Mrs. Pratibha Arvind Dhamne, Pune V. JCIT, Range-2, Aurangabad

ITA 2001/PUN/2012

• Counselvise Citation: 200124514 RSA 2012
• Duration Of Justice: 1 year(s) 1 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-11-2013
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Assessment Year: 2005-2006
• Appeal Filed On: 15-10-2012
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: P L PATHADE
• Assessee Lawyers: NILESH KHANDELWAL
• Keywords: Capital asset; Date of conversion; Fair market value; Valuation report
• Section: 45(2); 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH A , PUNE BEFORE: SHRI R.S. PADVEKAR, JUDICIAL MEMBER AND SHRI R.K. PANDA, ACCOUNTANT MEMBER ITA NO. 2001 / P N/ 20 1 2 ASSESSMENT YEAR : 200 5 - 06 MRS. PRATIBHA ARVIND DHAMNE MZSK & ASSOCIATES, LEVEL 3, BUSINESS BAY, PLOT NO. 84, WELLESELY ROAD, PUNE VS. COMMISSIONER OF INCOME TAX, AURANGABAD (APPELLANT) (RESPONDENT) PAN NO. AGJPD2422L APPELLANT BY: SHRI NILESH KHANDELWAL RESPONDENT BY: SHRI P.L. PATHADE DATE OF HEARING : 28 - 11 - 2013 DATE OF PRONOUNCEMENT : 29 - 11 - 2013 ORDER P ER R.S. PADVEKAR , JM : - IN THIS APPEAL, THE ASSESSEE HAS CHALLENGED THE IMPUGNED ORDER OF THE LD. CIT(A) , AURANGABAD DATED 24 - 09 - 2012 FOR THE A.Y. 200 5 - 06. THE ASSESSEE HAS TAKEN THE FOLLOWING GROUNDS IN THE APPEAL : 1. LEARNED TAXING AUTHORITIES BELLOW HAD ERRED IN CONSIDERING THE FAIR MARKET VALUE OF THE LAND AT RS.58,933,333/ - INSTEAD OF RS.5824000/ - BASED UPON VALUATION OF THE LAND FOR THE STAMP DUTY PURPOSE. CONSIDERING THE FACTS OF THE CASE AND PROVISIONS OF LAW, THE VALUE OF THE CAPITAL ASSET BE TREATED ON CONVERSION INTO STOCK - IN - TRADE AS DETERMINED VALUE FOR STAMP DUTY PURPOSE. JUST AND PROPER RELIEF MAY BE GRANTED TO THE APPELLANT AS PER THE PROVISIONS OF LAW. 2. THE LEARNED TAXING AUTHORIT IES BELLOW HAD ERRED IN TREATING THE INTRODUCTION OF STOCK - IN - TRADE AS TRANSFER U/S 2(47) AND TAXING THE SAID CAPITAL GAIN U/S 45(2) OF THE IT ACT, 1961 IN THE SAME YEAR IN WHICH IT WAS INTRODUCED INSTEAD ON ACTUAL SALE OF THE SAID STOCK. CONSIDERING THE F ACTS OF THE CASE AND PROVISIONS OF LAW, THE CAPITAL GAIN BE TAXED U/S 45(2) OF THE IT ACT, 1961 ON ACTUAL SALE OF THE LAND BY THE SAID 2 ITA NO. 2001/PN/2012, MRS. PRATIBHA ARVIND DHAMNE, PUNE PARTNERSHIP FIRM IN SUBSEQUENT YEAR. JUST AND PROPER RELIEF MAY BE GRANTED TO THE APPELLANT AS PER THE PROVISIONS OF LAW. 2. WE FIRST DECIDE THE GROUND NO. 2. THE FACTS WHICH ARE REVEALED FROM THE