ITO, Ward 2, V. Anupam Sushil Garg,

ITA 2169/DEL/2007

• Counselvise Citation: 216920114 RSA 2007
• Duration Of Justice: 4 year(s) 7 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-12-2011
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 27-05-2011
• Assessment Year: 1995-1996
• Appeal Filed On: 30-04-2007
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: ANUSHKA KHURANA
• Assessee Lawyers: VIKRAM CHAWLA
• Keywords: Reopening of assessment; Opportunity of being heard; Cost of acquisition; Fair market value; Valuation report
• Section: 148; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL [ DELHI BENCH A DELHI ] BEFORE SHRI R. P. TOLANI, JM AND SHRI K. D. RANJ AN, AM I. T. APPEAL NO. 2169 (DEL) OF 2007. ASSESSMENT YEAR : 1995-96. THE INCOME-TAX OFFICER, SHRI ANU PAM SUSHIL GARG, W A R D : 2, VS. C/O. M/S. ANURAG ENTERPRISES, S A H A R A N P U R. RAILWAY ROAD, S A H A R A N P U R. PAN / GIR NO. AEY PG 5590 G. ( APPELLANT ) ( RESPONDENT ) ASSESSEE BY : SHRI VIKRAM CHAWLA, ADV.; DEPARTMENT BY : MS. ANUSHKA KHURANA, SR. D. R. O R D E R. PER K. D. RANJAN, AM : THIS APPEAL BY THE REVENUE FOR ASSESSMENT YEAR 199 5-96 ARISES OUT OF ORDER OF THE LD. CIT (APPEALS), MUZAFFAR NAGAR. 2. THE GROUNDS OF APPEAL RAISED BY THE REVENUE READ AS FOLLOWS :- 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT (APPEALS) ERRED IN DELETING THE ADDITION OF RS.1,70,97,980/- MADE BY THE ASSESSING OFFICER ON ACCOUNT OF INCOME FROM LONG TERM CAPITAL GAIN; 2. ON THE FACTS AND IN THE CIRCUMSTANCES O F THE CASE, THE LD. CIT (APPEALS) ERRED IN DIRECTING THE ASSESSING OFFICER TO ADOPT T HE FAIR MARKET VALUE OF LAND AND ORCHARDS AT RS.69,59,000/- AS ON 1/04/1981 AS A GAINST RS.3,48,270/- 2 I. T. APPEAL NO. 2169 (DEL) OF 2007. ADOPTED BY THE ASSESSING OFFICER FOR THE PURPOSE OF WORKING OUT LONG TERM CAPITAL GAIN; 3. IN THE FACTS AND CIRCUMSTANCES OF THE CA SE, THE ORDER OF LD. CIT (APPEALS) DESERVES TO BE SET ASIDE AND THAT OF ASSESSING OFFI CER BE RESTORED. 3. THE ONLY ISSUE FOR CONSIDERATION RELATES TO ADOP TION OF FAIR MARKET VALUE OF LAND AND ORCHARDS AS ON 1/04/1981 FOR THE PURPOSE OF COMPUTA TION OF LONG TERM CAPITAL GAINS. THE FACTS OF THE CASE STATED IN BRIEF ARE THAT THE ASSESSEE RECE IVED AGRICULTURAL LAND UNDER WILL FROM HIS GRAND- MOTHER, WHICH WAS INTRODUCED IN PARTNERSHIP FIRM M/ S. GARG FLORICULTURE, CHAKRATA