SEKSARIA INDUSTRIES P.L TD, MUMBAI V. ITO WD 2(3)(2), MUMBAI

ITA 2835/MUM/2013

• Counselvise Citation: [2014] 120 COUNSELVISE.COM (IT) 8232 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 6 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-10-2014
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: E
• Next Hearing Date: 21-04-2015
• Assessment Year: 2009-2010
• Appeal Filed On: 10-04-2013
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: MANJUNATHA SWAMY
• Assessee Lawyers: Y P TRIVEDI
• Keywords: Sale consideration of property below Jantri Value; Value adopted by valuation officer; Capital asset; Fair market value; Valuation report; Revised return
• Section: 50C

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES E MUMBAI . . , . . , BEFORE SHRI I.P. BANSAL, JUDICIAL MEMBER /AND SHRI R.C.SHARMA , ACCOUNTANT MEMBER ITA NO.2835/MUM/2013 (A.Y.2009-10) SEKSARIA INDUSTRIES PVT. LTD., 5 TH FLOOR, SEKSARIA CHAMBERS, 139, NAGINDAS MASTER ROAD, FORT, MUMBAI 400 023. PAN:AAACS 6145H (APPELLANT ) VS. INCOME TAX OFFICER, WARD 2(3)(2), AAYKAR BHAVAN, MK ROAD, MUMBAI 400020 (RESPONDENT) APPELLANT BY : SHRI Y.P.TRIVEDI & MS . USHA DALAL RESPONDENT BY : SHRI MA NJUNATHA SWAMY DATE OF HEARING : 16/10/2014 DATE OF PRONOUNCEMENT : 31 /10/2014 ORDER PER I.P.BANSAL, J.M: THIS IS AN APPEAL FILED BY THE ASSESSEE AND IT IS DIRECTED AGAINST THE ORDER PASSED BY LD. CIT(A)-6, MUMBAI DATED 12.02.2013 FOR ASSESSMENT YEAR 2009-10. GROUNDS OF APPEAL READ AS UNDER: 1.0 THE LEARNED COMMISSIONER OF INCOME TAX (APPEAL) ( CIT (A) ) ERRED IN LAW AND ON FACTS IN UPHOLDING THE ADOPTION OF SALE CONSIDERATI ON AT RS. 57,74,51,000/- INSTEAD OF ACTUAL SALE CONSIDERATION OF RS.41,51,00,000/- IN R ESPECT OF TRANSFER OF REVERSIONARY RIGHTS IN LAND AT JUHU WHILE COMPUTING LONG TERM CA PITAL GAINS. 1.1 THE LEARNED CIT (A) ERRED IN LAW AND ON FACTS I N IGNORING THE VALUATION REPORT OF THE JOINT DIRECTOR, TOWN PLANNING (VALUATION), MAHARASH RA STATE, PUNE VALUATING THE LAND AT RS. 41,51 00,000/- FOR THE PURPOSE OF STAMP DUTY . 1.2 THE LEARNED CIT ( A ) ERRED IN LAW AND ON FACTS UPHOLDING THAT THE ASSESSEE DID NOT DISPUTE VALUATION BY STAMP DUTY AUTHORITIES IGNORIN G THE FACT THAT APPELLANTS APPEAL U/S. 53A OF THE BOMBAY STAMP ACT, 1958 WAS PENDING BEFORE THE APPROPRIATE ITA NO.2835/MUM/2013 (A.Y.2009-10) 2 AUTHORITIES FOR FINALIZATION OF VALUE OF STAMP DUTY PURPOSE BASED ON VALUATION REPORT OF THE JOINT DIRECTOR, TOWN PLANNING ( VALUATION ), MA HARASHTRA STATE, PUNE AND VALUATION AS PER THE JOINT DIRECTOR, TOWN PLANNING ( VALUATIO N ), MAHARASHTRA STATE, PUNE IS EQUAL TO SALE CONSIDERATION MENTIONED IN THE DOCUMENT AND RECEIVED BY THE APPELLANT. 1.3 THE LEARNED CIT(A) OUGHT TO HAVE APPRECIATED TH AT THE VALUATION DONE BY STAMP OFFICE IS EXCESSIVE AND UNREASONABLE. 1.4 THE LEARNED CIT(A) FAILED TO EXCLUDE VALUE OF T DR FROM THE TOTAL VALUATION MADE BY STAMP OFFICE AND COMPUTATION OF CAPITAL GAINS BE ING A CAPITAL ASSETS WITHOUT ANY COST. 1.5 . THE LEARNED CIT (A) FAILED TO APPRECIATE THE PECULIAR NATURE AND STATUS OF THIS PROPERTY AND TRANSACTION. 2.0 THE LEARNED CIT ( A ) ERRED IN LAW AND ON FACTS IN CONFIRMING THE ADOPTION OF FAIR MARKET VALUE AS ON 01.04.1981 AT RS. 3,10,14,000/- INSTEAD OF RS. 5,62,50,775/- IN RESPECT OF APPELLANTS RIGHTS IN LAND AT JUHU WHILE COMPUTING LONG TERM CAPITAL GAINS. 2.1 THE LEARNED CIT ( A ) ERRED IN LAW AND ON FACTS IN IGNORING THE VALUATION REPORT OF SHRI RAJESH SHAH OF M/S. SHAH & SHAH, GOVERNMENT AP PROVED VALUER VALUATING THE APPELLANTS RIGHTS AS ON 01 .04.1981. 2.2 THE LEARNED CIT (A ) FAILED TO APPRECIATE THE P ECULIAR NATURE AND STATUS OF THIS PROPERTY AND TRANSACTION. 3.0 THE CIT (A ) FAILED TO APPRECIATE THAT THE PROV ISIONS OF SEC.50 C CAN NOT BE APPLIED IN A CASE WHERE THERE IS NO PROOF, OR EVEN A SUGGESTIO N THAT SOMETHING MORE IS PAID, OVER AND ABOVE THE AGREEMENT PRICE. 2. THE ASSESSEE IS A PRIVATE LIMITED COMPANY ENGAGE D IN THE BUSINESS OF TRADING IN OPTICAL GOODS BESIDES INVESTMENTS AND FINANCING. DURING THE YEAR UNDER CONSIDERATION THE ASSESSEE SOLD REVERSIONARY RIGHT IN A PROPERTY ON WHICH LONG TERM CAPITAL GAIN WAS DECLARED. THE OWNERSHIP HISTORY OF THE PROPERTY, FOR THE SAKE OF CONVENIENCE, HAS BEEN TAKEN FROM THE REPORT OF DI STRICT VALUATION OFFICER, COPY OF WHICH HAS BEEN FILED AT PAGES 26 TO 42 OF THE PAPE R BOOK AND THE FACTS NARRATED THEREIN WERE NOT DISPUTED BY EITHER OF THE PARTIE S. 3.1 OWNERSHIP HISTORY: THE ASSESSEE THOUGH A DECREE OPERATING AS CONVEYANC E IN RESPECT OF THE PROPERTY GRANTED BY HONBLE HIGH COURT OF MUMBAI ON 21/12/19 96 IN SUIT NO.547 OF 1966 HAD BECOME THE ABSOLUTE OWNER OF THE PLOT. BY AN INDENTURE OF LEASE MADE ON 4/3/1968 M/S. SEKS ARIA INDUSTRIES PVT. LTD. THE ASSESSEE (LESSOR) AND M/S. HIND RAJ SYNDICATE (LESS EE) THE PROPERTY ADMEASURING APPR. 9350 SQ. YD. WAS DEMISED UNTO THE LESSEES. ITA NO.2835/MUM/2013 (A.Y.2009-10) 3 THE LEASE WAS FOR A PERIOD OF 98 (NINETY-EIGHT YEAR S) W.E.F. 4/3/1968 FOR A RENT OF RS.19,971/- P.M. IT WAS A TERM OF THE