RECORD AS UNDER. THE ASSESSEE IS AN INDIVIDUAL. AS NOTED BY THE ASSESSING OFFICER THE ASSESSEE HAS ENTERED INTO THE PARTNERSHIP FIRM I.E. M/S. D.N.K. ASSOCIATES VIDE PARTNERSH IP DEED DATED 04 - 11 - 2004. ON EXAMINATION OF THE PARTNERSHIP DEED , IT WAS REVEALED THAT THE ASSESSEE HAS INTRODUCED HER LAND ADMEASURING 85R BEARING GUT NO. 136, SATARA AS HER CAPITAL CONTRIBUTION WHICH WAS VALUED AT RS.46,20,000/ - . THE ASSESSING OFFICER HAS NOTED THAT THE TRANSACTION OF INTRODUCTION OF OWN CAPITAL ASSET AS HER CAPITAL CONTRIBUTION IN THE PARTNERSHIP FIRM AND THE SUBSEQUENT TREATMENT OF THE SAME AS STOCK - IN - TRADE FALLS WITHIN THE MEANING OF DEFINITION OF TRANSFER AND ATTRACTS CAPITAL GAIN. AS THE ASSESSEE HAS NOT DISCLOSED CAPITAL GAIN IN HER RETURN OF INCOME FOR THE A.Y. 2005 - 06 , T HE ASSESSING OFFICER ISSUED THE NOTICE U/S. 148 TO THE ASSESSEE. THE ASSESSEE FILED THE RETURN OF INCOME IN RESPONSE TO NOTICE U/S. 148 DECLARING THE SAME INCO ME WHICH WAS AS PER THE ORIGINAL RETURN FILED BY HER. THE ASSESSEE CONTENDED THAT THE ASSESSEE WAS HOLDING AGRICULTUR AL LA ND AT GUT NO. 136, SATARA AS CAPITAL ASSET AND THE SAME CONVERTED INTO STOCK - IN - TRADE ON 05 - 11 - 2004 WHICH WAS VALUED AT RS.46,20,000/ - AND IT WAS INTRODUCED AS CAPITAL OF THE ASSESSEE IN M/S. D.N.K. ASSOCIATES IN THE FORM OF STOCK - IN - TRADE. THE ASSESSEE, THEREFORE, CONTENDED THAT AS PER THE PROVISIONS OF SEC. 45(3) OF THE INCOME - TAX ACT. THE SAID PROVISION IS APPLICABLE TO TRANSFER OF CAPITAL ASSET TO PARTNERSHIP FIRM AND AS THE ASSESSEE HAS INTRODUCED STOCK - IN - TRADE SO THERE WAS NO TRANSFER WITHIN THE MEANING OF SEC.45(3). THE ASSESSING OFFICER WAS NOT IMPRESSED WITH THE EXPLANATION OF THE ASSESSEE AND HELD THAT THE CAPITAL GAIN ACCR UED ON CONVERSION OF CAPITAL ASSETS INTO STOCK - IN - TRADE IS LIABLE TO TAX IN THE YEAR IN WHICH CONVERTED ASSET I.E. STOCK - IN - TRADE IS TRANSFERRED OR SOLD. HE, ACCORDINGLY, ADOPTED RS.58,93,333/ - AS THE 3 ITA NO. 2001/PN/2012, MRS. PRATIBHA ARVIND DHAMNE, PUNE ASSESSEES PROPORTIONATE SHARE AS PER THE VALUATION MA DE FOR THE REGISTRATION PURPOSE AND WORKED OUT THE CAPITAL GAIN AFTER ALLOWING THE INDEXED COST OF ACQUITION, AT RS.50,77,910/ - . THE ASSESSEE CARRIED THE MATTER BEFORE THE LD. CIT(A) BUT WITHOUT SUCCESS. AS THE LD. CIT(A) CONFIRMED THE ASSESSMENT ORDER I N WHICH THE LONG TERM CAPITAL GAIN OF RS.50,77,910/ - WAS BROUGHT TO TAX BY THE ASSESSING OFFICER. NOW THE ASSESSEE IS IN APPEAL BEFORE