SHRI KHURSHID AHMED , JAIPUR V. INCOME TAX OFFICER, WARD-3-1, JAIPUR

ITA 1137/JPR/2018

• Counselvise Citation: [2019] 115 COUNSELVISE.COM (IT) 5956 (ITAT-JAIPUR)
• Duration Of Justice: 11 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-10-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2014-2015
• Appeal Filed On: 04-10-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A K MAHELA JCIT DHK
• Keywords: Sale consideration of property below Jantri Value; Principle of natural justice; Additional evidence; Fair market value; Difference of opinion; Valuation report; Change of opinion; Set aside; Capital Gains
• Section: 50C; 133(6); 6

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCH SMC, JAIPUR JH FOT; IKY JKWO] U;KF;D LNL; DS LE{K BEFORE: SHRI SHRI VIJAY PAL RAO, JUDICIAL MEMBER VK;DJ VIHY LA-@ ITA NO. 1137/JP/2018 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2014-15. SHRI KHURSHID AHMED, 125, MANSAROVER COLONY, KALWAR ROAD, JHOTWARA, JAIPUR. CUKE VS. THE INCOME TAX OFFICER, WARD 3(1), JAIPUR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN NO. AAUPA 7724 R VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : RANO JAIN (ADVOCATE) JKTLO DH VKSJ LS@ REVENUE BY : SHRI A.K. MAHELA (JCIT) LQUOKBZ DH RKJH[K@ DATE OF HEARING : 26.09.2019. ?KKS'K .KK DH RKJH[K@ DATE OF PRONOUNCEMENT : 03/10/2019. VKNS'K@ ORDER PER VIJAY PAL RAO, JM : THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST TH E ORDER DATED 24.07.2018 OF LD. CIT (APPEALS)-1, JAIPUR FOR THE ASSESSMENT YEAR 2014-15. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL :- 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, TH E ORDER PASSED BY THE LEARNED COMMISSIONER OF INCOME TAX [CIT(A)] IS BAD BOTH IN THE EYE OF LAW AND ON FACTS. 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT (A) HAS ERRED BOTH ON FACTS & IN LAW IN SUSTAINING AN ADDIT ION OF RS. 32,84,000/- ON ACCOUNT OF UNDISCLOSED INCOME. 3. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE ORDER PASSED BY THE CIT (A) IS BAD IN LAW AS THE SAME HAS BEEN PASS ED IN VIOLATION OF PRINCIPLES OF NATURAL JUSTICE. 2 ITA NO. 1137/JP/2018 SHRI KHURSHID AHMED, JAIPUR. 4. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE ORDER PASSED BY THE LD. CIT (A) IS BAD IN LAW AS THE SAME HAS BEEN PASSED WITHOUT CALLING FOR AND IGNORING THE DETAILS AND DO CUMENTS AVAILABLE WITH THE ASSESSEE TO SUBSTANTIATE ITS CAS E. 5. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT (A) HAS ERRED BOTH ON FACTS AND IN LAW IN UPHOLDING THE ADD ITION OF RS. 32,84,000/- BY RELYING ON ACTION OF THE AO OF APPLY ING PROVISIONS OF SECTION 56(2)(VII) OF THE ACT. 6. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT (A) HAS ERRED BOTH ON FACTS & IN LAW IN CONSIDERING THE DEE MED PURCHASE VALUE OF THE PROPERTY AT RS. 56,09,000/- I GNORING THE FACT THAT THE VALUE OF REMAINING HALF PORTION OF TH E PROPERTY HAS BEEN TAKEN BY STAMP AUTHORITY AT RS. 23,50,000/- FO R STAMP VALUATION. 7. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, LD. CIT (A) HAS ERRED BOTH ON FACTS AND IN LAW CONSIDERING THE VALU E TAKEN SUB REGISTRAR BY MERELY CHANGE OF OPINION ON ACCOUNT OF TITLE OF THE PROPERTY FROM RESIDENTIAL TO COMMERCIAL, WITHOUT AN Y BASIS. 8. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, LD. CIT (A) HAS ERRED BOTH ON FACTS AND IN LAW CONSIDERING THE VALU E OF PROPERTY ON THE BASIS OF COMMERCIAL TITLE OF THE PROPERTY DESPITE CONSIDERING THE TRUE TITLE OF THE PROPERTY WHICH IS RESIDENTIAL. 9. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, LD. CIT (A) HAS ERRED BOTH ON THE FACTS AND IN LAW IGNORING THE FAC T THAT STAMP AUTHORITIES HAS TAKEN VALUE OF THE PROPERTY OF RS. 23,50,000/- AT THE TIME OF SALE OF SAME PROPERTY BY THE ASSESSEE. 10. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, LD. CIT (A) HAS ERRED BOTH ON THE FACTS AND IN LAW IN CONSIDERING T HE VALUE OF THE PROPERTY OF RS. 56,09,000/- ASSESSED BY ASSISTA NT VALUATION OFFICER WHICH IS HIGHER OF THE VALUE ADOPTED BY THE SUB REGISTRAR. 11. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, LD. CIT (A) HAS ERRED BOTH ON THE FACTS AND IN LAW SUSTAINING THE A DDITION MADE BY AO ON THE BASIS OF WRONG ESTIMATES WITHOUT BRING ING FORWARD ANY CORROBORATIVE MATERIAL/EVIDENCE IN THIS RESPECT . 