Late Inder Chand Jain Through, Agra V. I.T.O.-2(1), Agra

ITA 330/AGR/2012

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 0522 (ITAT-AGRA)
• Duration Of Justice: 6 year(s) 9 month(s) 29 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 16-05-2019
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC
• Next Hearing Date: 30-01-2013
• Assessment Year: 2004-2005
• Appeal Filed On: 18-07-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: KK MISHRA
• Assessee Lawyers: K K JAIN
• Keywords: Sale consideration of property below Jantri Value; Capital asset; Cost of acquisition; Fair market value; Corroborative evidences; Valuation report; Reason to believe
• Section: 50C; 147; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, AGRA (SMC) BENCH, AGRA BEFORE : SHRI BHAVNESH SAINI, JUDICIAL MEMBER ITA NO. 330/AGRA/2012 ASSTT. YEAR : 2004-05 LATE INDER CHAND JAIN, VS. INCOME-TAX OFFICER, THROUGH L/H SMT. SONA DEVI JAIN, 2(1), AGRA. 24/173, BAGH RAM SAHAI, LOHAMANDI, AGRA. (PAN : ABZPJ 6714 E) (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI K.K. JAIN, ADVOCATE RESPONDENT BY : SHRI K.K. MISHRA, JR. D.R. DATE OF HEARING : 30.01.2013 DATE OF PRONOUNCEMENT OF ORDER : 08.02.2013 ORDER THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST TH E ORDER OF LD. CIT(A)-I, AGRA DATED 19.01.2012 FOR THE ASSESSMENT YEAR 2004- 05 ON THE FOLLOWING GROUNDS : 1. BECAUSE THE CHARGEABILITY OF CAPITAL GAINS UNDER TH E HEAD CAPITAL GAINS BEING SEPARATELY IN RESPECT OF LAND AND SUPER STRUCTURE PARTS AND ACCORDINGLY THE STAMP VALUATION AUTHORITY ASSES SED THE VALUE OF LAND PART AND SUPERSTRUCTURE PART SEPARATE LY, THE AUTHORITIES BELOW ERRED IN NOT ACCEPTING THE VALUE OF LAND PART AS ASSESSED BY THE STAMP VALUATION AUTHORITY. 2. BECAUSE ACCORDING TO THE PROVISIONS OF SECTION 50C( 3), THE VALUE OF LAND AS ASSESSED BY THE STAMP VALUATION AUTHORIT Y OUGHT TO HAVE BEEN TAKEN AS FULL VALUE OF THE CONSIDERATION RECEIVED ON SUCH TRANSFER, THE AUTHORITIES BELOW ERRED IN DEVIA TING FROM THE VALUE OF LAND AS DETERMINED BY STAMP VALUATION AUTH ORITY. ITA NO. 330/AGRA/2012 2 3. BECAUSE THE VALUE OF LAND PART AS ASSESSED BY THE S TAMP VALUATION AUTHORITY AT RS.141660J- BY APPLYING THE CIRCLE RAT E @6000 PER SQ. MTR. DULY MENTIONED IN THE SALE DEED OUGHT TO H AVE BEEN TAKEN WHILE COMPUTING THE CAPITAL GAIN ON SALE OF PROPERT Y. 4. BECAUSE APPLYING THE PROVISIONS OF SECTION 50C(3) O N THE FACTS OF THE CASE, THE AUTHORITIES BELOW ERRED IN VALUING AN D ASSESSING THE VALUE OF LAND PART MORE THAN THE VALUE ASSESSED BY THE STAMP VALUATION AUTHORITY. 5. BECAUSE THE APPELLANT HAD PAID BROKERAGE ON THE SAL E OF IMPUGNED PROPERTY TO THE BROKER THROUGH ACCOUNT PAY EE CHEQUE DULY CLEARED FROM THE BANK ACCOUNT OF THE APPELLANT , THE CIT(A) ERRED IN DISBELIEVING THE PAYMENT OF RS.7700/-WHICH IS INCIDENTAL AND BONAFIDE EXPENSES. 2. IN THIS CASE, ASSESSMENT PROCEEDINGS HAVE BEEN R EOPENED U/S. 147 AFTER RECEIVING INFORMATION THAT THE ASSESSEE HAS SOLD A SHOP FOR WHICH, WHILE COMPUTING THE CAPITAL GAIN, HE HAS NOT TAKEN THE SALE CONSIDE RATION AS PER THE PROVISION OF SECTION 50C. WHILE SELLING THE SHOP, TOTAL SALE CON SIDERATION WAS SHOWN AT RS.3,90,000/-, BUT THE VALUE OF THE PROPERTY ASSESS ED FOR STAMP DUTY PURPOSE WAS DETERMINED AT RS.5,23,000/- BY STAMP VALUATION AUTH ORITY AND HENCE, THE AO AFTER RECORDING REASON TO BELIEVE THAT THERE WAS A DIFFER ENCE OF RS.1,33,000/- IN THE VALUE OF SALE CONSIDERATION DECLARED BY THE ASSESSEE FOR THE PURPOSE OF COMPUTATION OF CAPITAL GAIN AND THEREFORE, THE INCOME HAS ESCAPED ASSESSMENT TO THE EXTENT OF RS.1,33,000/- AND HENCE, HE ISSUED A NOTICE U/S. 14 8 DATED 25.08.2008. AFTER REJECTING THE OBJECTION OF THE ASSESSEE FOR REOPENI NG OF ASSESSMENT PROCEEDING U/S. 147, THE AO COMPLETED THE ASSESSMENT AT AN ASSESSED INCOME OF RS.2,66,450/- AS ITA NO. 330/AGRA/2012 3 AGAINST THE RETURNED INCOME OF THE ASSESSEE AT RS.1 ,29,200/- AFTER COMPUTING THE INCOME OF THE ASSESSEE AS UNDER : STAMP VALUE OF THE PROPERTY RS.5,23,000/- LESS:COST OF ACQUISITION AS TAKEN BY THE ASSESSEE HIMSELF IN THE COMPUTATION OF INCOME RS.3,85,748/ - RS.1,37,252/- THEREFORE, THERE WILL BE AN ADDITION OF RS.1,37,252 /- TO THE INCOME OF THE ASSESSEE. INCOME IS COMPUTED AS UNDER : INCOME AS SHOWN BY THE ASSESSEE