DILIP V MOHINDRA, MUMBAI V. ITO WD 19(1)(3), MUMBAI

ITA 5846/MUM/2014

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 1430 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 2 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-12-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Assessment Year: 2007-2008
• Appeal Filed On: 18-09-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SHIVAJI GHADE
• Assessee Lawyers: KSHIPRA SINGHVI
• Keywords: Sale consideration of property below Jantri Value; Capital asset; Cost of acquisition; Fair market value; Valuation report
• Section: 143(3); 50C; 142(1); 54; 37; 12

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, MUMBAI BEFORE SHRI MAHAVIR SINGH , JM AND SHRI RAJESH KUMAR, AM ./ I .T.A. NO. 5846 /MUM/201 4 ( / ASSESSMENT YEAR : 20 07 - 08 ) DILI P V MOHINDRA, 501, PEARL HEIGHTS, TPS III, 8 TH ROAD, KHAR (W), MUMBAI - 400052 / VS. INCOME TAX OFFICER 19(1)(3), PIRAMAL CHAMBERS, LALBAUG, PAREL, MUMBAI - 400012 ./ PAN : AAEPM346B / APPELLANT BY SHRI KSHIP RA SINGHVI / RESPONDENT BY SHRI SHIVAJI GHADE / DATE OF HEARING : 2 .11. 2016 / DATE OF PRONOUNCEMENT : 14 .1 2 . 2016 / O R D E R PER RAJESH KUMAR , A M APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER DATED 17.2.2014 PASSED BY THE LD. CIT(A) - 22, MUMBAI FOR THE ASSESSMENT YEAR 2007 - 08. 2. ONLY ISSUE RAISED IN ALL THESE GROUNDS OF APPEAL PERTAIN S TO UPHOLDING THE ORDER OF THE AO BY THE LD. CIT(A) QUA ADOPTING THE VALUE OF THE PROPERTY AS PER STAMP VALUATION AUTHORITIES FOR THE PURPOSE OF SECTION 50C OF THE INCOME TAX ACT, 1961 BY IGNORING THE FACT THAT THE LOWER AUTHORITIES HAVE NOT REFERRED THE MATTER TO THE VALUATION OFFICER UNDER SECTION 50C(2) OF THE ACT BEFORE 2 ITA NO. 5846 / / MUM/ 201 4 SUBSTITUTING THE STAMP VALUE AS PER STAMP VALUATION AUTHORITY AS CONSIDERATION FOR THE PURPOSE OF CALCULATING THE CAPITAL GAIN . 3. FACTS OF THE CASE ARE THAT THE ASSESSEE FILED HIS RETURN OF INCOME ON 3.7.2007 DECLARING TOTAL INCOME OF RS.2,23,6 80/ - . THE RETURN WAS PROCESSED UNDER SECTION 143(1) OF THE ACT . T HEREAFTER THE CASE OF THE ASSESSEE WAS SELECTED FOR SCRUTINY AND THE NOTICE S UNDER SECTION 143(2) AND 142(1) WERE SENT TO THE ASSESSEE AND DULY SERVED UPON HIM. DURING THE COURSE OF ASSESSMEN T PROCEEDINGS, THE AO FOUND THAT THE ASSESSEE HAS SHOWN LONG TERM CAPITAL GAIN OF RS.1,33,450/ - ON SALE OF PLOT AT BANDRA ON A SALE CONSIDERATION OF RS.3 ,00,00,000/ - WHICH WAS PURCHASED ON 14.8.1953 IN CO - OWNERSHIP AND THE ASSESSEES SHARE WAS 1/3 RD . T HE VALUE OF THE SAID FLAT AS ON 1.4.1981 WAS RS.9,24,250/ - AS PER THE REGISTER VALUER REPORT WHICH WAS INDEXED AND CAPITAL GAINS WAS CALCULATED AS UNDER : DATE OF SALE 24.11.2006 TOTAL SALE CONSIDERATION A S PER AGREEMENT [1/3 RD SHA R E] RS.1,00,0 0,000 DATE OF PURCHASE OF FLAT 14.8.1953 VALUE OF PLOT AS ON 1.4. 