US. 3. WE HAVE HEARD THE PARTIES. THE LEARNED COUNSEL FAIRLY SUBMITS THAT IN THE CASE OF SHRI ARVIND P. DHAMNE (HUF), THE IDENTICAL ISSUE HAS BEEN ADJUDICATED BY THE HON'BLE TRIBUNAL , DECIDING THE ISSUE AGAINST THE ASSESSEE IN THE SAID CASE. SO FAR AS THE FACTS OF THE ASSESSEES CASE ARE CONCERNED WHICH ARE IDENTICAL WITH THE FACTS OF SHRI ARVIND P. DHAMNE (HUF) VS. ITO, WARD - 2(2), AURANGABAD, ITA NO. 1347/PN/2010 ORDER DATED 28 - 02 - 2013. THE LEARNED COUNSEL ALSO FILED THE COPY OF THE TRIBUNAL ORDER IN THE CASE OF SHRI ARVIND P. DHAMNE (HUF) (SUPRA) WHICH IS PLACED ON RECORD . WE FIND THAT THE IDENTICAL CONTROVERSY HAS BE EN CONSIDERED BY THE TRIBUNAL AS FAIRLY SUBMITTED BY THE LEARNED COUNSEL IN THE ABOVE C ITED CASE AND HAS HELD AS UNDER: 6. WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSIONS. THE FACTS IN THE INSTANT CASE LIE IN A VERY NARROW COMPASS. THE ASSESSEE ACQUIRE D CERTAIN AGRICULTURAL LAND IN THE PAST WHICH WAS HELD AS CAPITAL ASSET AND ASSESSEE CLAIMED TO HAVE CONVERTED THE SAME INTO STOCK - IN - TRADE AS ON 15 - 3 - 2007. ON THE SAME DATE, THE ASSESSEE BECAME A PARTNER IN A PARTNERSHIP FIRM M/S. KDM ASSOCIATES AND TRAN SFERRED SUCH CONVERTED STOCK - IN - TRADE INTO THE PARTNERSHIP AS HIS CAPITAL AND STATED THE VALUE AT RS. 50,00,000/ - . 7. IN THIS BACKGROUND, ASSESSEE CONTENDED THAT SEC. 45(2) OF THE ACT WAS ATTRACTED, WHICH READS AS UNDER: - 45(2) NOTWITHSTANDING ANYTHING CONTAINED IN SUB - SECTION (1), THE PROFITS OR GAINS ARISING FROM THE TRANSFER BY WAY OF CONVERSION BY THE OWNER OF A CAPITAL ASSET INTO, OR ITS TREATMENT BY HIM AS STOCK - IN - TRADE OF A BUSINESS CARRIED ON BY 4 ITA NO. 2001/PN/2012, MRS. PRATIBHA ARVIND DHAMNE, PUNE HIM SHALL BE CHARGEABLE TO INCOME - TAX AS HIS INCO ME OF THE PREVIOUS YEAR IN WHICH SUCH STOCK - IN - TRADE IS SOLD OR OTHERWISE TRANSFERRED BY HIM AND, FOR THE PURPOSES OF SEC. 48, THE FAIR MARKET VALUE OF THE ASSET ON THE DATE OF SUCH CONVERSION OR TREATMENT SHALL BE DEEMED TO BE THE FULL VALUE OF THE CONSID ERATION RECEIVED OR ACCRUING AS A RESULT OF THE TRANSFER OF THE CAPITAL ASSET. 8. THE AFORESAID SUB - SECTION PROVIDES FOR CHARGING OF CAPITAL GAIN IN A CASE WHERE THERE IS A TRANSFER BY WAY OF CONVERSION OF A CAPITAL ASSET INTO STOCK - IN - TRADE. NOTABLY, T HE CONVERSION OF A CAPITAL ASSET INTO STOCK - IN - TRADE IS DEEMED TO BE A TRANSFER IN TERMS OF SEC. 2(47)(IV) OF THE ACT. THE OBJECTIVE OF SEC. 45(2) OF THE ACT IS TO DETERMINE THE YEAR IN