The ITO,Vapi Ward-1, Vapi V. Shri Babubhai Nichhabhai Desai(HUF), Vapi

ITA 479/AHD/2012

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 94433 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 6 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-09-2015
• Appeal Filed By: Department
• Order Result: Partly Allowed
• Bench Allotted: C
• Next Hearing Date: 20-08-2015
• Assessment Year: 2008-2009
• Appeal Filed On: 22-02-2012
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: D N MISHRA
• Keywords: Capital asset; Cost of acquisition; Fair market value; Valuation report; Competent authority
• Section: 143(3); 133(6)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD C BENCH AHMEDABAD BEFORE S/SHRI RAJPAL YADAV, JM, & MANISH BORAD, AM. ITA NO.373/AHD/2012 ASST. YEAR: 2008-09 BABUBHAI NICHHABHAI DESAI (HUF),, SIDHDHNATH MAHADEV ROAD, OPP. JAIN UPASRAYA, DESALWAD, VAPI. VS INCOME-TAX OFFICER, WARD-1, VAPI. (APPELLANT) (RESPONDENT) PA NO.AADHB0679M AND ITA NO.479/AHD/2012 ASST. YEAR 2008-09 INCOME-TAX OFFICER, WARD-1, VAPI VS BABUBHAI NICHHABHAI DESAI (HUF),, SIDHDHNATH MAHADEV ROAD, OPP. JAIN UPASRAYA, DESALWAD, VAPI. (APPELLANT) (RESPONDENT) ASSESSEE BY SHRI HARDIK VORA, AR REVENUE BY SHRI D. N. MISHRA, SR.DR DATE OF HEARING:20/8/2015 DATE OF PRONOUNCEMENT: 11/09/2015 O R D E R PER MANISH BORAD, ACCOUNTANT MEMBER. THE ASSESSEE AND REVENUE ARE IN CROSS APPEAL AGAIN ST THE ORDER OF LD. CIT(A), VALSAD, DATED 30.11.2011 FOR A SSESSMENT YEAR ITA NOS.273 & 479/AHD/2012 ASST. YEAR 2008-09 2 2008-09. BEING CROSS APPEALS, THESE WERE HEARD TOGE THER AND ARE BEING DISPOSED OF BY THIS CONSOLIDATED ORDER. 2. FIRST WE WILL TAKE UP ASSESSEES APPEAL IN ITA N O.273/AHD/2012 FOR AY 2008-09. THE ASSESSEE HAS TAKEN FOLLOWING EF FECTIVE GROUND IN THIS APPEAL :- ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE LD. CIT(A) HAS ERRED IN ADOPTING THE FAIR MARKET VALUE OF THE LAND AS ON 1.4.1981 @ OF RS.76/- PER SQ. METER AS AGAINST RS.1 05/- PER SQ. METER DETERMINED BY THE VALUER FOR ASSESSING CAPITA L GAIN ON TRANSFER OF INHERITED LAND. 3. BRIEF FACTS OF THE CASE AS GATHERED FROM THE ORD ERS OF LOWER AUTHORITIES AND SUBMISSIONS MADE BY THE ASSESSEE AR E THAT THE ASSESSEE FILED ITS RETURN OF INCOME FOR AY 2008-09 ON 25.7.2008 DECLARING TOTAL INCOME AT RS.3,64,627/- INCLUDING AGRICULTURAL INCOME OF RS.80,850/-. THE ASSESSMENT ORDER WAS PASSED UND ER SECTION 143(3) OF THE I.T. ACT, 1961 (HEREIN AFTER REFERRED TO AS THE ACT) ON 11.10.2010. DURING THE YEAR UNDER ASSESSMENT APART FROM OTHER INCOME SHOWN BY THE ASSESSEE LOSS FROM LONG TERM CA PITAL GAINS FROM SALE OF 7456 SQ. METER OF AGRICULTURAL LAND AT VILL AGE RINGANWADA, NANI DAMAN WAS SHOWN AT RS.3,89,841/-. THIS LAND WA S ACQUIRED BY ASSESSEES FATHER IN THE YEAR 1930 AND, THEREFORE, FOR CALCULATION OF LONG