Hi Moiz,
What you should do now is claim, in terms of the right given to youu/s 50C(2), before the AO that the value adopted by the stampvaluation authority exceeds the fair market value of the property ason the date of transfer. The valuation on which the state governmentauthorities demand stamp duty can't be treated as sacrosanct,something that can't be called into question under anycircumstances. Section 50C merely puts the onus of proving that theactual FMV of the property is less than that considered by the stampduty authorities on the assessee. Unless the assessee is able toprove it, the AO would go ahead and treat the stamp valuation figureas the real sale consideration.Upon the plea by the assessee, the AO would refer the matter ofvaluation to the Departmental Valuation Officer. And if the DVO endsup certifying the value to be more than the figure considered by thestamp authorities to levy the stamp duty, the lower value i.e. theone taken for the purposes of stamp duty, will be considered as thesale consideration u/s 50C. In other words, the assessee has gotnothing to lose when he insists upon a fresh valuation by the DVO.The stamp duty rates aren't always reflective of the real marketvalue of a property. The circle rates on which the stamp authoritiesbase their valuation are fixed on an ad hoc basis, many times as awhole even for a huge locality. They don't take into account thecharacteristics of a specific piece of property. For example, aproperty that is set back a little from the main street won't fetchas much price as the one that is situated up front. These twoproperties may be set only a few feet apart from each other, buttheir FMVs would differ substantially. Despite that, the stateauthorities will recover the stamp duty at the same rates in theevent of sale of both of these properties. In such a situation, theowner of the first-mentioned property would be hard put by Section50C—he would be required to pay capital gains tax on the amount henever realized!The law isn't so harsh fortunately. We do have sub-section 2 ofSection 50C. But the onus, like I said before, that the FMV isn'tnearly as much as the stamp valuation figure, would fall upon you—the assessee. The fact that there is a provision for referring thevaluation to the DVO itself indicates that the department realizesthe stamp valuation authority shouldn't be the final arbiter when itcomes to determining the capital gains tax recoverable from anassessee.Below I quote a Delhi Tribunal judgement where the Tribunal rejectedthe valuation report of the DVO because he had relied too much onthe stamp valuation itself in framing his own report. This judgementmight help you cope with the situation better.[On a perusal of valuation report, however, we find that even thevaluation by the DVO has placed too much of emphasis on theassessment or valuation by the stamp valuation authority. This isneither desirable nor permissible. The reason is this. The valuationby the stamp valuation authority is based on the circle rates. Thesecircle rates adopt uniform rate of land for an entire locality,which inherently disregards peculiar features of a particularproperty. Even in a particular area, on account of location factorsand possibilities of commercial use, there can be wide variations inthe prices of land. However, circle rates disregard all thesefactors and adopt a uniform rate for all properties in thatparticular area. If the circle rate fixed by the stamp valuationauthorities was to be adopted in all situations, there was no needof reference to the DVO under section 50C(2). The sweepinggeneralizations inherent in the circle rates cannot hold good in allsituations. It is, therefore, not uncommon that while fixing thecircle rates, authorities do err on the side of excessive caution byadopting higher rates of the land in a particular area as the circlerate. In such circumstances, the DVO's blind reliance on circlerates is unjustified. The DVO has simply adopted the average circlerate of residential and commercial area, on the ground that interiorarea of the locality, where the assessee's property is situated, ismixed developed area, i.e., shops and offices on the ground floorand residence on the upper floors. When DVO's valuation required tocompare the same with the valuation by the stamp valuationauthority, it is futile to base such a report on the circle reportitself. Such an approach will render exercise under section 50C(2) ameaningless ritual and an empty formality. In our considered view,in such a case, the DVO's report should be based on considerationstated in the registration documents for comparable transactions, asalso factors such as inputs from other sources about the marketrates. For the reasons set out above, and with these observations,we remit the matter to the file of the Assessing Officer. The DVOwill value the property de novo, in the light of our aboveobservations, and in case the valuation so arrived at by the DVO isless than Rs. X (the stamp duty valuation), the Assessing Officershall adopt the fresh valuation so done by the DVO for the purposeof computing capital gains under section 48 of the Act. We directso."]--Ravi Kant v. ITO [2007] 110 TTJ (Delhi) 297Thanks,CA Sanjeev Bedi--- In ICAI_CIRC_MEERUT_CA@yahoogroups.com, "moizjaorawala"
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