Shri Pravinbhai Bhogilal Patel,HUF, Surat V. The Income tax Officer,Ward-3(4), Surat

ITA 2762/AHD/2011

• Counselvise Citation: 276220514 RSA 2011
• Duration Of Justice: 1 year(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-12-2012
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: C
• Next Hearing Date: 31-10-2012
• Assessment Year: 2008-2009
• Appeal Filed On: 08-11-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: D K SINGH
• Assessee Lawyers: S N SOPARKAR
• Keywords: Cost of acquisition; Valuation report
• Section: 143(3); 142(1); 133(6)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH AHMEDABAD (SHRI G. C. GUPTA, VP AND SHRI A. MOHAN ALANKAMONY, AM) ITA NO. 2732/AHD/2011 A. Y.: 2008-09 THE INCOME TAX OFFICER, WARD- 3 (4), ROOM NO.4, 2 ND FLOOR, AAYAKAR BHAVAN, MAJURA GATE, SURAT. VS SHRI PRAVIN BHOGILAL PATEL (HUF), 57, SHREE NATH SOCIETY, ADAJAN, SURAT 395 005 P. A. NO. AADHP 8378 (APPELLANT) (RESPONDENT) ITA NO. 2762/AHD/2011 A.Y.: 2008-09 SHRI PRAVIN BHOGILAL PATEL (HUF), 57, SHREE NATH SOCIETY, ADAJAN, SURAT 395 005 P. A. NO. AADHP 8378 VS THE INCOME TAX OFFICER, WARD- 3 (4), ROOM NO.4, 2 ND FLOOR, AAYAKAR BHAVAN, MAJURA GATE, SURAT. (APPELLANT) (RESPONDENT) DEPARTMENT BY SHRI D. K. SINGH,, SR. DR ASSESSEE BY SHRI S. N. SOPARKAR, AR DATE OF HEARING: 31-10-2012 DATE OF PRONOUNCEMENT: 07-12-2012 O R D E R PER A. MOHAN ALANKAMONY: THESE TWO CROSS APPEALS ARE PREFERRED ONE BY THE REVENUE AND THE OTHER BY THE ASSESSEE, AGGRIEVED BY THE COMMON ORDER OF THE LEARNED CIT (A)-II, SURA T DATED 29-08-2011 IN APPEAL NO. CAS-II/186/2010-11/174, FOR THE ASSESSME NT YEAR 2008-09 PASSED U/S 250 READ WITH SECTION 143(3) OF THE I. T . ACT. FOR THE SAKE OF CONVENIENCE BOTH THE APPEALS ARE HEARD TOGETHER AN D ARE BEING DISPOSED OF BY THIS CONSOLIDATED ORDER. ITA NO.2732 AND 2762/AHD/2011 (AY: 2008-09) SHRI PRAVIN BHOGILAL PATEL (HUF) 2 ITA NO.2732/AHD/2011 (REVENUES APPEAL FOR AY 2008-09) 2. THE REVENUE HAS RAISED THREE GROUNDS IN THIS APP EAL WHEREIN GROUNDS NO.2 AND 3 ARE GENERAL IN NATURE AND DO NOT SURVIVE FOR ADJUDICATION. THE LOAN SURVIVING GROUND NO.1 IS REP RODUCED HEREIN UNDER FOR REFERENCE: [1] ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE AND IN LAW, THE LEARNED CIT(A)-II, SURAT HAS ERRED IN DIRECTING THE A. O. TO COMPUTE THE COST OF ACQUISITION OF LAND AS ON 01.04 .1981 BY ADOPTING THE RATE OF RS.325.39 PER SQ. METER AS AGA INST RATE OF RS.5/- PER SQ. METER AND THEREBY REDUCING THE LONG TERM CAPITAL GAIN FROM RS.1,88,20,466/- TO RS.48,16,132/-, WITHO UT NOTING THAT THE RATE ADOPTED BY THE A. O. IS BASED ON THE INFORMATI ON RECEIVED FROM THE TALATI-CUM-MANTRI AGAINST WHICH THE ASSESSEE FA ILED TO SUBSTANTIATE THE RATE ADOPTED BY HIM. 3. BRIEF FACTS:- THE ASSESSEE, A HUF FILED ITS E-RE TURN OF INCOME FOR THE ASSESSMENT YEAR 2008-09 ON 29-12-2008 DECLARING TOT AL INCOME OF RS.71,580 