DCIT,Cir-1, Siliguri, Siliguri v. G.C.S. Global (Pvt) Ltd., Siliguri

ITA 2097/KOL/2009 | 2006-2007
Pronouncement Date: 28-05-2010

Appeal Details

RSA Number 209723514 RSA 2009
Assessee PAN THMAY2010C
Bench Kolkata
Appeal Number ITA 2097/KOL/2009
Duration Of Justice 5 month(s) 18 day(s)
Appellant DCIT,Cir-1, Siliguri, Siliguri
Respondent G.C.S. Global (Pvt) Ltd., Siliguri
Appeal Type Income Tax Appeal
Pronouncement Date 28-05-2010
Appeal Filed By Department
Bench Allotted SMC
Tribunal Order Date 28-05-2010
Assessment Year 2006-2007
Appeal Filed On 10-12-2009
Judgment Text
ITA NO.2097/KOL/09 1 IN THE INCOME TAX APPELLATE TRIBUNAL : A BENCH: K OLKATA (BEFORE HON.SHRI D.K.TYAGI JM & HON. SHRI B.K. HAL DAR AM) ITA NO. 2097/KOI/09 A.Y 2006-07 DEPUTY COMMISSIONER OF INCOME TAX - VS- M/S. G.C.S GLOBAL PVT. LTD CIRCLE-1 SILIGURI PAN: AAACG-7963P (APPELLANT) (RESPONDENT) APPELLANT BY: SMT. JYOTI KUMARI RESPONDENT BY: SHRI R.K.AGARWAL ORDER PER B.K.HALDAR A.M :- THIS IS AN APPEAL FILED BY THE REVENUE AGAINST THE ORDER OF THE LD. CIT(A) SILIGURI DATED 04/09/2009 PASSED U/S.250 OF THE I.T.ACT61 F OR THE ASSESSMENT YEAR 2006-07. 2. THE REVENUE HAS TAKEN FOLLOWING GROUNDS OF APPE AL:- 1. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE E THE LD C.I.T(A) WAS JUSTIFIED IN DELETING RS.8 68 000/- ON ACCOUNT OF UNDISCLOSED INVESTMENT U/S. 69B OF THE I. T ACT 1 AS IN THIS CASE THE ASSESSEE IS FOUND TO HAVE PURCHASED PLOTS OF LAND THE VALUE OF WHICH HAS BEEN SHOWN AS RS.2 OO OOO/- & RS.1 00 00 0/- IN THE PURCHASE DEEDS. THE AO DETECTED THAT THE ADDL. DIST RICT SUB- REGISTRAR DETERMINED THE VALUE OF THE SAID PLOTS AT RS.6 68 000/- AND RS.5 00 000/- RESPECTIVELY. 2. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES O F THE CASE THE LD C.I.T(A) HAS ERRED IN DELETING THE SAID ADDITION MA DE U/S.69B OF THE I.T.ACT 1961. THE AO HAS CLEARLY STATED IN THE ORDER THAT THE PROVISION OF SECTION SOC IS NOT APPLICABLE IN THE C ASE AND THE ASSESSEE HAS NOT DISPUTED THE VALUATION MADE BY THE REGISTRAR. THE HON BLE HIGH COURT OF RAJASTHAN HAS UPHELD A SIMIL AR ADDITION MADE BY THE AO IN THE CASE OF SMT. AMAR KUMARI SURA NA VS. CIT 226 ITR 344. 3. THAT THE APPELLANT MAY BE ALLOWED TO ADD AMEND OR ALTER THE GROUNDS OF APPEAL IF ANY. ITA NO.2097/KOL/09 2 3. THE ASSESSING OFFICER DURING THE AS SESSMENT PROCEEDINGS NOTICED THAT THE ASSESSEE COMPANY PURCHASED TWO PLOTS OF LAND AS UND ER :- SL.NO. NAME OF VENDOR REGN SL.NO. DT. OF SALE DEED VALUE (RS.) VALUE DETERMINED FOR STAMP DUTY PURPOSE (RS.) AREA OF LAND SOLD L.R KHATIAN NO./J.L NO. 1. GOSTHA BIHARI DAS & NITYA GOPAL DAS I-1650 23.8.05 200000 6 68 000 14 KATHA 13 CH 23 SFT KH.NO. 143 & 144 J.L NO.2 2. GOSTHA BIHARI DAS & NITYA GOPAL DAS I-1644 23.8.05 100000 5 00 000 5 KATHA KH NO. 143 & 144 J.L NO.2 3.1 AS THE FAIR MARKET VALUE DETERMINED BY THE STAMP VA LUATION AUTHORITY [S.V.A I WAS MORE THAN THE APPARENT CONSIDERATION M ENTIONED IN THE RESPECTIVE SALE DEEDS THE ASSESSING OFFICER ISSUED A SHOW-CAUSE NO TICE TO THE ASSESSEE AS TO WHY THE EXCESS AMOUNT I.E. THE DIFFERENCE BETWEEN THE FAIR MARKET VALUE DETERMINED BY THE S.V.A AND THE APPARENT CONSIDERATION SHOWN IN THE D EED SHOULD NOT BE TAKEN AS UNDISCLOSED INVESTMENT OF THE ASSESSEE U/S.69B OF T HE 3.2 THE ASSESSEE EXPLAINED THAT THE PROVISION OF S ECTION 50C OF THE ACT IS ONLY APPLICABLE TO THE SELLER OF THE PROPERTY AND NOT TO THE PURCHASER OF THE PROPERTY. 3.3 THE ABOVE CONTENTION OF THE ASSESSEE WAS NOT ACCEPTED BY THE ASSESSING OFFICER ON THE FOLLOWING GROUNDS: A. WHEN IN THE HAND OF THE SELLER THE FAIR MARKET V ALUE [F.M.V] OF THE PROPERTY IS DETERMINED BY THE S. V.A IT FOLLOWS TH AT THE PURCHASER HAS MADE THE EXCESS PAYMENT TO THE SELLER. THUS PROVIS ION OF SECTION 69B APPLIES. ITA NO.2097/KOL/09 3 B. WHEN THE F.M. V OF THE PROPERTIES WERE DETERMIN ED BY THE S. V.A THE ASSESSEE DID NOT DISPUTE THE STAMP VALUATION OF THE PROPERTIES. THUS IT CAN BE INFERRED THAT THE ASSESSEE HAS PAID HIGHER A MOUNTS THAN THOSE SHOWN IN THE SALE DEEDS. C. IN THE CASE OF M/S. CRADLE COMPUTER (P) LTD SE VOKE ROAD SILIGURI THERE WAS A SURVEY OPERATION U/S.133A ON 23-7-07. DURING THE COURSE OF SURVEY IT WAS NOTICED THAT THE ABOVE COM PANY ALSO PURCHASED 7.5 KATHAS OF LAND AT DABGRAM BAIKUNTHAPUR P.S BH AKTINAGAR DIST:JALPAIGURI AT A COST OF RS.43 87 500/- I.E @ R S.5 85 000/- PER KATHA ALTHOUGH THE APPARENT CONSIDERATION SHOWN IN THE DE ED WAS RS.3 00 000/-. THE DIRECTOR OF THE COMPANY ADMITTED THE SAID INVES TMENT AND OFFERED TO PAY TAXES. THIS WOULD SHOW THAT THE VALUE DETERMINE D BY THE S. V.A IS MORE AUTHENTIC AND REASONABLE THAN THAT SHOWN IN TH E SALE DEED. D. AS THE ASSESSEE HAS NOT DISPUTED THE FAIR MARKE T VALUE [F.M. V] EITHER BEFORE THE STAMP VALUATION AUTHORITY OR BEF ORE THE ASSESSING OFFICER THE RATIO LAID DOWN BY THE HOON BLE RAJA STHAN HIGH COURT IN THE CASE OF SMT. AMAR KUMARI SURANA VS. CIT 226 ITR 34 4 IS APPLICABLE IN THE FACTS OF THE CASE. E. IN THE CASE OF SMT. AMAR KUMARI SURANA (SUPRA) THE HON BLE RAJASTHAN HIGH COURT HELD AS UNDER: EVEN IN SPITE OF SPECIFIC QUERY THE ASSESSEE FAILED TO POINT OUT ANY MISTAKE / LACUNA I N ASCERTAINING THE VALUE OF THE PLOT OF LAND BY THE VALUER. IN THESE CIRCUMS TANCES THE ONLY REASONABLE INFERENCE THAT CAN BE DRAWN IS THAT THE ASSESSEE HAS SHOWN LESS AMOUNT IN THE ACCOUNT BOOKS AND SALE DEED THAN THE ACTUAL CONSIDERATION PAID. CONSIDERING THE COMPARABLE CASE S AND THE FACTS OF THE CASE WE FIND NO GROUND TO INTERFERE IN THE ADDITIO N MADE U/S. 69B OF THE ACT 1961. 