LATE SH. LAXMI NARAYAN SAIWAL, Jaipur V. ITO, Jaipur

ITA 396/JPR/2017

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 1806 (ITAT-JAIPUR)
• Duration Of Justice: 7 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-12-2017
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Assessment Year: 2005-2006
• Appeal Filed On: 17-05-2017
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: POONAM RAI DCIT DR DHK
• Keywords: Opportunity of being heard; Cost of acquisition; Fair market value; Valuation report
• Section: 143(3)

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES (SMC), JAIPUR JH HKKXPUN] YS[KK LNL; DS LE{K BEFORE: SHRI BHAGCHAND, ACCOUNTANT MEMBER VK;DJ VIHY LA-@ ITA NO. 396/JP/2017 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2005-06 LATE SHRI LAXMI NARAYAN SAIWAL THROUGH LEGAL HEIRS SMT. RUKMANI DEVI SAIWAL SHRI RISHIRAJ SAIWAL SHRI SHASHIRAJ SAIWAL SHRI PREMRAJ SAIWAL SHRIPRANAYRAJ SAIWAL FLAT NO. 303, SHIV SHAKTI PARADISE, CENTRAL SPINE, VIDHYADHAR NAGAR, JAIPUR CUKE VS. THE ITO WARD- 5(4) JAIPUR LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO .: AQCPS 8055 M VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY: SHRI P.C. PARWAL, C.A. JKTLO DH VKSJ LS@ REVENUE BY :SMT. POONAM RAI, DCIT-. DR LQUOKBZ DH RKJH[K@ DATE OF HEARING : 25/10/2017 ?KKS'K .KK DH RKJH[K@ DATE OF PRONOUNCEMENT : 26 /12/2017 VKNS'K@ ORDER PER BHAGCHAND, AM THE ASSESSEE HAS FILED AN APPEAL AGAINST THE ORDE R OF THE LD. CIT(A)-2, JAIPUR DATED 30-03-2017 FOR THE ASSESSME NT YEAR 2005-06 RAISING THEREIN FOLLOWING GROUNDS:- ITA NO. 396/JP/2017 LATE SHRI LAXMI NARAYAN SAIWAL VS. ITO, WARD- 5 (4 ), JAIPUR . 2 1. THE LD. CIT(A) HAS ERRED ON FACTS AND IN LAW I N CONFIRMING THE ORDER PASSED BY THE AO WITHOUT FOLLO WING THE DIRECTION GIVEN BY THE HON'BLE ITAT WHILE SETTING A SIDE THE ORIGINAL ASSESSMENT ORDER. 2. THE LD. CIT(A) HAS ERRED ON FACTS AND IN LAW IN CONFIRMING THE ACTION OF THE AO IN COMPUTING THE LO NG TERM CAPITAL GAIN AT RS. 36,38,160/- BY TAKING THE FAIR MARKET VALUE OF LAND AS ON 01-04-1981 AT RS. 200/- PER SQ. YARD AS AGAINST RS. 1,400/- PER SQ. YARD CLAIMED BY THE ASS ESSEE ON THE BASIS OF THE REGISTERED VALUER. 3 THE LD. CIT(A) HAS ERRED ON FATS AND IN LAW IN ADOPTING THE FMV OF THE LAND AS ON 01-04-1981 AT RS . 200/- PER SQ. YARD ON THE BASIS OF THE OPINION OF THE DVO BASED ON THE SALE INSTANCE OF THE PROPERTY AT SHIV MARG, BAN I PARK AND MADO SINGH ROAD, BANI PARK IGNORING THAT THEY ARE N OT COMPARABLE WITH THE LAND AT GHIYA MARG AND ALSO IGN ORING THAT THE HON'BLE ITAT IN ITS ORDER DATED 08-04-2011 HAS TAKEN THE FMV OF LAND AS ON 01-04-1981 AT RS. 300/- PER SQ. YARD WHICH WAS RECALLED ON POINTING OUT THE MISTAKE OF NOT CONSIDERING THE COMPARABLE SALE INSTANCE OF PROPERT Y AT BHAWANI SINGH ROAD. 2.1 APROPOS GROUND NO. 1 TO 3 OF THE ASSESSEE, THE FACTS AS EMERGES FROM THE ORDER OF THE LD. CIT(A) IS AS UNDER:- 2.3 I HAVE PERUSED THE FACTS OF THE CASE, THE ASS ESSMENT ORDER AND THE SUBMISSIONS OF THE APPELLANT IN THIS CASE, THE ORIGINAL ASSESSMENT ORDER UNDER SECTION 143(3) OF THE I.T. A CT, 1961 WAS PASSED ON 26-12-2007. SUBSEQUENTLY, VIDE ITS ORDER DATED 21-01- 2014, THE ITAT HAD SET ASIDE THE ISSUE OF CAPITAL G AINS AS IT WAS FELT THAT A COMPARABLE CASE CITED BY THE ASSESSEE HAD NO T BEEN CONSIDERED. AFTER CONSIDERING THE AUTHORIZED REPRES ENTATIVES OBJECTIONS IN REGARD TO THE VALUES OF PROPERTIES D- 81 AND F- 50,GHIYA MARG RELIED ON BY THE ASSESSING OFFICER AN D AFTER RECORDING THAT THE PROPERTIES AT GHIYA MARG, BHAWAN I SINGH AND ITA NO. 396/JP/2017 LATE SHRI LAXMI NARAYAN SAIWAL VS. ITO, WARD- 5 (4 ), JAIPUR . 