Smt. Late Fatima Bapist Braganza, Goa V. The Income Tax Officer, Ward-1 (3), Panaji., Panaji

ITA 244/PAN/2015

• Counselvise Citation: [2015] 134 COUNSELVISE.COM (IT) 1396 (ITAT-PANAJI)
• Duration Of Justice: 3 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-09-2015
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Next Hearing Date: 09-09-2015
• Assessment Year: 2004-2005
• Appeal Filed On: 25-05-2015
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: RAMESH S MUTAGAR LD
• Assessee Lawyers: IN PERSON
• Keywords: Capital asset; Fair market value; Valuation report

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PANAJI BENCH, PANAJI BEFORE SHRI N.S. SAINI, HON'BLE ACCOUNTANT MEMBER AND SHRI GEORGE MATHAN, HONBLE JUDICIAL MEMBER ITA NOS. 243 & 245/PNJ/2015 : (A.YS 2004 - 05 & 2007 - 08) JOHN BAPTIST BRAGANZA H.NO. 317, AVIAO, DONA PAULA, GOA (APPELLANT) PAN : AIFPB1877M VS. INCOME TAX OFFICER, WARD - 1(3), PANAJI (RESPONDENT) ITA NOS. 244 & 246/PNJ/2015 : (A.YS 2004 - 05 & 2007 - 08) LATE FATIMA BAPTIST BRAGANZA L/H JOHN BAPTIST BRAGANZA H.NO. 317, AVIAO , DONA PAULA, GOA (APPELLANT) PAN : AIXPB7736R VS. INCOME TAX OFFICER, WARD - 1(3), PANAJI (RESPONDENT) ASSESSEE BY : ASSESSEE IN PERSON REVENUE BY : RAMESH S. MUTAGAR, LD. DR DATE OF HEARING : 0 9 /09/2015 DATE OF PRONOUNCEMENT : 0 9 /09/2015 O R D E R PER GEORGE MATHAN : 1. ITA NO S . 243 & 245/PNJ/2015 ARE APPEALS FILED BY THE ASSESSEE, SHRI JOHN BAPTIST BRAGANZA AGAINST THE ORDERS OF LD. CIT(A), PANAJI - 1 IN ITA NO. 121/PNJ/09 - 10 & 122/PNJ/09 - 10, BOTH DATED 20.2.2015 FOR THE A.Y 2004 - 05 & 2007 - 08 RESPECTIVELY . ITA NOS. 244 & 246/PNJ/2015 ARE APPEALS FILED BY THE ASSESSEE, LATE FATIMA BAPTIST BRAGANZA AGAINST THE ORDERS OF LD. CIT(A), PANAJI - 2 ITA NOS. 243 TO 246/PNJ/2015 (A.YS : 2004 - 05 & 2007 - 08) 1 IN ITA NO. 124/PNJ/09 - 10 & 125/PNJ/09 - 10, BOTH DATED 20.2.2015 FOR THE A.Y 2004 - 05 & 2007 - 08 RESP ECTIVELY. 2. AS ALL THE APPEALS ARE INTERCONNECTED AND INVOLVE IDENTICAL ISSUE, THEY ARE BEING DISPOSED OFF BY THIS COMMON ORDER. SHRI JOHN BAPTIST BRAGANZA, ASSESSEE IN PERSON APPEARED AND FILED WRITTEN SUBMISSION. SHRI RAMESH S. MUTAGAR, LD. DR REPR ESENTED ON BEHALF OF THE REVENUE. 