LEASE DEED T HAT THE LESSEE SHALL WITHIN 3 YEARS CONSTRUCT A BUILDING (HOTEL ETC.) OF VALUE NOT LESS THAN RS. 5 LAKHS AND AN INTEREST FREE DEPOSIT OF RS.59,913/- WAS TO BE DEPOSITED ON THIS ACCOUNT TO THE LESSOR BY THE LESSEE TILL COMPLETION OF CONSTRUCTION. ALL THE TAXES, FEES, DUTIES, OUT GOINGS ETC. WERE T O BE PAID BY THE LESSEES AS PER THE COVENANT. IN THE EVENT OF BREACH OF ANY CLAUSES OF THE COVENA NTS, THE LESSOR MAY RE-ENTER UPON THE PREMISES. ON EXPIRATION OF THE LEASE PERIOD, THE LESSEE WILL HAVE TO GIVE VACANT POSSESSION OF THE PREMISES. SUPPLEMENTARY TO THIS INDENTURE OF LEASE DEED, AN A GREEMENT WAS FURTHER ENTERED INTO BETWEEN THE LESSOR AND LESSEES DT. 23/5/1968. BY A LETTER DATED, 21/4/1969, THE LESSOR HAS GRANT ED ITS LICENSE AND CONSENT TO ASSIGN THE RIGHTS OF THE LESSEE TO M/S. HOTEL HORIZON PVT . LTD., ACCORDINGLY, VIDE A DEED OF ASSIGNMENT DATED 21/4/1969, THE LESSEES BEING ASSIG NORS ASSIGNED ALL THEIR RIGHT TO THE ASSIGNEE M/S. HOTEL HORIZON PVT. LTD. ANOTHER SUPPLEMENTARY AGREEMENT OF LEASE WAS ENTERE D INTO BETWEEN M/S. SEKSARI INDUSTRIES PVT. LTD. THE ASSESSEE(LESSOR) AND M/S. HOTEL HORIZON PVT. LTD. (LESSEE) ON 9/12/1970, REAFFIRMING THE COVENANTS AND CLARIFY ING THE CONSENT FOR OBTAINING FINANCIAL ASSISTANCE BY WAY OF MORTGAGE ETC. THE ASSESSEE SOLD THE REVERSIONARY RIGHT IN THE PRO PERTY BEFORE THE EXPIRY OF LEASE PERIOD OF 98 YEARS, WHICH COMMENCED FROM 04.03.1968 VIDE A N AGREEMENT FOR SALE DATED 5/8/2008 FOR A CONSIDERATION OF RS.41,51,00,000/-. 2.1 AS IT CAN BE SEEN FROM THE ABOVE FACTS THE ASS ESSEE SOLD THE REVERSIONARY RIGHT IN THE SAID PROPERTY BEFORE THE EXPIRY OF LE ASE PERIOD OF 98 YEARS WHICH COMMENCED FROM 04/03/1968 VIDE AN AGREEMENT FOR SAL E DATED 05/08/2008 FOR A CONSIDERATION OF RS.41.51 CRORES. 2.2 INITIALLY THE ASSESSEE FILED RETURN ( FIRST RET URN) IN WHICH THE SALE CONSIDERATION WAS TAKEN AT RS.57,74,51,000/- AS TAKEN BY THE COL LECTOR OF STAMPS AND COMPUTED THE LONG TERM CAPITAL GAIN AT RS.7,57,75,034/- AS U NDER: SALE CONSIDERATION-MARKET VALUE AS ASSESSED BY THE COLLECTOR OF STAMPS, MUMBAI (ACTUAL CONSIDERATION RS.41,51,00,000/-) 577451000 FAIR MARKET VALUE AS ON 01.04.1981 ESTIMATED 860 99000 INDEXED COST 582 501096180 ITA NO.2835/MUM/2013 (A.Y.2009-10) 4 SELLING EXPENSES 579786 LONG TERM CAPITAL GAIN 75775034 SUBSEQUENTLY, THE RETURN WAS REVISED( SECOND RETURN ) IN WHICH LONG TERM CAPITAL GAIN WAS SHOWN AT RS.19,17,041/- BY TAKING THE ACTUAL CO NSIDERATION RECEIVED AS UNDER: SALE CONSIDERATION-MARKET VALUE AS VALUED BY THE JOINT DIRECTOR, TOWN PLANNING (VALUATION), MAHARASHTRA STATE, PUNE (ACTUAL CONSIDERATION RS.41,51,00,000/-) 415100000 FAIR MARKET VALUE AS ON 01.04.1981 AS PER VALUATION REPORT OF MR. S.S. RAHALKAR, GOVERNMENT APPROVED VALUER 70894016 INDEXED COST 582 412603173 SELLING EXPENSES 579786 LONG TERM CAPITAL GAIN 1917041 THE RETURN WAS AGAIN RE-REVISED (THIRD RETURN) AND CAPITAL GAIN WAS COMPUTED AT RS.8,71,40,704/- AS UNDER: SALE CONSIDERATION-MARKET VALUE AS VALUED BY THE JOINT DIRECTOR, TOWN PLANNING (VALUATION), MAHARASHTRA STATE, PUNE (ACTUAL CONSIDERATION RS.41,51,00,000/-) 415100000 FAIR MARKET VALUE AS ON 01.04.1981 AS PER VALUATION REPORT OF MR. MR. RAJESH SHAH OF M/S. SHAH & SHAH, GOVERNMENT APPROVED VALUER 56250775 INDEXED COST 582 327379510 SELLING EXPENSES 579786 LONG TERM CAPITAL GAIN 87140704 DURING THE COURSE OF HEARING THE AO ALSO REFERRED T HE MATTER TO THE DISTRICT VALUATION OFFICER, WHO ASCERTAINED THE FAIR MARKET VALUE OF T HE PROPERTY AS ON 01/04/1981, AT A SUM OF RS.3,10,14,000/-. ACCORDINGLY, THE LONG T ERM CAPITAL GAIN WAS COMPUTED BY THE AO AT RS.39,63,69,734/- AS UNDER: SALE CONSIDERATION-AS PER MARKET VALUE AS ASSESSED B Y THE COLLECTOR OF STAMPS, MUMBAI SUBJECT TO OUTCOME TO THE APPEAL FILED BY THE ASSESSEE UNDER SECTION 5 3AOF THE BOMBAY STAMP ACT, 1958 ( ACTUAL CONSIDERATION RS.41,51,00,000/-) 577451000 FAIR MARKET VALUE AS ON 01.04.1981 AS PER VALUATION REPORT OF DISTRICT VALUATION OFFICER II, INCOME TAX DEPARTMENT, MUMBAI. 31014000 INDEXED COST 582 180501480 SELLING EXPENSES 579786 LONG TERM CAPITAL GAIN 396369734 ITA NO.2835/MUM/2013 (A.Y.2009-10) 5 2.3 ALL THE ABOVE FACTS ARE MENTIONED IN THE STATEM ENT OF FACTS FILED BY THE ASSESSEE BEFORE LD. CIT(A). 3. BEFORE LD. CIT(A) THE ASSESSEE FIRSTLY CONTESTE D THE ACTION OF AO IN ADOPTING THE SALE CONSIDERATION OF RS.57,74,51,000/- AS AGAI NST ACTUAL SALE CONSIDERATION OF RS.41.51 CRORES. THE ASSESSEE ALSO CONTESTED THE A CTION OF AO IN ADOPTING FAIR MARKET VALUE AS ON 1/04/1981 AT A SUM OF RS.3,10,14 ,000/- IN PLACE OF VALUE DETERMINED BY THE GOVERNMENT APPROVED VALUER AT RS. 5,62,50,775/-. 