JAY HARSHAD SHAH ( HUF), MUMBAI V. ITO 16(2)(2), MUMBAI

ITA 1178/MUM/2012

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 4155 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 4 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-07-2013
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: J
• Next Hearing Date: 12-06-2013
• Assessment Year: 2005-2006
• Appeal Filed On: 21-02-2012
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: T D SINGH
• Assessee Lawyers: REEPAL TRALSHAWALA
• Keywords: Sale consideration of property below Jantri Value; Additional evidence; Cost of acquisition; Tangible material; Fair market value; Valuation report
• Section: 50C; 147; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH J, MUMBAI BEFORE SHRI B. RAMAKOTAIAH, ACCOUNTANT MEMBER AND DR. S.T.M. PAVALAN, JUDICIAL MEMBER ITA NO. 1178/MUM/2012 ASSESSMENT YEAR : 2005-06 SHRI JAY HARSHAD SHAH (HUF) FLAT NO.11, LE JARDIN KASHIBHAI NAVRANG MARG GAMDEVI MUMBAI-400 007. PAN:AAHPS 4946 C VS. INCOME TAX OFFICER WARD 16(2)(2) MUMBAI. (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI REEPAL TRALSHAWALA REVENUE BY : SHRI T.D. SIN GH DATE OF HEARING : 12/06/2013 DATE OF PRONOUNCEMENT : 12 / 07/2013 O R D E R PER B. RAMAKOTAIAH, AM: THIS IS AN ASSESSEES APPEAL AGAINST THE ORDER OF C IT(A)-27, MUMBAI DATED 29.11.2011. THE ASSESSEE HAS RAISED TH E FOLLOWING TWO GROUNDS :- 1. IN LAW AND ON THE FACTS & IN THE CIRCUMSTANCES OF THE APPELLANTS CASE THE HONBLE C.I.T.(A) ERRED IN UPH OLDING THE VALIDITY OF THE NOTICE ISSUED U/S 148(2), WITHOUT APPRECIATI NG THAT THERE WERE NO COGENT REASONS RECORDED FRO THE REOPENING OF THE ASSESSMENT AND THERE WAS NO NEW MATERIAL GATHERED BY THE A.O. FOR REOPENING OF THE ASSESSMENT. 2. IN LAW AND ON THE FACTS & IN THE CIRCUMSTANCES O F THE APPELLANTS CASE, THE HONBLE C.I.T.(A) ERRED IN RE LYING ON THE ITA NO.1178/M/12 A.Y.05-06 SHRI JAY HARSHAD SHAH(HUF) 2 VALUATION REPORT AS PREPARED BY SHRI UMRIGAR, WHICH ADOPTED RENT CAPITALIZATION METHOD UNDER WEALTH TAX ACT INSTEAD OF RELYING ON THE VALUATION REPORT OF SHRI GANJAWALA WHICH WAS FOR TH E PURPOSE OF DETERMINING THE FAIR MARKET VALUE (FMV) AS ON 01-04 -1981 WHICH WAS UNDER THE PROVISIONS OF THE INCOME TAX ACT, 196 1 FOR THE PURPOSE OF COMPUTING THE CAPITAL GAINS MADE ON THE SALE OF THE IMPUGNED PROPERTY. 2. DURING THE COURSE OF APPELLATE PROCEEDINGS THE ASSESSEE FILED PAPERBOOK-2 CONTAINING 58 TO 71 PAGES IN THE FORM O F ADDITIONAL EVIDENCE WITH A PRAYER TO ADMIT THE SAME FOR ADJUDICATING TH E ISSUE. IT WAS FURTHER SUBMITTED THAT THESE DOCUMENTS FILED BY WAY OF ADDI TIONAL EVIDENCE ARE NOTHING BUT ASSESSMENT ORDER PASSED FOR ASSESSMENT YEAR 2005-06 IN ANOTHER CASE OF SHRI PANKAJ P. SHAH ON 21.01.2013 I .E. AFTER PASSING THE ASSESSMENT ORDER AND ORDER OF CIT(A) FOR THE PRESEN T CASE. THE OTHER DOCUMENTS PLACED AS ADDITIONAL EVIDENCE WAS VALUATI ON REPORT OF THE DEPARTMENT DATED 19.04.1090 DETERMINING THE FMV OF THE SION PROPERTY AS AT 31.03.87 AND 31.03.88 DETERMINING THE VALUES AT RS.54.82 LACS ON 31.3.1988 AT RS.69.93 LACS. THESE ARE FILED IN SUPP ORT OF THE ARGUMENT OF THE ASSESSEE. THE SAME ARE ADMITTED FOR CONSIDERING THE ISSUE AS THEY ARE LEGAL IN NATURE AND GO TO THE ROOT OF THE MATTER. 3. BRIEFLY STATED, THE ASSESSEE (HUF) IS CO-OWNER O F THE PROPERTY (8.33%) SITUATED AT PLOT NO.10B(E) OF SION MATUNGA ESTATE, KOLIWADA, MUMBAI. THE PROPERTY WAS ORIGINALLY OWNED BY HARSHA D(HUF) AND WAS RECEIVED BY THE ASSESSEE ON PARTITION OF THE SAID H UF, VIDE PARTITION DEED DATED 30.03.1982. THE PROPERTY WAS OWNED BY THE HAR SHAD (HUF) PRIOR TO 01:04:1981. DURING THE YEAR UNDER CONSIDERATION THE AFORESAID PROPERTY WAS SOLD BY THE CO-OWNERS FOR A CONSIDERAT ION OF RS.4,21,00,000/- WHICH WAS VALUED FOR THE PURPOSE O F STAMP DUTY AT RS.4,94,61,600/-. WHILE COMPUTING THE CAPITAL GAINS FOR THE AFORESAID TRANSACTION, THE ASSESSEE ADOPTED ACTUAL SALE CONS IDERATION RECEIVED AT RS.4.21 CRORES INSTEAD OF STAMP DUTY VALUE OF RS.4. 94 CRS. THAT APART ITA NO.1178/M/12 A.Y.05-06 SHRI JAY HARSHAD SHAH(HUF) 3 ASSESSEE ALSO ADOPTED THE FAIR MARKET VALUE OF THE PROPERTY AS ON 01.04.1981 AT RS.43,10,000/- BY RELYING UPON THE VA LUATION REPORT OF M/S. H. GANJAWALA & CO., REGISTERED VALUERS. THE AO DURING THE ASSESSMENT PROCEEDINGS REFERRED TO THE VALUATION OF THE PROPERTY AS ON 01.04.1981 TO THE VALUATION OFFICER U/S.55A OF THE ACT. THE VALUATION OFFICER REPORTED THE MARKET VALUE OF THE PROPERTY A S ON 01.04.1981 AT RS.29.62 LAKHS. THE AO COMPLETED THE ASSESSMENT BY ADOPTING THE STAMP DUTY VALUE OF RS.4,94,61,000/- AS FULL CONSID ERATION RECEIVED, BY APPLYING THE PROVISIONS OF SEC.50C, AND INDEXED THE 01.04.1981 VALUE OF RS.29.62 LAKHS REPORTED BY THE VALUATION OFFICER IN STEAD OF THE VALUE OF RS.43.10 LAKHS SOUGHT BY THE ASSESSEE. FURTHER, THE AO ALLOWED THE BENEFIT OF COST INFLATION INDEX FROM F.Y. 2001-02 O N THE GROUND THAT THE PROPERTY WAS INHERITED BY THE ASSESSEE AS PER THE W ILL OF SMT. INDUMATI P. SHAH ON HER DEATH. THUS, THE AO RECOMPUTED THE L ONG TERM CAPITAL GAINS CHARGEABLE TO TAX. 3.2 BEFORE CIT(A) THE ASSESSEE CONTESTED RE-OPENING OF THE ASSESSMENT U/S. 147 WHICH WAS HELD AGAINST HIM ON THE REASON T HAT THERE WAS NO ASSESSMENT ORIGINALLY AND RETURN WAS PROCESSED U/S. 143(1). WITH REFERENCE TO CONTENTION THAT VALUE WAS ADOPTED AS DETERMINED BY STAMP DUTY AUTHORITIES WITHOUT GIVING OPPORTUNITY TO THE ASSESSEE OR REFERRING THE MATTER TO THE VALUATION OFFICER, IT WAS ALSO AC CEPTED BY CIT(A) FOLLOWING THE DECISION OF ITAT IN THE CASE OF MRS. ASHA BHARAT SHAH VS. INCOME TAX OFFICER , ANOTHER CO-OWNER OF THE PROPERTY AND ACCORDINGLY MATTER WAS REFERRED TO DVO FOR DETERMINING THE FMV AS PER PROVISIONS OF SECTION 50C(2). WITH REFERENCE TO ACTUAL COST APPLI CABLE FROM 01.04.81 THIS ISSUE ALSO WAS ACCEPTED BY THE LD. CIT(A) FOLL OWING THE DECISION OF THE HONBLE HIGH COURT OF BOMBAY IN THE CASE OF MANJULA J. SHAH DATED 11.10.11. SINCE THE PROPERTY WAS RECEIVED ON PARTIT ION AND ERSTWHILE HUF HELD THE PROPERTY AS ON 01.04.81, THE DIRECTION OF THE CIT WAS TO TAKE THE VALUE AS ON 01.04.81. HOWEVER, THE ISSUE PRESEN TLY CONTESTED BY THE ITA NO.1178/M/12 A.Y.05-06 SHRI JAY HARSHAD SHAH(HUF) 4 ASSESSEE IS WITH REFERENCE TO THE VALUE TO BE ADOPT ED AS ON 01.04.81. THE ASSESSEE FILED REPORT OF M/S. H. GANJAWALA WHO VAL UED THE PROPERTY AT RS.43,10,000/-. THE LD. CIT(A) WHILE EXAMINING THE ISSUE CALLED FOR THE RECORDS OF ASSESSEE AT THE TIME OF PARTITION AND NO TICED THAT THERE WAS A REPORT OF ONE SHRI P.A. UMRIGAR, PREPARED AFTER INS PECTING THE PROPERTY ON 07.05.81 WHICH WAS CLOSEST DATE TO 01.04.81. THE CI T(A) WAS OF THE OPINION THAT THIS REPORT WAS MORE RELIABLE THAT THE REPORT OF SHRI GANJAWALA, WHO INSPECTED THE PROPERTY ON 4.11.2004 . HE ANALYSED THE REPORTS, OBJECTIONS OF THE ASSESSEE AND VIDE PARA-1 1 DIRECTED AO TO ADOPT THE VALUE OF RS.8,98,000/- AS AGAINST RS.43,10,000/ - ESTIMATED BY THE REGISTERED VALUER M/S. GANJAWALA, RESULTING IN ENHA NCEMENT OF THE CAPITAL GAINS . 4. THE ASSESSEE IS AGGRIEVED AND RAISED TWO GROUNDS ONE ON THE ISSUE OF RE-OPENING AND THE OTHER ON THE ISSUE OF ADOPTIN G COST OF ACQUISITION AS ON 1.4.1981. 5. THE LD. COUNSEL REFERRING TO THE ISSUE OF SECTIO N 148 SUBMITTED THAT THE ASSESSEE HAS ENCLOSED SALE AGREEMENT TO THE RET URN FILED AND SINCE RETURN WAS ACCEPTED U/S. 141 THERE IS NO TANGIBLE M ATERIAL TO RE-OPEN THE ASSESSMENT U/S. 147. HE RELIED ON VARIOUS DECISIONS FOR THE PROPOSITION THAT RE-OPENING CAN NOT BE ACCEPTED IF THERE IS NO OTHER TANGIBLE MATERIAL. AFTER CONSIDERING OBJECTIONS/SUBMISSIONS OF THE ASS ESSEE, WE NOTICED THAT IT IS ONLY THE PROCESSING U/S. 143(1) WHICH WA S COMPLETED IN ASSESSEES CASE AND AO TOOK PROCEEDINGS IN ALL THE GROUP CASES AS CAN BE SEEN FROM THE VARIOUS ORDERS BEFORE ITAT FOR EXAMIN ING THE CAPITAL GAINS COMPUTATION. SINCE NOT ONLY IN ASSESSEES CASE B UT ACTION WAS TAKEN IN OTHER CO-OWNERS CASE, WE ARE OF THE OPINION THAT AC TION OF THE AO HAS TO BE UPHELD, KEEPING IN VIEW THE PRINCIPLES LAID DOWN BY THE HON'BLE SUPREME COURT IN THE CASE OF RAJESH JHAVERI STOCK BROKERS PVT. LTD. (291 ITR 500)(SC) . ACCORDINGLY, WE ARE OF THE OPINION THAT THERE IS NO MERIT IN ITA NO.1178/M/12 A.Y.05-06 SHRI JAY HARSHAD SHAH(HUF) 5 GROUND NO.1 RAISED BY THE ASSESSEE AND ACCORDINGLY THE SAME WAS REJECTED. 6. WITH REFERENCE TO THE ADOPTION OF COST OF ACQUISITION AS ON 1.4.1981, IT WAS THE SUBMISSION THAT THE REPORT OF MR. UMRIGAR WAS FOR THE PURPOSE OF WEALTH TAX, WHERE THE PARAMETERS ARE ENTIRELY DIFFERENT AND FURTHER THE SAID VALUATION WAS ARRIVED AT IN TH E RENT CAPITALIZATION METHOD WITHOUT CONSIDERING THE OPEN LAND AVAILABLE FOR FUTURE DEVELOPMENT. IT WAS FURTHER SUBMITTED THAT IN THE C ASE OF INDIRA BAI VS. ITO (42 ITD 397) IT WAS HELD THAT VALUATION REPORT PREPARED FOR WEA LTH TAX AND INCOME TAX ARE DIFFERENT AND VALUE OF PROPE RTY ADOPTED BY THE ASSESSEE FOR THE PURPOSE OF WEALTH TAX DOES NOT EST OP HIM FROM CONTENTING OTHERWISE IN PROCEEDING FOR CALCULATING TAX ON CAPITAL GAINS. IT WAS FURTHER SUBMITTED THAT MR. GANJAWALAS REPORT W AS THE REPORT ACCEPTED IN OTHER GROUP CASES BY ITAT, WHICH DIRECT ED THE AO TO ACCEPT THE VALUATION. JUSTIFYING THE VALUATION AT RS.43.00 LACS., IT WAS ALSO SUBMITTED THAT THE ASSESSEE IS NOW ABLE TO LOCATE THE DEPARTMENTAL VALUATION OFFICERS REPORT ADOPTED FOR WEALTH TAX P URPOSES WHEREIN THE AO REFERRED THE VALUATION TO THE DVO AS ON 31.03.19 87 AND 31.03.88 AND SAME WAS DETERMINED AT RS.54.82 LACS AND RS.69. 92 LACS. WORKING BACKWARDS ON COST INFLATION INDEX (CII) AND TAKING THE AVERAGE VALUE IT WAS SUBMITTED THAT VALUE AS ON 01.04.81 COMES TO RS .42.89 LACS WHICH IS ALMOST EQUIVALENT TO VALUATION ADOPTED BY M/S. H. G ANJAWALA & CO. IT WAS THE SUBMISSION THAT THE AO MAY BE DIRECTED TO A DOPT THE VALUE AS ADOPTED BY THE ASSESSEE AS THE AO HAS NO POWERS TO REFER THE VALUATION TO VALUATION OFFICER AS HELD BY THE CO-ORDINATE BEN CH IN THE CASE OF MRS. ASHA BHARAT SHAH VS. INCOME TAX OFFICER IN ITA NO.1 716/MUM/10 DATED 15.12.2011, FOLLOWING THE DECISION IN THE CASE OF CIT VS. DAULAT MEHTA OF THE HON'BLE JURISDICTIONAL HIGH COURT. 7. THE LD. DR HOWEVER SUBMITTED THAT VALUATION ADOP TED BY CIT ON THE BASIS OF UMRIGAR REPORT GIVEN BY MR.UMRIGAR WAS CORRECT AS IT VALUED ITA NO.1178/M/12 A.Y.05-06 SHRI JAY HARSHAD SHAH(HUF) 6 PROPERTY AS ON 01.04.81 IN MAY, 1981 WHICH WAS THE CLOSEST DATE AND CAN BE RELIED UPON. 8. WE HAVE CONSIDERED THE ISSUE. THERE IS NO DISPUT E WITH REFERENCE TO ADOPTING VALUE AS ON 01.04.81 FOR THE PURPOSE OF CO ST OF ACQUISITION AND SUBSEQUENT INDEXATION. THE ISSUE IS ONLY WITH REFER ENCE TO VALUE TO BE ADOPTED. THE ASSESSEE ALONG WITH OTHER CO-OWNERS AD OPTED THE VALUE OF M/S. GANJAWALA AT RS.43.10 LACS WHICH WAS ALSO ACCE PTED IN OTHER CASES AS THE AO HAS NO POWER TO REFER TO THE VALUATION OF FICER IN A CASE WHERE ASSESSEE RELIED ON REGD. VALUERS REPORT, SO AS TO D ETERMINE AT A LESSER VALUE,AS HELD BY THE HON'BLE JURISDICTIONAL HIGH CO URT WITH REFERENCE TO POWER OF AO FOR DETERMINING THE COST OF ACQUISITION WHEN ASSESSEE SUBMITTED HIS OWN VALUATION REPORT. THIS PRINCIPLE WAS FOLLOWED IN THE CASE OF MRS. ASHA BHARAT SHAH , ANOTHER CO OWNER AND THE AO WAS DIRECTED TO ACCEPT THE COST OF ACQUISITION AS REPOR TED BY SHRI GANJAWALA. IN THE PRESENT CASE THE CIT(A) CAME TO KNOW ABOUT T HE EXISTENCE OF ANOTHER REPORT OF SHRI UMRIGAR, WHICH WAS IN FACT A DOPTED FOR THE PURPOSE OF WEALTH TAX . EVEN THE METHOD OF VALUATIO N WAS ALSO DIFFERENT AS SHRI UMRIGAR DID NOT CONSIDER THE OPEN LAND WHIC H IS AVAILABLE FOR FUTURE DEVELOPMENT AND HAS ONLY CONSIDERED ACTUAL R ENT RECEIVED AT THAT POINT OF TIME AND VALUED PROPERTY UNDER WEALTH TAX PROVISIONS ON RENT CAPITALIZATION METHOD. THE ASSESSEE IS OBJECTING TO THE ABOVE VALUE ON THE REASON THAT SUCH VALUATION WAS ONLY FOR THE PURPOSE OF WEALTH TAX AND NOT FOR THE PURPOSE OF CALCULATING TAX ON CAPITAL G AINS. ASSESSEE HAS EVERY RIGHT TO CONTEST THIS ISSUE, AS CONSIDERED BY CO-ORDINATE BENCH IN THE CASE OF INDIRA BAI VS. INCOME TAX OFFICER (42 ITD 397), WHEREIN ON THE FOLLOWING FACTS IT WAS HELD AS UNDER :- IN THE PREVIOUS YEAR ENDED 31-3-1982, CORRESPONDIN G TO THE ASSESSMENT YEAR 1982-83, THE ASSESSEE SOLD A HOUSE PROPERTY FOR RS. 10.80,000 AND IN THE RETURN FILED BY THE ASS ESSEE; NO CAPITAL GAIN WAS ADMITTED FROM THIS TRANSACTION. THIS WAS EXPLAINED BY A ITA NO.1178/M/12 A.Y.05-06 SHRI JAY HARSHAD SHAH(HUF) 7 NOTE STATING THAT DEDUCTING THE COST OF THE PROPER TY AS THE ESTIMATED MARKET VALUE AS ON 1-1-1964 AT RS. 3 LAKHS FROM THE SALE VALUE OF RS. 10,80,000 THE CAPITAL GA INS WAS RS. 7,80,000/- AND SINCE THE ASSESSEE HAD PURCHASED A NEW HOUSE PROPERTY AT RS.7 LAKHS AND INCURRED STAMP DUTY OF R S. 1 LAKH AND ALSO MADE INVESTMENTS IN UNIT TRUST OF INDIA FOR RS . 25,000 AND IN NATIONAL SAVINGS CERTIFICATES FOR RS.2,50,000, THE CAPITAL GAIN ARISING FROM THE TRANSACTION WAS NOT EXIGIBLE TO TA X. THE ITO DID NOT AGREE WITH THE ASSESSEE, WITH RESP ECT TO, INTER ALIA, VALUE OF THE PROPERTY AS ON 31-3-1964. HE FOUND TH AT THE VALUE OF THE PROPERTY HAD BEEN TAKEN AT RS. 1,30,000 AS ON 3 1-3-1964 FOR WEALTH-TAX PURPOSES. HE WAS, THEREFORE, OF THE VIE W THAT THE SAME VALUE SHOULD BE ADOPTED FOR CAPITAL GAINS PURPOSES ALSO. ON APPEAL, THE COMMISSIONER (APPEALS) ALSO UPHELD THE SAID VIE W. ON SECOND APPEAL, THE REVENUE CONTENDED THAT THE ASSESSEE WAS PRECLUDED FROM GOING BACK ON THE VALUE RETURNED AND ACCEPTED FOR WEALTH-TAX PURPOSES IN RESPECT OF THE DETERMINATION OF THE VAL UE OF THE SAME PROPERTY FOR THE PURPOSES OF CAPITAL GAINS. HELD: THE REVENUES CONTENTION IMPLIED THAT THERE WAS AN ADMISSION REGARDING THE VALUE OF THE PROPERTY LEADING TO AN E STOPPEL. AN ADMISSION IS A STATEMENT WHICH SUGGEST ANY INFERENC E AS TO FACT IN ISSUE BY A PERSON HAVING AN INTEREST IN THE SUBJECT MATTER. BUT SUCH A STATEMENT DOES NOT AMOUNT TO AN ADMISSION WHEN IT CONSISTS MERELY OF AN OPINION OR BELIEF. EVEN ASSUMING THAT THE STATEMENT MADE BY THE ASSESS EE IN THE WEALTH-TAX RETURN THAT THE VALUE OF THE PROPERTY WA S RS.1,30,000 AMOUNTED TO AN ADMISSION, IT DID NOT ESTOP HIM FROM CONTENDING OTHERWISE IN THE INCOME-TAX PROCEEDINGS. THOUGH SE CTION 55 OF THE INCOME TAX ACT USES THE PHRASE FAIR MARKET VALUE OF THE ASSET AS ON 1..1.1964, AND SECTION 7 OF THE WEALTH-TAX ACT USES THE PHRASE VALUE OF ANY ASSET, OTHER THAN CASH, FOR THE PURPO SE OF THIS ACT, IT SHALL BE ESTIMATED TO BE THE PRICE WHICH IN THE OPI NION O THE WTO IT WOULD FETCH IF SOLD IN THE OPEN MARKET ON THE VALUA TION DATE AND, THUS, BOTH PRACTICALLY MEAN THE SAME. BOTH THE PRO VISIONS OF THE ACTS REQUIRE THE DETERMINATION OF THE VALUE OF AN A SSET WITH REFERENCE TO THE FACTS RELATING TO THE ASSETS SUCH AS ITS LOCATION, ITS FEATURES, THE MARKET VALUE OF OTHER PROPERTIES IN T HE LOCALITY AND AT WORKS, THE EXPERT OPINION OF VALUERS. STILL ANY SU CH DETERMINATION OF THE MARKET VALUE WILL REMAIN AN OPINION OF THE VALU ER ON HYPOTHETICAL BASIS OR AT BEST AN ESTIMATE BASED ON RELEVANT DAT A. SUCH AN OPINION IS ONLY A PIECE OF EVIDENCE WHEN A SIMILAR DETERMINATION IS ITA NO.1178/M/12 A.Y.05-06 SHRI JAY HARSHAD SHAH(HUF) 8 REQUIRED UNDER ANOTHER ACT. IT IS ALWAYS OPEN TO T HE ASSESSEE TO SHOW THAT THE DETERMINATION OF THE MARKET VALUE UND ER THE PROVISIONS OF ONE ACT REQUIRES CONSIDERATION IN THE LIGHT OF OTHER EVIDENCE AVAILABLE WHEN A FRESH DETERMINATION IS RE QUIRED IN THE CURRENT PROCEEDINGS. THERE IS ALSO ANOTHER FACTOR, VIZ. THAT THE PURPOSE OF AN ACT MAY BE DIFFERENT FROM THE PURPOSE OF OTHER ACT AND THE APPROACH TO THE VALUATION UNDER ONE ACT MAY NOT BE APPROPRIATE FOR THE OTHER. IN THE PRESENT CASE ALSO, THE DETERMINATION OF THE VALUE FOR THE WEALTH-TAX PURPOSES WAS A MATTER OF ROUTINE WITHOUT REFERENCE TO THE COMPLETE DATA AVAILABLE. MOREOVER, THE WEALTH-TAX IS A REPETITIVE TAX, AND THE VALUATION NEED NOT BE ACCURATE. IT IS ALSO WELL RECOGNIZED THAT IN THE CASE OF SELF OCCUPIED HOUSE PROPERTIES WHICH DO NOT EARN ANY INCOME, THE VALUE IS GENERALLY KEPT LOW EVEN BY THE DEPARTMENT AS CAN BE SEEN FROM THE PROVISIONS OF RULE 1BB. ON THE OTHER HAND, TAX ON CAPITAL GAINS IS A ONE-TIME TAX ON THE DIFFE RENCE BETWEEN THE CONSIDERATION RECEIVED AND THE MARKET VALUE AS ON 1 .1.1964. SINCE THE ASSESSEE WAS NOT ESTOPPED FROM CONTENDING THAT THE VALUE TAKEN FOR WEALTH-TAX PURPOSES NEED NOT BE FOLLOWED FOR CA PITAL GAINS PURPOSES, THAT VALUE TAKEN FOR WEALTH TAX PURPOSES COULD BE CONSIDERED TO BE THE ONLY ONE PIECE OF EVIDENCE WH ICH COULD BE CONTRADICTED BY THE ASSESSEE BY PRODUCING FURTHER DATA FOR A MORE ACCURATE DETERMINATION OF THE MARKET VALUE. IN THE PRESENT CASE, THE ASSESSEE HAD DONE ONLY THAT BY PRODUCING THE SALE D EED RELATING TO THE SALE OF AN ADJACENT PROPERTY IN APRIL 1964 WHIC H INDICATED A VALUE SIMILAR TO THAT ADOPTED BY THE ASSESSEE. IN THE CIRCUMSTANCES, THE VALUE OF THE PROPERTY CO ULD BE REASONABLY ESTIMATED AT RS. 3 LAKHS AS ON 11.1964 FOR THE PURP OSE OF COMPUTING THE CAPITAL GAINS. 8.2 FOLLOWING THE PRINCIPLES LAID DOWN THEREIN, WE ARE OF THE OPINION THAT THE REPORT GIVEN FOR THE WEALTH TAX PURPOSES N EED NOT BE CONSIDERED FOR THE INCOME TAX PURPOSES, PARTICULARLY FOR COMPU TATION OF CAPITAL GAINS. HOWEVER, THIS ASPECT WAS NOT BEFORE AO AT TH E TIME OF COMPLETING THE ASSESSMENT. MOREOVER THE ASSESSEE FILED ADDITIO NAL EVIDENCE IN THE FORM OF ORDER IN THE CASE O F PANKAJ. P. SHAH , ACCEPTING ASSESSEE VALUATION IN THE SUBSEQUENT ORDER PASSED AFTER CIT( A) ORDER AND ALSO TWO VALUATION REPORTS OF THE DEPARTMENT DATED 19.04.90 VALUING PROPERTY AS ON 31.03.87 TO 31.03.88. THESE VALUATION REPORTS OF THE DEPARTMENT ITA NO.1178/M/12 A.Y.05-06 SHRI JAY HARSHAD SHAH(HUF) 9 ALONG WITH THE WEALTH TAX REPORT OF SHRI UMRIGAR AR E TO BE CONSIDERED VIZ- A-VIZ THE REPORT OF SHRI GANJAWALA. THE ASSESSEES OBJECTION ON ADOPTING REPORT OF SHRI UMRIGAR FOR THE PURPOSE OF CAPITAL G AINS ALSO REQUIRED DETAILED EXAMINATION OF THE AO, AS CIT(A) TOOK UPON HIMSELF WITHOUT GIVING OPPORTUNITY TO THE AO. IN VIEW OF THESE, SIN CE THE ISSUE OF ADOPTION OF VALUE UNDER SECTION 50C WAS REFERRED TO THE AO BY THE CIT(A), THIS ISSUE ALSO REQUIRED TO BE SET ASIDE TO THE FIL E OF AO. THEREFORE, BOTH ISSUE OF SALE CONSIDERATION UNDER SECTION 50C(2) AN D COST OF ACQUISITION AS ON 01.04.81 FOR COMPUTING OF CAPITAL GAINS SHOUL D BE EXAMINED BY AO AFRESH. FOR THIS, THE ORDER OF THE AO IS SET ASIDE AND ISSUE RESTORED TO THE FILE OF AO. THE AO IS DIRECTED TO KEEP IN MIND THE ORDERS OF ITAT IN OTHER CO-OWNER CASES AND ALSO PRINCIPLES LAID DOWN ON THE ABOVE TWO ISSUES. BEFORE DECIDING THE ISSUE, ASSESSEE SHOULD BE GIVEN DUE OPPORTUNITY IN THE PROCEEDINGS. WITH THESE DIRECTIONS, THE ISSUE O F GROUND NO.2 IS RESTORED TO THE FILE OF AO. GROUND CONSIDERED ALLOW ED FOR STATISTICAL PURPOSES. 9. IN THE RESULT, ASSESSEE APPEAL IS PARTLY ALLO WED. ORDER PRONOUNCED IN THE OPEN COURT ON 12 TH JULY, 2013. SD/- SD/- (DR. S.T.M. PAVALAN ) JUDICIAL MEMBER (B. RAMAKOTAIAH ) ACCOUNTANT MEMBER MUMBAI, DATED 12/07/2013 JV. ITA NO.1178/M/12 A.Y.05-06 SHRI JAY HARSHAD SHAH(HUF) 10 COPY TO: THE APPELLANT THE RESPONDENT THE CIT, CONCERNED, MUMBAI THE CIT(A) CONCERNED, MUMBAI THE DR BENCH TRUE COPY BY ORDER DY/ASSTT. REGISTRAR, ITAT, MUMBAI.