PER M.BALAGANESH, AM This appeal of the assessee arises out of the order of Learned CIT(A), Central-1, Kolkata, in Appeal No.133/CIT(A)C-I/CC-V/13-14, dated 29.8.14 passed against the assessment framed u/s.143(3) of the Income Tax Act, 1961 (hereinafter referred to as the Act).

2. At the outset, there was a delay of 67 days in filing this appeal by the revenue before us. The ld DR prayed for condonation of the delay and stated that the ld AO had filed an affidavit to this effect. The ld AR severely objected to the condonation of delay and stated that the reasoning given by the revenue that the ld AO was awaiting from 14.11.14 to 28.12.14 for the valuation report from the District Valuation Officer (DVO). He argued that the same does not constitute reasonable cause for the delay in filing the appeal. He stated that the issue involved was with regard to adoption of value as per section 50C of the Act. He briefly explained the facts of the case that the assessee had reported the consideration at Rs 18 lacs. The assessee held the 6 acres of land as capital asset which was converted into stock in trade on 1.1.2011 and IT(SS)A No.20/15 2 immediately after conversion, sold the said lands on 11.1.2011 to its sister concern M/s PCM Tea Processing Pvt Ltd. The ld AO resorted to adoption of value determined u/s 50C of the Act as the full value of consideration. The assessee objected to the same stating that the value determined by the stamp valuation authority does not constitute the fair market value of the land. The revenue adopted the value determined by the stamp valuation authority at Rs.1,06,88,658/- and substituted the capital gains accordingly as against the reported consideration of Rs.18,00,000/-. The ld CITA directed the ld AO to refer the valuation of the property to District Valuation Officer in terms of section 50C(2) of the Act and by placing reliance on the decision of the Honble Jurisdictional High Court in the case of Sunil Kumar Agarwal vs CIT reported in (2015) 372 ITR 83 (Cal) , and decide the issue accordingly. The ld AR stated that the valuation report of DVO stated the consideration value to be Rs 21 lacs as against reported amount of Rs 18 lacs by the assessee. This situation was totally favourable to the assessee and hence the ld AO after obtaining the valuation report decided to prefer an appeal before this tribunal as the DVO valuation had considerably brought down the consideration figure from Rs. 1.06 crores to Rs. 21 lacs. He argued that the reasoning given by the revenue only tantamounts to shopping of judicial forums and does not constitute reasonable cause for the delay. He argued that even though the ld CITA had directed the ld AO to refer the valuation of the asset to ld DVO, there was no necessity for the ld AO to wait for the said report from ld DVO for preferring an appeal before the tribunal. If the ld AO is aggrieved with the order of the ld CITA, he should have preferred appeal before the tribunal and thereafter obtained the report of the ld DVO and give effect to the order of the ld CITA. Accordingly he argued that the explanation for the delay between

14.11.2014 to 28.12.2014 does not stand properly explained in the facts and circumstances of the case. He also quoted an example in this regard :- IT(SS)A No.20/15 3 Suppose an order u/s 263 of the Act was passed by the ld CIT and the assessee does not prefer appeal against that order before the tribunal within time. He waits for the giving effect order to be given by the ld AO pursuant to ld CITs order u/s 263 of the Act. Observing later that the giving effect order is against the assessee, he /she prefers to file an appeal before the tribunal with a delay condonation petition on the ground that the assessee was waiting for the giving effect order to be completed. Can this be construed as proper explanation of delay on the part of the assessee The answer would be emphatic no. The situation in the instant case also squarely falls under the aforesaid example. Accordingly, he objected to the condonation of delay and prayed for dismissal of the appeal of the revenue as not maintainable on the ground of delay. He argued that even on merits, the revenue does not have any case as the ld CITA had only directed as per the law and by following the Jurisdictional High Court decision.

3. In response to this, the ld DR stated that the ld AO had to follow the directions of the ld CITA who had directed the ld AO to refer the case to the ld DVO in terms of section 50(C ) (2) of the Act and decide the issue accordingly as per law. Hence the ld AO had to wait for the valuation report before giving effect to the appellate order and only thereafter could proceed in preferring the appeal before the tribunal. He argued that once the valuation report was obtained, thereafter the ld AO was pre-occupied with time barring matters and after finishing the time barring matters was awaiting for the approvals of the higher authorities as per the procedure laid down by the Central Board of Direct Taxes. Accordingly he prayed for condonation of the delay. On merits of the addition, he argued that argued that the provisions of section 50C (2) of the Act uses the expression may refer to valuation of the asset to the valuation officer and it is not mandatory on the part of the ld AO to refer to DVO. Hence he objected to the directions of the ld CITA to the ld AO to determine the consideration value based on value determined by the DVO. IT(SS)A No.20/15 4

