Shri Govind Ganpatlal Thakkar, Ahmedabad V. The ACIT (OSD), Circle-10, Ahmedabad

ITA 403/AHD/2016

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 2420 (ITAT-AHMEDABAD)
• Duration Of Justice: 5 year(s) 8 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-10-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 12-02-2020
• Assessment Year: 2011-2012
• Appeal Filed On: 22-02-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S S SHUKLA
• Assessee Lawyers: A C SHAH
• Keywords: Sale consideration of property below Jantri Value; Capital asset; Cost of acquisition; Fair market value; Valuation report; TDS; Set aside; Capital Gains; FORM 26AS
• Section: 143(3); 50C; 194C; 48; 194A

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL, A BENCH, AHMEDABAD (CONDUCTED THROUGH VIRTUAL COURT AT AHMEDABAD) BEFORE SHRI RAJPAL YADAV, VICE PRESIDENT AND SHRI WASEEM AHMED, ACCOUNTANT MEMBER ./ ITA NO. 403/AHD/2016 / ASSTT. YEAR: 2011-2012 GOVIND GANPATLAL THAKKAR, B-204, KRISHNA COMPLEX, BODEKDEV, AHMEDABAD-380054. PAN: AAAHT8273L VS. A.C.I.T(OSD), CIRCLE-10, AHMEDABAD. (APPLICANT) ( RESPON D ENT ) ASSESSEE BY : SHRI A.C. SHAH, A.R REVENUE BY : SHRI S.S. SHUKLA, SR.D.R /DATE OF HEARING : 13/08/2021 /DATE OF PRONOUNCEMENT: 28/10/2021 /O R D E R PER WASEEM AHMED, ACCOUNTANT MEMBER: THE CAPTIONED APPEAL HAS BEEN FILED AT THE INSTANCE OF THE ASSESSEE AGAINST THE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS)-5, AHMEDABAD, DATED 13/01/2016 ARISING IN THE MATTER OF ASSESSMENT ORDER PASSED UNDER S. 143(3) OF THE INCOME TAX ACT, 1961 (HERE-IN-AFTER REFERRED TO AS 'THE ACT') RELEVANT TO THE ASSESSMENT YEAR 2011-2012. ITA NO.403/AHD/2016 ASSTT. YEAR 2011-12 2 2. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL: 1. THE LEARNED CIT(A) ERRED IN CONFIRMING THE ADDITION OF RS.11,87,796/ ON ACCOUNT OF MISMATCH BETWEEN THE TDS AND INCOME SHOWN IN AS MUCH AS IT IS DULY RECONCILED. 2. THE LEARNED CIT(A) HAS ERRED IN CONFIRMING THE ADDITION OF RS.39,68,928/- UNDER SECTION 50C IN AS MUCH AS THE ASSESSEE HAS NOT SOLD ANY GODOWN AND THAT THERE IS NO DOCUMENT ON WHICH THE STAMP DULY PAID IS MENTIONED STATING THE SALE PRICE. 3. THE 1 ST ISSUE RAISED BY THE ASSESSEE IS THAT THE LEARNED CIT (A) ERRED IN CONFIRMING THE ADDITION MADE BY THE AO FOR RS. 11,87,796/- REPRESENTING THE DIFFERENCE IN THE GROSS AMOUNT OF INCOME SHOWN IN THE BOOKS OF ACCOUNTS VIZ A VIZ IN FORM 26AS ISSUED BY THE REVENUE. 