AND AGRICULTURE INCOME OF RS.96,810. THE RETURN WAS PROCESSED U/S 143(1) OF THE ACT. THEREAFTER, THE CASE WAS TAK EN UP FOR SCRUTINY U/S 143(2) OF THE ACT BY ISSUING NOTICE U/S 142(1) OF T HE ACT ALONG WITH QUESTIONNAIRE IN RESPONSE TO WHICH THE ASSESSEE FUR NISHED SUBMISSIONS BEFORE THE LEARNED AO. AFTER CONSIDERING SUBMISSION S OF THE ASSESSEE AND PERUSED THE CASE, THE LEARNED AO NOTICED THAT THE A SSESSEE HAD IN THE RETURN OF INCOME SHOWN INTEREST INCOME, AGRICULTURE INCOME AND ALSO CLAIMED LONG TERM CAPITAL LOSS OF RS.10,67,286/-. T HE ASSESSEE HAD ALSO CLAIMED DEDUCTION UNDER CHAPTER VIA OF THE ACT AMOU NTING TO RS.58,106/-. IT WAS FURTHER NOTICES BY THE LEARNED AO THAT THE A SSESSEE HAD SOLD HIS ANCESTRAL LAND ADMEASURING 7933 SQ. MTRS. FOR RS.1 ,90,39,200/- TO M/S. AVANI CORPORATION. THE ASSESSEE HAD ADOPTED THE COS T OF ACQUISITION AT RS.36,49,090/- AS ON 01.04.1981 @ RS.460/- PER SQ. MTR., FOR 7933 SQ. ITA NO.2732 AND 2762/AHD/2011 (AY: 2008-09) SHRI PRAVIN BHOGILAL PATEL (HUF) 3 MTRS. OF LAND RELYING ON THE REPORT OF REGISTERED V ALUER WHEREIN THE REGISTERED VALUER RECORDED THE FOLLOWING INSTANCES: LOCATION OF PROPERTY AREA OF PROPERTY (SQ. MTR.) SALE PRICE (RS.) SELLER PURCHASER REGD. NO. DATE MOJE:PAL GP NO.410/P 15 6999/- RS.460/- PER SQ. MTR. AHMED MALEK HUSSAIN GULAM ISMAIL MALEK 854 DT. 01.03.1980 MOJE: PAL PLOT NO.88 267.52 7999/- RS.299 PER SQ. MTR. GANDABHAI ATMARM DASRATHBHAI PRABHBHAI PATEL 1881 DT. 27.03.1980 MOJE: PAL H. NO.25 78.62 14999/- RS.190.78 PER SQ. MTR. BHANUBEN BHIKHABHAI DALCHAND MOTILAL SHAH 1340 DT. 16.03.1981 MOJE: PAL GP NO.228 28.62 4951/- RS.172 PER SQ. MTR. AYESHA KHATUN ISMAIL SIKANDARKHAN A KHAN 7624 DT. 24.11.1981 THE LEARNED AO NOT SATISFIED WITH THE STAND OF THE ASSESSEE REFERRED THE MATTER FOR VALUATION OF THE LAND AS ON 01-04-1981 T O THE DISTRICT VALUATION OFFICER. THE LEARNED AO ALSO OBTAINED INFORMATION U /S 133(6) OF THE ACT FROM THE CONCERNED TALATI-CUM-MANTRI WHO HAD INFORM ED THE LEARNED AO THAT THE RATE OF SALE OF LAND DURING THE YEAR 1981- 82 WAS RS.5/- PER SQ. MTR., AS PER SALE INSTANCES GIVEN HEREIN UNDER: DASTAWEJ DATE ENTRY NO. ENTRY DATE NAME OF SELLER NME OF PURCHASER BLOCK NO. AREA OF LAND IN SQ. MTR. SALE VALUE (RS.) 27.4.1981 3796 11.3.1982 SAHERBARJI B. MODI NARSINGH GOVINDBHAI & OTHERS 590 591/1 37129 223407 18.7.1981 3803 18.3.1982 DARABSA HORAMASJI & OTHERS RAMANLAL MANGALDAS 616 5271 93275 18.7.1981 3804 21.4.1982 -DO- BHOGILAL MANGALDAS 622/1 34095 95254 16.11.1981 3811 25.5.1982 MANSUKH BHAGWANJI NAGINBHAI B PATEL 264 1865 24999 27.7.1981 3852 2,5,1983 BHANUBEN VASUDED & OTHERS JOLIBEN BHIKHABHAI 612/1 17606 44999 21.12.1981 3800 15.3.1982 MANEKBEN & OTHERS ISHWARBHAI DAHYABHAI PATEL 205 19627 44999 ITA NO.2732 AND 2762/AHD/2011 (AY: 2008-09) SHRI PRAVIN BHOGILAL PATEL (HUF) 4 6.7.1981 3810 25.5.1982 MANEKSHA DARBASHA & OTHERS MANEK