Shri Randheer V. Nahar, Pune V. ITO Ward-3(1), Pune, Pune

ITA 159/PUN/2011

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 2642 (ITAT-PUNE)
• Duration Of Justice: 5 year(s) 1 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-03-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 15-02-2016
• Assessment Year: 2006-2007
• Appeal Filed On: 04-02-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MANISH KUMAR SINGH
• Keywords: Sale consideration of property below Jantri Value; Capital asset; Depreciation; Additional evidence; Fair market value
• Section: 50C; 37

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B, PUNE . . , ! , # $ BEFORE SHRI R.K. PANDA, AM AND SHRI VIKAS AWASTHY, JM . / ITA NO.159/PN/2011 #& & / ASSESSMENT YEAR : 2006-07 SHRI RANDHEER V. NAHAR, 1202/3/20, SHIVAJINAGAR, PUNE 411 004 PAN NO.AGWPN2549J . / APPELLANT V/S ITO, WARD-3(1), PUNE . / RESPONDENT / ASSESSEE BY : WRITTEN SUBMISSION / REVENUE BY : SHRI MANISH KUMAR SINGH / ORDER PER R.K. PANDA, AM : THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER DATED 18-12-2014 OF THE CIT(A)-II, PUNE RELATING T O ASSESSMENT YEAR 2006-07. 2. THIS APPEAL WAS EARLIER DECIDED BY THE TRIBUNAL VIDE ORD ER DATED 18-2-2014. SUBSEQUENTLY, THE TRIBUNAL VIDE ORDER DATED 06-12-2015 RECALLED THE ORDER. THEREFORE, THIS IS A RECALLE D MATTER. / DATE OF HEARING :16.02.2016 / DATE OF PRONOUNCEMENT:04.03.2016 2 ITA NO.159/PN/2011 3. FACTS OF THE CASE, IN BRIEF, ARE THAT THE ASSESSEE IS A N INDIVIDUAL AND FILED HIS RETURN OF INCOME ON 30-03-2007 DECLA RING TOTAL INCOME OF RS.2,05,961/-. DURING THE COURSE OF ASSESSM ENT PROCEEDINGS, THE AO NOTED THAT ASSESSEE IN HIS RETURN O F INCOME HAS DECLARED INCOME FROM BUSINESS, LONG TERM CAPITAL GAIN AN D OTHER SOURCES. FROM THE COMPUTATION STATEMENT, THE AO NOTED THAT THE ASSESSEE HAS CALCULATED THE LONG TERM CAPITAL GAIN AT RS.1,37,471/- ON ACCOUNT OF SALE OF LAND AT SURVEY NO.211, VILLAGE MAVAL, TALUKA MULSHI BY ADOPTING THE SALE CONSIDERATION AT RS.1,07,00,000/-. FROM THE SALE DEED DATED 27-08-2005, TH E AO NOTED THAT ALTHOUGH THE SALE CONSIDERATION RECEIVED HAS BEEN SHOWN AT RS.1,07,00,000, HOWEVER, THE VALUE ADOPTED BY THE STAMP VALUATION AUTHORITY IN RESPECT OF THE SAID CAPITAL A SSET IS RS.1,19,30,000/-. HE, THEREFORE, ASKED THE ASSESSEE TO EXP LAIN AS TO WHY THE PROVISIONS OF SECTION 50C SHALL NOT BE APPLIED. THE ASSESSEE VIDE LETTER DATED 30-03-2007 MADE AN APPLICATION TO REFE R THE VALUATION OF THE CAPITAL ASSET TO THE VALUATION OFFICER. THE AO FURTHER NOTED FROM THE DETAILS