3.4 THUS THE ASSESSING OFFICER ADDED AN AMOUNT OF RS.8 68 000/- U/S.69B OF THE I.T.ACT61. 4. AGGRIEVED THE ASSESSEE FILED APPEAL BEFORE THE LEARNED COMMISSIONER OF INCOME- TAX (APPEALS). ITA NO.2097/KOL/09 4 5. THE SUBMISSIONS OF THE LEARNED AUTHORIZED REPRE SENTATIVE FOR THE ASSESSEE BEFORE THE LEARNED COMMISSIONER OF INCOME-TAX(APPEALS) HAS BEEN SUMMARISED BY THE LEARNED COMMISSIONER OF INCOME-TAX(APPEALS) AS UNDER:- THE LD AR SUBMITTED THAT THE LD AO HAS ADDED A SUM OF RS.8 68 000/- AS UNEXPLAINED INVESTMENT U/S.69B. THE ASSESSEE COMPAN Y HAVE PURCHASE TWO PLOTS OF LAND FOR RS. 3 00 000/- ON 23.08.2005 AND THE DISTRICT SUB- REGISTRAR HAS ASSESSED THE VALUE OF THE SAID PROPER TY FOR STAMP DUTY PURPOSE U/S.50C AT RS.11 68 000/-. THE VALUATION MA DE BY THE REGISTRAR HAS NOTHING TO DO WITH THE VALUE OF PURCHASE PAID B Y THE ASSESSEE. THERE WAS NO ELEMENT OF UNDISCLOSED INVESTMENT. MEMO OF R ECEIPT ATTACHED WITH DEED OF REGISTRATION CLEARLY STATES WHICH THE VENDO R ACKNOWLEDGES THAT RS.3 00 000/- HAS BEEN PAID FOR THE VALUE OF THE LA ND. NEITHER THE PURCHASER NOR THE VENDOR HAS ACKNOWLEDGED THAT THEY HAVE PAID OR RECEIVED MORE THAN THE VALUE OF RS. 3 LAKH. HENCE THE ADDITION MADE U/S.69B IS PURELY IMAGINARY BASED ON SUSPICION AND SHOULD BE DELETED. 5.1 CONSIDERING THE FACTS AND CIRCUMSTANCES OF THE CASE THE LEARNED COMMISSIONER OF INCOME-TAX(APPEALS) HELD THAT RS.8 68 000/- COUL D NOT BE ASSESSED IN THE HANDS OF THE ASSESSEE U/S.69B OF THE ACT FOR THE FOLLOWING REASO NS :- A. THE LEGAL FICTION CREATED BY SECTION 50C OF THE ACT CANNOT BE EXTENDED TO THE PURCHASER FOR ESTIMATING THE UNDISC LOSED INVESTMENT IN HIS/HER HAND. RELIANCE WAS PLACED ON THE CASE OF CO MMISSIONER OF INCOME-TAX VS. MOTHER INDIA REFRIGERATION INDUSTRIE S P LTD (1985) 48 CTR (SC) 176 AND COMMISSIONER OF INCOME-TAX VS. AMA RCHANDN. SHROFF (1963) 481TR 59(SC). B. REFERENCE MADE BY THE ASSESSING OFFICER TO THE CASE OF CREDLE COMPUTER P.LTD HAS NO RELEVANCE IN THE CASE OF THE ASSESSEE. THE ASSESSING OFFICER COULD HAVE MADE FURTHER INVESTIGA TION ON THE BASIS OF THE ABOVE EVIDENCE WHICH HE FAILED TO DO. THUS THE AS SESSING OFFICER MADE THE ADDITION MERELY ON SUSPICION AND SURMISES. C. THE PROVISIONS OF SECTION 50C ARE APPLICABLE ON LY IN THE CASE OF SELLER AND NOT TO PURCHASER AS HELD IN ITO VS. OPTE C DISC MFG. (2008) 11 DTR (CHD) (TRIB) 264; ITO VS. SATYA NARAYAN AGARWAL (2007) 112 TTJ (JD) 717. ITA NO.2097/KOL/09 5 D. THE DECISION IN THE CASE OF SMT. AMAR KUMARI SUR ANA (SUPRA) IS NOT APPLICABLE IN THE FACTS OF THE PRESENT CASE. THE VA LUATION REPORT OF THE DEPARTMENTAL VALUATION OFFICER ID VOL RELIED ON BY THE ASSESSING OFFICER IN THAT CASE WAS CONFRONTED TO THE ASSESSEE. COST O F ADJACENT PROPERTY WAS MUCH HIGHER AND THE ASSESSEE FAILED TO EXPLAIN THE DIFFERENCE BETWEEN THE TWO. 6. AGGRIEVED THE REVENUE HAS FILED APPEAL BEFORE THE TRIBUNAL. 7. BEFORE US IT WAS POINTED OUT BY THE LEARNED DEP ARTMENTAL REPRESENTATIVE THAT THERE IS SOME DEFECT IN THE APPEAL MEMO. HOWEVER A S THE LEARNED AUTHORISED REPRESENTATIVE FOR THE ASSESSEE DID NOT HAVE OBJECT ION TO PROCEED WITH THE APPEAL WE PROCEEDED TO HEAR THE CASE. 7.1 THE LEARNED DR RELIED ON THE ORDER OF THE ASSE SSING OFFICER. IT WAS SUBMITTED BY HER THAT THE ASSESSING OFFICER DID NOT RELY ON PROV ISION OF SECTION 50C OF THE ACT FOR MAKING THE IMPUGNED ADDITION. IT WAS PRAYED THAT TH E DEPARTMENTAL APPEAL B-E ALLOWED. 8. THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE A SSESSEE ON THE OTHER HAND RELIED ON THE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX(A). IT WAS SUBMITTED BY HIM THAT IF ON THE BASIS OF SECTION 50C SUCH ADDITION C OULD BE MADE THERE WAS NO NEED TO MAKE THE AMENDMENT W.E.F. 1-10-2009 WHEREIN SECTIO N 56(1)(VII)(B) WAS INSERTED. IT WAS ALSO SUBMITTED BY HIM THAT THERE WAS NO MATERIAL BE FORE THE ASSESSING OFFICER TO MAKE THE IMPUGNED ADDITION. RELIANCE WAS PLACED ON THE O RDER DTD. 23-12-2009OF THE HONBLE ITAT KOLKATA BENCH IN THE CASE OF DCIT CIR-2 SILI GURI VS. DR.R.K.AGARWAL SILIGURI IN IT(SS) A NO.30/KOL/2009 FOR THE A.Y 2006-07. 