ABID MIYA 493, 501, 503 & 564 8600 92653 8.1.1983 3855 3,5,1983 -DO- DAHYABHAI ISHWARBHAI 201 & 203 16896 42406 THE LEARNED AO ALSO OBTAINED INFORMATION U/S 133(6) OF THE ACT FROM THE SUB REGISTRAR-1 (ATHWA), SURAT FOR VERIFICATION OF THE CORRECTNESS OF SALE RATE QUOTED BY THE REGISTERED VALUER. THE LEARNED A O FOUND DISCREPANCIES IN THE SALE INSTANCES GIVEN BY THE REGISTERED VALUE R AS HE HAS ARRIVED AT THE SALE VALUE OF THE LAND @ RS.460/- PER SQ. MTR. THE LEARNED AO ACCORDINGLY REQUIRED THE ASSESSEE TO SHOW CAUSE AS TO WHY THE SALE RATE OF THE LAND IN QUESTION AS ON 01-04-1981 NOT BE TAK EN AT RS.5/- PER SQ. MTR. AND THE COST OF ACQUISITION AS ON 01-04-1981 BE NOT TAKEN AT RS.39,665/-. THE LEARNED AO ALSO STATED THAT ON THAT BASIS BY AP PLYING C II OF 551, THE INDEXED COST OF ACQUISITION IN THE FINANCIAL YEAR 2 007-08 WOULD BE RS.2,18,554/ AND THEREFORE, ON TRANSFER OF THE SAID LAND BY THE ASSESSEE LONG TERM CAPITAL GAIN WOULD BE RS.1,88,20,646/- I. E. (RS.1,90,39,200 RS.2,18,554). THE ASSESSEE WAS FURTHER ASKED TO SHO W CAUSE AS TO WHY HIS LONG TERM CAPITAL GAIN ON TRANSFER OF HIS LAND NOT BE TAKEN AT RS.1,88,20,646/-. THE LEARNED AO CONSIDERING THE AS SESSEES SUBMISSIONS AND THE FACT THAT THE ASSESSEE HAD NOT CLARIFIED AS TO WHETHER HE HAS SUBMITTED HIS WEALTH TAX RETURNS ON THE BASIS OF VA LUATION OF THE LAND @ RS.460/- PER SQ. MTR. AS ON 01-04-1981 REJECTED THE CLAIM OF THE ASSESSEE FOR LONG TERM CAPITAL LOSS OF RS.10,67,286/- AND FI NALIZED THE ASSESSMENT ON 15-12-2010 U/S 143(3) OF THE ACT BY MAKING AN A DDITION OF RS.1,88,20,646/- TO THE INCOME OF THE ASSESSEE ON A CCOUNT OF LONG TERM CAPITAL GAIN. 4. THE ASSESSEE CARRIED THE MATTER BEFORE THE LEARN ED CIT(A). THE ASSESSEE BEFORE HIM SUBMITTED AS UNDER: ITA NO.2732 AND 2762/AHD/2011 (AY: 2008-09) SHRI PRAVIN BHOGILAL PATEL (HUF) 5 I) THE ASSESSEE ADOPTED INDEXED COST OF LAND FOR AY 1981-82 BASED ON THE REPORT OF THE GOVERNMENT APPROVED VALU ER, WHO HAS DULY CONSIDERED MATERIAL FACTS LIKE AREA OF THE LAN D, SITUATION OF THE LAND AND SALE INSTANCES DURING THE SAID PERIOD. II) THE PLOT OF LAND SOLD BY THE ASSESSEE IS 7933 S Q. METERS FACING TP SCHEME ROAD AND THE RATE OF THE LAND IN T HIS AREA IS FLUCTUATING BETWEEN RS.172.80/- TO RS.460/- PER SQ. METER. II) THE VALUER HAS ADOPTED THE RATE OF RS.460/- PER SQ. METER, BECAUSE THE PLOT OF LAND IS ELIGIBLE FOR CONSTRUCTI ON OF HIGH RISE APARTMENT BUILDING WITH HIGHEST PERMISSIBLE FSI. IV) THE VALUE TAKEN BY THE ASSESSEE ON THE BASIS OF APPROVED VALUERS REPORT AS ON 01-04-1981 FOR THE PURPOSE OF CAPITAL GAIN CANNOT BE REJECTED WHEN THE SIMILAR VALUATION HAS B EEN TAKEN IN THE CASE OF CO-OWNER OF THE PROPERTY AND THE REPORT OF THE REGISTERED VALUER IS VALID EVIDENCE IN DECIDING THE MATTERS OF VALUATION. V) THE LAND IN QUESTION HAS BEEN SOLD AT RS.2400/- PER SQ. METER COMPARED TO THE GENERAL PRICE OF RS.800 