12. THE APPELLANT CRAVES LEAVE TO ADD, AMEND OR ALT ER ANY OF THE GROUNDS OF APPEAL. 3 ITA NO. 1137/JP/2018 SHRI KHURSHID AHMED, JAIPUR. 2. THE ASSESSEE IS AN INDIVIDUAL AND FILED HIS RETU RN OF INCOME ON 30.03.2015 DECLARING TOTAL INCOME OF RS. 4,93,170/-. DURING T HE YEAR UNDER CONSIDERATION, THE ASSESSEE HAS PURCHASED A PLOT OF LAND BEARING NO. 1 5A (EAST PART), SANJAY NAGAR, KALWAR ROAD, JHOTWARA, JAIPUR FOR A CONSIDERATION O F RS. 23,25,000/-. THE AO ISSUED A LETTER UNDER SECTION 133(6) OF THE IT ACT TO THE DY. REGISTRAR-VII, CHITRAKOOT STADIUM, JAIPUR FOR PROVIDING COPY OF REGISTERED SA LE DEED AS WELL AS THE STAMP DUTY VALUATION OF THE PROPERTY. THE SUB REGISTRAR- VII, JAIPUR FURNISHED THE INFORMATION THAT THE PROPERTY WAS VALUED FOR THE PU RPOSE OF STAMP DUTY AT RS. 56,08,843/- THOUGH IT WAS A REVISION OF THE VALUATI ON AFTER THE REGISTRATION OF SALE DEED. SINCE THE VALUATION OF THE PROPERTY FOR STAM P DUTY PURPOSES WAS REVISED FROM RS. 25,98,265/- TO RS. 56,08,843/-, THE AO INVOKED THE PROVISIONS OF SECTION 56(2)(VII) AND TREATED THE DIFFERENTIAL AMOUNT OF R S. 32,84,000/- AS UNDISCLOSED INCOME AND PROPOSED TO ADD THE DIFFERENTIAL AMOUNT TO THE TOTAL INCOME OF THE ASSESSEE. THE ASSESSEE OBJECTED TO THE SAID ADDITI ON AND CONSEQUENTLY THE AO REFERRED THE MATTER TO THE DVO FOR DETERMINATION OF FAIR MARKET VALUE OF THE PROPERTY UNDER SECTION 50C(2) OF THE IT ACT. THE DVO DETERM INED THE FAIR MARKET VALUE OF THE SAME AS IN THE VALUATION ADOPTED BY THE STAMP D UTY AUTHORITY. CONSEQUENTLY, THE AO HAS MADE THE ADDITION OF THE DIFFERENTIAL AM OUNT OF RS. 32,84,000/-. THE ASSESSEE CHALLENGED THE ACTION OF THE AO BEFORE THE LD. CIT (A) BUT COULD NOT SUCCEED. 3. BEFORE THE TRIBUNAL, THE LD. COUNSEL FOR THE ASS ESSEE HAS SUBMITTED THAT THE STAMP DUTY AUTHORITY HAS REVISED THE VALUATION BY T REATING THE PROPERTY IN QUESTION AS COMMERCIAL WHEREAS AS PER THE RECORD THE PLOT OF LAND IS RESIDENTIAL AND IT REMAINED AS RESIDENTIAL. SHE HAS FURTHER POINTED O UT THAT THE PURCHASED PORTION 4 ITA NO. 1137/JP/2018 SHRI KHURSHID AHMED, JAIPUR. OF THE PLOT IN QUESTION AND THE SECOND HALF WAS ALS O SOLD BY THE OWNER AFTER A SHORT PERIOD AND, THEREFORE, THERE WAS A COMPARABLE SALE INSTANCE OF REMAINING PART OF THE SAME PLOT OF LAND WHICH WAS REQUIRED TO BE CONSIDER ED BY THE DVO WHILE DETERMINING THE FAIR MARKET VALUE. SHE HAS REFERRE D TO THE CORRESPONDENCE MADE BY THE DVO TO THE SUB REGISTRAR AND SUBMITTED THAT TH E DVO HAS DETERMINED THE FAIR MARKET VALUE ONLY BY CONSIDERING THE DLC RATE PROVI DED BY THE SUB REGISTRAR INSTEAD OF CONSIDERING THE DLC OF THE RESIDENTIAL P LOT OF LAND, THE DVO ALSO CONSIDERED THE DLC RATE OF COMMERCIAL LAND. THUS T HE LD. COUNSEL HAS SUBMITTED THAT THE DVO HAS COMMITTED A SERIOUS ERROR WHILE DE TERMINING THE FAIR MARKET VALUE BY ADOPTING THE DLC RATE OF COMMERCIAL LAND IN THE AREA INSTEAD OF CONSIDERING THE NATURE OF THE PROPERTY IN QUESTION ITSELF. SHE HAS THEN REFERRED TO THE ANOTHER SALE INSTANCE WHEN THE ASSESSEE HIMSELF HAS SOLD THE SAM E PLOT OF LAND IN THE YEAR 2015 AND THE SAID SALE INSTANCE WAS VERY MUCH AVAILABLE BEFORE THE DVO. THUS IGNORING THE SALE INSTANCE OF SAME PLOT OF LAND, ONE BY THE ORIGINAL OWNER SELLING THE REMAINING PART OF THE LAND AND ANOTHER BY THE ASSES SEE HIMSELF IN THE YEAR 2015, THE DETERMINATION OF FAIR MARKET VALUE BASED MERELY ON THE DLC RATE AS ADOPTED BY THE STAMP DUTY AUTHORITY IS NOT JUSTIFIED AND PROPER. SHE HAS THUS CONTENDED THAT THE DVO AS WELL AS THE STAMP DUTY AUTHORITY HAS PROCEED ED ON THE PREMISES THAT THE PROPERTY IS SITUATED ON THE ROAD SIDE AND THERE ARE SHOPPING MALLS IN THE SURROUNDING AREAS. THEREFORE, THE VALUATION WAS DO NE BY CONSIDERING THE PROPERTY AS COMMERCIAL WHEREAS THE PROPERTY IN QUESTION WAS A RESIDENTIAL PLOT OF LAND AS PER THE RECORD OF THE JDA AS REFLECTED IN THE LEASE ISS UED BY THE JDA IN FAVOUR OF THE OWNER FROM WHOM THE ASSESSEE HAS PURCHASED THE PROP ERTY. SHE HAS REFERRED TO THE SALE DEED VIDE WHICH THE ASSESSEE PURCHASED THI S PROPERTY AS WELL AS THE SALE 5 ITA NO. 