Appeal Details
Counselvise Citation
[2015] 140 COUNSELVISE.COM (IT) 94218 (ITAT-AHMEDABAD)
Assessee PAN
Bench
Appeal Number
CRN Number
Duration Of Justice
3 year(s) 6 month(s) 17 day(s)
Appellant
Respondent
Appeal Type
Income Tax Appeal
Pronouncement Date
07-08-2015
Appeal Filed By
Assessee
Order Result
Allowed
Bench Allotted
A
Next Hearing Date
24-07-2015
Assessment Year
2008-2009
Appeal Filed On
20-01-2012
Judgement Text
, , IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, AHMEDABAD BEFORE SHRI RAJPAL YADAV, JUDICIAL MEMBER AND SHRI ANIL CHATURVEDI, ACCOUNTANT MEMBER ./ I.T.A. NO.178/AHD/2012 ( / ASSESSMENT YEAR : 2008-09) SHRI HSAMUKHLAL R.JARIWALA 3/12246, SALABATPURA BALABHAI STREET SURAT / VS. THE ITO WRD-2(2) SURAT ./ ./ PAN/GIR NO. : AAQPJ 6788 G ( / APPELLANT ) .. ( / RESPONDENT ) / APPELLANT BY : SHRI RUSHI PARIKH, A.R. / RESPONDENT BY : SHRI DINESH SINGH, SR.DR / DATE OF HEARING 24/07/2015 !'# / DATE OF PRONOUNCEMENT 07/08/2015 / O R D E R PER SHRI ANIL CHATURVEDI, ACCOUNTANT MEMBER : THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST T HE ORDER OF THE LD.COMMISSIONER OF INCOME TAX(APPEALS)-II, SURAT [CIT(A) IN SHORT] DATED 14/11/2011 FOR ASSESSMENT YEAR (AY) 2008-09. 2. THE FACTS AS CULLED OUT FROM THE MATERIAL ON REC ORD ARE AS UNDER: 2.1. ASSESSEE IS AN INDIVIDUAL STATED TO BE EARNING INCOME FROM GREY CLOTH MANUFACTURING AND SELLING. ASSESSEE HAS FILE D HIS RETURN OF INCOME ITA NO.178 /AHD /2012 SHRI HASMUKHLAL R.JARIWALA VS. ITO ASST.YEAR 2008-09 - 2 - FOR AY 2008-09 ON 08/08/2008 SHOWING TOTAL INCOME O F RS.65,820/-. THE CASE WAS SELECTED FOR SCRUTINY AND THEREAFTER T HE ASSESSMENT U/S.143(3) OF THE I.T. ACT (HEREINAFTER REFERRED TO AS THE ACT) WAS FRAMED BY THE AO VIDE ORDER DATED 13/12/2010 AND THE TOTAL INCOME WAS DETERMINED AT RS.10,58,230/-. AGGRIEVED BY THE ORD ER OF THE AO, ASSESSEE CARRIED THE MATTER BEFORE THE LD.CIT(A), W HO VIDE HIS ORDER DATED 14/11/2011 DISMISSED THE APPEAL OF THE ASSESS EE. AGGRIEVED BY THE AFORESAID ORDER OF LD.CIT(A), THE ASSESSEE IS NOW I N APPEAL BEFORE US AND HAS RAISED THE FOLLOWING GROUNDS. 1. THE CIT(A) ERRED IN NOT CONSIDERING THE REVISED RE TURN FILED PRIOR TO THE DATE OF RECEIPT OF ASSESSMENT ORDER. 2. THE CIT(A) ERRED IN NOT CONSIDERING & ADMITTING THE REVISED RETURN FILED AS ADDITIONAL GROUND VIDE RULE 46A(1)(A) & 46A(1)(C ). 3. THE CIT(A) ERRED IN NOT CONSIDERING THE CONTENTS OF AFFIDAVIT FILED. THE ASSESSEE CANNOT BE PRESUMED TO BE AWARE OF THE DATE OF PASSING THE ASSESSMENT ORDER. 4. THE CIT(A) ERRED IN NOT APPRECIATING VALUATION REPO RT VALUING THE PROPERTY AS ON 01/04/1981 FILED WITH THE REVISED RE TURN. 5. THAT THE ORDERS OF AUTHORITIES BELOW VIZ.CIT(A) & A .O. MAY KINDLY BE SET ASIDE & THE MATTER MAY KINDLY BE RESTORED BACK TO T HE FILE OF A.O. WITH NECESSARY DIRECTIONS TO RECOMPUTED THE LONG TERM CA PITAL GAIN WORKING AS PER REVISED RETURN FILED. 