TO RS.1000/ - VIS--VIS OTHER PLOTS IN THE FY 2007-08 AND THE ASSESSEE HAD PAID T HE TOTAL AMOUNT OF STAMP DUTY BASED ON THE ABOVE VALUE AND THE STAM P VALUATION AUTHORITY ACCEPTED THE SAME TO BE CORRECT AND THE A SSESSEE HAS NOT PAID ANY ADDITIONAL STAMP DUTY. 4.1 THE LEARNED CIT(A) CONSIDERING THE SUBMISSIONS OF THE ASSESSEE AND THE ORDER OF THE LEARNED AO DIRECTED THE LEARNE D AO TO ADOPT THE COST OF ACQUISITION OF THE LAND AS ON 01-04-1981 @ RS.32 5.39 PER SQ. MTR. AS AGAINST THE RAGE OF RS.5/- AND THEREBY REDUCED THE LONG TERM CAPITAL GAIN CLAIMED BY THE ASSESSEE FROM RS.1,88,20,466/- TO RS .48,16,132/-. THE RELEVANT PORTION OF THE FINDINGS OF THE LEARNED CIT (A) IS REPRODUCED HEREIN UNDER FOR REFERENCE: 4.3 THE ASSESSING OFFICER, IN SHORT, HAS MADE THE ABOVE ADDITION FOR THE FOLLOWING REASONS. (I) THREE OUT OF FOUR SALE INSTANCES OF THE PROPERT Y GIVEN IN GOVERNMENT APPROVED VALUERS REPORT ARE NOT COMPARA BLE AS THE SAME ARE NOT OF OPEN PIECE OF LAND, BUT LAND AL ONG WITH BUILDING CONSTRUCTED ON IT, AND IN THE REMAINING CA SE, THE ACTUAL RATE IS RS.30/- PER SQ. METER AND NOT RS.299 /- PER SQ. METER, AS MENTIONED IN THE VALUATION REPORT. (II) THE RATE OF SALE PER SQ. METER FROM THE EIGHT SALE INSTANCES OF THE LAND IN THE YEAR 1982 AND 1983 OBT AINED FROM ITA NO.2732 AND 2762/AHD/2011 (AY: 2008-09) SHRI PRAVIN BHOGILAL PATEL (HUF) 6 THE TALATI-CUM-MANTRI OF PAL TALUKA CHORYASI, DIST. SURAT RANGES FROM RS.2.29 PER SQ. METER TO RS.17.69 PER S Q. METER. 4.4 UPON DUE CONSIDERATION OF THE ABOVE FACTS, AND THE SUBMISSION OF THE APPELLANT, I FIND THAT BOTH THE G OVERNMENT APPROVED VALUER AND THE ASSESSING OFFICER HAVE OUT OF SALE INSTANCES RELIED UPON BY THEM TAKEN THE RATE OF SAL E WHICH IS HIGHEST I.E. RS.460/- PER SQ. METER, IN THE REPORT OF THE G OVERNMENT APPROVED VALUER AND ALMOST LOWEST, I.E. RS.5/- PER SQ. METER , WHICH IS THE RATE ADOPTED BY THE ASSESSING OFFICER, FOR DETERMINING T HE COST OF ACQUISITION OF THE LAND IN QUESTION, AS ON 01.04.19 81. THEREFORE, WHAT COMES OUT IS THAT WHILE THE GOVERNMENT APPROVE D VALUERS REPORT CANNOT BE DISMISSED ALTOGETHER, THE RATE OF SALE ADOPTED BY THE ASSESSING OFFICER ALSO CANNOT BE TAKEN AS TRUE AND CORRECT RATE FOR ADOPTING COST OF ACQUISITION OF THE LAND AS ON 01.04.1981. I ALSO FIND THAT THE SALE INSTANCES RELIED UPON BY THE ASS ESSING OFFICER PERTAINED TO THE YEAR 1982 AND 1983 AND THOUGH THE SAME ARE MUCH BELOW THE RATE OF SALE IN THE SALE INSTANCES GIVEN IN THE GOVERNMENT APPROVED VALUERS REPORT AND ALSO RELATE TO THE PER IOD SUBSEQUENT TO 01.04.1982, IT IS NOT UNDERSTOOD AS TO WHY THE ASSE SSING OFFICER DID NOT OBTAIN ANY SALE INSTANCES RELATING TO THE YEAR 1981. I FURTHER NOTICE THAT THE LAND SOLD BY THE APPELLANT IS LOCAT ED IN BLOCK NO.323 IN PAL TALUKA. HOWEVER, NONE OUT OF THE EIGHT SALE INSTANCES WHICH HAVE BEEN MADE THE BASIS FOR DETERMINING THE