1981 RS.9,24,250= 1/3 RD SHARE RS.3,08,083 INDEX COST OF THE PLOT OF LAND 3,08,083 X 519 10 0 RS.15,98,950 LONG TERM CAPITAL GAIN LESS DEDUCTION U/S 54 RS.84,01,050 RS.82,67,600 TAX ABLE LONG TERM CAPITAL GAIN RS.1,33,450/ - THE ASSESSEE CLAIMED DEDUCTION UNDER SECTION 54 OF THE ACT TO THE TUNE OF RS.82,67,600/ - AND OFFERED REMAINING CAPITAL GAIN OF RS.1,33,450/ - TO TAX. THE 3 ITA NO. 5846 / / MUM/ 201 4 AO DURING THE COURSE OF ASSESSMENT PROCEEDINGS NOTED TH AT THE VALUE OF THE SAID PROPERTY AS PER STAMP VALUATION AUTHORITY WAS RS.3,84,00,000/ - AND ACCORDINGLY ISSUED SHOW CAUSE NOTICE TO THE ASSESSEE AS TO WHY THE VALUE OF THE PROPERTY SHOULD NOT BE TAKEN AS PER THE VALUE AS PER REGISTRAR OFFICE AT RS.3,8 4,00,000/ - AS CONSIDERATION RECEIVED AS AGAINST RS.3 ,00,00,000/ - TAKEN BY THE ASSESSEE AS PER THE PROVISIONS OF SECTION 50C OF T HE ACT. ACCORDING TO THE AO, THE ASSESSEE COULD NOT FURNISH ANY EXPLANTING TO THE SAID SHOW CAUSE NOTICE AND ACCORDINGLY THE AO SUBSTITUTED THE VALUE AS PER THE VALUE OF STAMP AUTHORITIES OF RS.3,84,00,000/ - IN PLACE OF ACTUAL CONSIDERATION OF RS.3 ,00,00,000/ - AND ACCORDINGLY COMPUTED THE GAIN AS UNDER : FULL VALUE OF CONSIDERATION AS DISCUSSED ABOVE RS 3,84,00,000 ASSES SEES SHARE IN THE PROPERTY @1/3 RS 1,28,00,000 LESS COST OF ACQUISITION VALUE ON 1.4.1981 RS.9,24,250 ASSESSEES SHARE @ 1/3 RD RS.3,08,083 INDEXED COST OF ACQUISITION OF ASSESSEES SHARE RS.15,98,951 LONG TERM CAPITAL GA IN RS 1,12,01,049 INDEX COST OF THE PLOT OF LAND LESS DEDUCTION U/S 54 AS PER RETURN RS.82,67,600 BALANCE TAXABLE LONG TERM CAPITAL GAIN RS.29,33,450 4 . FINALLY, THE AO FRAMED THE ASSESSMENT UNDER SECTION 143(3) VIDE ORDER DATED 26.11.2009 BY ASS ESSING THE TOTAL INCOME OF THE ASSESSEE AT RS.30,23,683/ - ENHANCING THE CAPITAL GAINS AS COMPUTED ABOVE. AGGRIEVED BY THE ORDER OF THE AO, THE ASSESSEE HAS PREFERRED AN APPEAL BEFORE THE CIT(A) WHO ALSO DISMISSED THE APPEAL OF THE ASSESSEE BY OBSERVING AS UNDER: 4 ITA NO. 5846 / / MUM/ 201 4 3.4 I HAVE CAREFULLY CONSIDERED THE IMPUGNED ASSESSMENT ORDER, THE REMAND REPORT AND THE SUBMISSION OF THE APPELLANT ALONG WITH THE CONTENTS OF THE