Lonkar Prabhakar Genuji, Nashik V. Income-tax Officer,

ITA 1777/PUN/2013

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 1843 (ITAT-PUNE)
• Duration Of Justice: 2 year(s) 7 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-05-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 09-11-2015
• Assessment Year: 2008-2009
• Appeal Filed On: 26-09-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DHEERAJ KUMAR JAIN
• Keywords: Sale consideration of property below Jantri Value; Value adopted by valuation officer; Principle of natural justice; Fair market value; Valuation report
• Section: 50C; 6

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, PUN E , , !'!! # , $ % BEFORE SHRI R.K. PANDA, AM AND SHRI VIKAS AWASTHY, JM / ITA NO. 1777/PN/2013 $& ' !(' / ASSESSMENT YEAR : 2008-09 LONKAR PRABHAKAR GENUJI, LONKAR MALA, JAI BHAVANI ROAD, NASHIK ROAD, NASHIK-422101 PAN : ACLPL9168R ....... / APPELLANT )& / V/S. INCOME TAX OFFICER, WARD 1(4), NASHIK / RESPONDENT / ITA NO. 1778/PN/2013 $& ' !(' / ASSESSMENT YEAR : 2008-09 SANJAY KONDAJI JACHAK, 4, JACHAK MALA, JAI BHAVANI ROAD, NASHIK ROAD, NASHIK-422101 PAN : AECPJ1864M ....... / APPELLANT )& / V/S. INCOME TAX OFFICER, WARD 1(4), NASHIK / RESPONDENT ASSESSEE BY : SHRI PRAMOD S. SHINGTE REVENUE BY : SHRI DHEERAJ KUMAR JAIN / DATE OF HEARING : 10-03-2016 / DATE OF PRONOUNCEMENT : 09-05-2016 2 ITA NOS. 1777 & 1778/PN/2013, A.Y. 2008-09 * / ORDER PER VIKAS AWASTHY, JM : THESE APPEALS HAVE BEEN FILED BY THE ASSESSEES AGAINST T HE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS)-I, NASHIK DATED 24 -07-2013 FOR THE ASSESSMENT YEAR 2008-09, IN THEIR RESPECTIVE CAS ES. THE IMPUGNED ORDERS IN BOTH THE APPEALS ARE OF SAME DATE. SINCE, THE ISSUES INVOLVED IN BOTH THE APPEALS ARE ARISING FR OM SAME SET OF FACTS, THESE APPEALS ARE TAKEN UP TOGETHER AND ARE DECIDED BY THIS COMMON ORDER. 2. THE FACTS OF THE CASE AS EMANATING FROM THE RECORDS ARE: THE ASSESSEES JOINTLY PURCHASED LAND COMPRISING IN S. NO. 26/3 /3/2/1 ADMEASURING 3280 SQ. METER SITUATED AT DEOLALI SHIVAR, TAL. & DISTT.- NASHIK IN THE YEAR 1992. THE SAID LAND, OSTENSIBLY WAS R ESERVED FOR PLAY GROUND. THE STATE GOVT. HAD ISSUED NOTIFICATION U/S. 6 OF THE LAND ACQUISITION ACT IN DECEMBER, 2005 FOR ACQUIRING THE LAND. TH E ASSESSEES SOLD THE AFORESAID LAND TO SHRI RAMESH HARI THO RAT VIDE REGISTERED SALE DEED DATED 25-02-2008 FOR A CONSIDERAT ION OF ` 16,50,000/-. THE VALUE OF LAND FOR THE PURPOSE OF STAMP DU TY AT THE TIME OF SALE WAS ` 1,23,00,000/-. THE ASSESSEES DURING