TERM CAPITAL GAINS COST OF ACQUISITION OF THE SAID PROPERTY ON 1.4.1981 WAS REQUIRED. THE ASSESSEE HAS SHOWN THE C OST OF ACQUISITION OF SAID PROPERTY @ RS.165/- PER SQ. MET ER AND ACCORDINGLY CALCULATED LONG TERM CAPITAL GAIN WHICH FIGURED OUT TO BE LONG TERM ITA NOS.273 & 479/AHD/2012 ASST. YEAR 2008-09 3 CAPITAL LOSS AT RS.3,89,841/-. WHEREAS AO ON THE B ASIS OF INFORMATION AVAILABLE WITH HIM ADOPTED AVERAGE RATE OF RS.43 PER SQ. METER AS ON 1.4.1981 AND ACCORDINGLY CALCULATED LON G TERM CAPITAL GAIN AT RS.50,12,072/- AS AGAINST LOSS OF RS.3,89,8 41/- SHOWN BY THE ASSESSEE AND THEREBY MADE ADDITION OF RS.45,22,231/ - TO THE INCOME OF ASSESSEE. 4. DURING THE COURSE OF ASSESSMENT PROCEEDINGS ASSE SSEE SUBMITTED THAT HE HAD SUFFICIENT BASIS IN THE FORM OF CERTIFICATE OF VALUATION FROM SUB-REGISTRAR, DAMAN, SHOWING RATE O F RS.165/- PER SQ. METER AND RELEVANT PORTION OF ASSESSEES SUBMIS SIONS BEFORE THE AO IS REPRODUCED HEREUNDER :- 1. THE ASSESSEE SOLD AN AGRICULTURAL LAND BEARING S. NO.65/3-D AT VILLAGE RINGANWADA, NANI DAMAN, DAMAN FOR A TOTAL CONSIDERA TION OF RS,63,99,841/-. 2. THE ASSESSEE CLAIMED DEDUCTION OF INDEXED COST O F RS.67,78,627/- FROM THE SALE CONSIDERATION AND DECLAIMED NET CAPITAL LO SS OF RS.3,89,841/-. 3. FOR DETERMINING THE INDEXED COST THE ASSESSEE AD OPTED ESTIMATED FAIR MARKET VALUE OF RS.165/- PER SQ. METER AS ON 1/4/19 81 FOR ARRIVING AT THE SAID MARKET VALUE OF RS.165/- AS ON 1.4.1981 THE ASSESSE E OBTAINED A CERTIFICATE OF VALUATION DATED 22.1.2007 FROM THE SUB-REGISTRAR, D AMAN. WHEREIN HE HAS CATEGORICALLY STATED AS FOLLOWS:- IT IS TO INFORM YOU THAT NO SALE DEED WAS EXECUTED DURING THE YEAR 1975 TO 1981. HOWEVER, THE DETAILS OF SALE STATISTICS FOR THE YEA R OF AN AGRICULTURAL LAND SITUATED AT VILLAGE RINGANWADA/DABHEL, WITHIN THE JURISDICTI ON OF DABHEL GRAM PANCHAYAT, NANI DAMAN, ARE AS 1. SERIAL NO.21-XVII DATED 4.2.1982 PAGES 316 TO 32 6 2. NAME OF VENDOR : 1) M/S SIMPLEX TIN PRODUCTS, D AMAN 2) CHANDUL AL LALCHAND KOTHARI 3) SURESHC HANDRA NEMCHAND SHAH 3. NAME OF PURCHASER -1) KANTILAL HIRASAO JAIN 2) M/S SI MPLEX TIN PRODUCTS P. LTD. ITA NOS.273 & 479/AHD/2012 ASST. YEAR 2008-09 4 4. SURVEY NO. PLOT NO.18 & 19 PART OF PLOT NO .678, 3/3,3/2,3/1,677,10/1, 9,8/2 & 8/1. 5. AREA : 2000 SQ.MTRS. 6. VALUE -3,30,000/- (@ 165/- PER SQ.MTRS.) 4. THE ASSESSEE ALSO OBTAINED A CERTIFICATE DATED 1 6/01/2008 FROM THE SUB- REGISTRAR, DAMAN CERTIFYING THE SALES VALUE OF AGRI CULTURAL LAND IN RINGANWADA FOR THE YEAR 1982 WAS RS.165/- PER SQ.MTRS. 5. IN YOUR SAID SHOW CAUSE NOTICE YOUR HONOUR STATE D THAT THE SALES STATISTICS RATES FOR THE SAID LAND AS ON 1.4.1981 WAS BETWEEN RS.33/- TO RS.55/- PER SQ. MTRS. WE ARE NOT AWARE ON THE BASIS OF WHICH CERTIF ICATE YOUR HONOUR HAS ARRIVED AT THE VALUATION OF RS.33/- TO RS.55/-. 