PAPER - BOOK. AS BROUGHT OUT CLEARLY IN THE REMAND REPORT THE AR OF THE APPELLANT HAD FILED A COM PUTATION TAKING THE FULL VALUE OF CONSIDERATION AT RE 1.28 CROREE BASED ON THE VALUE ADOPTED BY STAMP DUTY AUTHORITY. T HE LETTER OF AUTHORITY GIVEN TO TILE AR INDICATES THAT APPELLANT HAS GIVEN FULL AUTHORITY TO CA SHRI UDAY S MULAY TO FILE SUBMISSIONS, EX PLANATIONS, STATEMENT AND REPRESENTATIONS, WHICH ARE BINDING. THEREFORE, ACCORDING TO ME THE LETTER DATED 10.11.2009 SUBMITTED BY SHRI UDAY MULAY CONTAINING THE WORKING OF LONG TERM CAPITAL GAIN IS LEGALLY A VALID ONE, 3.5 FOR THE SAKE OF CONVENIENCE, PROVISIONS OF SECTION 50C(1) IS REPRODUCED HEREUNDER ; - 50C. SPECIAL PROVISION FOR FULL VALUE OF CONSIDERATION IN CERTAIN CASES (1) WHERE THE CONSIDERATION RECEIVED OR ACCRUING AS A RESULT OF THE TRANSFER BY AN ASSESSEE OF A CAPITAL ASSET, BEING LAND O R BUILDING OR BOTH, IS LESS THAN THE VALUE ADOPTED OR ASSESSED [OR ASSESSABLE] BY ANY AUTHORITY OF A STATE GOVERNMENT (HEREAFTER IN THIS SECTION REFERRED TO AS THE 'STAMP VALUATION AUTHORITY' ) FOR THE PURPOSE OF PAYMENT OF STAMP DUTY IN RESPECT OF SUCH T RANSFER, THE VALUE SO ADOPTED OR ASSESSED [OR ASSESSABLE] SHALL, FOR THE PURPOSES OF SECTION 48 , BE DEEMED TO BE THE FULL VALUE OF THE CONSIDERATION RECEIVED OR AC CRUING AS A RESULT OF SUCH TRANSFER. (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 [OR ASSESSABLE] BY THE STAMP VALUATION AUTHORITY UNDER SUB - SECT ION (1) EXCEEDS THE FAIR MARKET VALUE OF THE PROPERTY AS ON THE DATE OF TRANSFER;(B) THE VALUE SO ADOPTED OR ASSESSED 16 [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 5 ITA NO. 5846 / / MUM/ 201 4 SECTION 24, SECTION 34AA, SECTION 35 AND SECTION 37 OF THE WEALTH - TAX ACT, 1957 (27 OF 1 957), 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. [EXPLANATION 1]. FOR THE PURPOSES OF THIS SECTION, 'V ALUATION 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, THE EXPRESSION 'ASSESSABLE' MEANS THE PRICE WHICH THE STAMP VALUATION AUTHORITY WOULD H AVE, NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN ANY OTHER LAW FOR THE TIME BEING IN FORCE, ADOPTED OR ASSESSED, IF IT WERE REFERRED TO SUCH AUTHORITY FOR THE PURPOSES OF THE PAYMENT OF STAMP DUTY.] 3.6 AS PER SUB - SECTION 2 OF SECTION 50C, THE ASSESSEE NEEDS TO MAKE A CLAIM BEFORE THE AO THAT THE VALUE ADOPTED OR ASSESSED BY THE STAMP VALUATION AUTHORITY EXCEEDS THE FMV OF THE PROPERTY AS ON THE DATE OF TRANSFER THEN, IT IS THE DUTY OF THE AO TO REFER THE MATTER