COST O F ACQUISITION AS ON 01.04.1981 OF THE LAND IN QUESTION BY THE ASSESS ING OFFICER, IS LOCATED IN THE SAID BLOCK NO.323. THE SALE INSTANCE S GIVEN IN THE VALUERS REPORT ALSO DO NOT SUGGEST THAT THEY ARE L OCATED IN BLOCK NO.323 IN PAL. 4.5 ON THE BACKGROUND OF THE ABOVE OBSERVATION, I F IND IT RELEVANT TO RECORD THAT FOR ADOPTING AND DETERMINING THE COS T OF ACQUISITION OF THE LAND IN QUESTION, AS ON 01.04.1981, SUCH FACTOR S AS THE LOCATION OF THE LAND ALSO BECOME IMPORTANT. THE ASSESSING OF FICER HAS NOT DISPUTED THE CONTENTION OF THE APPELLANT THAT THE P IECE OF LAND IN QUESTION IS ELIGIBLE FOR HIGH RISE APARTMENTS BUILD ING, WHICH MAY ENJOY THE BENEFIT OF HIGHEST PERMISSIBLE FSI, AS ON THE DATE OF VALUATION. THE GOVERNMENT APPROVED VALUER HAS ALSO TAKEN THIS INTO CONSIDERATION FOR TAKING THE RATE OF RS.460/- PER S Q. METER FOR DETERMINING THE COST OF ACQUISITION AS ON 01.04.198 1 OF THE LAND SOLD BY THE APPELLANT. 4.6 I FURTHER NOTICE THAT OUT OF FOUR SALE INSTANCE S TAKEN BY THE GOVERNMENT APPROVED VALUER, TWO RELATE TO THE SALE MADE IN 1980, ITA NO.2732 AND 2762/AHD/2011 (AY: 2008-09) SHRI PRAVIN BHOGILAL PATEL (HUF) 7 WHILE THE OTHER TWO RELATE TO THE SALE MADE IN 1981 . IN FACT, THE SALE OF PROPERTY OF H. NO.25 IN MOJE PAL, THOUGH IS SALE INSTANCE OF A HOUSE PROPERTY, IS MORE OR LESS ALSO INDICATOR OF T HE COST OF LAND AS ON 01.04.1981, AS THE SAID PROPERTY HAS BEEN SOLD O N 16.03.1981, WHICH IS NEAREST TO THE DATE 01.04.1981 FOR DETERMI NING THE COST OF ACQUISITION OF THE PROPERTY FOR THE PURPOSE OF COMP UTING THE LONG TERM CAPITAL GAIN. IN THE ABSENCE OF ANY OTHER VALU ERS REPORT, INCLUDING THE DVOS THE GOVERNMENT APPROVED VALUER S REPORT CANNOT BE ENTIRELY REJECTED. AT THE SAME TIME, THE RATE OF SALE ADOPTED BY THE VALUER, OUT OF THE SALE INSTANCES CITED IN HIS REPORT ALSO CANNOT BE FULLY ACCEPTED. I, THEREFORE, HOLD THAT OUT OF THE SALE INSTANCES GIVEN IN THE VALUERS REPORT, ONE SALE INSTANCE OF THE YE AR 1980 AND THE OTHER SALE INSTANCE OF THE YEAR 1981 SHOULD BE TAKE N INTO CONSIDERATION AND THE AVERAGE OF THE TWO SHOULD BE ADOPTED FOR DETERMINING THE COST OF ACQUISITION OF THE LAND IN QUESTION AS ON 01.04.1981. ACCORDINGLY, I FURTHER HOLD THAT THE SA LE PRICE OF RS.460/- PER SQ. METER OF GP NO.410 AND RS.190.78 PER SQ. ME TER OF H. NO.25 IN MOJE PAL MENTIONED IN THE VALUERS REPORT SHOULD BE TAKEN INTO CONSIDERATION AND THE AVERAGE OF THE TWO I.E. RS.325.39/- SHOULD BE TAKEN AS THE RATE PER SQ. METER FOR DETERMINING THE COST OF ACQUISITION OF LAND IN QUESTION AS ON 01.04.1981, F OR THE PURPOSE OF COMPUTATION OF LONG TERM CAPITAL GAIN. I THEREFORE, DIRECT THE ASSESSING OFFICER TO COMPUTE THE COST OF ACQUISITIO N OF THE ABOVE PIECE OF LAND AS ON 01.04.1981 BY ADOPTING THE RATE OF RS.325.39 PER SQ. METER, WHICH COMES TO RS.25,81,319/- AND AP PLY THE COST INFLATION INDEX (CII) AT 551 FOR THE FINANCIAL YEAR 2007-08, FOR DETERMINING THE INDEXED COST OF THE LAND FOR THE PU RPOSES OF COMPUTING LONG TERM CAPITAL GAIN. THIS GROUND OF AP PEAL, IS, THEREFORE, PARTLY ALLOWED. 