Gautam Bhakat , Hooghly V. ITO, Ward - 23(2), Hooghly , Hooghly

ITA 869/KOL/2018

• Counselvise Citation: [2018] 122 COUNSELVISE.COM (IT) 5383 (ITAT-KOLKATA)
• Duration Of Justice: 5 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-10-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2014-2015
• Appeal Filed On: 02-05-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DILIP KUMAR MITRA
• Keywords: Unexplained investment; Sale consideration of property below Jantri Value; Capital asset; Gift; Principle of natural justice; Question of law; Fair market value; Competent authority
• Section: 43CA; 143(3); 50C; 56(2); 56

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH SMC KOLKATA BEFORE SHRI S.S, GODARA, JUDICIAL MEMBER ITA NO.869/KOL/2018 ASSESSMENT YEAR:2014-15 GAUTAM BHAKAT 4(3), BENGAL COAL LANE, SHEORAPHULI, HOOGHLY-712223 [ PAN NO.AHQPB 1821R ] / V/S . INCOME TAX OFFICER, WARD-23(2), AAYAKAR BHAWAN, KHADINA MORE, G.T. ROAD, HOOGHLY-712101 /APPELLANT .. /RESPONDENT /BY APPELLANT NONE /BY RESPONDENT SHRI DILIP KUMAR MITRA, ADDL. CIT-DR /DATE OF HEARING 19-09-2018 /DATE OF PRONOUNCEMENT 05-10-2018 /O R D E R THIS ASSESSEES APPEAL FOR ASSESSMENT YEAR 2014-15 , ARISES AGAINST THE COMMISSIONER OF INCOME-TAX (APPEALS)-6, KOLKATAS O RDER DATED 28.02.2018 PASSED IN CASE NO.CITA-6, KOLKAT-6/10144/16-17 AFFIRMING T HE ASSESSING OFFICERS ACTION MAKING US 50(2)(VII) ADDITION OF 6,62,962/- IN ASSESSMENT ORDER DATED 18.08.2016 INVOLVING PROCEEDINGS U/S. 143(3) OF THE INCOME TAX ACT, 1961; IN SHORT THE ACT. 2. I NOTICE AT THE OUTSET THAT THE CIT(A)S DETAILE D DISCUSSION QUA THE ABOVE SOLE ISSUE READS AS FOLLOWS:- 3. THE APPELLANT SUBMITTED WRITTEN SUBMISSION, WHIC H IS REPRODUCED AS UNDER:- ONLY GROUND OF APPEAL IS AGAINST ADDITION MADE BY THE LEARNED AO OF RS.6,60,962.00 U/S. 56(2)(VII)(B)(II) OF THE ACT. REGISTRATION NO. & DATE SET FORTH VALUE (VALUE AS PER CONVEYANCE DEEDS) SHARE OF YOUR ASSESSEE MARKET VALUE SHARE OF YOUR ASSESSEE DIFFERENCE 00369/2014 18.1.2014 5,00,000/- 1,00,00 (1/5 TH ) 15,28,586/- 3,05,717/- (1/5 TH ) 2,05,717/- 00400/2014 5,00,000/- 1,00,000/- 15,28,586/- 3,05,7 17/- 2,05,717/- 18.1.2014 (1/5 TH ) (1/5 TH ) ITA NO. 869/KOL/2018 A .Y. 2014-15 GAUTAM BHAKAT VS. ITO WD-23(2), H GY. PAGE 2 00401/2014 18.1.2014 7,80,000/- 1,30,000 (1/6 TH ) 15,28,586/- 2,54,764/- (1/6 TH ) 1,24,764/- 00404/2014 18.1.2014 7,800,000/- 1,30,000/- (1/6 TH ) 15,28,586/- 2,54,764/- (1/6 TH ) 1,24,764/- 4,60,000/- 11,20,962/- 