4. THE FACTS IN BRIEF ARE THAT THE ASSESSEE IN THE PRESENT CASE IS AN INDIVIDUAL AND ENGAGED IN THE BUSINESS OF TRADING OF PVC RAW MATERIAL. THE AO DURING THE ASSESSMENT PROCEEDINGS FOUND THAT THE GROSS AMOUNT OF INCOME SHOWN BY THE ASSESSEE UNDER DIFFERENT HEADS SUCH AS INTEREST, CONTRACTUAL RECEIPT AND THE COMMISSION IN THE BOOKS OF ACCOUNTS DOES NOT MATCH WITH THE GROSS INCOME REPORTED IN THE FORM 26AS ISSUED BY THE REVENUE. THE NECESSARY DETAILS OF THE DIFFERENCE BETWEEN THE GROSS INCOME SHOWN BY THE ASSESSEE VIZ A VIZ INCOME SHOWN IN FORM 26AS ISSUED BY THE REVENUE STAND AS UNDER: I II III IV SECTION DISCLOSED IN ITS AS PER RETURN INCOME NOT DISCLOSED 194A 6,76,888 3,68,233 3,08,655 194C 2,39,466 0 2,39,466 194H 59,03,613 52,63,938 6,39,675 4.1 ON QUESTION BY THE AO, THE ASSESSEE WITH RESPECT TO THE COMMISSION INCOME SUBMITTED THAT HE HAS BEEN RAISING THE INVOICE TO HIS CLIENTS AFTER CHARGING THE AMOUNT OF SERVICE TAX. HOWEVER THE CLIENTS HAVE DEDUCTED THE TDS UNDER SECTION 194H OF THE ACT ON THE AMOUNT INCLUSIVE OF SERVICE TAX. THEREFORE, THERE IS THE DIFFERENCE ARISING BETWEEN THE INCOME SHOWN IN THE BOOKS VIZ A VIZ INCOME SHOWN IN THE FORM 26AS ISSUED BY THE REVENUE AS FAR AS COMMISSION INCOME IS CONCERN. ITA NO.403/AHD/2016 ASSTT. YEAR 2011-12 3 4.2 LIKEWISE, THE ASSESSEE SUBMITTED THAT HE HAS NOT DONE ANY CONTRACTUAL JOB REQUIRING THE PARTIES TO DEDUCT THE TDS UNDER SECTION 194C OF THE ACT. HOWEVER ONE OF THE PARTY NAMELY M/S CHEMPLAST SANMAR LTD. HAS WRONGLY DEDUCTED THE TDS UNDER SECTION 194C AS WELL AS UNDER SECTION 194H OF THE ACT WITH RESPECT TO FEW OF THE BILLS. THEREFORE HE ONLY CONSIDER THE INCOME AS PER 194H OF THE ACT AND CLAIMED THE TAX CREDIT OF AMOUNT DEDUCTED UNDER SECTION 194H ONLY. LIKEWISE, THE ASSESSEE HAS MADE THE SUPPLY OF THE GOODS TO CUSTOMER AND THE SALE BILL ISSUED FOR SUPPLY THE GOODS TO THE PARTY INCLUDE FREIGHT FORWARDING CHARGES WHICH WAS CONSIDERED AS SALE IN THE BOOKS OF ACCOUNT AND VAT WAS PAID ACCORDINGLY. HOWEVER ONE PARTY NAMELY NIRMA LTD. DEDUCTED TAX ON AMOUNT OF FREIGHT FORWARDING CHARGES. THUS THERE IS NO DIFFERENCE IN INCOME AS THE SAME HAS BEEN INCLUDED IN THE SALES. AS SUCH THE PARTY, NAMELY NIRMA LTD WAS NOT UNDER THE OBLIGATION TO DEDUCT THE TDS ON SUCH FREIGHT EXPENSES AS THE TRANSACTION ON HAND WAS PURE SALES IN NATURE. 4.3 SIMILARLY THE ASSESSEE SUBMITTED THAT INTEREST WAS DEBITED TO THE ACCOUNT OF CERTAIN PARTIES WHICH DELAYED THE PAYMENT AGAINST THE SUPPLY OF GOODS. HOWEVER, ON A LATER DATE THE ASSESSEE HAS WAIVED OF SUCH AMOUNT OF INTEREST BY PROVIDING DISCOUNT. BUT THE OTHER PARTIES HAVE WRONGLY DEDUCTED THE TDS ON SUCH AMOUNT OF INTEREST. 4.4 BESIDES THE ABOVE, THE ASSESSEE ALSO CONTENDED THAT HE HAS NOT CLAIMED ANY BENEFIT OF THE TDS WHICH WAS NOT SHOWN AS INCOME IN HIS BOOKS OF ACCOUNTS. 4.5 HOWEVER, THE AO DISAGREED WITH THE CONTENTION OF THE ASSESSEE BY OBSERVING THAT THE EXPLANATION FURNISHED BY THE ASSESSEE WAS NOT SUPPORTED BY ANY CORROBORATIVE EVIDENCE. ACCORDINGLY, THE AO TREATED THE AMOUNT OF DIFFERENCE OF RS. 11,87,796/- BETWEEN THE INCOME SHOWN IN THE BOOKS OF ACCOUNTS VIZ A VIZ THE INCOME RECORDED BY THE REVENUE IN FORM 26AS AS INCOME AND ADDED THE SAME TO THE TOTAL INCOME OF THE ASSESSEE. ITA NO.403/AHD/2016 ASSTT. YEAR 2011-12 4 5. AGGRIEVED ASSESSEE PREFERRED AN APPEAL TO THE LEARNED CIT (A) WHO HAS ALSO CONFIRMED THE ORDER OF THE AO BY OBSERVING AS UNDER: 7.3 I HAVE CONSIDERED THE FACTS OF THE CASE AND SUBMISSION MADE BY THE APPELLANT. THE AO HAS NOTICED THAT THE ASSESSEE HAS RECEIVED INCOME FROM VARIOUS PARTIES ON WHICH TDS HAS BEEN DEDUCTED U/S.194A, 194C AND 194H AND THE ASSESSEE HAS NOT OFFERED COMMENSURATE INCOME DURING THE YEAR. THE AO HAS CALLED FOR THE DETAILS FROM THE ASSESSEE AND AFTER CONSIDERING THE SUBMISSION OF THE ASSESSEE, THE AO HAS MADE ADDITION OF RS.11,87,796/- ON THE GROUND THAT NO SUFFICIENT EVIDENCES PUT-FORTH BY THE ASSESSEE. 7.4 DURING THE COURSE OF APPELLATE PROCEEDINGS, THE APPELLANT HAS CONTENDED THAT THE RECONCILIATION STATEMENT ALONGWITH THE COPY OF LEDGER ACCOUNT ON THE BASIS OF AIR NATION IS ENCLOSED AND FROM THE SAID RECONCILIATION STATEMENT IT MAY PLEASE BE SEEN I IS DULY RECONCILED AND THEREFORE THE QUESTION OF ANY ADDITION DOESN'T ARISE. 7.5 THE FACTS OF THE CASE AND CONTENTIONS OF THE APPELLANT ARE CONSIDERED. THE APPELLANT HAS MADE THE SAME SUBMISSION WHICH WAS MADE BEFORE THE A.O. DURING THE ASSESSMENT PROCEEDINGS. THE DETAILS FURNISHED BY THE APPELLANT WERE DULY CONSIDERED BY THE AO DURING THE ASSESSMENT PROCEEDINGS AND AS THE APPELLANT FAILED TO FULLY RECONCILE, A.O HAS MADE THE ADDITION WHICH IS JUSTIFIED AND THE SAME IS CONFIRMED. THUS THE MD OF APPEAL IS DISMISSED. 6. BEING AGGRIEVED BY THE ORDER OF THE LEARNED CIT (A), THE ASSESSEE IS IN APPEAL BEFORE US. 7. THE LEARNED AUTHORIZED REPRESENTATIVE BEFORE US FILED TWO PAPER BOOKS RUNNING FROM PAGES 1 TO 46 AND 1 TO 17 AND CONTENDED THAT THE ASSESSEE HAS FURNISHED THE RECONCILIATION STATEMENT AS PER AIR INFORMATION AND THE COPIES OF THE LEDGERS WHICH ARE PLACED ON PAGES 1 TO 37 OF THE 2 ND PAPER BOOK. BUT NONE OF THE AUTHORITIES BELOW HAS MADE ANY REFERENCE TO SUCH DETAILS NEITHER POINTED OUT ANY MISTAKE IN SUCH DETAILS. HOWEVER, THE LEARNED AR REQUESTED TO RESTORE THE ISSUE TO THE FILE OF THE AO FOR FRESH ADJUDICATION AFTER MAKING REFERENCE TO THE RECONCILIATION STATEMENT AVAILABLE ON RECORD AS PER THE PROVISIONS OF LAW. 8. ON THE OTHER HAND THE LEARNED DR DID NOT RAISE ANY OBJECTION IF THE MATTER IS SET ASIDE TO THE FILE OF THE AO FOR FRESH ADJUDICATION