TO THE VALUATION OFFICER. R:XCEP T FILING A VALUATION REPORT FROM THE REGISTERED VALUER SHRI K. M. ANSARI, VALUING THE SHARES OF PROPERTY AT RS.17.77 LAKHS, NO OTHER MATERIAL WAS FURNISHED SUPPORT OF FMV OF THE PROPERTY. THE VALUE BY THE REGISTERED VALUER WAS FAR BELOW THE VA LUE ADMITTED RS .1 CRORE BY THE APPELLANT . I COULD FIND THAT THE APPELLANT DID NOT MAKE A SPECI FIC REQUEST TO REFER THE MATTER TO THE DISTRICT VALUATION OFFICER AT THE TIME OF ASSESSMENT BEFORE THE AG. THE APPELLANT HAD THUS, FAILED TO AVAIL THE OPPORTUNITY PROV IDED U/S.5 0(2) OF ITACT. IN VIEW OF THIS THERE IS NO OPTION LEFT TO THE APPELLANT TO A G IT ATE NOW AND ACCORDINGLY, THE VALUE ADOPTED BY THE STAMP DUTY AUTHORITIES NEEDS TO BE .AS THE DEEMED FULL VALUE OF CONSIDERATION RECEIVED BY THE APPELLANT. 3.7 IN THIS REGARD I RELY ON THE DECISION OF THE MADRAS HIGH COURT IN THE C ASE AMBATTUR CLOTHING COMPANY LTD REPORTED IN 326 ITR 245. IT WAS HELD AS UNDER : - 'AS THE ASSESSEE HAD NOT AV A ILED OF THE OPPORTUNITY PROVIDED UNDER SEC. 50C(2) OF T HE ACT, THE ASSESSING OFFICER WAS HELD TO BE RIGL1T IN TREATING THE VALUE OF THE IMMOV ABLE PROPER T Y BY T HE STAMP VALUATION AUTHORITY AS DEEMED SALE CONS IDERATION ACCRUING TO THE ASSESSEE ON TRANSFER 6 ITA NO. 5846 / / MUM/ 201 4 3.8 IN VIEW OF THE ABOVE DISCUSSION , THE ACTION OF THE ASSESSING OFFICER IN COMPUTIN G CAPITAL GAINS BASED ON THE VALUE ARRIVED AT BY THE STAMP DUTY AUTHORITY IS UPHELD AND THIS G ROUND OF APPEAL IS DISMISSED. 5 . THE LD.AR VEHEMENTLY SUBMITTED BEFORE US THAT THE VALUATION AS PER THE STAMP VALUATION AUTHORITY OF RS.3,84,00,000/ - WAS S UBSTITUTED IN PLACE OF ACTUAL SALE CONSIDERATION WITHOUT REFERRING THE MATTER TO THE DVO WHICH WAS IN CONTRAVENTION OF SECTION 50C (2) OF THE ACT. THE LD. AR HEAVILY RELIED ON THE ORDER OF CALCUTTA HIGH COURT IN THE CASE OF SUNIL KUMAR AGARWAL V. CIT [2015] 372 ITR 83 (CALCUTTA) . THE LD. AR FURTHER SUBMITTED THAT THE ASSESSEE NEVER AGREED BEFORE THE AO FOR CAPITAL GAIN AS COMPUTED U/S 50C OF THE ACT AND EVEN FILED A SWORN AFFIDAVIT DATED 21.10.2011 AFFIRMING THE SAME . ANOTHER COPY OF VALUATION REPORT WAS ALSO FILED BEFORE THE FAA WHICH VALU ED THE PROPERTY AT RS.17.77 LAKHS . THE LD. CIT(A) CALLED THE REMAND REPORT FROM THE AO WHICH WAS RECEIVED ON 18.6.2012. THE LD. AR ALSO ARGUED THAT THE WHOLE ISSUE WAS REPRESENTED BEFORE THE LD. CIT(A) IN A VERY DETAILED MANNER BY BRINGING TO HIS NOTICE SPECIFICALLY THAT FMV OF THE PLOT WAS LOWER THAN THE STAMP DUTY VALUATION