6. OUR SAID ASSESSEE HAS VALUED LAND AS ON 1.4.81 O N THE BASIS OF CERTIFICATE ISSUED BY THE COMPETENT AUTHORITY. THEREFORE, WE REQUEST YOUR HONOUR TO ADOPT THE SAI D VALUE AND ACCEPT THE INCOME DECLARED BY OUR SAID CLIENT. 5. ON THE OTHER HAND, THE AO CALLED FOR INFORMATION UNDER SECTION 133(6) OF THE ACT FROM SUB-REGISTRAR, DAMAN ON 3.9. 2010 TO PROVIDE THE FAIR MARKET VALUE/JANTRI RATE PREVAILING ON IN THE YEAR 1981. IN RESPONSE TO THE SAME THE SUB-REGISTRAR, DAMAN VIDE LETTER DATED 15.9.2010 REPLIED THAT THE SALES STATISTICS RATES B ETWEEN RS.33/- TO RS.53/- PER SQ.MTRS. FOR LAND IN THE YEAR 1981. THE REFORE, THE AO ADOPTED THE AVERAGE RATE @ RS.43/- PER SQ.MTRS. (53 + 33 = 86/2 = 43) AND WORKED OUT CAPITAL GAIN ACCORDINGLY. 6. AGGRIEVED, THE ASSESSEE WENT IN APPEAL BEFORE CI T(A). DURING THE COURSE OF APPELLATE PROCEEDINGS BEFORE THE CIT( A) ASSESSEE SUBMITTED A COPY OF VALUATION REPORT DATED 28.2.200 8 OF GOVERNMENT APPROVED VALUER PAREKH & ASSOCIATES. AS PER THE S AID VALUATION REPORT FAIR MARKET VALUE OF AGRICULTURAL LAND AT RI NGANWADA AS ON ITA NOS.273 & 479/AHD/2012 ASST. YEAR 2008-09 5 1.4.1981 WAS SHOWN AT RS.108/- PER SQ. MTRS. IN THE WRITTEN SUBMISSIONS MADE BY THE ASSESSEES AR IT WAS STATED THAT IN ARRIVING AT THE FAIR MARKET VALUE OF LAND AS ON 1.4.1981 AT RINGANWADA THE APPROVED VALUERS HAVE TAKEN INTO CONSIDERATION THE SAID VALUE OF RS.165/- AS WELL AS INSTANCE OF SALES/TRANSFERS OF RINGANWADA. THE ASSESSEES SUBMISSIONS ABOUT THE RELEVANT EXTRACTS FROM THE VALUATION REPORT OF THE GOVT. APPROVED VALUER ALSO FORMS PART OF THE CIT(A)S ORDER WHICH WAS SHOWING VARIOUS RATES OF C ALCULATION OF RATE INCLUDING REVERSE CALCULATION OF RATE. CIT(A) GAVE PART RELIEF TO THE ASSESSEE BY ADOPTING RATE OF RS.76/- PER SQ. MTRS. BY GIVING FOLLOWING FINDING:- 6.6 I HAVE CAREFULLY CONSIDERED THE FACT OF THE CA SE. I HAVE ALSO GONE THROUGH THE ASSESSMENT ORDER AND THE SUBMISSIONS MADE BY TH E LD. AR. THE ISSUE HERE NEEDS ADJUDICATION IS WHAT SHOULD BE THE FAIR MARKE T VALUE OF THE INHERITED AGRICULTURAL LAND AS ON 1.4.1981 ? THE AO ADOPTED F MV AT RS.43/- (33+55/2) PER SQ.MTRS WHEREAS THE LD. AR MADE A CASE FOR THE FMV TO BE RS.165/- OR AT LEAST RS.106/- PER SQ.MTRS. THE FINDINGS OF THE AO WAS BA SED ON THE INFORMATION COLLECTED FROM SUB-REGISTRAR, DAMAN VIDE LETTER DAT ED 15.9.2010. IN THE SAID LETTER THE SUB-REGISTRAR STATED THAT THE SALES STAT ISTICS RATES WAS BETWEEN RS.33 TO 55/- PER SQ.MTRS. FOR LAND IN THE YEAR 1981. THE AO AVERAGED OUT AND APPLIED RS.43/- AS FMV AS ON 1.4.1981. ON THE OTHER HAND TH E APPELLANTS ASSERTION FOR ADOPTING FMV AT RS.165/- OR AT LEAST RS.106/- PER S Q.MTRS. WAS ALSO BASED ON THE CERTIFICATES DATED 22.1.2007 AND 16.1.2008 FROM SUB -REGISTRAR, DAMAN. THE LD. AR ALSO SUPPORTED HIS ARGUMENTS BY SUBMITTING INDEP ENDENT VALUES REPORT