3. IT WAS THE SUBMISSION BY THE ASSESSEE THAT THE ASSESSEE IS A PENSIONER. THE ASSESSEE OWNED 1428 SQ. MTRS. OF LAND AT VILLAGE TALEIGAO, TISWADI TALUKA, NORTH GOA FALLING WITHIN THE JURISDICTION OF THE CORPORATION OF PA NAJI ALONGWITH TWO RESIDENTIAL HOUSES SITUATED THEREIN. THE SAID PROPERTY WAS INHERITED BY THE ASSESSEE. THE ASSESSEE HAD CONSTRUCTED FURTHER ON THE SAID PROPERTY AND HAD SOLD PART OF THE STRUCTURE. THE CONSTRUCTION WAS IN RESPECT OF 1 ST & 2 ND FLOOR HAV ING BUILT - UP AREA OF 442.65 SQ. MTRS. THE ASSESSEE HAD SOLD FLATS IN THE SAID 1 ST & 2 ND FLOOR DURING THE RELEVANT TWO ASSESSMENT YEARS. THE COST OF CONSTRUCTION AS DISCLOSED BY THE ASSESSEE WAS NOT ACCEPTED AND A FURTHER ADDITION OF RS. 6,50,000/ - WAS MA DE BY THE AO TOWARDS THE COST OF CONSTRUCTION. THE AO HAD ALSO NOT ACCEPTED THE COMPUTATION OF CAPITAL GAINS IN RESPECT OF THE LAND INSOFAR AS THE ASSESSEE HAD IN HIS COMPUTATION OF CAPITAL GAINS ADOPTED VALUATION OF RS. 900/SQ. MTR. AS THE VALUE AS ON 1. 4.1981. THE AO , ON THE BASIS OF A LETTER FROM THE SUB - REGISTRAR , ADOPTED THE FAIR MARKET V ALUE (FMV) OF RS. 270/SQ. MTR. IT WAS THE SUBMISSION BY THE LD. ASSESSEE THAT THE ASSESSEE HAD SUBMITTED THE VALUATION REPORT IN RESPECT OF THE VALUATION OF THE LAN D FROM A REGISTERED VALUER WHICH HAD BEEN REJECTED BY THE AO. IT WAS THE SUBMISSION THAT THE AO HAD NOT OBTAINED ANY VALUATION REPORT FROM THE DVO BUT HAD ONLY RELIED UPON THE ESTIMATION DONE BY THE SUB - REGISTRAR, ILHAS, PANAJI. IT WAS THE SUBMISSION THA T THE SAID VALUATION ALSO DID NOT HAVE ANY BASIS. IT WAS 3 ITA NOS. 243 TO 246/PNJ/2015 (A.YS : 2004 - 05 & 2007 - 08) THE SUBMISSION THAT ON APPEAL, THE LD. CIT(A) HAD DIRECTED THAT THE FMV AS ON 1.4.1981 WAS LIABLE TO BE TAKEN AT RS. 500/SQ. MTR. IT WAS THE SUBMISSION THAT BEFORE THE LD. CIT(A) THE ASSESSEE HAD C ONCEDED THAT THE VALUATION COULD BE TAKEN AT RS. 652/SQ. MTR. AS ON 1.4.1981. IT WAS THE PRAYER THAT THE VALUATION AS ON 1.4.1981 MAY BE TAKEN AT RS. 652/SQ. MTR. 4. IN REPLY, THE LD. DR SUBMITTED THAT THE VALUATION REPORT AS SUBMITTED BY THE ASSESSEE SH OWED THE FMV AS ON 1.4.1981 AT RS. 900/SQ. MTR. AND THE SAID VALUATION REPORT WAS FAULTY. IT WAS THE SUBMISSION THAT THE AO HAS ADOPTED THE CORRECT FMV AS ON 1.4.1981 AT RS. 270/SQ. MTR. INSOFAR AS THE SAME IS ON THE BASIS OF THE VALUATION PROVIDED BY THE SUB - REGISTRAR. IT WAS THE SUBMISSION THAT THE LD. CIT(A) HAS ERRED IN ADOPTING THE AMOUNT OF RS. 500/SQ. MTR. AS THE FMV AS ON 1.4.1981 BUT AS THE REVENUE HAS NOT FILED ANY APPEAL, THE ORDER OF THE LD. CIT(A) WAS LIABLE TO BE UPHELD. 