Smt. Manjushri Bhandari, Indore V. Asstt. Commissioner of Income Tax- 3 (1), Indore

ITA 333/Ind/2018

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 7627 (ITAT-INDORE)
• Duration Of Justice: 1 year(s) 9 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-01-2020
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: DB
• Next Hearing Date: 08-01-2020
• Assessment Year: 2014-2015
• Appeal Filed On: 23-04-2018
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Assessee Lawyers: AYUSH GUPTA A RS
• Keywords: Sale consideration of property below Jantri Value; Capital asset; Cost of acquisition; Fair market value; Valuation report; Set aside
• Section: 143(3); 50C; 54F; 142(1); 143(2); 54EC; 2(A); 131; 37

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL, INDORE BENCH, INDORE BEFORE SHRI KUL BHARAT, JUDICIAL MEMBER AND SHRI MANISH BORAD, ACCOUNTANT MEMBER ITA NO.333/IND/2018 ASSESSMENT YEAR: 2014-15 APPELLANT BY SHRI GAGAN TIWARI & AYUSH GUPTA, ARS REVENUE BY SHRI ASHISH PORWAL, DR DATE OF HEARING 09 .01.2020 DATE OF PRONOUNCEMENT 29 .01.2020 O R D E R PER MANISH BORAD, AM. THE ABOVE CAPTIONED APPEAL FILED AT THE INSTANCE OF ASSESSEE PERTAINING TO ASSESSMENT YEAR 2014-15 IS DIRECTED A GAINST THE ORDERS OF LD. COMMISSIONER OF INCOME TAX (APPEALS)- 1 (IN SHORT LD.CIT(A)], INDORE DATED 11.01.2018 WHICH IS ARIS ING OUT OF THE ORDER U/S 143(3) OF THE INCOME TAX ACT 1961(IN SHOR T THE ACT) DATED 29.12.2016 FRAMED BY ACIT (3)-1, INDORE. SMT. MANJUSHREE BHANDARI, 23/3, CLERK COLONY, PARDESIPURA, INDORE VS. ACIT 3(1), INDORE (APPELLANT) (REVENUE ) PAN NO. ABNPB6251C 2. ASSESSEE HAS RAISED FOLLOWING GROUNDS OF APPEAL; 1. THAT THE ASSESSMENT IS ILLEGAL, VOID AND WITHO UT JURISDICTION. THE ASSESSING OFFICER HAS RELIED ON THE STATEMENTS RECORDED U/S 131 WITHOUT CONFRONTING THE ASSESSEE WITH SUCH STATEMENTS AND WITHOUT GRANTING ANY OPPORTUNITY OF CROSS-EXAMI NATION TO THE ASSESSEE. 2.THAT THERE IS NO JUSTIFICATION EITHER ON FACTS OR IN LAW IN TREATING THE SALE OF AGRICULTURAL LAND AS A SALE OF URBAN LAND AND THE CONSEQUENT LEVY OF CAPITAL GAIN IS ILLEGAL, VOID AND WITHOUT JUSTIFICATION. 3. THAT WITHOUT PREJUDICE TO THE AFORESAID GROUNDS NO.1 & 2, THE LD. CIT(A) WAS NOT JUSTIFIED IN UPHOLDING THE ACTIO N OF THE LD. ASSESSING OFFICER IN REFUSING TO REFER THE MATTER T O THE VALUATION OFFICER AS PRESCRIBED U/S 50C(2). THE REFUSAL TO RE FER THE MATTER FOR VALUATION U/S 50C(2) IS WHOLLY ILLEGAL AND WITH OUT JURISDICTION. 