9. WE HAVE HEARD THE PARTIES AND PERUSED THE REC ORD. WE HAVE ALSO GONE THROUGH THE CASE LAWS CITED BY BOTH THE PARTIES. BEFORE DECIDIN G THE ISSUE AT HAND WE WOULD LIKE TO REPRODUCE THE RELEVANT PROVISIONS OF THE INCOME-TAX CT 1961:- 69B. WHERE IN ANY FINANCIAL YEAR THE ASSESSEE HAS M ADE INVESTMENTS OR IS FOUND TO BE THE OWNER OF ANY BULLION JEWELLERY OR OTHER VALUABLE ARTICLE AND THE ASSESSING OFFICER FINDS THAT THE AMOUNT EXP ENDED ON MAKING SUCH INVESTMENTS OR IN ACQUIRING SUCH BULLION JEWELLERY OR OTHER VALUABLE ARTICLE EXCEEDS THE AMOUNT RECORDED IN THIS BEHALF IN THE BOOKS OF ACCOUNT MAINTAINED BY THE ASSESSEE FOR ANY SOURCE OF INCOME AND THE ASSESSEE OFFERS NO EXPLANATION ABOUT SUCH EXCESS AMOUNT OR T HE EXPLANATION OFFERED BY HIM IS NOT IN THE OPINION OF THE ASSESSING OFFI CER SATISFACTORY THE ITA NO.2097/KOL/09 6 EXCESS AMOUNT MAYBE DEEMED TO BE THE INCOME OF THE ASSESSEE FOR SUCH FINANCIAL YEAR. [WITH EFFECT FROM 01.04.1965]. 50C. (1) WHERE THE CONSIDERATION RECEIVED OR ACCRUI NG AS A RESULT OF THE TRANSFER BY AN ASSESSEE OF A CAPITAL ASSET BEING L AND OR BUILDING OR BOTH IS LESS THAN THE VALUE ADOPTED OR ASSESSED BY ANY A UTHORITY OF A STATE GOVERNMENT (HEREAFTER IN THIS SECTION REFERRED TO A S THE STAMP VALUATION AUTHORITY ) FOR THE PURPOSE OF PAYMENT O F STAMP DUTY IN RESPECT OF SUCH TRANSFER THE VALUE SO ADOPTED OR A SSESSED SHALL FOR THE PURPOSES OF SECTION 48 BE DEEMED TO BE THE FULL VA LUE OF THE CONSIDERATION RECEIVED OR ACCRUING AS A RESULT OF S UCH TRANSFER. (2) WITHOUT PREJUDICE TO THE PROVISIONS OF SUB-SECT ION (1) WHERE (A) THE ASSESSEE CLAIMS BEFORE ANY ASSESSING OFFICE R THAT THE VALUE ADOPTED OR ASSESSED BY THE STAMP VALUATION AUTHORIT Y UNDER SUB-SECTION (1) EXCEEDS THE FAIR MARKET VALUE OF THE PROPERTY A S ON THE DATE OF TRANSFER; (B) THE VALUE SO ADOPTED OR ASSESSED BY THE STAMP V ALUATION AUTHORITY UNDER SUB-SECTION (1) HAS NOT BEEN DISPUTED IN ANY APPEAL OR REVISION OR NO REFERENCE HAS BEEN MADE BEFORE ANY OTHER AUTHORI TY COURT OR THE HIGH COURT THE ASSESSING OFFICER MAY REFER THE VAL UATION OF THE CAPITAL ASSET TO A VALUATION OFFICER AND WHERE ANY SUCH REF ERENCE IS MADE THE PROVISIONS OF SUB-SECTIONS (2) (3) (4) (5) AND (6) OF SECTION 23A SUB- SECTION(5) OF -SECTION 24 SECTION 34AA SECTION 35 AND SECTION 37 OF THE WEALTH-TAX ACT / 1957 (27 OF 1957) SHALL WITH NEC ESSARY MODIFICATIONS APPLY IN RELATION TO SUCH REFERENCE AS THEY APPLY I N RELATION TO A REFERENCE MADE BY THE ASSESSING OFFICER UNDER SUB-S ECTION (1) OF SECTION 16A OF THAT ACT. EXPLANATION.FOR THE PURPOSES OF THIS SECTION VAL UATION OFFICER SHALL HAVE THE SAME MEANING AS IN CLAUSE (R) OF SEC TION 2 OF THE WEALTH- TAX ACT 1957 (27 OF1957). (3) SUBJECT TO THE PROVISIONS CONTAINED IN SUB-SECT ION (2) WHERE THE VALUE ASCERTAINED UNDER SUB-SECTION (2) EXCEEDS THE VALUE ADOPTED OR ASSESSED BY THE STAMP VALUATION AUTHORITY REFERRED TO IN SUB-SECTION (1) THE VALUE SO ADOPTED OR ASSESSED BY SUCH AUTHORITY SHALL BE TAKEN AS THE FULL VALUE OF THE CONSIDERATION RECEIVED OR ACCRUIN G AS A RESULT OF THE TRANSFER. [WITH EFFECT FROM 01.04.2003] SECTION 56(2) IN PARTICULAR AND WITHOUT PREJUDICE TO THE GENERAL ITY OF THE PROVISIONS OF SUBSECTION (1) THE FOLLOWING INCOMES SHALL BE CHA RGEABLE TO INCOME- TAX UNDER THE HEAD INCOME FROM OTHER SOURCES NAMELY : (VII) WHERE AN INDIVIDUAL OR HINDU UNDIVIDED FAMILY RECEIVES IN ANY PREVIOUS YEAR FROM ANY PERSON OR PERSONS ON OR AFT ER THE 1 DAY OF OCTOBER 2009 - (B) ANY IMMOVABLE PROPERTY - (I) WITHOUT CONSIDERATION THE STAMP DUTY VALUE OF WHICH EXCEEDS FIFTY THOUSAND RUPEES THE STAMP DUTY VALUE OF SUCH PROPE RTY; ITA NO.2097/KOL/09 7 (II) FOR A CONSIDERATION WHICH IS LESS THAN THE STA MP DUTY VALUE OF THE PROPERTY BY AN AMOUNT EXCEEDING FIFTY THOUSAND RUPE ES THE STAMP DUTY VALUE OF SUCH PROPERTY AS EXCEEDS SUCH CONSIDERATIO N; [WITH EFFECT FROM 01.10.2009]. 142A . (1) FOR THE PURPOSES OF MAKING AN ASSESSMENT OR R EASSESSMENT UNDER THIS ACT WHERE AN ESTIMATE OF THE VALUE OF A NY INVESTMENT REFERRED TO IN SECTION 69 OR SECTION 69B OR THE VALUE OF ANY BULLION JEWELLERY OR OTHER VALUABLE ARTICLE REFERRED TO IN SECTION 69A O R SECTION 69B IS REQUIRED TO BE MADE THE ASSESSING OFFICER MAY REQUIRE THE V ALUATION OFFICER TO MAKE AN ESTIMATE OF SUCH VALUE AND REPORT THE SAME TO HIM. (2) THE VALUATION OFFICER TO WHOM A REFERENCE IS MA DE UNDER SUB-SECTION (1) SHALL FOR THE PURPOSES OF DEALING WITH SUCH RE FERENCE HAVE ALL THE POWERS THAT HE HAS UNDER SECTION 38A OF THE WEALTH- TAX ACT 1957 (27 OF 1957). (3) ON RECEIPT OF THE REPORT FROM THE VALUATION OFF ICER THE ASSESSING OFFICER MAY AFTER GIVING THE ASSESSEE AN OPPORTUNI TY OF BEING HEARD TAKE INTO ACCOUNT SUCH REPORT IN MAKING SUCH ASSESSMENT OR REASSESSMENT: PROVIDED THAT NOTHING CONTAINED IN THIS SECTION SHALL APPLY IN RESPECT OF AN ASSESSMENT MADE ON OR BEFORE THE 30TH DAY OF SEPTEM BER 2004 AND WHERE SUCH ASSESSMENT HAS BECOME FINAL