1137/JP/2018 SHRI KHURSHID AHMED, JAIPUR. DEED VIDE WHICH THE REMAINING PART OF THE PROPERTY WAS SOLD BY THE OWNER. THE LD. COUNSEL HAS ALSO REFERRED THE SALE DEED DATED 27 TH FEBRUARY, 2015 WHEREBY THE ASSESSEE SOLD THIS PROPERTY FOR A CONSIDERATION OF RS. 23,50,000/-. THUS THE LD. COUNSEL HAS SUBMITTED THAT THE ASSESSEE HAS ESTABLI SHED THE FACT THAT THE FAIR MARKET VALUE OF THE PROPERTY CANNOT BE MORE THAN TH E PURCHASE CONSIDERATION SHOWN IN THE SALE DEED AND PAID BY THE ASSESSEE. SHE HAS RELIED UPON THE FOLLOWING DECISIONS :- SHRI VIJAY KUMAR PATNI VS. ITO 2019 (7) TMI 852-ITAT JAIPUR. N. REVATHI VS. ITO 2014 (4) TMI 387-ITAT HYDERABAD. RAVI KANT VS. ITO (2007) 110 TTJ 297 (DELHI) CHANDRA BHAN AGARWAL VS. ADDL CIT (2012) 21 TAXMANN.COM 133 (KOL.) 4. ON THE OTHER HAND, THE LD. D/R HAS SUBMITTED THA T THERE IS NO DISPUTE THAT THE PROPERTY IS SITUATED AT THE MAIN ROAD AND ALL THE S URROUNDING AREA IS ALREADY COMMERCIALIZED, THEREFORE, THE VALUE OF THE PROPERT Y HAS TO BE DETERMINED KEEPING IN VIEW THE LOCATION AND ADVANTAGE ATTACHED TO THE LOCATION WHERE THE PROPERTY IS SITUATED. ONCE THE DVO HAS DETERMINED THE FAIR MAR KET VALUE OF THE PROPERTY, THE AO HAS TO CONSIDER THE SAME FOR THE PURPOSE OF SECT ION 56(2)(VII) OF THE ACT. HE HAS RELIED UPON THE ORDERS OF THE AUTHORITIES BELOW. 5. I HAVE CONSIDERED THE RIVAL SUBMISSIONS AS WELL AS THE RELEVANT MATERIAL ON RECORD. THERE IS NO DISPUTE THAT THE ASSESSEE HAS PURCHASED SHARE OF THE PLOT NO. 15A, SANJAY NAGAR, KALAWAR ROAD, JHOTWARA, JAIPUR V IDE SALE DEED REGISTERED ON 21 ST 6 ITA NO. 1137/JP/2018 SHRI KHURSHID AHMED, JAIPUR. MARCH, 2014. THE SAID PLOT OF LAND WAS A LEASEHOLD PROPERTY ALLOTTED BY THE JDA IN FAVOUR OF ONE SH RAM DAYAL NAYAK AS PER SECTION 90B OF RAJASTHAN LAND REVENUE ACT, 1956. IT IS ALSO STATED IN THE SALE DEED THAT THE SAID PLOT OF LAND WAS ALLOTTED FOR RESIDENTIAL PURPOSE. THE REVENUE HAS NOT DISPUTED THAT THE PLOT OF LAND WAS ALLOTTED BY THE JDA AS RESIDENTIAL PLOT FOR RESIDENTIAL PURP OSE AND TILL IT WAS PURCHASED BY THE ASSESSEE IT REMAINED AS RESIDENTIAL PLOT OF LAND. T HEREFORE, AS FAR AS THE AUTHORIZED USE OF THE PLOT OF LAND IS CONCERNED, THE SAME IS R ESIDENTIAL THOUGH IN THE SURROUNDING AREA THERE ARE COMMERCIAL PROPERTIES BU T POTENTIAL USE OF THE PLOT FOR COMMERCIAL IS IRRELEVANT TILL IT IS CONVERTED BY TH E AUTHORITY FOR COMMERCIAL USE. THUS THE PROPERTY REMAINS AS A RESIDENTIAL PROPERTY UNTI L AND UNLESS IT IS CONVERTED INTO NON RESIDENTIAL PURPOSE THROUGH A PROPER PROCESS. T HEREFORE, MERELY BECAUSE THE PROPERTY IS SITUATED AT A LOCATION WHICH IS SURROUN DED BY COMMERCIAL COMPLEXES AND ESTABLISHMENT, WOULD NOT IPSO FACTO CHANGE THE CHAR ACTER OF THE PROPERTY IN QUESTION.THE STAMP DUTY AUTHORITY HAS ADOPTED THE C OMMERCIAL RATE FOR THE PURPOSE OF CHARGING THE STAMP DUTY IN THE REVISED VALUATION AFTER THE SALE DEED.HOWEVER, ONCE THE MATTER OF VALUATION WAS REFERRED TO THE DV O IT IS INCUMBENT UPON THE DVO TO DETERMINE THE FAIR MARKET VALUE ON THE BASIS OF THE ACTUAL CHARACTER AND NATURE OF THE PROPERTY AND NOT BY APPLYING THE DLC RATE PROVI DED FOR COMMERCIAL PROPERTIES IN THE AREA. IT IS MANIFEST FROM THE DVOS REPORT THAT HE HAS SIMPLY CALLED FOR THE DLC RATE FROM THE SUB REGISTRAR AND FROM THE RATES PROV IDED BY THE SUB REGISTRAR, HE HAS APPLIED THE COMMERCIAL RATE PROVIDED FOR THE AR EA IN WHICH THE PROPERTY IS SITUATED.THUS IGNORING THE FACT THAT THE PROPERTY W AS NOT CONVERTED FOR COMMERCIAL USE CANNOT BE EQUATED WITH THE COMMERCIAL PROPERTY DESPITE ITS POTENTIAL USE MAY BE FOR COMMERCIAL PURPOSES BUT THAT IS ALL UNCERTAI N AND A MATTER OF FUTURE USE.THE 7 ITA NO. 1137/JP/2018 SHRI KHURSHID AHMED, JAIPUR. VALUATION OF THE PROPERTY HAS TO BE DETERMINED AS O N THE DATE OF TRANSACTION OF PURCHASE/SALE. THUS, AS ON THE DATE OF PURCHASE AND EVEN WHEN THE ASSESSEE AGAIN SOLD THE PROPERTY IN THE YEAR 2015 IT REMAINS A RES IDENTIAL PROPERTY. THE ASSESSEE HAS BROUGHT ON RECORD THE SALE INSTANCE AND BOTH TH E SALE INSTANCES ARE IN RESPECT OF THE SAME PROPERTY, ONE IS THE SALE BY THE OWNER OF THE REMAINING HALF PORTION AND ANOTHER IS SALE BY THE ASSESSEE OF THE SAME PROPERT Y. THEREFORE, AT