I TA N o. 20 2/ RP R/ 2 01 4 As s ess m e nt Ye r: 20 10 - 1 1 Page 1 of 4 IN INCOME TAX APPELLATE TRIBUNAL, RAIPUR BENCH, SMC , RAIPUR [Coram: Pramod Kumar AM] ITA No.202/RPR/2014 Assessment Year: 2010-11 Narendra Kumar Lunia .Appellant P/o. Manmal Shantilal Lunia, Gandhi Ward, Mungeli (CG) 495 334. [PAN: ADDPB 5567 D] Vs. Dy. Commissioner of Income Tax, Circle 2(1), Bilaspur (C.G.) ...... .Respondent Appearances by: Sunil Agrawal, for appellant D.K. Jain, for respondent Date of concluding hearing: 23.06.2016 Date of pronouncing order : 22 .09.2016 O R D E R By way of this appeal, assessee appellant has challenged correctness of order dated 18.03.2014, passed by learned CIT(A), Bilaspur (C.G.), in matter of assessment under section 143(3) of Income Tax Act, 1961 for assessment year 2010-11, on following grounds :- 1. That Hon ble CIT (Appeals) has erred in confirming addition made by Assessing Officer of Rs.27,25,071/- as difference of long term capital gain which comes under business income, which is most arbitrary and unjustified. 2. That Hon ble CIT(A) has erred in confirming penalty u/s. 271(1)(c) which is most arbitrary and unjustified. 3. That Hon ble CIT(A) has erred in not admitting revised return filed by appellant at time of hearing. I TA N o. 20 2/ RP R/ 2 01 4 As s ess m e nt Ye r: 20 10 - 1 1 Page 2 of 4 2. To adjudicate on this appeal only few material facts need to be taken note of. During course of assessment proceedings Assessing Officer noted that stamp duty valuation of property, on sale of which LTCG were offered to tax, was much more than stated consideration on sale of land. It was in this backdrop that Assessing Officer adopted full value of consideration at stamp duty valuation under section 50C of Act as against value on which property was actually sold. Aggrieved, assessee carried matter in appeal before ld. CIT(A) but without any success. Assessee is not satisfied and is in further appeal before me. 3. I have heard rival contentions, perused material on record and duly considered facts of case in light of applicable legal position. I find that even though assessee may not have made specific request for reference to DVO, it was bounden duty of Assessing Officer to act fairly and should have given assessee opportunity of referring matter to DVO for verification, under section 50C(2). As I say so, I may only refer to following observation made by Division Bench of this Tribunal in case of Raj Kumari Agarwal vs. DCIT, 150 ITD 597 : 6. We find that here is case in which assessee has specifically objected to adoption of stamp duty valuation rate. mere fact that appellant has not challenged stamp duty valuation cannot be put against assessee. authority for this proposition is contained in, Hon ble jurisdictional High Court s judgment, in case of CIT Vs Chandra Narain Chaudhuri ([2013] 38 taxmann.com 275 (Allahabad), wherein Their Lordships have observed that, question as to whether assessee filed any objections before Stamp Valuation Authority to dispute valuation, or filed appeal or revision or made reference before any authority, court or High Court under sub section (2) (b) of Section 50 C of Act is not of any relevance in this case, as AO himself observed that assessee did not dispute stamp valuation before Stamp Valuation Authority. There may be several reasons for purchaser not to file such objection. purchaser may not go into litigation, and pay stamp duty, as fixed by Stamp Valuation I TA N o. 20 2/ RP R/ 2 01 4 As s ess m e nt Ye r: 20 10 - 1 1 Page 3 of 4 Authority, which may be over and above fair market value of property, as on date of transfer, though amount so determined has not been actually received by owner of property . position as to whether reference should be made to DVO, even when there is no specific plea to that effect by assessee, is now well set out in Hon ble Calcutta High Court s judgment in case of Sunil Kumar Agarwal CIT (GA No 3686/2013 in ITAT No 221/ 2013; judgment dated 13th March 2014), wherein Their Lordships have, inter alia, observed as follows:- .we are of opinion that valuation by departmental valuation officer, contemplated under Section 50C, is required to avoid miscarriage of justice. legislature did not intend that capital gain should be fixed merely on basis of valuation to be made by District Sub Registrar for purpose of stamp duty. legislature has taken care to provide adequate machinery to give fair treatment to citizen/taxpayer. There is no reason why machinery provided by legislature should not be used and benefit thereof should be refused. Even in case where no such prayer is made by learned advocate representing assessee, who may not have been properly instructed in law, assessing officer, discharging quasi judicial function, has bounden duty to act fairly and to give fair treatment by giving him option to follow course provided by law. 7. As there is no binding judicial precedent contrary to what has been held by Hon ble Calcutta High Court, as above, esteemed views of Their Lordships, even though from non jurisdictional High Court, bind us as well. 8. In light of above legal position, plea of assessee, as set out in ground of appeal, is indeed well taken. prevailing legal position is now like this. Once assessee claims that actual market value of land or building is less than stamp duty valuation adopted by authorities, it is incumbent upon Assessing Officer to refer valuation of said land or building to departmental valuation officer. In present case, Assessing Officer has not done so. In view of this factual position, and in light of discussions above, we deem it fit and proper to remit matter to file of Assessing Officer for adjudication de novo after making reference to DVO, and completing assessment on basis of valuation so received from DVO. While so deciding matter afresh, Assessing Officer will decide matter in accordance with law, by way of speaking order and after giving reasonable opportunity of hearing to assessee. We direct so. 4. In view of view so expressed by division bench as also decision of Hon ble Calcutta High Court in case of Sunil Kumar Agarwal (supra), I deem it fit and proper to remit matter to file of Assessing Officer with direction to I TA N o. 20 2/ RP R/ 2 01 4 As s ess m e nt Ye r: 20 10 - 1 1 Page 4 of 4 refer valuation of property to DVO under section 50C(2) of Act. This is precisely what learned Counsel for assessee before us has prayed for. 5. In result, appeal is allowed in terms indicated above. Pronounced under rule 34(4) of Appellate Tribunal Rules 1963 today on 22nd day of September, 2016. Sd/- Pramod Kumar (Accountant Member) Dated: 22 nd day of September, 2016. PBN/* Copies to: (1) appellant (2) respondent (3) CIT (4) CIT(A) (5) DR (6) Guard File By order Assistant Registrar Income Tax Appellate Tribunal Raipur Bench, Raipur Narendra Kumar Lunia v. Dy. Commissioner of Income Tax, Circle 2(1), Bilaspur