3.1 BEFORE PROCEEDING FURTHER IT MAY ALSO BE MENTI ONED HERE THAT FOR THE PURPOSE OF DETERMINING THE VALUE ALL THE VALUERS WHO HAVE VALUED THE IMPUGNED PROPERTY EITHER AT THE TIME OF SALE OR AS ON 1/4/1981 HAVE A DOPTED DIFFERENT RATIO OF APPORTIONMENT OF FAIR MARKET VALUE AND SUCH DIFFERE NCE IN THE VARIOUS VALUATION REPORTS HAVE BEEN BROUGHT OUT BY THE ASSESSEE IN A TABLE WHICH IS REPRODUCED AT PAGE-3 IN PARA 1.2 OF THE ORDER PASSED BY LD. CIT(A ) AND THE SAID TABLE IS REPRODUCED BELOW: 3. ALL THE VALUERS ADOPTED APPORTIONMENT OF FAIR M ARKET VALUE METHOD FOR VALUATION FOR VALUATION AS ON 01.04.1981 AS WELL AS THAT AS ON DA TE OF SALE I.E. THE FAIR MARKET VALUE IS SPLIT BETWEEN THE LESSOR AND THE LESSEE. HOWEVER, DIFFER ENT RATIOS OF PROPORTION BETWEEN LESSOR AND LESSEE HAVE BEEN ADOPTED BY DIFFERENT VALUERS AS LI STED BELOW: VALUER LESSOR (ASSESSEE) LESSEE AS PER DEPARTMENTAL VALUER FOR VALUATION AS ON 01.0 4.1981- PAGE 33 OF PAPER BOOK. 30 70 AS PER REGISTERED VALUER FOR VALUATION AS ON 01.04.1 981 PAGE 11 OF PAPER BOOK 45 55 AS PER STAMP DUTY AS MENTIONED IN VALUATION FOR D ATE OF SALE PAGE 61 OF PAPER BOOK 60 40 AS PER TOWN PLANNER AS MENTIONED IN VALUATION FOR DATE OF SALE PAGE 66 OF PAPER BOOK. 40 60 3.2 IT WAS THE SUBMISSION OF THE ASSESSEE THAT RA TIO OF APPORTIONMENT BETWEEN LESSOR AND LESSEE HAS BEEN A CONTENTIOUS ISSUE AND DIFFERENT JUDICIAL PRONOUNCEMENTS HAVE TAKEN DIFFERENT VIEW FROM TIME TO TIME AS IS EVIDENT FROM THE FOLLOWING TABLE. VALUER LESSOR (ASSESSEE) LESSEE AS PER CUSTOM 40 TO 50 60 TO 40 ITA NO.2835/MUM/2013 (A.Y.2009-10) 6 AS PER JUDGMENT IN DAULATJADA CASE IN THE EVENT OF 999 YEARS LEASE. OUR LEASE WAS FOR 98 YEARS ONLY. 35 65 AZIMUDDIN ASHARAF CHAUDHRI VS. MUNICIPAL BOARD, BARA BANKI, I.L.R (1961) 1,ALL 988 50 50 SHAMLAL VS. COLLECTOR OF AGRA, AIR 1934 ALL, 239 ;IL R 55ALL 897 (FB) 60 40 DOSSIBAI NANABHOY JEEJEEBHOY VS. P.M.BHARUCHA (1958 ) 60 BLR 1208 60 40 UNION OF INDIA VS. A. AJITSINGH (1997) 6SCC50 60 40 ROSHANLAL VS. COLLECTOR OF ETAH, AIR 1929ALL525 60 4 0 DEEPCHAND VS. STATE OF UP AIR 1980 SC 633 62 38 STATE OF UP VS. BEGAM SALEHA HADI HASAN 1986 ALJ 12 44 62 38 INDRAPRASTH ICE & COLD STORAGE VS. UNION AIR 1987 D EL 171 87.5 12.5 3.3 FURTHER THE ASSESSEE OBJECTED TO THE ADOPTION O F VALUATION DONE BY DVO AS ON 1/4/1981 RELYING UPON SEVERAL DECISIONS OF ITAT IN WHICH IT WAS HELD THAT SECTION 55A AUTHORIZE THE AO TO REFER FOR VALUATION IF IN THE OPINION OF AO THE VALUE OF THE ASSET AS CLAIMED BY THE ASSESSEE IS LESS THAN ITS FAIR MARKET VALUE OR SAY, VALUE IN HIS OPINION COULD BE HIGHER THAN THAT DISCLOSED BY THE ASSESSEE AND ALL THESE DECISIONS OF TRIBUNAL ARE MENTION IN PARA 1.2 OF THE ORDER OF LD . CIT(A). IT WAS ALSO PLEADED THAT THE AMENDMENT WHICH ENABLE THE AO TO REFER THE ISSU E REGARDING VALUATION EVEN IN A CASE WHERE THE VALUE IS LESS THAN ITS FAIR MARKET V ALUE IS BROUGHT ON THE STATUTE ONLY W.E.F. 1/7/2012 WHICH COULD NOT BE APPLIED TO THE C ASE OF THE ASSESSEE AS THE AMENDMENT IS NOT RETROSPECTIVE. 3.4 THE ASSESSEE FURTHER OBJECTED TO THE ADOPTION O F SALE VALUE AT RS.57,74,51,000/- BASED ON VALUE ADOPTED BY THE COL LECTOR OF STAMPS ON THE GROUND THAT WHEN MAIN VALUE WAS TAKEN AT 60% THEN TDR VAL UE COULD NOT BE TAKEN AT 100% AND IF THE SAME IS TAKEN AT 60% THEN THE VALUE WOUL D BE NOT TO THE EXTENT OF RS.57,74,51,000/- BUT IT WOULD BE ONLY A SUM OF RS. 48,35,45,000/- AND SUCH DIFFERENCE WAS BROUGHT OUT AS PER FOLLOWING TWO TAB LES: 6. VALUATION AS ON DATE OF SALE: 1. COLLECTOR OF STAMPS ADJUDICATED SALE VALUE AT R S.57,74,51,000/- BASED ON READY RECKONER VALUE AS UNDER. AREA RATE TOTAL VALUE ASSESSEES SHARE LAND 7784.8 75600 571142880 60 34,26,85,728 TDR 517560 45360(75600*60% 234765220 60 23,47,65,220 805908100 57,74,50,948 SAY 57,74,51,000 ITA NO.2835/MUM/2013 (A.Y.2009-10) 7 2. THE ABOVE CALCULATION PROVIDED BY THE SUPERINTEN DENT OF STAMPS CLEARLY SHOW THAT RATIO OF APPORTIONMENT (60:40) HAS NOT BEEN APPLIED TO VALUE OF TDR I.E. RS.234765220/-. THUS, CORRECT CALCULATION OF VALUE AS PER STAMP DUTY FORMULA SHOU LD BE RS.48,35,44,860/- (SHARING OF UTILIZED FSI AND TDR) INSTEAD OF RS.57,74,51,00/- ON A SHARING I N THE RATIO OF 60:40 AS UNDER: AREA RATE TOTAL VALUE ASSESSEES SHARE LAND 7784.8 75600 571142880 60 34,26,85,728 TDR 517560 45360(75600*60% 234765220 60 14,08,59,132 805908100 48,35,44,860 SAY 48,35,45,000 3.5 IT WAS FURTHER SUBMITTED THAT JOINT DIRECTOR TO WN PLANNING (VALUATION), MAHARASHTRA STATE, PUNE HAS VALUED THE PROPERTY AT RS.41.51 CRORES BEING VALUE AS PER DOCUMENTS AND FOLLOWING SUBMISSION WAS MADE: THE JOINT DIRECTOR, TOWN PLANNING (VALUATION), MAH ARASHTRA STATE, PUNE HAS VALUED THE PROPERTY AT RS.41,51,00,000/- BEING VALUE AS PER DO CUMENT. HOWEVER, THE CORRECT CALCULATION OF DISCOUNTED VALUE AS PER TOWN PLANNIN G DEPARTMENT SHOULD BE RS.1,55,62,501/- INSTEAD OF RS.1,59,74,490/-. THIS DOES NOT AFFECT SINCE DOCUMENT VALUE IS RS.41,51,00,000/- SHARING IN THE RATIO OF 40:60. 3.6 IT WAS FURTHER BROUGHT TO THE NOTICE OF LD. CIT (A) THAT THE ASSESSEE HAD FILED AN APPEAL AS WELL AS PETITION BEFORE HIGHER AUTHORITI ES REGARDING STAMP VALUATION AND THE OUTCOME THEREOF AND REFERENCE CAN BE MADE TO TH E FOLLOWING SUBMISSIONS: 4. THE ASSESSEE FILED APPEALS AND PETITIONS BEFOR E HIGHER AUTHORITIES UNDER THE BOMBAY STAMP ACT TO CORRECT DISCREPANCIES IN VALUAT ION AND DETERMINE FAIR VALUE. THE SAME WERE REJECTED BY ALL THE AUTHORITIES AND FORUM S ON TECHNICAL GROUND THAT STAMP DUTY VALUE CANNOT BE REVISED AFTER REGISTRATION OF DOCUMENT UNDER BOMBAY STAMP ACT AND NOT5 ON MERIT. HOWEVER, BOMBAY HIGH COURT OBS ERVED THAT THEIR ORDER SHALL NOT BE IMPEDIMENT TO INCOME TAX AUTHORITIES TO ADOPT FAIR VALUE. THUS, INCOME TAX AUTHORITIES SHOULD ADOPT FAIR VALUE AND NOT BOUND BY APPARENT MISTAKES COMMITTED BY STAMP DUTY AUTHORITIES. 