THE COURSE OF SCRUTINY ASSESSMENT PROCEEDINGS IN THEIR RESPECTIVE CASE S DECLARED CAPITAL GAINS ON SALE OF LAND ON THE BASIS OF SALE CONSIDERA TION DECLARED IN THE SALE DEED. THE ASSESSING OFFICER REFERRED THE MATTE R TO THE DEPARTMENTAL VALUATION OFFICER (DVO) U/S. 50C OF THE INCOME T AX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT) TO DETERMINE THE FAIR MARKET VALUE OF THE PROPERTY. THE DVO VIDE HIS PRELIMINARY VALUAT ION REPORT DATED 01-12-2010 ASSESSED THE MARKET VALUE OF THE PRO PERTY AS 3 ITA NOS. 1777 & 1778/PN/2013, A.Y. 2008-09 ` 69,70,000/-. THE ASSESSEES FILED OBJECTIONS TO THE PRELIMINA RY VALUATION REPORT ON 09-12-2010. THE DVO AFTER CONSIDERIN G THE OBJECTIONS STICK TO THE VALUE OF PROPERTY INITIALLY ESTIMATE D AT ` 69,70,000/-. ON THE BASIS OF VALUATION REPORT, THE ASSESSIN G OFFICER MADE ADDITION IN THE INCOME RETURNED BY THE ASSESSEES IN THEIR RESPECTIVE CASES. AGGRIEVED BY THE ASSESSMENT ORDER, THE ASSESSEES FILED A PPEALS IN THEIR RESPECTIVE CASES BEFORE THE COMMISSIONER OF INCOME TAX (APPEALS). THE COMMISSIONER OF INCOME TAX (APPEALS) REJECTED THE CON TENTIONS OF THE ASSESSEES AND CONFIRMED THE FINDINGS OF THE ASSESSING OFFICER. NOW , THE ASSESSEES ARE IN APPEAL BEFORE THE TRIBUNAL ASSAILING T HE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS). 3. THE ASSESSEES HAVE RAISED IDENTICAL GROUNDS IN BOTH T HE APPEALS WHICH READ AS UNDER : 1. 'ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LOWER AUTHORITIES HAVE ERRED IN ASSESSING THE INCOME OF T HE APPELLANT AT RS.31,00,790/- BY CALCULATING THE CAPITAL GAIN OF I MMOVABLE PROPERTY SOLD I.E. PLOT AT SURVEY NO. 26/3/2/1 AT DEOLALI, S HIVAR, BY ADOPTING THE VALUE DETERMINED BY DEPARTMENTAL VALUATION OFFICER. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A ND IN LAW, THE LOWER AUTHORITIES HAVE ERRED IN ADOPTING THE VALUE DETERM INED BY DEPARTMENTAL VALUATION OFFICER BY IGNORING THE OBJECTIONS OF THE APPELLANT RAISED THROUGH THE APPROVED VALUER. 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A ND IN LAW, THE LOWER AUTHORITIES HAVE ERRED IN REJECTING THE REPORT OF A PPROVED VALUER AS WELL AS REJECTING THE VALID OBJECTIONS RAISED THROUGH TH E APPROVED VALUER. IN VIEW OF THIS FACT A PRAYER IS MADE THAT VALUATIO N MADE BY DEPARTMENTAL VALUATION OFFICER (DVO) NEEDS TO BE RE JECTED AND VALUATION OF THE PROPERTY AS CLAIMED BY THE APPELLANT SHALL B E ADOPTED. 4 ITA NOS. 1777 & 1778/PN/2013, A.Y. 2008-09 THE APPELLANT CRAVES FOR TO LEAVE, ADD, ALTER, MODI FY, DELETE, ALTER ABOVE GROUND OF APPEAL BEFORE OR AT THE TIME HEARING, IN THE INTEREST OF NATURAL JUSTICE. 