3 JLN MARG ARE MANY TIMES BETTER LOCATIONALLY AND CAN NOT BE COMPARED TO THE BANI PARK AREA AND AFTER CONSIDERIN G THE EVIDENCES AND DOCUMENTS PRODUCED BY THE AUTHORISED REPRESENTA TIVE, THE ASSESSING OFFICER ARRIVED AT THE SAME CAPITAL GAINS AS IN THE ORIGINAL PROCEEDINGS. IN THIS CASE ,THE APPELLANT HAD SOLD A PROPERTY AT F-32, GHIYA MARG, BANI PARK, JAIPUR ON 6-01-2005 FOR A CONSIDER ATION OF RS. 50 LACS. THE COST OF THE PROPERTY WAS TAKEN IN THE VAL UATION REPORT AS IN 1981 AT RS. 49,95,994/- BY TAKING THE PER SQUARE R ATE OF LAND AT RS. 1400 PER SQUARE YARD. THE ASSESSING OFFICER ACCEPTE D THE COST OF CONSTRUCTION BUT THE COST OF LAND WAS NOT ACCEPTED. THE ASSESSING OFFICER CALLED FOR THE RATES PREVAILING IN THE AREA IN 1981 AND BASED ON THE REPORT OF DIG, REGISTRATION AND STAMPS WHERE IN PLOT NO. D- 81, GHIYA MARG HAD BEEN SOLD AT THE RATE OF RS. 170 PER SQUARE YARD, PLOT NO. D-61B AT RS. 110.28 PER SQUARE YARD AND THE FACT THAT THE REGISTERED VALUER IN HIS STATEMENT RECORDE D ON OATH ON 14- 12-1007 HAD ACCEPTED THAT HE HAD TAKEN THE VALUE OF LAND WITHOUT TALLYING WITH ANY INFORMATION FROM SUB-REGISTRAR OR ANY OTHER GOVERNMENT DEPARTMENT AND THAT HE HAD MADE AN INCOR RECT VALUATION OF LAND. THE ASSESSING OFFICER TOOK THE L AND RATE AT RS. 140 PER SQUARE YARD I.E. AVERAGE OF THE ABOVE SALE PRICES AND @ 10% ON AMOUNT OF CORNER PLOT AND DETERMINED THE IND EXED COST OF LAND AT RS.12,45,156/-.THE CIT(A) ACCEPTED THE FMV AT RS.200 PER SQUARE YARD. THE ITAT INCREASED THE FMV TO RS. 300 PER SQUARE YARD VIDE ITS ORDER DATED 8-04-2011. THE REL EVANT PORTION IS REPRODUCED BELOW. 2.7 WE HAVE HEARD BOTH THE PARTIES. BEFORE US THE L D.AR RELIED UPON THE DECISION OF THIRD MEMBER IN THE CASE OF JA HANGANJ COLD STORAGE VS. ACIT, 133 TTJ 278 (AGRA). ACCORDING TO THE LD.AR, T HE THIRD MEMBER HAS HELD THAT THE MARKET VALUE CAN BE ESTIMATED BY APPLYING THE REVERSAL CAPITAL GAIN INDEX. WE HAVE GONE THROUGH THE DECISION AND THERE IS NO SUCH FINDING GIVEN BY THE THIRD MEMBER. IN CASE ONE IS NOT ABLE TO FIN D OUT ANY COMPARABLE SALE CASE FOR PERIOD FOR WHICH VALUATION IS TO BE DONE T HEN ONE CAN CONSIDER IT BY APPLYING THE CAPITAL GAIN INDEX ON THE SALES MADE S UBSEQUENT TO THE DATE BUT CLOSER TO THE DATE OF VALUATION FOR WHICH VALUATIO N IS TO BE DONE. IF IT IS ACCEPTED AS A BASIC POSTULATE THAT REVERSAL METHOD OF CAPITAL GAIN CAN BE APPLIED THEN IT WILL MEAN THAT THE INCREASE IN THE VALUE OF THE PROPERTY THROUGHOUT INDIA IS THE SAME. THE INCREASE IN THE V ALUE OF PROPERTY DEPENDS UPON THE NUMBER OF FACTORS. HENCE, WE DO NOT FEEL T HAT REVERSAL METHOD OF CAPITAL GAIN INDEX IS TO BE APPLIED TO ASCERTAIN TH E COST AS ON 1-4-1981 BY ADOPTING SALE OF PROPERTY IN FINANCIAL YEAR 1992-92 . THE LD. CIT(A) HAS ITA NO. 396/JP/2017 LATE SHRI LAXMI NARAYAN SAIWAL VS. ITO, WARD- 5 (4 ), JAIPUR . 