AND CONCLUSIVE ON OR BEFORE THAT DATE EXCEPT IN CASES WHERE A REASSESSMENT IS REQUIRED TO BE MADE IN ACCORDANCE WITH THE PROVISIONS OF SECTION 153A. EXPLANATION.IN THIS SECTION VALUATION OFFICER H AS THE SAME MEANING AS IN CLAUSE (R) OF SECTION 2 OF THE WEALTH-TAX ACT 1957 (27 OF 1957) .1 [WITH EFFECT FROM 15.11.1972] SECTION 48: THE INCOME CHARGEABLE UNDER THE HEAD CAPITAL GAIN S SHALL BE COMPUTED BY DEDUCTING FROM THE FULL VALUE OF TH E CONSIDERATION RECEIVED OR ACCRUING AS A RESULT OF THE TRANSFER OF THE CAPITAL ASSET THE FOLLOWING AMOUNTS NAMELY : (I) EXPENDITURE INCURRED WHOLLY AND EXCLUSIVELY IN CONNECTION WITH SUCH TRANSFER; (II) THE COST OF ACQUISITION OF THE ASSET AND THE C OST OF ANY IMPROVEMENT THERETO.- [WITH EFFECT FROM 01.04.1993] SECTION 52.: CONSIDERATION FOR TRANSFER IN CASES OF UNDERSTATEMENT.- [(1)] WHERE THE PERSON WHO ACQUIRES A CAPITAL ASSET FROM AN ASSESSEE IS DIRECTLY OR INDIRECTLY CONNECTED WITH THE ASSESSEE AND THE I NCOME-TAX OFFICER HAS REASON TO BELIEVE THAT THE TRANSFER WAS EFFECTED WITH THE OBJECT OF AVOIDANCE OR REDUCTION OF THE LIABILITY OF THE ASSESSEE UNDER SECTION 45 THE FULL VALUE OF THE CONSIDERATION FOR THE TRANSFER SHALL WITH THE PREVIOUS APPROVAL OF THE INSPECTING ASSISTANT ITA NO.2097/KOL/09 8 COMMISSIONER BE TAKEN TO BE THE FAIR MARKET VALUE OF THE CAPITAL ASSET ON THE DATE OF THE TRANSFER. (2) WITHOUT PREJUDICE TO THE PROVISIONS OF SUBSECT ION (1) F IN THE OPINION OF THE INCOME-TAX OFFICER THE FAIR MARKET VALUE OF A CAPIT AL ASSET TRANSFERRED BY AN ASSESSEE AS ON THE DATE OF THE TRANSFER EXCEEDS THE FULL VALUE OF THE CONSIDERATION DECLARED BY THE ASSESSEE IN RESPECT OF THE TRANSFER OF SUCH CAPITAL ASSET BY AN AMOUNT OF NOT LESS THAN FIFTEEN PERCENT OF THE PREV IOUS APPROVAL OF THE INSPECTING ASSISTANT COMMISSIONER BE TAKEN TO BE ITS FAIR MAR KET VALUE ON THE DATE OF ITS TRANSFER: PROVIDED THAT THIS SUB-SECTION SHALL NOT APPLY IN A NY CASE - (A) WHERE THE CAPITAL ASSET IS TRANSFERRED TO THE G OVERNMENT OR (B) WHERE THE FULL VALUE OF THE CONSIDERATION FOR TRANSFER OF THE CAPITAL ASSET IS DETERMINED OR APPROVED BY THE CENTRAL GOVERNMENT OR THE RESERVE BANK OF INDIA. [WITH EFFECT FROM 01-04-1988.] 9.1 IT COULD BE SEEN FROM THE RELEVANT SECTIONS OF THE I.T ACT61 REPRODUCED HEREIN ABOVE THAT FOR THE PURPOSE OF DETERMINATION OF CAPITAL GA IN IN THE HAND OF THE SELLER OF THE PROPERTY THE ASSESSING OFFICER HAS TO ASCERTAIN TH E FULL VALUE OF CONSIDERATION RECEIVED OR ACCRUING AS A RESULT OF TRANSFER OF CAPITAL ASSE T. THE COURTS HAVE HELD THAT THERE IS A DIFFERENCE BETWEEN THE ABOVE EXPRESSION AND THE EXP RESSION FAIR MARKET VALUE OF THE CAPITAL ASSET. WHAT THE SELLER RECEIVES FOR TRANSFE R OF CAPITAL ASSET ACCORDING TO THE COURTS MAY BE BARGAIN SAME AS THE FAIR MARKET VALUE OF TH E PROPERTY. THUS MERELY ON THE BASIS OF FAIR MARKET VALUE OF THE CAPITAL ASSET THE ASSESSING OFFICER CANNOT C OME TO THE CONCLUSION THAT THE FULL VALUE OF CONSIDERATION IS THE SAME AS THAT OF THE FAIR MARKET VALUE. 9.2 THE HONBLE APEX COURT IN THE CASE OF K.P VARGH ESE VS. ITO & ANR 131 ITR 597(SC) INTERPRETED THE PROVISION OF SECTION 52(2) OF THE A CT. TAKING NOTE OF THE LEGISLATIVE INTENT OF THIS PROVISION IT WAS HELD BY THE HONBLE SUPREME COURT THAT THE PROVISION CANNOT BE LITERALLY INTERPRETED. THE HONBLE APEX COURT THEREFORE REA D DOWN THE PROVISION AND HELD THAT UNLESS THE FOLLOWING TWIN CONDITIONS I.E I) FAIR MARKET VALUE OF CAPITAL ASSET ON THE DATE OF TRANSFER EXCEEDS THE FULL VALUE OF CONSIDERATION BY NOT LESS THAN 15 % & (II) FULL VALUE OF CONSIDERATION IS SHOWN AT A LESSER FIGURE THAN THAT ACTUALLY RECEIVED BY THE ASSESSEE ARE SATISFIED THE PROVISION OF SECTION 52(2) WILL NOT BE ATTRACTED. THUS THE PROPOSITION THAT ARISE FROM THE ABOVE JUDGMENT OF THE HONBLE APEX COURT IS THAT FULL VALUE OF CONSIDERA TION CANNOT BE EQUATED WITH FAIR MARKET VALUE. 9.3 IT IS TO BE SEEN AS TO WHETHER THE ABOVE JUDGME NT OF THE HONBLE APEX COURT HAS ANY APPLICATION IN A CASE WHERE SECTION 69B IS APPLIED. IN SECTION 69B THE EXPRESSION USED IS THE ASSESSEE HAS MADE INVESTMENTS. THE ASSESSING OFFIC ER HAS TO FIND THAT THE AMOUNT EXPENDED ON ITA NO.2097/KOL/09 9 MAKING SUCH INVESTMENTS IS MORE THAN THE AMOUNT RE CORDED IN THE BOOKS OF A/C MAINTAINED BY THE ASSESSEE FOR MAKING THE SAID INVESTMENT. THUS THE ASSESSING OFFICER HAS TO COME TO A CONCLUSION OF FACT THAT THE ASSESSEE HAD MADE INVESTMENT WHICH EXCEEDS THE AMOUNT RECORDED IN THE BOOKS OF A/C OF THE ASSESSEE. IT IS NOT ALWAYS POSSIBLE THAT THERE WILL BE DIRECT AND UNCONTROVERTIBLE EVIDENCE AVAILABLE ON RECORD TO COME TO SUCH CONCLU SION. THERE COULD BE CERTAIN CIRCUMSTANTIAL EVIDENCE ON THE BASIS OF WHICH THE ASSESSING OFFICE R CAN COME TO THE ABOVE CONCLUSION. IN CASE OF CONCLUSION OF FACT THE PRINCIPLE THAT IS REQUIRE D TO BE APPLIED IS THAT OF HUMAN PROBABILITY