4. SHRI PRAMOD S. SHINGTE APPEARING ON BEHALF OF THE ASSES SEE SUBMITTED THAT THE ASSESSEES HAD JOINTLY PURCHASED TH E LAND, WHICH WAS AN AGRICULTURAL LAND IN THE YEAR 1992. THE LAND WAS R ESERVED FOR PRIMARY SCHOOL/PLAY GROUND. THE GOVERNMENT ISSUED NOTIFICA TION U/S 6 OF THE LAND ACQUISITION ACT IN DECEMBER, 2005 FOR ACQUISIT ION OF LAND. IN THE YEAR 2008 THE ASSESSEES SOLD THE ENTIRE LAND AD MEASURING 3280 SQ. METER TO SHRI RAMESH HARI THORAT VIDE REGISTERED SALE DEED DATED 25-08-2008. THE ASSESSEES ALSO GOT THE VALUATION OF LAND FROM THE GOVT. APPROVED VALUER. AS PER THE APPROVED VALUER REPO RT, THE VALUE OF LAND WAS ESTIMATED AT ` 17,71,200/- AND THE VALUATION OF LAND FOR THE PURPOSE OF TDR WAS ` 14,10,400/-. SINCE, THE LAND WAS RESERVED FOR PLAY GROUND AND WAS UNDER ACQUISITION THE ASSESSEES COU LD SELL THE LAND ONLY FOR ` 16,50,000/- I.E. FAR BELOW THE ACTUAL MARKET VALUE. DURING THE COURSE OF SCRUTINY ASSESSMENT PROCEEDINGS TH E ASSESSING OFFICER REFERRED THE VALUATION OF LAND TO THE DVO AS THERE WAS SUBSTANTIAL DIFFERENT BETWEEN THE MARKET VALUE OF LAND AND THE VALUATION OF LAND FOR STAMP DUTY PURPOSE. THE DVO VIDE HIS PRELIMINARY REPORT ESTIMATED VALUE OF LAND AT ` 69,70,000/-. HOWEVER, THERE WERE SEVERAL DISCREPANCIES IN THE PRELIMINARY VALUAT ION REPORT. IN THE FIRST INSTANCE, THE DVO FOR THE PURPOSE OF COMPARATIVE ANALYSIS OF SALE OF LAND IN THE VICINITY TOOK INTO CONSIDERATION THE PLOTS WITHOUT RESERVATION. WHEREAS, THE LAND OF THE ASSESSEE WAS UNDE R ENCUMBRANCE RESERVED FOR CHILDREN PLAY GROUND. MOREOVER , THERE WAS LITIGATION IN RESPECT OF THE LAND WHICH THE DVO FAILED TO TAKE INTO CONSIDERATION WHILE ESTIMATING THE VALUE OF LAND. THE ASSESS EES HAD 5 ITA NOS. 1777 & 1778/PN/2013, A.Y. 2008-09 GIVEN INSTANCES OF ADJACENT LAND WHERE THE VALUE OF LAND WAS DETERMINED AT ` 1076/- PER SQ. METERS. THE DVO DID NOT CONSIDER THE SAME. THE ASSESSEE HAD ALSO GIVEN THE INSTANCES OF SALE TRANSACTION OF LAND IN THE CASE OF KARDA CONSTRUCTION PVT. LTD., ASHOKA E DUCATION FOUNDATION AND RAMDAS EKNATH KASHMIRE HAVING TDR AREA OF 1295 SQ. MTRS., 2325 SQ. MTRS. AND 140 SQ. MTRS., RESPECTIVELY. THE GOVT. RATE AS PER TDR IN RESPECT OF SAID PROPERTIES WAS ` 203/-, ` 215/-, AND ` 215/-. THE LD. AR SUBMITTED THAT SINCE, THE DVO HAD NOT CONSIDERED THE OBJECTIONS RAISED BY THE ASSESSEES THE DVO REPORT IS LIABLE TO BE REJECTED. IN SUPPORT OF HIS SUBMISSION THE LD. AR OF THE A SSESSEE HAS PLACED RELIANCE ON THE DECISION OF CO-ORDINATE BENCH OF THE TRIBUNAL IN THE CASE OF LATE SMT. JAYDEVI MALLIKARJUN WARAD VS. ACIT IN ITA NO. 162/PN/2014 FOR THE ASSESSMENT YEAR 2008-09 DECIDED ON 16-09- 2015. 