Smt. Premila M.Desai,HUF, Baroda V. The Income tax Officer,Ward-2(2), Baroda

ITA 1241/AHD/2012

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 94894 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 6 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-12-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Next Hearing Date: 03-12-2015
• Assessment Year: 2008-2009
• Appeal Filed On: 07-06-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Sale consideration of property below Jantri Value; Cost of acquisition; Fair market value; Valuation report

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD D BENCH AHMEDABAD BEFORE SHRI SHAILENDRA KUMAR YADAV, JUDICIAL MEMBER, AND SHRI RAJESH KUMAR, ACCOUNTANT MEMBER. ITA. NO.1241/AHD/2012 (ASSESSMENT YEAR:2008-09) SMT. PREMILA M. DESAI, HUF, 14/15, AKASHDEEP SOCIETY, MAKARPURA ROAD, BARODA APPELLANT VS. INCOME TAX OFFICER, WARD-2(2),BARODA RESPONDENT PAN: AAJHP9022Q /BY APPELLANT : NONE /BY RESPONDENT : MS. SANYOGITA NAGPAL, SR. D.R. /DATE OF HEARING : 03.12.2015 /DATE OF PRONOUNCEMENT : 11.12.2015 ORDER PER RAJESH KUMAR, A.M: THIS APPEAL FILED BY THE ASSESSEE IS AGAINST THE OR DER OF CIT(A)-I, BARODA, DATED 20.04.2012 FOR A.Y. 2008-09 ON FOLLOW ING GROUNDS: 2 ITA NO.1241 AHD 2012 (SMT. PREMILA M. DESAI, HUF V S. ITO) I. ON LEGALITY 1. THE ID. CIT(A)-1 , BARODA HAS ERRED BOTH IN LAW AND IN FACT IN INITIATING PENALTY PROCEEDINGS AND LEVYING PENALTY OF RS. 9,3 1,264 U/S. 271(L)(C ) OF THE ACT. 2. YOUR APPELLANT HAS NOT 'CONCEALED ANY INCOME' OR 'FURNISHED INACCURATE PARTICULARS OF SUCH INCOME' AND THAT THE DIFFERENCE IN COMPUTING INCOME AND ADDITION/ENHANCEMENT WAS ON FACTS OF THE CASE BEFORE THE ASSESSING OFFICER AND BEFORE CIT(A) AND THAT YOUR APPELLANT HAS NOT FAILED TO DECLARE WHOLLY AND FULLY THE CORRECT INCOME LIABLE TO BE TAXED. 3. THE SHOW CAUSE NOTICE ISSUED BY THE LD. CIT(A) IS BAD IN LAW AND VOID SINCE THE NOTICE IS NOT SPECIFIC AS TO WHETHER THE LD. CIT(A) HAS HAV E INITIATED PROCEEDINGS FOR 'CONCEALING PARTICULARS OF INCOME' OR FOR FURNISHING INACCURATE PARTICULARS OF SUCH INCOME.' YOUR APPELLANT SUBMITS THAT THE SHOW CAUSE NOTICE ISSUED BY THE ID. CIT(A ) IS VAGUE, UNCLEAR AND CAPABLE OF TWO VIEWS AS TO FOR WHICH ALLEGED OFFENCE HE WANTED TO LEVY PENALTY. 