AND NOT POSSIBILITY. A CONCLUSION WHICH IS MOST PROBABL E SHOULD BE CONSIDERED AS THE CORRECT CONCLUSION OF FACT. AS SUCH THE ABOVE PRINCIPLE HAS BEEN UPHELD BY THE HONBLE SUPREME COURT IN THE CASE OF SUMATI DAYAL VS. COMMISSIONER OF INCOME -TAX 214 ITR 801 (SC). WE ARE THEREFORE OF THE CONSIDERED OPINION THAT THE CONTROVERSY OF FULL VALUE OF CONSIDERATION AND FAIR MARKET VALUE HAS NO RELEVANCE IN DECIDING THE ISSUE AT HA ND. SECTION 48 AND SECTION 69B CANNOT BE SAID TO BE PARIMATERIA. WHAT IS TO BE DECIDED IS AS TO W HETHER THERE IS ENOUGH EVIDENCE ON RECORD ON THE BASIS OF WHICH A FACTUAL CONCLUSION CAN BE DRAW N BASED ON TEST OF HUMAN PROBABILITY THAT THE ASSESSEE HAD MADE INVESTMENTS VALUE OF WHICH EXCEE DS THAT RECORDED IN THE BOOKS OF A/C MAINTAINED BY THE ASSESSEE. 9.4 WE NOTE THAT SECTION 142A WAS INSERTED BY FINAN CE ACT 2004 WITH RETROSPECTIVE EFFECT FROM 15.11.1972. THE ABOVE PROVISION IS APPL ICABLE FOR THE ASSESSMENT YEAR UNDER CONSIDERATION. IT IS CLEARLY MENTIONED IN THE SECTI ON THAT WHERE AN ESTIMATE OF VALUE OF AN INVESTMENT REFERRED TO IN SECTION 69B IS REQUIRED T O BE MADE THE ASSESSING OFFICER MAY REQUIRE THE VALUATION OFFICER TO MAKE AN ESTIMATE O F SUCH VALUE. COMBINED READING OF SECTION 69B AND SECTION 142A WOULD MAKE IT CLEAR TH AT THE VALUE SHOWN IN ANY DOCUMENT NEED NOT BE ACCEPTED AS THE VALUE OF INVESTMENT MAD E BY THE ASSESSEE. AS PER SUB-SECTION (3) OF SECTION 142A THE ASSESSING OFFICER WOULD GI VE THE ASSESSEE AN OPPORTUNITY OF BEING HEARD AND MAY MAKE SUCH ASSESSMENT THE WORD U SED IS MAY. THIS WOULD MEAN THAT THE REPORT OF THE VALUATION OFFICER WOULD ONLY BE AN EVIDENCE ON RECORD WHICH THE ASSESSING OFFICER WOULD CONSIDER TOGETHER WITH THE OBJECTION AND OTHER EVIDENCE PRODUCED BY THE ASSESSEE TO DISPUTE SU.ILI VALUATIO N REPORT AND WOULD COME TO A CONCLUSION OF FACT WITH REFERENCE TO VALUE OF INVES TMENT MADE BY THE ASSESSEE. 9.5 IN THE PRESENT CASE NO SUCH REFERENCE WAS MADE BY THE ASSESSING OFFICER. HOWEVER THE VALUATION MADE BY THE STAMP VALUATIO N AUTHORITY WAS AVAILABLE WITH THE ASSESSING OFFICER AND THE ASSESSING OFFICER GAVE AN OPPORTUNITY TO THE ASSESSEE TO ITA NO.2097/KOL/09 10 REPUDIATE THE VALUATION MADE BY THE STAMP VALUATION AUTHORITY. IT IS THEREFORE TO BE SEEN AS TO WHETHER THE VALUATION MADE BY THE STAMP JFT4-UATION AUTHORITY IS AN EVIDENCE WHICH THE ASSESSING OFFICER COULD HAVE CONSIDERED F OR DECIDING THE VALUE OF INVESTMENT MADE BY THE ASSESSEE IN TERMS OF SECTION 69B OF THE ACT. 9.6 FOR THE ABOVE RELEVANT PROVISIONS OF THE INDIA N STAMP ACT 1899 AND THE AMENDMENT AS MADE BY THE STATE OF WEST BENGAL TOGET HER WITH THE WEST BENGAL STAMP( PREVENTION OF UNDERVALUATION OF INSTRUMENTS) RULES 2001 ARE REQUIRED TO BE EXAMINED. THE RELEVANT PROVISIONS OF INDIAN STAMP ACT 1899 A S AMENDED BY THE STATE OF WEST BENGAL IS SECTION 47A WHICH IS REPRODUCED BELOW :- WEST BENGAL AMENDMENT FOR EXISTING SECTION 47A WHICH WAS EARLIER INSERTE D BY SECTION 7 OF THE INDIAN STAMP (WEST BENGAL AMENDMENT) ACT 1990 (WEST BEN. ACT XVII OF 1990) (W.E.F. 31 .1 .1994) PLEASE SUBSTITUTE THE FOLLOWING SECTIONS: 47A. INSTRUMENTS OF CONVEYANCE ETC. UNDER-VALUED HOW TO BE DEALT WITH. ( 1) WHERE THE REGISTERING OFFICER APPOINTED UNDER THE REGISTRATION ACT 1908 (16 OF 1908) HAS WHILE REGISTERING ANY INSTRUMENT OF (A) AGREEMENT OR MEMORANDUM OF AN AGREEMENT RELATIN G TO A SALE OR LEASE-CUM- SALE OF IMMOVABLE PROPERTY (B) CONVEYANCE (C) EXCHANGE OF PROPERTY (D) GIFT (E) PARTITION (F) POWER-OF-ATTORNEY (I) WHEN GIVEN FOR CONSIDERATION TO SELL ANY IMMOVA BLE PROPERTY OR (II) IN SUCH OTHER CASES REFERRED TO IN ARTICLE 48 OF SCHEDULE IA WHERE PROPER STAMP DUTY IS PAYABLE ON THE BASIS OF MARKET VALUE (G) SETTLEMENT (H) TRANSFER OF LEASE BY WAY OF ASSIGNMENT REASON TO BELIEVE THAT THE MARKET VALUE OF THE PROP ERTY WHICH IS THE SUBJECT- MATTER OF ANY SUCH INSTRUMENT HAS NOT BEEN TRULY SET FORTH IN THE INSTRUMENT PRESENTED FOR REGISTRATION HE MAY AFTER RECEIVING SUCH INSTRUME NT ASCERTAIN THE MARKET VALUE OF THE PROPERTY WHICH IS THE SUBJECT-MATTER OF SUCH IN STRUMENT IN THE MANNER PRESCRIBED AND COMPUTE THE PROPER STAMP DUTY CHARGE ABLE ON THE MARKET VALUE SO ASCERTAINED AND THEREAFTER HE SHALL NOTWITHSTANDI NG ANYTHING TO THE CONTRARY CONTAINED IN THE REGISTRATION ACT 1908 IN SO FAR AS IT RELATES TO REGISTRATION KEEP REGISTRATION OF SUCH INSTRUMENT IN ABEYANCE TILL TH E CONDITION REFERRED TO IN SUB- SECTION (2) OR SUB-SECTION (7) AS THE CASE MAY BE IS FULFILLED BY THE CONCERNED PERSON. ITA NO.2097/KOL/09 11 (2) WHERE THE MARKET VALUE OF THE PROPERTY WHICH I S THE SUBJECT- MATTER OF AN INSTRUMENT HAS BEEN ASCERTAINED AND THE PROPER DUTY CHARGEABLE THEREON HAS BEEN COMPUTED UNDER SUB-SECTION (1) THE REGISTERING OFF ICER SHALL IN THE MANNER PRESCRIBED SEND TO THE CONCERNED PERSON A NOTICE C ALLING UPON HIM TO MAKE