5. ON THE OTHER HAND SHRI DHEERAJ KUMAR JAIN REPRESEN TING THE DEPARTMENT VEHEMENTLY SUPPORTED THE FINDINGS OF COMMISSIO NER OF INCOME TAX (APPEALS). THE LD. DR SUBMITTED THAT THE ASS ESSEE WAS OFFERED TDR. THERE WAS NO DECLINE IN THE RATE OF LAND ON A CCOUNT OF RESERVATION. THE ASSESSEE HAS TAKEN CONTRADICTORY STA ND IN THE WRIT PETITION FILED BEFORE THE HON'BLE BOMBAY HIGH COURT CHALLENGIN G THE ACQUISITION OF LAND. IN THE WRIT PETITION THE ASSESSEE HA S SUBMITTED THAT THE VALUE OF LAND HAS INCREASED, WHEREAS IN THE INC OME TAX PROCEEDINGS THE STAND OF ASSESSEE IS THAT DUE TO RESER VATION, THE VALUE OF LAND HAS REDUCED. THE LD. DR VEHEMENTLY SUPPORTING TH E VALUATION REPORT OF DVO SUBMITTED THAT THE DVO WHILE ESTIMATING THE VALUE OF LAND HAS FACTORED THE RESERVATION OF LAND FOR CHILDREN PARK . THE VALUE OF LAND FOR THE PURPOSE OF STAMP VALUATION IS MORE THAN ` 1 CRORE, 6 ITA NOS. 1777 & 1778/PN/2013, A.Y. 2008-09 WHEREAS THE DVO HAS ESTIMATED THE VALUE OF LAND AT ` 69,70,000/- ONLY. THE LD. DR SUBMITTED THAT THE CASE CITED BY THE LD. AR IS DISTINGUISHABLE ON FACTS. THE LD. DR IN SUPPORT OF HIS SUBMIS SIONS PLACED RELIANCE ON THE DECISION OF HON'BLE SUPREME COURT O F INDIA IN THE CASE OF IPCA LABORATORY LTD. VS. DEPUTY COMMISSIONER OF INCOME- TAX REPORTED AS 266 ITR 521 (SC). THE LD. AR CONTROVERTING THE SUBMISSIONS FORWARDED BY THE LD. DR SUBMITTED THAT THE RATE OF LAND AND TDR IS NOT THE SAME . THE LD. AR POINTED THAT WRIT PETITION IN THE HON'BLE HIGH COURT CHALLE NGING THE ACQUISITION OF LAND WAS FILED BY THE PURCHASER OF THE LAND AN D NOT THE ASSESSEES. THE LD. AR FURNISHED THE COPY OF WRIT PETITION. THE LD. AR CONTENDED THAT THE VALUE OF LAND SHOULD BE ARRIVED AT BY TAKING ADVERSE FACTORS ATTACHED TO IT. IN SUPPORT OF HIS CONTENTIONS T HE LD. AR OF THE ASSESSEE HAS PLACED RELIANCE ON THE FOLLOWING DECISIONS : I. JAI KUMAR CHAWLA VS. INCOME TAX OFFICER, 39 TAXMANN.COM 188 (INDORE TRIB.); AND II. CHANDRA BHAN AGARWAL VS. ADDITIONAL COMMISSIONER OF INCOME TAX, 21 TAXMANN.COM 133 (KOL.). 6. WE HAVE HEARD THE SUBMISSIONS MADE BY THE REPRESEN TATIVES OF RIVAL SIDES AND HAVE PERUSED THE ORDERS OF THE AUTHORITIE S BELOW. WE HAVE ALSO CONSIDERED THE DECISIONS ON WHICH THE RIVAL SIDES HAVE PLACED RELIANCE. THE ONLY ISSUE IN THE APPEAL IS WITH RESPECT TO THE VALUE OF LAND SOLD BY THE ASSESSEE AND THE CONSEQUENT CAPITAL GA INS ARISING FROM THE SALE OF LAND. THE ASSESSEES HAVE JOINTLY SOLD THE LAND COMPRISING IN S. NO. 26/3/3/2/1 AT DEOLALI SHIVAR, TAL. & DISTT.