6. THE CIT(A) ERRED IN NOT GIVING DEDUCTION OF SECTION 50EC FOR RS.1,00,000 INVESTED. 7. THE APPELLANT CRAVES LEAVE TO ADD, ALTER, AMEND, DE LETE/CHANGE OR MODIFY ANY OR ALL THE GROUNDS OF APPEAL AT THE TIME OF HEA RING. 2.2. SUBSEQUENTLY, THE ASSESSEE HAS ALSO RAISED ADD ITIONAL GROUND, WHICH READS AS UNDER:- ITA NO.178 /AHD /2012 SHRI HASMUKHLAL R.JARIWALA VS. ITO ASST.YEAR 2008-09 - 3 - APPELLANT CRAVES LEAVE TO RAISE THIS ADDITIONAL GRO UND OF APPEAL BEFORE THE HONBLE ITAT AS ATTACHED HEREWITH. THIS GROUND IS TO REFER THE MATTER TO DVO AS AGAINS T THE ADOPTION OF STAMP DUTY VALUATION U/S.50C BY THE APP ELLANT BEFORE THE LD.AO IN ITS LETTER DATED 10/12/2010 (AO PAGE 3 PAR A-6). THUS THE FACTS ABOUT SUCH REQUEST MADE TO THE AO IS ON RECORD. ON IDENTICAL FACTS IN THE CASE OF ANOTHER JOINT HOL DER (SELLER OF SAID PROPERTY ALONGWITH APPELLANT) NAMELY SHRI NILE SHKUMAR H.JARIWALA, THE VALUATION IS REFERRED TO THE DVO AN D THE DVO HAS ARRIVED AT FAIR MARKET VALUE AS PER COPY ATTACHED. THE GROUND HAS REMAINED TO BE TAKEN IN THE MEMO OF APPEAL INADVERTENTLY BUT IS A LEGALLY ALLOWABLE CLAIM AND IS RAISED AS SUCH BEING MANDATORY IN LAW ONCE THE OBJECTION TAKEN IN TERMS OF SEC.50C(2) AND IN THE BEST INTEREST OF JUSTICE. THE HONBLE ITAT BE PLEASED TO ADMIT THE SAME SINCE AS PER THE JUDGEMENT OF RAJASTHAN HIGH COURT IN THE CASE OF SH ILPA ASSOCIATES (263 ITR 317), IT CAN BE RAISED BEFORE THE HONBLE ITAT. 2.3. BEFORE US, AT THE OUTSET, THE LD.AR SUBMITTED THAT THOUGH THE ASSESSEE HAS RAISED VARIOUS GROUNDS BUT THE ONLY EF FECTIVE ISSUE IS WITH RESPECT TO THE ADDITION MADE BY FOLLOWING THE VALUA TION METHOD U/S.50C OF THE ACT. 3. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE AO NOTICED THAT ASSESSEE OWNED 14 PROPERTIES WITH 17 OTHER CO-OWNER S AND HIS SHARE IN THE PROPERTY WAS SHOWN AT 1/18 TH PART IN THE SALE PROCEEDS. HE ALSO NOTICED THAT ASSESSEE HAS SOLD PROPERTIES WHOSE DOC UMENT VALUE WAS ITA NO.178 /AHD /2012 SHRI HASMUKHLAL R.JARIWALA VS. ITO ASST.YEAR 2008-09 - 4 - RS.2,37,34,750/- AND ASSESSEES SHARE IN SALE PROCE EDS WAS AT RS.13,18,595/-. ASSESSEE HAD WORKED OUT LONG TERM CAPITAL LOSS (LTCL) OF RS.1,83,713/- BY CLAIMING THE COST OF ACQ UISITION AT RS.2,70,258/- AND THE INDEX COST OF ACQUISITION WAS DETERMINED AT RS.14,89,122/-. THE AO OBTAINED INFORMATION U/S.13 3(6) OF THE ACT FROM SUB-REGISTRAR, NAVAGAM, SURAT AND ACCORDING TO WHIC H THE STAMP DUTY VALUE OF THE PLOT OF LAND THAT WAS SOLD WAS RS.4,48 ,50,675/-. THE AO WAS OF THE VIEW THAT AS PER THE PROVISIONS OF SECTI ON 50C OF THE ACT, THE VALUE ADOPTED FOR STAMP DUTY PURPOSE SHOULD BE DEEM ED AS THE FULL VALUE