Sri.Mathew Vellappally, Kottayam V. The ITO, Kottayam

ITA 198/COCH/2014

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 77465 (ITAT-COCHIN)
• Duration Of Justice: 1 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-07-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2009-2010
• Appeal Filed On: 06-05-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: LATHA V KUMAR
• Assessee Lawyers: ISSAC T PAUL
• Keywords: Fair market value

Judgement Text

1 ITA NO.198/COCH/2014 IN THE INCOME TAX APPELLATE TRIBUNAL COCHIN BENCH, COCHIN BEFORE SHRI N.R.S. GANESAN (JM) AND SHRI CHANDRA PO OJARI (AM) I.T.A NO.198/COCH/2014 (ASSESSMENT YEAR 2009-10) SHRI MATHEW VELLAPPALLY VS ITO, WD.3 3/120B, SMART APARTMENTS PUBLIC LIBRARY BLDG DEVALOKAM, KOTTAYAM SASTRI ROAD, KOTTAYAM PAN : ABOPV6306M (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI ISSAC T PAUL RESPONDENT BY : SMT; LATHA V KUMAR, JR DR DATE OF HEARING : 26-06-2014 DATE OF PRONOUNCEMENT : 04-07-2014 O R D E R PER N.R.S. GANESAN (JM) THIS APPEAL OF THE ASSESSEE IS DIRECTED AGAINST TH E ORDER OF THE CIT(A)-IV, KOCHI DATED 25-02-2014 FOR THE ASSESSMEN T YEAR 2009-10. 2. THE ONLY ISSUE ARISES FOR CONSIDERATION IS ESTIM ATION OF FAIR MARKET VALUE AS ON 01-04-1981. 3. SHRI ISSAC T PAUL, THE LD.COUNSEL FOR THE ASSESS EE SUBMITTED THAT THE ASSESSEE SOLD HIS IMMOVABLE PROPERTY ON 04-03-2009. THE ASSESSING 2 ITA NO.198/COCH/2014 OFFICER HAS SIMPLY TAKEN THE VALUE SHOWN IN THE SET TLEMENT DEED FOR INDEXATION. ON APPEAL, THE CIT(A), WITHOUT ANY BAS IS FIXED THE FAIR MARKET VALUE AT RS.2,56,602. ACCORDING TO THE LD.COUNSEL, THE CIT (A) OUGHT TO HAVE TAKEN THE VALUE AT RS.5,13,205 AS ON 01-04-198 1. THE CIT(A) HAS TAKEN THE VALUE OF THE BUILDING AND LAND AT 50%. A CCORDING TO THE LD.COUNSEL, THE DOCUMENT REFERRED BY THE CIT(A) DOE S NOT DISCLOSE ANY SPECIFIC VALUE TO THE BUILDING. THE LD.COUNSEL SUB MITTED THAT THE VALUE FIXED BY THE CIT(A) WITHOUT ANY REASON CANNOT BE SUSTAINE D. WE HEARD SMT. LATHA V KUMAR, THE LD.DR ALSO. 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS ON EITH ER SIDE AND ALSO PERUSED THE MATERIAL AVAILABLE ON RECORD. THE ISSU E ARISES FOR CONSIDERATION IS VALUATION OF THE PROPERTY TRANSFER RED AS ON 01-04-1981 FOR THE PURPOSE OF COMPUTING THE CAPITAL GAIN. FOR THE PURPOSE OF ESTIMATING THE VALUE, SEVERAL FACTORS SUCH AS LOCATION OF THE PROPERTY, EXTENT OF THE PROPERTY, INFRASTRUCTURE FACILITIES AVAILABLE NEAR THE LOCALITY, ACCESSIBILITY TO PUBLIC PATHWAY / ROAD, ETC. NEED TO BE TAKEN INTO C ONSIDERATION. THE MARKET PRICE IS NOTHING BUT A PRICE AGREED BETWEEN A WILLING PURCHASER AND WILLING SELLER IN THE NORMAL CIRCUMSTANCES. A REFERENCE TO SALE DEED IN THE LOCALITY AT THE RELEVANT