-NASHIK VIDE SALE DEED DATED 25-02-2008. AS PER THE REGISTERED SALE DEE D THE VALUE OF LAND FOR THE PURPOSE OF STAMP DUTY IS ` 1,23,00,000/- WHEREAS THE 7 ITA NOS. 1777 & 1778/PN/2013, A.Y. 2008-09 CONSIDERATION FOR SALE OF LAND AS MENTIONED IN THE SALE DEE D IS ` 16,50,000/-. THE DIMINISHED VALUE OF LAND HAS BEEN ATTRIBUTE D TO THE RESERVATION OF LAND. THE STATE GOVERNMENT HAS ISSUED NO TIFICATION U/S. 6 OF THE LAND ACQUISITION ACT, FOR THE ACQUISITION OF LAND IN THE YEAR 2005 AND HAS EARMARKED THE LAND FOR CHILDREN PLAY GROUND. 7. DURING THE COURSE OF ASSESSMENT PROCEEDINGS THE MAT TER WAS REFERRED TO THE DVO. THE DVO ESTIMATED THE VALUE OF LAN D AT ` 69,70,000/- VIDE PRELIMINARY REPORT DATED 01-02-2010 AT P AGES 105 AND 106 OF THE PAPER BOOK. THE LD. AR POINTED THAT IN T HE SALE INSTANCES ADOPTED BY THE DVO FOR COMPARATIVE ANALYSIS, A LL THE SALE INSTANCES ARE IN RESPECT OF OPEN PLOT WITHOUT RESERVATION AND TH E AREA OF THE PLOT SELECTED FOR COMPARISON IS MUCH LESS THAN THE LA ND OF THE ASSESSEE UNDER CONSIDERATION. THE DVO WHILE ESTIMATING T HE VALUE OF LAND HAD NOT FACTORED THE RESERVATION OF LAND. THE ASSE SSEES FILED OBJECTIONS WITH DVO AGAINST PRELIMINARY VALUATION REPORT. T HE DVO IN HIS FINAL REPORT DATED 29-12-2010 HAS ALTHOUGH DEALT WITH THE OBJECTIONS OF THE ASSESSEE BUT HAS STICK TO HIS ORIGINAL V ALUATION AT ` 69,70,000/-. A PERUSAL OF THE REPORT SHOWS THAT FOR THE COMPARATIVE ANALYSIS THE DVO SELECTED 3 TRANSACTIONS. ALL THE 3 TRAN SACTIONS ARE IN RESPECT OF OPEN PLOTS WITHOUT RESERVATION, WHEREAS, THE LA ND OF THE ASSESSEES IS NOT FREE FROM ENCUMBRANCES AND IS SUBJECT MATTER OF ACQUISITION. THE ASSESSEES HAVE GIVEN SALE INSTANCES OF T HE ADJACENT LAND COMPRISING IN S. NO. 27/2/1 AT PAGE 178 OF THE PAPER BOOK. A PERUSAL OF THE SAME SHOWS THAT THE SAID SALE TRANSACTION IS IN RESPECT OF SALE OF TDR. THE SAID LAND IS ALSO STATED TO BE UNDER RES ERVATION AND THE CONSIDERATION FOR SALE IS DETERMINED AT THE RATE OF ` 1076 PER SQ. MTRS. VIDE REGISTERED SALE DEED DATED 05-05-2008. LIKEWIS E THE 8 ITA NOS. 1777 & 1778/PN/2013, A.Y. 2008-09 ASSESSEES HAVE PLACED ON RECORD OTHER SALE DEED EXECU TED IN THE YEAR 2008 WHERE THE SALE OF TDR IS AT THE RATE OF ` 645 PER SQ. MTRS. 8. WE ARE OF THE CONSIDERED VIEW THAT THE DVO WHILE ESTIM ATING THE VALUE OF LAND HAS ERRED IN PLACING RELIANCE ON THE SALE TRA NSACTIONS WHICH PERTAIN TO OPEN