Shri Rahul Sushilkumar Bafna, Jalgaon V. Joint CIT, Range-1, Jalgaon

ITA 432/PUN/2013

• Counselvise Citation: [2017] 126 COUNSELVISE.COM (IT) 7422 (ITAT-PUNE)
• Duration Of Justice: 4 year(s) 7 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-09-2017
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Next Hearing Date: 14-09-2017
• Assessment Year: 2009-2010
• Appeal Filed On: 14-02-2013
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: MUKESH JHA
• Keywords: Sale consideration of property below Jantri Value; Value adopted by valuation officer; Capital asset; Business income; Fair market value; Valuation report
• Section: 50C; 11

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, PUNE . , , , BEFORE SHRI D. KARUNAKARA RAO , AM AND SHRI VIKAS AWASTHY, JM . / I TA NO. 432 /PUN/20 13 / ASSESSMENT YEAR : 2009 - 10 SHRI RAHUL SUSHILKUMAR BAFNA NAYANTARA, 91,SUBHAS CHOWK, 96, SUBHAS CHOWK JALGAON, PIN - 425 001 PAN : AIHPB 2379N .... / APPELLANT / V/S. JOINT COMMISSIONER OF INCOME TAX, RANGE - 1, JALGAON. / RESPONDENT . / ITA NO. 558/PUN/2013 / ASSESSMENT YEAR : 2009 - 10 DEPUTY COMMISSIONER OF INCOME TAX, CIRCLE - 1, JALGAON .... / APPELLANT / V/S. SHRI RAHUL SUSHILKUMAR BAFNA NAYANTARA, 91,SUBHAS CHOWK, 96, SUBHAS CHOWK JALGAON, PIN - 425 001 PAN : AIHPB 2379N / RESPONDENT A SSESSEE BY : SHRI SUNIL GANOO REVENUE BY : SHRI MUKESH JHA / DATE OF HEARING : 14.09.2017 / DATE OF PRONOUNCEMENT : 22. 09.2017 2 ITA NOS. 432 & 558/PUN/2013 A.Y. 2009 - 10 / ORDER PER VIKAS AWASTHY, JM THESE CROSS - APPEALS BY ASSESSEE AND DEPARTMENT ARE DIRECTED AGAINST THE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS) - II, NASHIK DATED 31.12.2012 FOR ASSESSMENT YEAR 2009 - 10. 2. THE BRIEF FACTS OF THE CASE AS EMANATING FROM THE RECORDS ARE : THE ASSESSEE IN ITS RETURN OF INCO ME FOR IMPUGNED ASSESSMENT YEAR DISCLOSED INCOME FROM SALE OF LAND AS SHORT TERM CAPITAL GAIN. THE ASSESSEE SOLD HIS SHARE IN LAND TO M/S. BAFNA BUILDERS & LAND DEVELOPERS VIDE D EVELOPMENT A GREEMENT DATED 02.04.2008. DURING THE COURSE OF SCRUTINY ASSESSMENT PROCEEDINGS, THE ASSESSING OFFICER OBSERVED THAT THE ASSESSEE HA S TRANSFERRED HIS 1/5 TH SHARE IN LAND TO M/S. BAFNA BUILDER S & LAND DEVELOPERS AT PRICE LESS THAN THE MARKET VALUE OF PROPERTY. THE ASSESSING OFFICER OBSERVED THAT AS AGAINST MARKET VALUE OF PROPERTY. THE ASSESSING OFFICER OBSERVED THAT AS AGAINST MARKET VALUE OF RS.13,37,72,550/ - AS PER STAMP VALUATION AUTHORITIES , T HE ASSESSEE ALONG WITH OTHER CO - OWNERS H A S SOLD THE LAND FOR RS. 5,00,00,000/ - TO M/S. BAFNA BUIL DERS & LAND DEVELOPERS, A GROUP CONCERN . THE MATTER WAS REFERRED TO THE VALUATION OFFICER UNDER SECTION 50C OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT) . HOWEVER, DURING PENDENCY OF P ROCEEDINGS BEFORE ASSESSING OFFICER, THE REPORT O F DEPARTMENTAL VALUATION OFFICER ( DVO ) WAS NOT RECEIVED. THE ASSESSING OFFICER DETERMINED THE ASSESSEES SHARE IN PROPERTY AT RS.2,67,54,510/ - . THE ASSESSING OFFICER AFTER REDUCING THE AMOUNT DISCLOSED BY ASSESSEE AT RS.1,00,00,000/ - M ADE ADDITION OF REMAINING AMOUNT RS. 1,67,54,510/ - . 3 ITA NOS. 432 & 558/PUN/2013 A.Y. 2009 - 10 3. AGGRIEVED BY THE ASSESSMENT ORDER DATED 21.12.2011, ASSESSEE FILED APPEAL BEFORE THE COMMISSIONER OF INCOME TAX (APPEALS). DURING THE PROCEEDINGS BEFORE COMMISSIONER OF INCOME TAX (APPEALS), THE DVO SUBMITTED HIS RE PORT. THE DVO DETERMINED THE FAIR MARKET VALUE OF THE PROPERTY AT RS. 6,72,51,553/ - . THE SHARE OF ASSESSEE ACCORDING TO VALUATION MADE BY DVO WAS COMPUTED AT RS. 1,34,50,310/ - . THE COMMISSIONER OF INCOME TAX (APPEALS) ACCEPTED DVOS REPORT AND GRANTED RELI EF TO THE ASSESSEE BY SUSTAINING ADDITION ONLY TO THE EXTENT OF DIFFERENCE BETWEEN VALUE OFFERED BY ASSESSEE AND VALUE OF PROPERTY DETERMINED BY DVO . 4. AGAINST THE FINDINGS OF COMMISSIONER OF INCOME TAX (APPEALS), BOTH, THE ASSESSEE AND REVENUE ARE I N APPEAL BEFORE TRIBUNAL. 5. SHRI SUNIL GANOO APPEARING ON BEHALF OF THE ASSESSEE SUBMITTED THAT AUTHORITIES BELOW HAVE ERRED IN COMING TO THE CONCLUSION THAT THE THAT AUTHORITIES BELOW HAVE ERRED IN COMING TO THE CONCLUSION THAT THE ASSESSEE IS HAVING 1/5 TH SHARE IN THE PROPERTY. THE LD. AR REFERRING TO THE VALUATION REPORT FURNISHED BY DVO , PLACED ON RECORD AT PAGE NO. 118 TO 129 OF THE PAPER BOOK SUBMITTED THAT ASSESSEE WAS NEVER CO - OWNER OF ANY PIECE OF LAND SOLD TO M/S. BAFNA BUILDERS & LAND DEVELOPER S. THE LD. AR POINTED THAT THE DETAILS OF PROPERT IES MENTIONED AT PAGE NO. 120 AND 129 OF THE PAPER BOOK SHOW THAT THERE ARE FOUR PARCELS OF LAND WHICH ARE S UBJECT MATTER OF VALUATION. THE LAND AT SERIAL NO. 1 OF DVOS REPORT I.E FINAL PLOT NO.529, SURVE Y NO.747/1+2/748+748/A/1+2 +749, C.S. NO. 7319 AND 7320, NASHIK ADMEASURING 7,441.35 SQM IS JOINT LY OWNED BY (I) SMT. TARADEVI RATANLAL BAFNA (II) SHRI RAJKUMAR RATANLAL BAFNA (III) SHRI SUSHILKUMAR KASTURCHAND BAFNA AND (IV) SHRI SIDDHARTH RATANLAL BAFNA. THE PROPERTIES MENTIONED IN DVOS REPORT AT SERIAL NO.2 I.E BINSHETI AMINITIES PLOT SURVEY NO.747/1 4 ITA NOS. 432 & 558/PUN/2013 A.Y. 2009 - 10 +2/748+748/A/1+2+749, HAVING C.T.S NO.7321, 7333 AND 7334, NASHIK , ADMEASURING 421.92 SQM., SERIAL NO. 3 I.E PLOT NO.40, SURVEY NO. 747/1 +2/748+748/A/1+2+749, HAVING C.T.S NO. 7321,7333 AND 7334, NASHIK, ADMEASURING 725.22 SQM. AND SERIAL NO.4 , ROAD WIDENING FSI ADMEASURING 290.08 SQM. OF NASHIK WITHIN CORPORATION LIMITS OF NASHIK, ADMEASURING 290.08 SQM. W ERE THE PROPERTIES EXCLUSIVELY OWNED BY THE ASSESSEE. THE SUBMISSIONS MADE BY ASSESSEE BEFORE THE ASSESSING OFFICER THAT HE IS ONE OF T HE CO - OWNERS OF THE PROPERTIES I S AGAINST THE FACTS. THE SUBMISSION MADE BY ASSESSEE BEFORE LOWER AUTHORITIES WAS UNDER WRONG ASSUMPTION OF FACTS AND WAS MADE INADVERTENTLY. THE LD. AR SUBMITTED THAT AS PER VALUATION REPORT, AGGREGATE VALUE OF THE THREE PROPERTIES OWNED BY ASSESSEE MENTIONED AT SERIAL NO. 2,3 AND 4 OF THE VALUATION REPORT AT PAGE NO. 129 OF THE PAPER BOOK IS RS.1.07,41,941/ - . AS PER VALUATION REPORT, FAIR MARKET VALUE OF THE THREE PROPERTIES IS AS UNDER : THE THREE PROPERTIES IS AS UNDER : SL. NO. PROPERTY F.M.V OF THE PROPERTY IN RS. 2. BINSHETI AMINITIES PLOT SURVEY NO.747/1+2/748+748/A/1+2+749, HAVING C.T.S NO.7321, 7333 AND 7334, NASHIK, RS.32,04,060/ - 3. PLOT NO.40, SURVEY NO. 747/1 +2/748+748/A/1+2+749, HAVING C.T.S NO. 7321,7333 AND 7334, ALONG WITH THE ROAD WIDENING FSI ADMEASURING 290.08 SQM. O F NASHIK WITHIN THE CORPORATION LIMITS OF NASHIK, RS.55,07,321/ - 4. ROAD WIDENING FSI ADMEASURING 290.08 SQM. OF NASHIK WITHIN CORPORATION LIMITS OF NASHIK RS.20,30,560/ - TOTAL RS.1,07,41,941/ - . 5.1 THE LD. AR CONTENDED THAT T HE ASSESSEE IN HIS RETURN OF INCOME HAS DECLARED THE VALUE OF LAND SOLD AS RS.1,00,00,000/ - . THE DIFFERENCE BETWEEN VALUE OF LAND DETERMINED BY DVO AND THE VALUE OFFERED BY 5 ITA NOS. 432 & 558/PUN/2013 A.Y. 2009 - 10 ASSESSEE IN RETURN OF INCOME IS LESS THAN 10%. IT IS A WELL SETTLE D LAW THAT WHE R E THE DIFFERENCE IN THE VALUE OF PROPERTY AS DISCLOSED BY THE ASSESSEE AND THE VALUE DETERMI NED UNDER PROVISIONS OF SECTION 50C OF THE ACT IS LESS THAN 10%, NO ADDITION IS TO BE MADE. THE LD. AR IN SUPPORT OF HIS SUBMISSIONS PLACED RELIANCE ON THE DECISION OF PUNE BENCH OF THE TRIBUNAL IN THE CASE OF RAHUL CONSTRUCTIONS VS. DEPUTY COMMISSIONER OF INCOME TAX REPORTED IN 38 DTR 19. 5.2 THE LD. AR PO INTED THAT THE ASSESSEE IN THE A DDITIONAL GROUND RAISED PRAYS FOR TREATING THE INCOME FROM SALE OF LAND TO M/S. BAFNA BUILDERS AND LAND DEVELOPERS AS BUSINESS INCOME. IF THE LAND IS TREATED AS BUSINESS ASSET, THE PROVISIONS OF SEC. 50C WOULD NOT GET ATTRACTED. 6. ON THE OTHER HAND, SHRI MUKESH JHA REPRESENTING THE DEPARTMENT VEHEMENTLY OPPOSED THE ORDER OF COMMISSIONER OF INCOME DEPARTMENT VEHEMENTLY OPPOSED THE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS) IN ADOPTING VALUE OF PROPERTY AS DETERMINED BY THE DVO. THE LD. DR SUBMITTED THAT IT IS WELL ESTABLISHED FACT THAT IMMOVABLE PROPERTIES ARE NORMALLY SOLD ABOVE THE COLLECTOR RATE . HOWEVER, TO CIRCUMVENT THE PAYMENT OF HIGH REGISTRATION CHARGES, THE VALUE OF PROPERTY DISCLOSED IN THE REGISTERED DOCUMENT IS FAR LESS THAN THE ACTUAL CONSIDERATION . HOWEVER, TO ENSURE THAT THE PROP ERTIES ARE REGISTERED AT CIRCLE RATE S , THE COLLECTOR ISSUE S NOTIFICATION DECLARING THE VALUE OF PROPERTY FOR STAMP DUTY PURPOSES FROM TIME TO TIME. IN THE PRESENT CA SE, THE AGREEMENT WAS ENTERED BETWEEN THE PARTIES FOR SALE OF LAND ON 27.12.2007. HOWEVER, THE AGREEMENT WAS REGISTERED ON 02.04.2008. IT IS THE VALUE OF PROPERTY AS ON T HE DATE OF REGISTRATION THAT I S TO BE CONSIDERED AND NOT THE DATE OF EXECUTION OF AGREEMENT. THE LD. DR SUBMITTED THAT THE AGREEMENT DATED 27/12/2007 IS AN UNREGISTERED 6 ITA NOS. 432 & 558/PUN/2013 A.Y. 2009 - 10 DOCUMENT, THEREFORE, NO RELIANCE CAN BE PLACED ON SAME. THE ASSESSING OFFICER ARRIVED AT THE MARKET VALUE OF PROPERTY AT RS.13,37,72,550/ - ON THE BASIS OF STAMP VALUATION. THE 1/5 TH SHARE OF ASSESSEE IN THE PROPERTY IS THUS VALUED AT RS.2,6 7,54,510/ - . THE ASSESSEE IN HIS RETURN OF INCOME DECLARED ONLY RS.1,00,00,000/ - . THE AS SESSING OFFICER MADE ADDITION OF THE DIFFERENCE BETWEEN THE VALUE DECLARED BY THE ASSESSEE AND THE VALUE DETERMINED BY AO ON THE BASIS OF STAMP DUTY RATE. THE LD. DR SUBMITTED THAT A PERUSAL OF DVOS REPORT REVEAL THAT DVO HAS NOT TAKEN INTO CONSIDERATION ALL THE RELEVANT FACTORS WHILE ASCERTAINING FAIR MARKET VALUE, HENCE THE SAME HAS TO BE IGNORED. THE LD. DR PRAYED FOR REVERSING THE FIN DINGS OF COMMISSIONER OF INCOME TAX (APPEALS) AND RESTORING THE ADDITION MADE BY THE ASSESSING OFFICER. 6. 1 THE LD. DR CONTENDED THAT THE ASSESSEE BEFORE THE TRIBUNAL HAS RAISED ALTOGETHER NEW PLEA THAT THE ASSESSEE IS NOT A CO - OWNER OF THE PROPERTY SOLD TO M/S. BAF NA BUILDERS & LAND DEVELOPERS. THE ASSESSEE NOWHERE BEFORE THE AUTHORITIES BELOW HAVE STATED THAT HE EXCLUSIVELY OWN S THREE PROPERTIES OUT OF FOUR SOLD TO M/S. BAFNA BUILDERS & LAND DEVELOPERS. 7. THE LD. AR CONTROVERTING THE SUBMISSION S MADE ON BEHALF OF DEPARTMENT CONTENDED THAT FACTUAL ERROR HAS BEEN COMMITTED BY BOTH THE AUTHORITIES BELOW , AS WELL AS , THE ASSESSEE IN APPRECIATING THE FACTS. THE LD. AR REFERRED TO COPY OF SALE DEED DATED 31.01.2007 IN RESPECT OF PROPERTY BE AR ING SURVEY NO. 747/1+2/748+748/A/1+2+749 (CTS NO. 7321, 7333, 7334) ADMEASURING AREA 421.91 SQM. AT NASIK AT PAGE NO. 7 TO 42 OF THE PAPER BOOK TO SHOW THAT THE ASSESSEE HAD PURCHASED THE SAID PROPERTY FROM SHRI NARAYAN SADASHIV LAWAHATE AND OTHERS. 7 ITA NOS. 432 & 558/PUN/2013 A.Y. 2009 - 10 THE LD. AR FURT HER REFERRED TO SALE AGREEMENT DA TED 31.01.2007 AT PAGE NO. 43 TO 76 OF THE PAPER BOOK TO SHOW THAT ASSESSEE HAD PURCHASED PROPERTY BEARING SURVEY NO.747/1+2+748+748/A/1+2+749 (CTS NO.7321, 7333, 7334) ADMEASURING 725.22 SQM. FROM SHRI RAJENDRA NARAYAN LAV HATE (HUF). THE LD. AR POINTED THAT DOCUMENTS ON RECORD CLEARLY SHOW THAT THREE PARCELS OF LAND SOLD BY THE ASSESSEE TO M/S. BAFNA BUILDERS & LAND DEVELOPERS WERE EXCLUSIVELY OWNED BY ASSESSEE. THE LD. AR FURTHER STATED AT THE BAR THAT ASSESSEE HAD NO SHA RE OR INTEREST WHATSOEVER IN THE 4 TH PROPERTY SOLD TO M/S. BAFNA BUILDERS & LAND DEVELOPERS BEARING PLOT NO. 529, SURVEY NO. 747/1+2/748+748/A/1+2+749 ADMEASURING AREA 7,441.35 SQM. THE LD. AR CONTENDED THAT A PERUSAL OF DVOS REPORT WOULD MAKE IT CLEAR THAT THERE ARE FOUR PROPERTIES WHICH ARE SEPARATELY VALUED BY DVO. IT IS ONLY THE VALUE OF PROPERTIES OWNED BY ASSESSEE THAT ARE TO BE TAKEN INTO ACCOUNT WHILE DETERMINING CAPITAL GAIN S IN THE HANDS OF ASSESSEE. 8. WE HAVE HEARD THE SUBMISSIONS MA DE BY REPRESENTATIVE OF RIVAL SIDES AND HAVE PERUSED THE ORDERS OF AUTHORITIES BELOW. THE ASSESSEE IS IN APPEAL AGAINST THE FINDINGS OF COMMISSIONER OF INCOME TAX (APPEALS) IN NOT ACCEPTING THE VALUE OF PROPERTY AS DECLARED BY THE ASSESSEE IN RETURN OF IN COME. FURTHER, THE GRIEVANCE OF ASSESSEE IS THAT AS PER DVOS REPORT, THE VALUE OF PROPERTY TRANSFERRED TO M/S. BAFNA BUILDERS & LAN D DEVELOPERS IS APPROXIMATELY RS. 1,07 , 41 , 941 / - . THE A SSESSEE HAS DECLARED THE VALUE OF PROPERTY AS RS. 1,00,00,000/ - . THE DIFFEREN CE BETWEEN VALUE DECLARED BY ASSESSEE AND VALUE DETERMINED BY DVO IS MERELY RS. 7,42,941 / - I.E LESS THAN 10% OF THE VALUE DECLARED , THEREFORE, NO ADDITION SHOULD BE MADE. 8 ITA NOS. 432 & 558/PUN/2013 A.Y. 2009 - 10 9. ON THE OTHER HAND, THE DEPARTMENT IN APPEAL HAS ASSAILED THE FINDINGS OF COMMISSIONER OF INCOME TAX(APPEALS) IN ADOPTING FAIR MARKET VALUE OF PROPERTY AS DETERMINED BY DVO AS AGAINST FAIR MARKET VALUE ARRIVED AT BY THE ASSESSING OFFICER ON THE BASIS OF STAMP DUTY RATES. THE REVENUE HAS PRAYED FOR ADOPTING FAIR MARKET VALUE OF PROPERTY AS DETERMINED BY ASSESSING OFFICER. 10. A PERUSAL OF DVOS REPORT SHOW THAT THERE ARE FOUR PARCELS OF LAND WHICH WERE SUBJECT MATTER OF VALUATION. ALL THE FOUR PARCELS OF LAND WERE TRANSFER RED BY THE ASSESSEE AND OTHER MEMBERS OF BAFNA FAMILY TO M/S. BAFNA B UILDERS & LAND DEVELOPERS VIDE DEVELOPMENT A GREEMENT DATED 02.04.2008 ( PLACED ON RECORD AT PAGE NO. 77 TO 115 OF THE PAPER BOOK ) . THE DESCRIPTION OF THE PROPERTIES TRANSFERRED TO M/S. BAFNA BUILDERS & LAND DEVELOPERS SHOWS THAT THERE ARE FOUR PROPERTIES . IT HAS BEEN CONTENDED BEFORE US FOR THE FIRST TIME THAT ASSESSEE IS SOLE OWNER OF CONTENDED BEFORE US FOR THE FIRST TIME THAT ASSESSEE IS SOLE OWNER OF PROPERTIES DESCRIBED IN DVOS REPORT AT SERIAL NO. 2,3 AND 4 , AT PAGE NO. 129 OF THE PAPER BOOK. THE DETAILS OF PROPERTIES HAVE ALREADY BEEN GIVEN HEREIN ABOVE IN PARA 5. PURPORTEDLY, T HE ASSESSEE IS NOT A CO - OWNER OF PROPERTY DESCRIBED AT SERIAL NO. 1 IN THE DVOS REPORT. T HESE FACTS WERE NOT BROUGHT TO THE KNOWLEDGE OF AUTHORITIES BELOW. THESE FACTS HAVE BEEN HIGHLIGHTED BY ASSESSEE BEFORE THE TRIBUNAL OF THE FIRST TIME. HENCE, THESE FACTS ARE REQUIRED TO BE VERIFIED. 11 . IN SO FAR AS QUESTION WHETHER REPORT OF DVO OR FAIR MARKET VALUE AS DETERMINED BY THE ASSESSING OFFICER IS TO BE ADOPTED? IT IS A SETTLED PRINCIPLE THAT W HERE REFERENCE IS MADE TO DVO U/S. 5 0C OF THE ACT, FAIR MARKET VALUE AS DETERMINED BY DVO IS BINDING ON DEPARTMENT [COMMISSIONER OF INCOME TAX VS. INDRA SWAROOP BHATNAGAR 349 ITR 210 9 ITA NOS. 432 & 558/PUN/2013 A.Y. 2009 - 10 ( ALL ) AND PR. COMMISSIONER OF INCOME TAX VS. RA V JIBHAI NAGJIBHAI THESIA 388 ITR 358 ( GUJ.)]. THEREFORE, WE DO NOT FIND ANY INFIRMITY IN THE FINDINGS OF COMMISSIONER OF INCOME TAX (APPEALS) IN ADOPTING DVOS REPORT . TH US , THE SOLITARY ISSUE RAISED BY THE DEPARTMENT IN APPEAL IS DISMISSED. 12 . IN THE RESULT, APPEAL OF THE DEPARTMENT IS D ISMISSED. 1 3 . THE ISSUE REGARDING VALUE OF PROPERTY TRANSFERRED TO M/S. BAFNA BUILDERS AND LAND DEVELOPERS IS CONCERNED, IT CAN ONLY BE SETTLED AFTER VERIFICATION OF RECORDS . ACCORDINGLY, WE DEEM IT APPROPRIATE TO REMIT THE ISSUE BACK TO THE FILE OF ASSESSING OFFICER TO EXAMINE DOCUMENTS ON RECORD AND TO ASCERTAIN WHETHER THE ASSESSEE WAS CO - OWNER OF THE PROPERTI ES MENTIONED IN DVOS REPORT THAT WERE SUBJECT MATTER OF SALE TO M/S. BAFNA BUILDERS & LAND DEVELOPERS . O R THE ASSESSEE WAS EXCLUSIVE OWNER OF THE THREE PARCELS OF LAND AS HAS BEEN CONTENDED BY EXCLUSIVE OWNER OF THE THREE PARCELS OF LAND AS HAS BEEN CONTENDED BY THE LD. AR. AFTER EXAMINING THE OWNERSHIP OF VARIOUS PARCELS OF LAND, THE ASSESSING OFFICER SHALL DETERMINE CAPITAL GAIN ON THE BASIS OF FAIR MARKET VALUE DETERMINED BY DVO. IF THE DIFFERENCE BETWEEN THE VALUE AS DECLARED BY THE ASSESSEE AND THE VALUE DETERMINED BY DVO IS LESS THAN 10%, NO ADJUSTMENT IS REQUIRED TO BE MADE. OUR THIS VIEW IS SUPPORTED BY THE ORDER OF PUNE BENCH OF TRIBUNAL IN THE CASE OF RAHUL CONSTRUCTIONS VS. DEPUTY COMMISSIONER OF I NCOME TAX (SUPRA.). THE ASSESSING OFFICER WHILE RE - EXAMINING THE ISSUE IN THE LIGHT OF OUR ABOVE DIRECTIONS SHALL GRANT OPPORTUNITY OF HEARING TO THE ASSESSEE, IN ACCORDANCE WITH LAW. ACCORDINGLY, THE GROUND NO. 1 AND 2 OF MODIFIED / CONCISE GROUNDS OF AP PEAL ARE ALLOWED FOR STATISTICAL PURPOSES IN THE AFORESAID TERMS. 10 ITA NOS. 432 & 558/PUN/2013 A.Y. 2009 - 10 14. IN GROUND NO. 3, THE ASSESSEE HAS ASSAILED THE ADDITION OF RS.34,50,310/ - O N THE GROUND THAT THE DATE OF VALUATION OF PROPERTY SHOULD HAVE BEEN DATE OF TRANSFER OF PROPERTY AND NOT THE DATE OF REGISTRATION. ACCORDING TO THE ASSESSEE THE PROPERTY WAS TRANSFERRED ON 01.08.2017 THOUGH THE DEVELOPMENT AGREEMENT WAS EXECUTED ON A LATER DATE I.E 02.04.2008. IT HAS BEEN CONTENDED THAT STAMP VALUATION RATES WERE SUBSTANTIALLY INCREASED BETWEEN THE DATE OF TRANSFER OF PROPERTY AND THE DATE OF EXECUTION OF DEVELOPMENT AGREEMENT. THE LD. AR OF ASSESSEE TO SUPPORT HIS SUBMISSION PLACED RELIANCE ON CONSENT LETTER DATED 01.08.2007 . WE DO NOT FIND MERIT IN THE SUBMISSION OF THE LD. AR. THERE IS NO COGENT EVIDENCE ON RECORD TO INDICATE PHYSICAL TRANSFER OF LAND BEFORE THE DATE OF REVISION OF STAMP VALUATION RATES OR EXECUTION AND REGISTRATION OF DEVELOPMENT AGREEMENT. A PERUSAL OF DEVELOPMENT AGREEMENT REVEAL THAT THERE IS NO MENTION OF ANY CONSENT LETTER DATED 01.08.2007 INDICATING TRANSFER OF PHYSICAL POSSESSION OF LAND TO THE BUYERS. THOUGH THE CONSENT LETTER DATED 01.08.2007 IS NOT PART OF PAPER BOOK FILED BEFORE THE TRIBUNAL, WE ARE OF THE VIEW THAT MUCH RELIANCE CANNOT BE PLACED ON SUCH COMMUNICATION. IT IS AN UNDISPUTED FACT THAT TRANSAC TION OF SALE OF LAND IS BETWEEN ASSESSEE AND THE FIRM , WHEREIN PARTNERS OF THE FIRM ARE CLOSELY RELATED TO THE ASSESSEE. THUS, THE TRANSFER OF LAND IS WITHIN A GROUP / FAMILY . IN THIS BACKDROP , THE LETTER DATED 01.08.2007 W OULD ONLY BE CONSIDERED AS SELF - S ERVING DOCUMENT. MOREOVER, THE SAID LETTER CANNOT HAVE MORE EVIDENTIARY VALUE THAN THE REGISTERED DEVELOPMENT AGREEMENT, WHICH IS SILENT ABOUT ANTE DATE PHYSICAL TRANSFER OF PROPERTY. THUS, IN VIEW OF THE ABOVE GROUND NO. 3 RAISED IN MODIFIED/ CONCISE GROU NDS OF APPEAL IS DISMISSED. 11 ITA NOS. 432 & 558/PUN/2013 A.Y. 2009 - 10 15. IN SO FAR AS ADDITION AL GROUND RAISED BY THE ASSESSEE TO CONSIDER INCOME FROM SALE OF LAND TO M/S. BAFNA BUILDERS AND LAND DEVELOPERS AS BUSINESS INCOME IS CONCERNED, WE ARE OF THE VIEW THAT THE ADDITIONAL GROUND RAISED IS MISCONCEIVED. THE ASSESSEE IN ITS RETURN OF INCOME HAS OFFERED THE INCOME FROM SALE OF LAND AS SHORT TERM CAPITAL GAIN. THE NATURE OF LAND SOLD BY ASSESSEE AS CAPITAL ASSET HAS BEEN ACCEPTED BY THE DEPARTMENT. NOW, AT SECOND APPELLATE STAGE THE ASSESS EE HAS TAKEN ALTOGETHER NEW PLEA, STRAYING AWAY FROM THE SETTLED POSITION. WE FIND NO MERIT IN THE ADDITIONAL GROUND RAISED, HENCE THE SAME IS DISMISSED. 16 . IN THE RESULT, APPEAL OF THE ASSESSEE IS PARTLY ALLOWED IN THE TERMS MENTIONED ABOVE. ORDER PRO NOUNCED ON FRIDAY , THE 22 ND DAY OF SEPTEMBER , 201 7 . SD/ - SD/ - ( . / D. KARUNAKARA RAO ) ( /VIKAS AWASTHY) / ACCOUNTANT MEMBER / JUDICIAL MEMBER / ACCOUNTANT MEMBER / JUDICIAL MEMBER / PUNE; / DATED : 22 ND SEPTEMBER , 2017 . SB / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT. 2. / THE RESPONDENT. 3. THE CIT (APPEALS) - II, NASHIK 4. THE CIT - II, NASHIK. 5 . , , , / DR, ITAT, A BENCH, PUNE. 6 . / GUARD FILE. // TRUE COPY // / BY ORDER, / PRIVATE SECRETARY , / ITAT, PUNE .