FILED BY THE ASSESSEE THAT THE VALUE ADOPTED BY THE STAMP VALUATION AUTHORITY AT RS.1,19,30,500 /- IN RESPECT OF THE SAID CAPITAL ASSET HAS BEEN DISPUTED BY THE ASSESSEE BEFORE THE COLLECTOR OF STAMPS, PUNE (RURAL) AND THE COLLECT OR HAS UPHELD THE VALUE OF THE CAPITAL ASSET FOR STAMP DUTY PUR POSE AT RS.1,19,30,500/-. THE AO, THEREFORE, HELD THAT THE DEPARTME NT IS NOT OBLIGED TO REFER THE VALUATION OF THE CAPITAL ASSET TO THE VALUATION OFFICER IN VIEW OF PROVISIONS OF SECTION 50C(2) OF THE I.T. ACT. THE ASSESSEE REITERATED THAT THE MATTER SHOULD BE REFERRED TO THE VALUATION OFFICER UNDER THE PROVISIONS OF SECTION 50C. 3 ITA NO.159/PN/2011 4. HOWEVER, THE AO REJECTED THE CONTENTION OF THE ASSE SSEE ON THE GROUND THAT ALTHOUGH THE MARKET VALUE OF THE PROP ERTY AS PER STAMP DUTY AUTHORITY WAS RS.1,70,00,000/-, THE COLLECTOR FOR ADJUDICATION AT THE INSTANCE OF THE ASSESSEE HAS REDUC ED THE VALUE BY 30% AND HAS DETERMINED THE VALUE OF RS.1,19,35,000/-. S INCE THE MATTER WAS ALREADY REFERRED TO THE COLLECTOR WHO I S AN AUTHORITY HIGHER THAN THE SUB REGISTRAR, THEREFORE, THE A O HELD THAT THERE IS NO NEED TO REFER THE MATTER TO THE DVO FOR VALUATION OF THE PROPERTY. THE AO ACCORDINGLY DETERMINED THE LONG TERM CAPITAL GAIN AT RS.1,09,43,736/-. AFTER ALLOWING FOR INVESTMENT U/S.54F ON ACCOUNT OF PURCHASE OF A FLAT AT RS.3,57,576/- A ND DEDUCTION U/S.54EC ON ACCOUNT OF INVESTMENT IN NABARD BO NDS, THE AO DETERMINED THE LONG TERM CAPITAL GAIN AT RS.13,67,971/-. 5. THE AO FURTHER NOTED FROM THE COMPUTATION OF INCOME T HAT THE ASSESSEE HAS CLAIMED SHORT TERM CAPITAL LOSS IN RESP ECT OF A SHED AT WAKAD WHICH IS AS UNDER : OPENING WDV OF SHED AT WAKAD RS.4,37,677/- LESS : SALE PRICE RS.2,55,000/- ---------------- SHORT TERM CAPITAL LOSS RS.1,82,677/- ---------------- THIS LOSS HAS BEEN SET OFF AGAINST LONG TERM CAPITAL GAIN ON SALE OF LAND. FROM THE DETAILS FURNISHED BY THE ASSESSEE, THE AO NOTED THAT THE ASSESSEE HAS SHOWN THE VALUE OF THE SHED AT RS.60,000/- AND THE SAME HAS BEEN REFLECTED IN THE BLOCK OF FIXED ASS ETS ON WHICH DEPRECIATION HAS BEEN CLAIMED. THE WDV OF THE ASSET AS ON 31-03-2005 WAS RS.51,300/-. THE AO AFTER DEDUCTING THE WDV OF RS.51,300/- FROM THE SALE PROCEED OF RS.2,55,000/- DETERMINE D THE SHORT TERM CAPITAL GAIN ON SALE OF SAME AT RS.2,03,700/-. 4 ITA NO.159/PN/2011 6. THE ASSESSEE CARRIED THE MATTER BEFORE THE CIT(A). S O FAR AS DETERMINATION OF SHORT TERM CAPITAL GAIN ON SALE OF SHED IS CONCERNED THE LD.CIT(A) DISMISSED THE GROUND RAISED BY TH E ASSESSEE ON THIS ISSUE IN ABSENCE OF ANY SUBMISSION BEFORE HIM. 7. SO FAR AS DETERMINATION OF LONG TERM CAPITAL GAIN AT RS.3,67,971/- IS CONCERNED HE UPHELD THE ACTION OF THE AO BY OBSERVING AS UNDER: 4.4 I HAVE CONSIDERED THE SUBMISSIONS OF THE APPELLANT AND MATERIAL AVAILABLE ON RECORD, SECTION 50C(2) OF THE I.T. ACT IS BEING REPRODUCED BELOW: '(2) WITHOUT PREJUDICE TO THE PROVISIONS OF SUB-SECTIO N (1), WHERE - (A) THE ASSESSEE CLAIMS BEFORE ANY ASSESSING OFFICER THAT T HE VALUE ADOPTED OR ASSESSED BY THE STAMP VALUATION AUTHOR ITY UNDER SUB- SECTION (1) EXCEEDS THE FAIR MARKET VALUE O F THE PROPERTY AS ON THE DATE OF TRANSFER,' (B) THE VALUE SO ADOPTED OR ASSESSED BY THE STAMP VALUAT ION AUTHORITY UNDER SUB-SECTION (1) HAS NOT BEEN DISPUTED IN ANY APPEAL OR REVISION OR NO REFERENCE HAS BEEN MADE BEFO RE ANY OTHER AUTHORITY, COURT OR THE HIGH COURT. THE A 0. MAY REFER THE VALUATION OF THE CAPITAL ASSET TO A VALUATION OFFICER AND WHERE ANY SUCH REFERENCE IS MAD E, THE PROVISIONS OF SUB-SECTIONS (2), (3), (4), (5) AND (6) OF SECTION 16A, CLAUSE (I) OF SUB-SECTION (1) AND SUB-SECTIONS (6) AND (7) OF SECTION 23A, SUB-SECTION (5) OF SECTION 24, SECTION 3 4AA, SECTION 35 AND SECTION 37 OF THE WEALTH-TAX ACT, 1957 (27 OF 1957), SHALL, WITH NECESSARY MODIFICATIONS, APPLY IN RE LATION TO SUCH REFERENCE AS THEY APPLY IN RELATION TO REFERENCE MADE BY THE ASSESSING OFFICER UNDER SUB-SECTION (1) OF SECTION 16A OF THAT ACT.' THEREFORE, THE CONDITION U/S 50C(2)(B) OF THE ACT, I S THAT THE VALUE ADOPTED OR ASSESSED BY THE STAMP VALUATION AUTHORITY SHO ULD NOT HAVE BEEN DISPUTED IN APPEAL / REVISION; AND NO REFERENCE SHOULD HAVE BEEN MADE BEFORE ANY AUTHORITY, COURT OR HIGH COURT. THE MAIN ISSUE OF DISPUTE IS WHETHER ADJUDICATION MADE BY THE CO LLECTOR OF STAMPS WAS OF THE NATURE OF APPEAL OR REVISION OR IT COULD BE TREATED AS A REFERENCE TO ANY AUTHORITY. IN THIS CASE THE ACTU AL MARKET VALUE AS PER 'READY RECKONER' TAKEN OUT BY THE STATE GOVERNM ENT FOR STAMPS DUTY PURPOSE WAS RS. 1,70,00,000/-. SINCE THE APPELLAN T WAS NOT AGREEABLE TO THIS VALUATION, REFERENCE WAS MADE TO TH E COLLECTOR OF STAMPS FOR ADJUDICATION, WHO VIDE ORDER NO. 440/545/ 06 DATED 27.02.2006 HAS RECOMPUTED THE VALUE OF CAPITAL ASSET F OR THE PURPOSE 5 ITA NO.159/PN/2011 OF STAMP DUTY AT RS. 1,19,30,500/-. FROM THE COPY OF BOMBAY STAMP ACT, FURNISHED BY THE APPELLANT IT IS CLEAR THAT THE ADJUDICATION U/S 31 WAS DIFFERENT THAN APPEAL 1 REVISION WHICH COULD HAVE BEEN FILED AGAINST THE ADJUDICATION ORDER AT DIFFERENT LEVELS. H OWEVER, THE WORDINGS OF SECTION 31 REGARDING ADJUDICATION OF THE PROPER STAMPS, AND THE FACTS OF THE CASE SHOWS THAT SUCH ADJUDICATION C OULD BE COVERED WITHIN THE AMBIT OF THE PHRASE REFERENCE MAD E BEFORE ANY OTHER AUTHORITY. THIS IS SINCE AS PER THE READY RECKONER RATE PRESCRIBED BY THE STATE GOVERNMENT, THERE EXISTED A ST AMP DUTY VALUATION OF RS.1.70 CRORES IN RESPECT OF THE IMPUGNED PROPERTY; WHICH WAS ON A FIRM BASIS, AND THE ASSESSEE HAD REFERRED THE MATTER FOR ADJUDICATION OF STAMP DUTY TO THE COLLECTOR OF S TAMPS. THE APPELLANT, THEREFORE, HAD NOT ACCEPTED THE STAMP DUT Y VALUATION PRESCRIBED BY THE STATE GOVERNMENT. IN MY CONSIDERED OPINION, THEREFORE, THIS WOULD BE SQUARELY COVERED WITHIN THE TERM REFERENCE TO ANY AUTHORITY PRESCRIBED AS ALTERNATIVE U/S 50C(2) OF THE ACT. THE A.O. WAS THEREFORE CORRECT IN NOT REFERRING THIS TO V ALUATION OFFICER AND ADOPTING THIS ADJUDICATED VALUE FOR COMPUTATION OF CAPITAL GAINS. 4.5 SO FAR THE OTHER ARGUMENT REGARDING NON-APPLIC ABILITY OF SECTION 50C WAS CONCERNED, IT IS CONTENDED THAT THE LA ND VESTED WITH THE STATE GOVERNMENT AND THEREFORE THIS SECTION SHOUL D NOT BE APPLIED. IT IS STATED THAT THERE IS NO SUCH CONDITION G IVEN IN SECTION 50C OF THE I.T. ACT. MOREOVER, IT IS CONTENDED TO BE A CASE OF A COMPULSORY ACQUISITION OF PROPERTY BY WHICH THE OWNER WAS TO RECEIVE COMPENSATION FOR ACQUISITION OF THE LAND, BUT IT WAS A CASE WHEN THE ASSESSEE HAD FREELY TRANSFERRED THE RIGHTS IN LA ND SUBJECT TO TAKING OBJECTION REGARDING ITS VALUE FOR STAMP DUTY, AND HIMSELF OFFERED CAPITAL GAIN ON SUCH TRANSFER OF CAPITAL ASSET. THEREFORE, FOR CAPITAL GAIN PURPOSES SECTION 50C WAS CORRECTLY APPLIE D BY THE A.O. IN VIEW OF THIS DISCUSSION GROUND NOS. 3,4, AND 5 ARE L IABLE TO BE DISMISSED. 8. AGGRIEVED WITH SUCH ORDER OF THE CIT(A) THE ASSESSEE IS IN APPEAL BEFORE US WITH THE FOLLOWING GROUNDS : 1. COMMISSIONER OF INCOME TAX APPEALS HAS ERRED IN ADO PTING STAMP DUTY VALUATION AS FULL VALUE OF CONSIDERATION U/S.50C AGAINST ACTUAL CONSIDERATION RECEIVED FOR TRANSFER OF RIGHT IN LAND. APPELLANT PRAYS TO DECLARE THAT SECTION 50C HAS NO AP PLICATION TO THE ASSESSEES CASE. 2. WITHOUT PREJUDICE TO GROUND NO.1, LOWER AUTHORIT IES HAVE ERRED IN NOT REFERRING THE MATTER TO VALUATION OFF ICER U/S.50C(2), SAME MAY BE DIRECTED TO BE REFERRED. 3. CIT(APPEALS) HAS ERRED IN CONFIRMING ASSESSING OFFICE RS ACTION OF COMPUTING SHORT TERM CAPITAL GAIN ON SALE OF DEMOLITION MATERIAL OF SHED AND BUILDING AT RS.51,300/- AGAINST C LAIM OF SHORT TERM LOSS OF RS.1,82,677/-. LOSS CLAIMED MAY PLEASE BE A LLOWED. 4. LOWER AUTHORITIES HAVE ERRED IN CHARGING INTEREST U/S.234B AND CONFIRMING THE SAME. APPELLANT PRAYS FOR DELETIO N OF THE SAME. 6 ITA NO.159/PN/2011 5. APPELLANT PRAYS FOR JUST AND EQUITABLE RELIEF. 9. THE LD. COUNSEL FOR THE ASSESSEE AT THE OUTSET SUBM ITTED THAT THE ASSESSEES LAND WAS NOTIFIED IN GAZETTE AS FORE ST LAND U/S.35 OF THE CENTRAL ACT, 1927. REFERRING TO PAGES 156 A ND 157 OF THE PAPER BOOK THE LD. COUNSEL FOR THE ASSESSEE DREW THE ATTENTION OF THE BENCH TO THE GAZETTE NOTIFICATION DATED 16-11- 1961. REFERRING TO PAGES 45, 47 AND 49 OF THE PAPER BOO K HE DREW THE ATTENTION OF THE BENCH TO THE NOTIFICATION OF DECLARATIO N UNDER THE CENTRAL ACT. REFERRING TO PAGES 157 AND 158 OF THE PAPER BOOK HE DREW THE ATTENTION OF THE BENCH TO THE NOTICE NO.31/ 2723 DATED 21-06-1961. HE ACCORDINGLY SUBMITTED THAT THE N OTIFICATION HAS BEEN ISSUED U/S.35 OF THE FOREST ACT, 1927 BEFORE TH E APPOINTED DATE. REFERRING TO THE VARIOUS PAGES OF THE P APER BOOK HE SUBMITTED THAT THE LAND SOLD BY THE ASSESSEE WAS A FOREST LAND ON THE APPOINTED DATE WHEN MAHARASHTRA ACT, 1975 CAME INTO FORCE. ALTHOUGH VARIOUS DOCUMENTS WERE PRODUCED BEFORE CIT(A) IN SHAPE OF ADDITIONAL EVIDENCE, HE SUBMITTED THAT THE LD.C IT(A) HAS NOT ADJUDICATED THE ISSUE RELATING TO THE CHARGEABILIT Y OF THE CAPITAL GAIN ON A FOREST LAND. HE SUBMITTED THAT BECAUSE OF VESTING OF THE LAND ON GOVERNMENT OF MAHARASHTRA BY VIRT UE OF SECTION 3 & 4 OF THE MAHARASHTRA PRIVATE FOREST PROHIBIT ION ACT, 1975 AND NOTIFICATION UNDER CENTRAL FOREST ACT, 1962 AND MUTATION IN RECORD OF RIGHTS IN 2002 THE ASSESSEE HAS ON LY THE RIGHT TO CLAIM COMPENSATION AND HAS NO OWNERSHIP RIGHT IN LAND. HE SUBMITTED THAT BECAUSE OF THE ABOVE REASONS THE RE GISTRAR ALSO REFUSED TO REGISTER THE DOCUMENT. 7 ITA NO.159/PN/2011 10. REFERRING TO THE DECISION OF THE MUMBAI BENCH OF THE TRIBUNAL IN THE CASE OF ATUL PURANIK VS. ITO REPORTED IN 1 32 ITD 499 HE SUBMITTED THAT THE TRIBUNAL IN THE SAID DECISION HA S HELD THAT TRANSFER OF LEASEHOLD RIGHTS IN LAND DO NOT INVITE PROV ISIONS OF SECTION 50C OF THE I.T. ACT. SIMILAR VIEW HAS BEEN TAKEN B Y THE PUNE BENCH OF THE TRIBUNAL IN THE CASE OF KANCAST PVT. L TD. VS. ITO VIDE ITA NO.1265/PN/2011 ORDER DATED 19-01-2015 F OR A.Y. 2006-07. HE ACCORDINGLY SUBMITTED THAT THE CAPITAL G AIN COMPUTATION MAY BE RESTRICTED ON ACTUAL CONSIDERATION A S PER THE DOCUMENT. 11. IN HIS ALTERNATE CONTENTION, HE SUBMITTED THAT DESPIT E WRITTEN REQUEST MADE BY THE ASSESSEE DURING THE COURS E OF ASSESSMENT PROCEEDINGS, THE AO REFUSED TO REFER THE MAT TER TO THE DVO U/S.50C(2). THE CIT(A) ALSO DID NOT CONSIDER THE REQUES T OF THE ASSESSEE TO REFER THE MATTER TO THE DVO. THEREFOR E, THE MATTER SHOULD BE RESTORED TO THE FILE OF THE AO WITH A DIRECTION TO REFER THE MATTER TO THE DVO WHICH IS MANDATORY. 12. SO FAR AS THE COMPUTATION OF SHORT TERM CAPITAL GAIN IS CONCERNED HE SUBMITTED THAT THE LD.CIT(A) HAS WRONGLY S TATED THAT THE ASSESSEE HAS NOT SUBMITTED ANYTHING ON THIS P OINT. HE SUBMITTED THAT COMPUTATION OF INCOME WITH BALANCE SHEET F OR 31- 03-2005 AND 31-03-2006 WERE SUBMITTED AND THE ISSUE W AS EXPLAINED TO THE CIT(A). HOWEVER, SINCE A NUMBER OF HEARING S HAVE TAKEN PLACE BEFORE CIT(A) HE MIGHT HAVE FORGOTTEN. THEREFORE, THE ISSUE MAY BE SET ASIDE TO THE FILE OF THE CIT(A) FOR AD JUDICATION OF THE ISSUE IN THE LIGHT OF THE DOCUMENTS FILED BEFORE HIM. 8 ITA NO.159/PN/2011 13. THE LD. DEPARTMENTAL REPRESENTATIVE ON THE OTHER HAND SUBMITTED THAT WHETHER THE IMPUGNED LAND WAS A PART OF FOREST LAND OR NOT HAS NOT BEEN ADJUDICATED BY THE CIT(A). EVE N ASSUMING BUT NOT ADMITTING THAT THE SAID LAND WAS A FORE ST LAND, THE ASSESSEE HAS THE FIRST RIGHT OVER THE LAND AND HENC E SECTION 50C IS APPLICABLE IN THIS CASE. HE SUBMITTED THAT SINCE TH E DISPUTE REGARDING THE VALUATION OF THE LAND HAS ALREADY BE EN ADJUDICATED BY THE COLLECTOR OF STAMPS, IT IS NOT OPEN TO THE ASSESSEE TO AGAIN DISPUTE THE VALUATION. THEREFORE, AS PE R THE PROVISIONS OF SECTION 50C(2)(B) THE MATTER DOES NOT NEED AN Y REFERENCE TO THE VALUATION OFFICER. SO FAR AS THE ISSUE OF COMPUTATION OF SHORT TERM CAPITAL GAIN ON SALE OF SHED IS CONCERNED HE SUBMITTED THAT THE MATTER MAY BE RESTOR ED BACK TO THE FILE OF THE AO FOR RE-CONSIDERATION AS HELD BY THE TRIB UNAL IN THE EARLIER DECISION. 14. WE HAVE CONSIDERED THE RIVAL ARGUMENTS MADE BY BOT H THE SIDES, PERUSED THE ORDERS OF THE AO AND CIT(A) AND THE P APER BOOK FILED ON BEHALF OF THE ASSESSEE. WE HAVE ALSO CONSIDER ED THE VARIOUS DECISIONS CITED BEFORE US. WE FIND IN THE INSTANT CA SE THE ASSESSEE HAS CHALLENGED THE ORDER OF THE CIT(A) IN CONFIRM ING THE ACTION OF THE AO IN BRINGING TO TAX AN AMOUNT OF RS.13,67,97 1/- AS LONG TERM CAPITAL GAIN AND RS.2,03,700/- AS SHORT TERM CAPITAL GAIN. WE FIND THE CIT(A) HAS OBSERVED THAT THE ASSESSE E HAS NOT SUBMITTED ANYTHING ON THE ISSUE OF SHORT TERM CAPITAL LOSS AND ACCORDINGLY CONFIRMED THE ORDER OF THE AO ON THE SAID ISS UE. IT IS THE SUBMISSION OF THE LD. COUNSEL FOR THE ASSESSEE THAT A LTHOUGH THE BALANCE SHEET FOR THE YEAR ENDING 31-03-2005 AND 31-03- 9 ITA NO.159/PN/2011 2006 WERE PRODUCED BEFORE THE CIT(A) AND ARGUMENTS HAD TAKEN PLACE ON DIFFERENT DATES, HOWEVER, THE CIT(A) HAS BRUSHED ASIDE ALL THOSE DETAILS. CONSIDERING THE TOTALITY OF THE FACTS OF T HE CASE AND IN THE INTEREST OF JUSTICE, WE RESTORE THE ISSUE OF S HORT TERM CAPITAL GAIN TO THE FILE OF THE AO FOR FRESH ADJUDICATION. TH E AO SHALL DECIDE THE ISSUE AS PER FACT AND LAW AFTER GIVING DUE OPPORTUNITY TO THE ASSESSEE. WE HOLD AND DIRECT ACCORDINGLY. 15. SO FAR AS THE MAIN ISSUE IS CONCERNED, I.E. THE LONG TER M CAPITAL GAIN ON SALE OF LAND, IT IS THE CASE OF THE ASSESSEE THAT THE LAND IN QUESTION WAS A FOREST LAND ON THE APPOINTED DATE AND THEREFORE THE PROVISIONS OF SECTION 50C ARE NOT APPLICABLE TO THE FACTS OF THE PRESENT CASE SINCE THE ASSESSEE IS NOT THE OWNER OF THE LAND AND IT HAS ONLY A RIGHT TO CLAIM COMPENSATION. A LTHOUGH THE ASSESSEE HAD FILED VARIOUS DOCUMENTS TO DEMONSTRATE THAT THE LAND OF THE ASSESSEE IS A FOREST LAND, HOWEVER, WE FIND THE CIT(A) IS SILENT ON THIS ISSUE. THE AO IN HIS REMAND REPORT HAS A LSO NOT DWELT UPON THIS ISSUE. IT IS ALSO A FACT THAT THE ABOVE C LAIM WAS NOT MADE BEFORE THE AO ALTHOUGH THIS CLAIM WAS MADE BEFOR E CIT(A) FOR THE FIRST TIME. CONSIDERING THE TOTALITY OF THE FAC TS OF THE CASE, WE ARE OF THE CONSIDERED OPINION THAT THE MATT ER REQUIRES A RE-VISIT TO THE FILE OF THE AO FOR PROPER APPRE CIATION OF THE FACTS. WE THEREFORE DEEM IT PROPER TO RESTORE THE ISSUE TO THE FILE OF THE AO WITH A DIRECTION TO EXAMINE THE CONTENTION OF THE ASSESSEE THAT THE LAND IN QUESTION IS A FOREST LAND AND THE ASSESSEE IS NOT THE OWNER OF THE LAND AND IT IS ONLY ENT ITLED TO CLAIM COMPENSATION. THE AO SHALL DECIDE THE ISSUE AFRESH AN D IN ACCORDANCE WITH LAW AFTER GIVING DUE OPPORTUNITY OF BEING H EARD 10 ITA NO.159/PN/2011 TO THE ASSESSEE. HE SHALL ALSO KEEP IN MIND THE VARIOUS DECISIONS RELIED ON BY LD. COUNSEL FOR THE ASSESSEE BEFORE THE TRIB UNAL. WE HOLD AND DIRECT ACCORDINGLY. GROUNDS RAISED BY THE ASSE SSEE ARE ACCORDINGLY ALLOWED FOR STATISTICAL PURPOSES. 16. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOW ED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 04-03-2016. SD/- SD/- ( VIKAS AWASTHY ) ( R.K. PANDA ) JUDICIAL MEMBER ACCOUNTANT MEMBER PUNE ; DATED : 04 TH MARCH, 2016. ) *#,! -! / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. THE CIT(A ) - II , PUNE 4. 5. 6. THE CIT-II, PUNE $ ''(, (, / DR, ITAT, B PUNE; - / GUARD FILE. / BY ORDER , $ ' //TRUE COPY// // TRUE COPY // // $ ' //TRUE C // /0 ' ( / SR. PRIVATE SECRETARY (, / ITAT, PUNE