6,60,962/- (THE SAID WORKING AS PER ASSESSMENT ORDER NEEDS SOM E CLERICAL CORRECTION BUT TOTAL SUM OF ADDITION IS SAME) SIR, IN BRIEF, THE PROVISIONS OF THE SAID SECTION I S DEEMING PROVISION UNDER WHICH IN CASE AN INDIVIDUAL OR HINDU UNDIVIDED FAMI LY RECEIVES ANY IMMOVABLE PROPERTY FOR A CONSIDERATION WHICH IS LES S THAN THE STAMP DUTY VALUE OVER SUCH CONSIDERATION WOULD BE TAXABLE AS INCOME FROM OTHER SOURCES. NOW, I WOULD LIKE TO DRAW YOUR KIND ATTENTION TOWAR DS HISTORY OF THE PROVISIONS OF SEC. 56(2)(V), SEC. 56(2)(VI) & SEC. 56(2)(VII) OF THE ACT WHICH BASICALLY DEAL EXCEEDING A SPECIFIED LIMIT AMENDED FROM ITEM TO TIME. THESE PROVISION WERE BROUGHT IN TO EFFECT TO TAX GIFTED S UM SUBJECT TO CERTAIN TERMS AND CONDITION AFTER GIFT TAX WAS DROPPED WITH EFFEC T FROM 30 TH SEPTEMBER, 1998. THEREFORE, WHOLE PURPOSE WAS TO TAX THE TRANS FER OF MONEY UNDER THE GUISE OF GIFT. IN SUPPORT OF THE ABOVE, IT MAY PLEASE BE NOTED THA T THE LANGUAGE USED IN THE SAID SECTION IS WHERE AN INDIVIDUAL OR HUF RECEIV ES IN ANY PREVIOUS YEAR THE LEGISLATURE WOULD HAVE USED THE TERM AS A R ESULT OF TRANSFER AS HAS BEEN USED IN THE PROVISIONS OF SECTION 50C AND SECT ION 43CA OF THE ACT, HAD THERE BEEN ANY INTENTION ON THEIR PART TO TAX THE E XCESS OF STAMP DUTY VALUE OVER ACTUAL CONSIDERATION IN THE HAND OF RECIPIENT EVEN IN CASE OF SALE OF IMMOVABLE PROPERTY. THEREFORE, THEY HAVE NOT INTEND ED TO TAX THE SAID DIFFERENCE IN THE HAND OF TRANSFEREE IN CASE OF SAL E BY CONVEYANCE DEED AND ONLY PURPOSE WAS TO TAX IN CASE OF GIFT. NOW, IF YOU KINDLY VIEW SPECIFICALLY THE PROVISIONS OF SECTION 56(2)(VII) ENACTED WITH EFFECT FROM 1 ST OCTOBER 2009 WHICH ARE READ AS UNDER. WHERE AN INDIVIDUAL OR HUF RECEIVES IN ANY PREVIOUS YEAR FROM ANY PERSON OR PERSONS. A) ANY SUM OF MONEY WITHOUT CONSIDERATION THE AGGREGAT E VALUE OF WHICH EXCEEDS RS.50,00,000.00 THE WHOLE OF THE AGGR EGATE VALUE OF SUM. B) ANY IMMOVABLE PROPERTY WITHOUT CONSIDERATION THE ST AMP DUTY VALUE OF WHICH EXCEEDS RS.50,000.00 THE STAMP DUTY VALUE OF SUCH PROPERTY. SIR, AGAIN IF YOU KINDLY MEAN THE BASIC OBJECT OF T HE LEGISLATURE, IT WAS TO TAX IN CASE OF GIFT I.E. WITHOUT CONSIDERATION. FURTHER, BY THE FINANCE ACT 2013 WITH EFFECT FROM 0 1.04,2014 SUB-CLAUSE (B) TO CLAUSE (VI) TO SECTION 56(2) WAS BROKEN INTO TWO WHICH ARE READ AS UNDER: (I) WITHOUT CONSIDERATION THE STAMP DUTY VALUE OF WHICH EXCEEDS RS.50,000.00 THE STAMP DUTY VALUE OF SUCH PROPERTY. (II) FOR A CONSIDERATION WHICH IS