3. BRIEF FACTS RELATES TO THIS ISSUE ARE THAT THE A SSESSEE IS A MEDICAL PROFESSIONAL. THE E-RETURN OF INCOME HAS BE EN FILED ON 30.11.2014 DECLARING INCOME OF RS.1,34,03,420/-. TH E CASE SELECTED FOR SCRUTINY THROUGH CASS FOLLOWED BY SERVING OF NO TICES U/S 143(2) & 142(1) OF THE ACT. DURING THE YEAR UNDER CONSIDER ATION THE ASSESSEE CLAIMED TO HAVE SOLD AGRICULTURAL LAND ON 15.03.2014 FOR A SALE CONSIDERATION OF RS. 2,45,00,000/-. CAPITAL GA IN ARISING THEREON WAS CLAIMED AS EXEMPT. LD. AO NOTICED THAT IN THE SALE DEED MARKET VALUE WAS NOT MENTIONED. NOTICE U/S 133 (6) OF THE ACT ISSUED TO SUB-REGISTRAR. CERTIFIED COPY OF SALE DEE D WAS FILED WHICH SHOWED MARKET VALUE OF THE LAND AT RS.4,67,18,000/- . ASSESSEE CONFRONTED WITH THE CERTIFIED COPY OF SALE DEED. TH E ASSESSEE SUBMITTED TWO VALUATION REPORT ISSUED BY MR. PRAMO D SARAF AND SHRI D.K. JAIN VALUING THE IMPUGNED LAND AT RS.226. 59 LACS AND 225.00 LACS RESPECTIVELY. THE ASSESSEE ALSO REQUEST ED THE ASSESSING OFFICER TO REFER THE VALUATION OF LAND TO THE VALUA TION OFFICER AS PER SECTION 50C(2) OF THE ACT BUT ASSESSEES REQUEST WA S NOT ACCEPTED. LD. AO APPLIED THE VALUE AS PER THE CERTIFIED COPY OF SALE DEED AND AFTER DENYING THE CLAIM OF EXEMPT CAPITAL GAIN ARIS ING FROM SALE OF AGRICULTURAL LAND COMPUTED THE LONG TERM CAPITAL GA IN TREATING THE IMPUGNED ASSET AS CAPITAL ASSET. AFTER PROVIDING DE DUCTION FOR INDEXED COST OF ACQUISITION AT RS.33,86,803/- COMPU TED THE LONG TERM CAPITAL GAIN AT RS.4,33,31,197/-. LD. AO ALSO MADE A MINOR ADDITION FOR DELAY IN DEPOSIT OF PF AND ESIC AT RS. 20,509/-. INCOME ASSESSED AT RS. 5,67,55,126/-. 4. AGGRIEVED ASSESSEE PREFERRED AN APPEAL BEFORE TH E LD. CIT(A) RAISING FOLLOWING GROUNDS OF APPEAL: 1. IN COMPUTATION OF LONG TERM CAPITAL, THE AO HAS ERRED IN ADOPTING THE SALE CONSIDERATION OF RS.4,67,18,000/- U/S 50C AGAINST ACTUAL SALE VALUE OF RS.2,45,00,000/-, WITH OUT REFERRING TO VALUATION OFFICER DESPITE PRIOR REQUEST FOR THE SAME BY ASSESSEE. 2. THE LD. AO ERRED IN NOT ALLOWING THE EXEMPTION C LAIMED U/S 54F AMOUNTING TO RS.35,18,588/- IN RESPECT OF INVES TMENT IN HOUSE PROPERTY AGAINST THE ADDITION MADE IN INCOME FROM LONG TERM CAPITAL GAIN. 3. THE LD. AO ERRED IN NOT ALLOWING THE EXEMPTION C LAIMED 54EC AMOUNTING TO RS.50,00,000/- IN RESPECT OF INVESTMEN T IN INFRASTRUCTURE BONDS, AGAINST THE ADDITION MADE IN INCOME FROM LONG TERM CAPITAL GAIN. 4. THE LD. AO ERRED IN ADDITION OF EMPLOYEES CONTR IBUTION TOWARDS PF/ESIC OF RS.20509/- U/S 36(1)(VA) OF THE IT ACT 1961. 5. LD. CIT(A) PARTLY ALLOWED THE ASSESSEES APPEAL BY ALLOWING GROUND NO.2, 3 & 4 AS REFERRED ABOVE AND DISMISSED ASSESSEES GROUND NO.1 IN THE ALLEGED ADDITION FOR LONG TERM C APITAL GAIN AT RS. 4,33,31,197/-. 6. AGGRIEVED ASSESSEE IS NOW IN APPEAL BEFORE THE T RIBUNAL. 7. LD. COUNSEL FOR THE ASSESSEE DID NOT MADE ANY SU BMISSIONS WITH REGARD TO GROUND NO.1 & 2 RAISED IN THIS APPEAL WHI CH SHOWS THAT ASSESSEE IS NOT INTERESTED IN PRESSING THESE TWO GR OUNDS. EVEN OTHERWISE GROUND NO.1 IS LIABLE TO BE DISMISSED AS THE ASSESSEE WAS PROVIDED SUFFICIENT OPPORTUNITY DURING THE ASSESSME NT PROCEEDINGS AND GROUND NO.2 ALSO DESERVES TO BE DISMISSED AS TH E ASSESSEE HAS NOT RAISED THE ISSUE CHALLENGING THE ACTION OF THE LD. AO FOR TREATING THE AGRICULTURAL LAND AS A URBAN LAND I.E. CAPITAL ASSET OF WHICH THE GAIN FROM SALE THEREOF WAS LIABLE TO TAX FOR THE CA PITAL GAIN INCOME. THUS GROUND NO.1 & 2 STANDS DISMISSED. 8. APROPOS GROUND NO.3 LD. COUNSEL FOR THE ASSESSEE , AT THE OUTSET, SUBMITTED THAT THE ASSESSEE MADE SPECIFIC REQUEST D URING THE COURSE OF ASSESSMENT PROCEEDINGS FOR REFERRING THE VALUATION OF THE IMPUGNED LAND TO VALUATION OFFICER AS PROVIDED IN S ECTION 50C(2) OF THE ACT BUT THE REQUEST WAS DECLINED. ASSESSEES CA SE IS THUS COVERED BY FOLLOWING DECISIONS OF THE COORDINATE BE NCH: 1. MOHANDAS FATEHPURIYA VS. ITO IN ITANO.1072/JP/20 16 DATED 26.10.2017 2. AAVISHKAR FILM (P.) LTD. VS. ITO, I.T.A.T., MUMB AI (2019) 108 TAXMANN.COM 270 DATED 21 ST JUNE, 2019 9. REFERRING TO THE ABOVE DECISION REQUEST WAS MADE TO RESTORE THE ISSUE RAISED IN GROUND NO.3 TO THE LD. AO WITH A DI RECTION FOR REFERRING THE MATTER TO THE VALUATION OFFICER FOR V ALUING THE IMPUGNED LAND. 10. PER CONTRA, LD. DEPARTMENTAL REPRESENTATIVE(DR) VEHEMENTLY ARGUED SUPPORTING THE ORDERS OF BOTH THE LOWER AUTH ORITIES BUT RAISED NO OBJECTION TO THE REQUEST OF THE ASSESSEE OF RESTORING THE MATTER TO THE ASSESSING OFFICER FOR THE PURPOSE OF REFERRING THE MATTER OF VALUATION OF THE IMPUGNED LAND TO THE DVO . 11. WE HAVE HEARD RIVAL CONTENTIONS AND PERUSED THE RECORDS PLACED BEFORE US AND ALSO GONE THROUGH THE JUDGMENTS RELIE D BY THE LD. COUNSEL FOR THE ASSESSEE. THE ONLY ISSUE BEFORE US RAISED IN GROUND NO.3 OF THE ASSESSEES APPEAL IS THAT WHETHER THE B OTH LOWER AUTHORITIES WERE JUSTIFIED IN DECLINING THE REQUEST OF THE ASSESSEE FOR REFERRING VALUATION OF LAND TO THE DEPARTMENTAL VAL UATION OFFICER (IN SHORT DVO) AS PER SECTION 50C(2) OF THE ACT. 12. WE OBSERVE THAT ASSESSEE OWNED THE LAND AT GRAM -REVATI, TEHSIL-HATOD, DISTT. INDORE. THIS LAND MEASURING 3. 237 HECTARE WAS SOLD FOR A CONSIDERATION OF RS.2,45,00,000/-. THE A SSESSING OFFICER ADOPTED THE VALUE AS APPEARING IN THE CERTIFIED COP Y OF THE SALE DEED AT RS.4,67,18,000/-. DURING THE COURSE OF ASSESSMEN T PROCEEDINGS ASSESSEE FILED VALUATION REPORT ISSUED BY MR. PRAMO D SARAF AND SHRI D.K. JAIN VALUING THE IMPUGNED LAND AT RS.226.59 LA CS AND 225.00 LACS RESPECTIVELY. SINCE THERE WAS A DIFFERENCE IN MARKET VALUE OF LAND AS APPEARING IN THE REGISTERED SALE DEED, VALU ATION REPORT ISSUED BY MR. PRAMOD SARAF AND SHRI D.K. JAIN AND S ALE CONSIDERATION SHOWN BY ASSESSEE, REQUEST WAS MADE B Y THE ASSESSEE TO REFER THE MATTER TO DVO. SECTION 50C OF THE ACT READS AS FOLLOWS: SPECIAL PROVISION FOR FULL VALUE OF CONSIDERATION I N CERTAIN CASE. 50C. (1) WHERE THE CONSIDERATION RECEIVED OR ACCRUI NG AS A RESULT OF THE TRANSFER BY AN ASSESSEE OF A CAPITAL ASSET, BEING LAND OR BUILDING OR BOTH, IS LESS THAN THE VALUE AD OPTED OR ASSESSED [OR ASSESSABLE] BY ANY AUTHORITY OF A STAT E GOVERNMENT (HEREAFTER IN THIS SECTION REFERRED TO A S THE 'STAMP VALUATION AUTHORITY') FOR THE PURPOSE OF PAYMENT OF STAMP DUTY IN RESPECT OF SUCH TRANSFER, THE VALUE SO ADOPTED O R ASSESSED [OR ASSESSABLE] SHALL, FOR THE PURPOSES OF SECTION 48, BE DEEMED TO BE THE FULL VALUE OF THE CONSIDERATION RECEIVED OR ACCRUING AS A RESULT OF SUCH TRANSFER. (2) WITHOUT PREJUDICE TO THE PROVISIONS OF SUB-SEC TION (1), WHERE (A) THE ASSESSEE CLAIMS BEFORE ANY ASSESSING OFFIC ER THAT THE VALUE ADOPTED OR ASSESSED [OR ASSESSABLE] BY THE ST AMP VALUATION AUTHORITY UNDER SUB-SECTION (1) EXCEEDS T HE FAIR MARKET VALUE OF THE PROPERTY AS ON THE DATE OF TRAN SFER; (B) THE VALUE SO ADOPTED OR ASSESSED [OR ASSESSABL E] BY THE STAMP VALUATION AUTHORITY UNDER SUB-SECTION (1) HAS NOT BEEN DISPUTED IN ANY APPEAL 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 TH E CAPITAL ASSET TO A VALUATION OFFICER AND WHERE ANY SUCH REF ERENCE IS MADE, THE PROVISIONS OF SUB-SECTIONS (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 A CT, 1957 (27 OF 1957), SHALL, WITH NECESSARY MODI-FICATIONS, APP LY IN RELATION TO SUCH REFERENCE AS THEY APPLY IN RELATION TO A RE FERENCE MADE BY THE ASSESSING OFFICER UNDER SUB-SECTION (1) OF S ECTION 16A OF THAT ACT. [EXPLANATION 1].FOR THE PURPOSES OF THIS SECTION, 'VALUATION OFFICER' SHALL HAVE THE SAME MEANING AS IN CLAUSE ( R) OF SECTION 2 OF THE WEALTH-TAX ACT, 1957 (27 OF 1957). [EXPLANATION 2.FOR THE PURPOSES OF THIS SECTION, T HE EXPRESSION 'ASSESSABLE' MEANS THE PRICE WHICH THE STAMP VALUAT ION AUTHORITY WOULD HAVE, NOTWITHSTANDING ANYTHING TO T HE CONTRARY CONTAINED IN ANY OTHER LAW FOR THE TIME BEING IN FO RCE, ADOPTED OR ASSESSED, IF IT WERE REFERRED TO SUCH AUTHORITY FOR THE PURPOSES OF THE PAYMENT OF STAMP DUTY.] (3) SUBJECT TO THE PROVISIONS CONTAINED IN SUB-SECT ION (2), WHERE THE VALUE ASCERTAINED UNDER SUB-SECTION (2) EXCEEDS THE VALUE ADOPTED OR ASSESSED 88[OR ASSESSABLE] BY THE STAMP VALUATION AUTHORITY REFERRED TO IN SUB-SECTION (1), THE VALUE SO ADOPTED OR ASSESSED 88[OR ASSESSABLE] BY SUCH AUTHORITY SHALL BE TAKEN AS THE FULL VALUE OF THE CONSIDERATION RECEIVED OR ACC RUING AS A RESULT OF THE TRANSFER.] 13. FROM GOING THROUGH THE ABOVE PROVISION WE OBSER VE THAT AS PER SUB-SECTION 2(A) OF THE ACT IF THE ASSESSEE CLAIMS BEFORE ANY ASSESSING OFFICER THAT THE VALUE ADOPTED OR ASSESSE D BY THE STAMP VALUATION AUTHORITY UNDER SUB-SECTION (1) OF SECTIO N 50(C) EXCEEDS THE FAIR MARKET VALUE OF THE PROPERTY AS ON THE DAT E OF TRANSFER, THEN THE ASSESSING OFFICER MAY REFER THE VALUATION OF TH E CAPITAL ASSET TO A VALUATION OFFICER. THOUGH DURING THE COURSE OF HEAR ING LD. DR SUBMITTED THAT THE WORD USED MAY IN SECTION 50C(2 ) OF THE ACT MEANS THAT THE ASSESSING OFFICER HAS DESCRIPTION TO REFER OR NOT TO REFER THE MATTER TO THE VALUATION OFFICER. 14. WE HOWEVER, OBSERVE THAT IN THE RECENT DECISION OF THE COORDINATE BENCH MUMBAI IN THE CASE OF AAVISHKAR FILM (P.) LTD. VS. ITO,(SUPRA), SIMILAR ISSUE CAME FOR ADJUDICATION WHEREIN THE COORDINATE BENCH AFTER REFERRING TO THE JUDGMENTS O F HON'BLE HIGH COURTS HAS HELD THAT EVEN IF IN A CASE WHERE NO REQUEST IS MADE BY THE ASSESSEE TO MAKE A REFERENCE TO THE DVO, THE AS SESSING OFFICER WHILE DISCHARGING A QUASI-JUDICIAL FUNCTION IS DUTY -BOUND TO ACT FAIRLY BY GIVING THE ASSESSEE AN OPTION TO FOLLOW THE COUR SE PROVIDED BY LAW TO HAVE THE VALUATION MADE BY THE DVO . 