4.2 THE REVENUE IS IN APPEAL AGAINST THE FINDINGS O F THE LEARNED CIT(A). 5. THE LEARNED DR SUPPORTED THE ORDER OF THE LEARN ED AO AND PRAYED THAT HIS ORDER MAY BE SUSTAINED. ON THE OTHER HAND, THE LEARNED AR RELIED ON THE ORDER OF THE LEARNED CIT(A) AND REITERATED T HE SUBMISSIONS MADE BEFORE THE AUTHORITIES BELOW. 6. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE ORDERS OF THE AUTHORITIES BELOW ALONG WITH THE PAPER BOOK SUBMITT ED BEFORE US. PRIMARILY, THE LEARNED AO HAD NOT AGREED TO THE VAL UATION ADOPTED BY THE ITA NO.2732 AND 2762/AHD/2011 (AY: 2008-09) SHRI PRAVIN BHOGILAL PATEL (HUF) 8 ASSESSEE OF RS.5/- PER SQ. MTR. BECAUSE THREE OUT O F FOUR SALE INSTANCES OF THE PROPERTY RELIED UPON BY THE ASSESSEE, WAS NOT C OMPARABLE ACCORDING TO THE LEARNED APPROVED VALUERS REPORT SINCE THEY ARE NOT VACANT LAND BUT LAND CONSISTING OF BUILDING AND IN THE OTHER INSTAN CE THE ACTUAL RATE OF THE LAND WAS RS.30/- PER SQ. MTR. AND NOT RS.299/- PER SQ. MTR. AS CLAIMED BY THE ASSESSEE. THE ASSESSEE HAD NOT COME OUT WITH AN Y MATERIAL TO DISESTABLISH THE FINDING OF THE GOVERNMENT VALUER. THE ONLY RELEVANT ARGUMENT OF THE ASSESSEE WAS THAT (I) THE LAND OF THE ASSESSEE WAS ELIGIBLE FOR HIGH RISE APARTMENT BUILDING WHICH ENJOY THE BENEFIT OF HIGHER PERMISSI BLE FSI AS ON THE DATE OF VALUATION I.E. RS.460/- PER SQ. MTR. (II) ON THE DATE OF VALUATION THE JANTRY RATE WAS R ANGING FROM RS.400/- PER SQ. MTR. TO RS.925/- PER SQ. MTR. (III) THE LAND WAS 7933 SQ. MTR. FACING TP SCHEME R OAD AND THE RATE OF THE LAND IN THAT AREA WAS RANGING BETWEEN RS.172 .80 TO RS.460/- PER SQ. MTR. (IV) THE VALUATION WAS CERTIFIED BY THE REGISTERED VALUER AND, THEREFORE, IT HAD EVIDENTIAL VALUE IN DETERMINING T HE VALUE OF THE PROPERTY. (V) THE LAND WAS SOLD AT A VALUE OF RS.2,400/- PER SQ. MTR. COMPARED TO GENERAL PRICE OF RS.8,200/- PER SQ. MTR. FETCHED BY OTHER PLOTS IN THE VICINITY FOR THE RELEVANT ASSESSMENT YEAR. THE LEARNED CIT(A), AFTER ANALYZING THE ISSUE IN DE TAIL HAD ARRIVED AT THE FOLLOWING CONCLUSIONS: (I) THE REGISTERED VALUER HAD DETERMINED THE VALUE AT RS.460/- PER SQ. MTR. WHILE AS THE AO HAD ADOPTED THE VALUE OF RS.5/- PER SQ. MTR., THEREFORE, BOTH THE VALUATION CANNOT BE EITHER RELIED UPON OR TOTALLY REJECTED. (II) THE AO HAD RELIED UPON THE SALE INSTANCES PERT AINING TO THE YEAR 1982-83 AND NOT BROUGHT OUT ANY INSTANCE OF SA LE RELATED TO A CLOSER DATE TO 01-04-1981. (III) THE LAND SOLD BY THE ASSESSEE IS LOCATED IN B LOCK NO.323 IN PAL TALUKA, HOWEVER, NONE OF THE EIGHT SALE INSTANC ES RELIED UPON BY THE AO IS LOCATED IN BLOCK NO.323. THE SAID INSTANCE GIVEN IN THE VALUERS REPORT RELIED UPON BY THE ASS ESSEE ALSO ARE NOT LOCATED IN BLOCK