CONSIDERATION RECEIVED OR ACCRUING AS A RESULT OF T RANSFER AND, THEREFORE, ACCORDING TO THE AO, THE SHARE OF ASSESSEE AS PER T HE PROVISIONS OF SECTION 50C OF THE ACT WAS RS.24,91,704/- AND THE C APITAL GAIN WAS RS.9,89,396/-. THE SUBMISSIONS OF THE ASSESSEE BEF ORE AO THAT IN THEIR OPINION, THE SALE RATE OF RS.10,000/- PER SQ.METER WAS TRUE AND FAIR MARKET VALUE AND THAT THE PURCHASER PAID STAMP DUTY AT RS. 18,500/- PER SQ.METER WITHOUT THEIR KNOWLEDGE WAS NOT FOUND ACCEPTABLE TO THE AO. BEFORE THE AO, ASSESSEE ALSO SUBMITTED THAT THE CASE MAY BE RE FERRED TO DVO WHICH WAS ALSO NOT ACCEPTED BY AO. THE AO THEREAFTER PR OCEEDED AND WORKED OUT THE CAPITAL GAIN AT RS.9,89,396/- AS AGAINST TH E LTCL OF RS.1,83,713/- THAT WAS WORKED OUT BY THE ASSESSEE. AGGRIEVED BY THE ORDER OF THE AO, ASSESSEE CARRIED THE MATTER BEFORE THE LD.CIT(A), W HO UPHELD THE ORDER OF THE AO AND DISMISSED THE APPEAL OF THE ASSESSEE BY HOLDING AS UNDER:- ITA NO.178 /AHD /2012 SHRI HASMUKHLAL R.JARIWALA VS. ITO ASST.YEAR 2008-09 - 5 - 5. I HAVE GONE THROUGH THE FACTS OF THE CASE. TH E A.O. HAS APPLIED SECTION 50C TO DETERMINE THE LONG TERM CAPITAL GAIN INCOME. HE HAS ACCEPTED ALL OTHER PARAMETERS IN RESPECT OF DETERMI NATION OF LONG TERM CAPITAL GAIN, I.E. COST OF ACQUISITION AS ON 01.04. 1981 AND EXPENSES INCURRED FOR THE TRANSACTION. FROM THE WRITTEN SUB MISSIONS OF THE APPELLANT, HIS GRIEVANCE IS THAT THE REVISED RETURN WHICH WAS FILED BEFORE THE PERIOD OF LIMITATION BUT AFTER THE COMPLETION O F ASSESSMENT SHOULD HAVE BEEN CONSIDERED BY THE A.O. AND NOT HAVING DON E THAT THE A.O. HAD DENIED JUSTICE AND ON THIS BASE IT IS PLEADED THAT THE REVISED RETURN SHOULD BE ACCEPTED AS ADDITIONAL EVIDENCE VIDE RULE -46(1)(A) AND RULE- 46(1)(C). THE PROVISIONS FOR FILING OF REVISED RET URN IN SECTION-139(5) STIPULATE THAT REVISED RETURN CAN BE FILED WITHIN O NE YEAR FROM THE END OF THE RELEVANT ASSESSMENT YEAR OR ANY TIME BEFORE THE COMPLETION OF ASSESSMENT. THEREFORE, THE REVISED RETURN CANNOT B E CONSIDERED AS IT WAS FILED AFTER THE COMPLETION OF THE ASSESSMENT AN D HENCE NON-EST. EVEN IF IT IS CONSIDERED AS ADDITIONAL EVIDENCE, IT WOULD NOT BENEFIT THE APPELLANT IN ANY WAY BECAUSE IN THE REVISED RETURN THE APPELLANT HAS HIMSELF ADOPTED THE STAMP DUTY VALUATION AS THE FUL L VALUE OF CONSIDERATION, THEREBY PUTTING TO REST ANY CONTROVE RSY IN REGARD TO VALUE TO BE ADOPTED AS CONSIDERATION IN COMPUTATION OF CA PITAL GAIN. IN THE REVISED RETURN THE APPELLANT CLAIMED THAT THE FAIR MARKET VALUE OF HIS SHARE OF THE PROPERTY AS ON 01.04.1981 WAS RS.38666 7/- AND NOT RS.270258/- AS TAKEN BY HIM IN THE ORIGINAL RETURN. THOUGH IN HIS SUPPORT THE APPELLANT HAS FILED A VALUATION REPORT IT IS IN CONTRADICTION TO HIS OWN VALUATION IN THE ORIGINAL RETURN