Sh. Naresh Kumar, New Delhi V. ITO, New Delhi

ITA 334/DEL/2016

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 5218 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 4 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-05-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: H
• Assessment Year: 2008-2009
• Appeal Filed On: 22-01-2016
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: SUGANDHA SHARMA
• Assessee Lawyers: NAVEEN SINGH
• Keywords: Capital asset; Cost of acquisition; Fair market value; Valuation report; Assessment record; Set aside
• Section: 54B; 147; 148; 144

Judgement Text

PAGE | 1 INCOME TAX APPELLATE TRIBUNAL DELHI BENCH D: NEW DELHI BEFORE SHRI AMIT SHUKLA, JUDICIAL MEMBER AND SHRI PRASHANT MAHARISHI, ACCOUNTANT MEMBER ITA NO.334/DEL/2016 (ASSESSMENT YEAR: 2008-09) SH. NARESH KUMAR, S/O. SHRI RISHAL SINGH, R/O. HOUSE NO. 90, BAPROLA VILLAGE, NEW DELHI PAN: AWIPS4862N VS. ITO, WARD-42(4), NEW DELHI (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI NAVEEN SINGH, CA REVENUE BY: SMT SUGANDHA SHARMA, SR. DR DATE OF HEARING 06/03 / 201 9 DATE OF PRONOUNCEMENT 2 4 / 05 / 2019 O R D E R PER PRASHANT MAHARISHI, A. M. 1. THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF THE LD CIT(A)-15, NEW DELHI DATED 26.10.2015. 2. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF AP PEAL:- 1. RECORDING THE BELIEF OF ESCAPEMENT OF INCOME AND IN THEREAFTER ISSUING A NOTICE U/S 147/148 OF THE INCOME TAX ACT, 1961 TO T HE APPELLANT; 2. CARRYING OUT THE ASSESSMENT U/S 144 OF THE INCOM E TAX ACT, 1961 IN WRONG HANDS OF THE APPELLANT WITHOUT A SPECIFIC NOT ICE IN THAT BEHALF; 3. COMPLETING THE ASSESSMENT WITHOUT PROVIDING REAS ONABLE, ADEQUATE AND PROPER OPPORTUNITY OF HEARING; 4. CHARGING A SUM OF RS. 1,26,14,035.00/- TO CAPITA L GAIN TAX BY ADOPTING ESTIMATED FAIR MARKET VALUE AS ON 01-04-1981 WITHOU T ANY EVIDENCE BASIS. 5. DEDUCTION UNDER SECTION 54B FOR INVESTMENT IN AG RICULTURAL LAND IS NOT GIVEN ANY RELIEF. 3. BRIEF FACTS OF THE CASE SHOWS THAT ASSESSEE IS AN I NDIVIDUAL, NOT HAVING ANY PERMANENT ACCOUNT NUMBER, ASSESSED U/S 144 READ WI TH SECTION 147 OF THE INCOME TAX BY THE ORDER DATED 28/2/2014 WHEREIN THE TOTAL INCOME OF THE ASSESSEE WAS ASSESSED AT INR 1 2614035/. PAGE | 2 4. THE INFORMATION WAS RECEIVED IN THIS CASE FROM THE OFFICE OF THE DIRECTOR OF INCOME TAX (INVESTIGATION), NEW DELHI ON 22/10/2009 THAT ASSESSEE HAS SOLD ONE AGRICULTURAL LAND ADMEASURING 7.6875 ACRE S COMPRISING VARIOUS SELLERS AT VILLAGE BAPROLA DELHI TO M/S EXPERIENCE BUILDER PRIVATE LIMITED FOR A CONSIDERATION OF INR 196,000,000/- AND IN TH E SAID LAND THE SHARE OF THE ASSESSEE IS 10%, THEREFORE, ASSESSEE HAS RECE IVED A SUM OF INR 1 9603125/ DURING THE FINANCIAL YEAR 2007 08. THE REFORE THE LEARNED ASSESSING OFFICER ISSUED INQUIRY LETTER TO THE AS SESSEE BUT NO REPLY WAS RECEIVED, THEREFORE, ANOTHER LETTER DATED 1/2/2012 WAS ISSUED AND SAME ALSO REMAINED UNCOMPLIED WITH. THEREFORE THE LEARN ED ASSESSING OFFICER RECORDED THE REASONS FOR INITIATING PROCEEDINGS FOR ASSESSING INCOME OF THE ASSESSEE UNDER SECTION 147 OF THE ACT, NOTICE U/S 1 48 WAS ISSUED ON 29/8/2012. HOWEVER IN RESPONSE TO THAT NOTICE NO R ESPONSE WAS RECEIVED AND THEREFORE THE NOTICE U/S 142 (1) WAS ISSUED ON 14/1/2013, SAME ALSO REMAIN UNCOMPLIED WITH. THEREFORE, AFTER THE SEVE RAL OPPORTUNITIES GRANTED TO THE ASSESSEE BUT HE DID NOT APPEAR BEFORE AO. SO ASSESSING OFFICER WAS LEFT WITH NO OTHER ALTERNATIVE BUT TO PASS AN ORDER U/S 144 OF THE INCOME TAX ACT AND HE FOUND THAT THE CAPITAL GAIN ON SALE OF T HE LAND HAS ESCAPED THE ASSESSMENT. TO COMPUTE THE CAPITAL GAIN, THE LEARN ED AO ESTIMATED THE FAIR MARKET VALUE OF SUCH PROPERTY AS ON 1/4/1981 AMOUNT ING TO INR 1 650000/ PER ACRE GATHERED FROM DIFFERENT SOURCE S AND COMPUTED THE CAPITAL GAIN ON THE SALE OF LAND CONSIDERING THE SA LE CONSIDERATION OF INR 1 9603125/- AND GRANTING INDEXED COST OF ACQUISITION AS DEDUCTION OF INR 6 889090/ , COMPUTED THE LONG-TERM CAPITAL GAIN OF I NR 12614035/. CONSEQUENTLY THE ASSESSMENT ORDER WAS PASSED. 5. ASSESSEE AGGRIEVED WITH THE ORDER OF THE LEARNED AS SESSING OFFICER PREFERRED AN APPEAL BEFORE THE LEARNED CIT ( A) 15, NEW D ELHI. THE LEARNED CIT A PASSED AN ORDER ON 26/10/2015 IN CASE OF ALL THE 10 JOINT OWNERS OF THE LAND DISMISSING THEIR APPEALS. BEFORE THE LEARNED CIT A THE ASSESSEE RAISED AN OBJECTION THAT THE REOPENING OF THE ASSES SMENT IS INVALID AS NOTICE U/S 148 OF THE ACT ISSUED BY THE AO ON 29/8/2012 , WAS NEVER SERVED ON HIM. HENCE THE PROCEEDINGS UNDER SECTION 148 WAS C HALLENGED. THE LEARNED CIT A VERIFIED THE ASSESSMENT RECORD AND FOUND THAT NOTICE U/S 148 OF THE ACT WAS ISSUED ON 29/8/2012 ON THE SAME DATE THROUGH SPEED PAGE | 3 SPEED AND THERE IS NO EVIDENCE ON RECORD TO SUGGES T THAT THE NOTICE HAS RETURNED BACK BY POSTAL AUTHORITIES AS UNSERVED. TH EREFORE RESPECTFULLY FOLLOWING THE DECISION OF THE HONOURABLE JHARKHAND HIGH COURT IN CASE OF MILN PODDAR VS CIT 357 ITR 619 AS WELL AS THE HONOU RABLE JURISDICTIONAL HIGH COURT IN CASE OF CIT VS MADHSY FILMS PRIVATE LIMITED 301 ITR 692 DISMISSED THIS GROUND, AS ASSESSEE HAS FAILED TO G IVE ANY EVIDENCE TO ESTABLISH THAT NOTICE U/S 148 HAS RETURNED BACK OR UNSERVED. HE STATED THAT THEREFORE NORMAL PRESUMPTION HAS TO BE DRAWN THAT THE NOTICE WAS DULY SERVED UPON THE APPELLANT WITHIN THE TIME LIMI T PRESCRIBED UNDER THE ACT. THE 2 ND OBJECTION RAISED BEFORE HIM FOR THE COMPUTATION OF THE CAPITAL GAIN STATING THAT THE CAPITAL GAIN DID NOT BELONG T O THE ASSESSEE AS AN INDIVIDUAL BUT IT BELONGED TO THE HINDU UNDIVIDED F AMILY OF SRI DALEL SINGH STATING THAT THE LAND WAS INHERITED BY HIS FATHER, WHO IN TURN HAD INHERITED IT FROM HIS FATHER. THEREFORE THE CONTENTION OF TH E ASSESSEE WAS THAT SINCE THE LAND BELONGED TO THE HUF OF THE APPELLANT, AO H AS WRONGLY ISSUED NOTICE U/S 148 TO THE ASSESSEE IN INDIVIDUAL CAPACITY. THE LEARNED CIT A REJECTED THE ABOVE EXPLANATION STATING THAT THE ENQ UIRY REPORT RECEIVED FROM THE ASSESSING OFFICER SHOWS THAT THE ASSESSEE HAS S OLD THE PROPERTY IN HIS INDIVIDUAL CAPACITY AND NOT IN HUF CAPACITY. THERE FORE HE HELD THAT THE PROPERTY BELONGS TO THE ASSESSEE AND IN INDIVIDUAL CAPACITY AND NOT IN THE HANDS OF THE HINDU UNDIVIDED FAMILY. THE 3 RD OBJECTION RAISED BY THE APPELLANT IS THE REASON FOR REOPENING WAS NOT COMMU NICATED TO THE ASSESSEE. THE SAME ARGUMENT WAS ALSO REJECTED STAT ING THAT NOTICE U/S 148 OF THE ACT WAS ISSUED ALONG WITH THE REASONS RECORD ED THEREIN WHICH WAS SENT THROUGH SPEED POST AND THE ASSESSEE DID NOT CO MPLY WITH THE NOTICES AND THEREFORE THE ABOVE OBJECTION DOES NOT SURVIVE. ON THE MERITS IT WAS STATED THAT AO HAS ESTIMATED THE COST OF ACQUISIT ION WITHOUT ANY MATERIAL AVAILABLE BUT IS ON ARBITRARY VALUATION. THE LEARN ED CIT A HELD THAT THE COST OF THE LAND FOR THE PURPOSE OF COMPUTING THE I NDEXED COST OF ACQUISITION HAS BEEN TAKEN AT INR 1 650000 PER ACRE BY THE AS SESSING OFFICER ON THE BASIS OF INFORMATION GATHERED BY HIM FROM DIFFERENT SOURCES TO KNOW THAT WHAT IS THE FAIR MARKET VALUE AS ON 1/4/1981. HE H ELD THAT AS THE APPELLANT COULD NOT FIND ANY FAULT EXCEPT RAISING GENERAL OBJ ECTION, HE REJECTED IT. PAGE | 4 CONSEQUENTLY APPEAL IN CASES OF ALL 10 PERSONS BEIN G THE JOINT OWNERS OF THE ABOVE LAND WERE DISMISSED. 6. THEREFORE, AGGRIEVED WITH THE ORDER OF THE LEARNED CIT A THE ASSESSEE IS IN APPEAL BEFORE US. FIRSTLY THE ASSESSEE CONTESTED THE SAME ARGUMENT AS RAISED BEFORE THE LEARNED CIT A THAT NOTICE U/S 1 48 WAS NEVER SERVED ON ANYONE AT ANYTIME. IT WAS FURTHER STATED THAT ASSES SEE HIMSELF TOOK ASSESSMENT FILE INSPECTION AND HE HAS NOT SEEN THE DELIVERY STATUS REPORT OF THE NOTICES SENT BY SPEED POST IN THE ASSESSMENT FI LE. HE THEREFORE STATED THAT THE ORDER PASSED UNDER SECTION 148 OF THE INCO ME TAX ACT WITHOUT SERVICE OF NOTICE UNDER THAT SECTION IS INVALID. T HE 2 ND POINT THE ASSESSEE RAISED IS THAT THE LAND BELONGED TO THE HUF OF THE ASSESSEE BUT NOT TO THE ASSESSEE. THE NOTICES SHOULD HAVE BEEN ISSUED TO T HE HINDU UNDIVIDED FAMILY OF THE ASSESSEE BUT ACCORDING TO THE ASSESSM ENT ORDER IT HAS BEEN ISSUED ON THE INDIVIDUAL STATUS OF THE ASSESSEE, TH EREFORE, THE NOTICE ISSUED IS ALSO INVALID. THEREFORE THE ORDER PASSED BY THE LEARNED ASSESSING OFFICER TAXING THE ABOVE CAPITAL GAIN IN THE HANDS OF THE I NDIVIDUAL STATUS OF THE ASSESSEE IN STATE OF HINDU UNDIVIDED FAMILY IS INVA LID. HE SUBMITTED THAT ACTION HAS BEEN TAKEN AGAINST THE WRONG PERSON. HE REITERATED THE SAME ARGUMENT AS WERE RAISED BEFORE THE LEARNED CIT A. THE 3 RD POINT THAT WAS RAISED IS THAT HE FURTHER CHALLENGED THE NOTICE I TSELF STATING THAT THE NOTICE DATED 1/7/2014 WHICH WAS ISSUED TO THE ASSESSEE AT ADDRESSED K 01 06, MOHAN GARDEN, NAGAR, NEW DELHI 59 DOES NOT MENTION THE PERMANENT ACCOUNT NUMBER, FATHERS NAME AND ADDRESS IS INCORR ECT. HE FURTHER REFERRED TO THE ANOTHER NOTICE DATED 28/2/2014 STAT ING THAT THERE ARE MORE THAN ONE PERSON OF THE SIMILAR NAME IN THE VILLAGE AND WHEN THE ASSESSEE QUESTIONED THE ASSESSING OFFICER ABOUT THE RECEIPT OF THE ABOVE NOTICE AND BY WHICH PERSON, NO REPLY WAS GIVEN TO THE ASSESS EE. HE FURTHER STATED THAT THE NAME OF THE ASSESSEE IS MR NARESH KUMAR SO LANKI AND THE PERMANENT ACCOUNT NUMBER OF THE ASSESSEE IS AWIPS48 62N AND THE ADDRESS OF THE ASSESSEES 90, VILLAGE BAPROLA, NAJFG ARH , NEW DELHI 43. HE THEREFORE SUBMITTED THAT THE LEARNED ASSESSING OFFI CER NEVER MENTIONED THE PERMANENT ACCOUNT NUMBER IN THE NOTICE. HE ALSO NO TED THE ERROR IN THE WRITING OF THE NAME OF THE FATHER OF THE ASSESSEE. ADVERTING TO THE 2 ND GROUND OF THE APPEAL HE STATED THAT THE PASSING OF THE ASSESSMENT ORDER PAGE | 5 U/S 144 OF THE INCOME TAX ACT IN WRONG HANDS OF THE APPELLANT WITHOUT A SPECIFIC NOTICE IN THAT BEHALF IN COMPLETING THE AS SESSMENT WITHOUT PROVIDING THE REASONABLE AND ADEQUATE AND PROPER OP PORTUNITY OF HEARING IS BAD IN LAW. IT ONLY CONTENTION IN THIS REGARD IS T HAT THE INCOME IS REQUIRED TO BE ASSESSED IN THE HANDS OF THE HINDU UNDIVIDED FAMILY AND NOT THE ASSESSEE IN THE INDIVIDUAL CAPACITY. WITH RESPECT T O THE 4 TH GROUND OF APPEAL WITH RESPECT TO THE CHARGEABILITY OF THE CAPITAL GA IN HE SUBMITTED THAT THE LEARNED AO HAS ESTIMATED THE FAIR MARKET VALUE AS O N 1/4/1981 WITHOUT ANY EVIDENCE. HIS MAIN ARGUMENT IS THAT THE LEARNE D ASSESSING OFFICER HAS GATHERED THE MARKET RATE AS ON 01/04/1981 BUT HAS N OT SHOWN THE EVIDENCES FOR ESTIMATING THE SAME. 7. THE LEARNED DEPARTMENTAL REPRESENTATIVE VEHEMENTLY A STATED THAT THAT NOTICE HAS BEEN SERVED TO THE ASSESSEE BY THE SPEED POST WHICH IS NOT RETURNED BACK AND THEREFORE SAME IS DEEMED TO HAVE BEEN SERVED. IT IS FURTHER SUBMITTED THAT THE ASSESSEE HAS NEVER APPEA RED BEFORE THE ASSESSING OFFICER OR OBJECTED TO IT DESPITE SERVICE OF THE LETTERS AS WELL AS THE NOTICE. WITH RESPECT TO THE MERITS OF THE CASE H E STATED THAT THE ASSESSEE HAS SOLD HIS AGRICULTURAL LAND AT BAPROLA VILLAGE U NDER THE LIMITS MUNICIPAL LIMITS WHICH IS COVERED AS A CAPITAL ASSET CHARGEAB LE TO TAX THE CAPITAL GAIN. HE FURTHER RELIED UPON THE DECISION OF THE HONOURAB LE DELHI HIGH COURT IN 125 TAXMAN 1075 FOR THIS PROPOSITION. HE FURTHER R EFERRED TO THE DECISION OF THE LEARNED ASSESSING OFFICER AS WELL AS THE LEARNE D CIT A AND SUBMITTED THAT ALL THE ISSUES HAVE BEEN COVERED EXHAUSTIVELY BY THESE 2 LOWER AUTHORITIES ON THE MERITS OF THE CASE. HE FURTHER SUBMITTED THAT THE ASSETS DOES NOT DEVOLVE UPON THE ASSESSEE IN HIS HUF STATU S BUT IN THE HANDS OF ASSESSEE IN HIS INDIVIDUAL STATUS. HE THEREFORE SU BMITTED THAT THE ORDER OF THE LOWER AUTHORITIES DESERVES TO BE UPHELD ON THIS COUNT. FURTHER WITH RESPECT TO THE FAIR MARKET VALUE OF THE LAND, HE S UBMITTED THAT AS ASSESSEE HAS NOT PRODUCED ANY INFORMATION BEFORE THE LEARNED ASSESSING OFFICER AND HAS ALSO NOT REPORTED BEFORE THE LEARNED CIT A, THEREFORE, NOW THE ASSESSEE CANNOT QUESTION THAT THE FAIR MARKET VALUE OF THE PROPERTY AS ON 1/4/1981 ADOPTED BY THE LEARNED ASSESSING OFFICER I S ERRONEOUS. HE SUBMITTED THAT IF ASSESSEE WANTED TO DISPUTE IT SER IOUSLY THEN HE SHOULD HAVE PRODUCED THE VALUATION REPORT OF THE REGISTERE D VALUER BEFORE THE AO OR PAGE | 6 BEFORE THE LEARNED CIT A. IT IS NOT PRODUCED BEF ORE BENCH ALSO. IN VIEW OF THIS IT IS SUBMITTED THAT NOW ASSESSEE CANNOT CHA LLENGE THE ABOVE GROUND. 8. WE HAVE CAREFULLY CONSIDERED THE RIVAL CONTENTION A ND PERUSED THE ORDERS OF THE LOWER AUTHORITIES. THE FACTS CLEARLY SHOW THAT THE ASSESSEE HAS SOLD AN AGRICULTURAL LAND FOR RS 19,60,00,000 IN VILLAGE BAPROLA TO M/S EXPERIENCE BUILDER PRIVATE LIMITED WHEREIN THE ASSESSEES HAV ING 10% SHARE. ACCORDINGLY, ASSESSEE RECEIVED A SUM OF INR 1 9603 125/. ON THE BASIS OF THE INFORMATION RECEIVED FROM THE ANNUAL INFORMATIO N RETURN (AIR) AS PER ADDRESS MENTIONED IN THE SALE DEED, THE LEARNED AS SESSING OFFICER SENT COMMUNICATIONS FOR INQUIRING ABOUT THE CHARGEABILIT Y OF CAPITAL GAIN ON TRANSFER OF ABOVE ASSETS. HOWEVER ASSESSEE DID NOT RESPOND TO THE COMMUNICATIONS. THEREFORE THE LEARNED ASSESSING OF FICER ISSUED NOTICES U/S 148 OF THE INCOME TAX ACT AT THE SAME ADDRESS. THE NOTICES WERE ADMITTEDLY SENT BY THE SPEED POST AT THE GIVEN ADDRESSES WHICH WERE NEVER RETURNED AS UNSERVED. THE LEARNED CIT A HAS NOTED THAT ASSES SEE HAS BEEN SERVED THE NOTICE THROUGH SPEED POST BEARING NUMBER ED61388244 7 IN AND THERE IS NO EVIDENCE ON RECORD TO SUGGEST THAT THIS NOTICE WAS RETURNED BACK BY POSTAL AUTHORITIES AS UNSERVED. HE HAS FOLLOWED THE DECIS ION OF THE HONOURABLE JHARKHAND HIGH COURT IN 357 ITR 619. THE ASSESSEE HAS STATED THAT ON INSPECTION OF THE FILE IT DID NOT FIND ANY EVIDENCE OF SERVICE OF THE NOTICE. IT IS TO BE NOTED THAT HE DID NOT FIND ANY COVER RETURNED UNSERVED. THE NOTICES WERE SENT AT THE ADDRESS WHICH IS MENTIONED IN THE SALE DEED. ASSESSEE DID NOT FILE ANY RETURN OF INCOME NOR MENTIONED THE PAN IN THE SALE DEED. THE RETURN FILED BY THE ASSESSEE ARE ALSO FOR AY 2011-1 2 AND NOT AY 2008-09. THE LD AO DID NOT HAVE NY MECHANISM TO FIND OUT WHO IS THE PERSON WHO HAS SOLD THE LAND. THE ONLY SOURCE OF INFORMATION IS THE COPY OF THE SALE DEED AND ADDRESS MENTIONED THERE N , NOTICES / COMMUNICA TION WERE SENT. IT IS NOT THE CLAIM OF THE ASSESSEE THAT IN SALE DEED WRO NG ADDRESS IS MENTIONED. THEREFORE, THE ARGUMENT OF THE ASSESSEE THAT NO NOT ICE HAS BEEN SERVED ON THE ASSESSEE IS REJECTED. 9. FURTHER WITH RESPECT TO THE CLAIM OF THE ASSESSEE T HAT THE LAND BELONGS TO THE HINDU UNDIVIDED FAMILY AND NOT IN THE STATUS OF INDIVIDUAL IS ALSO DEALT WITH BY THE LEARNED CIT A WHEREIN HE HELD THAT IN T HE DOCUMENTS SUBMITTED BY THE ASSESSEE FOR THE SALE OF LAND, IT IS NOWHER E MENTIONED THAT THE PAGE | 7 ASSESSEE HAS SOLD THE ABOVE LAND IN THE NAME OF HIN DU UNDIVIDED FAMILY. FURTHER IN ALL THE DOCUMENTS THE NAMES OF ALL THE A PPELLANTS INCLUDING SRI DALEL SINGH IS MENTIONED IN THEIR INDIVIDUAL CAPACI TY ONLY. FURTHER THE ENQUIRY REPORT ALSO NAMES THE APPELLANTS IN THEIR INDIVIDUAL CAPACITY ONLY. IN VIEW OF THIS WE REJECT THE CLAIM OF THE ASSESSEE THAT CAPITAL GAIN IS CHARGEABLE TO TAX EVEN IF IT IS AT ALL IN THE HANDS OF THE HINDU UNDIVIDED FAMILY. 10. AS WE ALREADY REJECTED THE ARGUMENT OF THE ASSESSEE THAT LAND BELONGS TO THE HINDU UNDIVIDED FAMILY AND NOT TO THE ASSESSEE IN H IS INDIVIDUAL CAPACITY, ALL THE ARGUMENTS OF THE ASSESSEE WITH RESPECT TO T HE SERVICE OF NOTICE NOT MADE IN THE HANDS OF THE HINDU UNDIVIDED FAMILY OF THE ASSESSEE IS ALSO REJECTED. 11. ACCORDINGLY WE DISMISS THE GROUND NUMBER 1 3 OF T HE APPEAL OF THE ASSESSEE. 12. IN THE PRESENT APPEAL IT IS NOT DISPUTED BY THE ASS ESSEE THAT THE LAND SOLD IS NOT A CAPITAL ASSET TRANSFER OF WHICH IS CHARGEABLE TO INCOME TAX UNDER THE PROVISIONS OF SECTION 45 OF THE INCOME TAX ACT. TH EREFORE, THE ARGUMENTS PLACED BY THE LEARNED DEPARTMENTAL REPRESENTATIVE T HAT WHETHER THE SALE CONSIDERATION RECEIVED IS CHARGEABLE TO TAX OR NOT IS NOT AN ISSUE IN THIS APPEAL. 13. ADVERTING TO THE 4 TH GROUND OF APPEAL WHICH IS AGAINST THE ADOPTION OF THE ESTIMATED MARKET VALUE AS ON 1/4/1981 WITHOUT ANY E VIDENCE BY THE LEARNED ASSESSING OFFICER, FACTS SHOWS THAT LEARNE D ASSESSING OFFICER HAS COMPUTED THE CAPITAL GAIN BY ADOPTING THE FAIR MARK ET VALUE OF THE ASSET AS ON 1/4/1981 AT INR 1,650,000 PER ACRE ON THE BASIS OF THE MARKET ENQUIRIES. HOWEVER NO EVIDENCE OF SUCH MARKET ENQU IRIES WAS SHOWN TO THE ASSESSEE. ACCORDING TO THE PROVISIONS OF SECTION 5 5 (1) OF THE ACT , FOR THE PURPOSE OF COMPUTATION OF CAPITAL GAIN U/S 48 OF TH E INCOME TAX ACT, THE COST OF ACQUISITION BEING LAND IS REQUIRED TO BE TA KEN AT THE COST OF ACQUISITION OF THE ASSET TO THE ASSESSEE OR THE FAI R MARKET VALUE OF THE ASSET AS ON 1/4/1981 AT THE OPTION OF THE ASSESSEE. ACCO RDING TO THE PROVISIONS OF SECTION 2 (22B) OF THE INCOME TAX ACT, THE FAIR MARKET VALUE IN RELATION TO A CAPITAL ASSET MEANS THE PRICE THAT THE CAPITAL ASSE T WOULD ORDINARILY FETCH ON SALE IN THE OPEN MARKET ON THE RELEVANT DATE I.E 01 /04/1981. AS THE PAGE | 8 LEARNED ASSESSING OFFICER HAS NOT GIVEN ANY EVIDENC E THAT HOW THE FAIR MARKET VALUE HAS BEEN DETERMINED BY HIM, WE REJECT THE FAIR MARKET VALUE ADOPTED BY THE LEARNED ASSESSING OFFICER OF INR 1,6 50,000 PER ACRE AS ON 1/4/81. IT IS ALSO TRUE THAT ASSESSEE HAS ALSO NO T PRODUCED BEFORE THE LOWER AUTHORITIES ANY EVIDENCE WITH RESPECT TO FMV OF THE LAND AS ON 1/4/1981. IN VIEW OF THIS, WE SET ASIDE THIS ISSU E BACK TO THE FILE OF THE LEARNED ASSESSING OFFICER TO DETERMINE THE FAIR MAR KET VALUE OF THE IMPUGNED PROPERTY AS ON 1/4/81 BY GIVING AN OPPORTUNITY TO T HE ASSESSEE TO FIRST SHOW THE COST OF ACQUISITION OF THE ASSET AND FAIR MARKET VALUE OF THE ASSET. THEN AT THE OPTION OF THE ASSESSEE ANY ONE OF THEM CAN BE TAKEN AS COST OF ACQUISITION OF THE ASSET FOR INDEXATION. IF THE L EARNED ASSESSING OFFICER IS NOT SATISFIED WITH THE FAIR MARKET VALUE OF THE ASS ET SHOWN BY THE ASSESSEE AS ON 1/4/1981, THEN THE LEARNED ASSESSING OFFICER MAY DECIDE THE WHOLE ISSUE EITHER BY REFERRING THE MATTER TO THE DISTRIC T VALUATION OFFICER FOR DETERMINING THE FAIR MARKET VALUE OR ACCEPTING THE FAIR MARKET VALUE SHOWN BY THE ASSESSEE AND THEN DECIDE THE COMPUTATION OF THE CAPITAL GAIN ON SALE OF THE ABOVE LAND IN ACCORDANCE WITH THE PROVISIONS OF THE LAW. ACCORDINGLY GROUND NUMBER 4 OF THE APPEAL OF THE ASSESSEE IS SE T ASIDE TO THE FILE OF THE LEARNED ASSESSING OFFICER WITH ABOVE DIRECTION. 14. THE 5 TH GROUND OF APPEAL IS WITH RESPECT TO THE DEDUCTION UNDER SECTION 54B FOR INVESTMENT IN AGRICULTURAL LAND. NO ARGUMENTS WERE ADVANCED BEFORE ASKED BY EITHER OF THE PARTIES ON THIS ISSUE. THER EFORE THIS GROUND OF APPEAL IS DISMISSED. 15. ACCORDINGLY APPEAL OF THE ASSESSEE IS PARTLY ALLOWE D WITH ABOVE DIRECTIONS. ORDER PRONOUNCED IN THE OPEN COURT ON 24/05/2019. -SD/- -SD/- (AMIT SHUKLA) (PRASHANT MAHARISHI) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 24/05/2019 A K KEOT COPY FORWARDED TO 1. APPLICANT 2. RESPONDENT 3. CIT 4. CIT (A) PAGE | 9 5. DR:ITAT ASSISTANT REGISTRAR ITAT, NEW DELHI PAGE | 10 DATE OF DICTATION DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE OTHER MEMBER DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. PS/ PS DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. PS/ PS DATE ON WHICH THE FINAL ORDER IS UPLOADED ON THE WE BSITE OF ITAT DATE ON WHICH THE FILE GOES TO THE BENCH CLERK DATE ON WHICH THE FILE GOES TO THE HEAD CLERK THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT REGISTRAR FOR SIGNATURE ON THE ORDER DATE OF DISPATCH OF THE ORDER