NO.323 IN PAL TALUKA. ITA NO.2732 AND 2762/AHD/2011 (AY: 2008-09) SHRI PRAVIN BHOGILAL PATEL (HUF) 9 (IV) THE AO HAS NOT DISPUTED THE CONTENTION OF THE ASSESSEE THAT THE LAND IN QUESTION IS ELIGIBLE FOR HIGH RISE APAR TMENTS WHICH ENJOY THE BENEFIT OF HIGHER PERMISSIBLE FSI AS ON T HE DATE OF VALUATION. THE GOVERNMENT RECOGNIZED VALUER HAD ADO PTED THE VALUE OF RS.460/- PER SQ. MTR. HEAVILY RELYING ON THIS ADVANTAGE OF THE LAND. (V) THE GOVERNMENT RECOGNIZED VALUER HAD RELIED ON THE SALE INSTANCES OF 1980-81 WHICH ARE NEARER TO 01-04-1981 , HOWEVER, THE LOCATION OF THE LAND IS NOT CLOSE TO T HE ASSESSEES LAND. THEREFORE, THE VALUATION ADOPTED BY THE GOVER NMENT RECOGNIZED VALUER CANNOT BE FULLY RELIED UPON. DUE TO THE ABOVE SAID REASONS, THE LEARNED CIT(A) D ETERMINED THE RATE AT RS.325.39 PER SQ. MTR. WITH THE FOLLOWING OBSERVATI ONS: I, THEREFORE, HOLD THAT OUT OF THE SALE INSTANCES GIVEN IN THE VALUERS REPORT, ONE SALE INSTANCE OF THE YEAR 1980 AND THE OTHER SALE INSTANCE OF THE YEAR 1981 SHOULD BE TAKEN INTO CONS IDERATION AND THE AVERAGE OF THE TWO SHOULD BE ADOPTED FOR DETERMININ G THE COST OF THE ACQUISITION OF THE LAND IN QUESTION AS ON 01.04.198 1. ACCORDINGLY, I FURTHER HOLD THAT THE SALE VALUE PRICE OF RS.460/- PER SQ. METER OF GP NO.410 AND RS.190.78 PER SQ. METER OF H. NO.25 IN M OJE PAL MENTIONED IN THE VALUERS REPORT SHOULD BE TAKEN IN TO CONSIDERATION AND THE AVERAGE OF THE TWO, I.E. RS.325.39/- SHOULD BE TAKEN AS THE RATE PER SQ. METER FOR DETERMINING THE COST OF ACQU ISITION OF THE LAND IN QUESTION AS ON 01.04.1981, FOR THE PURPOSE FOR C OMPUTATION OF LONG TERM CAPITAL GAIN. I, THEREFORE, DIRECT THE AS SESSING OFFICER TO COMPUTE THE COST OF ACQUISITION OF RS.325.39 PER SQ . METER, WHICH COMES TO RS.25,81,319/- AND APPLY THE COST INFLATIO N INDEX (CII) AT 551 FOR THE FINANCIAL YEAR 2007-08, FOR DETERMINING THE INDEXED COST OF THE LAND FOR THE PURPOSE OF COMPUTING THE LONG T ERM CAPITAL GAIN. 6.1 FROM THE ABOVE, IT IS APPARENT THAT FROM THE FA CTS BROUGHT OUT BY THE ASSESSEE AS WELL AS BY THE LEARNED AO, IT BECOMES D IFFICULT TO DETERMINE THE EXACT VALUE OF THE PROPERTY AS ON 01-04-1981. C ONSIDERING ALL THE CONSTRAINTS, THE LEARNED CIT(A) GRACIOUSLY AND WISE LY DETERMINED THE VALUE AT RS.325.39 PER SQ. MTR. BY ADOPTING THE AVERAGE V ALUE OF RS.460/- PER SQ. MTR., ADOPTED BY THE ASSESSEE AND RS.190.78 PER SQ. MTR., BEING THE VALUE OF THE PROPERTY AT MOJE PAL H. NO.25 RELIED UPON BY THE REGISTERED VALUER. ITA NO.2732 AND 2762/AHD/2011 (AY: 2008-09) SHRI PRAVIN BHOGILAL PATEL (HUF) 10 IN THE CIRCUMSTANCES, WE DO NOT FIND IT PROPER TO I NTERFERE WITH THE ORDER OF THE LEARNED CIT(A) AND, THEREFORE, WE CONFIRM THE S AME. THUS, THE GROUND RAISED BY THE REVENUE IS DISMISSED. ITA NO.2762/AHD/2011 (ASSESSEES APPEAL FOR AY 2008-09) 7. THE ASSESSEE IN HIS APPEAL HAS RAISED THREE GRO UNDS OF APPEAL WHEREIN