4 OBSERVED THAT THE PLOT WHICH WAS SOLD WAS ON MAIN R OAD AND WAS A CORNER PLOT AND THEREFORE, WE FEEL THAT IT WILL BE FAIR AN D REASONABLE TO ESTIMATE THE RATE OF LAND AS ON 1-4-1981 AT RS. 300/-PER SQ. YAR D . THE CORNER PLOT AS WELL AS THE LOCATION OF PLOT ON THE MAIN ROAD WILL FETCH MORE PRICE AND THEREFORE, WE HAVE ESTIMATED THAT THE RATE OF LAND IN RESPECT OF THE SAID PLOT AS ON 1-4- 1981 SHOULD BE RS. 300/- PER SQ. YARD. THE AO WILL RECOMPUTE THE CAPITAL GAIN. THUS TWO THINGS ARE CLEAR THAT THE REVERSAL METHOD OF CAPITAL GAIN INDEX TO ASCERTAIN THE COST AS ON 01-04-1081 BY ADOPTING SALE OF PROPERTY IN FINANCIAL YEAR 1992-93 WAS REJECTED AND ALSO THE RELIANCE OF THE AUTHORIZED REPRESENTATIVE ON THE DE CISION OF JAHANGANJ COLD STORAGE VS ACIT, 133 TTJ (AGRA) WAS NOT AGREED TO BY THE HON'BLE TRIBUNAL. SUBSEQUENTLY, THE ASSES SEE MOVED A MISCELLANEOUS PETITION THE RELEVANT PORTION AS APPE ARING IN ITATS ORDER DATED 30-09-2011 MA NO31/JP/2011 A/O ITA NO. 1301/JP/2010 ARE REPRODUCED BELOW:- BEFORE THE LD. CIT(A), THE ASSESSEE GIVE THE SAL E INSTANCE OF TWO PROPERTIES SITUATED AT JLN MARG, JA IPUR. SUCH PROPERTIES WERE SOLD ON 31-10-92. THE STAMP PAPER W AS PURCHASED ON6-3-1981. IF THE REVERSE CALCULATION OF CAPITAL G AIN INDEX IS MADE THEN THE RATE WILL COME AT RS. 748/- PER SQ.YARD AS ON 1-4-1981. THERE WAS ANOTHER PROPERTY AT BHAWANI SINGH ROAD. THIS PROPERTY WAS SOLD AT RS. 2200/- PER SQ. MTR IN THE FINANCIALYEAR 1992-93.BY APPLYING REVERSE CALCULATION OF CAPITAL GAIN INDEX, THE MARKET VALUE OF LAND COMES TO RS. 987/- AS ON 1-4-1 981. ACCORDINGLY, IT WAS SUBMITTED THAT THE ASSESSEE HAS CORRECTLY VALUED THE PROPERTY AS ON 1-4-1981 @ 1400/- PER SQ. YARD IT IS FURTHER MENTIONED IN THE MISC. APPLICATION AS UNDER:- IN GIVING THE ABOVE FINDINGS, THE HON'BLE BENCH HAS MISTAKENLY NOTED THAT BEFORE CIT(A) ASSESSEE GAVE SALE INSTANCE OF PROPERTY SITUATED AT JLN MARG & BHAWANI SINGH ROAD WHICH WERE SOLD IN F.Y. 92-93 WHEREAS THE EVIDENCE ON RECORD S HOWS THAT IN RESPECT OF THESE TWO PROPERTIES THE FAIR MARKET VAL UE WAS DETERMINED ON 1-4-1981 & 24-10-1981 RESPECTIVELY. T HE LAND RATE OF THESE TWO PROPERTIES IS MUCH HIGHER THAN RS. 30 0/- PER SQ. YARD ITA NO. 396/JP/2017 LATE SHRI LAXMI NARAYAN SAIWAL VS. ITO, WARD- 5 (4 ), JAIPUR . 5 ADOPTED BY THE HON'BLE BENCH.THE FAIR VALUE OF LAND AS PER THESE TWO INSTANCES IS NOT CONSIDERED BY HON'BLE BENCH AT ALL NOR PARRA 1(IV) OF WRITTEN SUBMISSION IS CONSIDERED. THIS HAS RESULTED INTO A MISTAKE APPARENT ON RECORD IN DIRECTING TO ADOPT FM V OF LAND AS ON 1-4-1981 AT RS. 300/- PER SQ. YARD. .. THE OTHER PROPERTY HAS BEEN SOLD IN OCT.81 BUT THE LOCATION IS DIFFERENT FROM THE LOCATION OF THE PROP ERTY UNDER REFERENCE. THIS PROPERTY CONSISTED OF 2 STOREYED BU ILDING AND A BASEMENT. DETAILS OF CONSTRUCTIONS ARE ALSO AVAILAB LE IN THE SALE DEED. BUILT UP AREA OF GROUND FLOOR IS168.3 SQ. FEE T. FIRST FLOOR 1778.89 AND UNDERGROUND FLOOR IS 1483 SQ. FEET. PLO T ARE 372.50 SQ. METER. THE PROPERTY CONSISTING OF LAND AND BUILDING WAS SOLD ON5.5 LAKH. THE ASSESSEE DETERMINED THE LAND RATE WITHOUT CONSIDERING THE CONSTRUCTED PORTION. WHILE PASSING THE APPELLATE OR DER WE HAVE NOT CONSIDERED THE SALE INSTANCE OF PROPERTY AT BHAWANI SINGH ROAD TO DETERMINE THE LAND COST AT 1.4.81.HENCE ORDER IS RE CALLED TO THE EFFECT THAT SALE INSTANCE OF PROPERTY AT BHAWANI SI NGH ROAD TO DETERMINE FM AS ON 1-4-81 IN RESPECT OF PROPERTY SO LD. FURTHER, THE ORDER WAS SET ASIDE AS FOLLOWS: ITA NO. 1301/JP/2010 A.Y. 05-06 DATED 21/01/2014 7. WE HAVE CONSIDERED THE SUBMISSION OF BOTH THE PARTIES AND CAREFULLY GONE THROUGH THE MATERIAL AVAILABLE ON TH E RECORD. IN THE PRESENT CASE, IT APPEARS THAT THE COMPARABLE CASE CITED BY THE ASSESSEE WAS EITHER NOT BROUGHT TO THE NOTICE OF THE AUTHORITIES BELOW OR D UE TO OVERSIGHT IT WAS NOT CONSIDERED BYTHE AO/LD. CIT(A) . WE, THEREFORE, DEE M IT APPROPRIATE