LESS THAN THE STAMP DU TY VALUE OF THE PROPERTY BY AN AMOUNT EXCEEDING RS.50,00,000.00 THE STAMP DUTY VALUE OF SUCH PROPERTY AS EXCEEDS SUCH CONSIDERATIO N. ITA NO. 869/KOL/2018 A .Y. 2014-15 GAUTAM BHAKAT VS. ITO WD-23(2), H GY. PAGE 3 SIR OBVIOUSLY THE AFORESAID AMENDMENTS IS EXPECTED TO HAVE BEEN BROUGHT TO PLUG THE GIFT TRANSACTIONS (TRANSFER OF PROPERTY BY GIFT) BEING DONE FOR A PART CONSIDERATION. HAVING ALL THE AFORESAID PROVISIONS AND AMENDMENTS MADE THEREIN FROM TIME TO TIME, IT IS UNDERSTOOD THAT IT WAS COMPLETELY IN TENDED TO TAX TRANSFER OF MONEY IMMOVABLE PROPERTY UNDER THE GUISE OF GIFT AN D NOT TRANSFER OF IMMOVABLE PROPERTY BY EXECUTING CONVEYANCE DEED DUL Y REGISTERED BY A COMPETENT AUTHORITY. IT IS IMPORTANT TO NOTE THAT PROVISION OF SECTION 5 6(2)(VII) APPLICABLE IN CASE OF TRANSFEREE OF IMMOVABLE PROPERTY COVERS ONLY INDIVI DUAL OR HUF, WHEREAS PROVISIONS OF SECTION 50C/43CA APPLICABLE TO THE TR ANSFEROR OF THE PROPERTY COVER ALL THE ASSESSEE. IT IMPLIES THAT IF THE TRAN SFEREE OF PROPERTY IS A PERSON OTHER THAN INDIVIDUAL OR HUF I.E. A COMPANY, FIRM, LLP ETC., PROVISION OF SECTION 56(2)(VII) SHALL NOT BE APPLICABLE. THUS, I F AN IMMOVABLE PROPERTY IS PURCHASED BY A PERSON OTHER THAN AN INDIVIDUAL OR H UF FOR A CONSIDERATION WHICH IS LESS THAN STAMP DUTY VALUE / CIRCLE RATE, THERE WILL NOT BE ANY IMPLICATION OR ATTRACTION OF THE PROVISION OF THIS SECTION. THERE IS HOWEVER NOTHING EXPLICIT AS TO WHY ONLY INDIVIDUAL AND HUF HAVE BEEN BROUGHT INTO THE AMBIT OF THIS SECTION AND AS TO WHY OTHER PERSONS H AVE BEEN LEFT OUT. THE ONLY BROAD RATIONALE ONE CAN GESTICULATE & COMPREHEND IS THAT THE ORIGIN OF THE PROVISION OF SECTION 56(2)(VII) RELATES TO THE INTR ODUCTION OF THE CONCEPT OF GIFT/DEEMED GIFT INTO THE INCOME TAX ACT AFTER THE ABOLITION OF GIFT TAX ACT AN SINCE THE GIFT TAX USED TO AFFECT LARGELY TO INDIVI DUAL AND HUF, THE APPLICABILITY OF THIS PROVISION HAS ALSO BEEN RESTRICTED TO INDIV IDUAL AND HUF ONLY. SIR, FURTHER, THE PROVISIONS OF SECTION 56(2)(VII)( B)(II) IS A DEEMING PROVISION FOR THE PURPOSE OF BRINING TO TAX THE DIFFERENCE BE TWEEN STAMP DUTY VALUE AND ACTUAL CONSIDERATION MENTIONED IN THE CONVEYANCE DE ED AS INCOME FROM OTHER SOURCE AND IN ABSENCE OF ANY LEGALLY ACCEPTABLE EVI DENCE THE CIRCLE VALUE ADOPTED BY THE STATE AGENCY FOR THE PURPOSE OF STAM P DUTY WOULD NOT I CANNOT SUBSTITUTE THE ACTUAL SALE CONSIDERATION PASSED TO THE SELLER BY THE BUYER. THE ASSESSEE HAS DULY DISCLOSED THE