ROAD, SAHARANPUR, IN THE FORM OF CAPITAL ON 1/04/1994. T HE ASSESSING OFFICER COMPUTED CAPITAL GAINS UNDER SECTION 45 AT RS.2,65,40,000/-. THE ASSESSEE MOVED AN APPLICATION UNDER SECTION 264 BEFORE THE LD. CIT, MUZAFFAR NAGAR, WHO MADE HIS OR DER DATED 30 TH SEPT., 2002 AND SET ASIDE THE ASSESSMENT TO BE MADE AGAIN AFTER GIVING THE ASSESS EE A PROPER OPPORTUNITY OF BEING HEARD. THE CASE WAS AGAIN REFIXED AND FRESH OPPORTUNITIES WERE PROVIDED TO THE ASSESSEE. SINCE THE ASSESSEE DID NOT ATTEND THE PROCEEDINGS, ORDER UNDER SECTION 144 OF THE ACT WAS PASSED ASSESSING THE CAPITAL GAINS OF RS.1,98,87,990/-. THE ASSESSEE AG AIN MOVED PETITION UNDER SECTION 264 ON 27/02/2004, WHICH WAS ALLOWED BY SETTING ASIDE THE ASSESSMENT ORDER WITH THE DIRECTION TO FRAME THE ASSESSMENT DE NOVO. THE CASE WAS AGAIN REFIXED AND FRESH OPPORTUNITIES WERE PROVIDED. HOWEVER, THE ASSESSEE DID NOT ATTEND THE PROCEEDING S AND ASSESSMENT WAS AGAIN COMPLETED UNDER SECTION 144 OF THE ACT. THE ASSESSEE AGAIN MOVED P ETITION UNDER SECTION 264 ON 15/02/2005 BEFORE THE LD. CIT, MUZAFFAR NAGAR, WHO AGAIN SET A SIDE ASSESSMENT ORDER VIDE ORDER DATED 28 TH MARCH, 2005. THE ASSESSING OFFICER ISSUED NOTICE U NDER SECTION 143(2) WHICH WAS SENT THROUGH REGD. POST. NOBODY ATTENDED THE PROCEEDINGS. THE ASSESSING OFFICER FURTHER ISSUED NOTICE ON 22/07/2005 AND 1/09/2005 WHICH REMAINED UN-COMPLIED . HOWEVER, ON 23 RD JANUARY, 2006 SHRI VIKRAM CHAWLA, ADVOCATE, ATTENDED AND FILED HIS VAK ALATNAMA AND REQUESTED FOR QUESTIONNAIRE WHICH WAS ISSUED ON 21/02/2006. THE ASSESSEE WAS R EQUIRED TO PRODUCE COMPLETE BOOKS OF ACCOUNTS, SUPPORTING DOCUMENTS, BALANCE SHEET AND S TATEMENT OF AFFAIRS OF M/S. GARG FLORICULTURE, AS ON 31 ST MARCH, 1995. THE ASSESSEE FILED VARIOUS REPLIES A ND SUBMITTED THAT OFFICE PREMISES OF M/S. GARG FLORICULTURE WERE LOCATED IN THE PREMISES OF M/S. L. R. BROTHERS, CHAKRATA ROAD, SAHARANPUR. THE ABOVE PREMISES TAKEN OVER AND SEIZ ED BY PICUP DURING THE PERIOD FROM 23 RD 3 I. T. APPEAL NO. 2169 (DEL) OF 2007. AUGUST, 2002 TO 26 TH AUGUST, 2003 AND BOOKS OF ACCOUNTS AND OTHER RELEV ANT RECORDS KEPT IN THE OFFICE DURING THE ABOVE PERIOD WERE MISPLACED AND D ESTROYED. THEREFORE, THE ASSESSEE WAS UNABLE TO PRODUCE BOOKS OF ACCOUNTS AND RELEVANT DO CUMENTS. 