WHEREIN THE FMV WAS DETERMINED AT RS.105/- PER SQ.M TRS IN 1981. FURTHER, THE LD. AR SUBMITTED A SALE AGREEMENT IN THE YEAR 1988 AND THE PROPERTY SURVEY NO.65/3D, SITUATED AT INDUSTRIAL ZONE AT RINGANWADA , WITHIN THE VILLAGE PANCHAYAT JURISDICTION OF DABHEL, TALUKA OF DAMAN. THE FMV DETERMINED BY THE ITA NOS.273 & 479/AHD/2012 ASST. YEAR 2008-09 6 SUB-REGISTRAR IN THIS SALE DEED WAS RS.99/- PER SQ. MTRS. IN THE SUBMISSION MADE BY THE LD. AR ABOVE VARIOUS ALTERNATIVE HAVE BEEN C ONSIDERED TO IMPRESS FOR THE RATE SOUGHT BY THE APPELLANT. I HAVE CAREFULLY CONS IDERED THE FACTS AND CIRCUMSTANCES OF THE CASE. BOTH THE AO AND THE APPE LLANT HEAVILY RELIED ON THE CERTIFIED RATES FROM THE SUB-REGISTRAR. BUT THE RAT E CERTIFIED BY THE SUB-REGISTRAR WIDELY VARIES. AS RIGHTLY OBSERVED BY THE AO, THE C ERTIFICATES SUBMITTED BY THE LD. AR WAS NOT PERTAIN TO THE APPELLANT BUT FOR A THIRD PARTY CALLED DHANPATBHAI J. RANKA. THERE WAS NO CONSISTENCY IN THE REPORT OF TH E SUB-REGISTRAR. WHEREAS THE CERTIFICATES OBTAINED BY DHANPATBHAI J. RANKA F OR THE YEARS 2007 & 2008 WHERE THE RATE INDICATED WAS RS.165/- PER SQ.MTRS B UT THE CERTIFICATE OBTAINED BY THE AO IN THE YEAR 2010 FROM THE SAME SUB-REGISTRAR INDICATED PREVAILING RATE AT RS.33 TO 55/- IN 1981. HOWEVER, THE LD. AR SUBMITTE D OTHER ALTERNATIVE I.E. A SALE DEED OF 1988 AND VALUATION REPORT FROM AN INDEPENDE NT VALUER. THE RATE PER SQ.MTR INDICATED IN THE SALES DEED IN THE YEAR 1988 WAS RS.99/- AND THE RATE AS PER VALUERS REPORT WAS RS.106/- FOR THE YEAR 1981. THE LD. AR ALSO OFFERED ANOTHER ALTERNATIVE THAT THE AVERAGE OF THE VALUE O F RS.43 ADOPTED BY AO AND THAT OF RS.165 ADOPTED BY THE APPELLANT WHICH COMES TO RS.104 (RS.43 + 165/2) AND IS CLOSER TO THE VALUE OF RS.108 DETERMINED BY THE APPROVED VALUER PAREKH & ASSOCIATES MAY BE ADOPTED. FROM THE PERUSAL OF VARI OUS ALTERNATIVES PUT FORTH BY THE LD. AR, IT IS CERTAIN THAT IF THE RATE IN 1988 WAS RS.99/- PER SQ. MTR. IN THAT CASE THE RATE IN 1981 CANNOT BE RS.105/- PER SQ.MTR . AS REPORTED BY THE SUB- REGISTRAR TO DHANPATBHAI J. RANKA. THEREFORE, AFTER CONSIDERING ALL THE ALTERNATIVES AGAINST THE FINDING OF THE AO I AM OF THE OPINION THAT THERE IS A MERIT IN REWORKING OF FMV OF THE LAND IN 1981. THE AO HEA VILY RELIED ON THE CERTIFICATE FROM THE SUB-REGISTRAR TO ADOPT THE AVERAGE RATE AT RS.43/- PER SQ.MTR. ON THE OTHER HAND THE LD. AR OFFERED MANY ALTERNATIVES TO AUGMENT HIS CASE. DETERMINATION OF FAIR MARKET VALUE, IN THE PRESENT CIRCUMSTANCES, SUFFERS FROM SUBJECTIVITY. HOWEVER, IN THE INTEREST OF JUSTICE A ND CONSIDERING THE EVIDENCES ON RECORD, IN MY OPINION A MIDDLE PATH HAS TO BE FOUND FOR COMPUTING FMV OF THE LAND IN QUESTION IN 1981. THE RATE ADOPTED BY THE A O AT RS.43/- WHEREAS THE LD. ARS CLAIM AFTER AGGREGATING ALL 3 POSSIBLE OPTION WAS RS.108/- PER