WHICH CAPITAL GAIN ON SUCH TRANSFER IS LIABLE TO BE TAXED. SEC. 45(1 ) PROVIDES FOR TAXATION OF CAPITAL GAIN IN THE YEAR OF TRANSFER OF A CAPITAL ASSET. SO HOWEVER, IN SEC. 45(2) OF THE ACT, THE CAPITAL GAINS ARE TAXED IN THE YEAR IN WHICH THE CONVERTED ASSET IS SOLD OR OTHERWISE TRANSFERRED AND NOT IN THE YEAR IN WHICH THE TRANSFER BY WAY OF CONVERSION OF CAPITAL ASSET INTO STOCK - IN - TRADE TAKES PLACE. IN THE PRESENT CASE, THE PLEA OF THE ASSESSEE IS THAT ONLY TRANSFER BY WAY OF CONVERSION OF CAPITAL ASSET INTO STOCK - IN - TRADE HAS TAKEN PLACE ON 15 - 3 - 2007 INASMUCH AS THE AGRICULTURAL LAND HITHERTO HELD AS CAPITAL ASSET WAS CONVERTED INTO STOCK - IN - TRADE BY THE ASSESSEE. ACCORDING TO THE ASSESSEE, THE STOCK - IN - TRADE IN QUESTION HAS THEREAFTER NOT BEEN SOLD OR OTHERWISE TRANSFERRED SO AS TO BRING TO TAX SUCH CAPITAL GAIN I N THE INSTANT ASSESSMENT YEAR ITSELF IN TERMS OF SECTION 45(2) OF THE ACT. THIS PLEA IS FOUNDED ON THE BASIS THAT THE TRANSFER OF STOCK - IN - TRADE INTO THE PARTNERSHIP FIRM ON 15 - 3 - 2007 AS A CAPITAL CONTRIBUTION DOES NOT AMOUNT TO THE SAME BEING CONSIDERED AS SOLD OR OTHERWISE TRANSFERRED WITHIN THE MEANING OF SEC. 45(2) OF THE ACT. IN SUPPORT, RELIANCE HAS BEEN PLACED ON THE JUDGMENT OF THE HONBLE PUNJAB & HARYANA HIGH COURT IN THE CASE OF SHRI PARKASH CHAND JAIN (SUPRA) FOR THE PROPOSITION THAT CONTRIB UTION OF AN ASSET AS A SHARE CAPITAL IN A PARTNERSHIP FIRM DOES NOT AMOUNT TO TRANSFER WITHIN THE MEANING OF SEC. 2(47) OF THE ACT. THE PLEA OF THE REVENUE AS MANIFESTED IN THE ORDER OF THE CIT(A) IS HOWEVER TO THE CONTRARY. 9. BEFORE WE PROCEED TO ADJU DICATE THE AFORESAID PRECISE CONTROVERSY, IT WOULD BE IN THE FITNESS OF THINGS TO STATE HERE THAT 5 ITA NO. 2001/PN/2012, MRS. PRATIBHA ARVIND DHAMNE, PUNE WHETHER THE PROVISIONS OF SEC. 45(2) OF THE ACT OR SEC. 45(3) OF THE ACT ARE APPLICABLE IS NOT THE CONTROVERSY BEFORE US. NOTABLY, THE CLAIM OF THE ASSESSEE IN THE RETURN OF INCOME WAS THAT SEC. 45(2) OF THE ACT IS ATTRACTED WHEREAS THE ASSESSING OFFICER CONCLUDED THAT IT WAS SEC. 45(3) WHICH WOULD GOVERN THE CONTROVERSY. HOWEVER, THE AFORESAID STAND OF THE ASSESSING OFFICER DID NOT FIND FAVOUR WITH THE CIT(A ), AND ACCORDING TO HIM, THE TAXABILITY IS TO BE GOVERNED IN TERMS OF SEC. 45(2) OF THE ACT. THE REVENUE HAS NOT PREFERRED ANY APPEAL BEFORE THE TRIBUNAL ON THE AFORESAID ASPECT OF THE CONTROVERSY AND THEREFORE, WE PROCEED FURTHER TO ADJUDICATE THE PRESE NT APPEAL ON