RS.1,29,200/- ADDITION ON ACCOUNT OF CAPITAL GAIN RS.1,37,252 /- RS.2,66,452/- OR SAY RS.2,66,450/- 2.1 THE ASSESSEE CHALLENGED THE ADDITION ON ACCOUNT OF CAPITAL GAIN BEFORE THE LD. CIT(A) AND IT WAS SUBMITTED THAT THE VALUATION REPO RT OF REGISTERED VALUER IN THE SAID PROPERTY WAS FILED DETERMINING THE FAIR MARKET VALUE OF THE PROPERTY AT RS.3,12,395/-, WHICH IS LESS THAN THE SALE CONSIDER ATION OF RS.3,90,000/- SHOWN BY THE ASSESSEE FOR COMPUTATION OF CAPITAL GAIN AND RE QUEST WAS MADE TO THE AO THAT IF HE DOES NOT AGREE WITH THE VALUATION REPORT OF THE REGISTERED VALUER, THE MATTER MAY BE REFERRED TO THE DEPARTMENTAL VALUATION OFFICER A S PER PROVISIONS OF SECTION 50C(2), BUT THE MATTER WAS NOT REFERRED TO THE CONC ERNED VALUATION OFFICER AND ASSESSMENT WAS COMPLETED ON THE BASIS OF VALUATION DETERMINED BY THE STAMP VALUATION AUTHORITY. THE AO WAS, THEREFORE, DIRECTE D TO REFER THE MATTER OF ITA NO. 330/AGRA/2012 4 VALUATION OF PROPERTY TO THE DVO AS PER PROVISIONS OF SECTION 50C(2) TO DETERMINE THE VALUE OF SALE CONSIDERATION FOR THE PURPOSE OF COMPUTATION OF CAPITAL GAIN AS PER DIRECTIONS OF THE LD. CIT(A). THE AVO VIDE HIS REPO RT DATED 27.12.2011 VALUED THE PROPERTY AT RS.4,14,870/-. THE REMAND REPORT FROM T HE AO WAS ALSO SUBMITTED, IN WHICH THE AO AGREED WITH THE REPORT OF AVO VALUING PROPERTY AT RS.4,14,870/-. THE REPORT OF THE VALUATION OFFICER PROVIDED TO THE ASSESSEE FOR HIS COMMENTS AS TO WHY THE VALUATION DETERMINED BY THE AVO SHOULD NOT BE TAKEN FOR THE PURPOSE OF COMPUTATION OF CAPITAL GAINS. THE ASSESSEE ON GOING THROUGH THE REPORT OF THE VALUATION OFFICER FILED A LETTER BEFORE THE LD. CIT (A) ON PERUSAL OF THE VALUATION REPORT AND STATED THAT THE ASSESSEE HAS BEEN ADVISE D TO TAKE ADDITIONAL GROUNDS OF APPEAL STATING THEREIN THAT SINCE DIFFERENCE IN THE VALUATION IS LESS THAN 15%, THEREFORE, NO ADDITION SHOULD BE MADE AND FURTHER W HEN THE VALUE DETERMINED BY THE VALUATION OFFICER IS LESS THAN THE VALUE ADOPTE D BY THE STAMP VALUATION AUTHORITY U/S. 50C, THE SALE CONSIDERATION SHOWN BY THE ASSESSEE ON RS.3,90,000/- DECLARED IN THE RETURN SHOULD BE ACCEPTED. IT WAS A LSO PLEADED THAT THE ASSESSEE HAS PAID BROKERAGE AMOUNTING TO RS.7,700/- TO THE BROKE R, THEREFORE, SUCH CLAIM SHOULD NOT HAVE BEEN DENIED. THE ASSESSEE ALSO FILED WRITT EN SUBMISSION WHICH IS INCORPORATED IN THE APPELLATE ORDER. THE LD. CIT(A) CONSIDERED THE ISSUE IN THE LIGHT OF SUBMISSIONS OF THE ASSESSEE AND THE MATERIAL ON RECORD HELD THAT SINCE THE VALUE OF SALE CONSIDERATION DETERMINED BY THE AVO AT RS.4 ,14,870/- IS THE FAIR MARKET ITA NO. 330/AGRA/2012 5 VALUE. THEREFORE, IT SHOULD BE ADOPTED AS AGAINST T HE STAMP VALUATION AUTHORITY, THEREFORE, THE ADDITION WAS RESTRICTED TO RS.29,122 /-. FURTHER, SINCE NO SUPPORTING EVIDENCE OF PAYMENT OF BROKERAGE WAS PRODUCED, THER EFORE, SUCH A GROUND WAS DISMISSED. THE DETAILED FINDINGS OF LD. CIT(A) IN P ARA 5.6 TO 5.11 OF THE APPELLATE ORDER ARE REPRODUCED AS UNDER : I HAVE CONSIDERED ALL THE SUBMISSIONS MADE BY THE L D. AR WITH RESPECT TO HIS ARGUMENT FOR TAKING THE ACTUAL SALE CONSIDERATION VALUE OF THE PROPERTY AS THE VALUE OF SALE CONSIDERATION FOR THE PURPOSE OF COMPUTATION OF CAPITAL GAIN AS RAISED IN THE ADDITI ONAL GROUNDS NO.8, 9 & 10 TAKEN BY THE APPELLANT. IN THIS REGARD, THE VALUATION REPORT OF THE AVO AS WELL AS DISCUSSION MADE BY THE AO IN THE ASSESSMENT ORDER HAS BEEN CONSIDERED. I FIND THAT IN THE INSTA NT APPEAL, THE MAIN ISSUE TO BE DECIDED IS ABOUT TAKING OF VALUE OF SAL E CONSIDERATION FOR THE PURPOSE OF COMPUTATION OF CAPITAL GAIN BY APPLY ING THE PROVISION OF SECTION 50C. ON GOING THROUGH THE PROVISION OF S ECTION 50C, I FIND THAT AS PER THE PROVISION OF SUB SECTION (1) OF SEC TION 50C, WHERE THE CONSIDERATION RECEIVED OR ACCRUING AS A RESULT OF T RANSFER BY AN ASSESSEE OF A CAPITAL ASSET BEING LAND OR BUILDING OR BOTH, IS LESS THAN THE VALUE ADOPTED OR ASSESSED OR ASSESSABLE BY ANY AUTHORITY OF STATE GOVERNMENT FOR THE PURPOSE OF PAYMENT OF STAMP DUTY IN RESPECT OF SUCH TRANSFER, THE VALUE SO ADOPTED OR ASSESSED BE DEEMED TO BE THE FULL VALUE OF THE CONSIDERATION RECEIVED OR ACCRUIN G AS A RESULT OF SUCH TRANSFER FOR THE PURPOSE OF SECTION 48. SUB SECTION (2) OF SECTION 50C PROVIDES AN EXCEPTIO N TO APPLICATION OF SUB SECTION (1) UNDER CERTAIN CONDIT IONS. IN SUB-SECTION (2), THE CONDITION ARE PRESCRIBED UNDER CLAUSE (A) THAT, IF THE ASSESSEE CLAIMS BEFORE THE AO THAT THE VALUE ADOPTED OR ASSE SSED BY THE STAMP VALUATION AUTHORITY REFERRED TO IN SUB SECTION (1) EXCEEDS THE FAIR MARKET VALUE OF THE PROPERTY AS ON THE DATE OF TRAN SFER AND UNDER CLAUSE (B) THAT, IF THE ASSESSEE IS ABLE TO SHOW TH AT THE VALUE SO ADOPTED OR ASSESSED OR ASSESSABLE BY STAMP VALUATIO N AUTHORITY UNDER SUB SECTION (1) HAS NOT BEEN DISPUTED IN ANY APPEAL OR REVISION OR NO ITA NO. 330/AGRA/2012 6 REFERENCE HAS BEEN MADE BEFORE ANY OTHER AUTHORITY, COURT OR A HIGH COURT, THE ASSESSING AUTHORITY MAY REFER THE VALUAT ION OF THE CAPITAL ASSET TO A VALUATION OFFICER AND THE PROVISION OF T HE ACT IN RESPECT OF THE VALUATION WOULD APPLY. AS PER SUB SECTION (3) O F SECTION 50C, IF THE VALUE AS ARRIVED AT BY THE VALUATION OFFICER ON REF ERENCE FROM THE AO UNDER SECTION 50C(2) IS FOUND TO EXCEED THE VALUATI ON AS ADOPTED OR ASSESSED OR ASSESSABLE BY THE STAMP VALUATION AUTHO RITY REFERRED TO IN SUB SECTION (1), THE VALUE SO ADOPTED OR ASSESSED O R ASSESSABLE BY THE STAMP VALUATION AUTHORITY IS TO BE TAKEN AS THE FUL L VALUE OF THE RECEIPTS OR ACCRUING AS A RESULT OF A TRANSFER. 5.7 IN VIEW OF THE ABOVE PROVISION OF SECTION 50C, IT IS CLEAR THAT THE VALUE DETERMINED BY THE STAMP VALUATION AUTHORI TY IS THE BENCH MARK FOR THE DETERMINATION OF THE FULL VALUE OF SAL E CONSIDERATION ACCRUING TO ASSESSEE ON SALE OF SOME PROPERTY BUT T HIS VALUE CAN BE ALTERED UNDER THE PROVISION OF SUB SECTION (2) OF S ECTION 50C BY REFERRING THE SAID PROPERTY TO A VALUATION OFFICER, IF THE ASSESSEE CLAIMS THAT THE VALUE DETERMINED BY THE STAMP VALUA TION AUTHORITY EXCEEDS FAIR MARKET VALUE. CONSIDERING THE CLAIM OF THE APPELLANT THAT THE VALUE DETERMINED BY THE STAMP VALUATION AUTHORI TY AT RS. 5,23,000/- HAS EXCEED THE FAIR MARKET VALUE OF THE PROPERTY AS DETERMINED BY THE REGD. VALUER AT RS.3,12,395/-, AS PER THE VALUATION REPORT, SUBMITTED BY HER, THE AO HAS BEEN DIRECTED TO REFER THIS PROPERTY FOR VALUATION TO AVO AND ON THE BASIS OF T HE REPORT OF THE AVO, THE VALUATION HAS BEEN DETERMINED AT RS.4,14,8 70/-. ON THIS VALUATION OF THE PROPERTY BY THE AVO, NOW, THE LD. AR HAS CONTENDED BY TAKING THREE ADDITIONAL GROUNDS 8, 9, & 10 THAT THE SALE CONSIDERATION SHOWN BY THE APPELLANT IS LESS THAN 1 5% AND RS. 25,000/- FROM THE VALUE DETERMINED BY THE AVO AND T HEREFORE, THE FAIR MARKET VALUE DETERMINED BY THE AVO BEING LESS THAN THE VALUATION COMPUTED BY THE VALUATION AUTHORITY, THE SALE CONSI DERATION OF THE PROPERTY SHOULD BE TAKEN AT RS.3,90,000/- AS DECLAR ED IN THE RETURN AND IN THE OPINION OF THE LD. AR, PROVISION OF SECT ION 50C(1) WOULD NOT BE APPLICABLE IN CASE OF THE APPELLANT. IN SUPP ORT OF HIS ARGUMENT, THE LD. AR HAS REFERRED TO THE PROVISION OF 55A REA D WITH RULE 111A TAKING THE PLEA THAT NO ADVERSE INFERENCE SHOULD BE DRAWN WHERE EVER THE DIFFERENCE IS LESS THAN 15% AND RS.25,000/- AND IN SUCH CIRCUMSTANCE, THE ACTUAL SALE CONSIDERATION SHOULD BE TAKEN FOR WORKING OUT THE CAPITAL GAIN. IN SUPPORT OF HIS THI S ARGUMENT, HE HAS ITA NO. 330/AGRA/2012 7 ALSO RELIED ON A DECISION OF HON'BLE CHENNAI BENCH OF ITAT IN THE CASE OF ITO VS MS. KUMUDINI VENUGOPAL (2011) 16 TAX MANN.COM 136 (CHENNAI) BY CITING RELEVANT PORTION OF THIS DECISI ON, STATING THAT 'WHERE IN COURSE OF PROCEEDING U/S 50C(2), DVO DETE RMINED VALUE OF A PROPERTY ON A FIGURE MUCH LOWER THAN VALUE AS FIX ED BY STAMP VALUATION AUTHORITY, THE AO WAS TO BE DIRECTED TO A CCEPT SALE CONSIDERATION OF PROPERTY AS ADMITTED BY THE ASSESS EE IN HER RETURN OF INCOME'. 