3. We have heard the rival submissions. We find that the revenue had filed the affidavit seeking for condonation of delay in filing the appeal as below:- AFFIDAVIT I, Arup Chattrjee, son of late Animesh Chatterjee aged about 47 years, working as Deputy Commissioner of Income Tax, Central Circle-1(3), Kolkata residing at 38/5/2 Mahatma Gandhi Road, Kolkata-700082 do hereby solemnly affirm and stated regarding the date of filing of appeal in the case of m/s Punam Chand Mittal expired on 14.11.2014. Reasons responsible for delay in filing the appeal are narrated below :- D A T E R E A S O N 14-11-2014 to 28- 12-2014 Valuation report is awaited from Valuation officer 29-12-2014 Received Valuation Report 30-12-2014 Order passed after giving appeal effect 31-12-2014 to 02- 01-2015 Busy in Time-barring matters 03-01-2015 to 04- 01-2015 Saturday & Sunday 05-01-2015 to 08- 01-2015 Busy in time barring matters 09-01-2015 Appeal Scrutiny report sent to CIT(C)-1, Kol through proper channel 10-01-2015 & 11-01- 2015 Saturday & Sunday 12-01-2015 to 14- 01-2015 File is with CIT(C)-1, Kolkata 15-01-2015 File received from CIT(C)-1 Kolkata suggesting 2 nd appeal 16-01-2015 Prepared papers for filing second appeal 17-01-2015 & 18-01- 2015 Staturday & Sunday 19-01-2015 Affidavit before Notary is made In view of the above your are kindly requested to condone the delay and allow me to file appeal APPELLANT DCIT, CC-1(3), KOLKATA I, Arup Chattrjee, DCIT, CC-1(3), Kolkata do hereby verify that the fact referred to above are true and correct to the best of my knowledge and belief. Dated 19 th January, 2015 APPELLANT DCIT, CC-1(3),KOLKATA IT(SS)A No.20/15 5

3.1. The facts stated hereinabove in the submissions of the ld AR remain undisputed and hence the same are not reiterated herein for the sake of brevity. We find that the ld AR had advanced arguments vehemently for not condoning the delay in filing the appeal of the revenue by 67 days. However, in the interest of justice, we decide to condone the delay of 67 days in filing the appeal by the revenue and admit the appeal for adjudication.

3.2. On merits, we hold that the ld CITA had rightly directed the ld AO to refer the matter to ld DVO in terms of section 50C(2) of the Act as assessee had admittedly objected to the value determined by the stamp valuation authority u/s 50C of the Act in the assessment proceedings itself. It is found that ultimately the ld DVO had adopted the consideration figure to be approximately Rs 21 lacs as against Rs 18 lacs reported by the assessee. We find that the Honble Jurisdictional High Court in the case of Sunil Kumar Agarwal vs CIT reported in (2015) 372 ITR 83 (Cal) had held that the reference to ld DVO is a beneficial provision and hence the same could not be taken away by the ld AO from the purview of the assessee, and the reference to ld DVO was required to avoid miscarriage of justice. It was also held that the legislature had taken care to prove adequate machinery to give a fair treatment to the assessee, there is no reason why the same should not be used and the benefit thereof should be refused. Hence, we hold that the appeal of the revenue fails on merits of the case. Accordingly, the grounds raised by the revenue are dismissed.

4. In the result, the appeal of the revenue is dismissed. Order pronounced in the open court on this 19/10/ 2016. Sd/- (S.S.VISWANETHRA RAVI) Sd/- (M.BALAGANESH) 
 / JUDICIAL MEMBER  / ACCOUNTANT MEMBER /Kolkata; $ Dated 19/10/2016  (*/Prakash Mishra,./ PS IT(SS)A No.20/15 6  
 /Copy of the Order forwarded to : / BY ORDER, / (Asstt. Registrar) & , / ITAT,

1.  / The Appellant-DCIT-CC-1(3), Kolkata

2.  / The Respondent-M/s Punam Chand Mittal

3. 4() / The CIT(A), Kolkata.

4. 4 / CIT 5. 5 8,  8, / DR, ITAT, Kolkata

6.  / Guard file. 5  //True Copy//