LATE SHRI LAXMI NARAYAN SAIWAL, Jaipur V. ITO, Jaipur

ITA 1301/JPR/2010

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 74796 (ITAT-JAIPUR)
• Duration Of Justice: 3 year(s) 2 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-01-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2005-2006
• Appeal Filed On: 08-11-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: D C SHARMA
• Keywords: Opportunity of being heard; Fair market value
• Section: 2

Judgement Text

IN THE INCOME TAX APPELALTE TRIBUNAL : JAIPUR BENCH : JAIPUR BEFORE SHRI HARI OM MARATHA, JUDICIAL MEMBER AND SHRI N.K. SAINI, ACCOUNTANT MEMBER. ITA NO.1301/JP/2010 (A.Y. 2005-06) LATE SHRI LAXMI NARAYAN SAIWAL, VS. ITO, WARD 5( 4), THROUGH LEGAL HEIR SH. PREMRAJ SAIWAL, JAIPUR. 8A, UMA PATH, RAM NAGAR, SODALA, JAIPUR. PAN AQCPS 8055 M (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI P.C. PARWAL. DEPARTMENT BY : SHRI D.C. SHARMA - D.R. DATE OF HEARING : 20/01/2014. DATE OF PRONOUNCEMENT : 21/01/2014. O R D E R PER N.K.SAINI, A.M THIS IS AN APPEAL BY THE LEGAL HEIR OF THE DECEASE D-ASSESSEE AGAINST THE ORDER DATED 24/09/2008 OF THE LD. CIT(A)-II, JA IPUR. THE FOLLOWING GROUNDS HAVE BEEN RAISED IN THIS APPEAL:- 1. THE LD. COMMISSIONER OF INCOME TAX (APPEALS) HA S ERRED IN FACTS AND IN LAW IN COMPUTING LONG TERM CAPITAL GAIN AT RS. 3 6,38,160/- TAKING THE FAIR MARKET VALUE OF LAND AS ON 01/04/1981 AT R S. 200/- PER SQ. YARDS AS AGAINST RS. 1,400/- PER SQ. YARDS CLAIMED BY ASSESSEE. 2. THE LD. COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED IN FACTS AND IN LAW IN CONFIRMING THE ACTION OF AO OF ISSUING NO TICE OF DEMAND 2 ISSUED U/S 156 WITHOUT ASCERTAINING THE ESTATE OF D ECEASED WHICH IS CAPABLE OF MEETING THE TAX LIABILITIES U/S 159 AND WITHOUT SPECIFYING THE AMOUNT OF TAX RECOVERABLE FROM EACH OF LEGAL RE PRESENTATIVE. 3. THE ASSESSEE CRAVES TO AMEND, ALTER AND MODIFY A NY OF THE GROUNDS OF APPEAL. 4. NECESSARY COST BE ALLOWED TO THE ASSESSEE. 2 FROM THE ABOVE GROUNDS, IT IS GATHERED THAT THE ON LY GRIEVANCE OF THE ASSESSEE RELATES TO THE COMPUTATION OF LONG TER M CAPITAL GAIN. 3. THE FACTS OF THE CASE IN BRIEF ARE THAT THE DECEAS ED-ASSESSEE SOLD HIS HOUSE SITUATED AT F-32, GHIYA MARG, BANI PARK, JAIPUR AT RS. 50 LAC. THE SAID PROPERTY WAS VALUED BY THE SUB-REGISTRAR F OR THE PURPOSE OF STAMP DUTY AT RS. 50,07,792/-. THE ASSESSEE WORKED OUT THE LONG TERM CAPITAL GAIN AT RS. 4,006/- BY TAKING THE VALUE OF THE PROPERTY AS ON 01/04/1981 @ RS. 1,400/- PER SQ. YARD. THE AO, HOW EVER, ADOPTED THE FAIR MARKET VALUE AS ON 01/04/1981 AT RS. 187/- PER SQ. YARD ON THE BASIS OF COMPARABLE CASE OF SHRI GANGA SINGH TOMAR, WHO S OLD THE PROPERTY SITUATED AT D-81, GHIYA MARG, BANI PARK, JAIPUR ON 25/11/1981 @ 170 PER SQ. YARD. 4. BEING AGGRIEVED, THE ASSESSEE CARRIED THE MATTER TO THE LD. CIT(A), WHO DIRECTED THE AO TO ADOPT THE FAIR MARKET VALUE AS ON 01/04/1981 @ RS. 200/- PER SQ. YARD BY CONSIDERING THAT THE PROP ERTY, WHICH WAS SOLD BY 3 THE ASSESSEE WAS ON THE MAIN ROAD AND THE COMPARABL E CASE SITUATED AT D-81, GHIYA MARG, BANI PARK, JAIPUR WAS A DISPUTED PROPERTY. NOW, THE ASSESSEE IS IN APPEAL. 5. LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT NEITHE R THE AO NOR THE LD. CIT(A) CONSIDERED THE FACTS OF THE CASE IN RIGH T PERSPECTIVE BECAUSE THEY HAVE NOT CONSIDERED THE SALE INSTANCE OF THE P ROPERTY ADMEASURING 372.5 SQ.MTS. SITUATED AT BHAWANI SINGH ROAD, JAIPU R, WHICH WAS SOLD ON 24/10/1981 FOR A SUM OF RS. 5,50,000/- WITH A CONST RUCTION WHICH WAS INCOMPLETE. IT WAS CLAIMED THAT THE COPY OF SAID S ALE DEED WAS FURNISHED BEFORE THE AUTHORITIES BELOW. IT WAS STATED THAT T HE PROPERTY OF THE ASSESSEE SITUATED AT BANI PARK, JAIPUR, WAS HAVING THE BETTER LOCATION BECAUSE THIS LOCALITY IS PRIME RESIDENTIAL COLONY O F THE CITY OF JAIPUR AND THE ROADS ARE WIDE AS COMPARED TO THAT OF BHAWANI S INGH ROAD. IT WAS STATED THAT THE PLOT OF THE ASSESSEE WAS A CORNER P LOT HAVING RECTANGULAR SHAPE, THEREFORE, AT LEAST A MARK OF 20% SHOULD BE CONSIDERED OVER THE LAND SITUATED AT BHAWANI SING ROAD. A REFERENCE WA S MADE TO THE SALE DEED OF PROPERTY SITUATED AT BHAWANI SINGH ROAD, CO PY OF WHICH IS PLACED AT PAGE 66-74 OF THE ASSESSEES COMPILATION. 6 . IN HIS RIVAL SUBMISSIONS, LD. D.R. SUPPORTED THE ORDER OF THE LD. CIT(A) AND SUBMITTED THAT THE LD. CIT(A) AFTER CONS IDERING THE 4 COMPARABLE CASE OF THE SAME LOCALITY, HAS DIRECTED THE AO TO ADOPT THE VALUE OF THE ASSESSEES PLOT @ RS. 200/- PER SQ. YA RD. THEREFORE, THE ADDITION SUSTAINED WAS JUSTIFIED. 7 . WE HAVE CONSIDERED THE SUBMISSIONS OF THE BOTH T HE PARTIES AND CAREFULLY GONE THROUGH THE MATERIAL AVAILABLE ON TH E RECORD. IN THE PRESENT CASE, IT APPEARS THAT THE COMPARABLE CASE C ITED BY THE ASSESSEE WAS EITHER NOT BROUGHT TO THE NOTICE OF THE AUTHORI TIES BELOW OR DUE TO OVERSIGHT IT WAS NOT CONSIDERED BY THE AO/LD. CIT(A ). WE, THEREFORE, DEEM IT APPROPRIATE TO RESTORE THIS ISSUE BACK TO T HE FILE OF THE AO TO BE DECIDED AFRESH IN ACCORDANCE WITH LAW AFTER PROVIDI NG DUE AND REASONABLE OPPORTUNITY OF BEING HEARD. THE LEGAL HEIRS OF THE DECEASED-ASSESSEE ARE ALSO FREE TO ADDUCE ANY EVIDENCE IN SUPPORT OF THEI R CLAIM. 8. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSE. (ORDER PRONOUNCED IN THE COURT ON 21 ST JANUARY, 2014). SD/- SD/- (HARI OM MARATHA) (N.K.SAINI) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 21 ST JANUARY, 2014. VR/- 5 COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE LD.CIT 4. THE CIT(A) 5. THE D.R BY ORDER ASSISTANT REGISTRAR, ITAT, JAIPUR.