THE TIME OF DETERMINATION OF FAIR MARKET VALUE BY THE DVO, BOTH THESE SALE INSTANCES WERE AVAILABLE. IGNORING THESE SALE INSTANCES, DETERMINI NG THE FAIR MARKET VALUE BY THE DVO IS A SERIOUS IRREGULARITY AND, THEREFORE, THE F AIR MARKET VALUE DETERMINED BY THE DVO BASED ON THE DLC RATE IS NOT PROPER AND JUSTIFI ED. IN THE CASE OF RAVI KANT VS. ITO (SUPRA), THE DELHI BENCHES OF THE TRIBUNAL WHIL E DEALING WITH THIS ISSUE HAS HELD IN PARA 9 AS UNDER :- 9. ON A PERUSAL OF VALUATION REPORT, HOWEVER, WE FIND THAT EVEN THE VALUATION BY THE DVO HAS PLACED TOO MUCH OF EMPHASIS ON THE A SSESSMENT OR VALUATION BY THE STAMP VALUATION AUTHORITY. THIS IS NEITHER D ESIRABLE NOR PERMISSIBLE. THE REASON IS THIS. THE VALUATION BY THE STAMP VALUATIO N AUTHORITY IS BASED ON THE CIRCLE RATES. THESE CIRCLE RATES ADOPT UNIFORM RATE OF LAND FOR AN ENTIRE LOCALITY, WHICH INHERENTLY DISREGARDS PECULIAR FEATURES OF A PARTICULAR PROPERTY. EVEN IN A PARTICULAR AREA, ON ACCOUNT OF LOCATION FACTORS A ND POSSIBILITIES OF COMMERCIAL USE, THERE CAN BE WIDE VARIATIONS IN THE PRICES OF LAND. HOWEVER, CIRCLE RATES DISREGARD ALL THESE FACTORS AND ADOPT A UNIFORM RAT E FOR ALL PROPERTIES IN THAT PARTICULAR AREA. IF THE CIRCLE RATE FIXED BY THE ST AMP VALUATION AUTHORITIES WAS TO BE ADOPTED IN ALL SITUATIONS, THERE WAS NO NEED OF REFERENCE TO THE DVO UNDER S. 50C(2). THE SWEEPING GENERALIZATIONS INHERENT IN THE CIRCLE RATES CANNOT HOLD GOOD IN ALL SITUATIONS. IT IS, THEREFORE, NOT UNCOMMON THAT WHILE FIXING THE CIRCLE RATES, AUTHORITIES DO ERR ON THE SIDE OF EXC ESSIVE CAUTION BY ADOPTING HIGHER RATES OF THE LAND IN A PARTICULAR AREA AS TH E CIRCLE RATE. IN SUCH CIRCUMSTANCES, THE DVO'S BLIND RELIANCE ON CIRCLE R ATES IS UNJUSTIFIED. THE DVO HAS SIMPLY ADOPTED THE AVERAGE CIRCLE RATE OF R ESIDENTIAL AND COMMERCIAL AREA, ON THE GROUND THAT INTERIOR AREA OF THE LOCAL ITY, WHERE THE ASSESSEE'S PROPERTY IS SITUATED, IS MIXED DEVELOPED AREA I.E. SHOPS AND OFFICES ON THE GROUND FLOOR AND RESIDENCE ON THE UPPER FLOORS. WHE N DVO'S VALUATION REQUIRED TO COMPARE THE SAME WITH THE VALUATION BY THE STAMP VALUATION AUTHORITY, IT IS FUTILE TO BASE SUCH A REPORT ON TH E CIRCLE REPORT ITSELF. SUCH AN APPROACH WILL RENDER EXERCISE UNDER S. 50C(2) A MEA NINGLESS RITUAL AND AN 8 ITA NO. 1137/JP/2018 SHRI KHURSHID AHMED, JAIPUR. EMPTY FORMALITY. IN OUR CONSIDERED VIEW, IN SUCH A CASE, THE DVO'S REPORT SHOULD BE BASED ON CONSIDERATION STATED IN THE REGI STRATION DOCUMENTS FOR COMPARABLE TRANSACTIONS, AS ALSO FACTORS SUCH AS IN PUTS FROM OTHER SOURCES ABOUT THE MARKET RATES. FOR THE REASONS SET OUT ABO VE, AND WITH THESE OBSERVATIONS, WE REMIT THE MATTER TO THE FILE OF TH E AO. THE DVO WILL VALUE THE PROPERTY DE NOVO, IN THE LIGHT OF OUR ABOVE OBSERVATIONS, AND IN CASE THE VALUATION SO ARRIVED AT BY THE DVO IS LESS THAN RS. 11,42,100, THE AO SHALL ADOPT THE FRESH VALUATION SO DONE BY THE DVO FOR TH E PURPOSE OF COMPUTING CAPITAL GAINS UNDER S. 48 OF THE ACT. WE DIRECT SO. THUS THE TRIBUNAL HAS OBSERVED THAT THE VALUATION D ETERMINED BY THE DVO BASED ON CIRCLE RATE IS A FUTILE EXERCISE INSTEAD OF DETERMI NING THE FAIR MARKET VALUE ON THE BASIS OF THE COMPARABLE SALE INSTANCES OF THE SIMIL ARLY SITUATED PROPERTY. SIMILARLY IN CASE OF CHANDRA BHAN AGARWAL VS. ADDL. CIT (SUPRA), THE KOLKATA BENCHES OF THE TRIBUNAL HAS HELD IN PARA 7 & 8 AS UNDER :- 7. IN VIEW OF THE ABOVE FACTS, NOW THE QUESTION ARISE S AS TO WHY THE FAIR MARKET VALUE ASSESSED BY DVO AS PER THE PROVISION OF SEC. 50C(2)(A) OF THE ACT BE ADOPTED. THE EXPRESSION 'FAIR MARKET VALUE', IN REL ATION TO ANY IMMOVABLE PROPERTY TRANSFERRED, MEANT THE PRICE THE IMMOVABLE PROPERTY ORDINARILY FETCH ON SALE IN THE OPEN MARKET ON THE DATE OF EXECUTION OF THE INSTRUMENT OF TRANSFER OF SUCH PROPERTY. THE FAIR MARKET VALUE IS THE BEST PRICE WHICH VENDOR CAN REASONABLY OBTAIN IN THE CIRCUMSTANCES OF A PAR TICULAR CASE AND WHAT IS REQUIRED TO BE DONE FOR THE ASCERTAINMENT OF SUCH M ARKET VALUE IS TO ASCERTAIN THE PRICE WHICH A WILLING, REASONABLE AND PRUDENT P URCHASER WOULD PAY FOR THE PROPERTY. IN ASCERTAINING THAT, ALL FACTORS HAVING ANY DEPRESSING OR APPRECIATIVE EFFECT ON THE