POINT OF TIME CAN ALSO BE TAKEN INTO CONSIDERATION IN ADDITION TO THE GUIDELINE VALUE TH AT MAY BE FIXED BY THE STATE GOVERNMENT FOR ESTIMATING THE MARKET VALUE. THOUGH GUIDELINE VALUE 3 ITA NO.198/COCH/2014 ITSELF MAY NOT REPRESENT THE MARKET VALUE, HOWEVER, THE ASSESSING OFFICER CAN TAKE INTO CONSIDERATION THE GUIDELINE VALUE FIX ED BY THE STATE GOVERNMENT FOR THE PURPOSE OF ASCERTAINING THE MARK ET VALUE IN THE LOCALITY. THE LOWER AUTHORITIES HAVE NOT CONSIDERED ANY OF TH ESE FACTORS FOR THE PURPOSE OF ESTIMATING THE MARKET VALUE AS ON 01-04- 1981. THE ASSESSING OFFICER HAS SIMPLY TAKEN THE VALUE SHOWN IN THE SET TLEMENT DEED. THE SETTLEMENT DEED MAY NOT REFLECT THE CORRECT VALUATI ON SINCE IT IS NOT AN AGREED PRICE BETWEEN THE PARTIES. THERE MAY BE VAR IOUS CONSIDERATIONS FOR SETTLING THE MATTER. THEREFORE, THE CONSIDERAT ION SHOWN IN THE SALE DEED AT THE RELEVANT POINT OF TIME HAS TO BE TAKEN INTO CONSIDERATION IN ADDITION TO OTHER FACTORS. THIS TRIBUNAL IS OF THE CONSIDERED OPINION THAT THE APPLICATION OF MIND TO THE RELEVANT MATERIAL AND TH E FACTORS HAS TO BE REFLECTED IN THE RELEVANT ASSESSMENT ORDER SO AS TO ENABLE THE APPELLATE AUTHORITIES TO RIGHTLY APPRECIATE AND CONSIDER THE REASONS FOR FIXING THE MARKET VALUE AS ON 01-04-1981. SINCE THE LOWER AUT HORITIES HAVE NOT CONSIDERED ALL THE RELEVANT FACTORS FOR FIXING THE VALUE AS ON 01-04-1981, THIS TRIBUNAL IS OF THE CONSIDERED OPINION THAT THI S MATTER NEEDS TO BE DEALT WITH AFRESH BY THE ASSESSING AFTER CONSIDERING ALL THE RELEVANT FACTORS THAT MAY BE RELEVANT FOR ESTIMATING THE MARKET VALUE AS ON 01-04-1981. ACCORDINGLY, THE ORDERS OF AUTHORITIES BELOW ARE SE T ASIDE AND THE ISSUE OF COMPUTATION OF CAPITAL GAIN IS RESTORED TO THE FILE OF THE ASSESSING OFFICER. THE ASSESSING OFFICER SHALL RECONSIDER THE ISSUE AF RESH AFTER TAKING INTO 4 ITA NO.198/COCH/2014 ACCOUNT ALL THE RELEVANT FACTORS THAT MAY BE RELEVA NT FOR ESTIMATING THE MARKET VALUE AS ON 01-04-1981 AND THEREAFTER DECIDE THE ISSUE IN ACCORDANCE WITH LAW AFTER GIVING REASONABLE OPPORTU NITY OF HEARING TO THE ASSESSEE. 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED, FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 04 TH JULY, 2014. SD/- SD/- (CHANDRA POOJARI) (N.R.S. GANESAN) ACCOUNTANT MEMBER JUDICIAL MEMBER COCHIN, DT : 04 TH JULY, 2014 PK/- COPY TO: 1. MATHEW VELLAPPALLY, 3/120B, SMART APARTMENTS, DE VALOKAM, KOTTAYAM 2. THE ITO, WD.3, PUBLIC LIBRARY BLDG, SASTRI ROAD, KOTTAYAM 3. THE ADDITIONAL COMMISSIONER OF INCOME-TAX, KOTTA YAM 4. THE COMMISSIONER OF INCOME-TAX(A)-IV, KERA BHAVA N, SRV HIGH SCHOOL ROAD, NEAR JEWEL JN, KOCHI-11 5. THE DR (TRUE COPY) BY ORDER ASSTT. REGISTRAR, INCOME-TAX APPELLATE TRIBUNAL, COCHIN BENCH