AND THEREFORE THE VALUE AS PER STAMP DUTY AUTHORITY COULD NOT BE TAKEN FOR THE PURPOSES OF CALCULATING THE CAPITAL GAINS. THE LD . AR THEREFORE PRAYED THAT FOLLOWING THE RATIO LAID DOWN IN THE DECISION OF HONBLE CALCUTTA HIGH COURT , THE ORDER OF LD. CIT(A) BE SET ASIDE AND THE MATTER BE RESTORED TO THE FILE OF THE AO TO MAKE ASSESSMENT AFTER REFERRING THE MATTER OF VALUATION TO THE DVO. 7 ITA NO. 5846 / / MUM/ 201 4 6 . ON THE OTHER HAND, THE LD. DR STRONGLY OBJECTED THE TO THE ARGUMENTS OF THE LD.AR AND SUBMITTED THAT THE ASSESSEE HAS NOT RAISED THIS ISSUE BEFORE THE AO AND NOW TAKING THIS PLEA BEFORE THE TRIBUNAL TO GET ADVANTAGE OF PROVISIONS OF SECTIO N 50C. ACCORDINGLY, THE LD. DR PRAYED THAT THE ORDERS OF AUTHORITIES BELOW BE CONFIRMED AND THE APPEAL OF THE ASSESSEE BE DISMISSED . 7 . WE HAVE CAREFULLY CONSIDERED THE RIVAL CONTENTIONS AND PERUSED THE MATERIAL PLACED BEFORE US INCLUDING THE ORDERS OF AUTHORITIES BELOW AND CASE LAW RELIED UPON BY THE ASSESSEE. WE FIND THAT THE ASSESSEE HAS SOLD PLOT OF LAND AT BANDRA IN WHICH HE OWN ED 1/3 SHARE FOR A TOTAL CONSIDERATION OF RS.3, 00 ,00,000/ - AND ACCORDINGLY CALCULATED CAPITAL GAIN AND HIS SHARE I N THE LONG TERM CAPITAL GAIN WORKED OUT TO RS.84,01,050/ - . THE ASSESSEE AFTER CLAIMING DEDUCTION U/S 54 OF THE ACT TO THE TUNE OF RS.,82,87,600/ - , OFFERED THE BALANCE LONG TERM CAPITAL GAINS OF RS.1,33,450/ - TO TAX. THE AO UPON FINDING THAT THE ACTUAL CONSIDERATION RECEIVED WAS MUCH LOWER THAN THE VALUE OF STAMP DUTY VALUATION SUBSTITUTED THE SAME AS FMV U/S 50C FOR THE PURPOSE OF CALCULATING THE CAPITAL GAINS AND ACCORDINGLY FRAMED THE ASSESSMENT. WE FURTHER FIND FROM THE ORDER OF THE LD. CIT(A) TH AT THE ASSESSEE RAKED UP THE ISSUE STATING THAT HE NEVER AGREED WITH THE VALUE OF PLOT AS DETERMINED BY THE STAMP VALUATION AUTHORITY IN PLACE OF ACTUAL SALE CONSIDERATION AS STATED BY THE AO AND EVEN FILED SWORN AFFIDAVIT BEF ORE THE LD. CIT(A) TO TH IS EFFECT . U NDER THESE FACTS AND CIRCUMSTANCES OF THE CASE, AS NARRATED HEREINABOVE, WE FIND THAT AUTHORITIES 8 ITA NO. 5846 / / MUM/ 201 4 BELOW HAVE ERRED IN NOT REFERRING THE MATTER TO THE DVO SPECIALLY WHEN THE ASSESSEE HAD CLAIMED THE FMV WAS MUCH BELOW THE VALUATION AS PER THE STAMP VALUATION AUTHORITY. THE CASE OF THE ASSESSEE IS ALSO SUPPORTED BY A DECISION IN WHICH IDENTICAL ISSUE HAS BEEN DECIDED BY THE HONBLE CALCUTTA HIGH COURT IN THE CASE OF SUNIL KUMAR AGARWAL (SUPRA), WHEREIN IT HAS BEEN HELD THAT IN ORDER TO A SCERTAIN THE VALUE