AFTER CONSIDERING THE RECONCILIATION STATEMENT FILED BY THE ASSESSEE AND AS PER THE PROVISIONS OF LAW. HOWEVER THE LEARNED DR VEHEMENTLY SUPPORTED THE ORDER OF THE AUTHORITIES BELOW. ITA NO.403/AHD/2016 ASSTT. YEAR 2011-12 5 9. WE HAVE HEARD THE RIVAL CONTENTIONS OF BOTH THE PARTIES AND PERUSED THE MATERIALS AVAILABLE ON RECORD. ADMITTEDLY, THERE WAS THE DIFFERENCE BETWEEN THE INCOME SHOWN FROM 26AS VIZ A VIZ INCOME SHOWN IN THE BOOKS OF ACCOUNTS. HOWEVER, SUCH DIFFERENCE WERE DULY EXPLAIN BY THE ASSESSEE IN THE RECONCILIATION STATEMENT AVAILABLE ON RECORD. BUT ON PERUSAL OF THE ORDER OF THE AUTHORITIES BELOW, WE NOTE THAT SUCH RECONCILIATION STATEMENT WAS NOT CONSIDERED BY THEM. TO OUR MIND, THE CONSIDERATION OF THE IMPUGNED RECONCILIATION STATEMENT IS NECESSARY TO PUT AN END ON THE ONGOING DISPUTE. ACCORDINGLY, WE ARE INCLINED TO RESTORE THE ISSUE TO THE FILE OF THE AO FOR FRESH ADJUDICATION AS PER THE PROVISIONS OF LAW AND AFTER CONSIDERING THE RECONCILIATION STATEMENT FILED BY THE ASSESSEE. HENCE THE GROUND OF APPEAL OF THE ASSESSEE IS ALLOWED FOR THE STATISTICAL PURPOSES. 10. THE 2 ND ISSUE RAISED BY THE ASSESSEE IS THAT THE LEARNED CIT (A) ERRED IN CONFIRMING THE ORDER OF THE AO BY SUSTAINING THE ADDITION OF 39,68,928/- UNDER THE PROVISIONS OF SECTION 50C OF THE ACT. 11. THE ASSESSEE ACQUIRED A GODOWN VIDE AGREEMENT DATED 18 TH AUGUST 2001 WHICH WAS TITLES AS POSSESSION AGREEMENT WITH MONEY RECEIPT. THE ASSESSEE HAS SOLD SUCH GODOWN IN THE YEAR UNDER CONSIDERATION AGAINST THE SALE CONSIDERATION OF 3,31,000/-ONLY. THE AGREEMENT TO SELL WAS TITLED AS AGREEMENT TO SALE WITH POSSESSION, WAS EXECUTED ON THE STAMP PAPER OF RS. 100/- ONLY WHICH WAS ALSO REGISTERED WITH THE SUB REGISTRAR. 11.1 HOWEVER THE AO ON ENQUIRY FOUND THAT THE JANTRY VALUE OF THE PROPERTY FOR THE PURPOSE OF STAMP DUTY STANDS AT RS. 40,550/- PER SQUARE METRES WHEREAS THE ASSESSEE HAS SHOWN THE SALE CONSIDERATION AT MUCH LESS VALUE. ON QUESTION BY THE AO FOR ADOPTING THE SALE CONSIDERATION EQUAL TO THE JANATRY/STAMP VALUE AS PER THE PROVISION OF SECTION 50C OF THE ACT, THE ASSESSEE FILED THE VALUATION REPORT WHEREIN THE PROPERTY WAS VALUED AT 3,20,000/- ONLY. ITA NO.403/AHD/2016 ASSTT. YEAR 2011-12 6 11.2 BESIDES THE ABOVE, THE ASSESSEE ALSO CONTENDED THAT THE IMPUGNED GODOWN IS LOCATED IN THE UNAUTHORIZED AREA AND THE TITLE OF THIS IS ALSO NOT CLEAR. THE AGREEMENT WAS ALSO EXECUTED AT STAMP DUTY OF RS. 100/- WHICH WAS ALSO ACCEPTED BY THE REGISTRAR OF PROPERTIES AT THE TIME OF REGISTRATION OF SUCH AGREEMENT. THUS, THE ASSESSEE CONTENDED THAT THE SALE CONSIDERATION CANNOT BE VALUED FOR THE PURPOSE OF STAMP DUTY AND THEREFORE