5.8. BOTH THE ABOVE ARGUMENTS OF THE LD. AR HAVE B EEN CONSIDERED BY ME FOR DECIDING ABOUT THE VALUATION O F SALE CONSIDERATION TO BE ADOPTED FOR THE PURPOSE OF CAPI TAL GAIN. AS THE MATTER OF DETERMINING THE FAIR MARKET VALUE OF THE PROPERTY UNDER CONSIDERATION HAS BEEN REFERRED FOR VALUATION TO AV O, THE PROVISION OF SECTION 50C(2) WOULD UNDOUBTEDLY APPLY IN CASE OF T HE APPELLANT. IN THIS RESPECT, I FIND THAT THE RELIANCE OF THE LD. A R ON THE PROVISION OF SECTION 55A READ WITH RULE 111A IS MISPLACED BECAUS E THIS SECTION AND RULE APPLIES TO PROVIDE CONDITIONS FOR MAKING R EFERENCE TO VALUATION OFFICER IN RESPECT OF DETERMINING THE COS T OF ACQUISITION OF A PROPERTY SPECIALLY FOR THE CASES COVERED BY THE PRO VISIONS OF SECTION 55A(B). IN THIS RESPECT, THE HON'BLE ITAT, MUMBAI I N CASE OF SMT. SARLA N. SAKRANEY VS. ITO (2010) 46 DTR (MUM) (TRIB ) 208 BASED ON THE DECISION OF THE HON'BLE GUJRAT HIGH COURT IN TH E CASE OF HIABEN JAYANTILAL SHAH (2009) 310 ITR 31, HAS HELD THAT TH E CLAUSE (B) OF SECTION 55A CAN BE INVOKED ONLY IN ANY OTHER CASE, NAMELY WHEN THE VALUE OF THE ASSET CLAIMED BY THE ASSESSEE IS NOT S UPPORTED BY THE ESTIMATE MADE BY THE REGD. VALUER AND IN THE CASE W HEN A REPORT OF THE REGD. VALUER IS FILED, CLAUSE (B) OF SECTION 55 A CANNOT BE INVOKED. IN VIEW OF THIS INTERPRETATION OF CLAUSE (B) OF SEC TION 55A BY THE HON'BLE GUJARAT HIGH COURT, I FIND THAT CRITERION G IVEN IN THE RULE 111A READ WITH SECTION 55A(B)(I) CITED BY THE LD. A R THAT NO ADVERSE INFERENCE SHOULD BE DRAWN WHERE THE DIFFERENCE IS L ESS THAN 15% AND RS.25,000/- BETWEEN ESTIMATED VALUE DETERMINED BY T HE VALUATION OFFICER AND THE ACTUAL SALE CONSIDERATION, WOULD NO T AT ALL APPLY, FIRSTLY BECAUSE THIS RULE IS NOT APPLICABLE FOR DET ERMINATION OF THE FAIR MARKET VALUE U/S 50C (2) AND SECONDLY BECAUSE IN CA SE OF THE APPELLANT, VALUATION REPORT OF A REGD. VALUER HAS B EEN FILED AND HENCE, PROVISION OF SECTION 55A(B)(I) WOULD NOT APP LY AS HELD BY THE ITA NO. 330/AGRA/2012 8 HON'BLE GUJRAT HIGH COURT. THEREFORE: THE ADDL. GR OUND NO. 8 TAKEN IN THIS RESPECT IS DISMISSED. 5.9 FOR ADOPTING THE SALE CONSIDERATION SHOWN BY TH E APPELLANT IN THE RETURN OF INCOME, THE APPELLANT HAS PLACED RELIANCE ON THE DECISION OF THE HON'BLE CHENNAI BENCH OF ITAT IN CASE OF ITO VS MS. KUMUDINI VENUGOPAL (2011) 16 TAXMANN.COM 136 (CHENNAI) QUOTI NG THAT IF AVO DETERMINED VALUATION OF PROPERTY IS MUCH LOWER THAN THAT FIGURE AS FIXED BY THE STAMP VALUATION AUTHORITY, THE SALE CONSIDERATION AS SHOWN BY THE APPELLANT IN HER RETURN OF INCOME SHOU LD BE ADOPTED. IN ORDER TO EXAMINE THIS CLAIM OF THE LD. AR, I HAVE G ONE THROUGH THE DECISION OF HON'BLE ITAT, CHENNAI BENCH. IN THIS CA SE, THERE WERE TWO APPEALS BEFORE THE HON'BLE TRIBUNAL, ONE FILED BY M S. KUMUDINI VENUGOPAL AND ANOTHER FILED BY KUM. RAJINI VENUGOPA L. IN CASE OF MS. KUMUDINI VENUGOPAL, THE SALE DEED WAS NOT REGIS TERED BUT IN THE CASE OF KUM. RAJINI VENUGOPAL, THE SALE DEED WAS RE GISTERED. THEREFORE, WHILE FINALLY DECIDING BOTH THE APPEALS AFTER GETTING THE PROPERTY VALUED BY THE VALUATION OFFICER, IT HAS BE EN HELD BY THE HON'BLE TRIBUNAL THAT THE FACT THAT OVO HAS VALUED THE PROPERTY MUCH LOWER THAN THE VALUE FIXED BY THE STAMP VALUATION A UTHORITY, SHOWS THAT THE CLAIM OF THE APPELLANT IS TRUE AND CORRECT AND THE PROVISIONS OF 50C(1) WOULD HAVE TO BE READ WITH SECTION 50C(2) AND THE VALUE AS ARRIVED AT AS PER THE PROVISIONS OF SECTION 50C(2) OF THE ACT WOULD HAVE TO BE ADOPTED IN THE CASE OF KUM. RAJINI VENUG OPAL. BUT IN CASE OF MS. KUMUDINI VENUGOPAL, THE HON'BLE MEMBERS NOTI CED THAT THE SALE AGREEMENT IN RESPECT OF THE PROPERTY HAS NOT B EEN REGISTERED AND THEREFORE, IT HAS BEEN HELD BY THE LD. MEMBER THAT THE PROVISIONS OF SECTION 50C WOULD NOT APPLY, IN CASE OF MS. KUMUDIN I VENUGOPAL UNDER THESE CIRCUMSTANCES, THEY CONFIRMED THE DECIS ION OF CIT(A), DIRECTING THE AO TO ADOPT THE SALE CONSIDERATION AS PER THE VALUATION REPORT OF THE DVO IN CASE OF KUM. RANJJNI VENUGOPAL AND IN CASE OF MS. KUMUDINI VENUGOPAL, THE AO WAS DIRECTED TO ACCE PT THE SALE CONSIDERATION AS ADMITTED BY THE ASSESSEE IN HIS RE TURN OF INCOME. IN ORDER TO SHOW THE APPLICABILITY OF THIS CASE LAW IN CASE OF THE APPELLANT, FULL DECISION IS REPRODUCED AS UNDER : '2. I. T. A. NO. 1172/MDS/2009 IS AN APPEAL FILED B Y THE REVENUE AGAINST THE ORDER PASSED BY THE LEARNED COM MISSIONER OF INCOME-TAX (APPEALS)-I, COIMBATORE, IN APPEAL NO . 