4. THE ASSESSEE IN HIS REPLY DATED 6/3/2006 SUBMITT ED THAT HE HAD NOT MADE ANY CAPITAL CONTRIBUTION IN THE SHAPE OF LAND AND, THEREFORE, T HERE WAS NO LIABILITY OF CAPITAL GAINS AT RS.1,98,87,980/-. IT WAS FURTHER SUBMITTED THAT IN CASE THAT THE DEPARTMENT WAS RELYING UPON ANY EVIDENCE THE SALES SHOULD BE CONFRONTED. THE ASSES SING OFFICER SUPPLIED THE COPY OF STATEMENT RECORDED ON 31 ST MARCH, 1997 AND INSPECTION OF FILE WAS ALSO ALLOWE D. THE ASSESSEE VIDE HIS REPLY DATED 17 TH MARCH, 2006 SUBMITTED THAT IN THE STATEMENT RECORD ED ON 21 ST MARCH, 1997 THE REFERENCE TO CAPITAL CONTRIBUTION TO M/S. GARG FLOR ICULTURE, WAS TOTALLY IN A DIFFERENT CONTEXT AND THAT WAS NOT A PROOF THAT THE ASSESSEE HAD MADE A C APITAL CONTRIBUTION DURING 1994-95 TO M/S. GARG FLORICULTURE. IT WAS ALSO STATED THAT THE FIR M STARTED ON 1/4/1994, BUT NO STATEMENT HAS BEEN RECORDED AS TO WHEN AND HOW MUCH CAPITAL HAS BEEN I NTRODUCED BY SHRI ANUPAM GARG IN THIS FIRM. IT WAS ALSO SUBMITTED THAT THE VALUE OF LAND WAS DECLARED IN THE BALANCE SHEET AT RS.1,44,37,500/- AS ON 31 ST MARCH, 1992 AT RS.1,73,25,000/- AS ON 31/3/1993 AN D AT RS.2,07,90,000/- AS ON 31 ST MARCH, 1994. THEREFORE, EVEN IF THERE WAS DEEMED TRANSFER OF AGRICULTURAL LAND THE CAPITAL GAIN WOULD WORK OUT T O BE NIL. HE FURTHER SUBMITTED THAT THE SAID AGRICULTURAL LAND WAS SITUATED OUTSIDE THE MUNICIPA L LIMITS OF SAHARANPUR. THEREFORE, THE CAPITAL GAIN WAS NOT LIABLE TO BE TAXED. 5. THEREAFTER ASSESSEE MOVED PETITION UNDER SECTION 144-A BEFORE THE ADDL. CIT, SAHARANPUR, REQUESTING HIM TO ISSUE DIRECTIONS THAT NO ADVERSE INFERENCE SHOULD BE DRAWN BASED ON STATEMENT RECORDED ON 21 ST MARCH, 1997 DURING THE COURSE OF ASSESSMENT PROCEE DINGS FOR AY 1994-95. IN HIS WRITTEN SUBMISSION DATED 28 TH MARCH, 2006 BEFORE THE ADDL. CIT IT WAS SUBMITTED BY THE COUNSEL OF THE ASSESSEE THAT INCOM E FOR ASSESSMENT YEAR 1995-96 WAS FILED IN CIRCLE 15(1), NEW DELHI AND IN THIS RETURN THE ASSE SSEE IS SUPPOSED TO HAVE DECLARED HIS INCOME FROM VARIOUS SOURCES INCLUDING LONG TERM CAPITAL GA INS ON TRANSFER OF AGRICULTURAL LAND. THEREFORE, THE PROCEEDINGS UNDER SECTION 148 STOOD VITIATED. THE ADDL. CIT REJECTED THE 4 I. T. APPEAL NO. 2169 (DEL) OF 2007. CONTENTION OF THE ASSESSEE REGARDING THE ISSUE OF F ILING THE RETURN WITH CIRCLE : 15(1). THE AO AFTER DISCUSSING THE ISSUE COMPUTED CAPITAL GAINS O N TRANSFER OF AGRICULTURAL LAND AS CAPITAL IN THE PARTNERS FIRM M/S. GARG FLORICULTURE AT RS.1,70,9 7,980/-. WHILE COMPUTING THE CAPITAL GAINS THE AO ADOPTED THE VALUE OF LAND AS ON 1/4/1981 AS PER RATES NOTIFIED BY ADM, (FINANCE). ON SUCH RATES THE ASSESSING OFFICER APPLIED COST INDEX AND ASSESSED THE CAPITAL GAINS AT RS.1,70,97,980/-. 