THE SALES DECLARED AT 3,31,000/- SHOULD BE ADOPTED FOR THE PURPOSE OF CAPITAL GAIN. 11.3 HOWEVER, THE AO DISAGREED THE CONTENTION OF THE ASSESSEE BY OBSERVING THAT THE ASSESSEE HAS HANDED OVER THE POSSESSION OF THE GODOWN TO THE BUYER AGAINST THE RECEIPT OF THE PAYMENT. THEREFORE SUCH TRANSACTION FOR THE SALE OF THE PROPERTY IS A VALID TRANSFER WITHIN THE MEANING OF THE PROVISIONS PROVIDED UNDER SECTION 2(47) OF THE ACT READ WITH SECTION 53A OF TRANSFER OF PROPERTY ACT. 11.4 THE VALUATION REPORT FURNISHED BY THE ASSESSEE SUFFERS FROM CERTAIN INFIRMITIES INSOFAR VARIOUS COLUMNS OF THE REPORTS WERE EITHER SHOWN AS NO OR NA. THUS IT APPEARS THAT THE VALUATION REPORT HAS NOT BEEN PREPARED ON SCIENTIFIC BASIS. IT ALSO APPEARS THAT THE VALUER HAS NOT VISITED THE PROPERTY. LIKEWISE IN THE VALUATION REPORT THERE WAS NO INFORMATION IN RESPECT TO THE METHODOLOGY ADOPTED FOR THE VALUATION, LAND AREA, DIRECTORIAL DETAILS OF THE EAST-WEST NORTH-SOUTH, COMPOUND WALLS, GATES, VALUE, CIVIL WORKS AND OTHER RELEVANT DETAILS. FURTHERMORE, AS PER THE AGREEMENT TO SALE THE AREA OF THE PROPERTY STANDS AT 123.12 YD EQUAL TO 102.94 SQ MTRS WHICH HAS BEEN TAKEN AS 123.12 SQ. MTRS WHICH IS FACTUALLY INCORRECT. THUS VALUATION REPORT NOT WAS RELIED UPON BY THE AO. 11.5 IN VIEW OF THE ABOVE THE AO INVOKED THE PROVISIONS OF SECTION 50C OF THE ACT AND VALUED THE PROPERTY AT 41,74,217/- FOR THE PURPOSE OF THE COMPUTATION OF LONG-TERM CAPITAL GAIN. 12. AGGRIEVED ASSESSEE PREFERRED AN APPEAL TO THE LEARNED CIT (A). ITA NO.403/AHD/2016 ASSTT. YEAR 2011-12 7 13. THE ASSESSEE BEFORE THE LEARNED CIT (A) SUBMITTED THAT THE AGREEMENT TO SALE WAS EXECUTED ON THE STAMP PAPER OF RS. 100/- ONLY WHICH WAS ALSO REGISTERED WITH SUB- REGISTRAR. AS SUCH THE AGREEMENT TO SALE EXECUTED ON RS. 100 STAMP PAPER WAS ACCEPTED BY THE SUB- REGISTRAR FOR THE REASON THAT TITLE OF THE PROPERTY WAS NOT CLEAR AND IT WAS CONSTRUCTED IN UN-AUTHORIZED MANNER. THEREFORE BOTH THE PURCHASE AGREEMENT AND SALE AGREEMENT WAS MADE ON THE BASIS OF AGREEMENT TO SALE. AS SUCH NO REGULAR SALE DEED WAS EXECUTED. 13.1 THUS THE STAMP VALUE FOR THE PURPOSE OF STAMP DUTY CONSTITUTE RS. 100/- WHICH IS MUCH LESS THAN THE SALE PRICE AT WHICH THE AGREEMENT TO SALE WAS REGISTERED. IN OTHER WORDS THE SALE PRICE WAS RECEIVED BY THE ASSESSEE AT RS. 3,31,000/- WHICH IS MORE THAN THE STAMP VALUE. ACCORDINGLY, THE SALE CONSIDERATION OF RS. 3,31,000/- SHOULD BE ADOPTED FOR THE PURPOSE OF COMPUTING THE LONG-TERM CAPITAL GAIN. 13.2 HOWEVER THE LEARNED CIT (A) DISAGREED WITH THE CONTENTION OF THE ASSESSEE BY OBSERVING THAT THE STAMP VALUE AS DETERMINED FOR THE PURPOSE OF STAMP DUTY SHALL BE TAKEN AS THE SALE CONSIDERATION IN PURSUANCE TO THE PROVISIONS OF SECTION 50C OF THE ACT. THUS THE LEARNED CIT (A) UPHELD THE ORDER OF THE AO. 14. BEING AGGRIEVED BY THE ORDER OF LEARNED CIT (A), THE ASSESSEE IS IN APPEAL BEFORE US. 15. THE LEARNED AR BEFORE US CONTENDED THAT THAT THE PROPERTY IN DISPUTE WAS UNAUTHORIZED AND THEREFORE THE SAME CANNOT BE SUBJECT MATTER OF DISPUTE UNDER THE PROVISIONS OF SECTION 50C OF THE ACT. IT WAS FURTHER CONTENDED THAT THE LAND IN THE REVENUE RECORDS WAS REGISTERED AS AGRICULTURAL LAND. FOR THIS REASON AS WELL, THE IMPUGNED PROPERTY CANNOT BE SUBJECTED TO THE PROVISIONS OF SECTION 50C OF THE ACT. 16. ON THE CONTRARY THE LEARNED DR BEFORE US CONTENDED THAT THERE IS NO GROUND BY THE ASSESSEE SUGGESTING THAT THE LAND IN QUESTION IS AN AGRICULTURAL LAND. ITA NO.403/AHD/2016 ASSTT. YEAR 2011-12 8 THEREFORE SUCH PLEA OF THE LEARNED AR CANNOT BE ENTERTAINED. LIKEWISE, THE OWNERSHIP OF THE IMPUGNED PROPERTY HAS NOT BEEN DISPUTED BY THE ASSESSEE. ACCORDINGLY, THE SALE CONSIDERATION HAS TO BE DETERMINED IN THE MANNER AS PROVIDED UNDER SECTION 50C OF THE ACT. THE LEARNED DR VEHEMENTLY SUPPORTED THE ORDER OF THE AUTHORITIES BELOW. 17. WE HAVE HEARD THE RIVAL CONTENTIONS OF BOTH THE PARTIES AND PERUSED THE MATERIALS AVAILABLE ON RECORD. IN THE PRESENT CASE THE ASSESSEE VIDE AGREEMENT DATED 18 AUGUST 2001 HAS ACQUIRED GODOWNS NUMBERS 108 AND 109 IN MAHALAXMI ESTATE, REVENUE SURVEY NO. 259 SITUATED AT MAUJE VILLAGE OKAF-SARKHEJ, TALUKA CITY, DISTRICT AHMADABAD FOR A VALUE OF 1,23,000/- ONLY. THE ASSESSEE ON PURCHASE OF THE SAID PROPERTY WAS ENJOYING THE POSSESSION OF THE PROPERTY. THE IMPUGNED PROPERTY WAS DESCRIBED AS PUCCA CONSTRUCTION WORKS OF BRICKS, CEMENT ETC. THE ASSESSEE HAS SOLD SUCH PROPERTY IN THE YEAR UNDER CONSIDERATION FOR 3,31,000/- VIDE AGREEMENT TO SALE WITH POSSESSION DATED 1 ST SEPTEMBER 2010. THE AGREEMENT TO SALE WITH POSSESSION WAS REGISTERED ON THE STAMP PAPER OF RS. 100/- ONLY. 17.1 THE LAW RELATING TO TRANSFER AND THE YEAR OF TAXABILITY OF CAPITAL GAINS ON TRANSFER OF IMMOVABLE PROPERTY, CAN BE UNDERSTOOD FROM THE DEFINITION OF 'TRANSFER' CONTAINED IN SECTION 2(47) OF THE ACT WHICH IS REPRODUCED BELOW: ( 47) 'TRANSFER', IN RELATION TO A CAPITAL ASSET, INCLUDES, (I ) THE SALE, EXCHANGE OR RELINQUISHMENT OF THE ASSET ; OR (II ) THE EXTINGUISHMENT OF ANY RIGHTS THEREIN ; OR (III ) THE COMPULSORY ACQUISITION THEREOF UNDER ANY LAW ; OR (IV ) IN A CASE WHERE THE ASSET IS CONVERTED BY THE OWNER THEREOF INTO, OR IS TREATED BY HIM AS, STOCK-IN-TRADE OF A BUSINESS CARRIED ON BY HIM, SUCH CONVERSION OR TREATMENT ;OR (IVA ) THE MATURITY OR REDEMPTION OF A ZERO COUPON