LAND. FOR ESTIMATING THE CORRECT V ALUE OF LAND, THE DVO OUGHT TO HAVE CONSIDERED SALE INSTANCES OF LAND IN THE SAME VICINITY UNDER RESERVATIONS. THE DVO SHOULD HAVE RESORT ED TO COMPARISON OF OPEN LAND ONLY WHERE THERE WOULD HAVE BEE N NO INSTANCES OF SALE OF RESERVED LAND. IN OUR CONSIDERED OP INION THE DVO HAS ERRED IN ESTIMATING THE VALUE OF LAND AFTER CONSIDERING THE SALE INSTANCES OF OPEN LAND AND THAT TO OF MUCH SMALLER AREA A S COMPARED TO THE LAND OF ASSESSEES. 9. THE LD. AR HAS REFERRED TO THE DECISION OF KOLKATA BE NCH OF THE TRIBUNAL IN THE CASE OF CHANDRA BHAN AGARWAL VS. ADDITIONA L COMMISSIONER OF INCOME TAX (SUPRA). IN THE SAID CASE THE DVO HAD VALUED THE PROPERTY MERELY ON THE BASIS OF MARKET VALUE ESTIMATED BY REGISTRAR FOR STAMP VALUATION PURPOSE. THE TRIBUNAL REJE CTED THE VALUATION REPORT OF THE DVO. WHILE HOLDING SO, THE TRIBUNAL REFERRED TO THE JUDGMENT OF HON'BLE APEX COURT WHEREIN GUIDELINES HAV E BEEN LAID DOWN FOR ESTIMATING THE VALUE OF LAND. THE SAME ARE REPRO DUCED AS UNDER : HON'BLE SUPREME COURT HAS RULED FOR DETERMINING THE FAIR MARKET VALUE, NO DOUBT IN THE CONTEXT OF LAND ACQUI SITION ACT, 1894, BUT THE SAME HOLDS THE FIELD EVEN IN THE CASE OF VALUAT ION TO BE MADE BY THE DVO. HON'BLE APEX COURT HAS CONSIDERED THE ISSUE IN CHIMANLAL HARGOVINDDAS V SPECIAL LAND ACQUISITION OFFICER, AI R 1988 SC 1652, 1656-58, IN SURESH KUMAR V TOWN IMPROVEMENT TRUST, BHOPAL, (1989) 2 SCC 329 (SC) AND IN LAND ACQUISITION COLLECTOR V. S UKHDEV SINGH, AIR 1995 HP 150, 153-54 LAID DOWN FOLLOWING GUIDING FAC TORS:- 9 ITA NOS. 1777 & 1778/PN/2013, A.Y. 2008-09 '(1) THE MARKET VALUE OF LAND UNDER ACQUISITION HAS TO BE DETERMINED AS ON THE CRUCIAL DATE OF PUBLICATION OF THE NOTIFICAT ION UNDER SECTION 4 OF THE LAND ACQUISITION ACT (DATES OF NOTIFICATIONS UNDER SECTIONS 6 AND 9 ARE IRRELEVANT). (2) THE DETERMINATION HAS TO BE MADE STANDING ON TH E DATE LINE OF VALUATION (DATE OF PUBLICATION OF NOTIFICATION UNDE R SECTION 4) AS IF THE VALUE IS A HYPOTHETICAL PURCHASER WILLING TO PURCHA SE LAND FROM THE OPEN MARKET AND IS PREPARED TO PAY A REASONABLE PRICE AS ON THAT DAY. IT HAS ALSO TO BE ASSUMED THAT THE VENDOR IS WILLING TO SE LL THE LAND AT A REASONABLE PRICE. (3) IN DOING SO BY THE INSTANCES METHOD, THE COURT HAS TO CORRELATE THE MARKET VALUE REFLECTED IN THE MOST COMPARABLE INSTA NCE WHICH PROVIDES THE INDEX OF MARKET VALUE. (4) ONLY GENUINE INSTANCES HAVE TO BE TAKEN INTO AC COUNT. (SOMETIMES INSTANCES ARE RIGGED UP IN ANTICIPATION OF ACQUISIT ION OF LAND.) (5) EVEN