Bhuvnesh Kumar Shrotiya, Agra V. I.T.O.-4(1), Agra

ITA 119/AGR/2013

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 0679 (ITAT-AGRA)
• Duration Of Justice: 6 year(s) 24 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 16-05-2019
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 28-06-2013
• Assessment Year: 2004-2005
• Appeal Filed On: 22-04-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: P N AGARWAL
• Keywords: Sale consideration of property below Jantri Value; Fair market value; Valuation report; Set aside
• Section: 50C; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AGRA BENCH, AGRA BEFORE SHRI BHAVNESH SAINI, JUDICIAL MEMBER AND SHRI A.L. GEHLOT, ACCOUNTANT MEMBER ITA NO.119/AGRA/2013 ASSESSMENT YEAR: 2004-05 SHRI BHUVNESH KUMAR SHROTIYA, VS. INCOME TAX OFFI CER-4(1), 26/11, BALKA BASTI, AGRA. RAJA KI MANDI, AGRA. (PAN : ATRPS 3784 M). (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI P.N. AGARWAL, ADVOCATE RESPONDENT BY : SHRI WASEEM ARSHAD, SR. D.R. DATE OF HEARING : 28.06.2013 DATE OF PRONOUNCEMENT : 09.07.2013 ORDER PER A.L. GEHLOT, ACCOUNTANT MEMBER: THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER DATED 14.03.2013 PASSED BY THE LD. CIT(A)-II, AGRA FOR THE A.Y. 2004 -05. 2. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL :- 1. THAT THE AUTHORITIES BELOW HAVE ERRED ON FACTS AND IN LAW IN ESTIMATING THE TAXABLE CAPITAL GAIN AT RS.43,49,587 /- IGNORING ALL THE EVIDENCES AND EXPLANATIONS FILED BEFORE THEM, AS WE LL AS, FILED BEFORE THE ASSISTANT VALUATION OFFICER, AGRA. 2 ITA NO.119/AGRA/2013 A.Y. 2004-05 2. THAT THE ORDER UNDER SECTION 254 READ WITH SECTI ON 147/143(3) DATED 15.12.2011 PASSED BY THE ITO-4(1), AGRA IS BA D IN LAW BEING BASED ON ILLEGAL AND OUT OF JURISDICTION ORDER U/S 50C OF THE INCOME TAX ACT, 1961 READ WITH SECTION 16A(5) OF THE WEALT H TAX ACT, 1957 DATED 30.03.2011 PASSED BY THE ASSISTANT VALUATION OFFICER HAVING NO AUTHORITY IN LAW TO PASS SUCH ORDER. 3. THAT THE ORDER U/S 254 READ WITH SECTION 147/143 (3) DATED 15.12.2011 IS ALSO BAD IN LAW AS THE REFERENCE WAS MADE TO THE ASSISTANT VALUATION OFFICER TO ESTIMATE THE FAIR MA RKET VALUE OF THE ASSET SOLD (I.E. OPEN LAND) AND NOT TO ESTIMATE THE FAIR MARK ET VALUE OF THE DEEMED SELLABLE AREA AS IF THERE IS CONSTRUCTED PROPERTY OVER THE SAID LAND. 4. THAT THE LEARNED ASSESSING OFFICER ON THE BASIS OF AN ILLEGAL ORDER PASSED BY THE ASSISTANT VALUATION OFFICER HAV E GONE BEYOND THEIR JURISDICTION IN BY PASSING AND OVER POWERING THE DIRECTIONS OF THE HONBLE ITAT WHO HAVE DIRECTED THAT THE AO SHA LL REFER THIS MATTER FOR VALUATION TO THE DVO FOR DETERMINING CONSIDERATION OF THE ASSET SOLD BY THE ASSESSEE U/S 50C OF THE ACT AND NOT TO DETE RMINE THE FAIR MARKET VALUE OF THE SELLABLE AREA OF THE C ONSTRUCTED PROPERTY OVER THE VACANT PLOT SOLD. 5. THAT IN ANY VIEW OF THE CASE AND HAVING LOOKING TO VARIOUS ASPECT OF THE CASE, THE WORKING OF TAXABLE CAPITAL GAIN AT RS.43,49,587/- IS HIGHLY EXCESSIVE AND IS LIABLE TO BE REDUCED. 6. THAT THE PROVISIONS OF SECTION 50C DO NOT ATTRAC T ON THE SALE EFFECTED ON THE BASIS OF AGREEMENT TO SALE ENTERED INTO PRIOR TO THE INCORPORATION OF THE PROVISIONS OF SECTION 50C OF T HE I.T. ACT. 7. THAT THE ASSESSEE MAY BE ALLOWED APPROPRIATE REL IEF HAVING LOOKING TO THE OVERALL FACTS AND CIRCUMSTANCES OF T HE CASE. 3. THE BRIEF FACTS OF THE CASE ARE THAT DURING THE YEAR UNDER CONSIDERATION AN IMMOVABLE PROPERTY ACQUIRED BY THE ASSESSEE THROUGH WILL FROM SMT. SARLA DEVI ON 3 ITA NO.119/AGRA/2013 A.Y. 2004-05 05.11.1988 WAS SOLD BY HIM DURING THE YEAR UNDER CO NSIDERATION. THE ASSESSEE DID NOT SHOW THE CAPITAL GAIN IN THE RETURN OF INCOME. AFTER RECORDING REASONS, NOTICE UNDER SECTION 148 OF THE INCOME TAX ACT, 1961 (THE ACT HEREINAFTER) WAS ISSUED ON 29.08.2007. THE SUB-REGISTRAR HAS TAKEN CIRCLE RATE FOR STAMP DUTY PURPOSE AT RS.53,01,000/-. THE ASSESSEE CONTENDED THAT THE AP PROVED VALUER HAS VALUED THE PROPERTY AT RS.3,52,000/- AND ACCORDINGLY THE CIRCL E RATE CANNOT BE THE SALE CONSIDERATION. THE A.O. REJECTED THE ASSESSEES CO NTENTION AND WORKED OUT TAXABLE CAPITAL GAIN AT RS.50,76,413/- TAKING THE STAMP VAL UE OF THE PROPERTY AS SALE CONSIDERATION. 4. THE CIT(A) CONFIRMED THE ORDER OF THE A.O. AND H ELD THAT THE A.O. HAS RIGHTLY TAKEN SALE CONSIDERATION AT RS.53,00,000/- AS PER PROVISIONS OF SECTION 50C OF THE ACT. THE ASSESSEE PREFERRED APPEAL BEFORE T HE I.T.A.T. THE I.T.A.T. VIDE ORDER DATED 25.06.2010 IN ITA NO.705/AGR/2008 RESTO RED THE MATTER TO THE FILE OF THE A.O. WITH DIRECTION THAT THE A.O. SHALL REFER T HIS MATTER FOR VALUATION TO THE D.V.O. THE RELEVANT ABSTRACT OF THE DIRECTION OF T HE I.T.A.T. IS REPRODUCED AS UNDER:- 8. RESPECTFULLY FOLLOWING THE AFORESAID DECISION, WE SET ASIDE THE ORDER OF THE CIT(A) AND RESTORE THIS ISSUE BACK TO THE FILE OF THE A.O. WITH THE DIRECTION THAT THE A.O. SHALL REFER THIS M ATTER FOR VALUATION TO THE D.V.O. FOR DETERMINING CONSIDERATION OF THE ASS ET SOLD BY THE ASSESSEE UNDER SECTION 50C OF THE ACT. 4 ITA NO.119/AGRA/2013 A.Y. 2004-05 5. IN COMPLIANCE TO THE DIRECTION OF THE I.T.A.T, T HE A.O. ACCORDINGLY REFERRED THE MATTER TO THE D.V.O. THE D.V.O. VIDE LETTER DA TED 18.02.2011 ISSUED TO THE ASSESSEE INFORMED THE PROPOSED ESTIMATION OF FAIR M ARKET VALUE OF THE PROPERTY AT RS.54,03,600/- AS ON 03.11.2003 AND CALLED UPON THE ASSESSEE TO FILE OBJECTIONS, IF ANY. THE ASSESSEE VIDE LETTER DATED 03.03.2011 RAI SED OBJECTIONS AGAINST THE PROPOSED ESTIMATION OF FAIR MARKET VALUE OF THE PRO PERTY STATING THAT THE VALUATION PROPOSED BY THE VALUATION OFFICER IS NOT BASED ON D OCUMENTARY AND RELIABLE EVIDENCE. THE D.V.O. AFTER CONSIDERING THE ASSESSE ES OBJECTION VIDE ORDER 30.03.2011 ESTIMATED THE FAIR MARKET VALUE OF THE S AID PROPERTY AT RS.54,03,600/- AS ON 03.11.2003. IN VIEW OF THE REPORT OF THE VALUAT ION OFFICER, THE A.O. PROVIDED OPPORTUNITY OF HEARING TO THE ASSESSEE AND ASKED WH Y ASSESSMENT FOR A.Y. 2004-05 MAY NOT BE COMPLETED TAKING INTO CONSIDERATION THE FAIR MARKET VALUE TAKEN BY THE D.V.O. THE ASSESSEE FILED HIS OBJECTION AGAINST TH E VALUE ESTIMATED BY THE D.V.O. AND SUBMITTED THAT THE D.V.O. IS INCORRECT IN ESTIM ATING THE PROPERTY. THE CASE WAS DISCUSSED WITH THE ASSESSEE AT LENGTH. THE A.O. CO NSIDERED THE ASSESSEES OBJECTION AND THE SAME WAS REJECTED AS UNDER :- (PA RAGRAPH NO.8) 8. THE REPLY OF THE ASSESSEE ALONG WITH THE OBJECT IONS FILED BY HIM HAVE BEEN CONSIDERED. THE CONTENTION OF THE ASSESS EE CANNOT BE ACCEPTED AND DESERVES TO BE REJECTED ON THE FOLLOWI NG GROUNDS :- (I) THE PROPERTY WAS REFERRED TO THE DVO FOR VALUAT ION ON THE DIRECTIONS OF THE HONBLE ITAT VIDE ITS ORDER ITA N O.705/AGR/2008 5 ITA NO.119/AGRA/2013 A.Y. 2004-05 DATED 25.06.2010. HE IS A TECHNICAL PERSON WHO IS AUTHORIZED BY THE INCOME TAX ACT FOR THE PURPOSE. HENCE THE REQUEST OF THE ASSESSEE FOR VALUATION FROM AN INDEPENDENT VALUATION OFFICER CANNOT BE ACCEPTED. (II) THE VALUATION OF FAIR MARKET VALUE OF THE LAND HAS BEEN ESTIMATED BY THE VALUATION OFFICER AFTER DULY CONSI DERING ALL THE OBJECTIONS RAISED BY THE ASSESSEE. THE VALUATION O FFICER HAS HIMSELF INSPECTED THE PROPERTY ON 10.11.2010 AND AFTER PERU SING THE RELEVANT DOCUMENTS FURNISHED BEFORE HIM AND CONSIDERING THE RELEVANT CIRCUMSTANCES OF THE CASE THE ESTIMATION HAS BEEN D ONE. (III) THE METHOD ADOPTED FOR VALUATION CALLED DEVEL OPMENT METHOD IS MOST APPROPRIATE AND WELL REASONED AS MENTIONED IN POINT 7.1 AND 7.2 OF THE VALUATION REPORT. THE METHOD TAKES PERM ISSIBLE GROUND COVERAGE AND F.A.R. FOR MARKED USE OF LAND AS PER B UILDING BYE-LAWS OF AGRA DEVELOPMENT AUTHORITY APPLICABLE AT THE TIM E OF SALE AND PREVAILING MARKET RATES FOR LAND OF SOCIETY AT THE TIME OF SALE ENQUIRED BY SURVEY OF AREA. 6. AFTER REJECTING THE ASSESSEES OBJECTION, THE A. O. NOTICED THAT THE FAIR MARKET VALUE ESTIMATED BY THE D.V.O. IS MORE THAN THE VALU E ASSESSED BY THE STAMP VALUATION AUTHORITY. HOWEVER, THE A.O. IN VIEW OF SECTION 50C TAKEN THE SALE CONSIDERATION AT RS.53,01,000/- BEING CIRCLE RATE E STIMATED BY THE STAMP VALUATION AUTHORITY AND RECALCULATED THE CAPITAL GAIN AT RS. 50,76,413/-. 7. THE ASSESSEE HAS RAISED MANY GROUNDS BEFORE THE CIT(A) WHICH WAS DECIDED BY THE CIT(A) AS UNDER :- 6 ITA NO.119/AGRA/2013 A.Y. 2004-05 8. THE CIT(A) CONFIRMED THE ACTION OF THE A.O. IN T AKING VALUE OF RS.53,01,000/- BEING THE VALUE TAKEN FOR STAMP DUTY AS VALUE ESTIMATED BY THE D.V.O. WAS HIGHER. THE CIT(A) HELD THAT IN ACCORDA NCE WITH SECTION 50C, THE A.O. HAS TO ADOPT THE VALUE TAKEN BY THE STAMP VALU ATION AUTHORITY AS THE VALUE ESTIMATED BY THE D.V.O. EXCEEDS THE VALUE ADOPTED B Y STAMP VALUATION AUTHORITY. 9. THE ASSESSEE HAS ALSO CHALLENGED REOPENING BEFOR E THE CIT(A) ON THE GROUND THAT THE ASSISTANT VALUATION OFFICER HAVING NO AUTH ORITY IN LAW TO PASS SUCH ORDER. THE CIT(A) HAS REJECTED THIS GROUND OF APPEAL OBSER VING THAT THE I.T.A.T., AGRA BENCH VIDE ORDER DATED 25.06.2010 DIRECTED THE A.O. TO REFER THE MATTER FOR VALUATION TO VALUATION OFFICER IN THE LIGHT OF PROV ISIONS OF SUB-SECTION (2) OF SECTION 50C. THEREFORE, THE MATTER WAS ACCORDINGLY REFERRED TO THE VALUATION OFFICER. IT WAS CONTENDED BEFORE CIT(A) BY THE ASS ESSEE THAT AS PER THE SCHEME OF THE ACT ENFORCEABLE ORDER CAN ONLY BE PASSED BY THE COMPETENT AUTHORITIES HAVING POWERS UNDER THE ACT AND NOT ON ASSUMED JURISDICTIO N AND POWERS. THE CIT(A) CALLED THE REMAND REPORT FROM THE A.O. THE REMAND REPORT SUBMITTED BY THE A.O. WAS GIVEN TO THE ASSESSEE FOR REBUTTAL. HOWEVER, T HE LD. AUTHORISED REPRESENTATIVE OF THE ASSESSEE SUBMITTED BEFORE THE CIT(A) THAT TH E ISSUE STANDS COVERED BY THE WRITTEN SUBMISSION GIVEN BY THE ASSESSEE, HENCE THE RE IS NOTHING MORE TO SUBMIT. 7 ITA NO.119/AGRA/2013 A.Y. 2004-05 AFTER CONSIDERING ALL THESE FACTS, THE CIT(A) HELD AS UNDER :- (PARAGRAPH NO.4.4, PAGE NOS.11 & 12) 4.4 I HAVE CAREFULLY CONSIDERED THE ASSESSMENT ORD ER, THE WRITTEN SUBMISSION OF THE APPELLANT AS WELL AS THE REMAND R EPORT OF THE AO AND THE CASE LAWS REFERRED TO BY THE LD. AR PRESENT FOR THE APPELLANT. IN THIS CASE THE ASSESSEE SOLD LAND ON 03.11.2003 D ECLARING THE SALE VALUE AT RS.3,52,200/-. THE CIRCLE RATE OF STAMP D UTY PURPOSES BY THE SUB REGISTRAR AGRA WAS RS.53,01,000/-. THE AO IN T HE ORIGINAL ASSESSMENT DATED 27.12.2001 WORKED OUT THE TAXABLE CAPITAL GAIN AT RS.50,76,413/- ON THE BASIS OF THE CIRCLE RATE. TH E CIT(A)-II, AGRA VIDE ORDER DATED 14.10.2008 CONFIRMED THE ACTION OF THE AO BUT RECALCULATED THE TAXABLE CAPITAL GAIN AT RS.43,49,5 87/-. THE ASSESSEE BEING AGGRIEVED WITH THE ORDER OF CIT(A) APPEALED T O THE ITAT AGRA AND THE HONBLE ITAT AGRA VIDE ORDER DATED 25.06.20 10 RESTORED THE ISSUE BACK TO THE FILE OF THE AO, WITH THE DIRECTIO N THAT THE AO SHALL REFER THE MATTER FOR VALUATION TO THE DVO FOR DETER MINING CONSIDERATION OF THE ASSETS SOLD BY THE ASSESSEE U/ S 50C OF THE I.T. ACT. ACCORDINGLY, THE AO REFERRED THE MATTER TO THE ASST T. VALUATION OFFICER, AGRA WHEREIN THE DVO FINALLY ESTIMATED THE MARKET VALUE OF THE SELLABLE AREA OF THE PROPERTY AT RS.54,03,600/- . THE AO ON RECEIPT OF THIS REPORT FROM THE DVO AND AFTER GIVING AN OPP ORTUNITY OF BEING HEARD TO THE ASSESSEE VIDE ITS ORDER DATED 15.12.20 11 PASSED AN ORDER U/S 147/143(3) OF THE I.T. ACT. THE APPELLANTS CO NTENTION THAT THE ORDER U/S 254 READ WITH SECTION 147/143(3) DATED 15 .12.2011 AND ORDER U/S 50C OF THE I.T. ACT READ WITH SEC 16A(5) OF THE I.T. ACT DATED 30.03.2011 PASSED BY THE VALUATION OFFICER IS ILLEG AL AND OUT OF JURISDICTION IS WITHOUT ANY LEGAL BASIS BECAUSE THE REFERENCE TO THE VALUATION OFFICER IN LIGHT OF PROVISIONS OF SUB SEC TION 2 OF SECTION 50C WAS IN COMPLIANCE TO THE DIRECTION OF HONBLE ITAT AGRA AND IS STATUTORY REFERENCE, HENCE THE PROVISIONS OF SUB SE C.(2)(3)(4)(5) &(6) OF SEC. 16 OF W.T. ACT BECOMES APPLICABLE. IT IS A MPLY CLEAR FROM THE RELEVANT SECTION THAT HAVE BEEN EXTRACTED AND REPRO DUCED IN THE REMAND REPORT. THE VALUATION OFFICER HAS FOLLOWED THE DIRECTIONS AND AFTER APPLYING THE PROCEDURES, VALUATION REPORT HAS BEEN MADE AFTER CONSIDERATION OF THE APPELLANTS WRITTEN AND ORAL O BJECTIONS UNDER THE RELEVANT SECTIONS OF THE I.T. ACT. HENCE THE OBJEC TION RAISE BY THE APPELLANT HAS NO MERIT AND IS REJECTED. 8 ITA NO.119/AGRA/2013 A.Y. 2004-05 10. THE ASSESSEE HAS ALSO CHALLENGED VIDE GROUND NO S.3 & 4 BEFORE THE CIT(A) THAT REFERENCE WAS MADE TO THE VALUATION OFFICER TO ESTIMATE THE FAIR MARKET VALUE OF THE OPEN LAND SOLD AND NOT TO ESTIMATE FAIR MARK ET VALUE OF THE DEEMED SALEABLE AREA AS IF THERE IS CONSTRUCTED PROPERTY OVER THE SAID LAND. THE CIT(A) DECIDED THIS OBJECTION OF THE ASSESSEE AS UNDER :- (PAGE NO S.12, 13 & 14) 4.5 AT THIS JUNCTURE, IT WILL BE IMPORTANT TO GO T HROUGH THE VALUATION REPORT OF THE ASSTT. VALUATION OFFICER DATED 20.03. 2011. THE RELEVANT PORTION OF WHICH IS EXTRACTED BELOW:- 5.0 PROPERTY DESCRIPTION . 5.1 LAND AREA 2944.74 M2. 5.2 PERMISSIBLE AREA OF COVERAGE 1. GROUND COVERA GE 35% FAR 1.50 AND PLINTH AREA OF CONSTRUCTION (FOR MULTISTORIED ) (MULTIPURPOSE USE). 2. GROUND COVERAGE 40% FAR 1.20 (FOR NURSING HOME). 5.3 ACTUAL AREA COVERED AND PLINTH BEING OPEN LAND WITHOUT CONSTRUCTION AREA OF CONSTRUCTION. SO FAR. 7.0 METHOD OF VALUATION 7.1 METHOD ADOPTED - BY DEVELOPMENT METHOD TAKING PERMISSIBLE GROUND COVERAGE AND FAR FOR MARKED USE OF LAND (MULTIPURPOSE/NURSING HOME) AS PER BUILDING BY LAW OF ADA AGRA 2000- 2001. APPLICABLE AT TIME OF SALE AND PREVAILING MARKET RATE FOR LAND OF SOCIETY AT TIME OF SALE ENQUIRED BY SURVEY OF AREA. 7.2 REASONS IN SUPPORT OF THE METHOD THIS IS MOST A PPROPRIATE METHOD IN ADOPTED ABSENCE OF 1. RELIANCE SALE INSTANCES 2. APPROVED PLAN/LAY OUT AS PER MASTER PLAN. 9 ITA NO.119/AGRA/2013 A.Y. 2004-05 7.3 ANY SPECIAL OBSERVATIONS OR BEING LAND OF CO-O PERATIVE HOUSING QUALIFICATION SOCIETY, RATE OF RESALE OF PLOT O F WHICH IS RESTRICTED UPTO RATE OF ALLOTMENT/ NORMAL RATE, IT IS IMPOSSIBLE TO OBTAIN RELIABLE/ACTUAL SALE INSTANCES VALUATION IS A TECHNICAL MATTER WHICH HAS BEEN PERF ORMED BY THE OFFICER COMPETENT TO PERFORM THIS FUNCTION. FROM W HAT IS EXTRACTED ABOVE, TO MY UNDERSTANDING, I FIND THAT IT IS NOT A S IF THE VALUATION OFFICER HAS VALUED THE LAND AS IF THERE WAS CONSTRU CTED PROPERTY OVER THE SAID LAND AS ALLEGED BY THE APPELLANT BUT APPEA RS TO BE SO BECAUSE OF THE METHOD USED FOR THE VALUATION. IT IS ALSO S EEN FROM THE VALUATION REPORT THAT DEVELOPMENT METHOD HAS BEEN F OLLOWED AND THE VALUATION OFFICER HAS STARTED THIS TO BE THE MOST A PPROPRIATE METHOD IN ABSENCE OF (A) RELIABLE SALE INSTANCES (B) APPROVED PLAN/LAYOUT AS PER MASTER PLAN. I ALSO FIND THAT THE VALUATION OFFICE R HAS GIVEN ELABORATE REASONS IN SUPPORT OF THE CALCULATION FOR THE FAIR MARKET VALUE OF THE LAND AND ALSO DULY CONSIDERED THE OBJECTIONS RAISED BY THE ASSESSEE BEFORE HIM BEFORE FINALIZATION OF THE VALUATION REP ORT. ON THE OTHER HAND SHRI A.M. JAIN IN REPORT DATED 20.05.2007, HAS ESTIMATED THE VALUE OF LAND AT RS.3,52,200/-. IN THIS VALUATION REPORT, IT IS SEEN THAT THE VALUER HAS NOT INDICATED HOW THIS AMOUNT HAS BE EN ARRIVED AT, EXCEPT BY STATING THAT AS PER THE SECRETARY OF THE CO-OPERATIVE HOUSING SOCIETY THE LAND CANNOT BE SOLD AT A HIGHER RATE THAN RS.35 PER SQ. YARD. AFTER STATING THIS THE VALUE HAS BEE N TAKEN AT THE RATE OF RS.100 PER SQ. YARD AND CALCULATED THE VALUE TO BE RS.3,52,200/-. IN VIEW OF THE REASONS GIVEN, I AM OF THE OPINION THAT THE VALUATION OFFICER HAS BASED HIS VALUATION ON THE BASIS OF DIR ECTIONS ISSUED BY THE HONBLE ITAT AGRA AND HENCE THE OBJECTION RAISED BY THE APPELLANT IN THESE GROUNDS HAVE NO MERIT AND HENCE ARE DISMISSED . 11. ONE MORE GROUND RAISED BEFORE THE CIT(A) THAT T HE AGREEMENT TO SALE WAS ENTERED INTO PRIOR TO THE INCORPORATION OF PROVISIO NS OF SECTION 50C OF THE ACT. THE CIT(A) DID NOT ACCEPT THIS CONTENTION OF THE ASSESS EE ON THE GROUND THAT SECTION 10 ITA NO.119/AGRA/2013 A.Y. 2004-05 50C OF THE ACT HAS BEEN INTRODUCED BY THE FINANCE A CT 2002 W.E.F. 01.04.2003 WHICH IS APPLICABLE TO A.Y. 2003-04. THE YEAR UNDE R CONSIDERATION OF THE ASSESSEES CASE IS A.Y. 2004-05 AND HENCE APPLICATI ON OF THIS SECTION IS JUSTIFIED. 12. THE LD. AUTHORISED REPRESENTATIVE SUBMITTED THA T THE ASSESSEE HAS SOME OPEN LAND MEASURING 2944.74 SQ. METER BEARING KHASRA NO. 245, 254, 256 & 257 AT MAUZA KAKRETHA. THE. & DIST. AGRA ON 01.11.2003 FO R RS.3,52,200/-. THE CIRCLE RATE FOR STAMP DUTY PURPOSE IS TAKEN AT RS.53,01,00 0/- BY THE SUB-REGISTRAR, AGRA. THE D.V.O. ESTIMATED FAIR MARKET VALUE OF THE SALEA BLE AREA OF THE PROPERTY OF LAND AT RS.54,03,600/-. THE LD. AUTHORISED REPRESENTATI VE SUBMITTED THAT GROUND NOS.2 & 3 ARE THAT THE ORDER UNDER SECTION 254 READ WITH SECTION 147/143(3) DATED 15.12.2011 IS BAD IN LAW BEING ILLEGAL AND OUT OF J URISDICTION UNDER SECTION 50C OF THE ACT READ WITH SECTION 16A(5) OF THE WEALTH TAX ACT, 1957 DATED 30.03.2011 PASSED BY ASSISTANT VALUATION OFFICE HAVING NO AUTH ORITY IN LAW TO PASS SUCH ORDER. LD. AUTHORISED REPRESENTATIVE SUBMITTED THAT AS PER THE SCHEME OF THE ACT APPLICABLE, ORDER CAN ONLY BE PASSED BY THE COMPETE NT AUTHORITY HAVING POWER UNDER THE ACT AND NOT ON ASSUMING JURISDICTION AND POWERS. THE LD. AUTHORISED REPRESENTATIVE SUBMITTED THAT THE ASSISTANT VALUATI ON OFFICER HAS JURISDICTION AND AUTHORITY TO PASS ORDER UNDER SECTION 50C OF THE AC T AND ALSO TO ESTIMATE THE FAIR MARKET VALUE OF DEEMED SALEABLE AREA OF OPEN LAND A S IT IS CONSTRUCTED PROPERTY 11 ITA NO.119/AGRA/2013 A.Y. 2004-05 OVER THE SAID LAND. THE LD. AUTHORISED REPRESENTAT IVE WITH REFERENCE TO THE DIRECTION OF THE I.T.A.T. ORDER SUBMITTED THAT THE MATTER WAS RESTORED TO THE FILE OF THE A.O. WITH DIRECTION THAT THE A.O. SHALL REFER T HE MATTER FOR VALUATION TO THE D.V.O. IN THE LIGHT OF THE PROVISIONS OF SUB-SECTIO N(2) OF SECTION 50C OF THE ACT. THE LD. AUTHORISED REPRESENTATIVE REFERRING VARIOUS FACTS OF THE CASE SUBMITTED THAT THE REPORT OF THE ASSISTANT VALUATION OFFICER IS BA D IN LAW BEING AGAINST THE DIRECTION AND THE ASSESSEE IGNORED AND OVERLOOKED C ERTAIN FACTS WHICH WERE ALSO POINTED OUT TO THE CIT(A). LD. AUTHORISED REPRESEN TATIVE SUBMITTED THAT THE PROVISIONS OF SECTION 50C DO NOT ATTRACT AS THE SAL E IS EFFECTED ON THE BASIS OF AGREEMENT TO SALE ENTERED INTO PRIOR TO THE INCORPO RATION OF THE PROVISIONS OF SECTION 50C OF THE ACT. LD. AUTHORISED REPRESENTAT IVE IN SUPPORT OF HIS CONTENTION RELIED UPON AN ORDER OF I.T.A.T., VISAKHAPATNAM BEN CH IN THE CASE OF M. SIVA PARVATHI & ORS. VS. ITO, 129 TTJ 463. LD. AUTHORIS ED REPRESENTATIVE REFERRING VARIOUS CASE LAWS SUBMITTED THAT THE APPELLATE AUTH ORITY HAS POWER TO EXAMINE THE ESTIMATION MADE BY THE REGISTERED VALUER. 13. LD. DEPARTMENTAL REPRESENTATIVE, ON THE OTHER H AND, RELIED UPON THE ORDER OF CIT(A). 12 ITA NO.119/AGRA/2013 A.Y. 2004-05 14. WE HAVE HEARD THE LD. REPRESENTATIVES OF THE PA RTIES AND RECORDS PERUSED. THE ASSESSEE HAS RAISED AS MANY AS 7 GROUNDS OF APP EAL, MOST OF THEM ARE REPETITION OF THE GROUNDS WHICH WERE RAISED BEFORE THE CIT(A). THE TECHNICAL GROUNDS LIKE THE DVO IS HAVING NO JURISDICTION UNDE R SECTION 50C FOR PASSING THE ORDER AND OTHERS, THESE ISSUES HAS ALREADY BEEN CON SIDERED BY THE CIT(A) IN DETAILS IN HIS ORDER. MERE MENTIONING OF ASSISTANT VALUATI ON OFFICERS ORDER UNDER SECTION 50C OF THE ACT DOES NOT MEAN THAT HE HAS PASSED ORD ER UNDER SECTION 50C OF THE ACT. IN FACT, THE SUBSTANCE OF THE FACT IS THAT TH E ASSISTANT VALUATION OFFICER HAS FURNISHED HIS ESTIMATION OF THE PROPERTY AS RECORDE D BY THE A.O. HOWEVER, THE MAIN OBJECTION OF THE ASSESSEE RAISED IN THE GROUND S OF APPEAL IS THAT THE A.O. HAS WRONGLY TAKEN CIRCLE RATE IN CALCULATION OF CAPITAL GAIN ON THE GROUND THAT THE D.V.O. INSPITE OF VALUING THE PLOT HAS VALUED IT AS A CONSTRUCTED AREA ON THE PLOT. THIS CONTENTION OF THE LD. AUTHORISED REPRESENTATIV E IS NOT ACCEPTABLE AS THE VALUE OF THE PLOT DEPENDS UPON A NUMBER OF FACTORS INCLUD ING LOCATION, SIZE, ROAD ON WHICH THE PLOT IS SITUATED, AREA AND OTHERS. THE S TAMP VALUATION AUTHORITIES HAVE ALSO CERTAIN CRITERIA AND BASIS FOR DETERMINING THE CIRCLE RATE. THE LD. AUTHORISED REPRESENTATIVE IS NOT CORRECT IN SUBMITTING THAT TH E D.V.O. ESTIMATED THE VALUE OF THE PLOT AS IT IS A CONSTRUCTED AREA. THE D.V.O. H AS VALUED THE PLOT OF LAND ON THE BASIS OF BUILDING BYELAWS OF 2000-01 OF AGRA DEVELO PMENT AUTHORITY, AGRA. THE RELEVANT ABSTRACT OF D.V.O.S REPORT IS REPRODUCED AS UNDER :- 13 ITA NO.119/AGRA/2013 A.Y. 2004-05 F.M.V. OF LAND : AS PER BUILDING BYELAWS 2000-2001 OF A.D.A., AGRA, PREVALENT AT TIME OF SALE OF LAND (NOV 2003) AND PERMISSIBLE GROUND COVERAGE AND F.A.R. FOR THE USE OF THIS PLOT OF LAND [NURSING HOME/MULTISTORIED FLATS (MULTI PURPOSE USE)] SALEAB LE AREA OF LAND AS PER PERMISSIBLE GROUND COVERAGE AND F.A.R. IS 1. 28 TIMES, CALCULATION OF IT IS AS PER FOLLOWING :- GROUND COVERAGE 35%, F.A.R. 1.5, NOS. OF STORE YS = 1.5 = 5 0.35 (4 X 0.35 = 1.40 + 0.10) SALEABLE AREA FOR GROUND FLOOR = 0.35 X 0.60 = 0.2 1 FIRST FLOOR = 0.35 X 0.50 = 0.18 SECOND & THIRD = 2 X 0.35 X 0.30 = 0.21 FOURTH FLOOR = 0.10 X 0.30 = 0.03 OPEN LAND = 0.65 -------------------------------- F.M.V. OF LAND TOTAL SALEABLE LAND = 1.28 TIME -------------------------------- = @ 1.28 X 1600 = @ RS.2046/M2 LESS DEVELOPMENT CHARGES (-) @ (180 + 50%) = @ RS.211/M2 1.28 -------------------------------------- NET F.M. RATE OF LAND = @ RS.1835/M2 F.M.V. OF LAND = 1835 X 2944.74 = RS.54,03,598/- (AREA OF LAND IS 2944.74 M2) SAY RS.54,03,600/- 15. THE D.V.O. IS CORRECT IN ESTIMATING THE VALUE O F THE PLOT AS PER THE BUILDING BYELAWS OF AGRA DEVELOPMENT AUTHORITY, AGRA BECAUSE THAT PLOT IS HAVING POTENTIALITY FOR CONSTRUCTING OF MANY FLOORS SUITAB LE FOR NURSING HOME, MULTI STOREY FLAT ETC. CERTAINLY, THESE ARE PART AND PAR CEL OF VALUATION OF THE PLOT. IN THE LIGHT OF THE FACT, WE DO NOT FIND ANY INFIRMITY IN THE VALUATION MADE BY THE D.V.O. IN ADDITION TO THE ABOVE FACTS, IT IS RELEVANT TO S TATE THAT WHEN THE A.O. FOUND THAT 14 ITA NO.119/AGRA/2013 A.Y. 2004-05 THE D.V.O. HAS DETERMINED THE VALUE OF THE PROPERTI ES WHICH IS MORE THAN THE VALUE DETERMINED BY THE STAMP VALUATION AUTHORITY, THE A. O. HAS RIGHTLY ADOPTED THE VALUE DETERMINED BY THE STAMP VALUATION AUTHORITY W HICH IS IN ACCORDANCE SECTION 50C(3) OF THE ACT. IN THE LIGHT OF THE FACT, THE C IT(A) HAS RIGHTLY APPRECIATED THE FACT AND HAS RIGHTLY CONFIRMED THE ACTION OF THE A. O. 16. AS REGARDS THE REFERENCE TO D.V.O, WE FIND THAT THIS ACTION HAS BEEN TAKEN BY THE A.O. ON THE DIRECTION OF THE I.T.A.T. ACTION TAKEN BY THE A.O. ON THE DIRECTION OF THE I.T.A.T. IS NOT INCORRECT RATHER IT IS IN AC CORDANCE WITH LAW. IN THE LIGHT OF DETAILED DISCUSSION MADE BY THE CIT(A) ON EACH AND EVERY ASPECT OF THE MATTER, WE ARE INCLINED TO UPHOLD THE ORDER OF CIT(A) . ORDER OF CIT(A) IS CONFIRMED, 17. IN THE RESULT, APPEAL OF THE ASSESSEE IS DISMIS SED. (ORDER PRONOUNCED IN THE OPEN COURT) SD/- SD/- (BHAVNESH SAINI) (A.L. GEHLOT) JUDICIAL MEMBER ACCOUNTANT MEMBER PBN/* COPY OF THE ORDER FORWARDED TO: APPELLANT/RESPONDENT/CIT (APPEALS) CONCERNED/CIT CO NCERNED/ D.R., ITAT, AGRA BENCH, AGRA/ GUARD FILE. BY ORDER SR. PRIVATE SECRETARY INCOME-TAX APPELLATE TRIBUNAL, AGRA TRUE COPY