PAYMENT OF THE DEFICIT AMOUNT OF STAMP DUTY WITHIN SUCH TIME AS MAY BE PRESCRIBED AND IF SUCH PERSON MAKES PAYMENT OF SUC H DEFICIT AMOUNT OF STAMP DUTY IN THE PRESCRIBED MANNER THE REGISTERING OFFI CER SHALL REGISTER THE INSTRUMENT. (3) WHERE THE CONCERNED PERSON DOES NOT MAKE PAYME NT OF THE STAMP DUTY AS REQUIRED UNDER SUB-SECTION (2) WITHIN THE TIME SPEC IFIED IN THE NOTICE ISSUED UNDER THAT SUB-SECTION THE REGISTERING AUTHORITY SHALL R EFER THE MATTER TO SUCH AUTHORITY AND IN SUCH MANNER AS MAY BE PRESCRIBED FOR DETERMI NATION OF THE MARKET VALUE OF THE PROPERTY WHICH IS THE SUBJECT-MATTER OF SUCH INSTRUMENT AND THE PROPER STAMP DUTY PAYABLE THEREON: PROVIDED THAT IF THE CONCERNED PERSON BEFORE RECEI PT OF ANY COMMUNICATION FROM SUCH AUTHORITY INTIMATING HIM TH E MARKET VALUE OF THE PROPERTY WHICH IS THE SUBJECT-MATTER OF THE INSTRUM ENT AND THE PROPER STAMP DUTY PAYABLE THEREON DETERMINED BY SUCH AUTHORITY MAKES PAYMENT OF THE DEFICIT AMOUNT OF STAMP DUTY AS ASCERTAINED BY THE REGISTER ING OFFICER SUCH REGISTERING OFFICER SHALL ACCEPT SUCH PAYMENT REGISTER THE INS TRUMENT AND INTIMATE THE MATTER TO SUCH AUTHORITY IN THE MANNER PRESCRIBED. (4) AFTER THE REGISTERING OFFICER ISSUES A NOTICE UNDER SUB-SECTION (2) IN RESPECT OF ANY INSTRUMENT REFERRED TO IN CLAUSE (B) CLAUSE (C) CLAUSE (D) CLAUSE (E) OR CLAUSE (G) OF SUB-SECTION (1) WHICH HAS BEEN PRESE NTED BEFORE HIM FOR REGISTRATION PRIOR TO THE COMING INTO FORCE OF THE INDIAN STAMP (WEST BENGAL AMENDMENT) ACT 1998 AND IF THE CONCERNED PERSON MAKES PAYMEN T OF THE DEFICIT AMOUNT OF STAMP DUTY WITHIN THE TIME SPECIFIED IN SUCH NOTICE HE SHALL REGISTER SUCH INSTRUMENT: PROVIDED THAT WHERE SUCH INSTRUMENT HAS BEEN SO REG ISTERED UNDER THIS SUB- SECTION ANY REFERENCE THAT HAS BEEN MADE TO THE AU THORITY REFERRED TO IN SUB- SECTION (3) IN RESPECT OF DETERMINATION OF THE MARK ET VALUE OF THE PROPERTY WHICH IS THE SUBJECT-MATTER OF THE INSTRUMENT SHALL BE DE EMED TO HAVE BEEN WITHDRAWN AND THE REGISTERING OFFICER SHALL INTIMATE THE MATT ER TO SUCH AUTHORITY IN SUCH MANNER AS MAY BE PRESCRIBED. (5) ON RECEIPT OF A REFERENCE UNDER SUB-SECTION (3) THE AUTHORITY SPECIFIED UNDER THAT SUB-SECTION SHALL AFTER GIVING THE PART IES CONCERNED IN RESPECT OF THE INSTRUMENT REFERRED TO IN SUB-SECTION (1) A REASONA BLE OPPORTUNITY OF BEING HEARD AND AFTER HOLDING AN ENQUIRY IN SUCH MANNER AS MAY BE PRESCRIBED DETERMINE THE MARKET VALUE OF THE PROPERTY WHICH IS THE SUBJECT-M ATTER OF THE INSTRUMENT AND THE PROPER STAMP DUTY PAYABLE THEREON AND SHALL THEREA FTER ISSUE A NOTICE IN THE MANNER PRESCRIBED DIRECTING THE CONCERNED PERSON TO MAKE PAYMENT OF SUCH DEFICIT AMOUNT OF STAMP DUTY WITHIN SUCH TIME AS MA Y BE PRESCRIBED. (6) WHERE THE CONCERNED PERSON DOES NOT MAKE PAYMEN T OF THE DEFICIT AMOUNT OF STAMP DUTY WITHIN THE TIME SPECIFIED IN T HE NOTICE ISSUED UNDER SUBSECTION (5) SUCH PERSON SHALL BE LIABLE TO PAY AN INTEREST AT THE RATE OF TWO PER CENTUM FOR EACH BRITISH CALENDAR MONTH OF DEFAULT F ROM THE FIRST DAY OF SUCH ITA NO.2097/KOL/09 12 MONTH FOLLOWING THE MONTH IN WHICH SUCH PERSON WAS REQUIRED TO MAKE PAYMENT OF SUCH DEFICIT AMOUNT OF STAMP DUTY UNDER SUB-SECT ION (5) UP TO THE MONTH PRECEDING THE MONTH OF FULL PAYMENT OF SUCH DUTY. (7) WHERE THE CONCERNED PERSON MAKES PAYMENT IN T HE MANNER PRESCRIBED OF THE DEFICIT AMOUNT OF STAMP DUTY DET ERMINED UNDER SUBSECTION(5) TOGETHER WITH THE INTEREST IF ANY CHARGED UNDER S UB-SECTION (6) THE ;REGISTERING OFFICER SHALL UPON FURNISHING BY THE CONCERNED PER SON A COPY OF RECEIPTED CHALLAN OR BANK DRAFT IN PROOF OF SUCH PAYMENT REG ISTER THE INSTRUMENT WITHIN SUCH TIME AS MAY BE PRESCRIBED. (8) (A) THE AUTHORITY REFERRED TO IN SUB-SECTION (3 ) MAY ON RECEIPT OF ANY INFORMATION OR OTHERWISE SUO MOTU WITHIN FIVE YEAR S FROM THE DATE OF REGISTRATION OF ANY INSTRUMENT WHERE SUCH INSTRUMENT WAS REGIST ERED ON THE BASIS OF THE MARKET VALUE WHICH WAS SET FORTH IN THE INSTRUMENT OR WHICH WAS ASCERTAINED BY THE REGISTERING OFFICER REFERRED TO IN SUB-SECTION (1) CALL FOR AND EXAMINE ANY SUCH INSTRUMENT AND ANY OTHER DOCUMENT RELATING THERETO FOR THE PURPOSE OF SATISFYING HIMSELF AS TO THE CORRECTNESS OF THE MARKET VALUE O F THE PROPERTY WHICH IS THE SUBJECT- MATTER OF SUCH INSTRUMENT AND WHICH WAS SE T FORTH IN THE INSTRUMENT OR WHICH WAS ASCERTAINED UNDER SUB-SECTION (2) AND THE STAMP DUTY PAYABLE THEREON. (C) IF AFTER SUCH EXAMINATION THE AUTHORITY REFER RED TO IN CLAUSE (A) HAS REASONS TO BELIEVE THAT THE MARKET VALUE OF THE PRO PERTY WHICH IS THE SUBJECT- MATTER OF SUCH INSTRUMENT HAS NOT BEEN TRULY SET FO RTH IN THE INSTRUMENT OR CORRECTLY ASCERTAINED UNDER SUB-SECTION (2) HE MAY AFTER GIVING THE PARTIES CONCERNED IN THE INSTRUMENT A REASONABLE OPPORTUNIT Y OF BEING HEARD DETERMINE THE MARKET VALUE OF THE PROPERTY WHICH IS THE SUBJE CT-MATTER