VALUE OF THE PROPERTY HAVE TO BE TAKE N INTO ACCOUNT OR IF IRRELEVANT CONSIDERATIONS HAVE ENTERED THE ENQUIRY, THE FINDIN G BECOMES VITIATED IN LAW. THERE IS NO DIFFERENCE BETWEEN THE IMPORT OF THE TE RMS 'COST', 'PRICE' AND 'VALUE'. AS A MATTER OF FACT, A PRICE INDICATES A F ACT THAT HAS ALREADY OCCURRED IN PRACTICE, A COMPLETED AFFAIR AFTER A PROPERTY HA S BEEN, OR AGREED TO BE SOLD. ON THE OTHER HAND, 'VALUE' INDICATES THE ESTIMATION OF A PROBABLE PRICE OF THE PROPERTY CONCERNED. THE VALUE OF A PROPERTY CANNOT BE STATED IN AN ABSTRACT FORM AND IT VARIES FROM TIME TO TIME AND CAN ONLY B E STATED WITH REFERENCE TO SO MANY FACTORS, I.E. THE LOCALITY, SITUATION, GENE RAL APPEARANCE IN THE AREA, AVAILABILITY OF SHOPPING AND MARKETING FACILITIES, CONDITION OF PUBLIC WAYS AND TRANSPORTATION, AVAILABILITY OF UTILITIES, AND MANY OTHER THINGS. AS FAR AS 'COST' IS CONCERNED, IT INDICATES COST TO THE PURCHASER FO R THE PURCHASE OF THE PROPERTY AFTER THE PURCHASE HAS BEEN COMPLETED OR AGREED TO. THE PROVISIONS OF SEC. 50C OF THE ACT, IN THE PRESENT CONTEXT, STATE THE FAIR MARKET VALUE AND VALUE IS ESTIMATION OF A PROBABLE PRICE OF THE PROPERTY, I.E . THE DEEMING FICTION. THE DEEMED VALUE IS TO BE ASCERTAINED AND FOR THAT, AS DISCUSSED ABOVE, SEC. 50C OF 9 ITA NO. 1137/JP/2018 SHRI KHURSHID AHMED, JAIPUR. THE ACT HAS POSTULATED CERTAIN CONDITIONS. IN THE P RESENT CASE, THE FAIR MARKET VALUE ESTIMATED BY DVO HAS BEEN CHALLENGED AS DVO'S REPORT HAS NO BASIS, BECAUSE IT HAS NOT DISCUSSED ANY OF THE FACTORS, SU CH AS LOCALITY, SITUATION, GENERAL APPEARANCE IN THE AREA, AVAILABILITY OF SHO PPING AND MARKETING FACILITIES, CONDITIONS OF PUBLIC WAYS AND TRANSPORT ATION, AVAILABILITY OF UTILITIES ETC. AND ETC. WE HAVE GONE THROUGH THE DVO.'S REPOR T, WHICH IS A CRYPTIC ONE, AND THE ASSESSMENT IS BASED ON VALUE AS ASSESSED BY A.D.S.R., SUTAHATA AND THAT ALSO ON THE BASIS OF ADDITIONAL STAMP DUTY ASK ED FOR. IF SUCH IS THE SITUATION, THERE IS NO PURPOSE FOR REFERRING THE MA TTER TO DVO REASON BEING IF THE DVO IS TO ADOPT THE VALUE TAKEN BY STAMP DUTY A UTHORITY, THEN HE HAS NOT APPLIED HIS INDEPENDENT MIND AND THAT ITSELF IS BAS ED ON IRRELEVANT CONSIDERATIONS AND GERMANE CONSIDERATIONS HAVE NOT BEEN CONSIDERED WHILE ASSESSING THE VALUE. HON'BLE SUPREME COURT HAS RULE D FOR DETERMINING THE FAIR MARKET VALUE, NO DOUBT IN THE CONTEXT OF LAND ACQUI SITION ACT, 1894, BUT THE SAME HOLDS THE FIELD EVEN IN THE CASE OF VALUATION TO BE MADE BY THE DVO. HON'BLE APEX COURT HAS CONSIDERED THE ISSUE IN CHIMANLAL HARGOVINDDAS V. SPECIAL LAND ACQUISITION OFFICER AIR 1988 SC 1652, 1656- 58, IN SURESH KUMAR V. TOWN IMPROVEMENT TRUST, BHOPAL [1989] 2 SCC 329 (SC) AND IN LAND ACQUISITION COLLECTOR V. SUKHDEV SINGH AIR 1995 HP 150, LAID DOWN FOLLOWING GUIDING FACTORS:- '(1) THE MARKET VALUE OF LAND UNDER ACQUISITION HAS TO BE DETERMINED AS ON THE CRUCIAL DATE OF PUBLICATION OF THE NOTIFICATION UND ER SECTION 4 OF THE LAND ACQUISITION ACT (DATES OF NOTIFICATIONS UNDER SECTI ONS 6 AND 9 ARE IRRELEVANT). (2) THE DETERMINATION HAS TO BE MADE STANDING ON TH E DATE LINE OF VALUATION (DATE OF PUBLICATION OF NOTIFICATION UNDER SECTION 4) AS IF THE VALUE IS A HYPOTHETICAL PURCHASER WILLING TO PURCHASE LAND FRO M THE OPEN MARKET AND IS PREPARED TO PAY A REASONABLE PRICE AS ON THAT DAY. IT HAS ALSO TO BE ASSUMED THAT THE VENDOR IS WILLING TO SELL THE LAND AT A RE ASONABLE PRICE. (3) IN DOING SO BY THE INSTANCES METHOD, THE COURT HAS TO CORRELATE THE MARKET VALUE REFLECTED IN THE MOST COMPARABLE INSTANCE WHI CH PROVIDES THE INDEX OF MARKET VALUE. (4) ONLY GENUINE INSTANCES HAVE TO BE TAKEN INTO AC COUNT. (SOMETIMES INSTANCES ARE RIGGED UP IN ANTICIPATION OF ACQUISIT ION OF LAND.) (5) EVEN POST-NOTIFICATION INSTANCES CAN BE TAKEN I NTO ACCOUNT (1) IF THEY ARE VERY PROXIMATE, (2) GENUINE AND (3) THE ACQUISITION ITSELF HAS NOT MOTIVATED THE PURCHASER TO PAY A HIGHER PRICE ON ACCOUNT OF THE R ESULTANT IMPROVEMENT IN DEVELOPMENT PROSPECTS. (6) THE MOST COMPARABLE INSTANCES OUT OF THE GENUIN E INSTANCES HAVE TO BE IDENTIFIED ON THE FOLLOWING CONSIDERATIONS: ( I ) PROXIMITY FROM TIME ANGLE ( II ) PROXIMITY FROM SITUATION ANGLE. (7) HAVING IDENTIFIED THE INSTANCES WHICH PROVIDE T HE INDEX OF MARKET VALUE THE PRICE REFLECTED THEREIN MAY BE TAKEN AS THE NOR M AND THE MARKET VALUE OF THE LAND UNDER ACQUISITION MAY BE DEDUCED BY MAKING SUITABLE ADJUSTMENTS FOR THE PLUS AND MINUS FACTORS VIS-A-VIS LAND UNDER ACQ UISITION BY PLACING THE TWO IN JUXTAPOSITION. 