BOND; OR] (V ) ANY TRANSACTION INVOLVING THE ALLOWING OF THE POSSESSION OF ANY IMMOVABLE PROPERTY TO BE TAKEN OR RETAINED IN PART PERFORMANCE OF A CONTRACT OF THE NATURE REFERRED TO IN SECTION 53A OF THE TRANSFER OF PROPERTY ACT, 1882 (4 OF 1882) ; OR (VI ) ANY TRANSACTION (WHETHER BY WAY OF BECOMING A MEMBER OF, OR ACQUIRING SHARES IN, A CO - OPERATIVE SOCIETY, COMPANY OR OTHER ASSOCIATION OF PERSONS OR BY WAY OF ANY AGREEMENT OR ANY ARRANGEMENT OR IN ANY OTHER MANNER WHATSOEVER) WHICH HAS THE EFFECT OF TRANSFERRING, OR ENABLING THE ENJOYMENT OF, ANY IMMOVABLE PROPERTY.' ITA NO.403/AHD/2016 ASSTT. YEAR 2011-12 9 17.2 FROM THE ABOVE, IT CAN BE SEEN THAT THE CLAUSE (V) MAINLY DEALS WITH THE TRANSACTION INVOLVING THE ALLOWABILITY OF THE POSSESSION RETAINED IN PART PERFORMANCE OF THE CONTRACT OF THE NATURE REFERRED TO IN SECTION 53A OF THE TRANSFER OF PROPERTY ACT, 1888 (TOPA). THE PROVISIONS OF SECTION 53A OF THE TRANSFER OF PROPERTY ACT PROVIDES THAT IN ORDER TO CONSTITUTE 'TRANSFER' WITHIN THE MEANING OF THE INCOME- TAX ACT, THE TRANSACTION SHOULD SATISFY THE FOLLOWING CONDITIONS: ( A ) THERE SHOULD BE A CONTRACT IN WRITING SIGNED BY BOTH THE PARTIES FROM WHICH TERMS NECESSARY TO CONSTITUTE THE TRANSFER CAN BE ASCERTAINED. ( B ) TRANSFEREE HAS TAKEN POSSESSION OF THE PROPERTY. ( C ) TRANSFEREE HAS PERFORMED OR IS WILLING TO PERFORM HIS PART OF HIS CONTRACT. ( D ) THE CONTRACT THAT IS REQUIRED TO BE REGISTERED. ( E ) THE TRANSFEROR SHALL BE DEBARRED FROM CLAIMING ANY RIGHT IN RESPECT OF THE PROPERTY IN POSSESSION OF TRANSFEREE. 17.3 IF THE ABOVE CONDITIONS ARE SATISFIED, SUCH TRANSACTION WOULD CONSTITUTE TRANSFER WITHIN THE MEANING OF INCOME-TAX ACT. IN THE PRESENT CASE, ALL THE CONDITIONS AS DISCUSSED ABOVE HAVE BEEN SATISFIED. THERE IS NO DISPUTE TO THIS EFFECT AS WELL FOR THE REASON THAT THE ASSESSEE HIMSELF HAD DISCLOSED THE INCOME ON THE TRANSFER OF IMPUGNED CAPITAL ASSET. 17.4 THE PROVISION OF SECTION 48 OF THE ACT PROVIDES THE MANNER TO COMPUTE THE INCOME CHARGEABLE UNDER THE HEAD 'CAPITAL GAINS', BY DEDUCTING FROM THE FULL VALUE OF THE CONSIDERATION 52 RECEIVED OR ACCRUING 52 AS A RESULT OF THE TRANSFER OF THE CAPITAL ASSET THE COST OF ACQUISITION OF THE CAPITAL ASSET. HOWEVER, THE FULL VALUE OF CONSIDERATION WITH RESPECT TO CAPITAL ASSET BEING LAND AND BUILDING IS SUBJECT TO THE PROVISIONS OF SECTION 50C OF THE ACT. THE PROVISIONS OF SECTION 50C OF THE ACT REQUIRES THAT FULL VALUE OF SALE CONSIDERATION OF CAPITAL ASSET BEING LAND, BUILDING OR BOTH IF IS LESS THAN THE VALUE DETERMINED FOR THE PURPOSE OF STAMP DUTY, THEN THE STAMP VALUE SHALL BE TAKEN AS SALES CONSIDERATION UNDER THE PROVISIONS OF