6. BEFORE THE LD. CIT (APPEALS) THE ASSESSEE CHALLE NGED REOPENING OF ASSESSMENT AS WELL AS ADOPTION OF COST OF ACQUISITION AS ON 1/4/1981. TH E LD. CIT (APPEALS) REJECTED THE GROUND RELATING TO REOPENING OF ASSESSMENT. AS REGARDS ME RITS, IT WAS SUBMITTED THAT THE ASSESSEE INHERITED THE SAID AGRICULTURAL LAND FROM HIS GRAND MOTHER SMT. HANS KUMAR THROUGH HER WILL DATED 29/12/1974. SMT. HANS KUMAR GARG EXPIRED IN OCTOBER, 1978. HENCE THE ASSESSEE BECAME THE OWNER OF LAND IN OCTOBER, 1978 ON THE DE ATH OF HIS GRAND-MOTHER. THE DEEMED CAPITAL GAIN HAS ARISEN BECAUSE THE ASSESSEE HAD OU T OF ABOVE LAND TRANSFERRED 10.13 ACRES OF LAND TO M/S. GARG FLORICULTURE, A PARTNERSHIP FIRM AS HI S CAPITAL CONTRIBUTION ON 1/4/1994. THE CAPITAL CONTRIBUTION WAS VALUED AT RS.1,80,00,000/-, WHICH HAS BEEN ACCEPTED. 7. THE LAND OF THE ASSESSEE WAS SITUATED AT ABOUT 4 .7 KMS. FROM LOCAL RAILWAY STATION AND WAS JUST ABOUT 1 KM. FROM THE MUNICIPAL LIMITS. TH E LAND WAS SITUATED IN VILLAGE DARA MILKANA. THE ASSESSEE APPLIED CIRCLE RATE AT THE RATE OF RS. 125 PER SQ. YD. ACCORDINGLY THE VALUE WAS CLAIMED AT RS.68,70,000/- PLUS COST INFLATION INDEX ATION. HOWEVER, THE AO HAD DOUBTED THE APPLICABILITY OF CIRCLE RATE. THE AO HAD APPLIED A VALUATION OF RS.3,48,270/- ONLY AS ON 1/4/1981 BASED ON INFORMATION FROM ADM [F] WHICH WAS NOT CON FRONTED TO THE ASSESSEE IN SPITE OF HIS SPECIFIC REQUEST. IT WAS ALSO SUBMITTED THAT THE L AND HAS BEEN TRANSFERRED TO M/S. GARG FLORICULTURE, AS ON 1/4/1994 BASED ON CIRCLE RATE O F DARA MILKHIANA. THEREFORE, THERE COULD NOT BE TWO DIFFERENT YARD-STOCKS FOR VALUATION OF THE S AME PROPERTY. WITHOUT PREJUDICE IT WAS SUBMITTED THAT IF AT ALL THE RATE APPLIED BY THE AO WAS TO BE TAKEN EVEN IN THAT CASE THE CIRCLE RATE APPLIED WAS ONLY IN RESPECT OF BARE LAND. THE VALU E OF FULLY GROWN ORCHARD HAD TO BE ADDED TO THE LAND SO AS TO ARRIVE AT ITS FAIR MARKET VALUE A S ON 1/4/1981. THE ASSESSEE GAVE DETAILS OF VARIOUS TREES GROWN SUCH AS MANGO, LICHEE, KENNNOW, MALTA, NAGPURI AND MAUSHMI. THE LD. 5 I. T. APPEAL NO. 2169 (DEL) OF 2007. CIT (APPEALS) OBTAINED THE COMMENTS OF THE ASSESSIN G OFFICER, WHICH WAS SUBMITTED BY THE ASSESSING OFFICER. SPOT ENQUIRY ALSO GOT MADE THRO UGH THE INCOME TAX INSPECTOR. THE LD. CIT (APPEALS) ON THE BASIS OF EVIDENCE COLLECTED DURING THE COURSE OF APPELLATE PROCEEDINGS CONCLUDED THAT THE AGRICULTURAL LAND OWNED BY THE A SSESSEE WERE SURROUNDED PRE-DOMINANTLY BY RESIDENTIAL AREA IN 1981 AND, THEREFORE, FAIR MARKE T VALUE AS ON 1/4/1981 OUGHT TO BE CONSIDERED IN TERMS OF RESIDENTIAL AREA IRRESPECTIVE OF ACTUAL US E OF LAND. HE ALSO NOTED THAT THERE WERE VILLAGES IN THE VICINITY OF THE LAND AND SOME NEW RESIDENTIA L COLONIES WERE COMING UP BOTH SIDES OF TWO KM. ROAD LEADING TO SAID LAND OF THE ASSESSEE FROM THE MUNICIPAL LIMIT. FURTHER THE SAID LANDS WERE COVERED BY NOTIFICATION NO. 9447 DATED 06 TH JANUARY, 1994 ISSUED BY CENTRAL GOVT. UNDER SECTION 2(14)(III)(B) OF INCOME TAX ACT, WHICH SUPP ORTED THE CONTENTION OF THE ASSESSEE THAT IN 1994 THE AREA WAS SUBSTANTIALLY URBANIZED IF NOT FU LLY URBANIZED. SINCE THE PROCESS OF URBANIZATION WAS NOT OVER-NIGHT, IT REASONABLY APPE ARED THAT PROCESS OF URBANIZATION OF THE AREA WOULD HAVE STARTED BY 1981. THE LIST OF CIRCLE RAT ES APPLICABLE WITH EFFECT FROM 1/4/1980 ISSUED BY DISTT. MAGISTRATE, SAHARANPUR ALSO INCLUDED THE AREA TO BE WITHIN CITY LIMITS. ONCE THE LAND WAS SITUATED IN CITY LIMITS, THEN THE CIRCLE RATES APPLICABLE FOR AGRICULTURAL LAND DO NOT APPEAR TO BE REPRESENTING THE MARKET VALUE OF THE LAND, BUT W ERE ONLY FOR LIMITED PURPOSE OF CALCULATING DISCOUNTED STAMP DUTY. THE LD. CIT, THEREFORE, HEL D THAT FAIR MARKET VALUE AS ON 1/4/1981 SHOULD BE ASSESSED BY APPLYING FULL CIRCLE RATES APPLICABL E TO RESIDENTIAL LAND IN THE SAME AREA AND NOT BY APPLYING THE DISCOUNTED RATES APPLICABLE TO THE AGR ICULTURAL LAND. THE LD. CIT (A) THEREFORE, ESTIMATED THE COST OF LAND AT RS.61,31,258/-. THE LD. CIT (A) FURTHER ADDED THE VALUE OF ORCHARDS AT RS.8,27,815/- AND ARRIVED AT THE COST OF ACQUISI TION AS ON 1/4/1981 AT RS.69,59,000/-. 8. BEFORE US, THE LD. SR. DR SUBMITTED THAT THE LD. CIT (A) HAS WRONGLY APPLIED THE CIRCLE RATES OF THE RESIDENTIAL AREA WHEREAS THE LAND WAS TRANSFERRED AS AGRICULTURAL LAND. IT WAS ALSO SUBMITTED THAT THERE IS NO EVIDENCE ON RECORD TO SU GGEST THAT AS ON 1/4/1981 THE AREA WAS URBANIZED AND AGRICULTURAL LANDS WERE SURROUNDED BY THE RESIDENTIAL COLONIES. THIS IS A PRESUMPTION BY THE