Shri Manohar Lal Mehera, Burdwan V. ITO, Ward-2(1), Burdwan, Burdwan

ITA 1765/KOL/2014

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 0629 (ITAT-KOLKATA)
• Duration Of Justice: 3 year(s) 3 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-12-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 05-06-2017
• Assessment Year: 2008-2009
• Appeal Filed On: 09-09-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SALLONG YADEN CIT DR REVEN
• Keywords: Fair market value; Valuation report

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA A BENCH, KOLKATA [BEFORE SRI J. SUDHAKAR REDDY, HONBLE A CCOUNTANT M EMBER & SRI S. S. VISWANETHRA , HONBLE JUDICIAL MEMBER ] I .T.A. NO. 1765 /KOL /201 4 ASSESSMENT YEAR: 20 0 8 - 09 SHRI MANOHAR LAL MEHRA . .. APPELLANT MITHAPUKUR LANE RAJBA TI BURDWAN 713 101 [PAN : AESPM 0589 A ] INCOME TAX OFFICER, WARD - 2 ( 1 ), KOLKATA .. .. .. .. . . RESPONDENT AYAKAR BHAWAN COURT COMPOUND BURDWAN 713 101 APPEARANCES BY: SHRI SOUMITRA CHOUDHURY, ADVOCATE , APPEAR ED ON BEHALF OF THE ASSESSEE. SHRI SALLONG YADEN , ADDL. CIT , DR APPEARING ON BEHALF OF THE REVENUE. DATE OF CONCLUDING THE HEARING : OCTOBER 24 TH , 2017 DATE OF PRONOUNCING THE ORDER : DECEMBER 15 TH , 2017 O R D E R PER J. SUDHAKAR REDDY : - THIS APPEAL FILED BY THE REVENUE IS DIRECTED AGAINST THE ORDER OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS) - ASANSOL (HEREINAFTER THE LD. CIT (A)), PASSED U/S 250 OF THE INCOME TAX ACT, 1961 (THE ACT), DT. 28 / 07 /201 4 , FOR THE ASSESSMENT YEAR 20 0 8 - 09 , ON THE FOLLOWING GROUNDS: - 1. FOR THAT ON THE FACTS OF THE CASE, THE ORDER PASSED BY THE LD. C.I.T.(A) IS COMPLETELY ARBITRARY, UNJUSTIFIED AND ILLEGAL. 2. FOR THAT ON THE FACTS OF THE CASE, THE LD. C.I.T.(A) WAS WRONG IN DITTOING THE ORDER OF THE A.O. AND CONFIRMING THE ADDITION AS L O NG TERM CAPITAL GAIN WHICH IS COMPLETELY ARBITRARY, UNJUSTIFIED AND ILLEGAL. 3. FOR THAT ON THE FACTS OF THE CASE, THE LD. CIT(A) WAS WRONG IN NOT ACCEPTING THE VALUATION REPORT SUBMITTED BY THE ASSESSEE AND RELYING ON THE VALUATION OF ADSR, BURDWAN WHICH IS COMPLETELY ARBITRARY, UNJUSTIFIED AND ILLEGAL. 2 I.T.A. NO. 1765/KOL/2014 ASSESSMENT YEAR: 2008 - 09 SHRI MANOHAR LAL MEHRA 4. FOR THAT ON THE FACTS OF THE CASE, THE LD. CIT( A) WAS WRONG IN NOT CONSIDERING THE FACT THAT THE A.O. HAS NOT BROUGHT ANY MATERIAL ON RECORD TO FORM AND OPINION REGARDING THE VALUATION OF THE PROPERTY AS ON 01.04.1981, BUT HE HAS ILLEGALLY RELIED UPON THE VALUATION OF ADSR, BURDWAN WHICH IS COMPLETELY ARBITRARY, UNJUSTIFIED AND ILLEGAL. 5. FOR THAT ON THE FACTS OF THE CASE, THE LD. C.I.T.(A) WAS WRONG IN DITTOING THE ORDER OF THE A.O. AND ESTIMATING THE SALE PRICE AT RS.275,71,606/ - IN PLACE OF RS.200,00,000/ - SHOWN BY THE ASSESSEE WHICH IS COMPLETELY ARBITRARY, UNJUSTIFIED AND ILLEGAL. 7. FOR THAT THE INTEREST IS] S. 2348 & 234C AMOUNTING TO RS.498,330/ - & RS. 711,900/ - CHARGED MECHANICALLY IS WRONG & ILLEGAL. 