TO RESTORE THIS ISSUE ACK TO THE FILE OF THE AO TO BE DECIDED AFRESH IN ACCORDANCE WITH LAW AFTER PROVIDING DUE AND REASONABLE OPPORTUNITY OF B EING HEARD. THUS, THE ASSESSEE WAS AFFORDED AN OPPORTUNITY BY T HE ASSESSING OFFICER. AS REGARDS THE PROPERTY AT BHAWA NI SINGH ROAD, IT IS SEEN THAT THIS IS A BUILT UP PROPERTY AND THE LAND RATE HAS BEEN ARRIVED AT BY THE REGISTERED VALUER BY RELYING ON A REGISTERED SALE DEED FOR PLOT NO. S-6, BHAWANI SINGH ROAD, C-SCHEME , DATED 24- 10-1981. IT IS SEEN THAT THE CIT(A) HAS CONSIDERED THIS PROPERTY AND HELD AS UNDER:- ITA NO. 396/JP/2017 LATE SHRI LAXMI NARAYAN SAIWAL VS. ITO, WARD- 5 (4 ), JAIPUR . 6 IT IS NOTICED THAT SHRI NUHAL COULD NOT FURNISH A NY COMPARABLE SALE INSTANCE OF THAT PERIOD AND OF THAT AREA AS AGAINST WHICH THE ASSESSING OFFICER HAS GIVEN COMPARABLE INSTANCE OF THE SAME PERIOD AN D OF THE SAME AREA WHICH IS HAVING DIRECT BEARING ON THE DECISION OF ISSUE. FURTHER THE SALE INSTANCE AT JLN MARG AND BHAWANI SINGH ROAD AND THAT TOO IN SUB SEQUENT PERIOD CANNOT BE CONSIDERED AS COMPARABLE SALE INSTANCE FOR THE P URPOSE OF ASCERTAINING FAIR MARKET VALUE AS ON1-4-1981.HOWEVER, CONSIDERING THE FACT THAT THE SAID PLOT WHICH WAS SOLD WAS ON THE MAIN ROAD AND ONE OF THE COMPARABLE CASE AT D-81, GHIYA MARG, BANI PARK, JAIPUR WAS DISPUTED PROPERTY AND IT WAS A CASE OF DISTRESS SALE THEREFORE, IN MY CONSIDERED VIEW ALL THESE FACTS IT SHALL BE APPROPRIATE TO CONSIDER THE FAIR MARKET VALUE AS ON 1-4-1981AT RS. 200/- PER SQ.YARD INSTEAD OF RS. 154/-PER SQ.YARD ADOPTED BY AO. NO RECTIFICATION APPLICATION WAS FILED BEFORE LD. C IT(A) NOR ANY OBJECTION TAKEN ON THE CONCLUSION DRAWN BY THE LD. CIT(A) AND THIS WAS NOT EVEN A GROUND BEFORE ITAT. THE PROPERTY BEING REFERRED TO BY THE AUTHORIZED REPRESENTATIVE RELATES TO THE VALUATION OF PROPERTY AT 3, CHETAK MARK, JLN MARG, JAIPUR FOR WHICH THE VALUATION WAS MADE ON 5- 02-2005 FOR THE PERIOD 01-04-1981IN WHICH THE VALUE R HAS REFERRED TO THE PROPERTY AT BHAWANI SINGH ROAD, WHICH WAS SO LD ON 24-08- 1981. THUS THE LD. CIT(A) HAS CONSIDERED THIS PROPE RTY AND REJECTED THE SAME AS IT WAS NOT A COMPARABLE CASE BEING IN A DIFFERENT LOCALITY AND OF A SUBSEQUENT PERIOD. IN THE SET ASI DE PROCEEDINGS, ALSO THE ASSESSING OFFICER HAS OPINED THAT THE LOCA LITIES ARE NOT COMPARABLE. IN THE PRESENT PROCEEDINGS, THE AUTHORI ZED REPRESENTATIVE REITERATED THE SAME FACTS AS IN THE EARLIER PROCEEDINGS. THE OPINION OF THE DEPARTMENTAL VALUAT ION OFFICER WAS TAKEN ON THE ISSUE AS HE IS EQUIPPED WITH TECHN ICAL EXPERTISE ON THE ISSUE. AS PER THE REPORT THE VALUATION OFFICER HAS OPINED AS FOLLOWS: AS FAR AS THE ISSUE OF COMPARABILITY OF PROPERTIE S AT GHIYA MARG, AND BHAWANISINGH ROAD IS CONCERNED, IT IS SEE N THAT THESE TWO AREA FALL IN THE DISTINCT LOCALITIES OF JAIPUR I.E. BANI PARK AND C-SCHEME RESPECTIVELY. THE ORDER OF PREFERENCE FOR COMPARABLE SALE IS CONCERNED AS UNDER:- (1) ADJACENT LAND (2) LAND IN SAME LOCALITY (3) LAND IS NEIGHBOURHOOD OR ADJOINING LOCALITIES. ITA NO. 396/JP/2017 LATE SHRI LAXMI NARAYAN SAIWAL VS. ITO, WARD- 5 (4 ), JAIPUR . 7 IT WOULD BE APPROPRIATE TO CONSIDER THE SALE INSTAN CES AS PER ABOVE PREFERENCE. THE SALE INSTANCES OF THE SAME L OCALITY I.E. BANI PARK ARE AVAILABLE. AS DESIRED, A COPY OF SALE INST ANCES AS RECEIVED FROM THE STATE GOVT.OFTHE YEAR 1981 IS ENCLOSED FOR YOUR PERUSAL AND NECESSARY ACTION PLEASE. CALCULATION OF LAND RATE AS PER SALE INSTANCES S. DESCRIPTION DETAILS NO. 1 PROPERTY DETAILS PART OF B-20, SHIV MARG, BANI PARK, JAIPUR A SALE INSTANCE DOCUMENT NO. 2833 B DATE OF SALE 07.11.1981 C SALE VALUE 9036.00 E AREA OF PLOT IN SQM = 150.60SQM F LAND RATE IN RS. PER SQM 9036.00/150.60 = 60.0 0 2 PROPERTY DETAILS PART OF D-60, MADHOSINGH ROAD , BANI PARK, JAIPUR A SALE INSTANCE DOCUMENT NO. 2857 B DATE OF SALE 17.11.1981 C SALE VALUE 98000.00 E AREA OF PLOT IN SQM 700 SQYD = 585.29 SQM F LAND RATE IN RS. PER SQM 98000/585.29 = 167.44 3 PROPERTY DETAILS PART OF D-60, MADHOSINGH ROAD , BANI PARK, JAIPUR A SALE INSTANCE DOCUMENT NO. 2858 B DATE OF SALE 17.11.1981 C SALE VALUE 17000.00 E AREA OF PLOT IN SQM 800 SQYD = 668.90 SQM F LAND RATE IN RS. PER SQM 112000/668.90 = 167.4 4 4 PROPERTY DETAILS PART OF B-20, SHIV MARG, BANI PARK, JAIPUR A SALE INSTANCE DOCUMENT NO. 3080 B DATE OF SALE 11.12.1981 C SALE VALUE 11070.00 E AREA OF PLOT IN SQM = 184.50 SQM F LAND RATE IN RS. PER SQM 11070.00/184.50 = 60. 00 5 PROPERTY DETAILS PART OF B-20, SHIV MARG, BANI PARK, JAIPUR A SALE INSTANCE DOCUMENT NO. 2834 B DATE OF SALE 07.11.1981 C SALE VALUE 7542.00 E AREA OF PLOT IN SQM = 125.70 SQM F LAND RATE IN RS. PER SQM 7542.00/125.70 = 60.0 0 FURTHER, FIVE MORE SALE INSTANCES OF THE SAME AREA WERE FORWARDED WHICH SHOWED THE RATES OF LAND AS ABOVE. THE SAME W ERE FORWARDED TO THE ITA NO. 396/JP/2017 LATE SHRI LAXMI NARAYAN SAIWAL VS. ITO, WARD- 5 (4 ), JAIPUR . 8 AUTHORIZED REPRESENTATIVE AND HE WAS PROVIDED AN OP PORTUNITY TO COMMENT ON THE SAME. THE AUTHORIZED REPRESENTATIVE SUBMITTE D AS FOLLOWS: SUBMISSION ON THE INSTANCE OF COMPARABLE PROPERTI ES GIVEN BY THE DVO. 1. AT THE OUTSET WE MAY POINT OUT THAT THE HON'BLE ITAT RESTORED THE MATTER BACK TO THE FILE OF THE AO WITH THE FOLL OWING DIRECTIONS. WE HAVE CONSIDERED THE SUBMISSIONS OF SUPPORT OF THEIR CLAIM. IN THE SET ASIDE PROCEEDINGS THE AO AGAIN REPEATED THE FINDING GIVEN IN THE EARLIER ASSESSMENT ORDER WITHOUT CONSIDERING T HE COMPARABLE CASES CITED BY THE ASSESSEE AND THEREFORE, THE LAND RATE INSTA NCES NOW SUBMITTED BY THE DVO VIDE LETTER DATED 9-03-2017 CANT BE ADMITTED A S EVIDENCE INASMUCH AS THE SAME IS OUTSIDE THE SCOPE OF THE DIRECTION GIVE N BY HON'BLE ITAT. 2 3.. 4.. 5. WE HAVE MADE A DETAILED SUBMISSION PARTICULARLY POINTING OUT THAT WHY THE SALE INSTANCES OF BHAWANI SINGH ROAD P ROPERTY SHOULD BE CONSIDERED FOR DETERMINING THE FMV OF THE LAND SOLD BY THE ASSESSEE AS ON 01- 04-1981. IT IS ALSO SUPPORTED BY THE REPORT OF THE REGISTERED VALUER. THE HON'BLE ITAT HAS SPECIFICALLY DIRECTED TO CONSIDER THE SALE INSTANCE FOR DETERMINING THE FMV OF THE LAND SOLD BY THE ASSESSE E. THEREFORE, THIS INSTANCE CANT BE IGNORED AND IS REQUIRED TO BE TAKEN INTO C ONSIDERATION AS PER THE DIRECTION OF THE HON'BLE ITAT TO DETERMINE THE FMV AS ON 01-04-1981 OF THE PROPERTY SOLD BY THE ASSESSEE. THE SUBMISSIONS OF THE AUTHORIZED REPRESENTATIVE HA VE BEEN CONSIDERED. THE DVO HAS PROVIDED FIVE SALE INSTANCE S RELATING TO TWO PLOTS OF THE RELEVANT PERIOD AND THE SAME AREA. IF THE AUTHORIZED REPRESENTATIVES CONTENTION THAT THERE W AS NO PRESCRIBED RATES DURING THE PERIOD AND THE SAME WER E DECIDED MUTUALLY BY THE SELLER AND PURCHASER AND THAT DUE T O WIDE VARIATION IN THE RATES IN DIFFERENT REGISTRIES THE SAME CANNO T BE TAKEN, THEN HOW WOULD IT BE JUSTIFIED TO RELY ON A SINGLE INSTA NCE CITED BY THE AUTHORIZED REPRESENTATIVE AND THAT TOO OF AN AREA W HICH IS NOT COMPARABLE. IN VIEW OF THE DISCUSSION AS ABOVE, AND TAKING THE RATES OF THE FIVE INSTANCES NOW SENT BY THE VALUATI ON OFFICER AS WELL AS EARLIER INSTANCES CONSIDERED BY THE ASSESSING OF FICER, THE AVERAGE RATE OF PROPERTY COMES TO RS. 113.00 PER SQ UARE YARD ITA NO. 396/JP/2017 LATE SHRI LAXMI NARAYAN SAIWAL VS. ITO, WARD- 5 (4 ), JAIPUR . 9 WHEREAS THE ASSESSING OFFICER AFTER MAKING ALLOWANC E FOR THE CORNER PLOT HAS TAKEN THE SAMEAT RS. 154.00 PER SQU ARE YARD WHICH IS MORE WHEN COMPARED TO THE COST IF THE INSTANCES NOW SENT BY VALUATION OFFICER ARE TAKEN INTO ACCOUNT. THE SALE INSTANCES FORWARDED NOW BY THE DISTRICT VALUATION OFFICER OF THE SAME LOCALITY, VALIDATE THE SALE VALUES OF THE LAND ADOP TED BY THE ASSESSING OFFICER. THE CIT(A) AFTER CONSIDERING VA RIOUS FACTORS IN THE FIRST ROUND OF APPEAL HAD TAKEN THE VALUE AT RS . 200/- PER SQUARE YARD WHICH IN MY OPINION IS REASONABLE. IN VIEW OF THE DISCUSSION AS ABOVE, THE VALUE OF THE LAND FOR ASCERTAINING TH E COST OF ACQUISITION ON 01-04-1981 IS FOUND REASONABLE AT RS . 200/-PER SQUARE YARD AND CONFIRMED ACCORDINGLY. THE GROUND O F APPEAL IS PARTLY ALLOWED. 2.2 DURING THE COURSE OF HEARING, THE LD.AR OF THE ASSESSEE HAS FILED THE FOLLOWING WRITTEN SUBMISSION TO ALLOW THE GROUN DS RAISED ABOVE. SUBMISSION:- 1. AT THE OUTSET WE MAY POINT OUT THAT THE LOWER AU THORITIES HAVE PASSED THE ORDER WITHOUT FOLLOWING THE DIRECTION GI VEN BY THE ITAT. THE ITAT HAD SPECIFICALLY DIRECTED THAT SALE INSTANCE OF BHA WANI SINGH ROAD PROPERTY BE CONSIDERED. INFACT THE ITAT HAD RECALLED ITS ORDER ADMITTING THAT WHILE ESTIMATING RATE OF RS.300/- PER SQ. YARD, IT HAD NO T CONSIDERED THE SALE INSTANCE OF BHAWANI SINGH ROAD PROPERTY. IN THE FRESH ORDER ALSO, ITAT HAS CATEGORICALLY HELD THAT SALE INSTANCE WAS NOT CONSI DERED BY THE AO AND CIT(A). THE ITAT, THEREFORE, SET ASIDE THE ASSESSME NT ORDER TO BE MADE DENOVO, CONSIDERING THE SALE INSTANCE OF BHAWANI SI NGH ROAD PROPERTY. THE AO, HOWEVER, HAS REJECTED THE SALE INSTANCE OF BHAW ANI SINGH ROAD PROPERTY IN A VERY CASUAL MANNER STATING THAT BHAWANI SINGH ROA D AREA WAS COSTLIER THAN BANI PARK AREA AND THEREFORE IT IS NOT A COMPARABLE CASE EVEN WHEN THE HONBLE ITAT HAS CONSIDERED IT TO BE A COMPARABLE C ASE AND THEREFORE, SET ASIDE THE MATTER TO AO. IN THESE CIRCUMSTANCES, IGN ORING THE SALE INSTANCE OF PROPERTY AT BHAWANI SIGH ROADS IS NOT AS PER THE DI RECTION OF HONBLE ITAT AND HENCE THE FMV AS ON 01.04.1981 ADOPTED BY THE L OWER AUTHORITIES IS NOT CORRECT AND THE CONSEQUENT ADDITION MADE BY THE AO BE DIRECTED TO BE DELETED. 2. IT IS SUBMITTED THAT THE LOWER AUTHORITIES HAVE ADOPTED THE FMV AS ON 04.04.1981 AT RS.200/- PER SQ. YD. WHEREAS TH E HONBLE ITAT IN ITS ORDER DATED 08-04-2011 (PB 75-78) WITHOUT CONSIDERING THE SALE INSTANCE OF BHAWANI SINGH ROAD PROPERTY HAS ADOPTED FMV AS ON 0 1.04.1981 AT THE RATE OF ITA NO. 396/JP/2017 LATE SHRI LAXMI NARAYAN SAIWAL VS. ITO, WARD- 5 (4 ), JAIPUR . 10 RS.300/- PER SQ YARD. THIS ITSELF SHOWS THAT ARBITR ARINESS IN THE FMV AS ON 01.04.1981 DETERMINED BY THE LOWER AUTHORITIES. 3. THE LD. CIT(A) IN COURSE OF APPELLATE HEARING HA S SOUGHT OPINION OF THE DVO. THE SALE INSTANCE REFERRED BY T HE DVO ITSELF SHOWS WIDE VARIATION OF APPROXIMATELY THREE TIMES OF THE LAND LOCATED AT SHIV MARG AND MADHO SINGH ROAD, BOTH OF WHICH ARE IN BANI PARK AR EA. THEREFORE, THESE SALE INSTANCES ARE NOT DETERMINATIVE OF THE FMV AS ON 01 .04.1981 OF THE PROPERTY SOLD BY THE ASSESSEE AT F-32, GHIYA MARG, BANI PARK , JAIPUR. FURTHER, IN THE YEAR 1981, THE DLC RATES WERE NOT PRESCRIBED. THE R EGISTRY WAS CARRIED OUT AS PER THE RATES MUTUALLY DECIDED BETWEEN THE PARTIES. THERE MAY BE NUMBER OF REASONS FOR WHICH THE PARTIES MAY AGREE TO TRANSACT AT RATE LOWER THAN THE MARKET RATE. HENCE, THE INSTANCES CITED BY THE DVO FOR DETERMINING THE FMV AS ON 01-04-1981 CANT BE SAID TO BE INDICATING OF THE FMV OF THE LAND SOLD BY THE ASSESSEE. 4. SO FAR AS THE PROPERTY AT BHAWANI SINGH ROAD IS CONCERNED, THIS PROPERTY MEASURING 372.50 SQ. METER WHICH WAS SOLD ON 24-10-1981 (PB 66- 74) FOR RS.5,50,000/- GIVING A RATE OF RS.1,476.51/- P ER SQ. METER. IN THE YEAR 1981, BANI PARK WAS THE PRIME RESIDENTIAL COLONY OF THE CITY OF THE JAIPUR AND THE RATES THERE WERE MORE AS COMPARE TO THAT AT JLN MARG/BHAWANI SINGH ROAD. IT MAY ALSO BE POINTED OUT THAT THE REGISTERE D VALUER SHRI GOVIND SINGH BAFNA VIDE HIS REPORT DT. 05.02.2005 (PB 56-65) HAS DETERMINED THE FAIR VALUE OF THE LAND AT PLOT NO. 3, CHETAK MARG, JLN MARG NE AR J.K. LOAN HOSPITAL AS ON 01-04-1981 AT RS.1,093/- PER SQ. METER BASED ON THE SUB REGISTRAR RATE. THESE INSTANCES ARE MORE INDICATIVE OF THE FMV AS O N 01.04.1981 OF THE PROPERTY SOLD BY THE ASSESSEE AND THEREFORE, THE RA TE OF RS.200/- PER SQ. YD. ADOPTED BY THE LOWER AUTHORITIES IS NOT CORRECT. EV EN THE REGISTERED VALUER OF THE ASSESSEE HAS ADOPTED THE FMV OF THE LAND AS ON 01.04.1981 AS PER THE LOCAL SURVEY AT RS.1,400/- PER SQ. YD. (PB 3-7) . THOUGH THE REGISTERED VALUER IN THE ORIGINAL ASSESSMENT PROCEEDINGS HAS STATED BEFORE T HE AO THAT HE HAS ADOPTED THE VALUE WITHOUT OBTAINING ANY INFORMATION FROM TH E SUB-REGISTRAR BUT HE HAS ADOPTED SUCH VALUE BASED ON LOCAL SURVEY AND ONCE H E HAS ADOPTED SUCH VALUE, THE LD. CIT(A) HAS NO AUTHORITY U/S 55A TO REFER TH E MATTER TO DVO AS THE ESTIMATE MADE BY REGISTERED VALUER IS NOT LESS THAT ITS FMV. FOR THIS PROPOSITION, RELIANCE IS PLACED IN FOLLOWING CASES: - CIT VS. PUJA PRINTS (360 ITR 697) (BOM) HIABEN JAYANTILAL SHAH VS. ITO (310 ITR 31) (GUJ) CIT VS. UMEDBHAI INTERNATIONAL P LTD (330 ITR 506) (CAL) CIT VS. GAURANGINIBEN S SODHAN INDL. (45 TAXMANN.CO M 356) (GUJ) IN VIEW OF THESE JUDGMENTS, ONCE AN ESTIMATE OF THE VALUE IS MADE BY THE REGISTERED VALUER, ITS VALUATION CANNOT BE REFE RRED TO THE DVO UNLESS SUCH ITA NO. 396/JP/2017 LATE SHRI LAXMI NARAYAN SAIWAL VS. ITO, WARD- 5 (4 ), JAIPUR . 11 VALUE IS LESS THAN ITS FMV. THEREFORE, REPORT OF TH E DVO OBTAINED BY THE LD. CIT(A) IS NOT AS PER THE PROVISIONS OF SECTION 55A. IN VIEW OF ABOVE, FMV TAKEN BY THE LOWER AUTHORITIE S AT RS.200 PER SQ. YARD IS APPARENTLY INCORRECT AND THE VALUE ADOPTED BY THE ASSESSEE BE ACCEPTED IN VIEW OF THE DIRECTION OF ITAT AND OTHER SALE INS TANCES GIVEN BY THE ASSESSEE. 2.3 ON THE OTHER HAND, THE LD. DR SUPPORTED THE ORD ER OF THE LOWER AUTHORITIES . 2.4 THE BENCH HAS HEARD THE RIVAL CONTENTION AND G ONE THROUGH THE MATERIAL AVAILABLE ON RECORD. THE BENCH FINDS THAT IN THE FIRST ROUND OF APPEAL, THE HONBLE ITAT VIDE ITS ORDER DATED 08.0 4.2011 IN ITA NO.1301/JP/2010 DIRECTED TO ADOPT THE FMV OF LAND O F THE IMPUGNED PROPERTY AS ON 01.04.1981 AT RS.300/- PER SQ. YD. H OWEVER, ON AN APPLICATION MOVED BY THE ASSESSEE, THE HONBLE ITAT IN MA NO.31/JP/11 DATED 30.09.2011 RECALLED ITS ORDER TO CONSIDER THE SALE INSTANCE OF LAND AT BHAWANI SINGH ROAD TO DETERMINE FMV AS ON 01.04.198 1 IN RESPECT OF THE LAND OF PROPERTY SOLD. THEREAFTER, HONBLE ITAT IN ITS ORDER DATED 21.01.2014 RESTORED THIS ISSUE TO THE FILE OF AO TO DECIDE AFRESH IN ACCORDANCE WITH LAW. THE RELEVANT PORTION OF ITAT O RDER PARA 7 IS REPRODUCED HEREUNDER. 7. WE HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE PARTIES AND CAREFULLY GONE THROUGH THE MATERIALS AV AILABLE ON THE RECORD. IN THE PRESENT CASE, IT APPEARS THAT TH E COMPARABLE ITA NO. 396/JP/2017 LATE SHRI LAXMI NARAYAN SAIWAL VS. ITO, WARD- 5 (4 ), JAIPUR . 12 CASE CITED BY THE ASSESSEE WAS EITHER NOT BROUGHT T O THE NOTICE OF THE AUTHORITIES BELOW OR DUE TO OVERSIGHT IT WAS NOT CONSIDERED BY THE AO /LD. CIT(A). WE THEREFORE, DEE M IT APPROPRIATE TO RESTORE THIS ISSUE BACK TO THE FILE OF THE AO TO BE DECIDED AFRESH IN ACCORDANCE WITH LAW AFTER PROV IDING DUE AND REASONABLE OPPORTUNITY OF BEING HEARD. THE LEGA L HEIRS OF THE DECEASED-ASSESSEE ARE ALSO FREE TO ADDUCE ANY E VIDENCE IN SUPPORT OF THEIR CLAIM. THE ASSESSEE SUBMITS A REPORT OF REGISTERED VALUER DATED 20.12.2004 WHEREIN THE FMV OF PROPERTY AS ON 01.04.1981 IS DE TERMINED AT RS.10,40,832/- COMPRISING OF THE VALUE OF CONSTRUCT ION AT RS.1,72,580/- AND THE VALUE OF LAND AT RS.8,68,252/- WHICH GIVES THE LAND RATE OF RS.1,540/- PER SQ. YD. (8,68,252 DIVIDED BY 563.80) , BEING A CORNER PLOT. THE LD. CIT(A) HAS SOUGHT THE OPINION OF DVO WHO HA D PROVIDED THE LAND RATE OF SHIV MARG, BANI PARK AND MADHAO SINGH ROAD, BANI PARK AS ON 01.04.1981 AT RS.60/- SQ. MTR. AND RS.167/- SQ. MTR. RESPECTIVELY. THUS THERE IS A WIDE GAP IN LAND RATE AS GIVEN BY R EGISTERED VALUER AND ACTUAL SALE INSTANCES CITED BY THE DVO. THE REGISTE RED VALUER HAD SIMPLY STATED IN THE VALUATION REPORT THAT THE RATE OF LAN D AS ON 01-04-1981 IS RS. 1400/- PER SQ. YARD BASED ON LOCAL SURVEY. NO SALE INSTANCE IS QUOTED TO ARRIVE AT SUCH RATE BY REGISTERED VALUER. THUS REGISTERED VALUERS VALUATION OF LAND @ RS. 1400/- PER SQUARE YARD IS N OT BASED ON ANY INDEPENDENT SUPPORTING DOCUMENT. IT IS SIMPLY MENT IONED IN THE ITA NO. 396/JP/2017 LATE SHRI LAXMI NARAYAN SAIWAL VS. ITO, WARD- 5 (4 ), JAIPUR . 13 VALUATION REPORT THAT RATE IS BASED ON LOCAL SURVEY . HOWEVER, WHAT EVIDENCES WERE GATHERED IN THE SURVEY TO ARRIVE AT SUCH RATE IS NOT PROVIDED.THEREFORE, IN MY CONSIDERED VIEW THE VALUE ADOPTED BY THE REGISTERED VALUER AT RS.1400/- PER SQ. YARD IS VER Y HIGH AND UNREASONABLE. THE DVO HAD GIVEN SALE INSTANCES OF T HE SAME LOCALITY. THE ASSESSEE RELIED ON SALE INSTANCES WHICH ARE FRO M FAR AWAY AREAS FROM THE LOCATION OF CONCERNED PROPERTY. KEEPING ALL THE SE RELEVANT FACTS IN VIEW, THE RATE ADOPTED BY ITAT, JAIPUR BENCH IN FIR ST ROUND AT RS. 300/- PER SQ. YARD IS QUITE FAIR AND REASONABLE. HENCE, T HE BENCH DIRECTS TO ADOPT THE FAIR MARKET VALUE @ RS. 300/- PER SQ. YAR D AS ON 01-04-1981. 3.0 IN THE RESULT, THE APPEAL OF THE ASSESSEE IS AL LOWED ON ABOVE TERMS. ORDER PRONOUNCED IN THE OPEN COURT ON 26/12/201 7 SD/- HKKXPUN ( BHAGCHAND) YS[KK LNL;@ ACCOUNTANT MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 26 /12/ 2017 *MISHRA VKNS'K DH IZFRFYFI VXZSF'KR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- LATE SHRI JAIPUR LAXMI NARAYAN SAIW AL, JAIPUR 2. IZR;FKHZ@ THE RESPONDENT- THE ITO, WARD- 5 (4), JAIPUR 3. VK;DJ VK;QDRVIHY@ CIT(A). 4. VK;DJ VK;QDR@ CIT, 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR 6. XKMZ QKBZY@ GUARD FILE (ITA NO. 396/JP/2017) VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASSISTANT. REGISTRAR