OF SUCH INSTRUMENT AND THE AMOUNT OF STAMP DUTY CHARGEABLE THEREON IN THE MANNER REFERRED TO IN SUB- SECTION (5) AND THE DIFFERENCE IN THE AMOUNT OF ST AMP DUTY IF ANY BETWEEN THE STAMP DUTY SO DETERMINED BY HIM AND THE STAMP DUTY ALREADY PAID BY THE CONCERNED PERSON SHALL BE REQUIRED TO BE PAID BY HI M IN THE PRESCRIBED MANNER: PROVIDED THAT NOTHING IN THIS SUB-SECTION SHALL APP LY TO (A)ANY INSTRUMENT REFERRED TO IN CLAUSE (B) CLAUSE (C ) CLAUSE (D) CLAUSE (E) OR CLAUSE (G) OF SUB-SECTION (1) REGISTERED BEFORE THE 31 ST DAY OF JANUARY 1994 OR (B) ANY INSTRUMENT REFERRED TO IN CLAUSE (A) CLAUS E (F) OR CLAUSE (H) OF SUB-SECTION (1) REGISTERED BEFORE THE COMING INTO F ORCE OF THE INDIAN / STAMP (WEST BENGAL AMENDMENT) ACT 1998. (9) NOTWITHSTANDING ANYTHING CONTAINED ELSEWHERE IN THIS SECTION OR SECTION 47B NO INTEREST SHALL BE PAYABLE IN SUCH C ASES UNDER SUCH CIRCUMSTANCES AND SUBJECT TO SUCH CONDITIONS IF A NY AS MAY BE PRESCRIBED. EXPLANATION.FOR THE PURPOSES OF THIS SECTION SECT ION 47B AND SECTION 47C CONCERNED PERSON SHALL MEAN THE PERSON WHO I S LIABLE TO BEAR THE STAMP DUTY UNDER SECTION 29. 9.7 THE RELEVANT RULE IS RULE 4 OF WEST BENGAL STA MP (PREVENTION OF UNDERVALUATION OF INSTRUMENTS) RULES 2001 WHICH IS REPRODUCED HE REUNDER:- ITA NO.2097/KOL/09 13 4. REFERENCE TO BE MADE TO THE COLLECTOR FOR DETER MINATION OF MARKET VALUE OF PROPERTY. ( 1) IF THE PERSON BY WHOM THE STAMP DUTY IS PAYAB LE UNDER SECTION 29 DOES NOT WITHIN THE PERIOD SPECIFI ED IN THE NOTICE REFERRED TO IN SUB-RULE (8) OF RULE 3 OFFER TO PAY THE DEFICIT AMOUNT OF STAMP DUTY TO MAKE UP THE AMOUNT WITH WHICH THE INSTRUMENT REFERRED TO IN SUB-RULE (2) OF RULE 3 WOULD IN THE OPINION OF THE REGISTERING OFFICER H AVE BEEN CHARGEABLE THE REGISTERING OFFICER SHALL MAKE A REFERENCE UNDER SU B-SECTION (3) OF SECTION 47A TO THE COLLECTOR FOR DETERMINATION OF THE MARKET VA LUE OF THE PROPERTY WHICH IS THE SUBJECT MATTER OF SUCH INSTRUMENT AND THE PROP ER AMOUNT OF DUTY PAYABLE THEREON AND THE REGISTERING OFFICER SHALL RECORD T HE PARTICULARS OF SUCH REFERENCE IN A REGISTER AS MAINTAINED IN FORM VI. (2) THE REGISTERING OFFICER SHALL WHILE MAKING A R EFERENCE UNDER SUB-RULE (1) FURNISH TO THE COLLECTOR ONE COPY OF THE STATEMENT IN FORM I FORM II FORM III OR FORM IV AS THE CASE MAYBE TOGETHER WITH THE ORDER REFERRED TO IN SUB-RULE (8) OF RULE 3 AND THE EXTRACTS OF REPORT OR RECORD ON THE BASIS OF WHICH ORDER REFERRED TO IN SUB-RULE (8) OF RULE 3 HAS BEEN MADE. (3) IF THE PERSON BY WHOM STAMP DUTY IS PAYABLE U NDER SECTION 29 BEFORE RECEIPT OF ANY COMMUNICATION FROM THE COLLECTOR INT IMATING TO HIM THE MARKET VALUE OF THE PROPERTY WHICH IS THE SUBJECT MATTER O F THE INSTRUMENT REFERRED TO IN SUB-RULE (2) OF RULE 3 AND THE PROPER STAMP DUTY P AYABLE THEREON AS DETERMINED BY THE COLLECTOR MAKES PAYMENT OF THE DEFICIT AMOUNT OF STAMP DUTY AS ASCERTAINED BY THE REGISTERING OFFICER IN THE SAME MANNER AS RE FERRED TO IN SUB-RULE (9) OF RULE 3 SUCH REGISTERING OFFICER SHALL ACCEPT SUCH PAYME NT AND REGISTER THE INSTRUMENT. THE REFERENCE MADE UNDER SUB-RULE (1) OF RULE 4 IN RESPECT OF SUCH SHALL BE DEEMED TO HAVE BEEN WITHDRAWN. THE REGISTERING OFFI CER SHALL INTIMATE SUCH REGISTRATION TO THE COLLECTOR IN FORM VIIA. (4) THE PROVISION OF SUB-RULE(3) SHALL APPLY MUTAT IS MUTANDIS IN RESPECT OF ANY INSTRUMENT REFERRED TO IN SUB-SECTION(4) OF SEC TION 47A: PROVIDED THAT THE REGISTERING OFFICER OF SUCH INSTR UMENT SHALL INTIMATE THE WITHDRAWAL OF REFERENCE UNDER SUB-RULE (3) OF RULE 4 IN FORM VIIB. 9.8 IT IS ALSO SEEN THAT AS PER SECTION 47B OF IND IAN STAMP ACT 1899 AS AMENDED BY THE STATE OF WEST BENGAL FURTHER APPEAL S TO VARIOUS APPELLATE AUTHORITIES LIE. AS SUCH WHILE UPHOLDING THE CONST ITUTIONAL VALIDITY OF SECTION 47A OF INDIAN STAMP ACT 1899 AS MODIFIED BY VARIOUS ST ATES IT HAS BEEN HELD BY THE COURTS THAT THE GUIDELINE PROVIDED BY THE STATE WOU LD ONLY SERVE AS PRIMA FACIE MATERIAL AVAILABLE TO THE REGISTERING AUTHORITY TO ALERT HIM REGARDING THE VALUE OF THE IMPUGNED PROPERTY. IT IS COMMON KNOWLEDGE THAT THE VALUE OF THE PROPERTY VARIES FROM PLACE TO PLACE OR EVEN FROM LOCALITY TO LOCALITY IN THE SAME PLACE. NO ABSOLUTE HIGHER OR MINIMUM VALUE CAN BE PRE-DETERMI NED. IT WOULD DEPEND ON THE PREVAILING PRICES IN THE LOCALITY IN WHICH THE LAND COVERED BY THE INSTRUMENT IS SITUATED. THE STAMP VALUING AUTHORITY HAS TO HAVE A N OBJECTIVE SATISFACTION TO FORM A REASONABLE BELIEVE THAT THE INSTRUMENT RELAT ING TO THE TRANSFER OF PROPERTY HAS NOT BEEN FULLY SET FOR OR EVALUATED OR CONSIDER ATION MENTIONED IS NOT CORRECT ITA NO.2097/KOL/09 14 WHEN IT IS PRESENTED FOR REGISTRATION. THUS THE PR OPERTY IS EVALUATED BY THE STAMP DUTY AUTHORITY AT A HIGHER FIGURE THAN THAT MENTION ED IN THE DOCUMENT ONLY WHEN HE HAS REASONS TO BELIEVE THAT THE CONSIDERATION AM OUNT MENTIONED IN THE DEED DOES NOT REFLECT THE TRUE VALUE OF THE PROPERTY I.E . THE AMOUNT MENTIONED IN THE INSTRUMENT UNDER-VALUES THE PROPERTY. IF THE PARTY IS NOT SATISFIED WITH SUCH VALUATION THERE IS RIGHT TO APPEAL. 