3.7 IN VIEW OF AFOREMENTIONED SUBMISSIONS IT WAS CL AIMED BY THE ASSESSEE THAT IT WILL BE JUDICIOUS VIEW IF SALE CONSIDERATION IS AD OPTED AS PER VALUE DETERMINED BY THE JOINT DIRECTOR TOWN PLANNING (VALUATION), MAHARASHT RA PUNE AT RS. 41.51 CRORES. 3.8 LD. CIT(A) HAS REJECTED THE CONTENTION OF THE A SSESSEE THAT STAMP VALUE SHOULD BE ADOPTED AT RS.48,35,45,000/-, AS ACCORDING TO LD . CIT(A) THE PROVISIONS OF SECTION 50C(I) IS CLEARLY APPLICABLE. LD. CIT(A) FURTHER M ENTIONED THAT CHIEF CONTROLLING REVENUE AUTHORITY, MAHARASHTRA VIDE HIS ORDER DATED 6/2/2012 DID NOT ACCEPT THE ITA NO.2835/MUM/2013 (A.Y.2009-10) 8 APPLICATION FILED BY THE ASSESSEE AGAINST STAMP VAL UATION BY OBSERVING THAT THE ASSESSEE DOES NOT HAVE LOCUS STANDI AGAINST THE SA ID ORDER. HE ALSO REJECTED THE SUBMISSION OF THE ASSESSEE FOR ADOPTION OF RATE AS DETERMINED BY THE OFFICE OF CHIEF CONTROLLER REVENUE AUTHORITIES, MAHARASHTRA, PUNE O N THE GROUND THAT THE SAME IS NOT AN ORDER. 3.9 LD. CIT(A) ALSO REJECTED THE CONTENTION OF THE ASSESSEE THAT 100% TDR VALUE SHOULD NOT BE ATTRIBUTED TO THE ASSESSEE ON THE GRO UND THAT LD. CIT(A) IS NOT COMPETENT TO GO INTO THE VALUATION OF THE PROPERTY. IT IS ALSO MENTIONED BY LD. CIT(A) THAT THOUGH HE IS NOT COMPETENT TO CONSIDER THIS Q UESTION BUT FROM THE FACTS AS MENTIONED IN THE RELEVANT DOCUMENTS EVEN FOR THE P URPOSE OF STAMP VALUATION THE TDR VALUE WAS TAKEN ONLY AT 60%. IN PARA 1.3.4.1 L D. CIT(A) HAS MENTIONED THIS FACT WHEREIN WHILE VALUING THE BALANCE UNUTILIZED TDR O NLY 60% OF TOTAL VALUE HAS BEEN TAKEN INTO CONSIDERATION FOR ARRIVING AT THE FIGURE OF RS.23,47,65,220/-. REFERENCE CAN BE MADE TO THE FOLLOWING OBSERVATIONS OF LD. C IT(A). 1.3.4.1 THE APPELLANTS SUBMISSION THAT THE VALUE OF TDR HAS BEEN TAKEN @ 100% IS FOUND TO BE NOT CORRECT.. THE COLLECTOR OF STAMPS, ANDHERIS ORDER 3 JUN, 2009 (PAPER BOOK PAGE-16 IN THE MIDDELE GIVES THE CALCULATION OF TDR FSI AS UNDER: TDR FSI 755480 SQ.METER. UTILIZED AREA 2379.20 SQ.METER BALANCE 5175560 SQ.METER. 5175.60 X 75600 X 0.60 = 234765220 (IN THE AFORESAID QUOTATION THE NUMERICAL WRITTEN D EVEANAGARI SCRIPT ARE WRITTEN IN ROMAN SCRIPT) THE FIGURE OF 5175.60 IS THE VALUE OF LAND PER SQ. METER AS INDICATED IN THE ORDER ITSELF JUST ABOVE THE COMPUTATION PART. THE TDR VALUE HAS BEEN TAKEN @ 60% AND NOT 100% AS STATED BY THE APPELLANT. IN THE CALCULATION OF COLLECTOR OF STAMP, ANDHERI ( PAPER BOOK PAGE 61) THE : 5175.60 X 75600 X 0.60 = 234765220 THE AREA OF LAND FOR TDR IS CONSIDERED AT 51,75.60 ( AFTER DEDUCTING ALREADY UTILIZED AREA FROM THE TOTAL AREA) EVEN IF THE AREA OF LAND IS TAKEN TO BE 60% AND THE VALUE OF LAND IS TAKEN AT FULL I.E. 75600 PER SQ.METER, WE A RRIVED AT THE SAME FIGURE OF VALUE OF TDR WHICH IS OBVIOUS FROM THE CALCULATION GIVEN BEL OW: ITA NO.2835/MUM/2013 (A.Y.2009-10) 9 5175.60 X 0.60 X 75600 = 234765220 1.3.4.2 THUS, IT IS CLEAR THAT THE APPELLANT BASI CALLY WANTS DOUBLE DEDUCTION VALUE I.E. REDUCTION IN THE AREA AS WELL AS REDUCTION IN RATE BY 60% AS PER ITS CALCULATION QUOTED PAGE6-6 OF THIS ORDER IN TABLE-2 WHERE IT HAS COMPU TED THE ASSESSEES SHARE OF TDR AT RS.14,08,59,132/-. CONSIDERING 60% OF LAND AREA AND 60% OF VALUE THE AMOUNT COMES TO 5175.60 X 0.60 X75600X0.60. 13.4.3. THE COLLECTOR STAMPS, ANDHERI HAS THUS-NOT MADE ANY MISTAKE AND HAS ALREADY GIVEN 60% DEDUCTION FOR VALUATION OF TDR AND THE AP PELLANTS SUBMISSION THAT THERE IS A MISTAKE FOUND TO BE NOT VALID AND EVEN MISCHIEVOUS. IT IS PERTINENT TO NOTE THAT I.E. HOTEL HORIZON PVT.LTD. THE PURCHASER WHO PAID STAMP DUTY HAS NOT OBJECTED TO THE VALUE OF THE PROPERTY AND EVEN THE VALUE OF TDR AND IT IS THE AP PELLANT WHO WITHOUT LOCUS STANDI HAS BEEN FILING APPEAL TO THE APPELLANT FORUMS OF THE S TAMP ACT AND IN THE HIGH COURT DID NOT OBJECT TO THE VALUE BEFORE AO U/S 50C(2) OF THE INC OME-TAX ACT. 1.3.5. AS THE VALUATION DONE BY STAMP VALUATION AUT HORITIES MORE THAN THE CONSIDERATION RECEIVED, AND APPELLANTS OBJECTION TO THE CORRECTN ESS OF VALUATION BY STAMP VALUATION AUTHORITIES HAS BEEN FOUND TO BE NOT VALID, IT IS H ELD THAT THE VALUE OF SALE CONSIDERATION OF LAND AT JUHU SHOULD BE TAKEN AT RS. 57,74,51,00 0!-. GROUND 1 IS THEREFORE, DISMISSED. THUS, ON FACTS ALSO LD. CIT(A) HAS ARRIVED AT A FIN DING THAT THERE WAS NO FORCE IN THE CONTENTION OF THE ASSESSEE THAT VALUE OF TDR FOR TH E PURPOSE OF COMPUTING STAMP VALUE WAS TAKEN AT 100%. 