15. THE RELEVANT PORTION OF THE DECISION OF MUMBAI TRIBUNAL IN THE CASE OF AAVISHKAR FILM (P.) LTD. VS. ITO,(SUPRA) IS REPRODUCED BELOW: WE HAVE CONSIDERED RIVAL SUBMISSIONS AND PERUSED THE M ATERIAL ON RECORD. WE HAVE ALSO APPLIED OUR MIND TO THE DECISION S RELIED UPON. THERE IS NO DISPUTE BETWEEN THE PARTIES WITH REGARD TO THE PRIMARY FACT THAT AS AGAINST DECLARED SALE CONSIDERATION OF R S 1.75 CRORE SHOWN BY THE ASSESSEE THE ASSESSING OFFICER HAS AD OPTED THE VALUE DETERMINED BY THE STAMP VALUATION AUTHORITY AT ` 2,5 1,45,500, AS DEEMED SALE CONSIDERATION UNDER SECTION 50C(1) OF THE ACT. AGAINST THE ADOPTION OF THE VALUE DETERMINED BY THE STAMP VAL UATION AUTHORITY AS DEEMED SALE CONSIDERATION, ASSESSEE'S AR GUMENT IS TWOFOLD. FIRSTLY, ON THE FACE OF OBJECTION RAISED BY THE ASSESSEE AGAINST ADOPTION OF STAMP DUTY VALUE, THE ASSESSING OFFICER SHOULD HAVE MADE A REFERENCE TO THE DVO FOR DETERMINING THE VALUE OF THE PROPERTY. SECONDLY, THE STAMP DUTY VALUATION CANNOT B E ADOPTED AS THE DEEMED SALE CONSIDERATION CONSIDERING THE FACT THA T THE PROPERTY WAS ENCUMBERED. INSOFAR AS THE FIRST CONTENTION OF THE ASSESSEE WITH REGARD TO MAKING A REFERENCE TO THE DVO IS CONCERNED , ON A SCHEMATIC INTERPRETATION OF SECTION 50C OF THE ACT AS A WHOLE, IT APPEARS THAT, THOUGH, UNDER SECTION 50C(1) OF THE ACT THE VALUE DETERMINED BY THE STAMP VALUATION AUTHORITY IS TO BE TREATED AS DEEMED SALE CONSIDERATION AND HAS TO BE SUBSTITUTED FOR THE DECLARED SALE CONSIDERATION, HOWEVER, IN A CASE WHERE THE ASS ESSEE OBJECTS TO ADOPTION OF STAMP DUTY VALUATION, AS PER SUB-SECTION (2) OF SECTION 50C OF THE ACT THE ASSESSING OFFICER IS REQUIRED TO MAKE A REFERENCE TO THE DVO FOR DETERMINING THE VALUE OF THE PROPERTY . NOW, THE ISSUE BEFORE US IS, WHETHER AS PER SECTION 50C(2) OF THE ACT, IT IS MANDATORY ON THE PART OF THE ASSESSING OFFICER TO MAKE A REFE RENCE TO THE DVO TO DETERMINE THE VALUE OF THE PROPERTY. IN OUR VIEW, ON A CAREFUL READING OF THE PROVISIONS CONTAINED UNDER SECTION 50C OF THE ACT AND THE LEGISLATIVE INTENT FOR ENACTING SUCH A PROVISION, I T BECOMES CLEAR THAT IN A CASE WHERE THE ASSESSEE OBJECTS TO THE ADOPTIO N OF STAMP DUTY VALUE AS THE DEEMED SALE CONSIDERATION, THE ASSESSING OFFICER IS DUTY BOUND TO MAKE A REFERENCE TO THE DVO FOR DETERMIN ING THE VALUE OF THE PROPERTY AND THEREAFTER PROCEED TO COMPUTE CAP ITAL GAIN BY FOLLOWING THE PROVISIONS OF SUB-SECTION (3) OF THE ACT. IN THE FACTS OF THE PRESENT APPEAL, UNDISPUTEDLY, IN THE COURSE OF A SSESSMENT PROCEEDINGS THE ASSESSEE HAS OBJECTED TO ADOPTION OF STAMP DUTY VALUE AS THE DEEMED SALE CONSIDERATION FOR WHATEVER M AY BE THE REASON. THAT BEING THE CASE, IT WAS THE DUTY OF THE ASSESSING OFFICER TO MAKE A REFERENCE TO THE DVO FOR DETERMINING THE V ALUE OF THE PROPERTY SOLD. THE CONTENTION OF THE DEPARTMENT THA T THE REFERENCE TO DVO WAS NOT MADE BECAUSE THE ASSESSEE RAISED THE OBJ ECTION BEFORE THE ASSESSING OFFICER PURPOSEFULLY AT THE FAG END TO SEE TO IT THAT THE PROCEEDING GETS BARRED BY LIMITATION, IN OUR VIEW, I S UNACCEPTABLE. FURTHER, AT THE FIRST APPELLATE STAGE ALSO LEARNED COMMISSIONER (APPEALS) COULD HAVE DIRECTED THE ASSESSING OFFICER T O GET THE VALUATION OF THE PROPERTY DONE BY THE DVO AND THEREA FTER PROCEEDED IN ACCORDANCE WITH LAW. IN CASE OF S. MUTHURAJA V/S CIT, [2014] 369 ITR 483 (MAD.), THE HON'BLE MADRAS HIGH COURT HAS H ELD THAT WHERE THE ASSESSEE OBJECTS TO THE ADOPTION OF STAMP DUTY V ALUATION AS DEEMED SALE CONSIDERATION DURING THE ASSESSMENT PROCEED INGS, THE ASSESSING OFFICER IS DUTY BOUND TO MAKE A REFERENCE T O THE DVO TO DETERMINE THE VALUE OF THE PROPERTY AS PER SECTION 50C(2) OF THE ACT. THE OTHER DECISIONS CITED BY THE LEARNED AUTHORISED REP RESENTATIVE ALSO EXPRESS SIMILAR VIEW. IN FACT, THE HON'BLE CAL CUTTA HIGH COURT IN SUNIL KUMAR AGARWAL V/S CIT, [2015] 372 ITR 83 (CAL.) , HAVE GONE A STEP FURTHER TO OBSERVE THAT VALUATION BY THE DVO I S CONTEMPLATED UNDER SECTION 50C OF THE ACT TO AVOID MISCARRIAGE OF JUSTICE. IT WAS HELD THAT WHEN THE LEGISLATURE HAS TAKEN CARE TO PR OVIDE ADEQUATE MACHINERY TO GIVE A FAIR TREATMENT TO THE TAX PAYER , THERE IS NO REASON WHY THE MACHINERY PROVIDED BY THE LEGISLATURE SHOULD NOT BE USED AND THE BENEFIT THEREOF SHOULD BE REFUSED. THE HON 'BLE COURT HAS OBSERVED THAT EVEN IN A CASE WHERE NO REQUEST IS MADE BY THE ASSESSEE TO MAKE A REFERENCE TO THE DVO, THE ASSESS ING OFFICER WHILE DISCHARGING A QUASI JUDICIAL FUNCTION IS DUTY BOUND TO ACT FAIRLY BY GIVING THE ASSESSEE AN OPTION TO FOLLOW THE COURSE PROVIDED BY LAW TO HAVE THE VALUATION MADE BY THE DVO. THE ASSESSEE'S CASE STANDS IN A MUCH BETTER FOOTING AS IN THE COURSE OF ASSESSMEN T PROCEEDINGS, THE ASSESSEE HAD OBJECTED TO ADOPTION OF STAMP DUTY V ALUE AS THE DEEMED SALE CONSIDERATION. THUS, IN SUCH CIRCUMSTANCES , IN OUR CONSIDERED OPINION, THE ASSESSING OFFICER SHOULD HAVE FOLLOWED