THE BASIS OF AGREED POSITION BETWEEN THE PARTIES THAT THE TAXABILITY IS DETERMINABLE IN TERMS OF SEC. 45(2) OF THE ACT. 10. NOW REVERTING BACK TO THE PLEA SET UP BY THE ASSESSEE, IN OUR CONSIDERED OPINION, THE WORDS SOLD OR OTHERWISE TRANSF ERRED CONTAINED IN SEC. 45(2) ARE SIGNIFICANT. NO DOUBT, SEC. 45(2) OF THE ACT ENVISAGES TAXING OF CAPITAL GAIN NOT IN THE YEAR IN WHICH ASSET IS CONVERTED INTO STOCK IN TRADE BUT THE SAME IS TO BE TAXED IN THE YEAR IN WHICH SUCH STOCK - IN - TRADE IS SOLD O R OTHERWISE TRANSFERRED. THE EMPHASIS OF THE ASSESSEE IS THAT IN ORDER TO DETERMINE THE MEANING OF THE WORDS SOLD OR OTHERWISE TRANSFERRED CONTAINED IN SECTION 45(2) OF THE ACT REGARD MUST BE MADE TO SEC. 2(47) OF THE ACT WHICH DEFINES THE EXPRESSION TRANSFER IN RELATION TO A CAPITAL ASSET. IN OUR CONSIDERED OPINION, THE AFORESAID PROPOSITION BEING ADVANCED BY THE ASSESSEE IS QUITE FALLACIOUS. FIRSTLY, THE EXPRESSION SOLD OR OTHERWISE TRANSFERRED USED IN SEC. 45(2) OF THE ACT IS WITH REGARD TO THE TRANSFER OF STOCK - IN - TRADE AND OSTENSIBLY THE DEFINITION OF EXPRESSION TRANSFER IN SEC. 2(47) IS IN RELATION TO A CAPITAL ASSET. SECONDLY, IN A WRITTEN COMMUNICATION DATED 15 - 9 - 2010 ADDRESSED TO THE CIT(A), A COPY OF WHICH IS PLACED AT PAGE 40 OF THE P APER BOK, ASSESSEE ITSELF CLARIFIED THAT THE PROVISIONS OF SEC. 2(47) OF THE ACT RELATE TO TRANSFER OF CAPITAL ASSET AND IS NOT APPLICABLE IN ORDER TO DETERMINE AS TO WHETHER OR NOT A TRANSFER HAS TAKEN PLACE WITH REGARD TO THE CONVERTED STOCK - IN - TRADE. I N OUR CONSIDERED OPINION, IN ORDER TO UNDERSTAND THE MEANING OF THE EXPRESSION SOLD OR OTHERWISE TRANSFERRED USED IN SEC. 45(2) OF THE ACT, WHICH IS IN RELATION TO TRANSFER OF STOCK - IN - TRADE AND THUS THE DEFINITION CONTAINED IN SEC. 2(47) OF THE ACT WHIC H IS IN RELATION TO A CAPITAL ASSET, WOULD NOT BE A LIMITING FACTOR. QUITE CLEARLY, THE WORDS USED OTHERWISE TRANSFERRED HAVE TO BE GIVEN THEIR MEANING IN THE 6 ITA NO. 2001/PN/2012, MRS. PRATIBHA ARVIND DHAMNE, PUNE COMMON PARLANCE. IN THIS BACKGROUND, WE THEREFORE, HOLD THAT THE TRANSFER BY THE ASSESSEE OF ITS CONVERTED STOCK - IN - TRADE INTO THE PARTNERSHIP FIRM M/S. KDM ASSOCIATES ON 15 - 3 - 2007 AS A CAPITAL CONTRIBUTION AMOUNTS TO OTHERWISE TRANSFERRED WITHIN THE MEANING OF SEC. 45(2) OF THE ACT AND THEREFORE, CAPITAL GAIN ARISING ON CONVERSION OF THE AGRIC ULTURAL LAND (I.E. CAPITAL ASSET) INTO STOCK - IN - TRADE IS LIABLE TO BE TAXED IN THIS YEAR ITSELF. THUS, ON