COST OF PROPERT Y PURCHASED AS PER CONSIDERATION PAID BY HIM TO THE SELLER. THEREFORE, THE ASSESSEE HAS DISCHARGED IS BURDEN OF PROVING PURCHASE CONSIDERATION A PER S ALE DEED. NOW THE AO WAS OBLIGED TO BRING ON RECORD THE POSITIVE EVIDENCE SU PPORTING THE PRICE ASSESSED BY THE COMPETENT AUTHORITY OF STATE GOVT FOR THE PU RPOSE OF STAMP DUTY. IN THE IMPUGNED CASE THE AO HAS FAILED TO DO SO AND ARBITR ARILY ADAPTED STAMP DUTY VALUE AND ILLEGALLY ADDED OF RS.6,60,692.00 I.E. EX CESS OF ITS OVER ACTUAL CONSIDERATION TO THE TOTAL INCOME OF THE APPELLANT. SIR, FURTHER, FROM LEGALITY POINT OF VIEW OF STAMP DUTY VALUE ADAPTED BY THE STATE AGENCY ON WHICH STAMP DUTY IS PAYABLE, WE WOU LD LIKE TO SUBMIT AS UNDER:- ONE OF THE BASIC INGREDIENTS FOR MAKING ADDITION U /S 56(2)(VII)(B)(II) IS STAMP DUTY VALUE ADAPTED BY THE STATE AGENCY ON WHI CH STAMP DUTY WAS PAID. AT THE SAME TIME THE STAMP DUTY VALUE HAVE BEEN ALS O BASIS FOR DETERMINING TAXABLE INCOME U/S 50C AND U/S 43CA OF THE ACT. THEREFORE, LEGAL VALIDITY OF ADAPTING STAMP DUTY VA LUE IN DETERMINING ITA NO. 869/KOL/2018 A .Y. 2014-15 GAUTAM BHAKAT VS. ITO WD-23(2), H GY. PAGE 4 TAXABLE INCOME IS OF GREAT IMPORTANCE AND REQUIRED TO BE CONSIDERED EITHER FOR SECTION 50C OR SECTION 56(2)(VII) OF THE ACT. HERE I WOULD LIKE TO RELY ON THE FOLLOWING JUDGMENTS WHEREIN LEGAL VA LIDITY OF STAMP DUTY VALUE HAS BEEN RULED OUT AND CONSIDERED TO BE IRREL EVANT FOR THE PURPOSE OF DETERMINING TAXABLE INCOME. 1. CIT V. CHANDANI BHOCHAR (2010) 323 ITR 519 (P&H) FU LL VALUE OF CONSIDERATION. ASSESSEE DISCLOSED THE PURCHASE PRICE AT RS.17.06 L ACS AS STATED IN THE SALE DEED BUT THE ASSESSING OFFICER ADOPTED THE VALUE AT RS.30.32 LACS WHICH WAS ASSESSED FOR THE PURPOSE OF PAYING STAMP DUTY AND THE DIFFERENCE \VAS ADDED TO THE TOTAL INC OME AS INCOME FROM UNEXPLAINED SOURCE. THE COMMISSIONER (APPEALS) DELETED THIS ADDITION HOLDING THAT SECTION 50C OF THE INCOME TAX ACT, 1961 WAS A DEEMING PROVISION FOR THE PURPOSE OF BRINING TO T AX THE DIFFERENCE AS CAPITAL GAIN AND IN THE ABSENCE OF ANY LEGALLY A CCEPTABLE EVIDENCE, THE VALUATION DONE FOR THE PURPOSE OF SEC TION 50C WOULD NOT REPRESENT THE ACTUAL CONSIDERATION PASSED ON TO THE SELLER. THE TRIBUNAL ALSO HELD HAT VALUATION DONE BY ANY STATE AGENCY FOR THE PURPOSE OF STAMP DUTY WOULD NOT IPSO FACTO SUBSTITU TE THE ACTUAL SALE CONSIDERATION AS BEING PASSED ON TO THE SELLER BY THE PURCHASER IN THE ABSENCE OF ANY ADMISSIBLE EVIDENCE , AND THAT THE ASSESSING OFFICER WAS OBLIGED TO BRIG ON RECORD POS ITIVE EVIDENCE SUPPORTING THE PRICE ASSESSED BY THE STATE GOVERNME NT FOR THE PURPOSE OF STAMP DUTY. UPHOLDING THE DECISIONS OF C IT(APPEALS) AS WELL AS TRIBUNAL IN JUSTIFYING THE CORRECTNESS OF R ECORDING THE FACT THAT THE ASSESSEE HAD DISCHARGED THE BURDEN OF PROV ING THE SALE CONSIDERATION AS PROJECTED IN THE SALE DEED, THE AP PEAL HAVING NO QUESTION OF LAW, WAS UNADMITTED. 2. SUNIL KUMAR AGARWAL V. CIT (CALCUTTA HIGH COURT) (2 014) 226 TAXMAN. SEC. 50C: IF THE STAMP DUTY VALUATION IS HIGHER THA N THE CONSIDERATION RECEIVED, THE AO MUST REFER THE VALUATION TO THE AO EVEN IF THERE IS NO REQUEST BY THE ASSESSEE. THE ASSESSEE SOLD A PIECE OF LAND FOR RS.10 LAKHS A ND OFFERED CAPITAL GAINS. HOWEVER, THE AO, CIT(A) & TRIBUNAL HELD THAT AS THE MARKET VALUE OF THE LAND WAS ASSESSED BY THE DISTRICT SUB REGISTRAR AT RS.35 LAKHS FOR STAMP DUTY PURPOSES, WHICH WAS DULY PAID BY THE BUYER, THE CONSIDERATION HAD TO BE TAKEN AT THAT FIGURE U/S 50 C. ON APPEAL BY THE ASSESSEE TO THE HIGH COURT HELD ALLOWING THE APPEAL : NO INFERENCE CAN BE MADE THAT THE ASSESSEE HAS ACCE PTED THE PRICE FIXED BY THE DISTRICT SUB REGISTRAR FOR STAMP DUTY PURPOSES AS THE FAIR MARKET VALUE OF THE PROPERTY. THE LEGISLATURE DID N OT INTEND THAT THE CAPITAL GAIN SHOULD BE FIXED MERELY ON THE BASIS OF THE VALUATION TO BE MADE BY THE DISTRICT SUBS REGISTRAR FOR PURPOSE OF STAMP DUTY. THE LEGISLATURE HAS TAKEN CARE TO PROVIDE ADEQUATE MACH INERY TO GIVE A FAIR TREATMENT TO THE CITIZEN/TAXPAYER. THERE IS NO REAS ON WHY THE MACHINERY PROVIDED BY THE LEGISLATURE SHOULD NOT BE USED AND THE BENEFIT THEREOF SHOULD BE REFUSED. EVEN IN A CASE W HERE NO SUCH PRAYER THE AO DISCHARGING A QUASI JUDICIAL FUNCTION, HAS T HE BOUNDEN DUTY TO ITA NO. 869/KOL/2018 A .Y. 2014-15 GAUTAM BHAKAT VS. ITO WD-23(2), H GY. PAGE 5 ACT FAIRLY AND TO GIVE A FAIR TREATMENT BY GIVING HIM AN OPTION TO FOLLOW THE CURSE PROVIDED BY LAW. 3. CIT V. SARIJAN REALTIES LTD. (2013) 40 TAXMAN. COMM ISSION 398 /(2014) 220 TAXMAN 112 (MAG)(GUJ.) DEEMING FICTION CREATED BY SECTION 50C WHICH SUBSTI TUTES CONSIDERATION RECEIVED ON SALE OF A CAPITAL ASSET B Y STAMP DUTY VALUATION IS APPLICABLE ONLY IN CASE OF SELLER AND NOT BUYER OF THE PROPERTY. 4. CIT V. HANUMAN PRASAD GANERIWALA (2014) 43 TAXMANN. COM 133.122 TAXAMAN 126 (DELHI)(MAG). CIRCLE RATE AS STIPULATED UNDER SECTION 50C CAN BEC OME STARTING POINT OF ENQUIRY BUT CANNOT BE SOLE CONCLUDING REAS ON TO HOLD THAT THERE WAS UNDER STATEMENT OF SALE CONSIDERATION. 5. MAHTAB ALAM, NEW DELHI V. I. TAX DEPARTMENT ITAT NO. 3656/DEL/2013 IT WAS RULED THAT ON THE BASIS OF DIFFERENCE BETWEE N THE MARKET PRICE AND APPARENT SALE CONSIDERATION, NO ADDITION CAN BE MADE WITHOUT MAKING ATTEMPT FOR VERIFYING THE PRICE FROM THE SELLER OF THE PROPERTY. IN OTHER WORDS THERE NO POSITIVE MATERIAL EVIDENCING THE MAKING ACTUAL INVESTMENT BY THE ASSESSEE OVER AND A BOVE DISCLOSED SUM. RELIANCE IS ALSO PLACE ON SUPREME COURT DECISION IN THE CASE OF K.P.VARGHESE V. ITO (1981) 131 ITR 597 (SC) IN ABSENCE OF ANY EVIDENCE BROUGHT ON RECORD TO SH OW THAT THE ASSESSEE HAD INVESTED MORE THAN THE PURCHASE CONSID ERATION DISCLOSE ADDITION MADE FOR UNEXPLAINED INVESTMENT C OULD NOT BE SUSTAINED. CONSIDERING THE ABOVE SUBMISSION, WE PRAY BEFORE YO UR HONOUR FOR NATURAL JUSTICE AND SET RIGHT THE MISTAKE MADE BY T HE LEARNED AO WHILE PASSING THE ASSESSMENT ORDER. FOR SUCH KIND OF ACT, YOUR APPELLANT SHALL BE EVER GRATEFUL TO YOU. 4. THE ONLY GROUND RAISED BY THE APPELLANT IS IN RE SPECT OF ADDITION OF RS.6,60,962.00 U/S 56(2)(VII) BEING THE DIFFERENCE BETWEEN VALUE MENTIONED IN THE CONVEYANCE DEED AND THE STAMP DUTY VALUE OF IMM OVABLE PROPERTIES. THE APPELLANT HAS MAINLY CHALLENGED THE VALIDITY OF THE ADDITION ON THE GROUND THAT THE PROVISION OF SEC. 56(2)(VII) DOES NOT APPLY TO TRANSACTIONS WHERE CONSIDERATION IS INVOLVED AND THEREBY THAT THE SAID PROVISION WAS APPLIED FOR GIFT TRANSACTIONS ONLY. HAVING GONE THROUGH THE APP ELLANTS CONTENTION AS WELL AS THE RELEVANT PROVISION OF THE ACT, I DO NOT FIND ANY SUBSTANCE IN THE APPELLANTS CONTENTION. THE LAW IN SUCH RESPECT IS VERY CLEAR AND APPLIES TO BOTH TYPE TRANSACTIONS I.E. WHETHER NO CONSIDERATIO N INVOLVED I.E. GIFT TRANSACTIONS AND ALSO TO T RAN WHERE CONSIDERATION IS INVOLVED BUT CONSIDERATION IS LESSER THAN THE FAIR MARKET VALUE. FAIR MARKET V ALUE IN SUCH RESPECT HAS BEEN BENCH MARKED TO THE STAMP DUTY VALUE AND IN THE CAS E OF THE APPELLANT THE F.M.V. OF THE IMPUGNED PROPERTY IS HIGHER THAN THE CONSIDERATION SO MENTIONED IN THE CONVEYANCE DEED AND HENCE, THE APP ELLANTS CONTENTION IN SUCH RESPECT STAND REJECTED. HENCE, THE ONLY GROUND OF THE APPELLANT IS REJECTED. ITA NO. 869/KOL/2018 A .Y. 2014-15 GAUTAM BHAKAT VS. ITO WD-23(2), H GY. PAGE 6 3. SOME KEY FACTS EMERGE FROM THE ABOVE DETAILED LO WER APPELLATE FINDINGS. THERE IS NO DISPUTE ABOUT THE ASSESSEE HAVING PURCHASED F OUR IMMOVABLE PROPERTIES INVOLVING LESS THAN STAMP VALUE(ES) RATE(S) TO THE TUNE OF 6,60,962/-. HE RAISED VARIOUS LEGAL ARGUMENTS BEFORE THE CIT(A) WHICH REJ ECTED. I FIND THAT SEC.56(2)(VII)(B) IS APPLICABLE IN CASE OF AN INDIVIDUAL OR AN HUF RE CEIVING ANY IMMOVABLE PROPERTY HAVING STAMP VALUE EXCEEDING 50,000/- RUPEES WITHOUT CONSIDERATION OR SUCH A CONSIDERATION TO BE LESS THAN STAMP PRICE OF THE PR OPERTY BY AN AMOUNT EXCEEDING 50,000/- RUPEES. LEARNED COUNSEL VEHEMENTLY CONTEND ED THAT BOTH THE LOWER AUTHORITIES HAVE ERRED IN LAW AS WELL AS ON FACTS I N INVOKING THE IMPUGNED STATUTORY PROVISION. I FIND NO MERIT IN THIS ARGUMENT SINCE T HE LEGISLATURE HAS MADE IT CLEAR IN LAST PROVISO TO SEC. 56(2)(VII) THAT THIS CLAUSE DOES NO T APPLY TO ANY SUM OF MONEY OR ANY PROPERTY RECEIVED FROM ANY RELATIVE OR DONOR AS PER CLAUSES (A) TO (G) THEREIN. THIS IS NOT THE ASSESSEES CASE THAT HIS FOUR TRANSACTIONS ARE IN ANY WAY COVERED IN THE LAST PROVISO. I THEREFORE DO NOT FIND ANY REASON TO INTE RFERE WITH THE LOWER AUTHORITIES ACTION INVOKING SECTION 56(2)(VII)(B) CLAUSE (II) O F THE ACT. 4. NOW COMES FAIR MARKET VALUE OF THE ASSETS IN ISS UE. IT IS AN ADMITTED FACT THAT NEITHER OF THE LOWER AUTHORITIES MADE ANY REFERENCE TO THE DVO. SECTION 56 FIRST PROVISO MAKE IT CLEAR THAT WHERE THE STAMP DUTY OF IMMOVABLE PROPERTY IS DISPUTED ON GROUNDS MENTIONED IN SEC. 50C(2), THE ASSESSING OFF ICERS MAY REFER SUCH A VALUATION TO THE DVO. HON'BLE JURISDICTIONAL HIGH COURTS DEC ISION IN SUNIL KUMAR AGARWAL VS. CIT (SUPRA) HOLDS THAT A REFERENCE U/S 50C HAS TO BE M ANDATORILY MADE EVEN IF THE ASSESSEE CONCERNED FAILS TO MAKE SUCH REQUEST I THE REFORE APPLY THE SAID RATIO MUTATIS MUTANDIS IN LIGHT OF PROVISO HEREINABOVE TO RESTORE THE FAI R MARKET VALUE ISSUE BACK TO THE ASSESSING OFFICER FOR AFRESH ADJUDICATION AFTER MAKING NECESSARY REFERENCE TO THE DVO AS PER LAW. 4. THIS ASSESSEES APPEAL IS PARTLY ACCEPTED FOR ST ATISTICAL PURPOSES IN ABOVE TERMS. ORDER PRONOUNCED IN OPEN COURT ON 05/10/2018 SD/- (S.S. GODARA) JUDICIAL M EMBER KOLKATA, *DKP/SR.PS ITA NO. 869/KOL/2018 A .Y. 2014-15 GAUTAM BHAKAT VS. ITO WD-23(2), H GY. PAGE 7 - 05/10/2018 / COPY OF ORDER FORWARDED TO:- 1. /APPELLANT-GAUTAM BHAKAT, 4(3), BENGAL COAL LANE, SHEORAPHU LI, HOOGHLY-712223 2. /RESPONDENT-ITO WARD-23(2), AAYAKAR BHAWAN, KHADINA MORE, G.T. ROAD, HOOGHLY-7 12101 3. ' % / CONCERNED CIT 4. % - / CIT (A) 5. & ))' , ' / DR, ITAT, KOLKATA 6. + / GUARD FILE. BY ORDER/ , SR. PRIVATE SECRETARY, HEAD OF OFFICE/DDO ',