247/07-08 ITA NO. 330/AGRA/2012 9 DATED MAY 6, 2009 FOR THE ASSESSMENT YEAR 2005-06 I N THE CASE OF MS. KUMUDINI VENUGOPAL AND I. T. A. NO. 1173/MDS /2009 IS AN APPEAL FILED BY THE REVENUE AGAINST THE ORDER PA SSED BY THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS)-I, COI MBATORE IN APPEAL NO. 246/07-08 DATED MAY 6, 2009 FOR THE ASSE SSMENT YEAR 2005-06 IN THE CASE OF KUM. RAJINI VENUGOPAL. SHRI TAPAS KUMAR DUFFA, THE LEARNED DEPARTMENTAL REPRESENTATIV E REPRESENTED ON BEHALF OF THE REVENUE AND SHRI V. J AGADISAN, CHARTERED ACCOUNTANT REPRESENTED ON BEHALF OF THE A SSESSEES. IT WAS SUBMITTED BY THE LEARNED DEPARTMENTAL REPRES ENTATIVE THAT THE ASSESSEE HAD SOLD CERTAIN AGRICULTURAL LAND IN COIMBATORE. THE ASSESSEE INVESTED THE SALE PROCEEDS IN NHB AND NABARO BONDS AND CLAIMED EXEMPTION UNDER SECTION 54EC. IN THE COURSE OF ASSESSMENT, IT WAS NOTICED THAT THE PROVISION OF SECTION 50C APPLIED TO THE ASSESSEE'S CASE AND AS PER THE DIREC TION OF THE ADDITIONAL COMMISSIONER OF INCOME-TAX, RANGE II, CO IMBATORE UNDER SECTION 144A OF THE ACT, THE VALUATION OF THE PROPERTY AS PER THE GUIDELINE VALUE OF THE STAMP VALUATION AUTH ORITY HAD BEEN APPLIED AS THE SAME WAS FOUND TO BE HIGHER THAN THE SALE CONSIDERATION DISCLOSED BY THE ASSESSEES. IT WAS TH E SUBMISSION THAT THE LEARNED COMMISSIONER OF INCOME-TAX (APPEAL S) HAD DELETED THE ADDITION MADE BY THE ASSESSING OFFICER AND DIRECTED THE ASSESSING OFFICER TO ADOPT THE SALE CONSIDERATI ON AS PER THE VALUATION REPORT OF THE DVO IN THE CASE OF KUM. RAJ INI VENUGOPAL. IN THE CASE OF MS. KUMUDHINI VENUGOPAL, THE ASSESSING OFFICER WAS DIRECTED TO ACCEPT THE SALE C ONSIDERATION AS ADMITTED BY THE ASSESSEE IN HER RETURN OF INCOME . 4. IT WAS THE SUBMISSION THAT THE PROVISIONS OF SEC TION 50C WERE MANDATORY AND AS THE SALE CONSIDERATION DISCLOSED B Y THE ASSESSEE WAS LOWER THAN THE VALUATION AS PER THE ST AMP VALUATION AUTHORITY, THE VALUE AS FIXED BY THE STAMP VALUATIO N AUTHORITY WAS LIABLE TO BE ADOPTED. IT WAS THE SUBMISSION THAT TH E ORDER OF THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) IS LIA BLE TO BE REVERSED AND THAT OF THE ASSESSING OFFICER RESTORED . 5. THE LEARNED AUTHORISED REPRESENTATIVE HAS SUBMIT TED THAT AS PER THE PROVISIONS OF SECTION 50C, THE ASSESSING OF FICER HAD REFERRED THE VALUATION TO THE OVA. HOWEVER, AS PER THE DIRECTIONS ITA NO. 330/AGRA/2012 10 OF THE ADDITIONAL COMMISSIONER OF INCOME-TAX UNDER SECTION 144A OF THE ACT, THE ASSESSING OFFICER HAD ADOPTED THE VALUE AS FIXED BY THE STAMP VALUATION AUTHORITY. IT WAS THE SUBMISSION THAT IN THE COURSE OF ASSESSMENT PROCEEDINGS, THE A SSESSEE HAD SUBMITTED THAT THE PROVISIONS OF SECTION 50C COULD NOT BE CONSIDERED AS THE LAND WAS AGRICULTURAL LAND AND TH E LAND HAD SUBSTANTIAL DEFECTS AS IT WAS IN ODD SHAPE AND WAS A LOW LYING LAND. IT WAS THE SUBMISSION THAT THE ASSESSEE HAD A LSO PRODUCED EVIDENCE IN THE FORM OF LAND ACQUISITION DONE BY TH E COIMBATORE MUNICIPAL CORPORATION, WHEREIN THE VALUE OF THE LAN D HAD BEEN FIXED AT THE RATE OF RS.5,000 PER CENT IN 1996. IT WAS THE SUBMISSION THAT THE ASSESSING OFFICER WAS BOUND TO FOLLOW THE SUB-SECTION (1) OF SECTION 50C AND ADOPT THE LOWER OF THE VALUE FIXED BY THE OVA OR THE VALUE AS DETERMINED BY THE STAMP VALUATION AUTHORITY. FOR THIS PROPOSITION, HE RELIE D UPON THE DECISION OF THE LUCKNOW BENCH OF THE INCOME-TAX APP ELLATE TRIBUNAL IN THE CASE OF JITENDRA MOHAN SAXENA V. IT O [2008J 305 ITR (AT) 62. HE FURTHER SUBMITTED THAT THE REFE RENCE TO THE DVO UNDER SECTION 50C(2) WAS NOT DISCRETIONARY, BUT MANDATORY FOR WHICH PROPOSITION HE RELIED UPON THE DECISION O F THE JODHPUR BENCH OF THE INCOME-TAX APPELLATE' TRIBUNAL IN THE CASE OF MEGHRAJ BAID V. ITO [2008} 114 ITJ 841 / (URO). IT WAS THE SUBMISSION THAT THE ORDER OF THE LD. COMMISSIONER O F INCOME-TAX (APPEALS) WAS RIGHT AND THE SAME WAS LIABLE TO BE U PHELD. 6. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. READIN G OF THE PROVISIONS OF SECTION 500 SHOWS THAT AS PER THE PRO VISION OF SUB SECTION (1) OF SECTION 50C WHERE THE CONSIDERATION RECEIVED OR ACCRUING AS A RESULT OF TRANSFER BY THE ASSESSEE OF A CAPITAL ASSET BEING LAND OR BUILDING OR BOTH, IS LESS THAN THE VA LUE ADOPTED OR ASSESSED OR ASSESSABLE BY ANY AUTHORITY OF A STATE GOVERNMENT FOR THE PURPOSE OF PAYMENT OF STAMP DUTY IN RESPECT OF SUCH TRANSFER FOR THE PURPOSE OF SECTION 48, SUCH VALUE AS FIXED BY THE AUTHORITY OF THE STATE GOVERNMENT IS TO BE DEEMED T O BE THE FULL VALUE OF THE CONSIDERATION AS A RESULT OF SUCH TRAN SFER. SUB- SECTION (2) OF SECTION 50C CARVES OUT THE EXEMPTION TO SUB- SECTION (1). IN SUB-SECTION (2), THE CONDITIONS ARE PRESCRIBED, UNDER CLAUSE (A), IF THE ASSESSEE CLAIMS BEFORE THE ASSESSING OFFICER THAT THE VALUE ADOPTED OR ASSESSED