OF CONSIDERATION IN THE CA S E OF TRANSFER OF CAPITAL ASSET , L VALUE OF CONSIDERATION OF CAPITAL GAIN IS TO BE TAKEN ON THE BASIS OF VALUATION ADOPTED BY THE STAMP VALUATION AUTHORITIES UNDER SECTION 50C(1) OF THE ACT OR CAPITAL ASSET IS TO BE REFERRED TO THE VALUATION OFFICER FOR DETERMINATION OF FMV OF THE PROPERTY FOR ASSESSING THE CAPITAL GAIN. IN TERMS OF DECISION OF HONBLE CALCUTTA HIGH COURT IN THE CASE OF SUNIL KUMAR AGARWAL, THE HONBLE HIGH COURT HAS HELD AS UNDER : WE HAVE CONSIDERED THE RIVAL SUBMISSIONS ADVANCED BY THE LEARNED ADVOCATES APPEARING FOR THE PARTIES. THE SUBMISSION OF MS. GHUTGHUTIA THAT THE REQUIREMENT OF CLAUSES A) AND (B) OF SUB - SECTION (2) OF SECTION 50C HAS NOT BEEN MET BY THE ASSESSEE, CAN HARDL Y BE ACCEPTED. THE REQUIREMENT OF CLAUSE (B) OF SUB - SECTION (2) OF SECTION 50C WAS EVIDENTLY MET. THE ONLY QUESTION IS WHETHER THE REQUIREMENT OF CLAUSE (A) OF SUB - SECTION (2) OF SECTION 50C WAS MET BY THE ASSESSEE. WE HAVE ALREADY SET OUT HEREINABOVE THE RECITAL APPEARING IN THE DEEDS OF CONVEYANCE UPON WHICH THE ASSESSEE WAS RELYING. PRESUMABLY, THE CASE OF THE ASSESSEE WAS THAT PRICE OFFERED BY THE BUYER WAS THE HIGHEST PREVAILING PRICE IN THE MARKET. IF THIS IS HIS CASE THEN IT IS DIFFICULT TO ACCEPT T HE PROPOSITION THAT THE ASSESSEE HAD ACCEPTED THAT THE PRICE FIXED BY THE DISTRICT SUB REGISTRAR WAS THE FAIR MARKET VALUE OF THE PROPERTY. NO SUCH INFERENCE CAN BE MADE AS AGAINST THE ASSESSEE BECAUSE HE HAD NOTHING TO DO IN THE MATTER. STAMP DUTY WAS PAY ABLE BY THE PURCHASER. IT WAS FOR THE PURCHASER TO EITHER ACCEPT IT OR DISPUTE IT. THE ASSESSEE COULD NOT, ON THE BASIS OF THE PRICE FIXED BY THE SUB - REGISTRAR, HAVE CLAIMED ANYTHING MORE THAN THE AGREED CONSIDERATION OF A SUM OF RS.10 LAKHS 9 ITA NO. 5846 / / MUM/ 201 4 WHICH, ACCORDI NG TO THE ASSESSEE, WAS THE HIGHEST PREVAILING MARKET PRICE. IT WOULD FOLLOW AUTOMATICALLY THAT HIS CASE WAS THAT THE FAIR MARKET VALUE OF THE PROPERTY COULD NOT BE RS.35 LAKHS AS ASSESSED BY THE DISTRICT SUB REGISTRAR. IN A CASE OF THIS NATURE THE ASSESSI NG OFFICER SHOULD, IN FAIRNESS, HAVE GIVEN AN OPTION TO THE ASSESSEE TO HAVE THE VALUATION MADE BY THE DEPARTMENTAL VALUATION OFFICER CONTEMPLATED UNDER SECTION 50C. AS A MATTER OF COURSE, IN ALL SUCH CASES THE ASSESSING OFFICER SHOULD GIVE AN OPTION TO TH E ASSESSEE TO HAVE THE VALUATION MADE BY THE DEPARTMENTAL VALUATION OFFICER. FOR THE AFORESAID REASONS, WE ARE OF THE OPINION THAT THE VALUATION BY THE DEPARTMENTAL VALUATION OFFICER, CONTEMPLATED UNDER SECTION 50C, IS REQUIRED TO AVOID MISCARRIAGE OF JUS TICE. THE LEGISLATURE DID NOT INTEND THAT THE CAPITAL GAIN SHOULD BE FIXED MERELY ON THE BASIS OF THE VALUATION TO BE MADE BY THE DISTRICT SUB REGISTRAR FOR THE PURPOSE OF STAMP DUTY. THE LEGISLATURE HAS TAKEN CARE TO PROVIDE ADEQUATE MACHINERY TO GIVE A F AIR TREATMENT TO THE CITIZEN/TAXPAYER. THERE IS NO REASON WHY THE MACHINERY PROVIDED BY THE LEGISLATURE SHOULD NOT BE USED AND THE BENEFIT THEREOF SHOULD BE REFUSED. EVEN IN A CASE WHERE NO SUCH PRAYER IS MADE BY THE LEARNED ADVOCATE REPRESENTING THE ASSES SEE, WHO MAY NOT HAVE BEEN PROPERLY INSTRUCTED IN LAW, THE ASSESSING OFFICER, DISCHARGING A QUASI JUDICIAL FUNCTION, HAS THE BOUNDEN DUTY TO ACT FAIRLY AND TO GIVE A FAIR TREATMENT BY GIVING HIM AN OPTION TO FOLLOW THE COURSE PROVIDED BY LAW. 8 . FROM THE ABOVE FACTS AND RATIO LAID DOWN BY HON'BLE HIGH COURT IN THE CASE OF SUNIL KUMAR AGARWAL, SUPRA, IF THE ASSESSEE DISPUTES THE VALUE AS PER STAMP VALUATION AUTHORITY TO BE SUBSTITUTED IN PLACE OF SALES CONSIDERATION FOR THE PURPOSE OF CALCULATION OF CAPITA L GAIN , THEN THE AO SHOULD REFER THE CAPITAL ASSET TO VALUATION OFFICER TO DETERMINE THE FULL VALUE OF THE CONSIDERATION RECEIVED OR ACCRUING AS A RESULT OF TRANSFER OF CAPITAL ASSET U/S 50C(2) OF THE ACT . IN THE INSTANT CASE BEFORE US THE ASSESSEE IS DIS PUTING THE SUBSTITUTION OF STAMP VALUATION AS PER STAMP VALUATION AUTHORITY AS FMV FOR THE PURPOSE OF CALCULATION OF CAPITAL GAIN AND THE MATTER OF DETERMINING THE 10 ITA NO. 5846 / / MUM/ 201 4 FMV SHOULD BE REFERRED TO THE DVO. HENCE, IN THE PRESENT CASE, WE ARE INCLINED TO SET ASIDE THE ORDER OF THE CIT(A) AND RE STORE THE ISSUE BACK TO THE FILE OF THE AO FOR FRESH ADJUDICATION OF THE ISSUE OF LONG TERM C APITAL GAIN ARISING OUT OF SALE OF PLOT AFTER REFERRING THE MATTER TO DVO AND HEARING THE ASSESSEE BY AFFORDING A FAIR AND REASONA BLE OPPORTUNITY. THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES . 9. IN THE RESULT, APPEAL OF ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSE. ORDER HAS BEEN PRONOUNCED IN THE OPEN COURT ON 14. 12 . 2016. S D SD ( MAHAVIR SINGH ) ( RAJESH KUMAR ) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI ; DATED : 14 . 12 . 2016 SR.PS:SRL: / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. ( ) / T HE CIT(A) 4. / CIT CONCERNED 5. , , / DR, ITAT, MUMBAI 6. / GUARD F ILE / BY O RDER, T RUE COPY / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI