Sh. Sarbjit Singh, Hoshiarpur V. The Income-tax Officer, Dasuya

ITA 23/ASR/2015

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 0566 (ITAT-AMRITSAR)
• Duration Of Justice: 1 year(s) 6 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-07-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 26-05-2016
• Assessment Year: 2008-2009
• Appeal Filed On: 09-01-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A N MISRA
• Keywords: Additional evidence; Fair market value; Valuation report
• Section: 133(6)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH; AMRITSAR BEFORE SH. A.D.JAIN, JUDICIAL MEMBER AND SH. T.S. KAPOOR, ACCOUNTANT MEMBER I.T.A NO. 23(ASR)/2015 ASSESSMENT YEAR: 2008-09 SH. SARBJIT SINGH S/O GURDIAL SINGH. PROP. OF GURU TEG BAHADUR TRADERS, VILL & POST:- BAJA CHAK, THE:- DASUYA, DIST:- HOSHIARPUR (144205) PAN:AUDPS-1196C VS. ITO, DASUYA. (APPELLANT) (RESPONDENT) I.T.A NO. 24(ASR)/2015 ASSESSMENT YEAR: 2008-09 SH. GULBAHAR SINGH S/O GURDIAL SINGH THROUGH L/H SMT. GURSHARANJIT KAUR, W/O GULBAHAR SINGH, PROP. OF PARMINDERA MEDICINE CENTRE, MIANI ROAD, THE:- DASUYA, DIST:- HOSHIARPUR (144205) PAN:ABOPS 4470M VS. ITO, DASUYA. (APPELLANT) (RESPONDENT) APPELLANT BY: SH. VINOD KUMAR (CA.) RESPONDENT BY: SH. A.N. MISRA (DR.) DATE OF HEARING: 26.05.2016 DATE OF PRONO UNCEMENT: 11 .07.2016 ORDER PER T. S. KAPOOR (AM): THESE ARE TWO APPEALS FILED BY DIFFERENT ASSESSEES AGAINST SEPARATE ORDERS OF LEARNED CIT(A), JALANDHAR, BOTH DATED 15. 12.2014 FOR ASST. YEAR:2008-09. ITA NOS.23 & 24 ( ASR)/2015 ASST. YEAR: 20 08-09 2 2. THE COMMON ISSUES ARE INVOLVED IN BOTH THE AP PEALS, THEREFORE, FOR THE SAKE OF CONVENIENCE A COMMON AND CONSOLIDATED O RDER IS BEING PASSED. 3. IN THESE APPEALS THE ASSESSEES HAS RAISED VAR IOUS GROUNDS OF APPEAL. THE CRUX OF GRIEVANCE OF ASSESSEE THROUGH T HESE GROUNDS OF APPEAL IS ACTION OF LEARNED CIT(A) BY WHICH HE HAD CONFIRMED THE MARKET VALUE AS ON 01.04.1981 ON THE BASIS OF REGISTERED D EED OF LAND FOR THE PURPOSES OF CALCULATION OF CAPITAL GAIN TAX. 4. THE LEARNED AR SUBMITTED THAT THE ACTION OF AUTH ORITIES BELOW IS NOT JUSTIFIED IN VIEW OF THE FACT THAT THE REGISTRA TION DEED OF LAND WHICH HAS BEEN RELIED UPON BY AO IS NOT CORRELATED TO THE LAND OF THE ASSESSEE AND THE AUTHORITIES BELOW SHOULD HAVE CONSIDERED TH E VALUATION REPORT OBTAINED BY THE ASSESSEE AND FILED WITH LEARNED CIT (A). THE LEARNED AR SUBMITTED THAT AUTHORITIES BELOW HAS ALSO NOT CONSI DERED PROPERLY THE AMOUNT SPENT ON IMPROVEMENT OF LAND WHICH MADE THE LAND FIT FOR COMMERCIAL USE AND THEREFORE, IT WAS PRAYED THAT TH E AUTHORITIES BELOW SHOULD BE DIRECTED TO CONSIDER THE VALUATION REPORT AND TO ALLOW THE RELIEF ACCORDINGLY. 5. THE LEARNED DR, ON THE OTHER HAND, HEAVILY PLACE D HIS RELIANCE ON THE ORDERS OF AUTHORITIES BELOW. ITA NOS.23 & 24 ( ASR)/2015 ASST. YEAR: 20 08-09 3 6. WE HAVE HEARD THE RIVAL PARTIES AND HAVE GONE TH ROUGH THE MATERIAL PLACED ON RECORD. WE FIND THAT ASSESSEE IS AN INDIVIDUAL AND IS HAVING INCOME FROM BUSINESS OF TRADING IN MEDICINES . THE CASE OF THE ASSESSEE WAS SELECTED FOR SCRUTINY. DURING THE ASSE SSMENT PROCEEDINGS THE A.O. OBSERVED THAT ASSESSEE HAD RECEIVED COMPE NSATION AMOUNTING TO RS.15,78,326/- AND ASSESSEE HAD DECLARED NIL CAP ITAL GAIN AFTER APPLYING COST OF INDEXATION AT RS.17,38,956/- THE ASSESSEE WAS ASKED TO PROVIDE BASIS FOR ADOPTING THE FAIR MARKET VALUE A S TAKEN BY ASSESSEE AT RS.9000/- PER MARLAS AS ON 01.04.1981. THE ASSESSEE DID NOT FILE ANY EVIDENCE, THEREFORE, A.O. CALLED FOR INFORMATION U/ S 133(6) OF THE ACT FROM THE REGISTRAR, DASUYA TEHSIL REGARDING VALUE OF LAN D IN THE SAME AREA IN THE YEAR 1981 ON THE BASIS OF ANY SALE DEED REGISTE RED BY HIM DURING THAT PERIOD. IN RESPONSE, THE REGISTRAR FURNISHED THE IN FORMATION STATING THEREIN THAT LAND IN QUESTION WAS NOT COMMERCIAL LA ND AS ON 01.04.1981, BUT AT THE TIME OF ACQUISITION THE PAYMENT WAS MADE AT COMMERCIAL RATES DUE TO THE REASON THAT THE ASSESSEE HAD INSTALLED P ETROL PUMP ON THIS LAND. THE REGISTRAR ALSO INTIMATED THAT DURING THE YEAR 1981 NO REGISTRATION WAS EXECUTED FOR THE LAND LOCATED IN T HE SAID AREA. HE FURTHER SUBMITTED THAT AS PER REGISTRATION EXECUTED ON 29.0 5.1981, THE LAND SITUATED NEAR G.T. ROAD WAS REGISTERED @ 125/- PER MARLA. THE INFORMATION PROVIDED BY TEHSILDAR, DASUYA WAS CONFR ONTED TO THE ASSESSEE AND IN RESPONSE THE ASSESSEE SUBMITTED THA T THE LAND OF ASSESSEE WAS LOCATED ON G.T. ROAD WHEREAS THE LAND CITED BY REGISTRAR, ITA NOS.23 & 24 ( ASR)/2015 ASST. YEAR: 20 08-09 4 DASUYA IS SITUATED 1 K.M AWAY FROM G.T. ROAD. HOWEV ER, HE OFFERED TO ADOPT FMV FOR LAND IN QUESTION @ RS.2000/- PER MARL A AND OFFERED CAPITAL GAIN TAX ACCORDINGLY. HOWEVER, THE ASSESSIN G OFFICER TOOK THE RATE OF RS.550 PER MARLA FOR THE PURPOSE OF CALCULATION OF CAPITAL GAIN AND ALSO ALLOWED BENEFIT OF COST OF IMPROVEMENT IN F.YS . 2002-03 & 2003-04. AGGRIEVED THE ASSESSEE FILED APPEAL BEFORE LEARNED CIT(A) AND FILED AN ADDITIONAL EVIDENCE IN THE FORM OF COPY OF SALE DEE D IN RESPECT OF LAND SITUATED IN VILLAGE UNCHI BASSI AND ALSO FILED COPY OF VALUATION REPORT OF THE LAND IN THE NEARBY VILLAGE. THE LEARNED CIT(A) WAS OF THE OPINION THAT ADDITIONAL EVIDENCES PRODUCED BY ASSESSEE WAS OF NO USE AS THE SALE DEED PRODUCED BY ASSESSEE DID NOT PERTAIN TO THE LAND SI TUATED IN THE SAME VILLAGE/AREA. FURTHER, HE OPINED THAT VALUATION REP ORT SUBMITTED BY ASSESSEE WAS NOT BASED ON ANY SALE INSTANCE AND FAI R MARKET VALUE ARRIVED AT BY THE VALUER HAD NO BASIS. THEREFORE, L EARNED CIT(A) DID NOT ADMIT ADDITIONAL EVIDENCES AS IN HIS OPINION THE SA ME WERE NOT OF ANY USE TO THE ASSESSEE. THEREFORE, HE UPHELD THE ACTIO N OF ASSESSING OFFICER BY ADOPTING THE RATE OF 550/- PER MARLA. WE FIND TH AT ASSESSEE HAD MADE AVAILABLE COPY OF REGISTRY OF LAND SITUATED IN NEAR BY VILLAGE IN WHICH REGISTRY COST MENTIONED WAS RS.3000/- PER MARLA IN 1981 AND ASSESSEE HAD ALSO FILED VALUATION REPORT FROM APPROVED INCOM E TAX VALUER IN WHICH THE COST OF LAND HAS BEEN MENTIONED AT RS.8,5 00/- PER MARLA IN 1981. BOTH THE ABOVE RATES ARE QUITE CONTRARY AND D O NOT SEEM TO BE NEAR THE ACTUAL FAIR MARKET VALUE OF LAND WHICH THE ASSE SSING OFFICER HAD ITA NOS.23 & 24 ( ASR)/2015 ASST. YEAR: 20 08-09 5 ADOPTED. THE FAIR MARKET VALUE DEPENDS FROM AREA TO AREA AND DEPENDS UPON PECULIAR SITUATION OF A PARTICULAR LAND. UNDOU BTEDLY, THE VALUATION OF LAND UNDER DISPUTE WILL BE DIFFERENT AS THE LAND IS ADJACENT TO PETROL PUMP WHICH DEFINITELY HAS COMMERCIAL VALUE AND MORE OVER, THE NHAI HAS ALSO PAID THE COMPENSATION ON THE BASIS OF COMMERCI AL RATES. THE ASSESSING OFFICER HAD REJECTED THE OFFER OF RS.2000 /- PER MARLA AS OFFERED BY ASSESSEE AS IN HIS OPINION THE RATE OFFERED BY T HE ASSESSEE WAS TOO HIGH AND WAS WITHOUT ANY DOCUMENTARY EVIDENCE. WE F IND THAT ASSESSEE BEFORE LEARNED CIT(A) HAS FILED A COPY OF INCOME TA X VALUATION REPORT OF THE LAND AND HAD ALSO FILED A COPY OF SALE DEED IN RESPECT OF LAND SITUATED IN ANOTHER VILLAGE. THOUGH, THE PRICES OF LAND IN A NOTHER VILLAGE CANNOT BE COMPARABLE WITH THE PRICE OF LAND OF ASSESSEE, YET, KEEPING IN VIEW, THE SUBMISSIONS OF ASSESSEE AND ON THE BASIS OF REPORT OF PATWARI/TEHSILDAR, THE AUTHORITIES BELOW COULD HAVE TAKEN A RATE WHICH IS NEAREST TO THE FAIR MARKET VALUE. THEREFORE, WE DEEM IT APPROPRIATE TO REMIT BACK THE CASES TO THE OFFICE OF ASSESSING OFFICER TO FIX THE FAIR MARKET VALUE AS ON 1.4.1981 AFTER TAKING INTO ACCOUNT THE ADDITIONAL E VIDENCES AND AFTER MAKING FURTHER ENQUIRIES IN THIS REGARD. 7. NEEDLESS TO SAY THAT ASSESSEES WILL BE PROVIDED SUFFICIENT OPPORTUNITIES OF BEING HEARD. 8. IN THE RESULT, THE APPEALS FILED BY THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. ITA NOS.23 & 24 ( ASR)/2015 ASST. YEAR: 20 08-09 6 9. IN VIEW OF THE ABOVE, BOTH APPEALS FILED BY ASS ESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 11 .07.2016. SD/- SD/- (A.D. JAIN) (T. S. KAPOOR) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 11.07.2016. /PK/ PS. COPY OF THE ORDER FORWARDED TO: (1) THE ASSESSEE: (2) THE (3) THE CIT(A), (4) THE CIT, (5) THE SR DR, I.T.A.T., TRUE COPY