BY THE S TAMP VALUATION AUTHORITY REFERRED TO IN SUB-SECTION (1) EXCEEDS TH E FAIR MARKET ITA NO. 330/AGRA/2012 11 VALUE OF THE PROPERTY AS ON THE DATE OF TRANSFER AN D UNDER CLAUSE (B), IF THE ASSESSEE IS ABLE TO SHOW THAT THE VALUE SO ADOPTED OR ASSESSED OR ASSESSABLE BY THE STAMP VALUATION AUTHO RITY UNDER SUB-SECTION (1) HAS NOT BEEN DISPUTED IN ANY APPEAL OR REVISION OR NO REFERENCE HAS BEEN MADE BEFORE ANY OTHER AUTH ORITY, COURT OR THE HIGH COURT, THE ASSESSING AUTHORITY MAY REFE R THE VALUATION OF THE CAPITAL ASSET TO A VALUATION OFFIC ER AND THE PROVISIONS OF THE ACT IN RESPECT OF THE VALUATION W OULD APPLY. AS PER SUBSECTION (3) OF SECTION 50C, IF THE VALUE AS ARRIVED AT BY THE OVA ON THE REFERENCE FROM THE ASSESSING OFFICER UND ER SECTION 50C(2) IS FOUND TO EXCEED THE VALUATION AS ADOPTED OR ASSESSED OR ASSESSABLE BY THE STAMP VALUATION AUTHORITY REFE RRED TO IN SUB- SECTION (1), THEN THE VALUE SO ADOPTED OR ASSESSED OR ASSESSABLE BY THE STAMP VALUATION AUTHORITY IS TO BE TAKEN AS THE FULL VALUE OF THE RECEIPT OR ACCRUING AS A RESULT OF THE TRANSFER . THUS, AS PER SECTION 50C(1), THE VALUATION AS FIXED BY THE STAMP VALUATION AUTHORITY IS TAKEN AS A BENCH MARK, AS PER SUB-SECT ION (2) OF SECTION 50C THE BENCH MARK CAN BE REVIEWED BY THE R EFERENCE TO THE VALUATION OFFICER IF THE ASSESSEE CLAIMS THAT S UCH VALUE EXCEEDS THE FAIR MARKET VALUE. AS PER SUB-SECTION ( 3), IF THE VALUATION AS ARRIVED AT BY THE OVO AS A CONSEQUENCE OF THE REFERENCE MADE TO HIM BY THE ASSESSING OFFICER ON A CCOUNT OF THE ASSESSEE'S CLAIM AND SUCH VALUATION IS FOUND TO BE HIGHER THAN THE VALUE AS FIXED BY THE STAMP VALUATION AUTHORITY THEN THE VALUE AS FIXED BY THE STAMP VALUATION AUTHORITY BEING THE LOWER OF THE TWO IS TO BE APPLIED. WITH THESE PARTICULARS IN MIN D, IF WE SEE THE FACTS OF THE ASSESSEE'S CASE, IT IS NOTICED IN THE COURSE OF ASSESSMENT ITSELF THE ASSESSEE HAS INVOKED HER RIGH T UNDER SECTION 50C(2) OF THE ACT, WHEREIN, IT IS SPECIFICALLY CLAI MED THAT THE VALUE AS FIXED BY THE STAMP VALUATION AUTHORITY IS ON THE HIGHER SIDE. THIS IS EVIDENCED FROM PARAGRAPH 8 OF THE ASS ESSMENT ORDER. IT IS ALSO NOTICED THAT THE ASSESSING OFFICE R HAD FOUND MERIT IN THE CLAIM OF THE ASSESSEE AND HAD CONSEQUE NTLY REFERRED THE VALUATION OF THE PROPERTY TO THE DVO. IT IS NOT ICED THAT IN THE MEANTIME, THE ASSESSEE HAD ALSO APPLIED TO THE ADDI TIONAL COMMISSIONER OF INCOME-TAX FOR DIRECTION UNDER SECT ION 144A AND THE LEARNED ADDITIONAL COMMISSIONER OF INCOME-T AX FOR DIRECTION UNDER SECTION 144A AND THE LEARNED ADDITI ONAL COMMISSIONER OF INCOME-TAX, RANGE II, COIMBATORE, H AD ISSUED DIRECTION UNDER SECTION 144A. IT IS ALSO NOTICED TH AT BY THE TIME ITA NO. 330/AGRA/2012 12 THE ASSESSMENT WAS COMPLETED, THE DVO HAD NOT GIVEN ANY REPORT OF VALUATION TO THE ASSESSING OFFICER. CONSE QUENTLY, THE ASSESSING OFFICER HAD COMPLIED WITH THE DIRECTION O F THE ADDITIONAL COMMISSIONER OF INCOME-TAX AND HAD APPLI ED THE PROVISIONS OF SECTION 50C(1) OF THE ACT. DURING THE APPEAL PROCEEDINGS BEFORE THE LEARNED COMMISSIONER OF INCO ME TAX (APPEALS), THE VALUATION REPORT OF THE DVO HAD COME AND THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) HAD CO NSIDERED THE DVOS REPORT WHILE PASSING THE APPELLATE ORDER. THUS WHAT IS NOTICED HERE IS THAT THE ASSESSEE HAS MADE CLAIM UN DER SECTION 50C(2) AND THE ASSESSING OFFICER DID FIND MERIT IN THE CLAIM OF THE ASSESSEE AND AS PER THE REQUIREMENTS OF THE ACT , THE ASSESSING OFFICER HAD RIGHTLY REFERRED THE VALUATIO N OF THE PROPERTY TO THE OVO AND THE DVO HAD VALUED THE PROP ERTY AT A FIGURE MUCH LOWER THAN THE VALUE AS FIXED BY THE ST AMP VALUATION AUTHORITY WHICH ALSO SHOWS THAT THE PROVISIONS OF S ECTION 50C(3) HAVE NO APPLICATION TO THE PRESENT CASE. OBVIOUSLY, THE VALUATION AS DONE BY THE DVO IS NOT A SUBJECT-MATTE OF THE AP PEAL BEFORE US. THE FACT THAT THE DVO HAS VALUED THE PROPERLY M UCH LOWER THAN THE VALUE FIXED BY THE STAMP VALUATION AUTHORI TY, SHOWS THAT THE CLAIM OF THE ASSESSEE IS TRUE AND CORRECT AND T HE PROVISIONS OF SECTION 50C(1) WOULD HAVE TO BE READ WITH SECTIO N 50C(2) AND THE VALUE A ARRIVED AT AS PER THE PROVISIONS OF SEC TION 50C(2) OF THE ACT WOULD HAVE TO BE ADOPTED IN THE CASE OF KUM . RANJINI VENUGOPAL. IN THE CASE OF MS. KUMUDINI