8. FOR THAT THE APPELLANT RESERVES THE RIGHT TO ADDUCE ANY FURTHER GROUND OR GROUNDS, IF N ECESSARY, AT OR BEFORE THE HEARING OF THE APPEAL. 2. AFTER HEARING RIVAL SUBMISSIONS, WE FIND THAT IN THE CASE OF OTHER CO - OWNERS, THE SMC BENCH OF THE KOLKATA ITAT, IN I.T.A. NO. 2245/KOL/2014, ASSESSMENT YEAR 2008 - 09, IN THE CASE OF SMT. ANSURI MEHRA, I.T.A. NO. 2246/KOL/2014, ASSESSMENT YEAR 2008 - 09 , IN THE CASE OF SMT. MONIKA MEHRA, I.T.A. NO. 2247/KOL/2014, ASSESSMENT YEAR 2008 - 09 , IN THE CASE OF SMT. KARABI GOSWAMI, I.T.A. NO. 2248/KOL/2014, ASSESSMENT YEAR 2008 - 09 , IN THE CASE OF SMT. KAVITA DAW, AT PARA 5, HELD AS FOLLOWS: - 5. AFTER HEARING RIVAL CONTENTIONS, I AM OF THE CONSIDERED OPINION THAT THE ASSESSING OFFICER COULD NOT HAVE REJECTED THE FAIR MARKET VALUE DETERMINED BY THE REGISTERED VALUER, WITHOUT GIVING ANY REASON, WHATSOEVER, FOR THE S AME. THE ASSESSING OFFICER IN THIS CASE HAS NOT GIVEN ANY REASONS IN HIS ORDER, AS TO WHY THE EXPERT'S VALUATION HAS NOT BEEN FOLLOWED BY HIM. FURTHER, THE EVIDENCE COLLECTED BY THE ASSESSING OFFICER, IN THE FORM OF INSTANCES OF SALE AND PURCHASE OF PROPERTY FROM THE DISTRICT REGISTRAR; BURDWAN WAS NOT CONFRONTED TO THE ASSESSEE. THE PHYSICAL PROXIMITIES OF THE PROPERTIES CITED IN THE INSTANCES OF SALE AND PURCHASE TO THE ASSESSEE'S PROPERTY IS NOT KNOWN. !HE ASSESSING OFFICER FURTHER MADE ADJUSTMENTS TO THE FAIR MARKET VALUE OBTAINED BY HIM FROM THE DISTRICT REGISTRAR, BURDWAN BY ASSUMING THAT THE PHYSICAL CHARACTERISTICS OF THE PROPERTY AS ON THE DATE OF SALE WOULD HAVE BEEN THE SAME AS ON 01 / 04/ 1 981. SUCH AN ASSUMPTION CANNOT BE MADE. THE PROPERTY MAY UNDERGO CHANGE IN THE LAST 30 TO 3 5 YEARS. BE IT AS IT MAY, WHEN THE INFORMATION OBTAINED FROM THE DISTRICT REGISTRAR, BURDWAN IS NOT CONFRONTED TO THE ASSESSEE, IT CANNOT BE USED AGAINST THE ASSESSEE. WHEN THE ASSESSEE DISPUTES SUCH VALUATION, THE ASSESSING OFFICER HAS TO REFER THE ISSUE TO THE DVO AND NOT DETERMINE THE FAIR MARKET VALUE BY HIMSELF. 3 I.T.A. NO. 1765/KOL/2014 ASSESSMENT YEAR: 2008 - 09 SHRI MANOHAR LAL MEHRA 3. THE LD. DR, COULD NOT CONTROVERT THE CLAIM OF THE ASSESSEE, THAT THE ISSUE IS SQUARELY COVERED BY THE ABOVE R EFERRED DECISION OF THE TRIBUNAL. 4. RESPECTFULLY FOLLOWING THE SAME, WE ALLOW THIS APPEAL OF THE ASSESSEE. 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED. KOLKATA, THE 15 TH DAY OF DECEMBER , 2017. SD/ - SD/ - [ S.S. VISWANETHRA RAVI ] [ J. SUDHAKAR REDDY ] JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 15 .1 2 .2017 {SC SPS} COPY OF THE ORDER FORWARDED TO: 1. SHRI MANOHAR LAL MEHRA MITHAPUKUR LANE RAJBAIT BURDWAN 713 101 2. INCOME TAX OFFICER, WARD - 2(1), KOLKATA AYAKAR BHAWAN COURT COMPOUND BURDWAN 713 101 3. CIT(A) - 4. CIT - , 5. CIT(DR), KOLKATA BENCHES, KOLKATA. TRUE COPY BY ORDER SENIOR PRIVATE SECRETARY HEAD OF OFFICE/ D.D.O. ITAT, KOLKATA BENCHES