THIS ASPECT, WE UPHOLD THE STAND OF THE REVENUE. SO FAR AS THE RELIANCE PLACED BY THE ASSESSEE ON THE JUDGMENT OF PUNJAB & HARYANA HIGH COURT IN THE CASE OF SHRI PARKASH CHAND JAIN (SUPRA) IS CONCERNED, THE SAME IS INAPPLICABLE, INASMUCH AS IT RELATES TO TRANSFER OF A CAPITAL ASSET TO THE PARTNERSHIP FIRM AS CAPITAL CONTRIBUTION WHICH WAS CONSIDERED ON THE TOUCHSTONE OF SEC. 2(47) OF THE ACT. IN THE PRESENT CASE, WE ARE DEALING WITH A SITUATION WHERE ADMITTEDLY, THE ASSESSEE HAS TRANSFERRED STOCK - IN - TRADE AS HIS CAPITAL CONTRIBUTION INTO A PARTNERSHIP FIRM, AS A RESULT OF WHICH SEC. 2(47) OF THE ACT IS NOT APPLICABLE. THEREFORE, THE RELIANCE BY THE A SSESSEE ON THE JUDGMENT OF PUNJAB HIGH COURT IN THE CASE OF SHRI PARKASH CHAND JAIN (SUPRA) IS NOT HELPFUL TO THE ASSESSEE. 11. NOW, WE MAY CONSIDER THE OTHER PLEA OF THE ASSESSEE WITH REGARD TO THE FAIR MARKET VALUE OF THE ASSET IN QUESTION. NOTABLY, TH E PROVISION OF SEC. 45(2) OF THE ACT REQUIRES THAT GAIN ARISING FROM THE TRANSFER BY WAY OF CONVERSION OF A CAPITAL ASSET INTO STOCK - IN - TRADE IS COMPUTABLE BY TREATING THE FAIR MARKET VALUE OF THE ASSET ON THE DATE OF SUCH CONVERSION AS THE FULL VALUE OF T HE CONSIDERATION RECEIVED OR ACCRUED AS A RESULT OF SUCH TRANSFER FOR THE PURPOSE OF SEC. 48 OF THE ACT. IN ITS RETURN OF INCOME, ASSESSEE CLAIMED THE FAIR MARKET VALUE OF THE AGRICULTURAL LAND ON THE DATE OF CONVERSION AS RS. 50,00,000/. - WHICH WAS BASED ON SELF - ASSESSMENT. IN TERMS OF PAGES 33 TO 39 OF THE PAPER BOOK, WHEREIN IS PLACED A COPY OF VALUATION REPORT OF THE DVO DATED 17 - 12 - 2009, THE FAIR MARKET VALUE OF THE PROPERTY IS ESTIMATED AT RS. 93,96,935/ - . THE CIT(A) HOWEVER, HAS OBSERVED THAT AS PE R THE INFORMATION OBTAINED FROM THE ASSISTANT SUB - REGISTRAR, AURANGABAD, THE VALUE OF THE PROPERTY FOR THE PURPOSES OF STAMP DUTY WAS RS. 1.50 CRORE. PERTINENTLY, THE CIT(A) HAS ADOPTED THE VALUE STATED BY THE ASSISTANT SUB - REGISTRAR, AURANGABAD AS THE FA IR MARKET VALUE FOR THE PURPOSES OF COMPUTING CAPITAL GAIN. THE AFORESAID IS IN CHALLENGE BEFORE US. 7 ITA NO. 2001/PN/2012, MRS. PRATIBHA ARVIND DHAMNE, PUNE 12. IN OUR CONSIDERED OPINION, IN SO FAR AS THE CLAIM OF THE ASSESSEE OF THE FAIR MARKET VALUE BEING RS. 50,00,000/ - IS CONCERNED, THE SAME IS WITHOUT A NY BASIS. THE VALUE BASED ON THE INFORMATION FROM THE ASSISTANT SUB - REGISTRAR, AURANGABAD, IS NOT RELEVANT, AS THERE IS NO MANDATE FOR THE SAME IN THE ABSENCE OF THE APPLICABILITY