VENUGOPAL, I T IS NOTICED THAT THE SALE AGREEMENT IN RESPECT OF THE PROPERTY HAS NOT BEEN REGISTERED. CONSEQUENTLY, THE PROVISIONS OF SECTION 50C WOULD NOT APPLY. UNDER THESE CIRCUMSTANCES, WE ARE OF THE VIEW THAT THE FINDINGS AS ARRIVED AT BY THE LEARNED COMMISSIONER OF INCOME- TAX (APPEALS) IS ON A RIGHT FOOTING AND BOTH THE AP PEALS OF THE REVENUE ARE DISMISSED. ' 5.10 IN THE CASE OF THE APPELLANT, SALE DEED HAS BE EN REGISTERED AND HENCE, EVEN BY FOLLOWING THE DECISION OF HON'BLE CH ENNAI TRIBUNAL REFERRED BY THE LD. AR, THE SALE CONSIDERATION HAS TO BE ADOPTED AS PER THE VALUATION REPORT OF THE DVO. IN FACT, THE L D. AR HAS WRONGLY REFERRED THE DECISION OF HON'BLE CHENNAI ITAT IN TH E CASE OF MS. KUMUDINI VENUGOPAL IN WHOSE CASE SALE AGREEMENT WAS NOT REGISTERED. THEREFORE, IT IS UNDISPUTEDLY PROVED TH AT ONCE A PROPERTY IS REFERRED TO THE DEPARTMENTAL VALUATION OFFICER FOR DETERMINATION OF ITA NO. 330/AGRA/2012 13 FAIR MARKET VALUE OF A PROPERTY SOLD ON WHICH CAPIT AL GAIN IS TO BE COMPUTED, IF THE VALUE DETERMINED BY THE DVO/AVO IS LESS THAN THE VALUE DETERMINED BY THE STAMP VALUATION AUTHORITY, THE SAME VALUE SHOULD BE ADOPTED AS DETERMINED BY THE DVO/AVO FOR THE PURPOSE OF TAKING THE VALUE OF SALE CONSIDERATION IN ORDER TO COMPUTE THE CAPITAL GAIN AND THE VALUE OF ACTUAL SALE CONSIDERATION CAN BE TAKEN ONLY IN THOSE CASES IN WHICH THE SALE AGREEMENT IS NOT REGI STERED. THEREFORE, I HOLD THAT IN CASE OF THE APPELLANT, THE VALUE OF SA LE' CONSIDERATION SHOULD BE ADOPTED AT RS.4,14,870/- AS DETERMINED BY THE AVO AS BEING FAIR MARKET VALUE AND HENCE, THE ADDITIONAL G ROUND NO. 9 TAKEN BY THE APPELLANT IS DISMISSED. THE VALUE OF SALE CO NSIDERATION HAS TO BE DETERMINED IN THE CASE OF THE APPELLANT AS PER T HE PROVISION OF 50C(2) READ WITH THE SECTION 50C(1) AND THE PROVISI ONS OF 50C(1) WOULD NOT BE APPLICABLE EXCLUSIVELY AND ACCORDINGLY , ADDITIONAL GROUND NO. 10 IS PARTLY ALLOWED. IN VIEW OF MY ABOV E DECISION, THE AO IS DIRECTED TO TAKE THE VALUE OF SALE CONSIDERATION FOR COMPUTATION OF CAPITAL GAIN ON SALE OF PROPERTY SHOWN BY THE APPEL LANT AT RS.4,14,870/- INSTEAD OF RS.5,23,000/- TAKEN BY HIM AND THUS, THE CAPITAL GAIN WOULD BE COMPUTED AS UNDER : VALUE OF SALE CONSIDERATION RS.4,14,870/- LESS COST OF ACQUISITION AS TAKEN BY THE APPELLANT IN COMPUTATION OF INCOME RS.3,85,748/ - THE VALUE OF LTCG RS. 29,122/- IN VIEW OF THE ABOVE COMPUTATION, THE AO IS DIRECT ED TO TAKE LONG TERM CAPITAL GAIN AT RS.29,122/- TO BE ADDED T O THE INCOME OF THE APPELLANT, INSTEAD OF RS.1,37,252/- AS ADDED IN THE ASSESSMENT ORDER. THEREFORE, GROUND NO. 1 TO 3 ARE PARTLY ALLOWED. 5.11. AS REGARDS TO ADDITIONAL GROUND NO. 11, THE LD. AR COULD NOT PRODUCE ANY SUPPORTING DOCUMENT SHOWING T HAT THE AMOUNT OF RS.7,700/- WAS PAID TO ANY BROKERAGE ON SALE OF THE PROPERTY. THEREFORE, NO DEDUCTION OF RS.7,700/- WOULD BE ALLO WABLE FROM THE SALE CONSIDERATION AND HENCE, GROUND NO. 11 IS DISM ISSED. ITA NO. 330/AGRA/2012 14 3. THE LD. COUNSEL FOR THE ASSESSEE REFERRED TO PAG E 17 OF THE PAPER BOOK TO SHOW CIRCLE RATE OF THE PROPERTY IN THE AREA OF LOH AMANDI IS RS.6000/- PER SQ. METER, WHICH IS ALSO MENTIONED IN THE SALE DEED (PB -1), THEREFORE, AVO SHOULD NOT HAVE TAKEN THE RATES AT RS.6000/- + 50% (RS.9000/-) . HE HAS, HOWEVER, ADMITTED THAT THE ASSESSEE DID NOT CHALLENGE THE REPORT OF A VO BEFORE THE LD. CIT(A). FURTHER NO OBJECTIONS HAVE BEEN RAISED BEFORE THE S TAMP VALUATION AUTHORITIES WITH REGARD TO THE VALUATION OF THE PROPERTY. THE L D. COUNSEL FOR THE ASSESSEE ALSO ADMITTED THAT THERE IS NO EVIDENCE TO PROVE PAYMENT OF BROKERAGE ON SALE OF PROPERTY. HE HAS, AFTER MAKING THE ARGUMENTS SUBMIT TED THAT THE ASSESSEE HAD ALREADY EXPIRED AND APPEAL IS FILED THROUGH LEGAL H EIR AND SINCE THE LEGAL HEIR DOES HAVE ANY AMOUNT TO BE PAID, THEREFORE, THE PRESENT APPEAL HAS BEEN FILED. 4. ON THE OTHER HAND, THE LD. DR RELIED UPON THE OR DERS OF THE AUTHORITIES BELOW. 