4. IT IS THEREFORE SUBMITTED THAT THE NOTICE BEING DEFECTIVE THE VE RY BASIS OF LEVY OF PENALTY U/S.271(L)(C) IS BAD IN LAW AND VOID AB INITIO. II. ON MERITS OF THE CASE. 1. THE CIT(A) HAS ERRED IN LEVYING PENALTY OF RS,9,31,264 U/S.271(L)(C) OF THE ACT ON ACCOUNT OF ENHANCED ADDITION TO LONG TERM CAPITAL GAIN OF RS.35,31,000/- IT IS SUBMITTED BY YOUR APPELLANT THAT THE LONG TERM CAPITAL GAIN WAS WORKED OUT AND DECLARED BY THE APPELLANT BASED ON VALUATION REPORT OF AUTHORIZED AND APPROVED VALUER AND NOT ACCEPTING THE SAME RESULTING INTO ANY DIFFERENCE IN WORKING OF LONG TERM CAPITAL GAIN AND/OR ITS ENHANCEMENT DOES NOT AMOUNT TO 'CONCEALMENT OF INCOME' OR 'FURNISHING IN ACCURATE PARTICULARS OF SUCH INCOME' AND PENALTY IS NOT LEVIABLE. 2. YOUR APPELLANT SUBMITS THAT BASED ON FACTS OF THE CASE AND VALUATION REPORT THE LAND AREA WAS CORRECTLY DECLARED BY THE APPELLANT WHICH WAS ALSO ACCEPTED BY THE ASSESSING OFFICER AND RECOMPUTING CAPITAL GAIN ON THE BASIS OF REDUCTION OF THE LAND DOES NOT AMOUNT TO 'CONCEALMENT OF INCOME' OR 'FURNISHING IN ACCURATE PARTICULARS OF SUCH INCOME' AND THEREFORE PENALTY IS NOT LEVIABLE. 3. IT IS FURTHER SUBMITS THAT THE DIFFERENCE IN COMPUTING CAPITAL GAIN W HICH HAS ARISEN ON ACCOUNT OF WITHHOLDING AMOUNTING BY THE HON. COURT ON ACCOUNT OF DISPUTE PENDING BEFORE VARIOUS COURTS DOES NOT AMOUNT TO 'CONCEALMENT OF INCOME OR 'FURNISHING INACCURATE PARTICULARS OF SUCH INCOME BY THE APPELLANT AND PENALTY CANNOT BE LEVIED ON ACCOUNT OF SUCH DIFFERENCE WITH HELD BY HON.COURT. 3 ITA NO.1241 AHD 2012 (SMT. PREMILA M. DESAI, HUF V S. ITO) 4. YOUR APPELLANT FURTHER SUBMITS THAT THE CIT(A) HAS ERRED IN LEVYING PENALTY ON ADDITION OF RS.3,85,8157- BEING AMOUNT OF INTEREST WHICH WAS INADVERTENTLY AND BY MISTAKE LEFT OUT BUT DECLARED SUO MOTO BEFORE CIT(A) DOES NOT AMOUNT TO 'CONCEALMENT OF INCOME' OR FURNISHING INACCURATE PARTICULARS OF SUCH INCOME'. THE AMOUNT OF INTEREST BEING RECEIVED/RECEIVABLE BY ORDER OF THE HON. COURT WAS ON RECORD OF GOVERNMENT AUTHORITIES AND NOT INCLUDING THE SAME IN RETURN OF INCOME BY OVERSIGHT/ INADVERTENCE DOES NOT AMOUNT TO 'CONCEALMENT OF INCOME' OR 'FURNISHING INACCURATE PARTICULARS OF SUCH INCOME' AND THEREFORE PENALTY CANNOT BE LEVIED ON DEDUCTION OF INTEREST OF RS.3,85,8157-. 5. WITHOUT PREJUDICE TO ABOVE IT IS ALSO SUBMITTED THAT THE PENALTY OF RS.9,31,264 IS NOT CORRECTLY WORKED OUT ON FACTS OF THE CASE AND AS PER PROVISIONS OF LAW AND SUITABLE AMENDMENT TO IT IS CALLED FOR. IT IS THEREFORE SUBMITTED THAT RELIEFS CLAIMED ABOVE BE ALLOWED AND THE ORDER OF THE COMM. OF INCOME TAX (APPEALS) BE MODIFIED ACCORDINGLY. YOUR APPELLANT RESERVES RIGHT TO ADD, ALTER OR AMEND ANY OR ALL GROUNDS OF APPEAL. 2. THE COMMON ISSUE RAISED IN ALL GROUND OF APPEAL IS AGAINST THE CONFIRMATION OF PENALTY OF RS.9,31,264/- U/S.271(1) (C) BY CIT(A). 2.1 ON THE APPOINTED DATE OF HEARING, NEITHER THE ASSESSEE NOR HIS AUTHORIZED REPRESENTATIVE APPEARED TO ATTEND THE HE ARING. HOWEVER, A LETTER DATED 23.11.2015 FROM THE ASSESSEE WAS PLACED BEFOR E US WHEREIN IT HAS BEEN REQUESTED THAT QUANTUM APPEAL, ON THE BASIS OF WHIC H THE PENALTY WAS LEVIED U/S.271(1)(C), HAS BEEN DECIDED IN HIS FAVOUR VIDE ITA NO.04/AHD/2012 ON 21.09.2012, A COPY OF WHICH IS ENCLOSED AND IT WAS REQUESTED TO DISPOSE OF THE PRESENT APPEAL IN THE LIGHT OF SAID ORDER OF TH E TRIBUNAL. THEREFORE, THE APPEAL OF THE ASSESSEE IS BEING DISPOSED OF AFTER C ONSIDERING THE SAID LETTER AND HEARING THE LD. D.R. 3. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSE E FILED ITS RETURN OF INCOME AT RS.2,79,420/- AND LONG TERM CAPITAL LOSS OF RS.3,19,68,561/- IN 4 ITA NO.1241 AHD 2012 (SMT. PREMILA M. DESAI, HUF V S. ITO) RESPECT OF LAND ADMEASURING 1,22,718 SQ.MTR. ACQUIR ED BY THE STATE GOVERNMENT FOR SRP CAMP. DURING THE ASSESSMENT PRO CEEDINGS, THE ASSESSEE VIDE LETTER DATED 19.11.2010 STATED THAT T HERE WAS A MISTAKE IN THE CALCULATION OF LONG TERM CAPITAL LOSS. THE ASSESSE E SUBMITTED THAT ITS SHARE IN THE SAID LAND WAS 18.10% I.E. RS.5,99,68,115/- OUT OF TOTAL COMPENSATION/SALE CONSIDERATION OF RS.33,33,15,552/- AND ADVANCE OF R S.4,21,51,688/- WAS RECEIVED DURING THE YEAR RESULTING IN THE TAXABLE L ONG TERM CAPITAL GAIN OF RS.61,92,670/- WHICH WAS OFFERED FOR TAX. THE A.O. OBSERVED THAT OUT OF COMPENSATION OF RS.33,33,15,552/- AWARDED BY LAND A CQUISITION OFFICER THROUGH ORDER DATED 11.12.2008 ADVANCE PAYMENT OF R S.23,48,82,252/- WAS RECEIVED IN WHICH THE ASSESSEES SHARE WAS 18% I.E. RS.4,25,13,688/-. THUS, THE A.O. ADOPTED THE SALE CONSIDERATION VALUE AT TH IS AMOUNT. THE ASSESSEE FILED VALUATION REPORT DATED 03.12.2008 IN RESPECT OF COST OF ACQUISITION AS ON 01.04.1981 IN WHICH THE COST OF LAND WAS TAKEN AT R S.293.81 PER SQ. MTR. THE A.O. REJECTED THE SAID VALUATION REPORT BY STATING THAT THE COMPARABLE INSTANCES QUOTED BY REGISTERED VALUER WERE RELATED TO THE PERIOD WHICH FELL AFTER 01.04.1981. THUS, A.O. SOUGHT INFORMATION FR OM THE SUB-REGISTRAR WHO SUBMITTED COPY OF REGISTERED DOCUMENT IN RESPECT OF SALE ON 06.02.1981 OF 446 SQ. MTR. LAND IN R.S. NO.334 FOR RS.38,400/-. T HE A.O. ADOPTED THE RATE OF RS.86.10 PER SQ.MTR. FOR DETERMINING THE FAIR MA RKET VALUE OF ASSESSEES LAND AS ON 01.04.1981 THEREBY CALCULATING THE INDEX ED VALUE OF THE LAND AT RS.1,05,37,597/- AND CALCULATED THE TAXABLE LONG TE RM CAPITAL GAIN AT RS.3,19,76,019/-. 4. THE MATTER WAS TAKEN TO CIT(A) WHO ENHANCED THE ASSESSMENT BY RS.35,31,000/- BY TAKING SHARE OF COST OF LAND AT 1 8.10% INSTEAD OF 12.65% FOR THE PURPOSE OF COMPUTING THE LONG TERM CAPITAL GAIN AND ALSO ADDED RS.3,85,815/- AS INTEREST ON ACCOUNT OF DELAY IN PA YMENT OF AWARD, WHICH WAS NOT INCLUDED IN THE RETURN OF INCOME AND ASSESSED T HE SAME AS INCOME FROM 5 ITA NO.1241 AHD 2012 (SMT. PREMILA M. DESAI, HUF V S. ITO) OTHER SOURCES AND ALSO LEVIED PENALTY U/S.271(1)(C) ON THE ENHANCED ASSESSMENT AT RS.9,31,264/- BY HOLDING THAT THE ASS ESSEE FURNISHED INACCURATE PARTICULARS OF INCOME AND ALSO CONCEALED THE INCOME . 5. THE LD. D.R. DID NOT RAISE ANY OBJECTION TO THE CONTENTS OF THE LETTER FILED BY THE ASSESSEE. 6. WE HAVE HEARD THE LD. D.R. AND PERUSED THE MATER IAL ON RECORD INCLUDING THE LETTER DATED 23.11.2015 FILED BY THE ASSESSEE. WE FIND THAT THE QUANTUM ADDITION ON THE BASIS OF WHICH THE PENALTY U/S.271(1)(C) WAS LEVIED HAS BEEN DELETED BY THE TRIBUNAL VIDE ORDER DATED 2 1.09.2012 IN ITA NO.04/AHD/2012, A.Y. 2008-09. THE RELEVANT PARA NO .8 OF THE SAID ORDER IS REPRODUCED BELOW: 8. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS, PERUSED THE MATERIAL ON RECOR D AND HAVE GONE THROUGH THE ORDERS OF AUTHORITIES BELOW. WE FIND THAT THERE ARE THREE ASPECTS TO BE DECIDED BY US. THE FIRST ASPECT IS REGARDING FAIR MARKET VALUE AS ON 01.04.1981 OF THE ASSESSEE'S LAND. IN 5 I.T.A.NO04./AHD/2012 THIS REGARD, THE CLAIM OF THE ASSESSEE IS THAT THE RATES ADOPTED BY THE REGISTERED VALUER S HOULD BE APPLIED AND NOT THE RATES ADOPTED BY THE A.O. ON THE BASIS OF SINGLE INSTANCE OF A LAND WHICH IS SITUATED AT FAR AWAY PLACE. THE SECOND ASPECT IS WHETHER THE QU ANTITY OF LAND REDUCED BY LD. CIT(A) TO THE EXTENT OF 10% FOR COMMON PLOT AND 25% FOR INTERNAL ROADS/OTHER DEVELOPMENT COST IS JUSTIFIED OR NOT. THE 3RD ASPECT I S WHETHER THE COST OF ACQUISITION AS ON 01.04.1981 OF THE ASSESSEE SHOULD BE 18.10% OF THE TOTAL COST BEING THE SHARE OF THE ASSESSEE IN THE TOTAL LAND OR WHETHER I T SHOULD BE ONLY 12.65% OF THE TOTAL COST AS HAS BEEN ADOPTED BY LD. CIT(A) ON THE BASIS OF NET SALE VALUE OF THE ASSESSEE OF RS.421.52 LACS COMPARED TO RS.3333.16 LACS BEING THE TOTAL SALE VALUE. - REGARDING THE FIRST ASPECT AS TO WHAT IS THE FAIR MARKET VALUE OF THE LAND AS ON 01.04.1981, WE FIND THAT THE REGISTERED VALUER HAD APPLIED THE RATE OF RS.295.81 PER SQ. MTR. ON THE BASIS OF AVERAGE RATE OF 4 DIFFERENT PLOTS OF LAND. THE A .O. HAS APPLIED THE RATE OF RS.86.10 PER SQ. MTR. ON THE BASIS OF A SINGLE SALE INSTANCE COLLECTED FORM SUB-REGISTRAR OFFICE BY THE A.O. LD. CIT(A) HAS ADOPT ED THE RATES OF RS.156.50 PER SQ. MTR BY IGNORING TWO SALES INSTANCES ADOPTED BY THE REGISTERE D VALUER I.E. OF RS.538.20 PER SQ. MTR. BEING THE FIRST SALE INSTANCE AND RS.253.60 PE R SQ. MTR. BEING THE 3RD SALE INSTANCE. THESE TWO SALES INSTANCES WERE I GNORED BY THE LD. CIT(A) ON THIS BASIS THAT IN BOTH THESE CASES, OPEN PLOT OF LAND WAS NOT SOLD BUT PARTIALLY CONSTRUCTED AREA WAS SOLD AND IF THE SAID RATE IS ADOPTED AFTER RE DUCING THE COST OF CONSTRUCTION ALREADY MADE BEFORE SALE THEN IT WILL BE VERY LOW IN THE 6 ITA NO.1241 AHD 2012 (SMT. PREMILA M. DESAI, HUF V S. ITO) CASE OF 1ST INSTANCE AND 3RD INSTANCE. FOR 3RD SALES INSTANCE, IT IS ALSO NOTED BY LD. CIT(A) THAT THE DATE OF SALE IS AUGUST 1982 BEING MORE THAN ONE YEAR AFTER T HE DATE OF 01.04.1981. HE HAS IGNORED THESE TWO SALES INSTANCES ADOPTED BY THE REGISTERED VALUER AND BY TAKING AVERAGE SALE PRICE OF THE REMAINING TWO SALES INSTANCE S ADOPTED BY THE REGISTERED VALUER AND THE ONE SALE INSTANCE ADOPTED BY THE 6 I.T.A.NO04./AHD/2012 A.O., HE HAS WORKED OUT AVERAGE MARKET VALUE OF THE LAND AS ON 01.04.1981 AT RS.156.50 PER SQ. MTR. BEFORE US, IT WAS SUBMITTED THAT WHEN THE ASSESSEE HAS SUBMITTED A REPORT OF REGISTERED VALUER, THE SAME CANNOT BE IGNORED OR VARIED OR SUBSTITUTED WITHOUT OBTAINING VALUATION REPORT FORM DVO. IN SUPPORT OF THIS CONTENTION, RELIANCE WAS PLACED ON THE TRIBUNAL DECISION RENDERED IN T HE CASE OF SHRI RAJENDRA H SETH VS ACIT IN I.T.A.NO. 1495/AHD/2007 DATED 11.11.2011 AND IN PARTICULAR, OUR ATTENTION WAS DRAWN TO PARA 10.1 OF THIS TRIBUNAL ORDER WHICH HAS BEEN REPRODUCED BY THE ASSESSEE IN THE WRITTEN SUBMISSION. WE FIND THAT ADMITTEDLY, NO REPORT OF THE DVO WAS OBTAINED AND THE A.O. OBTAINED ONE SALE INSTANCE FROM SUB-REGISTRAR OFFICE BUT REGARDING THIS S ALE INSTANCE, IT IS THE SUBMISSION OF THE ASSESSEE BEFORE US THAT THIS S ALE INSTANCE IS OF A FAR AWAY PLACE WHEREAS, THE SALE INSTANCE NOTED BY THE REGISTERED VALUER IS NEARER TO THE LAND IN QUESTION. THIS CONTENTION OF THE LD. A.R. COULD NOT BE CONTROVERTE D BY THE LD. D.R. AND HENCE, IN OUR OPINION, THIS SALE INSTANCE OBTAINED BY THE A.O. FROM SUB-REGISTRAR OFFICE CANNOT BE ADOPTED BECAUSE IT IS RELATED TO A L AND SITUATED AT FAR AWAY PLACE AND MOREOVER, WHEN THE ASSESSEE HAS SUBMITTED THE REPOR T OF THE REGISTERED VALUER, THE SAME CANNOT BE IGNORED OR SUBSTITUTED WITHOUT OBTAINI NG THE REPORT OF A TECHNICAL PERSON VIZ. DVO OR SOME OTHER TECHNICAL EXPERT. T HE TRIBUNAL ORDER CITED BY THE LD. A.R. RENDERED IN THE CASE OF RAJENDRA H SETH (S UPRA) SUPPORTS THE ASSESSEE ON THIS ASPECT. RELEVANT PARA OF THIS TRIBUNAL ORDER I .E. PARA 10.1 IS REPRODUCED BELOW: '10.1. AS REGARDS VALUATION OF FLAT AS ON 1.4.1981, THE ADMITTED FACTS OF THE CASE ARE THAT THE VALUE DECLARED BY THE ASSESSEE IS SUPPORTED BY VALUATION REPOR T OF A REGISTERED VALUER. THE A.O. HAS TAKEN A DIFFERENT VALUATION WITHOUT OBTAINING VALUATION REPORT FROM THE DVO. THE AO HAS TAKEN VALUE AS ON 1.4.1981 ON OTHER BASIS. WE ARE OF THE VIEW THAT ASSESSEE'S VALUATION AS ON 1.04.1981 IS SUPPORTED BY VALUATION BY A TECHNICAL PERSON IE. REPORT OF REGISTERED VALUER AND CONTRARY T O THAT NO SUCH MATERIAL OR 7 I.T.A.NO04./AHD/2012 DEPARTMENTAL VALUATION REPORT IS AVAILABLE ON RECORD. MERELY ON THE BASIS OF OTHER GENERAL ENQUIRIES THE VALUAT ION DECLARED BY THE REGISTERED VALUER CANNOT BE SUBSTITUTED. WE THEREFORE SE T ASIDE THE ORDERS OF REVENUE AUTHORITIES ON THIS ISSUE AND DIRECT THE AO TO ADOPT THE VALUATION OF THE FLATS AS ON 1.4.1981 AS DECLARED BY THE ASSESSEE.' REFERENCE IS ALSO INVITED TO DECISION OF ITAT IN ITO VS SMT US HA RAMESH 133 1TD 67 (CHENNAI) (TM) BUT SINCE IN THE CASE OF APPELLANT, REGISTERED VALUER'S REPORT WAS FURNISHED, THERE WAS NO JUSTIFICATION IN RELYING ON IRRELEVANT SALE I NSTANCES FROM SUB- REGISTRAR'S OFFICE AND THEREBY REJECTING THE VALUE AS ON 1ST APRIL, 1981 COMPUTED BY REGISTERED VALUER.' - REGARDING THE ACTION OF LD. CIT(A) OF EXCLUDING TWO SALE INSTANCES ADOPT ED BY THE REGISTERED VALUER ON THIS BASIS THAT THESE SALE INSTANCES ARE IN RESPECT OF PARTLY CONSTRUCTED PLOT, WE ARE OF THE CONSIDERED OPINION THAT GENERALLY, NO BUYER PAY ANY PRICE FOR A PART CONSTRUCTION ON A PLOT UNLESS IT IS SEEN THAT SUCH PART CONS TRUCTION IS USEFUL TO THE BUYER BECAUSE IF THE PART CONSTRUCTION IS NOT USEFUL TO THE BUYER AND HE WANTS TO CONSTRUCT AS PER HIS OWN DESIGN AND REQUIREMENT THEN SUCH PART CONSTRUCTION BUILT BY THE SELLER IS OF NO VALUE TO THE BUYER AND GENERALLY , HE DOES 7 ITA NO.1241 AHD 2012 (SMT. PREMILA M. DESAI, HUF V S. ITO) NOT PAY ANY PRICE FOR THE SAME BECAUSE IN SUCH A CASE, HE HAS TO DEMOLIS H SUCH PART CONSTRUCTION AND REBUILD THE WHOLE THING AND THIS IS NOT BROUGHT ON RECORD BY THE AUTHORITIES BELOW OR BY LD. D.R. THAT SUCH PART CONSTRUCTION WAS USEFUL TO THE BUYER AND THE VALUE OF THE SAME WAS CONSIDERED FOR THE VALUATION OF THE PROPE RTY IN THOSE TWO INSTANCES. IN THE ABSENCE OF ANY SUCH FINDING ON THIS ASPECT, THE ORDE R OF LD. CIT(A) TO IGNORE THOSE TWO SALE INSTANCES IS NOT PROPER. REGARDING THE ACTION OF LD. CIT(A) ALSO, THE SAME TRIBUNAL DECISION RENDERED IN THE CASE OF RAJ ENDRA H SETH (SUPRA), SUPPORTS THE CASE OF THE ASSESSEE BECAUSE AS PER THIS TR IBUNAL DECISION, THE REPORT OF REGISTERED VALUER BEING A TECHNICAL PERSON, CANNOT BE SUBSTITUTED WITHOUT OBTAINING ANY DVO'S REPORT OR ANY OTHER REPORT OF A TECHNI CAL PERSON. IN THE PRESENT CASE, NO SUCH REPORT OF ANY TECHNICAL PERSON HAS 8 I.T.A.NO04./AHD/2012 BEEN OBTAINED BY THE AUTHORITIES BELOW AND, THEREFORE, FOR THIS REASON ALSO, THE ACTION OF LD. CIT(A) CANNOT BE SUSTAINED. UNDER THESE FACTS, WE ARE OF THE CONSIDERED OPINION THAT THE FAIR MARKET VALUE OF THE PROPER TY IN QUESTION AS ON 01.04.1981 AS DECLARED BY THE ASSESSEE ON THE BASIS OF A REPORT OF THE REGISTERED VALUER, CANNOT BE DISTURBED AND THE SAME HAS TO BE ACCEPTED. WE HOLD ACCORDINGLY. THE FIRST ASPECT IS DECIDED IN FAVOUR OF THE ASSESSEE. - THE 2ND ASPECT IS THIS THAT WHILE WORKING OUT THE FAIR MARKET VALUE OF THE LAND IN QUESTION, IT IS HELD BY LD. CIT(A) THAT SINCE IT IS A BIG PLOT, REDUCTION HAS TO BE MADE IN THE AREA OF THE LAND TO THE EXTENT OF 10% ON ACCOUNT OF COMMON PLOT AND 25% FOR INTERNAL ROADS/OTHER DEVELOPMENT CHARGES. IN THIS REGARD, WE FEEL T HAT AS PER SECTION 50C, IF THE VALUE AS PER STAMP VALUATION AUTHORITY IS HIGHER, THE SAME SHOULD BE ADOPTED. NOW, THE STAMP DUTY RATE FOR A BIG AND SMALL PLOT IS NOT DIFFERENT. HENCE, IN OUR CONSIDERED OPINION, THE ADJUSTMENT MADE BY LD. CIT(A) BY REDUCING LAND AREA TO THE EXTENT OF 35% IS NOT JUSTIFIED. WE REVERSE THE SAME. - THE 3RD ASPECT IS THIS THAT IT IS ADMITTED POSITION OF FACTS THAT THE ASSESSEE WAS HAVING 18.10% SHARE IN THE LAND IN QUESTION AND THE ENTIRE LAND WAS ACQUIRED BY THE STATE GOVERNMENT FOR SRP CAMP AND THE TOTAL CONSIDERATION WAS WORKED OUT FOR 18.10% SHARE OF THE ASSESSEE TO THE EXTENT OF RS.5,99,68,115/-. FROM THIS AMOUNT, THERE WAS DEDUCTION MADE OF RS.1,78,16,427/- ON ACCOUNT OF DISPUTED AMOUNT AND THE NET SALE VALUE OF THE PLOT OF THE ASSESSEE WAS ADOPTED AT RS.4,21,51,688/-TO THIS EXTENT, THERE IS NO DISPUTE. THE DISPUTE IS THIS THAT IT IS ADOPTED BY THE LD. CIT(A) THAT SINCE THE SHARE OF THE ASSESSEE IN THE T OTAL SALE VALUE WORKS OUT TO RS.4,21,51,688/- ONLY, WHICH IS ONLY 12.65% OF THE TOTAL SALE VALUE OF THE PLOT IN QUESTION AT RS.33,33,15,552/-, ONLY 12.65% OF THE TOTAL FAIR MARKET VALUE OF THE PROPERTY AS ON 01.04.1981 SHOULD BE CONSIDERED FOR 9 I.T.A.NO04./AHD/2012 THE PURPOSE OF WORKING OUT CAPITAL GAIN IN THE HANDS OF THE ASSESSEE. WE DO NOT FIND ANY MERIT IN THIS VIEW OF LD. CIT(A) BECAUSE THIS IS NOT IN DISPUTE THAT ENTIRE LAND HAD BEEN SOLD OUT AND THE CONSIDERATION RECEIVED BY THE ASSESSEE IS FOR THE ENTIRE LAND AND IT IS NOT THE FACT THAT ONLY A PORT ION OF LAND WAS ACQUIRED AND SOME PORTION OF LAND IS STILL OWNED BY THE ASSESSEE. HENCE, IN OUR CONSIDERED OPINION, THE ENTIRE SHARE OF THE ASSESSEE IN THE FAIR MARKET VALUE OF THE LAND TO THE EXTENT OF 18.10% SHOULD BE CONSIDERED FOR WORKING OUT THE CAPITAL GAIN OF THE ASSESSEE AND AS AND WHEN THE ASSESSEE RECEIVES ANY AMOUNT OUT OF TH E DISPUTE AMOUNT OF RS.1,78,16,427/-, IN THAT EVENT, SUCH ACTUAL RECEIPT SHOULD BE BROUGHT TO TAX IN ITS TOTALITY WITHOUT ANY REDUCTION ON ACCOUNT OF INDEXED COST OF ACQUISITION BUT IN THE PRESENT YEAR, THE COST OF ACQUISITION CANNOT BE REDUCE D. WE HOLD ACCORDINGLY. 8 ITA NO.1241 AHD 2012 (SMT. PREMILA M. DESAI, HUF V S. ITO) SINCE THE TRIBUNAL HAD DELETED THE QUANTUM ADDITION , CONSEQUENTLY, WE DELETE THE PENALTY OF RS.9,31,264/-. THE A.O. IS DIRECTED ACCORDINGLY. 7. IN THE RESULT, THE APPEAL OF ASSESSEE IS ALLOWED . PRONOUNCED IN THE OPEN COURT ON THIS THE 11 TH DAY OF DECEMBER, 2015. SD/- SD/- (SHAILENDRA KUMAR YADAV) (RAJESH KUMAR) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD: DATED 11/12/2015 TRUE COPY S K SINHA / COPY OF ORDER FORWARDED TO:- / REVENUE 2 / ASSESSEE $ %&%'( ) / CONCERNED CIT 4 )- / CIT (A) , -./ 00'(1 '( 1 23& / DR, ITAT, AHMEDABAD 4 /56 78 / GUARD FILE. BY ORDER / 1 / 2 % '( 1 23&