LD. CIT (A). THE ASSESSEE HAD T RANSFERRED THE AGRICULTURAL LAND TO THE FIRM AND, THEREFORE, THE COST OF ACQUISITION HAS TO BE M ADE AS PER CIRCLE RATES APPLICABLE IN CASE OF AGRICULTURAL LAND NOT AS RESIDENTIAL AREA. THE LD. SR. DR FURTHER OBJECTED TO VALUATION OF ORCHARDS 6 I. T. APPEAL NO. 2169 (DEL) OF 2007. AT RS.8,27,815/-. ON THE OTHER HAND, THE LD. AR OF THE ASSESSEE SUPPORTED THE ORDER OF THE LD. CIT (APPEALS). 9. WE HAVE HEARD BOTH THE PARTIES AND GONE THROUGH THE MATERIAL AVAILABLE ON RECORD. THERE IS NO DISPUTE ABOUT THE FACT THAT THE ASSESSEE BECA ME OWNER OF LAND IN 1978 UNDER THE WILL WHEN HIS GRAND-MOTHER, SMT. HANS KUMAR GARG EXPIRED. WE HAVE GONE THROUGH THE COPY OF WILL AND COPY OF JUDGEMENT PASSED BY SDM, SAHARANPUR DATED 1 4 TH MARCH, 1983, ACCORDING TO WHICH SHRI ANUPAM SUSHIL GARG, THE ASSESSEE WAS ACCEPTED OWNER OF DISPUTED LAND BEARING KHASRA NO. 217/3 MEASURING 23.5 PACCA BIGHA SITUATED AT DARA M ILKIANA. THE LD. CIT (A) HAS APPLIED THE CIRCLE RATE PER SQ. YDS. RELATING TO RESIDENTIAL AR EA WHEREAS THE ASSESSEE HAS TRANSFERRED THE LAND TO THE FIRM AS AGRICULTURAL LAND. FROM THE ORDER OF T HE LD. CIT (A) WE FIND THAT THE ASSESSEE HAD SHOWN AS ON 1/4/1981, 576 OF MANGO TREES, 19 YEARS OLD, LICHEE TREE 105 TREES OF 7 YEARS OLD, KENNOW 100 TREES OF 3 YEARS OLD, MALTA BLOOD RED 70 TREES 3 YEARS OLD, NAGPURI 60, 3 YEARS OLD AND MAUSHMI 90 3 YEARS OLD. NO EVIDENCE WHATSOEV ER HAS BEEN FILED THAT 23.5 PUCCA BIGHA LAND CAN CONTAIN THE ORCHARDS OF VARIOUS TREES MENT IONED AS ABOVE. MANGO AND LICHEES ARE BIG TREES. IT IS ALSO TO BE VERIFIED WHETHER KENNOW, M ALTA, ORANGE [NAGPURI] AND MAUSHMIS WERE GROWN ON THE SAID LAND. THE LD. CIT (APPEALS) HAS SIMPLY RELIED ON THE CONTENTION OF THE ASSESSEE AND HAD ESTIMATED THE COST OF ORCHARDS AS ON 1/4/1981. FURTHER WHEN THE LAND WAS TRANSFERRED TO THE COMPANY, IT IS NOT KNOWN WHETHER THE VALUE OF THE ORCHARDS WAS TAKEN INTO ACCOUNT. IF THE LAND DID NOT CONTAIN ORCHARDS, AS ON 1/4/1994 THE SAME CANNOT BE TAKEN INTO COST OF ACQUISITION AS ON 1/4/1981. THE LD. CIT (APPEAL S) HAS AGAIN PRESUMED THAT THERE SHOULD HAVE BEEN URBANIZATION IN 1981 WITHOUT HAVING EVIDENCE T O THE DEFECT. THEREFORE, THE COMPUTATION OF COST OF ACQUISITION AT RESIDENTIAL RATES, IN OUR CO NSIDERED OPINION, IS NOT CORRECT. THE ASSESSEE HELD THE LAND AS AGRICULTURAL LAND AND IT WAS NOT C