AND FOR THIS REASON ALONE IS REQUIRED TO BE REJECTED AS AN AFTERTHOUGHT WITH THE SINGLE MOTIVE OF REDUCING TAX LIABILITY. THE ASSESSEE HAS ALSO CLAI MED DEDUCTION U/S.54EC OF RS.1,00,000/- IN THE REVISED RETURN BUT NO DETAILS HAS BEEN MENTIONED REGARDING THE INVESTMENT IN THE REVISED R ETURN AND NO EVIDENCE WAS PLACED BEFORE ME AND FOR THIS REASON A S ALSO FOR THE REASON THAT THE REVISED RETURN WAS NON-EST, IT CANN OT BE ALLOWED. IT IS THEREFORE HELD THAT THE ACTION OF THE A.O.IN APPLYI NG SECTION 50C WAS IN ORDER AND COMPUTATION OF CAPITAL GAIN MADE BY HIM R EQUIRES NO INTERFERENCE. 6. IN THE RESULT, THE APPEAL IS DISMISSED. ITA NO.178 /AHD /2012 SHRI HASMUKHLAL R.JARIWALA VS. ITO ASST.YEAR 2008-09 - 6 - 4. AGGRIEVED BY THE ORDER OF LD.CIT(A), ASSESSEE IS NOW IN APPEAL BEFORE US. 5. BEFORE US, LD.AR FOR THE ASSESSEE REITERATED THE SUBMISSIONS AS WERE MADE BEFORE THE AO AND LD.CIT(A) AND FURTHER S UBMITTED THAT BEFORE THE AO A REQUEST WAS MADE TO HIM TO SEEK REP ORT OF DVO ON THE MARKET VALUE OF PROPERTY THAT WAS SOLD BUT THE REQU EST WAS NOT ACCEPTED BY THE AO AND THAT THE AO WAS NOT JUSTIFIED IN ADOP TING THE VALUE OF THE PROPERTY AS ADOPTED BY THE STAMP VALUATION AUTHORIT Y WITHOUT REFERRING TO THE DVO FOR ASCERTAINING THE FAIR MARKET VALUE O F THE PROPERTY. HE FURTHER SUBMITTED THAT ON IDENTICAL ISSUE, IN THE C ASE OF CO-OWNERS, THE MATTER HAS BEEN SET ASIDE BY THE HONBLE TRIBUNAL ( ITAT BENCH A AHMEDABAD), ORDER DATED 14/05/2015, TO THE FILE OF AO AND THE HONBLE TRIBUNAL HAS DIRECTED AO TO MAKE ASSESSMENT IN ACCO RDANCE WITH THE VALUATION MADE BY THE DVO. HE THEREFORE SUBMITTED THAT SINCE IN THE CASE OF CO-OWNERS THE MATTER HAS BEEN SET ASIDE, AN D THE ISSUE BEING IDENTICAL TO THAT OF THE CO-OWNERS IN THE PRESENT C ASE ALSO, THE MATTER BE SET ASIDE TO THE FILE OF AO. THE LD.DR, ON THE OT HER HAND, FOR THE REVENUE SUPPORTED THE ORDERS OF THE AO AND CIT(A). 6. WE HAVE HEARD THE RIVAL SUBMISSIONS, PERUSED THE MATERIAL AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW. IN THE PRESENT CASE, THE AO HAD MADE ADDITION ON TH E BASIS OF THE DIFFERENCE IN VALUE OF THE PROPERTY DECLARED BY THE ASSESSEE AS SALE ITA NO.178 /AHD /2012 SHRI HASMUKHLAL R.JARIWALA VS. ITO ASST.YEAR 2008-09 - 7 - CONSIDERATION AND THE VALUE THAT WAS ADOPTED BY THE STAMP VALUATION AUTHORITY. THE SUBMISSION OF LD.AR THAT IN THE C ASE OF CO-OWNERS, THE MATTER HAS BEEN RESTORED TO AO BY THE TRIBUNAL HAS NOT BEEN CONTROVERTED BY LD.DR. WE FIND THAT IN THE CASE(S) OF S/SHRI AJ AY HASMUKHLAL JARIWALA AND DHANESH K.JARIWALA HUF, THE OTHER CO-O WNERS, THE COORDINATE BENCH OF THIS TRIBUNAL (ITAT BENCH A A HMEDABAD) IN ITA NOS.179 & 180/AHD/2010 RESPECTIVELY FOR AY 2008 -09 VIDE ITS ORDER DATED 14/05/2015 HAD SET ASIDE THE ISSUE TO T HE FILE OF AO, BY HOLDING AS UNDER:- 4. MATTER WAS CARRIED BEFORE THE FIRST APPELLA TE AUTHORITY, WHEREIN VARIOUS CONTENTIONS WERE RAISED ON BEHALF OF ASSESS EE AND HAVING CONSIDERED THE SAME CIT(A) UPHELD THE ORDER OF ASSESSING OFFIC ER. BEFORE US, LEARNED AUTHORIZED REPRESENTATIVE SUBMITTED THAT ASSESSING OFFICER SHOULD HAVE REFER THE MATTER TO DISTRICT VALUATION OFFICER IN VIEW OF OBJECTION TAKEN BY ASSESSEE AND ALSO FULFILLING THE CONDITION OF SECTION 50C. L EARNED AUTHORIZED REPRESENTATIVE POINTED OUT THAT ITAT 'C' BENCH ON I DENTICAL ISSUE IN CASE OF ONE OF THE CO-OWNER SHRI NIKUNJKUMAR H. JARIWALA V S. ITO IN ITA NO. 2404/AND/2011 HAS CONSIDERED THE FACTS AND SET ASID E THE MATTER TO ASSESSING OFFICER TO MAKE ASSESSMENT IN ACCORDANCE WITH VALUA TION AS PER DISTRICT VALUATION OFFICER BY OBSERVING AS UNDER: 5. WE HAVE HEARD THE RIVAL SUBMISSIONS, PERUSED TH E MATERIAL AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF THE AUTHOR ITIES BELOW. WE FIND THAT IN THE INSTANT CASE, THE AO HAS MADE ADDITION ON TH E BASIS OF THE DIFFERENCE IN THE VALUE OF THE PROPERTY DECLARED BY THE ASSESSEE AS SALE CONSIDERATION AND ADOPTED BY THE STAMP VALUATION AUTHORITY. THE CONT ENTION OF THE LD.COUNSEL FOR THE ASSESSEE IS THAT IN TERMS OF THE PROVISIONS OF SECTION 50C(1) OF THE ACT, WHERE THE AO FINDS THAT THE CONSIDERATION RECEIVED OR ACCRUING AS A RESULT OF THE TRANSFER BY AN ASSESSEE OF A CAPITAL ASSET, BE ING LAND OR BUILDING OR BOTH, IS LESS THAN THE VALUE ADOPTED OR ASSESSED (OR ASS ESSABLE) BY ANY AUTHORITY OF ITA NO.178 /AHD /2012 SHRI HASMUKHLAL R.JARIWALA VS. ITO ASST.YEAR 2008-09 - 8 - A STATE GOVERNMENT FOR THE PURPOSE OF PAYMENT OF ST AMP DUTY IN RESPECT OF SUCH TRANSFER, THE VALUE SO ADOPTED OR ASSESSED (OR ASSESSABLE) SHALL, FOR THE PURPOSES OF SECTION 48, BE DEEMED TO BE THE FULL VA LUE OF THE CONSIDERATION RECEIVED OR ACCRUING AS A RESULT OF SUCH TRANSFER. THE LD.COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE AO ADOPTED THE FULL VAL UE OF THE CONSIDERATION AS ADOPTED BY THE STAMP VALUATION AUTHORITY. HOWEVE R, THE AO FAILED TO TAKE NOTE OF THE MANDATE OF SUB-SECTION(2) OF SECTION 5 0C OF THE ACT. AT THIS JUNCTURE, IT WOULD BE APPROPRIATE TO REPRODUCE HERE UNDER THE SECTION 50C(2) OF THE ACT FOR THE BETTER APPRECIATION OF THE SUBMI SSION OF LD.COUNSEL FOR THE ASSESSEE. SECTION 50C(2) :- WITHOUT PREJUDICE TO THE PROVISIONS OF SUB-SECTI ON (1), WHERE (A) THE ASSESSEE CLAIMS BEFORE ANY ASSESSING OFFICER THAT THE VALUE ADOPTED [OR ASSESSED OR ASSESSABLE] BY THE STAMP VALUATION AUTHORITY UNDER SUB-SECTION (1) EXCEEDS THE FAIR MARKET VALUE OF THE PROPERTY AS ON THE DATE OF TRANSFER; (B) THE VALUE SO ADOPTED [OR ASSESSED OR ASSESSABLE] B Y THE STAMP VALUATION 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 ASSESSING OFFICER MAY REFER THE VALUATION OF THE CAPITAL ASSET TO A VALUATION OFFICER AND WHERE ANY SUCH REFERENCE IS M ADE, THE PROVISIONS OF SUB-SECTIONS (2), (3), (4), (5) AND (6) OF SECTION 16 A, CLAUSE (I) OF SUB- SECTION (1) AND SUB-SECTIONS (6) AND (7) OF SECTION 2 3A, SUB-SECTION (5) OF SECTION 24, SECTION 34AA, SECTION 35 AND SECTION 37 OF THE WEALTH-TAX ACT, 1957 (27 OF 1957), SHALL, WITH NECESSARY MODIFICATI ONS, APPLY IN RELATION TO SUCH REFERENCE AS THEY APPLY IN RELATION TO A REFER ENCE MADE BY THE ASSESSING OFFICER UNDER SUB-SECTION (1) OF SECTION 16A OF THAT ACT. EXPLANATION. : [1] FOR THE PURPOSES OF THIS SECTION, 'VALUATION OFFIC ER' SHALL HAVE THE SAME MEANING AS IN CLAUSE (R) OF SECT ION 2 OF THE WEALTH- TAX ACT, 1957 (27 OF 1957). [ EXPLANATION 2 : FOR THE PURPOSES OF THIS SECTION, THE EXPRESSION 'ASSESSABLE' MEANS THE PRICE WHICH THE STAMP VALUAT ION AUTHORITY WOULD HAVE, NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTA INED IN ANY OTHER LAW FOR THE TIME BEING IN FORCE, ADOPTED OR ASSESSED, IF I T WERE REFERRED TO SUCH AUTHORITY FOR THE PURPOSES OF THE PAYMENT OF STAMP DUT Y.] ITA NO.178 /AHD /2012 SHRI HASMUKHLAL R.JARIWALA VS. ITO ASST.YEAR 2008-09 - 9 - 5.1. THE LD.COUNSEL FOR THE ASSESSEE HAS DRAWN OUR ATTENTION TOWARDS PARA-6 OF THE ASSESSMENT ORDER IN SUPPORT OF THE CO NTENTION THAT BEFORE THE AO A REQUEST WAS MADE TO REFER THE CASE TO DVO FOR SEEKING HIS REPORT ON THE FAIR MARKET VALUE OF THE PROPERTY. P ARA-6 OF THE ASSESSMENT ORDER IS REPRODUCED HEREINBELOW:- 6. THE REPLY OF THE ASSESSEE DATED 10.12.2010 IS REPRODUCED AS UNDER:- WE JUST COME TO KNOW THAT ONE OPEN LAND IN THE SAM E LOCALITY WAS SOLD AT 5,000/- PER SQ.MT. BEFORE ONE YEAR AGO , WE ARE IN THE OPINION THAT WHAT WE GOT AMOUNT @ 10,000/- PER SQ.M T. IS TRUE & FAIR MARKET VALUE. SECONDLY, WE ARE OF THE OPINION TO REFER THE CASE T O THE D.V.O., SURAT TO JUSTIFY THE CASE. THERE ARE CASES OF JUDGEMENT OF : NEW KALINDI KAMAVATI CO-OP. HOUSING SOCIETY LTD. VS . STATE OF GUJARAT & ORS. 2006(2) GUJ.L.R.VOL.XL VII(2). DINESHKUMAR MITTAL VS. ITO 193 ITR 770 (ALL.) HINDUSTAN MOTORS LTD. VS. MEMBERS APPROPRIATE AUTHO RITY (2001) 249 ITR 424 (MAD.) K.R. PALANISAMY VS. UOI 306 ITR 61 (MAD.). IN WHICH THE JUNTRY VALUE IS A GUIDELINE & NOT INST RUMENT TO LAY DOWN ON THE ASSESSEE. 5.2. THEREFORE, IN VIEW OF THE PROVISIONS OF SECTIO N 50C(2) OF THE ACT, WE ARE OF THE CONSIDERED VIEW THAT THE AO WAS NOT J USTIFIED IN ADOPTING THE VALUE OF THE PROPERTY AS ADOPTED BY THE STAMP VALUATION AUTHORITY WITHOUT REFERRING TO THE DVO FOR ASCERTAINING THE F AIR MARKET VALUE OF THE PROPERTY. THEREFORE, THE ORDERS OF THE AUTHORI TIES BELOW ON THIS ISSUE ARE HEREBY SET ASIDE AND THE ADDITIONAL GROUN D RAISED BY THE ASSESSEE IS RESTORED BACK TO THE FILE OF AO TO DECI DE THE SAME IN ACCORDANCE WITH LAW. NEEDLESS TO SAY THAT THE AO W OULD AFFORD REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESS EE BEFORE PASSING ITA NO.178 /AHD /2012 SHRI HASMUKHLAL R.JARIWALA VS. ITO ASST.YEAR 2008-09 - 10 - THE ORDER. THUS, ADDITIONAL GROUND RAISED BY THE A SSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. NOTHING CONTRARY WAS BROUGHT TO OUR KNOWLEDGE. FACT S BEING SIMILAR, SO FOLLOWING SAME REASONING, WE HOLD THAT ASSESSING OF FICER WAS NOT JUSTIFIED IN ADOPTING VALUE OF PROPERTY AS ADOPTED BY STAMP VALU ATION AUTHORITY WITHOUT REFERRING TO DISTRICT VALUATION OFFICER FOR ASCERTA IN FAIR MARKET VALUE OF THE PROPERTY. THEREFORE, FOLLOWING THE REASONING OF SHR I NIKUNJKUMAR H. JARIWALA, WE SET ASIDE THE ORDER OF AUTHORITIES BELOW ON THE ISSUE AND ISSUE RAISED BY WAY OF ADDITIONAL GROUND BY ASSESSEE IS RESTORED BACK T O THE FILE OF ASSESSING OFFICER WITH DIRECTION TO DECIDE THE SAME IN ACCORD ANCE WITH LAW AFTER PROVIDING DUE OPPORTUNITY OF BEING HEARD TO ASSESSE E'. 7. SINCE THE FACTS OF THE CASE ARE IDENTICAL TO THA T OF CO-OWNERS WHICH HAS BEEN DECIDED BY THE COORDINATE BENCH OF TRIBUNA L, WE, THEREFORE SET ASIDE THE ISSUE WITH SIMILAR DIRECTIONS AS GIVEN BY THE COORDINATE BENCH OF TRIBUNAL,IN THE CASE OF CO-OWNERS, TO THE FILE OF AO TO DECIDE THE SAME IN ACCORDANCE WITH LAW AFTER PROVIDING REASONABLE O PPORTUNITY OF HEARING TO THE ASSESSEE. THUS, ALL THE GROUNDS RAISED BY T HE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. 8. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE COURT ON 07/08/2015 SD/- SD/- ( RAJPAL YADAV ) ( ANIL CHATURVED I ) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD; DATED 7 / 08 /2015 &.., .(../ T.C. NAIR, SR. PS ITA NO.178 /AHD /2012 SHRI HASMUKHLAL R.JARIWALA VS. ITO ASST.YEAR 2008-09 - 11 - !'#$%$' / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. )*+ , / CONCERNED CIT 4. , ( ) / THE CIT(A)-II, SURAT 5. /01 ((*+ , *+# , ) / DR, ITAT, AHMEDABAD 6. 145 6 / GUARD FILE. / BY ORDER, / ( //TRUE COPY// / ( DY./ASSTT.REGISTRAR) , / ITAT, AHMEDABAD 1. DATE OF DICTATION .. 24.7.15 (DICTATION-PAD 12- PAGES ATTACHED AT THE END OF THIS FILE) 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 24.7.15 3. OTHER MEMBER 4. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.P. S./P.S.. 5. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 6. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. P.S./P.S.7.8.15 7. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 7.8.15 8. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK ... 9. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER.. 10. DATE OF DESPATCH OF THE ORDER
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