OF SECTION 50 - C OF THE ACT. THE FAIR MARKET VALUE AS DETERMINED BY THE DVO , IN OUR VIEW, IS FAIR AND PROPER TO BE ADOPTED FOR THE PURPOSES COMPUTING CAPITAL GAIN U/S 45(2) OF THE ACT. THEREFORE, IN THIS BACKGROUND, WE SET ASIDE THE ORDER OF THE CIT(A) FOR THE AFORESAID LIMITED PURPOSE AND DIRECT THE ASSESSING OFFICER TO COMPUTE CAPITAL GAIN BY ADOPTING THE FAIR MARKET VALUE OF THE AGRICULTURAL LAND AS ON THE DATE OF CONVERSION AT RS. 93,96,935/ - . THUS ON THIS ASPECT, ASSESSEE PARTLY SUCCEEDS. 4. WE ACCORDINGLY, FOLLOWING THE DECISION IN THE CASE OF ARVIND PUNDALIK DHAMNE (HUF) (SUPRA) CONFIRM THE ORDER OF THE LD. CIT(A) ON THIS ISSUE AND DISMISS THE GROUND NO. 2. 5. SO FAR AS THE GROUND NO. 1 IS CONCERNED THE GRIEVANCE OF THE ASSESSEE IS THAT THE ASSESSING OFFICER WRONGLY ADOPTED THE MARKET VALUE OF THE LAND AT RS.58,93,333/ - I NSTEAD OF 58,24,000/ - . HE SUBMITS THAT THE ASSESSEE HAD 80% SHARE IN THE SAID LAND AND FOR THE PURPOSE OF COMPUTATION OF THE CAPITAL GAIN , THE ASSESSEE S SHARE IS WORKED OUT AT RS.58,24,000/ - . HE ALSO SUBMITS THAT THERE IS NO DISPUTE BETWEEN THE ASSESSEE AND ASSESSING OFFICER IN RESPECT OF THE FAIR MARKET VALUE OF THE LAND WHICH IS RS.72,80,000/ - ADOPTED . HE PLEADED FOR RESTORING THE ISSUE TO THE ASSESSING OFFICER FOR VERIFICATION AND CORRECTING THE MISTAKE. THE LD. DR HAS NOT OBJECTION FOR RESTORING TH E GROUND NO. 1 TO THE FILE OF THE ASSESSING OFFICER FOR LIMITED PURPOSE TO VERIFY WHETHER THE FIGURE OF RS. 58,933,333/ - AS A FAIR MARKET VALUE HAS BEEN RIGHTLY TAKEN FOR THE COMPUTATION OF THE CAPITAL GAIN. WE, ACCORDINGLY, SET ASIDE THE ORDER OF THE LD. CIT(A) ON THE GROUND NO. 1 AND RESTORE THE ISSUE TO THE FILE OF THE ASSESSING OFFICER FOR VERIFYING THE CORRECTNESS OF THE FIGURE OF THE FAIR MARKET VALUE AS ADOPTED IN THE ASSESSMENT ORDER. NEEDLESS TO SAY THE 8 ITA NO. 2001/PN/2012, MRS. PRATIBHA ARVIND DHAMNE, PUNE ASSESSING OFFICER SHOULD GIVE AN OPPORTUNITY TO THE ASSESSEE TO EXPLAIN HIS CASE AND THEN TO ADJUDICATE THE ISSUE. 6. IN THE RESULT, THE ASSESSEES APPEAL IS PARTLY ALLOWED FOR STATISTICAL PURPOSES. PRONOUNCED IN THE OPEN COURT ON 29 - 11 - 2013 SD/ - SD/ - ( R.K. PANDA ) ( R.S. PADVEKAR ) ACCOUNTANT MEMBER JUDICIAL MEMBER RK /PS PUNE , DATED : 29 TH NOVEMBER, 20 1 3 COPY TO 1 ASSESSEE 2 DEPARTMENT 3 THE CIT(A) , AURANGABAD 4 THE CIT, AURANGABAD 5 THE DR, ITAT, A BENCH, PUNE . 6 GUARD FILE. //TRUE COPY// BY ORDER PRIVATE SECRETARY INCOME TAX APPELLATE TRIBUNAL PUNE