSESSEE SHOULD NOT HAVE DISPUTED SUCH VALUATION ADOPTED IN ANY APPEAL OR REVISION AND NO REFERENCE IS MADE BEFORE ANY OTHER AUTHORITY, COURT OR HIGH COURT CHALLENGING THE VALUE AD OPTED BY THE STAMP VALUATION AUTHORITY. 7.3 ACCORDING TO THE FACTS OF THE PRESENT CASE ASSESSEE BEING AGGRIEVED BY THE VALUATION DONE BY STAMP VALUATION AUTHORITY HAD FILED AN APPEAL BEFORE THE ADDITIONAL CONTROLLER OF STAMPS, MUMBAI WHICH WAS REGISTERE D AS GSO/32 - B/05/2009 UNDER SECTION 32B OF THE BOMBAY STAMP ACT, 1958, WHICH WAS DECIDED VIDE ORDER DATED 4/8/2009 AND COPY OF THIS ORDER IS FILED AT PAGE 105 OF THE PAPER BOOK. ADDITIONAL CONTROLLER OF STAMPS MUMBAI HAS DISMISSED THIS APPEAL OF THE ASSES SEE ON THE GROUND THAT THE APPROPRIATE AUTHORITY FOR DECIDING CORRECTNESS OF VALUATION DONE BY STAMP VALUATION AUTHORITY LIES WITH THE CHIEF CONTROLLING REVENUE AUTHORITY AND HE HAS GIVEN THE LIBERTY TO THE ASSESSEE TO FILE REVISION APPLICATION BEFORE THE CHIEF CONTROLLING REVENUE AUTHORITIES UNDER SECTION 53A OF THE BOMBAY STAMP ACT 1958 AND DISPOSED OF THE APPEAL FILED BY THE ASSESSEE. SUBSEQUENTLY THE ASSESSEE FILED A PETITION FOR REVALUATION BEFORE THE CHIEF CONTROLLING REVENUE AUTHORITY, MAHARASHTRA ST ATE, PUNE AGAINST AFOREMENTIONED ORDER DATED 4/8/2009 AND THIS WAS REGISTERED AND MISCELLANEOUS APPLICATION OF THE ASSESSEE WAS DISPOSED OF VIDE ORDER DATED 6/2/2012 AND THE COPY OF THIS ORDER HAS FILED AT PAGES 110 TO 114 OF THE PAPER BOOK. THE SUM AND SU BSTANCE OF THE ORDER PASSED BY THE CHIEF CONTROLLING REVENUE AUTHORITY, MAHARASHTRA STATE, PUNE IS THAT STAMP DUTY HAS BEEN PAID BY OTHER PARTY WITHOUT PROTEST AND THE DUTY PAYER HAS NOT APPEALED TO THIS AUTHORITY AT ANY POINT OF TIME. MOREOVER, ASSESSEE D ID NOT FILE APPLICATION WITHIN TIME LIMIT STIPULATED UNDER THE LAW I.E. 60 DAYS FROM THE RECEIPT OF IMPUGNED ORDER. THEREFORE, ASSESSEE DOES NOT HAVE LOCUS TO APPROACH THE AUTHORITY. THE AUTHORITY IS NOT LEGALLY EMPOWERED TO TAKE ANY DECISION OR GIVE OPINI ON WHEN NO CAUSE OF ACTION EXISTS UNDER THE STAMP ACT FOR THE IMPLEMENTATION OF WHICH THIS AUTHORITY HAS BEEN CREATED. AS I.T.A. NO.2991/M/16 16 PER PROVISION OF SECTION 50C(2) OF INCOME TAX ACT, 1961 A MECHANISM FOR REDRESSAL OF GRIEVANCES HAS BEEN PROVIDED IN A CASE WHERE ASSE SSEE DISAGREES WITH THE VALUATION DONE BY THE STAMP AUTHORITIES AND IN THIS MANNER APPLICATION FILED BY THE ASSESSEE WAS CONSIDERED TO BE NON - MAINTAINABLE. NOT SATISFIED WITH THE SAID ORDER OF CHIEF CONTROLLING REVENUE AUTHORITY, MAHARASHTRA STATE, PUNE AS SESSEE FILE A WRIT PETITION BEFORE HON BLE BOMBAY HIGH COURT, WHICH HAS BEEN DECIDED VIDE ORDER DATED 3/5/2012 IN WRIT PETITION LODG NO. 776 OF 2012 AND COPY OF THIS ORDER IS FILED AT PAGES 115 TO 118 OF THE PAPER BOOK. IT WILL BE RELEVANT TO REPRODUCE REL EVANT PORTION OF THE ORDER PASSED BY HON BLE HIGH COURT: 4. IT IS AN ADMITTED POSITION THAT THE PURCHASER - HOTEL HORIZON PVT. LTD. PAID THE STAMP DUTY OF RS.2,88,72,550/ - ON 4.8.2010 WITHOUT PROTEST AND AN ENDORSEMENT WAS MADE ON THE SAID INDENTURE UNDER SECTION 32(1)(B) BY THE COLLECTOR OF STAMPS. THEREUPON HOTEL H ORIZON PVT. LTD. AS PURCHASER AND THE PETITIONER AS VENDOR EXECUTED THE DOCUMENT ON 5.8.2008 AND PRESENTED THE SAME IN THE CONCERNED SUB - REGISTRAR S OFFICE AND THE SAID DOCUMENT WAS DULY REGISTERED ON THE SAME DAY. 5. IT WAS PURCHASERS OBLIGATION TO PA Y THE STAMP DUTY UNDER THE SAID INDENTURE AND ACCORDINGLY, THE STAMP DUTY WAS PAID BY THE PURCHASERS WITHOUT PROTEST ON 4.8.2008 AS INDICATED ABOVE. IT IS AFTER ABOUT 11 MONTHS THAT THE ADJUDICATION OF STAMP DUTY WAS CALLED IN QUESTION BY FILING AN APPLICA TION ON 3.7.2009 NOT BY THE PURCHASER WHO PAID THE STAMP DUTY, BUT BY THE PETITIONERS. 6. IT APPEARS THAT THE PETITIONERS HAD FILED A RETURN OF INCOME WITH INCOME TAX AUTHORITIES ON 22.9.2009. THEREAFTER THE PETITIONERS FILED A REVISED RETURN OF INCOME ON 26 - 08 - 2010 AND A REVISED LONG TERM CAPITAL GAIN IN RESPECT OF THE TRANSFER OF THE SUBJECT PROPERTY DECLARING A REVISED INCOME OF LESSER AMOUNT. 7. FROM THE AFORESAID FACTS, IT IS EVIDENT THAT THE PETITIONERS APPROACHED THE AUTHORITIES IN RESPECT OF C HALLENGE TO THE FIXATION OF MARKET VALUE AND STAMP DUTY PAYABLE ON THE INDENTURE IN RESPECT OF THE SUBJECT PROPERTY AFTER CONSIDERABLE DELAY AND ONLY AS AN AFTERTHOUGHT HAVING REALIZED THAT THE VALUATION BY THE STAMP AUTHORITIES MAY COME IN ITS WAY IN DETE RMINING THE CAPITAL GAINS TAX PAYABLE BY THE PETITIONERS. THE OBLIGATION TO PAY THE STAMP DUTY WAS ON THE PURCHASER - HOTEL HORIZON PVT. LTD. WHO HAD PAID THE STAMP DUTY WITHOUT ANY PROTEST. THE PETITIONERS, IF AT ALL AGGRIEVED OUGHT TO HAVE APPROACHED THE A UTHORITIES IN THE FIRST INSTANCE. PRIMA FACIE, IT DOES APPEAR THAT IT IS ONLY AT THE TIME OF FILING OF THE REVISED RETURN OF INCOME THAT THE PETITIONERS HAVE SOUGHT TO CHALLENGE THE ORDER OF I.T.A. NO.2991/M/16 17 ADJUDICATION AND VALUATION BY THE COLLECTOR OF STAMPS SO AS TO CL AIM SOME TAX RELIEF IN THE INCIDENCE OF LONG TERM CAPITAL GAIN TAX. 8. IN LIGHT OF THE ABOVE, I AM NOT INCLINED TO EXERCISE WRIT JURISDICTION OF THIS COURT TO INTERFERE WITH THE IMPUGNED ORDER. THE PETITION IS, THEREFORE, DISMISSED. 9. THE COURT IS I NFORMED THAT THE ASSESSMENT ORDER HAS BEEN PASSED BY THE ASSESSING OFFICER OF THE INCOME TAX DEPARTMENT AND THE MATTER IS NOW PENDING BEFORE THE C.I.T. IT IS CLARIFIED THAT IT WILL BE OPEN FOR THE C.I.T. TO PASS SUCH ORDERS AS HE DEEMS APPROPRIATE WITH REG ARD TO THE VALUATION OF THE SUBJECT PROPERTY IN ACCORDANCE WITH LAW AND THE ORDERS PASSED BY THE STAMP AND THIS ORDER SHALL NOT BE AN IMPEDIMENT IN THAT REGARD. 7.4 SUBSEQUENTLY, VIDE ORDER DATED 15/3/2013 CERTAIN MISTAKES IN MENTIONING THE DATES WAS R ECTIFIED AND IN PARA - 4 REPRODUCED ABOVE AND THE DATE CORRECTLY TO BE READ AS 04 - 08 - 2008. 7.5 IN THE LIGHT OF AFOREMENTIONED FACTS IT CAN BE SAID THAT THE VALUE ADOPTED AND ASSESSED BY THE STAMP VALUATION AUTHORITY UNDER SUB - SECTION (1) WAS DISPUTED BY T HE ASSESSEE IN THE APPEAL, REVISION AND EVEN BEFORE HON BLE HIGH COURT. IF IT IS SO, THEN ACCORDING TO THE PROVISIONS OF SECTION 50C THE ASSESSEE CANNOT OBTAIN THE BENEFIT AS PROVIDED IN SUB - SECTION(2) OF SECTION 50C AS NEITHER OF THE CONDITIONS DESCRIBED IN SUB - SECTION(2) HAS BEEN FULFILLED BY THE ASSESSEE. IN THIS VIEW OF THE SITUATION, NEITHER THE AO NOR LD. CIT(A) COULD ADOPT SALE CONSIDERATION OF THE PROPERTY ANY AMOUNT LESS THAN THE VALUE ADOPTED OR ASSESSED BY THE STAMP VALUATION AUTHORITY AS SECTION 50C DOES NOT RECOGNIZE SUCH CURTAILMENT OF THE SALE CONSIDERATION IN ANY MANNER. THEREFORE, WE CONFIRM THE FINDINGS OF LD. CIT(A) THAT THE SALE VALUE OF THE CONSIDERATION TAKEN BY THE STAMP VALUATION AUTHORITY WAS THE RIGHT AMOUNT FOR THE PURPOSE OF CALCU LATION OF LONG TERM CAPITAL GAIN. IN VIEW OF THE FACTS AND CIRCUMSTANCES AS WELL AS ABOVE DECISIONS , WE ARE OF THE CONSIDERED OPINION THAT AFTER CHALLENGING THE VALUE DETERMINED BY SRO BEFORE THE DRO (STAMPS) FOR ASSESSING THE MARKET VALUE, AND PAID THE DIFFERENCE OF STAMP DUTY AND GOT RELEASED THE DOCUMENT ON 16.08.2011, THE ASSESSEE CANNOT CONFRONT THE RATE DETERMINED BY THE DRO BEFORE THE ASSESSING OFFICER. EVEN THOUGH THE ASSESSING OFFICER OBTAINED DVO RATES, I.T.A. NO.2991/M/16 18 WHICH IS SIMILAR TO THE VALUE DETERMINED B Y THE DRO, THE ASSESSING OFFICER TAKEN THE DIFFERENCE IN VALUE OF DRO AND SRO FOR WORKING OUT THE LONG TERM CAPITAL GAINS AND THE ACTUAL DIFFERENCE WAS BROUGHT TO TAX. UNDER THE ABOVE FACTS AND CIRCUMSTANCES, WE SUSTAIN THE ADDITION MADE BY THE ASSESSING O FFICER AND CONFIRMED BY THE LD. CIT(A) AND THUS, THE GROUND RAISED BY THE ASSESSEE IS DISMISSED. 7 . IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS DISMISSED. ORDER PRONOUNCED ON THE 15 TH MARCH, 201 7 AT CHENNAI. SD/ - SD/ - ( CHANDRA POOJARI ) ACCOUNT ANT MEMBER ( DUVVURU RL REDDY ) JUDICIAL MEMBER CHENNAI, DATED, THE 15 . 0 3 .201 7 VM/ - / COPY TO: 1. / APPELLANT , 2. / RESPONDENT , 3. ( ) / CIT(A) , 4. / CIT , 5. / DR & 6. / GF.