5. WE HAVE CONSIDER ED THE RIVAL SUBMISSIONS. A PERUSAL OF THE PROVISIONS OF SEC. 45 OF THE ACT PROVIDES FOR THE COMPUTATION OF CAPITAL GAINS. SEC. 48 PROVIDES FOR THE MODE OF COMPUTATION OF THE SAID CAPITAL GAINS. SEC. 2(22B) DEFINES FAIR MARKET VALUE. SEC. 2(22B)(II) PR OVIDES THAT WHERE THE PRICE THAT THE CAPITAL ASSET WOULD ORDINARILY FETCH ON THE SALE IN THE OPEN MARKET ON THE RELEVANT DATE IS NOT ASCERTAINABLE, THEN, SUCH PRICE IS TO BE DETERMINED IN ACCORDANCE WITH THE RULES MADE UNDER THE INCOME TAX ACT . ADMITTEDLY, THE ASSESSEE NOR THE LD. CIT(A) HAS FOLLOWED ANY OF THE PRESCRIBED METHODS FOR THE PURPOSE OF DETERMINING THE FMV OF THE PROPERTY. THE REGISTERED VALUER HAS NOT SPECIFIED THE METHODOLOGY APPLIED FOR THE PURPOSE OF VALUING THE PROPERTY. THE AO HAS BASED HIS VALUATION ON THE LETTER FROM THE SUB - REGISTRAR. HOW THE SUB - REGISTRAR HAS ARRIVED AT THIS VALUE IS UNKNOWN. NO COMPARATIVE CASE HAS BEEN PLACED OR REFERRED. THE LD. CIT(A) HAS APPLIED AD HOC FIGURE. THESE ARE 4 ITA NOS. 243 TO 246/PNJ/2015 (A.YS : 2004 - 05 & 2007 - 08) NOT PERMISSIBLE FOR DETER MINING THE FAIR MARKET VALUE OF THE PROPERTY. IN THE CIRCUMSTANCES, WE ARE OF THE VIEW THAT THE ISSUE OF VALUATION OF THE FAIR MARKET VALUE OF THE PROPERTY AS ON 1.4.1981 WOULD HAVE TO BE RESTORED TO THE FILE OF THE AO FOR APPLYING THE PROPER PROCEDURE FO R THE PURPOSE OF DETERMINING THE FAIR MARKET VALUE OF THE PROPERTY AS ON 1.4.1981 AFTER GIVING THE ASSESSEE ADEQUATE OPPORTUNITY TO SUBSTANTIATE HIS CASE, AND WE DO SO. 6. IN THE RESULT, ALL THE APPEALS OF THE ASSESSEE ARE PARTLY ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 09/09/2015. S D / - (N.S. SAINI) ACCOUNTANT MEMBER S D / - ( GEORGE MATHAN ) JUDICIAL MEMBER PLACE : PANAJI / GOA DATED : 09/09/ 201 5 *SSL* COPY TO : (1) APPELLANT (2) RESPONDENT (3) CIT(A) CONCERNED (4) CIT CONCERNED (5) D.R (6) GUARD FILE TRUE COPY, BY ORDER , 5 ITA NOS. 243 TO 246/PNJ/2015 (A.YS : 2004 - 05 & 2007 - 08) DATE INITIAL ORIGINAL DICTATION PAD & DRAFT ORDER ARE ENCLOSED IN THE FILE 1. DRAFT DICTATED ON 09/09/2015 SR.PS 2. DRAFT PLACED BEFORE AUTHOR 09/09/2015 SR.PS 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER 09/09/2015 JM/AM 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER 09/09/2015 JM/AM 5. APPROVED DRAFT COMES TO THE SR.PS/PS 09/09/2015 SR.PS 6. DATE OF PRONOUNCEMENT 09/09/2015 SR.PS 7. FILE SENT TO THE BENCH CLERK 09/09/2015 SR.PS 8. DATE ON WHICH FILE GOES TO THE HEAD CLERK 9. DATE OF DISPATCH OF ORDER