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Tax Bulletin

Vispi T. Patel & Associates

Chartered Accountants

322, 3rd floor, Tulsiani Chambers,

212, Nariman Point,

Mumbai – 400 021, India

Email ID: vispitpatel@vispitpatel.com

Contact Nos.: +91 22 2288 1091 / 1092

+91 9867 635 555

January 10, 2017 2

Income-tax Appellate Tribunal (‘ITAT’), Hyderabad ruling – Where the sale of property in

question is subjected to certain encumbrances, is it justified to reject the transaction value which

is very low as compared to the stamp duty valuation without referring the matter to the valuation

officer?

Asst. CIT, Circle 5(1), Hyderabad vs. Lalitha Karan [ITA No. 1130/Hyd/2015] (AY 2011-12)

Facts of the case:

Lalitha Karan, the assessee had derived long term capital gains amounting to INR 14,23,805 on

the sale of property in which the assessee had 50% share. The property of the assessee was

occupied by the tenants for over 60 years and litigation over the property was pending under the

Maharashtra Rent Control Act.

In spite of advertisement in the newspapers, nobody came forward to purchase the property

because of litigation. Thus, the property was sold at a lower rate than the market value, with a

clause in the sale deed that the purchaser would deal with the tenants and vacate the property. The

sale deed also contained a clause that the property was sold under “as is where is” condition.

During the scrutiny assessment, the assessee made a specific request to the Assessing Officer

(‘AO’) that the matter be referred to the Departmental Valuation Officer (‘DVO’) but the request

was turned down by the AO. The AO stated that in law he is bound to adopt the value of the

stamp valuation authority u/s 50C of the Act, for the purpose of computation of capital gains.

Further, he has no discretion whatsoever in this matter and hence, the circumstances of sale of

property explained by the assessee had no relevance to the adoption of valuation while applying

the said section. Thus, the AO passed the assessment order by adopting the stamp value of the

property and rejecting the transaction value as adopted by the assessee.

Aggrieved by the said order, the assessee appealed before the Commissioner of Income-tax

(Appeals) (‘CIT(A)’). The CIT(A) observed that the AO is bound to refer the valuation of the

property to the DVO, if the assessee claims that the value adopted by the registration authorities

does not represent correct market value. He further observed that the AO had brushed aside the

assessee’s valid and relevant objections. Thus, the CIT(A) concluded that the addition made by

the AO was without following the due process of law and, hence, the same cannot be sustained

and accordingly deleted the addition.

Aggrieved by the order of the CIT(A), the revenue appealed to the ITAT by stating that the

CIT(A) ought to have remanded the issue to the file of the AO with a direction to refer the

valuation of property to the DVO and not simply delete the additions made by the AO.

January 10, 2017 3

Key Observations and decision of the ITAT, Hyderabad:

The Hon’ble ITAT stated that the powers of CIT(A) are subject to section 250 of the Act whereby

the CIT(A) has no power to set aside any issue even in a genuine case and, hence, the only option

left to the CIT(A) is either to allow the appeal of the assessee after obtaining the remand report

or to dismiss the appeal of the assessee.

Further, the ITAT observed that the AO failed to address the fact that the property was not free

from encumbrance and that the AO had not taken fair market value (‘FMV’) of the property into

consideration, though a statutory duty is imposed upon the AO to obtain the value by referring

the matter to DVO. In other words, the AO chose to brush aside the submissions of the assessee,

by not referring the matter to the DVO.

It was noted that there are catena of decisions on this point and, on other hand, referring to the

speech of the Finance Minister as well as circular issued by the CBDT bringing the intention of

the legislature whereby it was held that the AO is duty bound to refer the matter to the DVO when

the reasons were thoroughly mentioned by the assessee for the FMV that it could fetch in the facts

and circumstances of the case.

The ITAT observed that the property was purchased on “as is where is” condition with a specific

clause that any further litigation will be dealt with by the purchaser and under those

circumstances, generally, market value cannot be adopted. In these circumstances, the Courts

have time and again held that reference u/s 50C(2) of the Act is mandatory and that the AO having

failed to follow such provisions, should not be given one more chance to refer the matter to the

DVO.

Further, relying on the principles laid down by the Hon’ble Supreme Court in the case of Manish

Maheshwari vs. ACIT and another, and Indore Construction P. Ltd. vs. CIT, [2007] 289 ITR 341

(SC), the ITAT concluded that when the AO has not followed the procedure prescribed u/s

50C(2), such an addition deserves to be deleted.

Our Comments:

The use of the word ‘may’ under Section 50C(2) of the Act was always a subject matter of litigation

because in many cases, the AO did not refer the case to the DVO despite strong objections from the

assessee on stamp valuation.

This judgement lays down that the AO is duty bound to refer the matter to the DVO when on the

facts and circumstances of the case, the assessee claims that the value adopted by the stamp duty

authorities does not represent the fair market value, due to certain mitigating circumstances.

Disclaimer

The information contained herein is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although

we endeavor to provide accurate and timely information, there can be no guarantee that such information is accurate as of the date it is received or that it

will continue to be accurate in the future. No one should act on such information without appropriate professional advice and after a thorough examination

of the particular situation.