R.G. BULCHANDANI, MUMBAI V. ITO 1(3)(1), MUMBAI

ITA 1180/MUM/2013

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 2461 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 5 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-07-2016
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: D
• Next Hearing Date: 26-10-2015
• Assessment Year: 2009-2010
• Appeal Filed On: 11-02-2013
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: B S BIST
• Keywords: Sale consideration of property below Jantri Value; Value adopted by valuation officer; Capital asset; Salary income; Principle of natural justice; Cost of acquisition; Fair market value; Valuation report
• Section: 143(3); 50C; 2(14); 234B; 68

Judgement Text

D IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, MUMBAI BEFORE SHRI SAKTIJIT DEY, JUDICIAL MEMBER AND SHRI RAMIT KOCHAR, ACCOUNTANT MEMBER ./ I.T.A. NO. 1180 /MUM/2013 ( / ASSESSMENT YEAR : 2009-10) SHRI R.G. BULCHANDANI, A/21, DARSHAN APARTMENTS, MOUNT PLEASANT ROAD, MUMBAI 400006. / V. INCOME TAX OFFICER 1(3)(1) MUMBAI. ./ PAN : AADPB0862E ( / APPELLANT ) .. ( / RESPONDENT ) ASSESSEE BY SHRI DEEPAK TRALSHAWALA REVENUE BY : SHRI B.S. BIST, SR. D.R. / DATE OF HEARING : 19.05.2016 / DATE OF PRONOUNCEMENT : 28-07-2016 / O R D E R PER RAMIT KOCHAR, ACCOUNTANT MEMBER THIS APPEAL, FILED BY THE ASSESSEE, BEING ITA NO. 1180/MUM/2013, IS DIRECTED AGAINST THE APPELLATE ORDER DATED 3 RD DECEMBER, 2012 PASSED BY LEARNED COMMISSIONER OF INCOME TAX (APPEALS)- 2, MU MBAI (HEREINAFTER CALLED THE CIT(A)), FOR THE ASSESSMENT YEAR 2009-10, THE APPELLATE PROCEEDINGS BEFORE THE LEARNED CIT(A) ARISING FROM THE ASSESSME NT ORDER DATED 23 RD DECEMBER, 2011 PASSED BY THE LEARNED ASSESSING OFFI CER (HEREINAFTER CALLED THE AO) U/S 143(3) OF THE INCOME TAX ACT,1961 (HE REINAFTER CALLED THE ACT). ITA 1180/MUM/2013 2 2. THE REVISED AND CONSOLIDATED GROUNDS OF APPEAL R AISED BY THE ASSESSEE FILED WITH THE INCOME TAX APPELLATE TRIBUNAL, MUMBA I (HEREINAFTER CALLED THE TRIBUNAL) READ AS UNDER:- 1. THE LEARNED CIT (A) ERRED IN LAW, FACTS AND CIR CUMSTANCES OF THE CASE BY DIRECTING THE SALE OF AGRICULTURAL LAND TO BE A SSESSED U/S 45 OF THE INCOME TAX ACT, 1961 UNDER A NEW SOURCE AND FURTH ER ERRED IN APPLYING SECTION 50C OF THE INCOME TAX ACT, 1961, AFT ER DELETING THE ADDITION U/S 68 OF THE INCOME TAX ACT, 1961 AS ASSES SED BY THE LEARNED ASSESSING OFFICER. 2. THE LEARNED CIT (A) ERRED IN LAW, FACTS AND CIRC UMSTANCES OF THE CASE BY DIRECTING THE SALE OF AGRICULTURAL LAND TO BE A SSESSED U/S 45 OF THE INCOME TAX ACT, 1961 AND FURTHER ERRED APPLYING SE CTION 50C OF THE INCOME TAX ACT, 1961 UNDER THE PRETEXT OF ENHANCEMEN T U/S 251(1)(A) R.W.S. 251(2) OF THE INCOME TAX ACT, 1961 WHERE IN FACT THERE WAS A REDUCTION IN TAX LIABILITY RENDERING SUCH ENHANCEMEN T NOTICE AND THE DIRECTION BAD IN LAW. WITHOUT PREJUDICE TO GROUND NO. 1 & 2: 3. THE LEARNED CIT (APPEALS) HAS ERRED IN LAW, FACT S AND IN CIRCUMSTANCES OF THE CASE BY TREATING THE SALE OF AGR ICULTURAL LAND AT VILLAGE KUNENAMA, PUNE AS SALE OF CAPITAL ASSET [NON- AGRICULTURAL LAND] AND DIRECTING THE LEARNED ASSESSING OFFICER TO TAX THE SAME AS LONG TERM CAPITAL GAINS. 4. THE LEARNED CIT (APPEALS) HAS ERRED IN LAW, FACT S AND CIRCUMSTANCES BY DIRECTING THE LEARNED ASSESSING OFFIC ER TO ADOPT THE SALE VALUE AT RS.2,09,28,000 [APPELLANT'S SHARE RS 2 8,33,651] INSTEAD OF THE SALE VALUE AS PER AGREEMENT AT RS. 72,00,000 [A PPELLANT'S SHARE RS. 9,75,000] IGNORING THAT THE SAID PATCH OF AGRICULTU RAL LAND IS MARKED AS A FOREST LAND AND INCAPABLE TO BEING USED F OR COMMERCIAL AND NON- AGRICULTURAL PURPOSES AND ALSO IGNORING THE VARIOUS DEFECTS IN THE LAND. 5. THE LEARNED CIT (APPEALS) HAS ERRED IN LAW, FAC TS AND CIRCUMSTANCES OF THE CASE BY ADOPTING THE ENHANCED VAL UE OF RS. 2,09,28,000 INSTEAD OF THE VALUE ADOPTED BY STAMP DUT Y AUTHORITY OF RS. 1,77,12,000 IN VIOLATION OF SUBSECTION 3 OF SECTI ON 50C OF THE INCOME TAX ACT 1961. 6. THE LEARNED CIT (APPEALS) HAS ERRED IN LAW, FAC TS AND CIRCUMSTANCES OF THE CASE BY CONFIRMING THE LEVY OF I NTEREST U/S. 234A, 234B & 234C, AS APPLICABLE. ITA 1180/MUM/2013 3 7. THE LEARNED CIT(APPEALS) HAS ERRED IN LAW & FAC TS BY CONFIRMING THE INITIATION OF PENALTY U/S 271 (1) (C) OF IT ACT, 1961. 3. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSE E HAS RECEIVED INCOME FROM SALARY, INCOME FROM HOUSE PROPERTY, INCOME FRO M BUSINESS AND PROFESSION AND INCOME FROM OTHER SOURCES. DURING TH E COURSE OF ASSESSMENT PROCEEDINGS U/S 143(3) READ WITH SECTION 143(2) OF THE ACT, IT WAS OBSERVED BY THE A.O. THAT THE ASSESSEE HAS CLAIMED EXEMPTION OF CLAIM OF PROFIT ON SALE OF AGRICULTURAL LAND. THE ASSESSEE WAS ASKED TO PRODU CE THE DOCUMENTS TO EXPLAIN EXEMPTION OF CLAIM OF PROFIT ON SALE OF AGR ICULTURAL LAND. A LETTER TO DVO WAS SENT BY THE A.O. ON 17 TH NOVEMBER, 2011 TO DETERMINE THE FAIR MARKET VALUE OF THE PROPERTY LOCATED AT VILLAGE KUN ENAMA, PUNE , AS THE FAIR MARKET VALUE AS REVEALED AS PER STAMP DUTY VALUATIO N AUTHORITY WAS RS. 1,77,12,000/- FOR THE TOTAL PART OF THE ASSET. THE ASSESSEE HAS CLAIMED THE PART AMOUNT RECEIVED BY HIS MOTHER MRS ANNET BULCHA NDANI. A LETTER DATED 14 TH DECEMBER, 2011 WAS ALSO SENT TO TALATHI, VILLAGE K UNENAMA, PUNE TO VERIFY THE DETAILS AND WHETHER THE SAID PROPERTY FU LFILLS THE CONDITIONS OF AGRICULTURAL LAND. THE ASSESSEE SUBMITTED BEFORE T HE A.O. , A LETTER FROM ADVOCATE ASHWIN GUPTA WHO HAD GIVEN THE OPINION ON FAIR MARKET VALUE AND LETTER RECEIVED FROM MR. JIMMY MISTRY, THE PURCHASE R WHO HAD EXPRESSED CERTAIN RESERVATIONS AND HAD EARLIER OFFERED RS. 50 LACS FOR THE SAID LAND AND THE LETTER FROM TALATHI, PUNE. ON VERIFICATION OF THE SALE AGREEMENT OF THE SAID L AND, IT WAS OBSERVED BY THE AO THAT THE AGRICULTURAL LAND SITUATED AT PUNE WAS NOT IN THE ASSESSEES NAME BUT IT WAS HIS MOTHERS NAME AND HENCE THE ASSESSEE WAS ASKED TO EXPLAIN AS TO WHY THE INCOME CLAIMED EXEMPT AS PROFIT ON SALE OF AGRICULTURAL LAND SHOULD NOT BE TAXED U/S 68 OF THE ACT. THE ASSESSE E SUBMITTED THAT THE ASSESSEE HAD PURCHASE THE SAID LAND ALONG WITH THRE E OTHERS AND AT THE TIME OF PURCHASE, THE ASSESSEE WAS ONLY FIFTEEN YEARS OF AGE AND SINCE HE HAS NOT ITA 1180/MUM/2013 4 ATTAINED CONTRACTUAL AGE, THE ASSESSEES MOTHER ACT ED AS HIS NATURAL GUARDIAN. THE ASSET WAS PURCHASED IN THE YEAR 1987 AND HAS BEEN CONSISTENTLY REFLECTED IN THE BALANCE SHEET BY THE ASSESSEE AND IT WAS NEVER REFLECTED IN THE BALANCE SHEET OF ASSESSEES MOTHER . THE COPIES OF THE BALANCE SHEETS AND THE PURCHASE DOCUMENTS WERE BROUGHT ON R ECORD. SCRUTINY ASSESSMENTS WERE ALSO FRAMED BY REVENUE U/S 143(3) OF THE ACT IN THE CASE OF THE ASSESSEE FOR THE ASSESSMENT YEARS 2006-07, 2007 -08, AND 2008-09 , AND IN THE CASE OF ASSESSEES MOTHER FOR THE ASSESSMENT YEARS 2006-07, 2007-08 AND 2009-10. THE ASSESSEE SUBMITTED THAT THE SALE OF AGRICULTURAL LAND AND THE EXEMPT CAPITAL GAIN WAS CORRECTLY REFLECTED IN THE TAX RETURN OF THE ASSESSEE. THE A.O., HOWEVER, REJECTED THE CONTENTIONS OF THE ASSESSEE AS THE PROPERTY INDICATED THE NAME OF MOTHER OF THE ASSESSEE AND OT HER PERSONS BOTH IN THE PURCHASE AND SALE AGREEMENT AND THE NAME OF THE AS SESSEE IS NOT INDICATED FOR THE SAID PROPERTY IN BOTH THE SALE AND PURCHASE D DOCUMENTS. THE ASSESSEE IS NOT ABLE TO PROVE THE OWNERSHIP, GENUIN ENESS AND CORRECTNESS FOR THE INCOME RECEIVED. SUBJECT TO REPLY AWAITED FROM THE DVO AND TALATHI, PUNE, THE A.O. ACCORDINGLY VALUED THE PROPORTIONATE SHARE WITH REFERENCE TO THE DOCUMENT OF SALE AGREEMENT FILED BY THE ASSESSE E AND CLAIMED EXEMPT THAT PORTION OF THE VALUE WHICH WAS IN THE NAME OF MOTHER OF THE ASSESSEE I.E. RS. 23,98,500/- WHICH WAS ADDED TO THE TOTAL INCOME OF THE ASSESSEE AS UNDISCLOSED INCOME U/S 68 OF THE ACT VIDE ASSESSMEN T ORDER DATED 23 RD DECEMBER, 2011 PASSED BY THE AO U/S 143(3) OF THE A CT FOR WHICH NO SATISFACTORY EXPLANATION HAS BEEN GIVEN BY THE ASSE SSEE WITH RESPECT TO NATURE AND SOURCE OF THE INCOME. 4. AGGRIEVED BY THE ASSESSMENT ORDER DATED 23-12-20 11 PASSED BY THE A.O. U/S 143(3) OF THE ACT , THE ASSESSEE FILED FIRST APPEAL BEFORE THE LEARNED CIT(A). ITA 1180/MUM/2013 5 5. BEFORE THE LEARNED CIT(A), THE ASSESSEE SUBMITTE D THAT THE ASSESSEE HAS PURCHASED THE AGRICULTURAL LAND ON 15 TH DECEMBER, 1987 FOR AN AMOUNT OF RS. 7,000/- ALONG WITH THREE OTHERS, THE DETAILS OF WHI CH ARE AS UNDER:- LAND CO-OWNERS PERCENTAGE OF HOLDING. ANNETTE BULCHANDANI 13.5417% SAMEER BULCHANDANI 13.5417% MS. JANEEN D. CAMBATTA 41.67% MS. NITEE MERCHANT 31.25% THE ASSESSEE SUBMITTED THAT THE LAND WAS SOLD ON 2 ND DECEMBER, 2009 AT A TOTAL SALE PRICE OF RS. 72 LACS AND THE ASSESSEES SHARE WAS 13.54% I.E. RS. 9,75,000/- ( HELD IN THE NAME OF MOTHER MRS. ANNETT E BULCHANDANI). THE ASSESSEE SUBMITTED THAT HE WAS MINOR WHEN THE SAID LAND WAS ACQUIRED IN 1987 AND THE MOTHER ACTED ON HIS BEHALF AS A NATURA L GUARDIAN FOR THE PURCHASE OF THE SAID AGRICULTURAL LAND. THE PAYMEN T WAS MADE BY THE ASSESSEE IN 1987 AND POSSESSION WAS HELD BY THE ASS ESSEE. THE SAID AGRICULTURAL LAND WAS DECLARED AS A PRIVATE FOREST LAND IN 2008 AS IS EVIDENCED BY 7/12 EXTRACT ATTACHED TO THE SALE DEED. SINCE T HE AGRICULTURAL LAND WAS DECLARED AS A FOREST LAND, NO COMMERCIAL ACTIVITY C OULD TAKE PLACE AND GENERALLY TREES WERE GROWN SO AS TO INCREASE THE GR EEN COVER AND PROTECT THE ENVIRONMENT. THE MOTHERS NAME CONTINUED IN THE OFF ICIAL RECORDS TILL THE TRANSFER OF THE SAID LAND. THE ASSESSEE REITERATED THE SUBMISSIONS WHATEVER WERE MADE BEFORE THE A.O. WITH REGARD TO HIS CLAIM THAT THE LANDS BELONGS TO THE ASSESSEE , IT WAS AN AGRICULTURAL LAND AND LATE R IT WAS DECLARED AS FOREST LAND AND THE LAND IS NOT WITHIN THE LIMITS OF ANY M UNICIPAL TOWN. THE A.O. SENT THE DVO REPORT DATED 27 TH SEPTEMBER, 2012 TO THE LD. CIT(A) , WHEREIN THE LD. CIT(A) OBSERVED THAT THE ALLEGED LAND WAS W ITHIN A RADIUS OF 2 KMS OF LONAVALA MUNICIPALITY , THE DVO HAD REPORTED THAT I T IS NOT AN AGRICULTURAL LAND AND THE DVO VALUED THE SAID LAND AT RS. 2,09,2 8,000/-. THUS, THE LD. ITA 1180/MUM/2013 6 CIT(A) OBSERVED THAT THE LONG TERM CAPITAL GAIN OF RS. 28,26,651/- IS TO BE BROUGHT TO TAX AS INCOME UNDER THE HEAD CAPITAL GAI NS AS AGAINST THE ADDITION OF RS.23,98,500/- MADE BY THE AO U/S 68 OF THE ACT. THE LEARNED CIT(A) ISSUED ENHANCEMENT NOTICE TO THE ASSESSEE . THE AS SESSEE SUBMITTED IN RESPONSE TO THE ENHANCEMENT NOTICE ISSUED BY THE LE ARNED CIT(A) THAT THE TOTAL SALE CONSIDERATION WAS RS. 72 LACS AND THE AS SESSEES SHARE BEING 13.5417% COMES TO RS. 9,75,000/-. THE STAMP DUTY AUTHORITY HAD VALUED THE PROPERTY AT RS. 1,77,12,000/-. THE ASSESSEES S HARE WORKS OUT TO BE RS. 23,98,500/- @13.5417%. THE ASSESSEE SUBMITTED BEFOR E THE LD. CIT(A) THAT VIDE NOTICE OF ENHANCEMENT IT IS PROPOSED TO VALUE THE PROPERTY AT RS. 20,928,000/- AND THE ASSESSEES SHARE IS PROPOSED AT RS. 28,33,651/-. THE ASSESSEE SUBMITTED THAT AS PER PROVISIONS OF SECTIO N 50C(3) OF THE ACT , IF THE VALUE AS ADOPTED BY DVO EXCEED STAMP DUTY VALUE AS ADOPTED BY STAMP DUTY VALUATION AUTHORITIES, THE VALUE AS DETERMINED BY S TAMP DUTY AUTHORITIES SHALL BE ADOPTED. THE ASSESSEE ALSO SUBMITTED THAT THE IN DEXED COST SHOULD BE TAKEN WHILE COMPUTING THE CAPITAL GAIN WHICH WORKS OUT TO RS. 29,493/- INSTEAD OF RS. 7000/-. THE ASSESSEE SUBMITTED THAT THE LAND IS NOT SITUATED UNDER TWO KMS FROM MUNICIPAL LIMIT OF LONAVALA MUNI CIPALITY AS STATED BY DVO BUT IT IS SITUATED AROUND 8 KMS FROM LONAVALA V ILLAGE WHICH IS CERTIFIED BY TALATI. THE LAND WAS MARKED AS FOREST LAND WITH LOW COMMERCIAL VALUE WHEREAS THE VALUATION OFFICER STATED THAT THE SAID LAND IS NOT AGRICULTURAL LAND, WHICH IS NOT CORRECT AND THE AGRICULTURAL LAN D CAN BE MARKED AS FOREST LAND UNDER THE MAHARASHTRA PRIVATE FORESTS(ACQUISIT ION) ACT, 1975. THE SALES INSTANCES RELIED UPON BY THE VALUATION OFFICER WERE NOT MARKED AS FOREST LAND WITH LOW COMMERCIAL VALUE, THEREFORE, ARE NOT COMPA RABLE. THE ASSESSEE ALSO SUBMITTED THAT SALES INSTANCES RELIED UPON BY THE D VO WAS NEVER SUBMITTED TO THE ASSESSEE DESPITE REQUEST MADE BY THE ASSESSE E. THE ASSESSEE SUBMITTED THAT THE DVO DID NOT VISITED THE SITE BEFORE GIVING VALUATION REPORT. THE ASSESSEE ALSO SUBMITTED THAT THERE ARE SEVERAL DEFE CTS IN THE LAND LIKE IT IS FOREST LAND, NO ACCESS ETC AND HENCE THE BEST METHO D IS THE PRICE FIXED ITA 1180/MUM/2013 7 BETWEEN WILLING BUYER AND WILLING SELLER. THUS, THE ASSESSEE CONTENDED BEFORE THE LEARNED CIT(A) THAT THE LAND IS AGRICULTURAL LA ND AND NO CAPITAL GAINS IS ATTRACTED AS PER THE ACT THE LD. CIT(A) OBSERVED THAT THE LAND WAS PURCHASE D ON 15H DECEMBER, 1987 IN THE NAME OF ASSESSEES MOTHER. THE SAID LAND WA S CONSIDERED AS AN ASSET OF THE ASSESSEE AND IT WAS SHOWN AS ASSESSEES ASSE TS IN THE INCOME TAX RECORDS, HENCE, THE LEARNED CIT(A) HELD THAT THE LA ND BELONGS TO THE ASSESSEE AND NOT TO ASSESSEES MOTHER. THE LD. CIT(A) OBSERVED FROM THE DVO REPORT THAT TH E LAND IS WITHIN THE RADIUS OF 2 KMS FROM THE LONAVALA MUNICIPALITY AND HENCE I T IS A CAPITAL ASSET IN VIEW OF SECTION 2(14) OF THE ACT. FURTHER, THERE W AS NO EVIDENCE BROUGHT ON RECORD BY THE ASSESSEE TO SHOW THAT ANY AGRICULTURA L OPERATIONS WERE ACTUALLY CARRIED OUT IN THE LAND. THE LD. CIT(A) ACCORDINGL Y HELD THAT THE LAND IS NOT AN AGRICULTURAL LAND AND IS A CAPITAL ASSET U/S 2(14) OF THE ACT. THE DVO VALUED THE COST OF LAND AT RS. 2,09,28,000/- AND THE ASSES SEES SHARE COMES TO RS. 28,33,651/- AND THE LD. CIT(A) DIRECTED THE A.O. TO TAKE RS. 28,33,651/- AS THE FULL VALUE OF CONSIDERATION FOR TRANSFER OF LAN D IN VIEW OF PROVISIONS OF SECTION 50C(3) OF THE ACT. THE A.O. WAS ALSO DIREC TED TO TAKE RS. 7000/- AS COST OF ACQUISITION ON 15H DECEMBER, 1987 AND COMPU TE THE INDEXED COST OF ACQUISITION AND COMPUTE THE CAPITAL GAIN ACCORDINGL Y AS PER PROVISIONS OF SECTION 48 OF THE ACT TO COMPUTE CAPITAL GAINS UNDE R THE HEAD INCOME FROM CAPITAL GAINS AND THE ADDITION MADE U/S 68 OF THE ACT WAS DIRECTED BY THE LEARNED CIT(A) TO BE DELETED VIDE APPELLATE ORDERS DATED 03-12-2012 PASSED BY THE LEARNED CIT(A). 6.AGGRIEVED BY THE APPELLATE ORDER DATED 03-12-2012 BY THE LEARNED CIT(A), THE ASSESSEE IS IN SECOND APPEAL BEFORE THE TRIBUNA L. ITA 1180/MUM/2013 8 7. THE LD. COUNSEL FOR THE ASSESSEE REITERATED ITS SUBMISSIONS AS WERE MADE BEFORE THE AUTHORITIES BELOW. THE LEARNED COUN SEL FOR THE ASSESSEE SUBMITTED THAT DURING THE RELEVANT PREVIOUS YEAR TH E ASSESSEE HAS SOLD THE AGRICULTURAL LAND WHICH WAS DECLARED AS FOREST LAND UNDER THE MAHARASHTRA PRIVATE FORESTS (ACQUISITION) ACT, 1975. IT IS SU BMITTED THAT THE ADDITION TO THE TUNE OF RS. 23,98,500/- HAVE BEEN MADE BY THE A O U/S 68 OF THE ACT, WHILE THE LD. CIT(A) HAS NOW BROUGHT TO TAX INCOME UNDER THE HEAD LONG TERM CAPITAL GAINS BY COMPUTING RS. 28,33651/- AS FULL V ALUE OF CONSIDERATION BASED ON DVO REPORT. THE LD. COUNSEL DREW OUR ATTEN TION TO THE ORDER OF THE AUTHORITIES BELOW AND SUBMITTED THAT THE A.O. HAS M ADE REFERENCE TO THE DVO FOR VALUING THE PROPERTY. THE STAMP DUTY VALUE AS D ETERMINED BY STAMP DUTY VALUATION AUTHORITIES OF THE PROPERTY WAS RS. 1,77, 12,000/-. THE ASSESSEES SHARE IS 13.5417% IN THE SAID PROPERTY. THE DVO HA S VALUED THE PROPERTY AT RS. 2,09,28,000/- WHILE THE ACTUAL SALE CONSIDERATI ON RECEIVED FOR THE PROPERTY WAS ONLY RS.72,00,000/- . THE ASSESSEE SU BMITTED THAT IF THE STAMP DUTY VALUE OF THE PROPERTY BEING LAND OR BUILDING O R BOTH IS HIGHER THAN ACTUAL SALE CONSIDERATION BUT LOWER THAN THE VALUE AS DETE RMINED BY DVO, THEN VALUE ADOPTED FOR STAMP DUTY PURPOSES AS DETERMINE D BY STAMP DUTY VALUATION AUTHORITIES IS TO BE ACCEPTED AND NOT THE VALUE OF THE PROPERTY AS DETERMINED BY DVO AS PROVIDED U/S 50C(3) OF THE ACT . HE DREW OUR ATTENTION TO THE PAPER BOOK PAGE 2 WHICH IS A CERTIFICATE ISS UED BY VILLAGE KAMGAR TALATHI OF VILLAGE KUNENAMA, TALUKA MAWAL, DIST PU NE WHEREBY IT IS CERTIFIED THAT THE ASSESSEES LAND IS SITUATED OUT OF THE LIM ITS OF THE MUNICIPALITY OF THE TOWN LONAVALA AND IS AT DISTANCE OF 8 KMS FROM TOWN LONAVALA. HE FURTHER DREW OUR ATTENTION TO PAPER BOOK PAGE 13 WHICH IS D EED OF CONVEYANCE EXECUTED BY THE ASSESSEE FOR SALE OF THE AFORE-STAT ED LAND WHEREBY HE SUBMITTED THAT THE LAND IS REFERRED TO AS AN AGRICU LTURAL LAND IN SAID DEED OF CONVEYANCE. HE ALSO DREW OUR ATTENTION TO PAPER BO OK PAGE 24-25 WHEREBY PERMISSION WAS SOUGHT FROM FOREST OFFICER, PUNE AS THE SAID LAND WAS DECLARED RESERVED FOREST BY MAHARASHTRA PRIVATE FO RESTS (ACQUISITION) ACT ITA 1180/MUM/2013 9 1975. THE LD. COUNSEL ALSO DREW OUR ATTENTION TO PA GE 21 OF PAPER BOOK WHICH IS 7/12 ISSUED FOR THE SAID LAND. THE LD. COUNSEL ALSO DREW OUR ATTENTION TO PAPER BOOK PAGE 80-94 WHEREBY THE STATUTE BEING THE MAHARASHTRA PRIVATE FORESTS (ACQUISITION) ACT, 1975 ALONG WITH CIRCULAR ISSUED BY GOVERNMENT OF MAHARASHTRA WAS PLACED FOR REFERENCE. HE ALSO REF ERRED TO THE BALANCE SHEET AS AT 31 ST MARCH, 2006 AND 31 ST MARCH 2008 OF THE ASSESSEE WHEREBY THE SAID LAND WAS DULY REFLECTED WHICH IS PLACED AT PAGE 50 AND 51 OF PAPER BOOK. HE ALSO DREW OUR ATTENTION TO THE BALANCE SHEET OF THE MOTHER OF THE ASSESSEE AS AT 31 ST MARCH 2005, WHICH IS PLACED AT PAPER BOOK PAGE 49 WHEREBY THE SAID LAND IS NOT BEING REFLECTED AS AN ASSET IN HER BALA NCE SHEET. THE LEARNED COUNSEL FOR THE ASSESSEE DREW OUR ATTENTION TO THE ASSESSMENTS MADE U/S 143(3) FOR THE EARLIER YEARS IN THE CASE OF THE ASS ESSEE WHEREBY THE AGRICULTURE INCOME DECLARED BY THE ASSESSEE WAS ACCEPTED BY THE REVENUE IN SCRUTINY ASSESSMENTS. THE ASSESSMENT ORDERS FOR ASSESSMENT YEARS 2005-06, 2006- 07, 2007-08 & 2008-09 IN RESPECT OF THE ASSESSEE AN D FOR THE ASSESSMENT YEAR 2005-06 AND 2006-07 IN THE CASE OF THE MOTHER OF THE ASSESSEE ARE PLACED ON RECORD VIDE PAPER BOOK PAGE NO. 52 TO 72. THE LD COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE A.O. APPLIED SECTION 68 OF THE ACT BY HOLDING THE SAME AS CASH CREDIT NOT BEING SATISFACTORILY EXPLAI NED BY THE ASSESSEE , WHILE THE LD. CIT(A) APPLIED SECTION 45 OF THE ACT TO BRI NG TO TAX LONG TERM CAPITAL GAIN ON SALE OF THE SAID LAND. IT WAS SUBMITTED THA T THE LEARNED CIT(A) CANNOT BRING NEW SOURCE OF INCOME TO TAXATION AS THE AO MA DE ADDITIONS U/S 68 OF THE ACT BY TREATING THE SAME AS CASH CREDIT FOR WH ICH NO SATISFACTORY EXPLANATION WAS GIVEN BY THE ASSESSEE ABOUT THE NAT URE AND SOURCE OF THE INCOME , WHILE THE LEARNED CIT(A) BROUGHT THE SAME TO TAXATION AS LONG TERM CAPITAL GAINS U/S 45 OF THE ACT WHICH IS NOT PERMIS SIBLE. THE LD. COUNSEL RELIED ON THE FULL BENCH DECISION OF HONBLE DELHI HIGH COURT IN THE CASE OF CIT V. SARDARI LAL AND CO., 251 ITR 864(DEL. HC) TO CON TEND THAT THE LEARNED CIT(A) HAS BROUGHT ALTOGETHER DIFFERENT SOURCE OF I NCOME TO TAX WHICH IS NOT PERMISSIBLE. IT IS SUBMITTED THAT THE AGRICULTURAL INCOME EARNED FROM THE SAID ITA 1180/MUM/2013 10 LAND WAS DULY DECLARED IN THE RETURN OF INCOME FILE D WITH THE REVENUE. THE VALUATION MADE BY THE DVO CANNOT BE ACCEPTED AS IT IS ON HIGHER SIDE AND THE LAND WAS FOREST LAND HAVING LOW COMMERCIAL VALUE AN D THE DVO DID NOT CONSIDERED THESE FACTORS AFFECTING VALUATION OF LAN D. THE LEARNED COUNSEL SUBMITTED THAT THE VALUATION OF STAMP DUTY AUTHORIT Y SHOULD BE ACCEPTED. THE LD COUNSEL SUBMITTED THAT IN ANY CASE AS PER PROVIS IONS OF SECTION 50C(3) OF THE ACT, VALUATION AS ADOPTED BY STAMP DUTY VALUATI ON AUTHORITIES FOR STAMP DUTY PURPOSES BE ACCEPTED IN CASES WHERE THE VALUAT ION AS PER DVO IS HIGHER THAN THE VALUE AS ADOPTED BY STAMP DUTY VALUATION A UTHORITIES FOR STAMP DUTY PURPOSES. IT WAS SUBMITTED THAT THE LD. CIT(A) ENHA NCED THE ASSESSMENT AND ASSESSED THE VALUE AS PER DVO REPORT WHICH IS ERRON EOUS AS PER PROVISIONS OF SECTION 50C(3) OF THE ACT. THE LD. COUNSEL DREW OU R ATTENTION TO PAPER BOOK PAGE 73 WHEREBY THE DVOS REPORT WITH RESPECT TO TH E SAID PROPERTY IS PLACED AND SUBMITTED THAT IT IS A FOREST LAND WITH LOW COM MERCIAL VALUE AND THE SAME WAS NOT CONSIDERED BY THE DVO IN RIGHT PERSPECTIVE. .THE LD COUNSEL FOR THE ASSESSEE RELIED UPON DECISION OF HONBLE PUNJAB AND HARYANA HIGH COURT IN THE CASE OF CIT V. CHANDNI BHOCHAR REPORTED IN (201 0) 323 ITR 510(P&H HC) TO CONTEND THAT THE VALUE ADOPTED BY STAMP DUTY AUT HORITIES IF IT IS IN EXCESS OF ACTUAL SALE CONSIDERATION ALSO CANNOT BE ACCEPTE D UNLESS THERE IS POSITIVE EVIDENCE BROUGHT BY AO SUPPORTING THE PRICE ADOPTED BY THE STATE GOVERNMENT FOR THE PURPOSES OF STAMP DUTY AND THAT THE TAX-PAYER HAS PAID ANYTHING MORE THAN ACTUAL CONSIDERATION AS DISCLOSE D IN THE PURCHASE DEED. 8. THE LD. D.R. ON THE OTHER HAND SUBMITTED THAT TH E DVO HAS GIVEN A CLEAR FINDING ON THE DISTANCE THAT THE SAID LAND IS ONLY 2 KMS FROM LONAVALA MUNICIPALITY AND HENCE THE LAND IN QUESTION IS A CA PITAL ASSET U/S 2(14) OF THE ACT CHARGEABLE TO TAX ON GAINS ARISING AT THE TIME OF TRANSFER. THE LD. DR SUBMITTED THAT NO NEW SOURCE HAVE BEEN BROUGHT TO T AX BY THE LD. CIT(A) AS IT IS THE SAME GAINS FROM SALE OF LAND WHICH IS SUBJEC TED TO TAX WHILE IN THE CASE OF SARDARI LAL AND COMPANY(SUPRA) RELIED UPON BY TH E ASSESSEE, ALTOGETHER ITA 1180/MUM/2013 11 DIFFERENT SOURCE OF INCOME WAS BROUGHT TO TAX BY LE ARNED CIT(A). IN THE INSTANT CASE NO NEW SOURCE OF INCOME HAS BEEN DISCOVERED BY LEARNED CIT(A) AND IT IS THE SAME SOURCE OF GAINS FROM SALE OF LAND WHICH IS SUBJECTED TO TAX BY LEARNED CIT(A) AS LONG TERM CAPITAL GAINS WHILE THE AO ASSESSED THE SAME U/S 68 OF THE ACT . THE LD DR DREW OUR ATTENTION OF EXP LANATION TO SECTION 251 OF THE ACT WHEREBY THE LEARNED CIT(A) IS EMPOWERED WHI LE DISPOSING OF AN APPEAL TO CONSIDER AND DECIDE ANY MATTER ARISING OUT OF T HE PROCEEDINGS IN WHICH THE ORDER APPEALED AGAINST WAS PASSED . THE POWER OF LD . CIT(A) IS CO-TERMINUS WITH THE POWER OF THE A.O. AND HENCE THE LD DR SUPP ORTED THE ORDERS OF THE LEARNED CIT(A). THE LD DR RELIED UPON THE ORDERS OF THE AUTHORITIES BELOW. IN THE REJOINDER, THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT AS PER SECTION 2(14) OF THE ACT, THE DISTANCE IS TO BE MEA SURED FROM ROAD I.E. ROAD DISTANCE IS TO BE DETERMINED AND SINCE THE LAND IS APPROX 8 KMS FROM TOWN LONAVALA AS CERTIFIED BY TALATI, IT CANNOT BE BROUG HT TO TAX. 9. WE HAVE CONSIDERED THE RIVAL CONTENTIONS AND ALS O PERUSED THE MATERIAL AVAILABLE ON RECORD. WE HAVE ALSO GONE THROUGH THE CASE LAWS RELIED ON BY BOTH THE PARTIES. WE HAVE OBSERVED THAT THE ASSESSE E IS THE OWNER OF THE LAND SITUATED AT SURVEY NO. 119, HISSA NO. 4, VILLAGE KU NENAMA,TALUKA MAVAL, DISTRICT PUNE,MAHARASHTRA WHICH WAS ACQUIRED BY TH E ASSESSEE IN THE YEAR 1987 OF WHICH THE ASSESSEE IS OWNER TO THE TUNE OF 13.5417% . THE SAID LAND WAS ACQUIRED BY THE ASSESSEE WHEN THE ASSESSEE WAS A MINOR FOR A CONSIDERATION OF RS. 7000/- WHICH WAS STATED TO BE PAID BY THE ASSESSEE AND IS REFLECTED IN THE BALANCE SHEET OF THE ASSESSEE F ILED WITH THE REVENUE . THE SAID LAND WAS SHOWN IN THE NAME OF MOTHER OF THE AS SESSEE IN THE PURCHASE AS WELL SALE DEED OF THE SAID LAND DUE TO THE REASO N STATED TO BE THAT WHEN THE ASSESSEE ACQUIRED THE LAND IN THE YEAR 1987, HE WAS MINOR AND THE MOTHER ACTED AS NATURAL GUARDIAN TO EXECUTE THE PURCHASE D EAL OF THE ACQUISITION OF THE SAID LAND AND HENCE THE LAND WAS STATED TO BE P URCHASED IN THE NAME OF ITA 1180/MUM/2013 12 MOTHER OF THE ASSESSEE DESPITE THE PAYMENT OF RS.70 00/- BEING PAID BY THE ASSESSEE . THE SAID LAND WAS DECLARED AND NOTIFIED IN THE YEAR 2008 UNDER THE CATEGORY OF RESERVED AND PRIVATE FOREST UNDER M AHARASHTRA PRIVATE FORESTS (ACQUISITION) ACT 1975 . AFTER BEING NOTIFIED AS FO REST LAND, ONLY TREES ARE GROWN TO INCREASE GREEN COVER AND PROTECT THE ENVIR ONMENT. NO COMMERCIAL ACTIVITY CAN BE CARRIED OUT IN THE NOTIFIED FOREST LAND AS PER THE PROVISIONS OF THE MAHARASHTRA PRIVATE FORESTS (ACQUISITION) ACT 1 975 AS WELL FOREST(CONSERVATION) ACT, 1980 , EXCEPT WITH THE A PPROVAL/PERMISSION OF REVENUE DEPARTMENT OF THE STATE GOVERNMENT AS WELL OF THE CENTRAL GOVERNMENT . IT IS AN ADMITTED POSITION BETWEEN BOT H THE PARTIES THAT THE LAND IN QUESTION IS A NOTIFIED FOREST LAND. NO EVID ENCE IS BROUGHT ON RECORD BY THE ASSESSEE THAT ANY PERMISSION WAS SOUGHT FROM TH E STATE OR CENTRAL GOVERNMENT TO CARRY ON AGRICULTURAL ACTIVITY ON THE SAID LAND. THE ASSESSEE HAS SUBMITTED THAT IT REFLECTED CERTAIN INCOME AS A GRICULTURAL INCOME IN THE EARLIER YEARS IN THE RETURN OF INCOME FILED WITH TH E REVENUE WHICH IS ACCEPTED BY THE REVENUE IN SCRUTINY ASSESSMENT WHILE WHAT IS RELEVANT IS THAT AT THE TIME OF TRANSFER OF THE LAND, THE LAND WAS AGRICULT URAL LAND TO GET EXEMPTION FROM BEING TREATED AS CAPITAL ASSET U/S 2(14) OF TH E ACT AND CONSEQUENTIALLY ENTITLED FOR EXEMPTION FROM TAX UNDER THE PROVISION S OF THE ACT , WHILE THE FACT IS THAT THE LAND IS FOREST LAND ON THE DATE OF ITS SALE BY THE ASSESSEE . THE ASSESSEE IS ALSO NOT ABLE TO DEMONSTRATE THAT IT HO LDS PERMISSION FROM STATE AND CENTRAL GOVERNMENT TO CARRY ON AGRICULTURAL OPE RATIONS ON THE SAID LAND ON THE DATE OF ITS TRANSFER BY SALE EXECUTED BY THE ASSESSEE AND THAT THE AGRICULTURAL OPERATIONS WERE IN-FACT ACTUALLY CARRI ED ON BY THE ASSESSEE IN PURSUANCE OF THE GOVERNMENT APPROVALS ON THE SAID L AND WHEN THE LAND WAS SOLD. MERELY BECAUSE IN THE PRECEDING YEARS, THE AS SESSEE HAS DECLARED AGRICULTURAL INCOME WHICH WAS ACCEPTED BY THE REVEN UE IS NOT SUFFICIENT TO DECLARE THE LAND AS AGRICULTURAL LAND ON THE DATE O F ITS TRANSFER BY WAY OF SALE EXECUTED BY THE ASSESSEE TO TAKE OUT OF AMBIT OF BE ING CAPITAL ASSET UNDER SECTION 2(14) OF THE ACT MORE-SO THE LAND IS NOW A NOTIFIED FOREST LAND WHICH IS ITA 1180/MUM/2013 13 AN ADMITTED POSITIONS BETWEEN THE RIVAL PARTIES. T HERE IS NO EXEMPTION BEING GIVEN BY THE ACT ON REALIZATION OF THE GAINS ON SAL E OF FOREST LAND WHILE EXEMPTION FROM THE TAX IS ONLY ACCORDED TO GAINS AR ISING FROM SALE OF AGRICULTURAL LAND PROVIDED OTHER CONDITIONS ARE ALS O MET. IT IS WELL SETTLED PROPOSITION OF THE LAW THAT EXEMPTION PROVISIONS AR E TO BE STRICTLY CONSTRUED AND THE PRIMARY ONUS IS ON THE ASSESSEE TO BRING ON RECORD COGENT EVIDENCES TO ESTABLISH THAT ITS CASE FALLS WITH IN THE FOUR C ORNERS OF EXEMPTING PROVISIONS OF LAW. ONCE THE ASSESSEE ESTABLISHES ITS CLAIMS FO R GRANT OF EXEMPTION IN ITS FAVOUR, THEN THE EXEMPTIONS PROVISIONS ARE TO BE LI BERALLY CONSTRUED TO GIVE FULL EFFECT TO THE EXEMPTING PROVISION AS MANDATED BY LAW. THE ASSESSEE IN THE INSTANT CASE FAILED TO BRING ON RECORD COGENT EVIDENCES TO ESTABLISH THAT LAND UNDER QUESTION WAS AN AGRICULTURAL LAND AT TH E TIME OF ITS SALE BY THE ASSESSEE ON WHICH ACTUAL AGRICULTURAL OPERATIONS WE RE CARRIED ON BY THE ASSESSEE ON THE DATE OF ITS TRANSFER. HENCE, WE HOL D THAT THE LAND SOLD BY THE ASSESSEE WAS FOREST LAND AND NOT AN AGRICULTURAL LA ND AND HENCE THE SAME IS CAPITAL ASSET AS DEFINED U/S 2(14) OF THE ACT AND H ENCE IS EXIGIBLE TO CAPITAL GAIN TAX. OUR VIEW IS CONSISTENT WITH THE JUDGMENT OF HONBLE KERALA HIGH COURT IN THE CASE OF KALPETTA ESTATES LIMITED V. CI T REPORTED IN (1990) 185 ITR 318(KER.HC). THE A.O. BROUGHT INCOME ARISING F ROM SALE OF THE SAID LAND TO TAX AS CASH CREDIT U/S 68 OF THE ACT ON THE GROU NDS THAT THE ASSESSEE IS NOT ABLE TO SATISFACTORILY EXPLAIN THE NATURE AND SOURC E OF THE INCOME , WHILE THE LD. CIT(A) BROUGHT TO TAX THE GAINS ARISING ON TRAN SFER OF LAND AS LONG TERM CAPITAL GAINS U/S 45 OF THE ACT. THE RELIANCE PLAC ED BY THE ASSESSEE IN THE CASE OF SARDARI LAL & CO. (SUPRA) IS ERRONEOUS AS T HE LEARNED CIT(A) HAS NOT BROUGHT TO TAX AN ALTOGETHER DIFFERENT SOURCE OF IN COME FROM THE SOURCE OF INCOME CONSIDERED BY THE AO , RATHER THE INCOME ARI SING FROM THE SAME SOURCE I.E. SALE OF THE LAND IS BROUGHT TO TAX BY T HE LEARNED CIT(A) ALBEIT AS INCOME UNDER THE HEAD INCOME FROM CAPITAL GAINS B EING LONG TERM CAPITAL GAINS ON SALE OF LAND, INSTEAD OF TREATING THE SAID INCOME TO BE IN THE NATURE OF CASH CREDIT U/S 68 OF THE ACT. THUS, WITH DUE RESPE CT WE ARE UNABLE TO AGREE ITA 1180/MUM/2013 14 WITH THE ASSESSEE AND HOLD THAT RATIO OF LAW LAID D OWN BY THE DECISION OF FULL BENCH OF HONBLE DELHI HIGH COURT IN THE CASE OF SA RDARI LAL AND COMPANY(SUPRA) IS NOT APPLICABLE IN THE INSTANT CAS E AS FACTS ARE CLEARLY DIFFERENT IN THE INSTANT CASE UNDER APPEAL. FURTHER , WE HAVE ALSO NOTED THAT BEFORE ENHANCING THE ASSESSMENT , THE LEARNED CIT(A ) DULY ISSUED NOTICE OF ENHANCEMENT VIDE LETTER DATED 23.10.2012 WHEREBY DE TAILED REASONS PROPOSING TO ENHANCE THE ASSESSMENT WAS DULY GIVEN TO THE ASSESSEE AND PRINCIPLES OF NATURAL JUSTICE AS ENSHRINED IN THE D OCTRINE OF AUDI ALTERAM PARTEM WAS DULY COMPLIED WITH BY THE LEARNED CIT(A) BY PUTTING THE ASSESSEE TO NOTICE ABOUT PROPOSED ENHANCEMENT. THE POWER OF LEARNED CIT(A) IS CO- TERMINUS WITH THE POWERS OF THE AO AS MANDATED U/S 251(1)(A) OF THE ACT READ WITH SECTION 251(2) OF THE ACT AND IN OUR CONSIDERE D VIEW, WE DONOT FIND ANY INFIRMITY IN THE ACTION OF THE LEARNED CIT(A) IN PR OPOSING ENHANCING THE ASSESSMENT SO FAR AS HIS POWERS UNDER THE STATUTE A RE CONCERNED AND COMPLIANCE OF PRINCIPLES OF NATURAL JUSTICE IN EXER CISE OF THE SAID POWERS IN THE INSTANT CASE. HOWEVER, AS PER SECTION 50C OF THE ACT, WHERE THE ACTUAL SALE CONSIDERATION RECEIVED OR RECEIVABLE IN RESPEC T OF TRANSFER OF LAND OR BUILDING OR BOTH IS LOWER THAN THE VALUE AS ADOPTED FOR STAMP DUTY PURPOSES BY THE STAMP DUTY VALUATION AUTHORITIES , THEN VALU E AS ADOPTED BY STAMP DUTY VALUATION AUTHORITIES FOR STAMP DUTY PURPOSES SHALL BE DEEMED TO BE FULL VALUE OF CONSIDERATION FOR THE PURPOSES OF COMPUTIN G CAPITAL GAINS CHARGEABLE TO TAX. AS PER SECTION 50C(3) OF THE ACT, IF THE FA IR MARKET VALUE OF THE LAND AS COMPUTED BY DVO IS HIGHER THAN THE VALUE AS ADOPTED BY STAMP DUTY VALUATION AUTHORITIES FOR STAMP DUTY PURPOSES, THEN VALUE AS ADOPTED BY STAMP DUTY VALUATION AUTHORITIES FOR STAMP DUTY PUR POSES SHALL BE ADOPTED. THE RELIANCE OF THE ASSESSEE ON DECISION OF HONBLE PUNJAB AND HIGH COURT IN THE CASE OF CIT V. CHANDNI BHOCHAR(SUPRA) IS ALSO M ISCONCEIVED AS IN THE INSTANT CASE WE ARE CONCERNED WITH THE COMPUTATION OF CAPITAL GAINS ARISING FROM SALE OF LAND IN THE HANDS OF THE SELLER AND NO T WITH THE COMPUTATION OF PURCHASE COST IN THE HANDS OF PURCHASER OF LAND WHI CH WAS BEFORE THE HONBLE ITA 1180/MUM/2013 15 COURT IN THE CASE OF CHANDNI BHOCHAR(SUPRA) AND SE CONDLY SECTION 50C OF THE ACT IS DEEMING PROVISION WHICH FOR THE PURPOSES OF COMPUTING FULL VALUE OF CONSIDERATION IN THE CASE OF TRANSFER OF LAND OR BU ILDING OR BOTH HAS STIPULATED THAT FULL VALUE OF CONSIDERATION SHALL BE DEEMED TO BE THE VALUE AS ADOPTED BY THE STAMP DUTY VALUATION AUTHORITIES FOR STAMP DUTY PURPOSES IN CASE THE ACTUAL SALE CONSIDERATION IS LOWER THAN THE VALUE A DOPTED BY STAMP DUTY AUTHORITIES FOR STAMP DUTY PURPOSES . IN CASE THE A SSESSEE DISPUTES THE VALUE AS ADOPTED BY THE STAMP DUTY VALUATION AUTHORITIES FOR STAMP DUTY PURPOSES, THE AO IS BOUND TO REFER THE MATTER TO DVO FOR DETE RMINING THE FAIR MARKET VALUE OF THE PROPERTY AND IN CASE DVO VALUED THE FA IR MARKET VALUE OF THE PROPERTY AT A VALUE HIGHER THAN STAMP DUTY VALUE AD OPTED BY STAMP DUTY VALUATION AUTHORITIES, THEN THE VALUE ADOPTED FOR S TAMP DUTY BY STAMP DUTY VALUATION AUTHORITIES SHALL BE TAKEN AS FULL VALUE OF CONSIDERATION FOR COMPUTING CAPITAL GAINS. IN OUR CONSIDERED VIEW, T HE VALUE OF RS. 1,77,12,000/- AS DETERMINED BY THE STAMP DUTY VALUA TION AUTHORITIES FOR STAMP DUTY PURPOSES SHALL BE ADOPTED AS FULL VALUE OF CONSIDERATION FOR THE PURPOSES OF SECTION 48 OF THE ACT FOR COMPUTING LON G TERM CAPITAL GAINS IN THE HANDS OF THE ASSESSEE DUE TO DEEMING FICTION OF SEC TION 50C OF THE ACT, INSTEAD OF THE VALUE OF THE LAND OF RS.2,09,28,000/ - AS DETERMINED BY THE DVO , WHILE ON THE OTHER HAND THE ACTUAL SALE CONS IDERATION IS RS. 72,00,000/- . THE ASSESSEES SHARE IN THE LAND IS 1 3.5417% AND HENCE FULL VALUE OF CONSIDERATION WILL WORK OUT TO RS. 23,98,5 00/- WHICH FOR THE PURPOSES OF SECTION 48 OF THE ACT SHALL BE ADOPTED AS FULL VALUE OF CONSIDERATION OF SALE OF LAND AS PER PROVISIONS OF SECTION 50C OF THE ACT FOR COMPUTING LONG TERM CAPITAL GAINS CHARGEABLE TO TAX . THIS DISPOSES OF GROUND NO 1 TO 5 RAISED BY THE ASSESSEE IN REVISED AND CON SOLIDATED GROUNDS FILED WITH THE TRIBUNAL. WE ORDER ACCORDINGLY. ITA 1180/MUM/2013 16 10. THE NEXT GROUND BEING GROUND NO. 6 RAISED BY TH E ASSESSEE IS WITH RESPECT TO THE CHARGEABILITY OF INTEREST U/S 234A , 234B AN D 234C OF THE ACT WHICH IS CONSEQUENTIAL IN NATURE AND DOES NOT REQUIRE SEPARA TE ADJUDICATION BY US. 11. THE LAST GROUND BEING GROUND NO 7 IS WITH RESPE CT TO INITIATION OF PENALTY U/S 271(1)(C) OF THE ACT BY REVENUE AGAINST THE ASS ESSEE WHICH IS PRE-MATURE AT THIS STAGE AND HENCE IS DISMISSED AS SUCH. 12. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IN ITA N0. 1180/MUM/2013 FOR THE ASSESSMENT YEAR 2009-10 IS PA RTLY ALLOWED AS INDICATED ABOVE. ORDER PRONOUNCED IN THE OPEN COURT ON 28 TH JULY , 2016. # $% &' 28-07-2016 ( ) SD/- SD/- (SAKTIJIT DEY) (RAMIT KOCHAR) JUDICIAL MEMBER ACCOUNTANT MEMBER $ MUMBAI ; & DATED 28-07-2016 [ .9../ R.K. R.K. R.K. R.K. , EX. SR. PS !'#$%&%# / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. : ( ) / THE CIT(A)- CONCERNED, MUMBAI 4. : / CIT- CONCERNED, MUMBAI 5. =>( 99?@ , ?@ , $ / DR, ITAT, MUMBAI D BENCH 6. (BC D / GUARD FILE. / BY ORDER, = 9 //TRUE COPY// / ( DY./ASSTT. REGISTRAR)