SECTION 48 OF THE ACT. ITA NO.403/AHD/2016 ASSTT. YEAR 2011-12 10 17.5 ADMITTEDLY, THE CAPITAL ASSET WAS TRANSFERRED BY THE ASSESSEE IN THE YEAR UNDER CONSIDERATION THROUGH THE AGREEMENT TO SALE WITH POSSESSION. ALL THE CONDITIONS OF SECTION 53A OF THE ACT HAVE BEEN DULY SATISFIED. THEREFORE, IN OUR CONSIDERED VIEW THE PROVISIONS OF SECTION 50C OF THE ACT SHALL BE APPLICABLE FOR COMPUTING THE CAPITAL GAIN. 17.6 IN THE PRESENT CASE THE PROPERTY HAS BEEN TRANSFERRED BY WAY OF AN AGREEMENT AS DISCUSSED ABOVE. ACCORDINGLY, THE AO HAS TAKEN THE STAMP VALUE FOR THE PURPOSE OF COMPUTING THE CAPITAL GAIN UNDER THE PROVISIONS OF SECTION 50C OF THE ACT WHICH WAS WORKED OUT AT 41,74,217/- ONLY. IN VIEW OF THE ABOVE, WE HOLD THAT THE PROVISIONS OF SECTION 50C OF THE ACT ARE APPLICABLE IN THE PRESENT CASE FOR COMPUTING THE CAPITAL GAIN. 17.7 BEFORE PARTING WE NOTE THAT THE ASSESSEE HAS FILED THE REPORT OF THE REGISTERED VALUER FOR DETERMINING THE MARKET VALUE AS ON THE DATE OF TRANSFER. HOWEVER, THE AO REJECTED THE VALUATION REPORT SUBMITTED BY THE ASSESSEE AFTER POINTING OUT CERTAIN INFIRMITIES THEREIN WHICH HAVE BEEN DISCUSSED HERE-IN ABOVE. HOWEVER, WE ARE OF THE VIEW THAT THE AO CANNOT REJECT THE VALUATION REPORT FILED BY THE ASSESSEE WITHOUT REFERRING THE SAME TO THE DVO UNDER THE PROVISIONS OF SUB SECTION (2) OF SECTION 50C OF THE ACT WHICH READS AS UNDER: ( 2) WITHOUT PREJUDICE TO THE PROVISIONS OF SUB-SECTION (1), WHERE (A ) THE ASSESSEE CLAIMS BEFORE ANY ASSESSING OFFICER THAT THE VALUE ADOPTED OR ASSESSED 26 [OR ASSESSABLE] 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 26 [OR ASSESSABLE] 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 THE CAPITAL ASSET TO A VALUATION OFFICER AND WHERE ANY SUCH REFERENCE 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-TAXACT, 1957 (27 OF 1957), SHALL, WITH NECESSARY MODI-FICATIONS, 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. 17.8 HOWEVER, THE AO HAS NOT REFERRED THE MATTER TO THE DVO FOR DETERMINING THE FAIR VALUE OF THE PROPERTY AS CONTEMPLATED ABOVE. THEREFORE, IN THE INTEREST OF JUSTICE ITA NO.403/AHD/2016 ASSTT. YEAR 2011-12 11 AND FAIR PLAY WE ARE INCLINED TO RESTORE THIS ISSUE TO THE FILE OF THE AO WITH THE DIRECTION TO REFER THE SAME TO THE DVO FOR THE PURPOSE OF VALUATION AND DECIDE THE ISSUE A FRESH AS PER THE PROVISIONS OF LAW. HENCE THE GROUND OF APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. 18. IN THE RESULT THE APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE COURT ON 28/10/2021 AT AHMEDABAD. SD/- SD/- (RAJPAL YADAV) (WASEEM AHMED) VICE PRESIDENT ACCOUNTANT MEMBER (TRUE COPY) AHMEDABAD; DATED 28/10/2021 MANISH