10 ITA NO. 1137/JP/2018 SHRI KHURSHID AHMED, JAIPUR. (8) A BALANCE-SHEET OF PLUS AND MINUS FACTORS MAY B E DRAWN FOR THIS PURPOSE AND THE RELEVANT FACTORS MAY BE EVALUATED IN TERMS OF PRICE VARIATION AS A PRUDENT PURCHASER WOULD DO. (9) THE MARKET VALUE OF THE LAND UNDER ACQUISITION HAS THEREAFTER TO BE DEDUCED BY LOADING THE PRICE REFLECTED IN THE INSTANCE TAKE N AS NORM FOR PLUS FACTORS AND UNLOADING IT FOR MINUS FACTORS. (10) THE EXERCISE INDICATED IN CLAUSES (7) TO (9) H AS TO BE UNDERTAKEN IN A COMMON SENSE MANNER AS A PRUDENT MAN OF THE WORLD O F BUSINESS WOULD SO. WE MAY ILLUSTRATE SOME SUCH ILLUSTRATIVE (NOT EXHAU STIVE) FACTORS:- PLUS FACTORS MINUS FACTORS 1. SMALLNESS OF SIZE. 1. LARGENESS OF AREA 2. PROXIMITY TO A ROAD. 2. SITUATION IN THE INTERIOR AT A DISTANCE FROM THE ROAD. 3. FRONTAGE ON A ROAD. 3. NARROW STRIP OF LAND WITH VERY SMALL FRONTAGE COMPARED TO DEPTH. 4. NEARNESS TO DEVELOPED AREA. 4. LOWER LEVEL REQUIRING THE DEPRESSED PORTION TO BE FILLED UP. 5. REGULAR SHAPE. 5. REMOTENESS FROM DEVELOPED LOCALITY. 6. LEVEL VIS--VIS LAND UNDER ACQUISITION 6. SOME SPECIAL DISADVANTAGEOUS FACTOR WHICH WOULD DETER A PURCHASER. 7. SPECIAL VALUE FOR AN OWNER OF AN ADJOINING PROPERTY TO WHICH IT MAY HAVE SOME VERY SPECIAL ADVANTAGE. (11) THE EVALUATION OF THESE FACTORS OF COURSE DEPE NDS ON THE FACTS OF EACH CASE. THERE CANNOT BE ANY HARD AND FAST OR RIGID RU LE. COMMON SENSE IS THE BEST AND MOST RELIABLE GUIDE. FOR INSTANCE, TAKE TH E FACTOR REGARDING THE SIZE. A BUILDING PLOT OF LAND SAY 500 TO 1000 SQ. YDS. CANN OT BE COMPARED WITH A LARGE TRACT OR BLOCK OF LAND OF SAY 10000 SQ. YDS. OR MOR E. FIRSTLY WHILE A SMALLER PLOT IS WITHIN THE REACH OF MANY, A LARGE BLOCK OF LAND WILL HAVE TO BE DEVELOPED BY PREPARING A LAY-OUT, CARVING OUT ROADS , LEAVING OPEN SPACE, PLOTTING OUT SMALLER PLOTS, WAITING FOR PURCHASERS (MEANWHILE THE INVESTED MONEY WILL BE BLOCKED UP) AND THE HAZARDS OF AN ENT REPRENEUR. THE FACTOR CAN BE DISCOUNTED BY MAKING A DEDUCTION BY WAY OF AN AL LOWANCE AT AN APPROPRIATE RATE RANGING APPROXIMATELY BETWEEN 20% TO 50% TO ACCOUNT FOR LAND REQUIRED TO BE SET APART FOR CARRYING OUT LAND S AND PLOTTING OUT SMALL PLOTS. THE DISCOUNTING WILL TO SOME EXTENT ALSO DEPEND ON WHETHER IT IS A RURAL AREA OR URBAN AREA, WHETHER BUILDING ACTIVITY IS PICKING UP, AND WHETHER WAITING 11 ITA NO. 1137/JP/2018 SHRI KHURSHID AHMED, JAIPUR. PERIOD DURING WHICH THE CAPITAL OF THE ENTREPRENEUR WOULD BE LOCKED UP, WILL BE LONGER OR SHORTER AND THE ATTENDANT HAZARDS. (12) EVERY CASE MUST BE DEALT WITH ON ITS OWN FACT PATTERN BEARING IN MIND ALL THESE FACTORS AS A PRUDENT PURCHASER OF LAND IN WHI CH POSITION THE JUDGE MUST PLACE HIMSELF. (13) THESE ARE GENERAL GUIDELINES TO BE APPLIED WIT H UNDERSTANDING INFORMED WITH COMMON SENSE.' 8. FROM THE ABOVE, WE CAN VISUALIZE THAT DVO HAS NOT DISCUSSED ANYTHING WHILE DETERMINING FAIR MARKET VALUE, RATHER HE HAS BASED HIS OPINION ON THE BASIS OF FAIR MARKET VALUE ASSESSED BY A.D.S.R., SU TAHATA FOR ASCERTAINING VALUE FOR STAMP VALUATION PURPOSES. EVEN THE DVO WI THOUT DISCUSSING ANYTHING HAS APPLIED PLINTH AREA RATE PER SQ. MT. H E HAS NOT DISCUSSED THE METHOD OF VALUATION, I.E. PRIMARILY LAND AND BUILDI NG METHOD, CONTRACTOR'S METHOD OF VALUATION, RENTAL BASIS OR YIELD BASIS ME THOD, MUNICIPAL VALUATION METHOD ETC. IN THIS CASE, THE DVO HAS NOT ASCERTAIN ED ANY MARKET VALUE TO WHICH A WILLING, REASONABLE AND PRUDENT PURCHASER W OULD PAY FOR THIS PROPERTY. EVEN THE DVO HAS NOT CONSIDERED THE FACTORS HAVING ANY DEPRESSING OR APPRECIATIVE EFFECT ON THE VALUE OF THE PROPERTY IN CLUDING GUIDELINES LAID DOWN BY HON'BLE SUPREME COURT, AS NOTED ABOVE. EVEN DVO WAS ASKED TO PRESENT TO SUPPORT HIS VALUATION REPORT AND IN TERMS OF PRO VISO TO SECTION 24 OF WEALTH TAX ACT, 1957, HE WAS ALLOWED OPPORTUNITY. THE DVO, SHRI S.B. DEY WAS PRESENT BUT HE FAIRLY CONCEDED THAT THE VALUATION M ADE IS ON THE BASIS OF VALUE DETERMINED BY STAMP VALUATION AUTHORITY FOR CHARGIN G STAMP DUTY AND HIS VALUATION IS NOT BASED ON ANY FACTORS AS ENUMERATED BY HON'BLE SUPREME COURT IN THE ABOVE-REFERRED CASES. THESE, ABOVE REFERRED CASES OF HON'BLE SUPREME COURT, WERE CONFRONTED TO DVO. EVEN LD. SR. DR, SHR I S.K. ROY COULD NOT SUPPORT THE VALUATION REPORT AND FAIRLY CONCEDED TH AT AT THE TIME OF REGISTRATION OF SALE DEED OF THE ASSESSEE'S PROPERTY, THERE WAS NO CIRCLE RATES FOR ASSESSING THE FAIR MARKET VALUE FOR THE PURPOSES OF COLLECTIO N OR LEVY OF STAMP DUTY IS FIXED. IN SUCH CIRCUMSTANCES, NOW WE HAVE TO DETERM INE WHAT SHOULD BE THE FAIR MARKET VALUE. AS ARGUED BY LD. COUNSEL FOR THE ASSESSEE, SHRI S.M. SURANA AND THE VALUATION REPORT AS ASSESSED BY THE STAMP V ALUATION AUTHORITY, THE SAME PROPERTY VIDE REPORT DATED 08.09.2008 ASSESSING THE MARKET VALUE AT RS. 76,18,872/- AS FILED BEFORE US CAN BE CONSIDERED. H ENCE, AS DIRECTED BY HON'BLE CALCUTTA HIGH COURT, CONSIDERING THE FAIR M ARKET VALUE DETERMINED BY A.D.S.R., SUTAHATA, GOVT. OF WEST BENGAL, I.E. THE VALUATION AUTHORITY REPORT DATED 08/9/2008 ASSESSING THE FAIR MARKET VALUE OF THIS PROPERTY AS ON 08/9/2008 AT RS. 76,18,872/- SEEMS TO BE FAIR AND R EASONABLE FOR THE PURPOSE OF COMPUTATION OF LONG-TERM CAPITAL GAINS BECAUSE WHEN ASSESSEE SOLD HIS PROPERTY, IN QUESTION, THERE WAS NO CIRCLE RATES FI XED BY STAMP VALUATION AUTHORITY OF THE CONCERNED CIRCLE FOR THE PURPOSE O F COLLECTION OR LEVY OF STAMP DUTY AS CONCEDED BY LD. SR DR. WE DIRECT THE AO ACC ORDINGLY. THEREFORE, THE DVO IS REQUIRED TO CONSIDER VARIOUS FACTORS WHILE DETERMINING THE FAIR MARKET VALUE INSTEAD OF GOING BY THE CIRCULAR/DLC R ATES OF THE AREA. THE COORDINATE 12 ITA NO. 1137/JP/2018 SHRI KHURSHID AHMED, JAIPUR. BENCH OF THIS TRIBUNAL IN CASE OF VIJAY KUMAR PATNI VS. ITO (SUPRA) HAS AGAIN CONSIDERED THIS ISSUE IN PARA 11 AS UNDER :- 11. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AS WEL L AS RELEVANT MATERIAL ON RECORD. THE DISPUTE IS ONLY REGARDING THE FULL VALU E CONSIDERATION ADOPTED BY THE AO U/S 50C OF THE ACT AS PER THE REVISED STAMP DUTY VA LUATION BASED ON COMMERCIAL PROPERTY. IN RESPONSE TO THE OBJECTIONS RAISED BY T HE ASSESSEE THE AO REFERRED THE VALUATION TO THE DVO HOWEVER, DUE TO SHORTAGE OF TI ME THE SAID REFERENCE WAS RETURNED BY THE DVO. IN ANY CASE THE LD. CIT(A) AGA IN REFERRED THE VALUATION TO THE DVO AND AFTER RECEIVING THE REPORT OF THE DVO WHICH DETERMINED THE FAIR MARKET VALUE OF THE PROPERTY MORE THAN THE VALUE ADOPTED B Y THE STAMP DUTY AUTHORITY HAS UPHELD THE ACTION OF THE AO. THE MAIN CONTENTION OF THE ASSESSEE IS THAT THE PROPERTY IN QUESTION IS A RESIDENTIAL AS PER RECORD AND THERE IS NO CONVERSION OF THE PROPERTY FROM RESIDENTIAL TO NON RESIDENTIAL. THERE FORE, EVEN IF THE PROPERTY WAS BEING USED FOR NON RESIDENTIAL PURPOSE/COMMERCIAL P URPOSE THE VALUATION OF THE SAME CANNOT BE DETERMINED BY ADOPTING THE COMMERCIA L RATES. THE UNAUTHORIZED USE OF THE PROPERTY WOULD NOT ENHANCED THE VALUE AS PER THE CONTENTION OF THE ASSESSEE. THERE IS NO DISPUTE THAT THE PROPERTY IN QUESTION AS PER RECORD IS A RESIDENTIAL PROPERTY HOWEVER, THE LOCATION OF THE P ROPERTY AS WELL AS THE ACTUAL USE OF THE PROPERTY FOR COMMERCIAL PURPOSES HAS LED TO THE STAMP DUTY AUTHORITY AS WELL DVO TO ADOPT COMMERCIAL RATES FOR THE PURPOSE OF VA LUATION. THE STAMP DUTY AUTHORITY HAS INITIALLY APPLIED THE RESIDENTIAL RAT E AT THE TIME OF SALE DEEDS BUT SUBSEQUENTLY THE VALUE WAS REVISED BY ADOPTING COMM ERCIAL RATES. THIS APPEARS TO BE BASED ON THE ACTUAL USED OF THE PROPERTY IN QUES TION. EVEN THE ASSESSEE HAS NOT DISPUTED THE ACTUAL USED OF THE PROPERTY AS FOR COM MERCIAL PURPOSE AND DUE TO SUCH UNAUTHORIZED USED THE NAGAR NIGAM ISSUED A SHOW CAU SE ISSUED DATED 24.12.2012. THE ASSESSEE HAS ALSO FILED THE SANCTIONED PLAN OF THE PROPERTY IN QUESTION AS ADDITIONAL EVIDENCE IN SUPPORT OF THE CLAIM THAT AT THE TIME OF SALE THE PROPERTY WAS A RESIDENTIAL ONE AND SUBSEQUENT MISUSE OF THE SAME FOR COMMERCIAL PURPOSE WILL NOT ENHANCE THE FAIR MARKET VALUE. IT IS PERTINENT TO NOTE THAT THOUGH THE LOCATIONAL ADVANTAGE AND ACTUAL USE OF THE PROPERTY FOR COMMER CIAL PURPOSE ARE CERTAINLY RELEVANT FACTORS FOR DETERMINING FAIR MARKET VALUE OF THE PROPERTY BUT THIS ITSELF WILL NOT BE A GROUND TO RECLASSIFY THE PROPERTY FROM RES IDENTIAL BUT COMMERCIAL ONE. 13 ITA NO. 1137/JP/2018 SHRI KHURSHID AHMED, JAIPUR. THEREFORE, THE RATES OF THE COMMERCIAL PROPERTY CAN NOT BE APPLIED TO A PROPERTY WHICH IS UNAUTHORISEDLY USED FOR COMMERCIAL PURPOSE . THOUGH THE LOCATIONAL ADVANTAGE AND ACTUAL OF COMMERCIAL USE ARE THE RELE VANT FACTOR FOR DETERMINING THE FAIR MARKET VALUE BUT THESE CANNOT BE THE BASIS FOR TREATING THE PROPERTY AS COMMERCIAL ONE. THEREFORE, THE FAIR MARKET VALUE OF THE PROPERTY HAS TO BE DETERMINED ON THE BASIS OF THE PREVAILING RATE IN T HE AREA AS WELL AS ON THE BASIS OF SALE INSTANCE WHICH CAN BE CONSIDERED AS COMPARABLE CASES. THE DVO HAS ADOPTED THE COMMERCIAL RATE FOR DETERMINING THE FAIR MARKET VALUE OF THE PROPERTY WHEREAS THE FACT REMAINS THAT THE PROPERTY IS A RESIDENTIAL AREA BUT IS BEING USED FOR COMMERCIAL PURPOSE. THUS APPLYING THE COMMERCIAL RA TES ON A RESIDENTIAL PROPERTY USED FOR COMMERCIAL PURPOSE IS NOT PROPER AND JUSTI FIED. THOUGH IT MAY HAVE A COMPARATIVE ADVANTAGE THAN THE RESIDENTIAL PROPERTY WHICH IS ALSO USED FOR RESIDENTIAL PURPOSE BUT THE SAID ADVANTAGE WILL NOT CONVERT IT TO COMMERCIAL AREA. ACCORDINGLY, WE ARE OF THE CONSIDERED VIEW THAT THE DETERMINATION OF THE FAIR MARKET VALUE BY THE DVO REQUIRES A FRESH LOOK BASED ON THE PREVAILING FAIR MARKET PRICE WELL AS COMPARABLE SALE INSTANCE. SINCE, THE ASSESSEE HA S NOW FILED THE SITE PLAN AS ADDITIONAL EVIDENCE, THEREFORE, IN THE FACTS AND CI RCUMSTANCES OF THE CASE WE SET ASIDE THIS ISSUE OF FAIR MARKET VALUE TO THE RECORD OF THE DVO/AO FOR REDETERMINATION OF THE SAME AS PER ABOVE OBSERVATIO NS. IT IS ALSO PERTINENT TO NOTE THAT FOR THE PURPOSE OF COMPUTING THE COST OF CONST RUCTION THE STATE PWD RATES SHALL BE APPLIED AS AGAINST CPWD RATES AS THE PROPERTY IS SITUATED IN THE JURISDICTION OF STATE PWD AND NOT IN THE JURISDICTION OF CPWD. HENC E, THE DVO IS DIRECTED TO RECONSIDER THE DETERMINATION OF FAIR MARKET VALUE A ND AFTER GIVING AN OPPORTUNITY OF HEARING TO THE ASSESSEE. THEREFORE, THE PROPERTY WHICH IS OTHERWISE RESIDENT IAL AS PER THE RECORD CANNOT BE TREATED AS A COMMERCIAL PROPERTY FOR THE PURPOSE OF DETERMINING THE FAIR MARKET VALUE THOUGH THE LOCATIONAL ADVANTAGE BEING A FACTO R, INFLUENCE THE VALUE OF THE PROPERTY. HOWEVER, SO LONG THE PROPERTY IS A RESID ENTIAL PROPERTY IT CANNOT BE TREATED AS COMMERCIAL PROPERTY. ACCORDINGLY, IN VI EW OF THE FACTS AND CIRCUMSTANCES OF THE CASE AND FOLLOWING THE DECISIONS CITED ABOVE , I HOLD THAT THE FAIR MARKET VALUE 14 ITA NO. 1137/JP/2018 SHRI KHURSHID AHMED, JAIPUR. DETERMINED BY THE DVO AND CONSIDERED BY THE AO IS N OT SUSTAINABLE IN LAW AS AN ARBITRARY EXERCISE WITHOUT CONSIDERING THE RELEVANT FACTORS. THE ASSESSEE HAS ALREADY BROUGHT ON RECORD THE COMPARABLE SALE INSTA NCES AND, THEREFORE, INSTEAD OF GOING BY THE DLC RATES OF THE AREA AND THAT TOO FOR COMMERCIAL PROPERTY, THE FAIR MARKET VALUE HAS TO BE DETERMINED BASED ON THE ACTU AL CHARACTER OF THE PROPERTY AND THE SALE INSTANCES OF THE SIMILARLY SITUATED PR OPERTY. IN THE CASE IN HAND, WHEN THE SALE INSTANCES ARE AVAILABLE AND WHICH SUPPORT THE CASE OF THE ASSESSEE THAT THE FAIR MARKET VALUE OF THE PROPERTY CANNOT BE MORE TH AN THE PURCHASE CONSIDERATION, THEN NO ADDITION IS CALLED FOR UNDER SECTION 56(2)( VIII) OF THE ACT. THE ADDITION BY THE AO AND SUSTAINED BY THE LD. CIT (A) IS DELETED. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED. ORDER IS PRONOUNCED IN THE OPEN COURT ON 03/10/20 19. SD/- ( FOT; IKY JKWO (VIJAY PAL RAO) U;KF;D LNL;@ JUDICIAL MEMBER JAIPUR DATED:- 03/10/2019. DAS/ VKNS'K DH IZFRFYFI VXZSF'KR@ COPY OF THE ORDER FORWARDED TO: 1. THE APPELLANT- SHRI KHURSHID AHMED, JAIPUR. 2. THE RESPONDENT THE ITO WARD 3(1), JAIPUR. 3. THE CIT(A). 4. THE CIT, 5. THE DR, ITAT, JAIPUR 6. GUARD FILE (ITA NO. 1137/JP/2018. VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASSISTANT. REGISTRAR 15 ITA NO. 1137/JP/2018 SHRI KHURSHID AHMED, JAIPUR.