9.9 IN THE PRESENT CASE IT IS AN ADMITTED FACT TH AT NO APPEALS IN TERMS OF RELEVANT PROVISIONS OF THE INDIAN STAMP ACT 1899 HAS BEEN FILED BY THE PARTY WHO IS TO BEAR THE COST OF REGISTRATION. IT IS ALSO NOTED THAT THE COST OF REGISTRATION IS TO BE BORNE BY THE PARTY AS MENTIONED IN SECTION 29 OF THE INDIAN STAMP ACT 1899. THE PARTIES I.E. SELLER AND PURCHASER CAN VAR Y THE SAME AS PER CONTRACT I.E. AS PER THE TERMS OF INSTRUMENT OF SALE/PURCHASE. IN TH E CASE UNDER CONSIDERATION THE INSTRUMENTS WHICH WERE REGISTERED HAVE NOT BEEN FUR NISHED BEFORE US. AS SUCH THERE IS NO MENTION IN THE ORDER OF THE ASSESSIN G OFFICER AND THE LD.CIT(A) AS TO THE PARTY WHO IS TO BEAR THE COST OF STAMP FOR REGISTERING THE IMPUGNED INSTRUMENTS. ACCORDING TO US THE ABOVE INFORMATION IS REQUIRED FOR COMING TO A CONCLUSION AS TO WHAT EXTENT THE STAMP DUTY VALUATI ON OF THE PROPERTY UNDER CONSIDERATION CAN BE CONSIDERED TO BE RELEVANT EVID ENCE FOR THE PURPOSE OF SECTION 69B OF THE ACT. 9.10 IN VIEW OF THE ABOVE WE ARE OF THE CONSIDERE D OPINION THAT VALUATION BY THE STAMP VALUATION AUTHORITY IS A PRIMA FACIE EVID ENCE WHICH THE ASSESSING OFFICER CAN UTILIZE FOR DETERMINING THE VALUE OF TH E INVESTMENT MADE BY THE ASSESSEE IN THE PRESENT CASE. THIS WOULD PUT THE ON US BACK TO THE ASSESSEE TO REPUDIATE THE SAME. IT APPEARS THAT THIS SHIFTING O F ONUS HAD NOT BEEN UNDERSTOOD BY THE ASSESSEE WHO HAS MERELY RELIED ON THE PROPOS ITION THAT SECTION 50C IS NOT APPLICABLE TO THE PURCHASER OF THE PROPERTY. 9.11 THE LD. CIT(A) HAS HELD THAT THE CASE OF SMT. AMAR KUMARI SURANA (SUPRA) WAS NOT APPLICABLE TO THE FACTS OF THE CASE AS NO VALUATION REPORT OF DVO WAS AVAILABLE WITH THE ASSESSING OFFICER AND AS THE COST OF ADJACENT PROPERTY WAS ALSO NOT BROUGHT ON RECORD BY THE ASSESSING OFFICER . HOWEVER WE FIND THAT IN THE ORDERS OF THE AUTHORITIES BELOW THERE IS NO MENTIO N OF LOCALITY OF THE IMPUGNED PROPERTIES. THE ASSESSING OFFICER HAS RELIED ON THE VALUE OF PROPERTY PURCHASED BY CREDLE COMPUTERS PVT. LTD. THE LD. CIT(A) HAS HELD THAT THE SAME HAS NO RELEVANCE. HOWEVER IN ABSENCE OF THE LOCALITY OF T HE IMPUGNED PROPERTIES IT IS NOT POSSIBLE FOR US TO ASCERTAIN THE RELEVANCE OR O THERWISE OF THE PROPERTY PURCHASED BY CREDLE COMPUTERS PVT.LTD. FOR ASCERTAI NING THE VALUE OF THE PROPERTIES UNDER CONSIDERATION. 9.12 WE ALSO NOTE THAT THE LD. CIT(A) HAS PROCEEDE D ON THE FOOTING THAT SECTION 50C OF THE ACT IS NOT APPLICABLE TO THE CASE IN HAN D. THIS PROPOSITION IS ALSO ACCEPTED BY THE REVENUE. HOWEVER THE REVENUES CLA IM IS THAT THE VALUATION MADE BY THE STAMP VALUATION AUTHORITY IS A RELEVANT EVID ENCE WHICH GETS FURTHER FORTIFIED BY THE INSTRUMENT OF PURCHASE IN THE CASE OF CREDLE COMPUTERS PVT. LTD. THE LD. CIT(A) HAS NOT MET OUT THE ABOVE CLAIM OF T HE REVENUE. AS DISCUSSED BY US HEREINABOVE WE ARE OF THE CONSIDERED OPINION TH AT THE STAMP DUTY VALUATION OF THE PROPERTY IS A RELEVANT EVIDENCE FOR ASCERTAI NING THE INVESTMENT MADE BY THE ASSESSEE IN THE IMPUGNED PROPERTY. ITA NO.2097/KOL/09 15 9.13 THE ARGUMENT OF THE LEARNED AUTHORIZED REPRESE NTATIVE OF THE ASSESSEE WITH REGARD TO INSERTION OF SECTION 56(2)(VII)(B) H NO R ELEVANCE FOR DECIDING THE ISSUE AT HAND AS THE SAME IS ONLY WITH REFERENCE TO HEAD OF INCOME AND NOT ASSESSIBILITY OF INCOME. THE CASE LAWS RELATING TO THE APPLICABILITY OR OTHERWISE OF SECTION 50C ARE ALSO NOT RELEVANT FOR DECIDING THE ISSUE AS TO WHET HER THE VALUATION OF PROPERTY BY THE STUMP VALUATION AUTHORITY IS A RELEVANT EVIDENC E FOR THE PURPOSE OF DETERMINING THE VALUE OF INVESTMENT MADE BY THE ASS ESSEE IN TERMS OF SECTION 69B. 9.14 IN VIEW OF THE ABOVE WE SET ASIDE THE ORDERS OF THE AUTHORITIES BELOW ON THE IMPUGNED ISSUE AND RESTORE THE MATTER BACK TO T HE FILE OF THE ASSESSING OFFICER WITH THE DIRECTION THAT RELEVANT FACTS AS DISCUSSED BY US HEREINABOVE SHOULD BE ASCERTAINED AND THE ASSESSEE SHOULD BE GIVEN ADEQUA TE OPPORTUNITY TO PRODUCE/FURNISH ANY EVIDENCE IN SUPPORT OF ITS CA SE. THEREAFTER A FRESH ORDER SHOULD BE PASSED AS PER LAW. WE DIRECT ACCORDINGLY. 10. IN THE RESULT THE APPEAL OF THE REVENUE IS ALL OWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE COURT ON. 28.5.10 SD/- SD/- (D.K. TYAGI ] (B.K.HALDAR) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED 28 TH MAY 2010 COPY FORWARDED TO:- 1. DEPUTY COMMISSIONER OF INCOME-TAX CIRCLE-1 SILIGU RI 2. M/S. G.C.S GLOBAL PVT. LTD SEVOKE ROAD SILIGURI 3. COMMISSIONER OF INCOME-TAX(A)-XXXII KOLKATA 4. COMMISSIONER OF INCOME-TAX (WB) 5. D.R ITAT KOLKATA *PP [TRUE COPY] BY ORDER DEPUTY REGISTRAR ITAT KOLKATA. FIT FOR PUBLICATION SD/- SD/- [ J.M ] [ A.M]