POST-NOTIFICATION INSTANCES CAN BE TAKEN I NTO ACCOUNT (1) IF THEY ARE VERY PROXIMATE, (2) GENUINE AND (3) THE ACQUISI TION ITSELF HAS NOT MOTIVATED THE PURCHASER TO PAY A HIGHER PRICE ON AC COUNT OF THE RESULTANT IMPROVEMENT IN DEVELOPMENT PROSPECTS. (6) THE MOST COMPARABLE INSTANCES OUT OF THE GENUIN E INSTANCES HAVE TO BE IDENTIFIED ON THE FOLLOWING CONSIDERATIONS: (I) PROXIMITY FROM TIME ANGLE. (II) PROXIMITY FROM SITUATION ANGLE. (7) HAVING IDENTIFIED THE INSTANCES WHICH PROVIDE T HE INDEX OF MARKET CE REFLECTED THEREIN MAY BE TAKEN AS THE NORM AND THE MARKET VALUE OF THE LAND UNDER ACQUISITION MAY BE DEDUCED BY MAKING SUI TABLE ADJUSTMENTS FOR THE PLUS AND MINUS FACTORS VIS-A-VIS LAND UNDER ACQUISITION BY PLACING THE TWO IN JUXTAPOSITION. (8) A BALANCE-SHEET OF PLUS AND MINUS FACTORS MAY B E DRAWN FOR THIS PURPOSE AND THE RELEVANT FACTORS MAY BE EVALUATED I N TERMS OF PRICE VARIATION AS A PRUDENT PURCHASER WOULD DO. (9) THE MARKET VALUE OF THE LAND UNDER ACQUISITION HAS THEREAFTER TO BE DEDUCED BY LOADING THE PRICE REFLECTED IN THE INSTA NCE TAKEN AS NORM FOR PLUS FACTORS AND UNLOADING IT FOR MINUS FACTORS. (10) THE EXERCISE INDICATED IN CLAUSES (7) TO (9) H AS TO BE UNDERTAKEN IN A COMMON SENSE MANNER AS A PRUDENT MAN OF THE WORLD O F BUSINESS WOULD SO. WE MAY ILLUSTRATE SOME SUCH ILLUSTRATIVE (NOT E XHAUSTIVE) FACTORS:- PLUS FACTORS MINUS FACTORS 1. SMALLNESS OF SIZE. 1. LARGENESS OF AREA. 2. PROXIMITY TO A ROAD. 2. SITUATION IN THE INTE RIOR AT A DISTANCE FROM THE ROAD. 3. FRONTAGE ON A ROAD. 3. NARROW STRIP OF LAND W ITH VERY SMALL FRONTAGE COMPARED TO DEPTH. 10 ITA NOS. 1777 & 1778/PN/2013, A.Y. 2008-09 4. NEARNESS TO DEVELOPED AREA. 4. LOWER LEVEL REQ UIRING THE DEPRESSED PORTION TO BE FILLED UP. 5. REGULAR SHAPE. 5. R EMOTENESS FROM DEVELOPED LOCALITY. 6. LEVEL VIS--VIS LAND 6. SOME SPECIAL DISADVANTAGEOUS UNDER ACQUISITION WHICH WOULD DETER A PURCHASER. 7. SPECIAL VALUE FOR AN OWNER OF AN ADJOINING PROPERTY TO WHICH IT MAY HAVE SOME VERY SPECIAL ADVANTAGE. (11) THE EVALUATION OF THESE FACTORS OF COURSE DEPE NDS ON THE FACTS OF EACH CASE. THERE CANNOT BE ANY HARD AND FAST OR RIG ID RULE. COMMON SENSE IS THE BEST AND MOST RELIABLE GUIDE. FOR INST ANCE, TAKE THE FACTOR REGARDING THE SIZE. A BUILDING PLOT OF LAND SAY 500 TO 1000 SQ. YDS. CANNOT BE COMPARED WITH A LARGE TRACT OR BLOCK OF L AND OF SAY 10000 SQ. YDS. OR MORE. FIRSTLY WHILE A SMALLER PLOT IS WITHI N THE REACH OF MANY, A LARGE BLOCK OF LAND WILL HAVE TO BE DEVELOPED BY PR EPARING A LAY-OUT, CARVING OUT