GROUND NO.3 IS GENERAL IN NATURE AND DOES N OT SURVIVE FOR ADJUDICATION. GROUNDS NO.1 AND 2 OF THE APPEAL ARE REPRODUCED HEREIN UNDER FOR OUR CONSIDERATION: (1) REFERENCE TO DVO FOR COST OF ACQUISITION :- ON THE FACTS AND CIRCUMSTANCES OF THE CASE AS WELL AS LAW ON THE SUBJECT, THE LEARNED COMMISSIONER OF INCOME TAX (AP PEALS) HAS ERRED IN CONFIRMING REFERENCE MADE TO DVO U/S 55A O F THE IT ACT FOR COST OF ACQUISITION. (2) ADDITION ON ACCOUNT OF LONG TERM CAPITAL GAIN. 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AS WE LL AS LAW ON THE SUBJECT, THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED IN PARTLY CONFIRMING AN ADDITIO N MADE ON ACCOUNT OF LONG TERM CAPITAL GAIN. 2. THE APPELLANT SUBMITS THAT THE LEARNED COMMISSIO NER OF INCOME TAX (APPEALS) HAS ERRED IN MAKING AVERAGE IN COST OF ACQUISITION AND NOT ACCEPTING GOVERNMENT APPROVED V ALUERS REPORT SUBMITTED BY THE APPELLANT. 3. IT IS THEREFORE PRAYED THAT ABOVE ADDITION MADE BY THE ASSESSING OFFICER MAY PLEASE BE DELETED. 9. WITH REGARD TO GROUND NO.1 RAISED BY THE ASSESSE E, WE MUST SAY THAT THERE IS NO CAUSE OF ACTION ARISING TO THE ASS ESSEE, SINCE THERE IS NO ADDITION BASED ON THE REPORT OF THE DVO AS HELD BY THE LEARNED CIT(A). THEREFORE, WE DISMISS THIS GROUND RAISED BY THE ASS ESSEE. WITH REGARD TO GROUND NO.2, THE DECISION RENDERED BY US IN THE REV ENUES APPEAL IN ITA ITA NO.2732 AND 2762/AHD/2011 (AY: 2008-09) SHRI PRAVIN BHOGILAL PATEL (HUF) 11 NO.2732/AHD/2011 FOR THE ASSESSMENT YEAR 2008-09 C ITED SUPRA, WHEREIN WE HAVE CONFIRMED THE ORDER OF THE LEARNED CIT(A), ANSWERS THE ISSUE AGAINST THE ASSESSEE AND IN FAVOUR OF THE REVENUE. ACCORDING WE HEREBY DISMISS THIS GROUND RAISED BY THE ASSESSEE. 10. IN THE RESULT, THE APPEAL OF THE REVENUE AND TH E APPEAL OF THE ASSESSEE, BOTH ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 07-12-2012. SD/- SD/- (G. C. GUPTA) VICE PRESIDENT (A. MOHAN ALANKAMONY) ACCOUNTANT MEMBER LAKSHMIKANT LAKSHMIKANT LAKSHMIKANT LAKSHMIKANTA AA A DEKA / DEKA / DEKA / DEKA / COPY OF THE ORDER FORWARDED TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT CONCERNED 4. THE CIT(A) CONCERNED 5. THE DR, ITAT, AHMEDABAD 6. GUARD FILE BY ORDER ASST. REGISTRAR, ITAT, AHMEDABAD 1. DATE OF DICTATION: DIRECT ON COMPUTER 03-12- 12/04-12-12 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE T HE DICTATING MEMBER: 04-12-12 /05-12-12 OTHER MEMBER: 3. DATE ON WHICH APPROVED DRAFT COMES TO THE SR. P. S./P.S.: 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE TH E DICTATING MEMBER FOR PRONOUNCEMENT: 5. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE S R. P.S./P.S.: 6. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK: 7. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK: 8. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT REGISTRAR FOR SIGNATURE ON THE ORDER: 9. DATE OF DESPATCH OF THE ORDER: