Mrs. Rizwana Ameen, Bangalore V. ITO, Bangalore

ITA 425/BANG/2010

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 51410 (ITAT-BANGALORE)
• Duration Of Justice: 1 year(s) 8 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-12-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 29-11-2011
• Assessment Year: 2005-2006
• Appeal Filed On: 30-03-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SUSAN THOMAS JOSE
• Keywords: Capital asset; Gift; Depreciation; Additional evidence; Cost of acquisition; Fair market value; Valuation report; Benefit of exemption; Revised return
• Section: 54F; 234B; 148; 54; 144

Judgement Text

PAGE 1 OF 19 I TA NOS.425 & 562/BANG/2010 1 INCOME TAX APPELLATE TRIBUNAL BANGALORE BENCHES B BEFORE SHRI N BARATHVAJA SANKAR, VICE PRESIDENT AND SHRI GEORGE GEORGE K, JUDICIAL MEMBER ITA NO. ASST. YEAR APPELLANT RESPON DENT 425/BANG/10 2005-06 MRS. RIZWANA AMEEN, NO.110, COLES ROAD, FRAZER TOWN, BANGALORE-5. PA NO.ADUPA 6746 Q THE ITO, WARD-1(2), BANGALORE. 562/BANG/10 2005-06 ITO, WARD-1(2),BANGALORE. MRS. RIZWANA AMEEN, BANGALORE-5. DATE OF HEARING : 29/11/2011 DATE OF PRONOUNCEMENT: 20/12/2011 ASSESSEE BY : SMT. SHEETHAL BORKAR, ADVOCATE REVENUE BY : SMT. SUSAN THOMAS JOSE, JCIT O R D E R PER BENCH ; THESE APPEALS INSTITUTED BY THE ASSESSEE AS WELL AS THE REVENUE ARE DIRECTED AGAINST THE IMPUGNED ORDER OF T HE LD. CIT (A)-I, BANGALORE DATED 1.2.1020 FOR THE ASSESSMENT YEAR 2005-06. PAGE 2 OF 19 I TA NOS.425 & 562/BANG/2010 2 I. ITA NO.562/B/2010 [BY THE REVENUE]: 2. THE REVENUE HAS RAISED FIVE GROUNDS, IN WHICH, GROUND NOS.1, 4 & 5 BEING GENERAL AND NO SPECIFIC ISSUES INVOLVED, THEY HAVE BECOME NON-CONSEQUENTIAL. IN THE REMAINING GROUNDS, T HE CRUX OF THE ISSUE IS CONFINED TO A LONE GROUND, NAMELY: THAT THE LD. CIT (A) HAD ERRED IN ADOPTING THE COST OF ACQUISITION OF THE LAND AT RS.175/- PER SFT AS ON 1.4.1981 AS AGAINST RS.24/SFT DETERMINED BY THE AO. II. ITA NO.425/B/2010 [BY THE ASSESSEE]: 3. THE ASSESSEE HAS RAISED SEVEN GROUNDS, OUT OF WHICH, GROUND NOS.1 AND 7 BEING GENERAL IN NATURE, THEY DO NOT SURVIVE FOR ADJUDICATION. GROUND NO.6 IS NOT MAINTAINABLE AS CHARGING OF INTEREST U/S 234B OF THE ACT IS MANDATORY AND CONSEQUENTIAL IN N ATURE AND, THUS, THIS GROUND IS DISMISSED AS NOT MAINTAINABLE. IN THE REMAINING GROUNDS, THE ESSENCES OF ISSUES REVOLVE THAT (I) THAT THE CIT (A) OUGHT TO HAVE ACCEPTED THE ASSESSEES CONTENTION THAT SHE HAD SATISFIED THE CONDITIONS REQUIRED FOR CLAIMING DEDUCTION U/S 54 OF THE ACT; & (II) THAT THE CIT (A) OUGHT TO HAVE APPRECIATED THAT THE SUBJECT LAND WAS LOCATED EVEN IN 1980 IN A PRIME PLACE AND OUGHT TO HAVE DIRECTED THE AO TO ADOPT THE VALUE OF THE LAND AT RS.480/SFT INSTEAD OF RS.175/SFT. 3.1. SUBSEQUENTLY, THE ASSESSEE HAD ALSO RAISED THE FOLLO WING ADDITIONAL GROUNDS: (I) THE LD. CIT (A) ERRED IN UPHOLDING THE DISALLOWANCES OF THE FOLLOWING CLAIMS: PAGE 3 OF 19 I TA NOS.425 & 562/BANG/2010 3 (A) COMMISSION AND LEGAL EXPENSES OF RS. 1,85,607/- (B)COMPENSATION PAID TO TENANT RS.17,25,000/- - WITHOUT PREJUDICE, THE CIT (A) OUGHT TO HAVE ALLOWE D THE COMPENSATION OF RS.17.25 LAKHS FOR WHICH THE AO HAD CONCEDED IN HER REMAND REPORT. 4. AS THE ISSUES RAISED IN THESE APPEALS PERTAINING TO T HE SAME ASSESSEE AND FOR THE SAME ASSESSMENT YEAR, THEY WERE HE ARD, CONSIDERED TOGETHER AND DISPOSED OFF, FOR THE SAKE OF CON VENIENCE AND CLARITY, IN THIS CONSOLIDATED ORDER. LET US NOW PROCEED TO ADJUDICATE THE REV ENUES GRIEVANCE AS UNDER: I. ITA NO.562/B/2010 [BY THE REVENUE]: 5. BRIEFLY STATED, THE ASSESSEE, AN INDIVIDUAL, FURNISHE D HER ORIGINAL RETURN OF INCOME ON 21.10.2005, ADMITTING, A TOTAL INCOME OF RS.13,550/- AFTER CLAIMING DEDUCTION OF RS.39.60 LAKHS U /S 54F OF THE ACT WHICH WAS SUBSEQUENTLY REVISED ON 12.3.2007, ADMITTIN G THE IDENTICAL INCOME OF RS.13,550/-, BUT, THE CLAIM OF DEDU CTION OF RS.39.60 LAKHS WAS MADE U/S 54 OF THE ACT. DURING THE CO URSE OF VERIFICATION OF DETAILS FURNISHED ALONG WITH THE RETUR NS, THE LD. AO OBSERVED THAT THE ASSESSEE HAD NOT SHOWN ANY TAXABLE CAPI TAL GAINS AND, THEREFORE, THE ASSESSEE WAS ISSUED WITH A NOTICE U/S 14 8 OF THE ACT ON 16.7.2007. AS THERE WAS NO COMPLIANCE TO THE SAI D NOTICE, THE ASSESSEE WAS SERVED WITH A PROPOSAL TO CONCLUDE THE ASSESSMENT U/S 144 OF THE ACT FOR WHICH THE ASSESSEE FURNISHED CERTAIN DETAILS/SUBMISSION. AFTER DUE CONSIDERATION OF THE ASSESSE ES CONTENTIONS, THE LD. AO, FOR THE REASONS RECORDED IN H IS IMPUGNED ASSESSMENT ORDER UNDER DISPUTE, DETERMINED A SUM OF RS.92, 34,445/- AS INCOME FROM CAPITAL GAINS. PAGE 4 OF 19 I TA NOS.425 & 562/BANG/2010 4 6. AGGRIEVED, THE ASSESSEE TOOK UP THE ISSUE, AMONG OTH ERS, WITH THE LD. CIT (A) FOR RELIEF. AFTER CONSIDERING THE ASSESSEES SUBMISSIONS WITH ADDITIONAL EVIDENCES, VALUATION REPORT FROM THE REGISTERED VALUER, REMAND REPORT, REJOINDER OF THE A SSESSEE, AND ALSO FOR THE DETAILED REASONS RECORDED THEREIN WITH REGARD TO THE ADOPTION OF VALUE OF RS.175/SFT FOR DETERMINING THE COST OF ACQUI SITION AS ON 1.4.1981, THE LD. CIT (A) HAD OBSERVED THUS: 5.1. RECORDS SHOWS THAT THE ASSESSING OFFICER GOT MISTAKEN BY THE FACT THAT THE ORIGINAL ASSET WAS ONLY A VACANT SITE AND PROBABLY THEREFORE THE VALUE ADOPTED WAS RS.24/- PER SFT. HOWEVER, THERE ARE THREE DIFFERENT FIGURES AVAILABLE FOR THIS PURPOSE. FIRSTLY, THE ORIGINAL RETURN DATED 21.10.05 SHOWED THE FIGURE AT RS.450/-. THE SECOND FIGURE IS OF RS.325/- PER SQFT AS PER THE REVISED RETURN DATED 12.3.07. THE REGISTERED VALUERS REPORT SHOWED SUCH FIGURE AT RS.350 PER SQFT FOR THE SITE AND THE BUILDING VALUE AT RS.10 LAKHS WITH 10% LESS FOR FORCED SALE. I DO NOT ADOPT THE THIRD VALUE BECAUSE THE ASSESSING OFFICER HAS GIVEN JUSTIFIED REASON NOT TO ACCEPT THE VALUE BASED ON REGISTERED VALUERS REPORT IN THE REMAND REPORT REPRODUCED BELOW: 5.1.1. NOW BEFORE THE CIT (A), THE ASSESSEE HAD SUBMITTED A VALUATION REPORT WHICH HAS BEEN FORWARDED FOR EXAMINATION REPORT. THE VALUER WAS SUMMONED TO EXAMINE ON WHAT BASIS THE VALUE OF RS.350 PER SFT WAS ADOPTED FOR VALUING THE LAND. THE VALUER, SRI RAMAMURTHY APPEARED ON 12.11.2009 AND DEPOSED THAT SINCE THERE WERE NO COMPARABLES FOR THAT AREA BRIGADE ROAD FOR THAT PERIOD, HE HAD RELIED ON THE MARKET INFORMATION AND TREND AND THE REAL ESTATE VALUES OF SIMILAR AREAS. THE VALUER ADMITTED THAT THERE WERE NO CONCRETE MATERIAL ON THE BASIS OF WHICH HE COULD BASE HIS VALUATION; THERE BEING NO COMPARABLES. PAGE 5 OF 19 I TA NOS.425 & 562/BANG/2010 5 HENCE, IT IS CONCLUDED THAT THE VALUE ARRIVED AT BY THE VALUER IS AN ESTIMATE BASED ON INFERENCE AND SURMISE AND NOT ON ANY CONCRETE MATERIAL. (THE STATEMENT RECORDED FROM THE VALUER IS PLACED ON RECORD). AS AGAINST THIS, THE ASSESSING OFFICER HAS BASED HIS VALUATION ON THE MATERIAL EXTRACTED FROM THE SUB-REGISTRARS OFFICE REGARDING THE ONE SALE INSTANCE IN BRIGADE ROAD ON 18.6.1981. HENCE, THE ORDER OF THE ASSESSING OFFICER NEEDS TO BE CONFIRMED. 5.2. IN VIEW OF THE FACTS AND INCONSTANCIES AND EVIDENCES FILED, I DEEM IT FIT THE APPROPRIATE VALUE WOULD BE RS.175 FOR LAND AND BUILDING COST AT RS.5 LAKHS I.E., HALF THE RATES OF VALUATION REPORT MAKING DISCOUNT, TO SUCH REPORT BECAUSE IT WAS AN ADMITTED FACT BANGALORE WAS NOT A METRO IN 1981 AND IT WAS ONLY A CLUSTER OF VILLAGES AS LIKE OTHER CITIES HAVING NO SUCH POTENTIALITIES AS IT HAS ACHIEVED AFTER 2001. THIS ESTIMATION OF VALUE PER SQFT @ RS.175/- IS BASED ON THE GUIDELINES ENUNCIATED BY THE SUPREME COURT IN THE CASE OF CHIMANLAL HARGOVINDDAS V. SPECIAL L.A.O A.I.R. 1988 S.C. 1652. THIS IS CONSIDERED AS THE MOST JUDICIOUS GUIDELINES IN 1980S WHEN THE STATE GOVERNMENT HAD NO PRESCRIBED VALUATIONS OF LAND IN THEIR PRIME LOCALITIES. THE HONBLE COURT HAS IN THE CASE OF CHIMANLAL HARGOVIND DAS V. SPECIAL LAO AIR 1988 SC 1652 (SC) LAID DOWN SOME PLUS FACTORS WHICH INTENDS TO INCREASE THE NORMAL PRICE AND SOME NEGATIVE FACTORS LEADING TO DECREASE IN THE PRICE OF LAND IN BIG CITIES. SUCH GUIDELINES ARE AS UNDER: .. FOLLOWING THE YARDSTICKS NARRATED SUPRA, I FIND THE VALUE OF LAND TAKEN AT RS.175/- PER SQFT AS ON 1.4.1981 IS JUSTIFIED IN VIEW OF THE FACTS THAT THE LAND HAD ALSO MANY NEGATIVE FACTORS IN 1981 VIZ., AN OLD TENANTED BUILDING THEREON, NOT SO DEVELOPED AREA IN 1981 HAVING ONLY ROAD FRONT IN WEST SIDE. PAGE 6 OF 19 I TA NOS.425 & 562/BANG/2010 6 5.3. IN VIEW OF THE FORE-GOING DISCUSSION THE ASSESSING OFFICER IS DIRECTED TO ADOPT THIS VALUE TO ARRIVE AT THE COST OF ACQUISITION WHILE CALCULATING THE CAPITAL GAINS ON SALE OF PROPERTY LOCATED AT 70/71, BRIGADE ROAD, ON 8.10.2004 INSTEAD OF RS.24/- PER SQFT. HENCE APPEAL IS PARTLY ALLOWED ON THIS ISSUE. 7. NOT SATISFIED WITH THE FINDING OF THE LD. CIT (A ) IN DIRECTING THE AO TO ADOPT THE VALUE OF LAND AT RS.175/SFT AS AGA INST RS.24/SFT ADOPTED, THE REVENUE HAS COME UP WITH THE PRESENT APPE AL. 7.1. IT WAS THE CONTENTION OF THE REVENUE THAT THE C IT (A) HAD ERRED IN ADOPTING THE COST OF ACQUISITION OF THE LAND TAKEN AT RS.175/- PER SFT AS ON 1.4.1981 AS AGAINST RS.24/- PER SFT DETERMI NED BY THE AO WHILE CALCULATING THE CAPITAL GAINS ON SALE OF PROPERTY LOCATED AT 70/71, BRIGADE ROAD ON 8.10.2004. IT WAS, FURTHER, SUBMITTE D THAT THE CIT (A) WAS ALSO NOT JUSTIFIED IN ADOPTING THE COST OF ACQU ISITION OF THE LAND AT RS.175/SFT WITHOUT A SCIENTIFIC BASIS AS AGAINST THE VA LUE ADOPTED BY THE AO ON THE BASIS OF GUIDELINE RATE FIXED BY THE G OVERNMENT AT RS.24/SFT. IT WAS, THEREFORE, PLEADED THAT THE STAND O F THE AO REQUIRES TO BE RESTORED. 7.2. ON THE OTHER HAND, THE LD. ARS SUBMISSION HIGHLI GHTING VARIOUS ISSUES, THE SUBSTANCES OF WHICH, ARE SUMMARIZED AS UN DER: (I) THAT AS PER THE RECORDS OF THE SUB- REGISTRAR AT THAT RELEVANT PERIOD, THE SALE TRANSACTION WAS ALMOST NIL EXCEPT ONE SALE TRANSACTION WHICH APPEARS TO HAVE BEEN REGISTERED SOME TIME IN 1981 IN WHICH THE TRANSACTION WAS AT AN ABNORMALLY LOW RATE AND APPEARS TO BE MORE A GIFT, BUT, FOR SOME SMALL VALUE MENTIONED ONLY FOR THE PURPOSE OF REGISTERING THE SALE DEED WHICH WAS RS.25/SFT PAGE 7 OF 19 I TA NOS.425 & 562/BANG/2010 7 AND THAT DURING THAT RELEVANT PERIOD, THERE WAS NO PRESCRIBED GUIDELINE VALUE FOR REGISTRATION OF PROPERTIES BY THE GOVERNMENT; (II) THAT THE PRESENT VALUE OF LAND ON BRIGADE ROAD IS RS.7000/SFT AND IF THE VALUE IS WORKED BACK BY APPLYING THE COST OF INFLATION INDEX, IT CAME TO AROUND RS.1270/SFT WHEREAS THE ASSESSEE HAD TAKEN THE FMV AT RS.325/SFT IN HER REVISED RETURN MERELY TO BUY PEACE WITH THE DEPARTMENT AND THAT THE PROPERTIES IN BANGALORE HAD SUDDENLY GONE UPWARD FROM 1980 ONWARDS AND IN THE PRIM E LOCALITIES SUCH AS COMMERCIAL STREET, M.G.ROAD, BRIGADE ROAD ETC., THE RATE WAS ROOSTING AROUND RS.600 TO RS.800/SFT. (III) CONSIDERING THE DOCUMENTARY EVIDENCES PRODUCED BEFORE THE FIRST APPELLATE AUTHORITY, THE LD. CIT (A) OUGHT TO HAVE DIRECTED THE AO TO ADOPT RS.480/SFT INSTEAD OF RS.175/SFT. 7.2.1. TO SUBSTANTIATE THE ASSESSEES CLAIM, THE LD. A R CAM E UP WITH A PAPER BOOK CONTAINING 1 -97 PAGES WHICH, INTER ALIA, CONSISTED OF COPIES OF (I) VALUATION REPORT; (II) SALE DEEDS; (I II) REMAND REPORT; (IV) REJOINDER ETC. 8. WE HAVE DULY CONSIDERED THE RIVAL SUBMISSIONS, METICULOUSLY GONE THROUGH THE RELEVANT CASE RECORDS AND A LSO VARIOUS DOCUMENTARY EVIDENCES ADVANCED DURING THE COURSE OF HEARI NG ON BEHALF OF THE ASSESSEE TO SUBSTANTIATE HER CLAIM. 8.1. ON A QUICK LOOK AT THE ASSESSMENT ORDER, IT HAS BEE N OBSERVED THAT THE LD. AO, IN HIS PROPOSAL U/S 144 OF TH E ACT, HAD SUGGESTED TO ADOPT THE FMV AS ON 1.4.1981 AT RS.24/SFT W HEREAS THE PAGE 8 OF 19 I TA NOS.425 & 562/BANG/2010 8 ASSESSEES A R IN HIS REFUTATION (DT.31.1.2008) CONTENDED THAT THE VALUE OF LAND FOR INDEXATION COMES TO RS.1270/SFT WHERE AS THE ASSESSEE HAD ONLY ADOPTED FMV AT RS.325/SFT PRESUMABLY TO BUY PEACE WITH THE DEPARTMENT AND EARNESTLY REQUESTED THE AO TO REFER THE ISSUE TO A REGISTERED VALUER (SIC) VALUATION OFFICER OF THE DEPARTMENT TO ASCERTAIN THE FMV OF THE SUBJECT PROPERTY AS ON 1.4.1981 TOGETHER WITH STRUCTURES THEREON. THE AO, IN HIS IMPUGNED ORDER, HAD FAIRLY CONCEDED THAT AS PER THE GOVERNMENT CIRCULAR DATED 10.11.1982(COURTESY: GOVERNMENT CIRCULAR NO.RD 329 EST 79], THE VALUE, CAME TO RS.41/SFT IN 1981. IT IS ALSO NOTEWORTHY TO MENTION HERE THAT THE ASSESSEE HAD CLAIMED THE VALUE OF LAND AT RS.325/SFT AS ON 1.4.1981 WHEREAS THE AO HAD ADOPTED THE VALUE AT RS.24/SFT AS FMV AS ON 1.4.1981 BASED ON A REFERENCE OBTAINED FROM THE SUB- REGISTRARS OFFICE. THIS HAS BEEN CONTESTED BY THE ASSESSEE THAT THE PROPERTY REFERRED TO BY THE AO WAS LOCATED IN THE REA R PORTION OF BRIGADE ROAD WHICH WAS CONSIDERED TO BE PART OF A SLUM L IKE AREA NEAR SHOOLAY CIRCLE WHEREAS THE PROPERTY UNDER DISPU TE WAS SITUATED ON THE MAIN ROAD WHICH WAS FACING BRIGADE ROAD AND ALSO IN A PRIME LOCATION. THERE IS CONSIDERABLE FORCE IN THE CONTENTION OF THE ASSESSEE WHICH, OF COURSE, HAS BEEN CONVENIENTLY SIDE-TRACKED BY TH E AO. IN FACT, THE AO SHOULD HAVE DEALT WITH THE ISSUE ELABORATE LY AND RECORDED HIS REASONS FOR REJECTING THE ASSESSEES CLAIM ON THIS SCORE. HO WEVER, THERE WAS NO TRACE OF ANY SUCH WORTH DISCUSSION; INSTEAD, TH E ASSESSEES CONTENTION WAS BRUSHED ASIDE AS VAGUE. 8.2. AS HIGHLIGHTED BY THE LD. CIT (A), THE AO GOT MISTAKEN BY THE FACT THAT THE ORIGINAL ASSET WAS ONLY A VACANT SITE W HICH ATTRIBUTED, PERHAPS, TO COME TO A CONCLUSION TO ADOPT THE VALUE AT R S.24/SFT WHEREAS THE ASSESSEES CLAIM WAS THAT THE PROPERTY CONSISTED OF A MAIN BUILDING AND ALSO AN ADJOINED BUILDING RESIDED B Y SOME TENANTS. PAGE 9 OF 19 I TA NOS.425 & 562/BANG/2010 9 THE AO, IN HER REMAND REPORT, HAD FAIRLY CONCEDED THA T THE ASSESSEE HAD REFERRED A CASE LAW PUSHPA SOFAT (2002) 81 ITD 1 (CHD) (SMV) IN SUPPORT OF HER CLAIM THAT THE COST OF INDEXATION SH OULD BE CONSIDERED FROM THE YEAR OF ACQUISITION BY THE PREVIOUS OWNER AND NOT THE DATE ON WHICH THE PROPERTY DEVOLVED ON THE ASSESSEE AND AS THE ASSESSEE HAD NOT FURNISHED A COPY OF THE SAID ORDER ON W HICH SHE HAD RELIED ON, THE AO, TAKING CUE FROM THE PROVISIONS OF S .48 IN EXPLANATION (III), JUSTIFIED THAT THE AO HAD CORRECTLY CALCULATED THE INDEXED COST FROM THE YEAR IN WHICH THE PROPERTY FIRST CAME TO BE H ELD BY THE ASSESSEE [SOURCE: P 68 76 OF PB AR]. 8.2.1. HOWEVER, THE LD. CIT (A), REJECTING THE REGISTE RED VALUERS REPORT FOR THE REASONS RECORDED IN HIS IMPUGNED ORDER AND BY RELYING ON THE REMAND REPORT OF THE AO ON THE ISSUE, DETERMIN ED THE VALUE OF THE LAND AT RS.175/SFT AND BUILDING COST AT RS.5 LAKHS. TO ARRIVE AT THE FIGURE OF RS.175/SFT AS VALUE OF THE LAND AS ON 1.4.19 81, THE LD. CIT (A) TOOK REFUGE IN THE GUIDELINES LAID DOWN BY THE HO NBLE SUPREME COURT IN THE CASE OF CHIMANLAL HARGOVIND DAS V. SPL. LA O CITED SUPRA. 8.3. TAKING INTO ACCOUNT ALL THE ABOVE FACTS AND CIRCUM STANCES OF THE ISSUE AS DISCUSSED IN THE FORE-GOING PARAGRAPHS AND ALSO KEEPING THE PROVISIONS OF S.55A OF THE ACT IN VIEW, WE ARE OF THE CONSIDERED VIEW THAT THE ISSUE REQUIRES THROUGH INVESTIGA TION /VERIFICATION AND FRESH CONSIDERATION AT THE AOS LEVEL AND, ACCORDINGLY, THE ISSUE IS REMITTED BACK TO THE FILE OF THE AO ON TH E FOLLOWING GROUNDS, NAMELY: (I) THE ASSESSEE HAD STRONGLY OBJECTED TO THE VALUE OF LAND TO BE ADOPTED AT RS.24/SFT AS ON 1.4.1981; (II) THE ASSESSEES A R IN HIS LETTER DT.31.1.2008 REQUE STED THE AO TO REFER THE MATTER TO THE VALUATION OFFICER TO ASCERTAIN THE FAIR MARKET VALUE. HOWEVER, THE AOS PAGE 10 OF 19 I TA NOS.425 & 562/BANG/2010 10 STAND - THE BASIS FOR ADOPTING FMV OF RS.24/SFT AS ON 1.4.1981 BASED ON INFORMATION COLLECTED FROM SUB- REGISTRAR - DOESNT CARRY MUCH CONVICTION AS THE SU BJECT PROPERTY WAS ADORNED WITH A BUILDING WHEREAS THE SA LE INSTANCE QUOTED BY THE AO APPEARS TO BE A VACANT LA ND AND ALSO NOT IN THE NEIGHBORHOOD OF THE SUBJECT PROPERTY; (III) THE SUBJECT PROPERTY WAS LOCATED AT 70/71, BRIGADE ROAD CONSISTED OF A MAIN BUILDING WHEREAS THE AO APPEARS TO HAVE CONSIDERED THE SUBJECT PROPERTY AS A PIECE OF VACANT LAND AND HE HAD CITED ONLY A SINGLE SALE INSTANCE OF A VACANT LAND THAT TOO NOT IN THE VICIN ITY OF THE SUBJECT PROPERTY, BUT, A PROPERTY WHICH WAS SITUATED AT A CONSIDERABLE DISTANCE, NAMELY, NEARER TO SHOOLAY CIRCLE WHICH WAS BRANDED AS SURRENDERED BY SLUM; (IV) THE ASSESSEE HAD, IN HER ORIGINAL RETURN, ADOPTED T HE VALUE OF LAND AT RS.450/SFT, HOWEVER, IN THE REVISE D RETURN ADOPTED THE VALUE AT RS.325/SFT AND THE REGISTERED VALUERS REPORT FURNISHED BEFORE THE CIT (A), THE VALUE WAS ADOPTED AT RS.350/SFT FOR THE SI TE AND THE BUILDING VALUE AT RS.10 LAKHS WITH 10% LESS FOR FORCED SALE. THE AO, IN HER REMAND REPORT, SUBMITT ED THAT THE REGISTERED VALUER DEPOSED DURING THE REMAN D PROCEEDINGS THAT AS THERE WERE NO COMPARABLE INSTANCES IN THE VICINITY OF BRIGADE ROAD, HE HAD R ELIED ON MARKET INFORMATION AND TREND AND THE REAL ESTATE VALUES OF SIMILAR AREAS WHICH, IN OUR CONSIDERED VI EW, HAVE NO SANCTITY; (V) THE CIT (A), ON HIS PART, ESTIMATED THE VALUE OF LA ND AT RS.175/SFT AND TAKING INTO ACCOUNT THE BUILDING COS T OF RS.5 LAKHS WHICH HAS AGAIN ONLY ON ESTIMATION; (VI) AT THE REMAND PROCEEDINGS, THE AO HAS BEEN DEPRIVED OF PERUSING THE ORDER IN THE CASE OF PUSHPA SOFAT (2002) 81 ITD 1 (CHD) (SMV) TO CONSIDER THE ASSESSEES CONTENTIONS AS THE ASSESSEES A R HAD FA ILED TO FURNISH THE SAME; (VII) THE ISSUE HAS NOT PROPERLY BEEN DEALT WITH AT THE ASSESSMENT PROCEEDINGS BY THE AO AND THE ASSESSEE, PAGE 11 OF 19 I TA NOS.425 & 562/BANG/2010 11 ON HER PART, HAD NOT FURNISHED THE REQUIRED DOCUMENTARY EVIDENCES TO SUBSTANTIATE HER CLAIM. 8.4. ACCORDINGLY, THE AO IS DIRECTED TO LOOK INTO THE ISSUE AFRESH WITH REFERENCE TO THE GUIDELINES DETAILED SUPRA AND TO TAKE APPROPRIATE ACTION IN ACCORDANCE WITH THE PROVISIONS OF THE ACT AT T HAT RELEVANT PERIOD. THE AO SHALL BE AT LIBERTY TO INVOKE THE PRO VISIONS OF S.55A OF THE ACT, IF THE MATTER SO WARRANTS. THE ASSESSEE, ON HER P ART, FURNISHES ALL THE RELEVANT DOCUMENTARY EVIDENCE AT HER POSSESSION WHICH WOULD FACILITATE THE AO TO IMPLEMENT THE DIRECTIONS OF THIS B ENCH EXPEDITIOUSLY. IT IS ORDERED ACCORDINGLY. WE SHALL NOW TAKE UP THE ASSESSEES GR IEVANCES FOR ADJUDICATION. II. ITA NO.425/B/2010 [BY THE ASSESSEE]: 9. THE FIRST GROUND OF THE ASSESSEE BEING THAT THE CIT (A) OUGHT TO HAVE ACCEPTED THE ASSESSEES CONTENTION THAT SHE HAD SATISFIED THE CONDITIONS REQUIRED FOR CLAIMING DEDUCTION U/S 54 OF THE ACT. 9.1. BRIEFLY, IN THE ORIGINAL RETURN OF INCOME, THE ASSESSEE HAD CLAIMED DEDUCTION AT RS.39.60 LAKHS U/S 54F OF THE ACT AN D, SUBSEQUENTLY, IN THE REVISED RETURN, SHE CLAIMED DEDUCTIO N OF AN IDENTICAL AMOUNT U/S 54 OF THE ACT. HOWEVER, THE AO TO OK A STAND THAT AS THE ASSESSEE HAD SOLD 1/8 TH SHARE OF LAND IN A TOTAL AREA AD- MEASURING 14760 SFT AND THE CAPITAL ASSET SOLD WAS A LAND, THE ASSESSEE WAS ELIGIBLE FOR DEDUCTION U/S 54F OF THE ACT. AS DISCUSSED ABOVE, THE ASSESSEE HAD CLAIMED THE VALUE OF LAND RS.325/ SFT AS ON 1.4.1981, HOWEVER, THE AO DETERMINED THE VALUE OF L AND AT RS.24/SFT AS ON 1.4.1981. THE ASSESSEE HAD CLAIMED INDEXATION FROM 1981, BUT, PAGE 12 OF 19 I TA NOS.425 & 562/BANG/2010 12 THE AO TOOK A STAND THAT AS PER THE SALE DEED, THE PRO PERTY WAS RECEIVED BY THE ASSESSEE ONLY IN 2003 AND, HENCE, AS PER EXPLANATION (III) TO S.48, THE ASSESSEE WAS ELIGIBLE FOR INDEXATION F ROM THE FY 2003- 04 AS THE ASSESSEE WAS ELIGIBLE TO CLAIM DEDUCTION U/S 54F A ND, ACCORDINGLY, WORKED OUT THE TAXABLE CAPITAL GAINS AT RS. 27,15,991/- AS AGAINST RS.NIL DECLARED BY THE ASSESSEE. ACCORDING TO THE AO, THE ASSESSEE HAD NOT FURNISHED (I) PURCHASE DEED OF PROPERTY F OR CLAIMING EXEMPTION OF RS.39.60 LAKHS U/S 54F AND (II) PROOF OF CONSTRUCTION/RENOVATION ETC., THE LONG TERM CAPITAL GA INS WAS WORKED OUT AT RS.92.34,445/- WHICH WAS TREATED AS INCOME FROM C APITAL GAINS. 9.2. IT WAS CONTENDED BY THE ASSESSEE BEFORE THE FIRST AP PELLATE AUTHORITY THAT THE AO MISTOOK THE PROPERTY I.E., TH E ORIGINAL ASSET OWNED BY EIGHT PERSONS, BEING VACANT LAND AD-MEASURING 14760 SFT, RESULTING IN, ALLOWING THE CLAIM OF CAPITAL GAINS U/S 5 4F OF THE ACT. DURING THE APPELLATE PROCEEDINGS, COPIES OF GIFT DEED A S WELL AS THE VALUATION REPORT WERE FURNISHED, ACCORDING TO WHICH, T HE PROPERTY CONSISTED OF A MAIN BUILDING AND ALSO AN ADJOINED BUILD ING RESIDED BY SOME TENANTS AND ALSO SOME BY THE OWNERS. IT WAS, THEREF ORE, CONTENDED THAT THE ORIGINAL ASSET BEING A RESIDENTIAL H OUSE, DEDUCTION U/S 54 OF THE ACT SHOULD HAVE BEEN ALLOWED TO THE ASSESSE E. 9.3. AFTER ANALYZING THE PROVISIONS OF S.54 OF THE ACT , THE LD. CIT (A) HAD REJECTED THE ASSESSEES CLAIM ON THE FOLLOWING GROUND: (I) THE ASSESSEE HAD FAILED TO FULFILL THE CONDITIO N NO.IV, NAMELY, THE ASSESSEE HAS, WITHIN THE SPECIFIED PERIOD, PURCHASED/CONSTRUCTED ANOTHER RESIDENTIAL HOUSE(S). TO ILLUSTRATE FURTHER THE ASSESSEE HAD PURCHASED A VACANT SITE MEASURING 219 SQM FOR RS.39.60 LAKHS LOCATED AT 407, 1 ST STAGE, 2 ND PAGE 13 OF 19 I TA NOS.425 & 562/BANG/2010 13 BLOCK, HBR LAYOUT, BANGALORE AS PER PURCHASE DEED DATED 20.6.2005 AND NOT A RESIDENTIAL HOUSE AND THE ITIS REPORT ALSO CORROBORATES THAT THE LAND WAS ST ILL A VACANT SITE AS ON 27.10.2009 I.E., EVEN AFTER 4 YEARS FROM THE DATE OF TRANSFER OF THE ORIGINAL CAP ITAL ASSET I.E., 8.10.2004; 9.3.1. AN ALTERNATIVE PLEA WAS PUT-FORTH BEFORE THE AO AT THE REMAND STAGE TO THE EFFECT THAT THE ASSESSEE HAD INVESTED IN PURCHASE OF A FLAT ALONG WITH HER HUSBAND ON 24.12.2007 IN SP ENCER ROAD WHICH MAKES HER ELIGIBLE FOR CLAIMING EXEMPTION U/S 54 OF TH E ACT. THE CLAIM OF THE ASSESSEE HAS BEEN REJECTED BY THE AO FOR THE REASO NS RECORDED IN HER REMAND REPORT. 9.4. AFTER ANALYZING THE ASSESSEES REJOINDER AS WELL AS THE PROVISIONS OF S.54 (1) OF THE ACT, THE LD. CIT (A) HAS OBSERVED: 4.4.3. A CAREFUL ANALYSIS OF THE ABOVE WOULD REVEAL THAT THE EMPHASIS IS NOT ON THE SPENDING OF CAPITAL GAINS EARNED FROM THE TRANSFER OR ORIGINAL ASSET, BUT, INVESTMENT IN A SPECIFIC ASSET I.E., RESIDENTIAL HOUSE CALLED NEW ASSET EITHER THROUGH PURCHASE OR THROUGH CONSTRUCTION. THE AMOUNT OF EXEMPTION DIFFERS DEPENDING UPON THE COMPARATIVE EXPENDITURE BETWEEN THE INVESTMENT IN NEW ASSET AND CAPITAL GAINS FROM ORIGINAL ASSET. THUS, THE STRESS IS ON RESIDENTIAL HOUSE. UNFORTUNATELY, NO DEFINITION OF RESIDENTIAL HOUSE HAS BEEN PROVIDED IN THE ACT. SUCH DEFINITION AND DISCUSSION HAS BEEN MADE BY THE JURISDICTIONAL HIGH COURT IN THE CASE OF GLOBE THEATRE LTD. V. ABDUL GHANI AIR 1956 MYS 57 (AT 59) THAT IT HAS ALWAYS BEEN HELD THAT A MAN RESIDES WHERE HE LIVES AND HAS HOME. IT DENOTES A PLACE WHERE AN INDIVIDUAL EATS, DRINKS AND SLEEPS OR WHERE HIS FAMILY OR HIS SERVANTS EAT, DRINK AND SLEEP. PAGE 14 OF 19 I TA NOS.425 & 562/BANG/2010 14 BUT, SUCH A MEANING WOULD RESTRICT THE RESIDENTIAL HOUSE TO A SELF-OCCUPIED HOUSE ONLY. IN S.54, THE PHRASE RESIDENTIAL HOUSE WAS SUBSTITUTED BY F.A. 1982 W.E.F. AY 1983-84. ACCORDING TO THE CIRCULAR NO.346 DATED 30.6.1982 [138 ITR ST.13] IT WAS TO REMOVE THE HARDSHIPS BY DISPENSING WITH THE PRIOR CONDITION OF SELF-OCCUPATION OF THE ASSESSEE OR HIS PARENTS. BUT STILL THE INTENTION REMAINED, IE., THE OBJECT TO ENCOURAGE CONSTRUCTION OF RESIDENTIAL HOUSE. IF LEGAL HISTORY IS A GUIDE ALL THAT WAS REQUIRED WAS THAT THE PROPERTY SHOULD NOT HAVE BEEN USED BY THE ASSESSEE FOR BUSINESS OR PROFESSION OR SHOULD NOT HAVE BEEN LET OUT. S.54F ALSO SPEAKS OF RESIDENTIAL HOUSE APPARENTLY IN THE SAME SENSE. BUT A WORD OF CAUTION HERE. IT DOES NOT MEAN THAT THE POINT RELATING TO INVESTMENT SHOULD BE RELEGATED TO THE BACKGROUND. IT IS EQUALLY IMPORTANT BECAUSE FINANCE IS THE PRIME MOVER AND LUBRICANT OF PURCHASE/CONSTRUCTION AND UNLESS TIMELY INVESTMENT IS MADE, PURCHASE/ CONSTRUCTION MAY NOT BE POSSIBLE. THEREFORE, GIVING EMPHASIS TO ONE OF THEM AT THE COST OF ANOTHER WOULD BE UNJUSTIFIED. HOWEVER, THE DISCUSSION WAS ON PURCHASE AND CONSTRUCTION OF A RESIDENTIAL HOUSE THE WORDS USED IN 54F (1)/54 IS PURCHASED/CONSTRUCTED I.E., PAST TENSE OF WORDS PURCHASE/CONSTRUCT WHICH ITSELF DEMONSTRATE THAT SUCH PURCHASE AND CONSTRUCTION MUST HAVE BEEN COMPLETED WITHIN THE TIME SPECIFIED FOR THE PURPOSE OF PURCHASE/CONSTRUCTION OR OTHERWISE THE BENEFIT OF EXEMPTION U/S 54F/54 OF I.T. ACT WOULD NOT BE AVAILABLE TO THE ASSESSEE. THE ABOVE INFERENCE HAS BEEN DRAWN FROM THE ANALOGY OF THE ELUCIDATION OF WORD USED IN S.32(1) OF I.T. ACT IN THE DECISION OF JURISDICTIONAL HIGH COURT IN DY.CIT V. YELLAMMA DASAPPA HOSPITAL (2007) 290 ITR 353 (KAR) TO HOLD THAT TRIBUNAL WAS NOT CORRECT IN HOLDING THAT THE ASSESSEE WAS ENTITLED FOR THE CLAIM OF DEPRECIATION WHEN THE MACHINERIES WERE KEPT READY FOR USE, ALTHOUGH NOT USED DURING THE RELEVANT ACCOUNTING YEAR. PAGE 15 OF 19 I TA NOS.425 & 562/BANG/2010 15 APPLYING THIS LEGAL EXPOSITION TO THE FACTS OF THE CASE, THE IMPUGNED LAND LOCATED IN HBR LAYOUT CAN IN NO UNCERTAIN TERMS BE CALLED A RESIDENTIAL HOUSE. APPEAL ON THIS ISSUE IS DISMISSED. 10. NOT SATISFIED WITH THE REASONING OF THE LD. CIT(A ) IN REJECTING HER CLAIM, THE ASSESSEES A R ARGUED BEFORE THIS BENCH THAT THE CIT (A) OUGHT TO HAVE APPRECIATED THAT THE APPEL LANT HAVING MADE INVESTMENT ON THE RESIDENTIAL PROPERTY AND FOR THE RE ASONS BEYOND THE CONTROL OF THE ASSESSEE, NO CONSTRUCTION COULD BE MADE AND THE ASSESSEE THEREAFTER HAVING MADE THE INVESTMENT IN A FLA T, AND AS SUCH THE ASSESSEE HAD SATISFIED THE CONDITIONS U/S 54 OF THE ACT. IT WAS EXPRESSLY STRESSED DURING THE COURSE OF HEARING THAT THE P ROVISO TO SUB-SECTION (2) TO S.54 OF THE ACT HAS NOT BEEN EXPLORED BY THE AUTHORITIES BELOW WHILE CONSIDERING THE ASSESSEES CLAIM AND, THEREFORE, PLEADED THAT THE ISSUE MAY BE ADDRESSED TO I N LIEU OF THE SAME. 10.1 THE LD. D R SUPPORTED THE ORDERS OF THE INCOME T AX AUTHORITIES. 11. WE HAVE DULY CONSIDERED THE ISSUE AND ALSO GONE TH ROUGH THE STAND OF THE AO AS WELL AS THE REASONING OF THE LD . CIT (A) CITED SUPRA. IT IS A FACT THAT THE ASSESSEE HAD NOT PURCHASED/IN VESTED IN A RESIDENTIAL HOUSE WITHIN THE SPECIFIED PERIOD AS ENVISAG ED U/S 54 OF THE ACT. HOWEVER, THE AUTHORITIES BELOW HAVE NOT CONSIDERE D THE PROVISO TO SUB-SECTION (2) TO S.54 OF THE ACT WHILE DEALING WITH THE ASSESSEES CLAIM. IN VIEW OF THE ABOVE AND IN THE INTERESTS OF N ATURAL JUSTICE AND EQUITY THE ISSUE IS REMITTED BACK ON THE FILE OF THE AO FOR FRESH CONSIDERATION. IN THE MEANWHILE, THE ASSESSEE, THROUGH H ER A.R, IS PAGE 16 OF 19 I TA NOS.425 & 562/BANG/2010 16 DIRECTED TO PLACE ALL THE RELEVANT FACTS BEFORE THE AO FOR HIS CONSIDERATION. IT IS ORDERED ACCORDINGLY. 12. THE SECOND GROUND OF THE ASSESSEE IS THAT THE CIT (A) OUGHT TO HAVE APPRECIATED THAT THE SUBJECT LAND WAS LOCA TED, EVEN IN 1980, IN A PRIME PLACE AND OUGHT TO HAVE DIRECTED THE AO TO ADOPT RS.480/SFT INSTEAD OF RS.175/SFT. 13. AT THE OUTSET, WE WOULD LIKE TO REITERATE THAT THE ISSUE OF ADOPTING THE VALUE OF SUBJECT PROPERTY AS ON 1.4.1981 HAS BEEN REMITTED BACK TO THE FILE OF THE AO FOR FRESH CONSIDER ATION FOR THE DETAILED REASONS RECORDED SUPRA, AND, ACCORDINGLY, THE FI NDINGS REFERRED ABOVE HOLD GOOD FOR THIS GROUND TOO. IT I S ORDERED ACCORDINGLY. 14. IN HER ADDITIONAL GROUNDS, THE ASSESSEE HAS RAISED TH E FOLLOWING ISSUES, NAMELY: (I) COMMISSION AND LEGAL EXPENSES OF RS. 1,85,607 /- (II) COMPENSATION PAID TO TENANT RS.17,25,000/- WITHOUT PREJUDICE, THE CIT (A) OUGHT TO HAVE ALLOWE D THE COMPENSATION OF RS.17.25 LAKHS FOR WHICH THE AO HAD CONCEDED IN HER REMAND REPORT. 14.1. IT WAS CONTENDED THAT THE EXPENSES INCURRED WERE EXCLUSIVELY IN CONNECTION WITH THE SALE OF PROPERTY AND, ACCORDINGLY, LIABLE TO BE ALLOWED AS DEDUCTION U/S 48(II) OF THE AC T. WITH REGARD TO THE COMPENSATION OF RS.17.25 LAKHS PAID TO THE TENANTS, IT WAS SUBMITTED THAT THE COMPENSATION WAS PAID TO THE TENANTS TO HAVE THE SUBJECT PROPERTY FREE FROM ALL ENCUMBRANCE AND, THEREFO RE, PLEADED THAT THE SAME REQUIRES TO BE ALLOWED. PAGE 17 OF 19 I TA NOS.425 & 562/BANG/2010 17 15. WE HAVE CONSIDERED THE ASSESSEES SUBMISSION AND ALSO PERUSED THE REMAND REPORT OF THE AO. THE RELEVANT O BSERVATIONS OF THE AO ARE EXTRACTED AS UNDER: LEGAL FEE AND COMMISSION PAID: 3.1 FROM THE PERUSAL OF RECORDS AND THE SUBMISSIONS OF THE ASSESSEE, IT IS SEEN THAT THE SALE OF THE PROPERTY WAS NOT FREE FROM HASSLE. IT WAS SUBMITTED THAT THE PROPERTY WAS NEGOTIATED TO BE SOLD TO A CERTAIN FARAH BUILDERS WHICH DID NOT MATERIALIZE AND, HENCE, SOLD TO M/S.FRONTLINE BUILDCOM. HENCE, CERTAIN LEGAL EXPENSES COULD HAVE BEEN INCURRED ON ACCOUNT OF TRANSFER OF THE PROPERTY, BUT, HOW MUCH WAS SPENT COULD NOT BE SUBSTANTIATED BY THE ASSESSEE. AS FAR AS THE CLAIM FOR COMMISSION PAID IS CONCERNED, THE CLAIM COULD NOT BE SUPPORTED BY ANY EVIDENCE, NOR COULD IT BE ESTABLISHED TO WHOM THE COMMISSION WAS PAID. .. 3.3. COMPENSATION PAID TO EVICT THE TENANTS : THE ASSESSEE HAS CLAIMED AN AMOUNT OF RS.4,75,000/- AS BEING COMPENSATION PAID BY CHEQUE FOR EVICTION OF TENANTS IN HER RETURN FILED ON 21.10.2005. SUBSEQUENTLY, THE ASSESSEE FILED A REVISED RETURN OF INCOME ON 12.3.2007 MAKING CERTAIN CORRECTIONS OF TYPOGRAPHICAL MISTAKES THAT HAD CREPT INTO THE ORIGINAL RETURN AND WHEREIN THE COMPENSATION PAID TO EVICT TENANTS WAS ENHANCED TO RS.17,25,000/-NOW, ON BEING REMANDED FOR A REPORT BY THE CIT (A), THE ASSESSEE HAS SUBMITTED THE DECLARATION ON STAMP PAPER OF TWO PERSONS STATED T BE TENANTS OF THE ERSTWHILE PROPERTY AT BRIGADE ROAD. THE DETAILS ARE AS UNDER: PAGE 18 OF 19 I TA NOS.425 & 562/BANG/2010 18 (1) SYED NAZEER FOR RS.1,87,500/- (BEING ASSESSEES SHARE) VIDE CHEQUE NO.569008 PAID ON 20.8.2004 (2) SYED MUNEER FOR RS.62,500/- VIDE CHEQUE NO.569007 PAID ON 19.8.2004. THE ASSESSEES A R EXPRESSED HIS INABILITY TO FURNISH PROOF FROM SUCH TENANTS. BOTH THE ABOVE AMOUNTS ADD UP-TO RS.2,50,000/- AS AGAINST THE ORIGINAL CLAIM OF RS.4,75,000/-. 15.1. HOWEVER, THE LD. CIT (A), IN HIS FINDINGS BY TA KING REFUGE UNDER THE RULINGS OF THE HONBLE JURISDICTIONAL HIGH CO URT IN THE CASE OF CIT V. RARJA SETTY (R) (1986) 159 ITR 797 (KAR) AND THE HONBLE DELHI HIGH COURT IN THE CASE OF ASHOK SOI V. CIT (2004) 192 CTR 535 (DEL), HAD OBSERVED THAT SUCH PAYMENTS HAVE BEEN CONSIDERED DIS ALLOWABLE. 15.2. DURING THE COURSE OF HEARING BEFORE THIS BENCH, THE LD. A R FURNISHED A PAPER BOOK WHICH CONTAINED BANK STATEMENTS AND RECEIPT CUM-LETTER OF DELIVERY OF VACANT POSSESSION [COURTESY: P 81 - 83]. HOWEVER, ON A GLIMPSE OF THE SAME, IT HAS BEEN OBSERVED THAT THE ASSESSEE HAD ISSUED CHEQUES TO SYED MUNEER AND SYED NAZEER ETC., WHEREAS SYED NAZEER IN HIS RECEIPT CLAIMED THAT I HAV E NO FURTHER CLAIM WHATSOEVER AGAINST SRI SYED SAJJID OR ANY OF HER HEIRS OR FAMILY MEMBERS OR ANYBODY . LIKEWISE, SYED MUNNER IN HIS RECEIPT ALSO CLAIMED THAT I HAVE NO FURTHER CLAIM WHATSOEVER AGAINST SMT.NASEEMA HASHIM THESE ASSERTIONS OF THE ALLEGED TENANTS, IN OUR CONSIDERED VIEW, REQUIRES FURTHER INVESTIGATION TO ASCERTAIN AS TO WHETHER THIS HAS ANY REFERENCE TO HANDING OVER OF THE VACANT POSSESSION OF THE SUBJECT PROPERTY. HOWEVER, THE ASSESSEES A R DURING THE COURSE OF REMAND PROCEEDINGS SUBMITTED THE D ECLARATION ON STAMP PAPERS OF TWO PERSONS ALLEGED TO HAVE BEEN TENANT S OF THE SAID PAGE 19 OF 19 I TA NOS.425 & 562/BANG/2010 19 PROPERTY WHICH AMOUNTED TO ONLY (ASSESSEES SHARE) RS.2.5 L AKHS ONLY AS AGAINST THE ASSESSEES CLAIM OF RS.17.25 LAKHS. 15.3. IN VIEW OF THE CONFLICTING CLAIM OF THE ASSESSEE, THIS ISSUE REQUIRES A DETAILED VERIFICATION/INVESTIGATION. TO F ACILITATE THE AO TO CONDUCT FURTHER VERIFICATION, THE ISSUE IS REMANDED BACK O N THE FILE OF THE AO WITH A SPECIFIC DIRECTION TO LOOK INTO ALL THESE ASPECTS AND TO TAKE APPROPRIATE ACTION IN ACCORDANCE WITH THE PROVISI ONS OF THE ACT, OF COURSE, AFTER AFFORDING A REASONABLE OPPORTUNITY TO T HE ASSESSEE OF BEING HEARD. IT IS ORDERED ACCORDINGLY. 16. IN THE RESULT : (1) THE REVENUES APPEAL IS TREATED AS ALLOWED FOR STATISTICAL PURPOSES; AND (2) THE ASSESSEES APPEAL IS TREATED AS P ARTLY ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 20 TH DAY OF DECEMBER, 2011 SD/- SD/- (N BARATHVAJA SANKAR) (GEORGE GEORGE K) VICE PRESIDENT JUDICIAL MEMBER COPY TO:- 1. THE REVENUE 2. THE ASSESSEE 3. THE CIT CONCERNED 4. THE CIT(A) CONCERNED 5. THE DR 6. GF MSP/- BY ORDER ASST. REGISTRAR, ITAT, BANGALORE.