ROADS, LEAVING OPEN SPACE, PLOTTING OUT SMALLER PLOTS, WAITING FOR PURCHASERS (MEANWHILE THE INVESTED MONEY WILL B E BLOCKED UP) AND THE HAZARDS OF AN ENTREPRENEUR. THE FACTOR CAN BE D ISCOUNTED BY MAKING A DEDUCTION BY WAY OF AN ALLOWANCE AT AN APPROPRIAT E RATE RANGING APPROXIMATELY BETWEEN 20% TO 50% TO ACCOUNT FOR LAN D REQUIRED TO BE SET APART FOR CARRYING OUT LANDS AND PLOTTING OUT SMALL PLOTS. THE DISCOUNTING WILL TO SOME EXTENT ALSO DEPEND ON WHETHER IT IS A RURAL AREA OR URBAN AREA, WHETHER BUILDING ACTIVITY IS PICKING UP, AND WHETHER WAITING PERIOD DURING WHICH THE CAPITAL OF THE ENTREPRENEUR WOULD BE LOCKED UP, WILL BE LONGER OR SHORTER AND THE ATTENDANT HAZARDS. (12) EVERY CASE MUST BE DEALT WITH ON ITS OWN FACT PATTERN BEARING IN MIND ALL THESE FACTORS AS A PRUDENT PURCHASER OF LA ND IN WHICH POSITION THE JUDGE MUST PLACE HIMSELF. (13) THESE ARE GENERAL GUIDELINES TO BE APPLIED WIT H UNDERSTANDING INFORMED WITH COMMON SENSE.' 10. IN SO FAR AS THE RATE OF LAND VIS--VIS RATE OF TDR IS CONCERNED THERE IS NO DENYING THE FACT THAT THERE IS BOUND TO BE DIFFERENCES IN THE RATES. FOR THE PURPOSE OF COMPARATIVE ANALYSIS THEY H AVE TO BE RATIONALLY EQUATED, IF THERE ARE NO OTHER SALE INSTANCES O F SIMILAR NATURE AVAILABLE FOR EVALUATION. IN OUR CONSIDERED OPINION THIS ISSUE NEEDS A REVISIT TO THE FILE OF ASSESSING OFFICER. THE ASSESSING OFFICER S HALL REFER 11 ITA NOS. 1777 & 1778/PN/2013, A.Y. 2008-09 THE VALUATION TO DVO FOR DE NOVO ESTIMATING THE VALUE OF LAND. THE DVO SHALL AFTER CONSIDERING THE SALE INSTANCES OF SIMILARLY EN CUMBERED LAND, IF ANY IN THE AREA AND IN THE LIGHT OF GUIDELINES LAID DOW N BY HON'BLE SUPREME COURT OF INDIA SHALL RE-ESTIMATE THE VALUE OF PROPERTY. THE ASSESSEE SHALL ALSO ASSIST THE DVO IN PROVIDING THE S ALE INSTANCES OF THE LAND WHICH ARE COMPARABLE. THE ASSESSING OFFICER AFTER OBTA INING THE REPORT OF DVO SHALL DECIDE THIS ISSUE AFRESH, IN ACCORDA NCE WITH LAW. 11. IN THE RESULT, THE APPEALS OF THE ASSESSEES ARE ALLOW ED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED ON MONDAY, THE 09 TH DAY OF MAY, 2016. SD/- SD/- ( . . / R.K. PANDA) ( ! ' / VIKAS AWASTHY) #' / ACCOUNTANT MEMBER $ % #' / JUDICIAL MEMBER / PUNE; &# / DATED : 09 TH MAY, 2016 RK *+,$-.'/'(- / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT. 2. / THE RESPONDENT. 3. ' () / THE CIT(A)-I, NASHIK 4. ' / THE CIT-I, NASHIK 5. !*+ %%,- , ,- , . /01 , / DR, ITAT, A BENCH, PUNE. 6. + 2 34 / GUARD FILE. // ! % // TRUE COPY// #5 / BY ORDER, %6 ,1 / PRIVATE SECRETARY, ,- , / ITAT, PUNE