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Income Tax Officer Ward-47 (2) New Delhi. Vs. Shriyansh Prasad Jain Overnite Express Ltd. Overnite House, Patel Nagar New Delhi 110 008
October, 01st 2015
                    IN THE INCOME TAX APPELLATE TRIBUNAL
                        DELHI BENCHES : "G" NEW DELHI

            BEFORE SHRI J.SUDHAKAR REDDY ACCOUNTANT MEMBER
                               AND
             SHRI SUDHANSHU SRIVASTAVA, JUDICIAL MEMBER


                                  ITA No: 3866/Del/2013
                                      AY : - 2009-10

                Income Tax Officer vs.     Shriyansh Prasad Jain
                Ward-47 (2)                Overnite Express Ltd.
                New Delhi.                  Overnite House, Patel Nagar
                                            New Delhi ­ 110 008

                                             (PAN AATPJ1544M)
                (Appellant)                    (Respondent)

                       Appellant by      : Shri Sujit Kumar, Sr. DR
                       Respondent by     : Shri Sunil Kumar Tayagi, CA

                     Date of Hearing      : 10.9.2015
               Date of pronouncement      : 30.9.2015


                                   ORDER

PER SUDHANSHU SRIVASTAVA, JUDICIAL MEMBER



       The present appeal has been filed by the Department against the order

dated 26.04.2013, passed by the Ld. Commissioner of Income Tax (Appeals) - XXX,

New Delhi . The brief facts of the case, as borne out from the records, are that order

u/s 143(3) was passed on 29.12.2011 at an assessed income of Rs. 37,01,410/-

against the returned income of Rs. 9,85,831/-. An addition of Rs. 27,15,579/- was

made by the AO u/s 50C of the Income Tax Act, 1961 (hereinafter called the Act).

The AO had observed that the assessee had sold a co-owned property for a total

sale consideration of Rs. 1,20,00, 000/- vide sale deed executed on 27.12.2008.
                                                         ITA No.3866/Del/2013
                                                    ITO vs. Shriyansh Prasad Jain

This property was co-owned by the assessee with a 50% share therein. The market

value of the property was Rs. 1,55,52,000/- for the purposes of stamp duty

valuation. During the course of assessment proceedings, the assessee sought a

referral to the DVO for valuation of the property and on his request the matter was

referred to the DVO u/s 50C(2) of the Act. The DVO in his valuation report

calculated the value of the property sold at Rs. 62,63,250/-, as against Rs.

60,00,000/- declared by the assessee, being one-half of his share in the joint

property. The AO however ignored the report of the DVO and took the value of sale

consideration for 50% share of the assessee at Rs.77,76,000/- u/s 50C of the Act.

The AO was of the opinion that section 50C of the Act makes it obligatory to treat

the value adopted by the stamp valuation authority as the deemed sale

consideration received/accrued as a result of transfer. Accordingly a long term

capital gain of Rs. 27,15,579/- was calculated and added to the income of the

assessee.





2.     On appeal, the Ld. CIT(A), after considering the submissions made by the

assessee, directed the AO to take the value of sale consideration at Rs. 62,63,250/-

on the basis of the DVO report. The CIT(A) also noted that the same value was

taken and accepted by Ld. CIT(A), Jaipur in the case of Mrs. Sunita Jain, the other

co-owner of the property. In the appeal before us, it is the Department's contention

that the Ld. CIT(A) has erred in accepting the valuation made by the DVO in respect

of another portion of the property owned by the co-owner and in reducing the

addition to Rs. 2,63,250/- on account of long term capital gains as per provisions of

50C of the Act. The Ld. AR on the other hand has argued that assessee had declared

the sale consideration of Rs. 60,00,000/- as per the sale deed. The stamp duty



                                                                                        2
                                                          ITA No.3866/Del/2013
                                                     ITO vs. Shriyansh Prasad Jain

authority had valued the same at Rs. 77,76,000/- and when the assessee disputed

the same, the matter was referred to the DVO by the AO. It was also submitted that

valuation is a subjective matter and different values could be arrived at by different

valuers and since section 50C is a deeming provision, the assessee should not be

denied the benefit of a lower valuation.


3.    We have duly considered the facts of the case and the surrounding

circumstances. It is undisputed that the assessee did object to the action of the AO

and accordingly the matter was referred to the DVO. In our considered opinion, once

the assessee has raised objections against the value adopted by the stamp duty

authority and the AO has referred the matter to the DVO at his instance, the report

of the DVO cannot be ignored and the AO is duty bound to adopt lower of either the

valuation made by the DVO or that of the stamp duty authority. As per section

50C(1), the valuation as fixed by the stamp valuation authority is taken as a bench

mark. As per section 50C(2), the bench mark          can be reviewed by making a

reference to the valuation officer if the assessee claims that such value exceeds the

fair market value. As per section 50C(3), if the valuation as arrived at by the DVO 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. On a similar footing, where the valuation, as arrived at by the DVO, is less

that the valuation as per the stamp duty authority, the valuation as per the DVO

should be adopted. The learned CIT(A) has adjudicated the issue on similar lines.

We also find from records that the Learned CIT(A) - II, Jaipur has also discussed the

same issue in his order dated 30/08/2012 in Appeal No. 531/11-12, in which the

case of the other co-owner Mrs. Sunita Jain was considered and he has also pegged



                                                                                         3
                                                                  ITA No.3866/Del/2013
                                                             ITO vs. Shriyansh Prasad Jain

the valuation at Rs.62,63,250/- being the value of the other half of the property.

Therefore, in the circumstances of the case, it is our considered opinion that the Ld.

CIT(A)'s action in taking the value calculated by the DVO for calculation of long

term capital gains is perfectly in order. We accordingly uphold the order of the Ld.

CIT(A) and decline to interfere.





4.        In the result the appeal filed by the revenue is dismissed.


          Order pronounced in the open court on 30th September, 2015.



                  sd/-                                     sd/-
             (J. SUDHAKAR REDDY)                   (SUDHANSHU SRIVASTAVA )
              ACCOUNTANT MEMBER                      JUDICIAL MEMBER


Dated: the 30. 9. 2015
`veena'

Copy of the Order forwarded to:

1.    Appellant
2.    Respondent
3.    CIT
4.    CIT(A)
5.    DR
6.    Guard File                              By order
                                                         Dy. Registrar

Sl.                      Description                      Date
No.

 1.   Date of dictation by the Author                11.9.2015

 2.   Draft placed before the Dictating Member       11.9.2015

 3.   Draft placed before the Second Member

 4.   Draft approved by the Second Member

 5.   Date of approved order comes to the Sr. PS

 6.   Date of pronouncement of order




                                                                                             4
                                                      ITA No.3866/Del/2013
                                                 ITO vs. Shriyansh Prasad Jain

7.   Date of file sent to the Bench Clerk

8.   Date on which file goes to the Head Clerk

9.   Date of dispatch of order




                                                                                 5

 
 
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