5. I HAVE CONSIDERED THE RIVAL SUBMISSIONS, PERUSED FINDINGS OF AUTHORITIES BELOW AND THE MATERIAL AVAILABLE ON RECORD. IT IS N OT IN DISPUTE THAT STAMP VALUATION AUTHORITIES HAVE ASSESSED THE VALUE OF PR OPERTY FOR STAMP DUTY PURPOSES AT RS.5,23,000/-. THE ASSESSEE CLAIMED BEFORE THE L D. CIT(A) THAT A REPORT OF REGISTERED VALUER WAS FILED SHOWING VALUATION OF PR OPERTY AT RS.3,12,395/-. THEREFORE, REQUEST WAS ALSO MADE TO THE AO THAT IF HE DID NOT AGREE WITH THE REPORT ITA NO. 330/AGRA/2012 15 OF REGISTERED VALUER, THE MATTER MAY BE REFERRED TO THE DVO AS PER SECTION 50C(2) OF THE IT ACT. THE LD. CIT(A) ON SUCH PLEA OF THE A SSESSEE REFERRED THE MATTER TO THE DVO FOR DETERMINING THE VALUATION OF THE PROPERTY A ND THE DVO OPINED VALUE AT RS.4,14,870/-. THIS FIGURE WAS ALSO AGREED TO BY TH E AO IN THE REMAND REPORT. IT IS ADMITTED FACT THAT THE ASSESSEE NEVER OBJECTED TO T HE VALUATION REPORT SUBMITTED BY THE AVO AT RS.4,14,870/-. IF THE ASSESSEE WAS AT AL L AGGRIEVED AGAINST THE VALUATION REPORT AT RS.4,14,870/-, THE ASSESSEE SHOULD HAVE R AISED OBJECTION TO SAID VALUATION REPORT AT THE PROCEEDINGS BEFORE THE LD. CIT(A) OR IN THE REMAND PROCEEDINGS BEFORE THE AO. SINCE THE ASSESSEE DID NOT OBJECT TO THE REPORT OF DVO FILED U/S. 50C(2) OF THE IT ACT, THEREFORE, THE ASSESSEE COULD NOT BE ALLOWED TO DISPUTE THE SAME REPORT AT THIS STAGE. FURTHER, THE AVO IN THE VALUATION REPORT HAS REFERRED TO THE BASIS OF THE CIRCLE RATE ADOPTED BY HIM AS PER ORDERS ISSUED BY ADM(F)/SUB- REGISTRAR ON 15.01.2003 EFFECTIVE AT THAT TIME ON S ALE OF SHOPS. NO MATERIAL IS PRODUCED BEFORE US EVEN TO DISPUTE THE CORRECTNESS OF THE ORDER ISSUED BY ADM/SUB-REGISTRAR IN THIS REGARD. NOTHING IS CLARIF IED BEFORE ME OR BEFORE THE AUTHORITIES BELOW AS TO WHY THE ASSESSEE NOW WOULD TAKE A STAND OF LOWER VALUATION OF PROPERTY AS AGAINST THE VALUATION DETERMINED BY THE DVO. THERE MAY BE SEVERAL DIRECTIONS OR REVISION OF THE CIRCLE RATES IN RESPE CT OF DIFFERENT PROPERTIES AT DIFFERENT TIMES, THEREFORE, IF THE ASSESSEE FELT AG GRIEVED AGAINST THE RATE TAKEN BY THE DVO, IT WOULD HAVE BEEN PROPER FOR THE ASSESSEE TO RAISE OBJECTION ON THE BASIS OF ITA NO. 330/AGRA/2012 16 SOME MATERIAL OR EVIDENCE BEFORE THE DVO, BEFORE TH E AO AT THE REMAND PROCEEDINGS OR AT LEAST BEFORE THE LD. CIT(A). THE ASSESSEE DID NOT CHOOSE TO DO ANYTHING IN THE MATTER AND MERELY RAISED THE OBJECT ION THAT SINCE VALUATION WAS LESS THAN 15% IN DIFFERENCE, THEREFORE, NO ADDITION SHOU LD BE MADE. SUCH A PLEA WAS ALIEN TO THE PROVISIONS OF SECTION 50C OF THE IT AC T. FURTHER SECTION 50C IS A SPECIAL PROVISION FOR FULL VALUE OF CONSIDERATION I N CERTAIN CASES AND DEALS WITH THE TRANSFER OF CAPITAL ASSET BY THE ASSESSEE IN LAND O R BUILDING OR BOTH. THEREFORE, WHATEVER IS NOW CLAIMED IN THE GROUNDS OF APPEAL, C ANNOT BE SUBJECTED TO FAVOURABLE CONSIDERATION TO THE ASSESSEE. THE IMPUG NED ORDER REPRODUCED ABOVE WOULD CLEARLY REVEAL THAT THE LD. CIT(A) ON PROPER APPRECIATION OF PROVISIONS OF SECTION 50C AND THE FACTS OF THE CASE RIGHTLY CONCL UDED THAT THE VALUATION OF SALE CONSIDERATION IS TO BE TAKEN AT RS.4,14,870/- AS PE R VALUATION REPORT AND SINCE COST OF ACQUISITION IS ADMITTED BY THE ASSESSEE AT RS.3, 85,748/-, THEREFORE, THE ADDITION WAS RIGHTLY RESTRICTED TO RS.29,122/-. IT IS ALSO A DMITTED FACT THAT THE ASSESSEE HAS NO EVIDENCE TO SUPPORT THE PLEA OF PAYMENT OF BROKERAG E ON SALE OF PROPERTY, THEREFORE, THE CLAIM OF ASSESSEE FOR SUCH DEDUCTION HAS RIGHTLY DISALLOWED BY THE LD. CIT(A). CONSIDERING THE ABOVE FACTS OF THE CASE AND A VERY SMALL ADDITION SUSTAINED BY THE LD. CIT(A), IT IS CLEAR THAT IT WA S A VERY SMALL MATTER AND THE ASSESSEE WITHOUT REASONS HAS FILED THE PRESENT APPE AL. THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT SINCE THE APPEAL IS FILED T HROUGH LEGAL HEIR AND LEGAL HEIR IS ITA NO. 330/AGRA/2012 17 NOT IN A POSITION TO PAY SMALL TAX, THEREFORE, PRES ENT APPEAL HAS BEEN FILED. SUCH A REASON ITSELF IS NOT JUSTIFIED IN FILING THE FRIVOL OUS APPEAL BEFORE THE TRIBUNAL. SINCE IT IS A VERY SMALL MATTER, THEREFORE, I DO NOT PROP OSE TO IMPOSE COST ON THE LEGAL HEIR OF THE ASSESSEE, OTHERWISE IT WAS A FIT CASE FOR DI SMISSAL OF APPEAL OF ASSESSEE SUBJECT TO COST. IN VIEW OF THE ABOVE FINDINGS, TH E APPEAL OF THE ASSESSEE IS LIABLE TO BE DISMISSED. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS DIS MISSED. ORDER PRONOUNCED IN THE OPEN COURT. SD/- (BHAVNESH SAINI) JUDICIAL MEMBER *AKS/- COPY OF THE ORDER FORWARDED TO : 1. APPELLANT 2. RESPONDENT 3. CIT(A), CONCERNED BY ORDER 4. CIT, CONCERNED 5. DR, ITAT, AGRA 6. GUARD FILE SR. PRIVATE SECRETARY TRUE COPY