3.10. FURTHER LD. CIT(A) HAS REJECTED THE CONTENTIO N OF THE ASSESSEE THAT FOR THE PURPOSE OF COMPUTING INDEXATION NO RELIANCE SHOUL D BE PLACED ON THE VALUATION DONE BY DVO AND THE VALUATION SUBMITTED BY THE ASSE SSEE OF REGISTERED VALUER SHOULD BE CONSIDERED FOR INDEXATION BENEFIT. IN TH IS MANNER LD. CIT(A) HAS DISMISSED THE APPEAL FILED BY THE ASSESSEE. THE ASSESSEE IS AGGRIEVED AND HAS FILED AFOREMENTIONED GROUNDS OF APPEAL. 4. LD. AR AFTER NARRATING THE FACTS REFERRING TO GR OUNDS OF APPEAL SUBMITTED THAT FIRSTLY, LD. CIT(A) HAS ERRED IN CONFIRMING THE SAL E CONSIDERATION AT A SUM OF RS.57,74,51,000/- IN PLACE OF SALE CONSIDERATION R ECEIVED BY THE ASSESSEE AT RS.41,51,00,000/-. HE SUBMITTED THAT THE SALE CON SIDERATION SHOWN BY THE ASSESSEE IS SUPPORTED BY THE VALUATION REPORT OF JOINT DIREC TOR TOWN PLANNING (VALUATION), ITA NO.2835/MUM/2013 (A.Y.2009-10) 10 MAHARASHTRA, PUNE. HE SUBMITTED THAT LD. CIT(A) HA S ERRED IN HOLDING THAT ASSESSEE DID NOT DISPUTE VALUATION BY STAMP DUTY AUTHORITIE S IGNORING THE FACT THAT ASSESSEES APPEAL UNDER SECTION 53A OF BOMBAY STAMP ACT WAS PE NDING BEFORE APPRPRIATE AUTHORITIES FOR FINALIZING VALUE OF STAMP DUTY BASE D ON VALUATION REPORT OF JOINT DIRECTOR TOWER PLANNING (VALUATION), MAHARASHTRA, P UNE. LD. CIT(A) HAS ALSO FAILED TO APPRECIATE THAT VALUATION DONE BY STAMP OFFICE IS EXCESSIVE AND UNREASONABLE. LD. AR FURTHER SUBMITTED THAT LD. CIT(A) HAS COMMITTED AN ERROR IN EXCLUDING THE VALUE OF TDR FROM THE TOTAL VALUATION MADE BY STAMP DUTY OFFICER AND COMPUTATION OF CAPITAL GAIN BEING CAPITAL ASSET WITHOUT ANY COST A ND FOR DOING SO LD. CIT(A) HAS ALSO FAILED TO APPRECIATE THE PECULIAR NATURE AND STAT US OF THE PROPERTY AND TRANSACTION. LASTLY, LD. AR SUBMITTED THAT LD. CIT(A) HAS ALSO C OMMITTED AN ERROR IN NOT ACCEPTING THE VALUATION SUBMITTED BY THE ASSESSEE AS ON 1/4/ 1981 AT A SUM OF RS.5,62,50,775/- AND HAS COMMITTED AN ERROR IN RELY ING UPON THE VALUATION DONE BY DISTRICT VALUATION OFFICER AS ON 01/04/1981 AT RS.3 ,10,14,000/- . IT WAS SUBMITTED THAT LD. CIT(A) HAS FAILED TO APPRECIATE THAT PROV ISIONS OF SECTION 50C COULD NOT BE APPLIED IN A CASE WHERE THERE IS NO PROOF, EVEN A SUGGESTION THAT SOMETHING MORE IS PAID OVER AND ABOVE AGREEMENT PRICE. FOR THE PURPO SE OF VALUATION AS ON 1/4/1981 LD. AR PLACED RELIANCE UPON THE DECISION OF HONBLE BOMBAY HIGH COURT IN THE CASE OF CIT VS. PUJA PRINTS, 360 ITR 697 TO CONTEND THAT FO R THE PURPOSE OF ASCERTAINING THE FAIR MARKET VALUE AS ON 1/4/1981 REFERENCE TO DISTR ICT VALUATION OFFICER CAN BE MADE ONLY IN A CASE WHERE VALUE ADOPTED BY THE ASSESSEE IS LESS THAN THE FAIR MARKET VALUE. IF VALUE ADOPTED BY THE ASSESSEE IS MUCH MO RE THAN THE FAIR MARKET VALUE THEN REFERENCE TO VALUATION OFFICER COULD NOT BE MADE A S PER PROVISIONS OF SECTION 55A(A) OF THE INCOME TAX ACT, 1961 AS IT EXISTED AT THE R ELEVANT TIME. 4.1 ELABORATING HIS ARGUMENTS IT WAS SUBMITTED BY L D. AR THAT IN VIEW OF VALUATION DONE BY JOINT DIRECTOR TOWN PLANNING (VALUATION) ,M AHARASHTRA PUNE, COPY OF WHICH IS PLACED AT PAGES 106 TO 108 OF THE PAPER BOOK, TH E VALUE SHOULD BE TAKEN AT RS.41,51,00,000/- WHICH IS SALE CONSIDERATION RECEI VED BY THE ASSESSEE AS PER TITLE DEED. IT WAS FURTHER SUBMITTED BY LD. AR THAT STAM P AUTHORITIES HAVE TAKEN 100% ITA NO.2835/MUM/2013 (A.Y.2009-10) 11 VALUE OF THE TDR AGAINST 60% TAKEN AS VALUE OF THE LAND. THUS, IT WAS SUBMITTED BY LD. AR THAT RELIEF TO THAT EXTENT SHOULD BE GRANTED . 5. ON THE OTHER HAND, LD. DR RELYING UPON THE ORDER PASSED BY LD. CIT(A) SUBMITTED THAT ON EVERY ISSUE LD. CIT(A) HAS RECOR DED HIS FINDING AFTER DETAILED DISCUSSION. THEREFORE, ASSESSEE DOES NOT DESERV E ANY RELIEF. LD. DR SUBMITTED THAT AS PER PROVISIONS OF SECTION 50C THERE IS NO A LTERNATIVE WITH THE AO TO ASSESS ANY VALUE LESS THAN ASSESSED BY THE STAMP VALUATION AUTHORITY AND SUCH DECISION HAS BEEN GIVEN BY LD. CIT(A) AFTER CONSIDERING THE PROVISION OF SECTION 50C. IT WAS FURTHER SUBMITTED BY LD. DR THAT LD. CIT(A) HAS REC ORDED A FINDING OF FACT THAT ASSESSEE DID NOT MAKE ANY OBJECTION BEFORE AO REGAR DING APPLICATION OF SECTION 50C POSSIBLY TO AVOID VALUATION BY DISTRICT VALUATION O FFICER OF THE INCOME TAX DEPARTMENT. LD. DR IN THIS REGARD REFERRED TO THE FINDING RECORDED BY LD. CIT(A) IN PARA 1.3.3.12 OF THE IMPUGNED ORDER. 5.1 SO FAR AS IT RELATES TO THE CONTENTION OF LD. A R REGARDING SO CALLED MISTAKE IN CALCULATING THE VALUE OF TDR FOR THE PURPOSE OF STA MP VALUATION IT WAS SUBMITTED BY LD. DR THAT IN PARA 1.3.4 LD. CIT(A) HAS HELD THAT THERE IS ACTUALLY NO MISTAKE IN THE ORDER OF COLLECTOR OF STAMP AS THE VALUE OF TDR H AS ALSO BEEN TAKEN AT 60% OF THE VALUE. IT WAS FURTHER SUBMITTED BY LD. DR THAT LD. CIT(A) IS ALSO RIGHT IN REJECTING THE CLAIM OF THE ASSESSEE REGARDING ADOPTION OF FAIR MARKET VALUE AS ON 01/04/1981 AS PER VALUATION SUBMITTED BY THE ASSESSEE IN PREFER ENCE TO REPORT OF THE DISTRICT VALUATION OFFICER. THUS, IT WAS SUBMITTED BY LD. DR THAT THE APPEAL FILED BY THE ASSESSEE SHOULD BE DISMISSED. 