THE MANDATE OF SUB-SECTION (2) OF SECTION 50C OF THE ACT BY MAKING A REFERENCE TO THE DVO TO DETERMINE THE VALUE OF THE PROPERTY SOLD. THE ASSESSING OFFICER HAVING NOT DONE SO AND THE LEARNED C OMMISSIONER (APPEALS) ALSO FAILING TO RECTIFY THE ERROR COMMITT ED BY THE ASSESSING OFFICER, WE HAVE NO HESITATION IN RESTORING THE IS SUE TO THE ASSESSING OFFICER WITH A DIRECTION TO MAKE A REFERENCE TO THE DVO TO DETERMINE THE VALUE OF THE PROPERTY SOLD IN TERMS OF SECTION 50C(2) OF THE ACT AND THEREAFTER PROCEED TO COMPUTE CAPITAL GAIN IN AC CORDANCE WITH LAW. IN VIEW OF OUR DECISION HEREIN ABOVE, WE DO NOT INTEND TO DELVE INTO THE OTHER ASPECT OF THE ISSUE RELATING TO THE ACTUAL VALUE OF THE PROPERTY ON ACCOUNT OF CERTAIN PREVAILING CONDITION S LIKE ENCUMBRANCE, ETC. ALL THESE ISSUES ARE AVAILABLE TO THE ASSESSEE FOR AGITATING IN THE COURSE OF PROCEEDINGS BEFORE THE D VO. WITH THE AFORESAID OBSERVATIONS, WE SET ASIDE THE IMPUGNED OR DER OF LEARNED COMMISSIONER (APPEALS) AND RESTORE THE ISSUE TO THE ASSESSING OFFICER FOR FRESH ADJUDICATION IN TERMS OF OUR DIREC TION HEREIN ABOVE. GROUNDS ARE ALLOWED FOR STATISTICAL PURPOSES. 16. WE, THEREFORE, IN THE GIVEN FACTS AND CIRCUMSTA NCES OF THE CASE AND RESPECTFULLY FOLLOWING THE DECISION OF THE COOR DINATE BENCH, MUMBAI IN THE CASE OF AAVISHKAR FILM (P.) LTD. VS. ITO,(SUPRA), ARE OF THE CONSIDERED VIEW THAT IN THE INSTANT CASE, FACTS ARE SAME WHEREIN ASSESSEE CHALLENGED THE FAIR MARKET VALUE ADOPTED B Y THE ASSESSING OFFICER DURING THE COURSE OF ASSESSMENT PROCEEDING ITSELF AND MADE A REQUEST FOR REFERRING THE MATTER OF THE VALUATION TO DVO WHICH WAS NOT ACCEPTED. WE, THUS, SET ASIDE THE ISSUE RAI SED IN GROUND NO.3 TO THE FILE OF THE LD. AO WITH A DIRECTION THA T THE ASSESSING OFFICER WILL REFER THE MATTER OF VALUATION OF THE I MPUGNED LAND TO THE DVO AND AFTER RECEIVING THE VALUATION REPORT DECIDE ACCORDINGLY AS PER THE PROVISIONS OF LAW. GROUND NO.3 OF THE ASSES SEES APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. 17. IN THE RESULT APPEAL OF THE ASSESSEE IS PARTLY ALLOWED FOR STATISTICAL PURPOSES. THE ORDER PRONOUNCED IN THE OPEN COURT ON 29.01.2 020. SD/- SD/- ( KUL BHARAT) (MANISH BORAD) JUDICIAL MEMBER ACCOUNTANT MEMBER / DATED : 29 TH JANUARY, 2020 PATEL/PS COPY TO: THE APPELLANT/RESPONDENT/CIT CONCERNED/CIT (A) CONCERNED/ DR, ITAT, INDORE/GUARD FILE. BY ORDER, ASSTT.REGISTRAR, I.T.A.T., INDORE