ONVERTED INTO RESIDENTIAL LAND. ON CONVERSION OF AGRICULTURAL LAND INTO NON-AGRICULTURAL LAND, PERMI SSION OF THE STATE GOVT. IS NECESSARY. SINCE IN 1994 WHEN THE LAND WAS TRANSFERRED TO THE FIRM, IT WAS AGRICULTURAL LAND. THEREFORE, THE COST OF ACQUISITION AS ON 1/4/1981 HAS TO BE DETERMINED AS AGRICULTURAL LAND AND NOT AS RESIDENTIAL LAND. FURTHER THE CIRCLE RATES OF AGRICULTURAL LAND ALSO VARY ON THE LOCATION OF LAND, ITS FERTILITY ETC. THEREFORE, IN OUR CONSIDERED OPINION, THE LD. CIT ( APPEALS) WAS NOT JUSTIFIED IN ESTIMATING THE COST OF LAND BY APPLYING THE RATES OF RESIDENTIAL A REA. HOWEVER, IN ORDER TO ASCERTAIN THE COST OF 7 I. T. APPEAL NO. 2169 (DEL) OF 2007. ACQUISITION, WE FEEL IT PROPER TO SET ASIDE THE ISS UE TO THE FILE OF THE ASSESSING OFFICER WITH THE DIRECTIONS TO REFER THE MATTER TO THE VALUATION OFF ICER, WHO WILL VALUE THE COST OF ACQUISITION OF THE LAND AS ON 1/4/1981 BY APPLYING THE RATES APPLI CABLE TO AGRICULTURAL LAND AS ON THAT DATE AND NOT THE RATES APPLICABLE TO THE RESIDENTIAL AREA. THE ASSESSING OFFICER WILL ALSO EXAMINE WHETHER THE VALUE OF LAND AT RS.1,80,00,000/- SHOWN BY THE ASSESSEE AS CAPITAL CONTRIBUTION TO THE PARTNERSHIP FIRM CONTAINED THE ORCHARDS. IF THE VA LUE OF ORCHARDS IS INCLUDED IN THE VALUE OF LAND AS ON 1/4/1994, THE COST OF ACQUISITION WILL ALSO I NCLUDE THE VALUE OF ORCHARDS. WE MAY ALSO LIKE TO MENTION THAT WHILE ESTIMATING THE VALUE OF ORCHA RDS, THE ASSESSING OFFICER WILL OBTAIN NECESSARY EVIDENCE FROM THE ASSESSEE IN SUPPORT OF THE CONTEN TION THAT AS ON 1/4/1981 THE ORCHARDS HAD THE FRUIT BEARING PLANTS AS MENTIONED AT PAGE NO. 8 OF THE ORDER OF THE LD. CIT (APPEALS). THE ASSESSING OFFICER IS DIRECTED TO DETERMINE THE CAPI TAL GAINS, AFTER AFFORDING THE ASSESSEE, A REASONABLE OPPORTUNITY OF BEING HEARD, ON THE BASIS OF THE VALUATION REPORT TO BE SUBMITTED BY THE VALUATION OFFICER. 10. IN THE RESULT, THE APPEAL FILED BY THE REVENUE IS ALLOWED, FOR STATISTICAL PURPOSES. THE ORDER PRONOUNCED IN THE OPEN COURT ON : 16 TH DECEMBER, 2011. SD/- SD/- [ R. P. TOLANI ] [ K. D. RANJAN ] JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 16 TH DECEMBER, 2011. *MEHTA * COPY OF THE ORDER FORWARDED TO : - 1. APPELLANT. 2. RESPONDENT. 8 I. T. APPEAL NO. 2169 (DEL) OF 2007. 3. CIT, 4. CIT (APPEALS), 5. DR, ITAT, NEW DELHI. TRUE COPY. BY ORDER. ASSISTANT REGISTRAR, ITAT.