6. BEFORE PROCEEDING TO DECIDE THE PRESENT APPEAL, WE MAY MENTION HERE THAT DURING THE COURSE OF HEARING OF THE APPEAL, CERTAIN FIGURES WERE SUBMITTED BY THE ASSESSEE IN THE SHAPE OF CHART AND THE SAID CHART WAS ALSO GIVEN TO LD. DR AND DURING THE COURSE OF SUCH DISCUSSION SOME OBSERVAT IONS MAY HAVE BEEN MADE. HOWEVER, WHEN THE HEARING WAS CONCLUDED IT WAS MADE CLEAR THAT THOSE OBSERVATIONS MAY NOT BE TAKEN AS PRONOUNCEMENT ON ANY OF THE IS SUE RAISED OR DISCUSSED IN THE ITA NO.2835/MUM/2013 (A.Y.2009-10) 12 PRESENT APPEAL AND THE DECISION WILL BE TAKEN BY TH E BENCH ONLY AFTER DUE CONSIDERATION OF ALL THE ARGUMENTS AND SUBMISSIONS MADE BY THE PARTIES AND AFTER CONSIDERING ALL THE DOCUMENTS REFERRED IN SUPPORT OF THE ARGUMENTS BY BOTH THE PARTIES AND BOTH THE PARTIES HAD TAKEN NOTE OF SU CH OBSERVATIONS OF THE TRIBUNAL THAT NO PART OF THE OBSERVATIONS OF THE TRIBUNAL DU RING THE COURSE OF THE HEARING OF THE APPEAL COULD BE TAKEN AS PRONOUNCEMENT OF THE DECISION BY THE TRIBUNAL ON ANY OF THE ISSUE RAISED IN THE PRESENT APPEAL. 7. IN THE LIGHT OF ABOVE DISCUSSION, WE HAVE CAREFU LLY CONSIDERED THE SUBMISSIONS MADE BY BOTH THE PARTIES AND WE HAVE ALSO CAREFULLY PERUSED THE ORDER PASSED BY AO AS WELL AS LD. CIT(A) WITH REFERENCE TO DOCUMENTS S UBMITTED BY THE ASSESSEE IN PAPER BOOK AND REFERRED TO DURING THE COURSE OF HEARING . 7.1 THE FIRST AND FOREMOST CONTENTION OF THE ASSESS EE IS REGARDING THE ADOPTION OF THE SALE CONSIDERATION FOR THE PURPOSE OF COMPUTATI ON OF CAPITAL GAIN. TO DECIDE THIS ISSUE, FIRST CONTENTION OF THE ASSESSEE IS THAT THE SALE CONSIDERATION CANNOT BE TAKEN MORE THAN THE ACTUAL SALE CONSIDERATION SHOWN IN T HE TRANSFER DEED I.E. A SUM OF RS.41.51 CRORES. THE ALTERNATIVE CONTENTION IS THA T IF THE SALE CONSIDERATION IS TAKEN AS VALUATION DONE BY THE STAMP VALUATION AUTHORITIE S THEN THERE IS A MISTAKE IN CALCULATION OF SALE CONSIDERATION AS TDR VALUE HAS BEEN TAKEN AT 100%. 7.2 THE SALE CONSIDERATION TAKEN AT RS.57,74,51,00 0/- HAS BEEN AGITATED FIRSTLY, ON THE GROUND THAT AS PER VALUATION DONE BY JOINT D IRECTOR TOWN PLANNING (VALUATION) MAHARASTRA, PUNE ON 18/06/2010 THE VALUE HAS BEEN ASCERTAINED AT RS.41.51 CRORES, THEREFORE, ANY VALUE MORE THAN THAT CANNOT BE TAKEN AS SALE CONSIDERATION. THE AO HAS TAKEN SALE CONSIDERATION AS PER PROVISI ONS OF SECTION 50C WHICH IS A SPECIAL PROVISION REGULATING FULL VALUATION OF CO NSIDERATION IN CERTAIN CASES. IT CLEARLY DESCRIBE THAT IN A CASE WHERE CONSIDERATIO N RECEIVED OR ACCRUING AS A RESULT OF TRANSFER BY AN ASSESSEE OF CAPITAL ASSET, WHICH INT ER-ALIA INCLUDE LAND OR BUILDING OR BOTH IS LESS THAN THE VALUE ADOPTED OR ASSESSED OR ASSESSABLE BY ANY AUTHORITY OF A STATE GOVERNMENT (STAMP VALUATION AUTHORITY) FOR TH E PURPOSE OF PAYMENT OF STAMP ITA NO.2835/MUM/2013 (A.Y.2009-10) 13 DUTY IN RESPECT OF SUCH TRANSFER THE VALUE SO ADOPT ED OR ASSESSED OR ASSESSABLE, SHALL FOR THE PURPOSES OF SECTION 48, BE DEEMED TO BE FU LL VALUE OF THE CONSIDERATION RECEIVED OR ACCRUING AS A RESULT OF SUCH TRANSFER. EXCEPTION IS PROVIDED IN SUB- SECTION (2)WHICH PRESCRIBES THAT IN A CASE WHERE ASSESSEE CLAIMS BEFORE THE AO THAT THE VALUE ADOPTED OR ASSESSED OR ASSESSABLE BY THE STAMP VALUATION AUTHORITY EXCEEDS THE FAIR MARKET VALUE OF THE PROPERTY AS ON THE DATE OF THE TRANSFER AND THE VALUE SO ADOPTED OR ASSESSED BY THE STAMP VALUATIO N AUTHORITY UNDER SUB-SECTION (1) OF SECTION 50C HAS NOT BEEN DISPUTED IN ANY AP PEAL OR REVISION OR NO REFERENCE HAS BEEN MADE BEFORE ANY OTHER AUTHORITY, COURT OR HIGH COURT, THEN THE AO MAY REFER THE VALUATION OF THE CAPITAL ASSET TO VALUATI ON OFFICER OF THE DEPARTMENT. THUS, ACCORDING TO SUB-SECTION (2) IN A CASE WHERE ASSESS EE CLAIMES BEFORE THE AO THAT THE VALUE ADOPTED OR ASSESSED BY STAMP VALUATION AUTHOR ITY IS EXCEEDS THE FAIR MARKET VALUE ON THE DATE OF TRANSFER AND ASSESSEE DOES NO T DISPUTE THE VALUATION DONE BY THE STAMP VALUATION AUTHORITY IN ANY APPEAL OR REV ISION OR REFERENCE THEN AO MAY REFER THE VALUATION OF THE SAID PROPERTY TO VALUATI ON OFFICER AND AS PER SUB-SECTION (3) IN CASE WHERE VALUATION DONE BY THE VALUATION OFFI CER IS LESS THAN THE VALUE ADOPTED BY STAMP VALUATION AUTHORITY THEN THE VALUATION DON E BY DISTRICT VALUATION OFFICER SHALL BE TAKEN AS FULL VALUE OF THE CONSIDERATION R ECEIVED OR ACCRUING AS A RESULT OF THIS TRANSFER. IN THE LIGHT OF PROVISIONS OF SECT ION 50C IT HAS TO BE DECIDED THAT WHETHER LD. CIT(A) HAS COMMITTED ANY ERROR IN TAKIN G THE VALUE DETERMINED BY STAMP VALUATION AUTHORITY. THE MANDATE OF SECTION 50C IS CLEAR. AT THE FIRST PLACE THE SALE CONSIDERATION SHALL BE DEEMED TO BE THE VA LUE ADOPTED OR ASSESSED BY THE STAMP VALUATION AUTHORITY. THE ONLY EXCEPTION PROV IDED IS THAT FIRSTLY THE ASSESSEE SHOULD CLAIM BEFORE AO THAT SUCH VALUE ADOPTED OR A SSESSED BY THE STAMP VALUATION AUTHORITY EXCEED FAIR MARKET VALUE AND SECONDLY THE ASSESSEE SHOULD NOT HAVE DISPUTED SUCH VALUATION ADOPTED IN ANY APPEAL OR RE VISION AND NO REFERENCE IS MADE BEFORE ANY OTHER AUTHORITY, COURT OR HIGH COURT CHA LLENGING THE VALUE ADOPTED BY THE STAMP VALUATION AUTHORITY. 7.3 ACCORDING TO THE FACTS OF THE PRESENT CASE ASSE SSEE BEING AGGRIEVED BY THE VALUATION DONE BY STAMP VALUATION AUTHORITY HAD FIL ED AN APPEAL BEFORE THE ITA NO.2835/MUM/2013 (A.Y.2009-10) 14 ADDITIONAL CONTROLLER OF STAMPS, MUMBAI WHICH WAS R EGISTERED AS GSO/32- B/05/2009 UNDER SECTION 32B OF THE BOMBAY STAMP ACT , 1958, WHICH WAS DECIDED VIDE ORDER DATED 4/8/2009 AND COPY OF THIS ORDER IS FILED AT PAGE 105 OF THE PAPER BOOK. ADDITIONAL CONTROLLER OF STAMPS MUMBAI HAS D ISMISSED THIS APPEAL OF THE ASSESSEE ON THE GROUND THAT THE APPROPRIATE AUTHORI TY FOR DECIDING CORRECTNESS OF VALUATION DONE BY STAMP VALUATION AUTHORITY LIES WI TH THE CHIEF CONTROLLING REVENUE AUTHORITY AND HE HAS GIVEN THE LIBERTY TO THE ASSE SSEE TO FILE REVISION APPLICATION BEFORE THE CHIEF CONTROLLING REVENUE AUTHORITIES UN DER SECTION 53A OF THE BOMBAY STAMP ACT 1958 AND DISPOSED OF THE APPEAL FILED BY THE ASSESSEE. SUBSEQUENTLY THE ASSESSEE FILED A PETITION FOR REVALUATION BEFORE TH E CHIEF CONTROLLING REVENUE AUTHORITY, MAHARASHTRA STATE, PUNE AGAINST AFOREME NTIONED ORDER DATED 4/8/2009 AND THIS WAS REGISTERED AND MISCELLANEOUS APPLICAT ION OF THE ASSESSEE WAS DISPOSED OF VIDE ORDER DATED 6/2/2012 AND THE COPY OF THIS O RDER HAS FILED AT PAGES 110 TO 114 OF THE PAPER BOOK. THE SUM AND SUBSTANCE OF THE OR DER PASSED BY THE CHIEF CONTROLLING REVENUE AUTHORITY, MAHARASHTRA STATE, P UNE IS THAT STAMP DUTY HAS BEEN PAID BY OTHER PARTY WITHOUT PROTEST AND THE DUTY PA YER HAS NOT APPEALED TO THIS AUTHORITY AT ANY POINT OF TIME. MOREOVER, ASSESSEE DID NOT FILE APPLICATION WITHIN TIME LIMIT STIPULATED UNDER THE LAW I.E. 60 DAYS FROM TH E RECEIPT OF IMPUGNED ORDER. THEREFORE, ASSESSEE DOES NOT HAVE LOCUS TO APPROACH THE AUTHORITY. THE AUTHORITY IS NOT LEGALLY EMPOWERED TO TAKE ANY DECISION OR GIVE OPINION WHEN NO CAUSE OF ACTION EXISTS UNDER THE STAMP ACT FOR THE IMPLEMENTATION OF WHICH THIS AUTHORITY HAS BEEN CREATED. AS PER PROVISION OF SECTION 50C(2) OF INC OME TAX ACT, 1961 A MECHANISM FOR REDRESSAL OF GRIEVANCES HAS BEEN PROVIDED IN A CAS E WHERE ASSESSEE DISAGREES WITH THE VALUATION DONE BY THE STAMP AUTHORITIES AND IN THIS MANNER APPLICATION FILED BY THE ASSESSEE WAS CONSIDERED TO BE NON-MAINTAINABLE. NOT SATISFIED WITH THE SAID ORDER OF CHIEF CONTROLLING REVENUE AUTHORITY, MAH ARASHTRA STATE, PUNE ASSESSEE FILE A WRIT PETITION BEFORE HONBLE BOMBAY HIGH COURT, W HICH HAS BEEN DECIDED VIDE ORDER DATED 3/5/2012 IN WRIT PETITION LODG NO. 776 OF 20 12 AND COPY OF THIS ORDER IS FILED AT PAGES 115 TO 118 OF THE PAPER BOOK. IT WI LL BE RELEVANT TO REPRODUCE RELEVANT PORTION OF THE ORDER PASSED BY HONBLE HIGH COURT: ITA NO.2835/MUM/2013 (A.Y.2009-10) 15 4. IT IS AN ADMITTED POSITION THAT THE PURCHASER-H OTEL HORIZON PVT. LTD. PAID THE STAMP DUTY OF RS.2,88,72,550/- ON 4.8.2010 WITHOUT PROTES T AND AN ENDORSEMENT WAS MADE ON THE SAID INDENTURE UNDER SECTION 32(1)(B) BY THE COLLECTOR OF STAMPS. THEREUPON HOTEL HORIZON .PVT. LTD. AS PURCHASER AND THE PETITIONER AS VENDOR EXECUTED THE DOCUMENT ON 5.8.2008 AND PRESENTED THE SAME IN THE CONCERNED SU B-REGISTRARS OFFICE AND THE SAID DOCUMENT WAS DULY REGISTERED ON THE SAME DAY. 5. IT WAS PURCHASERS OBLIGATION TO PAY THE STAMP D UTY UNDER THE SAID INDENTURE AND ACCORDINGLY, THE STAMP DUTY WAS PAID BY THE PURCHAS ERS WITHOUT PROTEST ON 4.8.2008 AS INDICATED ABOVE. IT IS AFTER ABOUT 11 MONTHS THAT T HE ADJUDICATION OF STAMP DUTY WAS CALLED IN QUESTION BY FILING AN APPLICATION ON 3.7. 2009 NOT BY THE PURCHASER WHO PAID THE STAMP DUTY, BUT BY THE PETITIONERS. 6. IT APPEARS THAT THE PETITIONERS HAD FILED A RETU RN OF INCOME WITH INCOME TAX AUTHORITIES ON 22.9.2009. THEREAFTER THE PETITIONER S FILED A REVISED RETURN OF INCOME ON 26-08-2010 AND A REVISED LONG TERM CAPITAL GAIN IN RESPECT OF THE TRANSFER OF THE SUBJECT PROPERTY DECLARING A REVISED INCOME OF LESSER AMOUN T. 7. FROM THE AFORESAID FACTS, IT IS EVIDENT THAT THE PETITIONERS APPROACHED THE AUTHORITIES IN RESPECT OF CHALLENGE TO THE FIXATION OF MARKET V ALUE AND STAMP DUTY PAYABLE ON THE INDENTURE IN RESPECT OF THE SUBJECT PROPERTY AFTER CONSIDERABLE DELAY AND ONLY AS AN AFTERTHOUGHT HAVING REALIZED THAT THE VALUATION BY THE STAMP AUTHORITIES MAY COME IN ITS WAY IN DETERMINING THE CAPITAL GAINS TAX PAYABLE BY THE PETITIONERS. THE OBLIGATION TO PAY THE STAMP DUTY WAS ON THE PURCHASER-HOTEL HORIZ ON PVT. LTD. WHO HAD PAID THE STAMP DUTY WITHOUT ANY PROTEST. THE PETITIONERS, IF AT ALL AGGRIEVED OUGHT TO HAVE APPROACHED THE AUTHORITIES IN THE FIRST INSTANCE. P RIMA FACIE, IT DOES APPEAR THAT IT IS ONLY AT THE TIME OF FILING OF THE REVISED RETURN OF INCO ME THAT THE PETITIONERS HAVE SOUGHT TO CHALLENGE THE ORDER OF ADJUDICATION AND VALUATION B Y THE COLLECTOR OF STAMPS SO AS TO CLAIM SOME TAX RELIEF IN THE INCIDENCE OF LONG TERM CAPITAL GAIN TAX. 8. IN LIGHT OF THE ABOVE, I AM NOT INCLINED TO EXER CISE WRIT JURISDICTION OF THIS COURT TO INTERFERE WITH THE IMPUGNED ORDER. THE PETITION IS, THEREFORE, DISMISSED. 9. THE COURT IS INFORMED THAT THE ASSESSMENT ORDER HAS BEEN PASSED BY THE ASSESSING OFFICER OF THE INCOME TAX DEPARTMENT AND THE MATTER IS NOW PENDING BEFORE THE C.I.T. IT IS CLARIFIED THAT IT WILL BE OPEN FOR THE C.I.T. TO PASS SUCH ORDERS AS HE DEEMS APPROPRIATE WITH REGARD TO THE VALUATION OF THE SUBJECT PROPERT Y IN ACCORDANCE WITH LAW AND THE ORDERS PASSED BY THE STAMP AND THIS ORDER SHALL NOT BE AN IMPEDIMENT IN THAT REGARD. 7.4 SUBSEQUENTLY, VIDE ORDER DATED 15/3/2013 CERTAI N MISTAKES IN MENTIONING THE DATES WAS RECTIFIED AND IN PARA-4 REPRODUCED ABOVE AND THE DATE CORRECTLY TO BE READ AS 04-08-2008. 7.5 IN THE LIGHT OF AFOREMENTIONED FACTS IT CAN BE SAID THAT THE VALUE ADOPTED AND ASSESSED BY THE STAMP VALUATION AUTHORITY UNDER SUB -SECTION (1) WAS DISPUTED BY THE ASSESSEE IN THE APPEAL, REVISION AND EVEN BEFOR E HONBLE HIGH COURT. IF IT IS SO, ITA NO.2835/MUM/2013 (A.Y.2009-10) 16 THEN ACCORDING TO THE PROVISIONS OF SECTION 50C THE ASSESSEE CANNOT OBTAIN THE BENEFIT AS PROVIDED IN SUB-SECTION(2) OF SECTION 50 C AS NEITHER OF THE CONDITIONS DESCRIBED IN SUB-SECTION(2) HAS BEEN FULFILLED BY T HE ASSESSEE. IN THIS VIEW OF THE SITUATION, NEITHER THE AO NOR LD. CIT(A) COULD ADOP T SALE CONSIDERATION OF THE PROPERTY ANY AMOUNT LESS THAN THE VALUE ADOPTED OR ASSESSED BY THE STAMP VALUATION AUTHORITY AS SECTION 50C DOES NOT RECOGNI ZE SUCH CURTAILMENT OF THE SALE CONSIDERATION IN ANY MANNER. THEREFORE, WE CONFIRM THE FINDINGS OF LD. CIT(A) THAT THE SALE VALUE OF THE CONSIDERATION TAKEN BY THE ST AMP VALUATION AUTHORITY WAS THE RIGHT AMOUNT FOR THE PURPOSE OF CALCULATION OF LONG TERM CAPITAL GAIN. 7.6 THERE IS NO FORCE IN THE CONTENTION OF LD. AR R EGARDING MISTAKE HAVING BEEN COMMITTED BY THE STAMP VALUATION AUTHORITY IN TAKIN G THE VALUE OF TDR AND IT HAS BEEN CLEARLY DESCRIBED IN THE ORDER OF LD. CIT(A) T HAT THE VALUE OF TDR ALSO HAS BEEN TAKEN AT 60% AND IT HAS NOT BEEN TAKEN AT 100%. TH E RELEVANT PORTION OF ORDER OF LD. CIT(A) HAS ALREADY BEEN REPRODUCED IN PARA -3.9 OF THIS ORDER. WE, THEREFORE, DECLINE TO INTERFERE IN SUCH FINDINGS OF FACTS RECORDED BY LD. CIT(A) AND THIS CONTENTION OF LD. AR IS REJECTED. 8. NOW COMING TO THE ISSUE RAISED IN GROUND NO.2, T HIS ISSUE IS SQUARELY COVERED IN FAVOUR OF THE ASSESSEE BY THE DECISION OF HONBL E BOMBAY HIGH COURT IN THE CASE OF CIT VS. PUJA PRINTS (SUPRA). RESPECTFULLY FOLLOWIN G THE SAME WE DECIDE THIS ISSUE IN FAVOUR OF THE ASSESSEE AND DIRECT THE AO TO ADOPT FAIR MARKET VALUE OF THE IMPUGNED PROPERTY AS ON 1/4/1981 AT RS.5,62,50,775/- AS PER VALUATION SUBMITTED BY THE ASSESSEE OF THE REGISTERED VALUER, COPY OF WHICH IS FILED AT PAGES 1 TO 25 OF THE PAPER BOOK AND AT PAGE15 THE VALUE HAS BEEN ARRIVED AT R S.5,62,50,775/-. 8. BEFORE PARTING WITH THIS GROUND WE MAY MENTION H ERE THAT IN THE SECOND RETURN OF INCOME FILED BY THE ASSESSEE, THE CAPITAL GAIN HAS BEEN COMPUTED ON THE BASIS OF VALUATION DONE BY SHRI S.S. RAHALKAR AS ON 1-4-81 WHO HAS ASSESSED THE VALUE AT RS.7,08,94,016/-. DURING THE COURSE OF HEARING OF THE APPEAL NEITHER LD. AR REFERRED TO THIS VALUATION REPORT NOR ANY RELIANCE WAS PLACE D ON THE SAME. THE SAID REPORT ITA NO.2835/MUM/2013 (A.Y.2009-10) 17 WAS ALSO NOT RELIED UPON BEFORE LD. CIT(A). COPY O F THE SAID VALUATION REPORT IS ALSO NOT FILED IN THE PAPER BOOK. IN GROUND NO.2 OF THE APPEAL NO REFERENCE IS MADE TO THE SAID VALUATION AND REFERENCE IS MADE ONLY TO THE V ALUATION DONE BY M/S. SHAH & SHAH WHO VALUED THE IMPUGNED PROPERTY AS ON 1-4-81 AT RS.5,62,50,775/-. IN VIEW OF THESE FACTS NO COGNIZANCE IS TAKEN OF THE VALUAT ION REPORT OF SHRI S.S.RAHALKAR AND COGNIZANCE IS TAKEN ONLY OF THE VALUATION REPORT OF M/S. SHAH & SHAH, WHO HAS VALUED THE PROPERTY AS ON 1-4-81 AT RS.5,62,50,775 /-. 8.2 IN VIEW OF THE ABOVE DISCUSSION GROUND NO.2 IS ALLOWED IN THE MANNER AFORESAID. 9. APROPOS GROUND NO.3 NO PARTICULAR ARGUMENTS WERE SUBMITTED BY LD. AR AND MOREOVER FOR APPLICATION OF SECTION 50C THERE IS N O REQUIREMENT ACCORDING TO WHICH DEPARTMENT HAS TO SUBMIT SOME PROOF OR THERE SHOULD BE SOME SUGGESTIONS THAT SOMETHING MORE IS PAID OVER AND ABOVE THE AGREEMENT PRICE. SECTION 50C IS A DEEMING PROVISION AND IS APPLICABLE IF THE CONDITI ON LAID DOWN THEREIN ARE FULFILLED. IT HAS ALREADY BEEN HELD THAT SECTION 50C(1) IS APPLI CABLE AND ASSESSEE HAS NOT MADE OUT ANY CASE FOR APPLICABILITY OF SUB-SECTION (2) O F SECTION 50C. THEREFORE, GROUND NO.3 IS ALSO DISMISSED. 10. TO SUM UP GROUNDS NO.1 & 3 OF THE ASSESSEES APPEAL ARE DISMISSED AND GROUND NO.2 IS ALLOWED. 11. IN THE RESULT, APPEAL FILED BY THE ASSESSEE IS PARTLY ALLOWED IN THE MANNER AFORESAID. ORDER PRONOUNCED IN THE OPEN COURT ON 31/10/20 14 !' # $%& 31/10/2014 ! ' SD/- SD/- ( . . /R.C.SHARMA ) ( . . / I.P. BANSAL ) / ACCOUNTANT MEMBER / JUDICIAL MEMBER MUMBAI; $% DATED 31./10/2014 ITA NO.2835/MUM/2013 (A.Y.2009-10) 18 ()* ()* ()* ()* +*') +*') +*') +*') / COPY OF THE ORDER FORWARDED TO : 1. ,- / THE APPELLANT 2. (.,- / THE RESPONDENT. 3. / ( ) / THE CIT(A)- 4. / / CIT 5. *0' ()% , , / DR, ITAT, MUMBAI 6. '1 2 / GUARD FILE. % % % % / BY ORDER, .*) () //TRUE COPY// 3 33 3 / 4 4 4 4 5 5 5 5 (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI . % . ./ VM , SR. PS