Decided on September 10,2014



D.Manmohan, Vice President - (1.) THIS appeal, by the assessee, is directed against the order passed by the CIT(A) -23, Mumbai and it pertains to ay 2006 -07.
(2.) THERE is a delay of nine days in filing the appeal. Assessee filed an explanation seeking condonation of delay. Having regard to the circumstances of the case the delay in filing the appeal is condoned and the appeal is taken for hearing on merits. Facts necessary for disposal of the appeal are stated in brief. During the previous year relevant to the AY under consideration assessee sold a plot at Palghar for a total consideration of Rs. 1,00,000/ -. In the opinion of the AO the consideration declared is low. He therefore adopted the value determined by the Stamp Authorities in the place of the sale consideration declared by the assessee and accordingly determined the long term capital gain of Rs. 2,85,264/ -.
(3.) AGGRIEVED , assessee contended before the CIT(A) that though the provisions of section 50C of the Act speaks of valuation determined by Stamp Duty Authorities as market value, when the assessee objected to the market value it is the duty of the AO to refer the matter to the Valuation Officer whereas in the instant case the AO refused to refer to the Valuation Officer and hence the value adopted by the AO is bad in law. The learned CIT(A) rejected the contention of the assessee. However, the appellate Tribunal, vide its order dated 07.10.2010 observed that when an assessee objected to the value adopted by Stamp Duty Authorities as market value, the AO has a discretion to refer the matter to the Valuation Officer for valuation of the capital asset. In the instant case the AO did not apply his mind on this aspect and hence the issue was set aside to the file of the AO with a direction to pass a speaking order. It was also mentioned that the assessee is free to produce any supporting material in respect of her claim that the market value is much lower than the stamp duty value. It deserves to be noticed that the Tribunal mentioned that the assessee is free to produce supporting material which do not indicate that the assessee is directed to produce supporting material; on the contrary it only shows that the AO is duty bound to apply his mind in an objective manner and to highlight that the value determined by the Stamp Duty Authorities is applicable in the instant case. The AO, however, proceeded on the assumption that the onus is upon the assessee to produce the material.;

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