SQ.MTR. ITA NOS.273 & 479/AHD/2012 ASST. YEAR 2008-09 7 THEREFORE, IN MY CONSIDERED VIEW THE FMV IN 1981 WO RKED OUT IS THE AVERAGE OF (RS.43 + 108)/2 = RS.75.50 PER SQ.MTR (SAY RS.76/-) . THIS RATE IS VERY CLOSE TO THE ACTUAL RATE RS.99/- OFFICIALLY AVAILABLE ON RECORDS FOR THE YEAR 1988. IN OTHER WORDS, ON BACKWARD CALCULATION OF RATE FROM 1988 TO 1981 THERE IS A DIFFERENCE OF RS.23/- FOR A PERIOD OF 7 YEARS. CONSIDERING THE EX ISTING ECONOMIC SITUATION AT THAT TIME I.E. BETWEEN 1981 TO 1988 AN INCREASE OF RS.23/- IS JUSTIFIABLE. IN THIS CIRCUMSTANCES, I DIRECT THE AO TO ADOPT THE FMV FOR THE YEAR 1981 AT RS.76/- PER SQ.MTR. ACCORDINGLY THIS GROUND IS PARTLY ALLOWED. 7. AGGRIEVED, THE ASSESSEE IS IN FURTHER APPEAL BEF ORE THE TRIBUNAL. THE LD. AR OF THE ASSESSEE IS AGAIN PRESS ING HIS GROUND OF APPEAL FOR APPLYING RATE OF RS.105/- PER SQ.MTR. AS DETERMINED BY THE GOVERNMENT APPROVED VALUER FOR COMPUTING THE CAPITA L GAIN ON TRANSFER OF INHERITED LAND FOR THE VERY REASON THAT THE RATES GIVEN BY SUB-REGISTRAR, DAMAN ARE VARYING TO A GREAT EXTENT SO MUCH SO THAT AT ONE PLACE THEY ARE MENTIONING THE RATE BETWEEN R S.33 TO 53 AS REFERRED IN THE LETTER SUBMITTED TO THE AO AND THE RATE OF RS.165 PER SQ.MTR AS PER LETTER AVAILABLE WITH ASSESSEE. THE L D. AR ALSO GAVE REFERENCE TO SOME JUDICIAL PRONOUNCEMENTS AVAILABLE IN PAPER BOOK AND ALSO RELIED ON THE DECISION OF TRIBUNAL, AHMEDA BAD BENCH IN ITA NO.1495/AHD/2007 VIDE ORDER DATED 11/11/2011 WHEREI N IT WAS HELD AS UNDER :- 10.1 AS REGARDS VALUATION OF FLAT AS ON 1.4.1981 T HE ADMITTED FACTS OF THE CASE ARE THAT THE VALUE DECLARED BY THE ASSESSEE IS SUPPORTED BY VALUATION REPORT OF A REGISTERED VALUER. THE AO HAS TAKEN DIFFERENT VALUATION WITHOUT OBTAINING VALUATION REPORT FROM T HE DVO. THE AO HAS TAKEN THE VALUE AS ON 1.4.1981 ON OTHER BASIS. WE A RE OF THE VIEW THAT ASSESSEES VALUATION AS ON 1.4.1981 IS SUPPORTED BY VALUATION BY A TECHNICAL PERSON I.E. REPORT OF A REGISTERED VALUER AND CONTRARY TO THAT NO SUCH MATERIAL OR DEPARTMENTAL VALUATION REPORT IS A VAILABLE ON RECORD. MERELY ON THE BASIS OF OTHER GENERAL ENQUIRIES THE VALUATION DECLARED BY THE REGISTERED VALUER CANNOT BE SUBSTITUTED. WE, TH EREFORE, SET ASIDE THE ITA NOS.273 & 479/AHD/2012 ASST. YEAR 2008-09 8 ORDERS OF REVENUE AUTHORITIES ON THIS ISSUE AND DIR ECT THE AO TO ADOPT THE VALUATION OF THE FLAT AS ON 1.4.1981 AS DECLARED BY THE ASSESSEE. 8. ON THE OTHER HAND, THE LD. DR RELIED ON THE ORD ER OF AO AND ASSERTED UPON TO MAINTAIN THE RATE OF RS.43 ONLY FO R THE PURPOSE OF CALCULATION OF CAPITAL GAIN. 9. WE HAVE HEARD THE RIVAL CONTENTIONS AND GONE THR OUGH THE FACTS AND CIRCUMSTANCES OF THE CASE AS WELL AS PAPER BOOK AND SUBMISSIONS MADE BY THE ASSESSEE AND SUBMISSIONS OF LD. DR. FROM THE PERUSAL OF RECORDS, THIS IS A FACT THAT THERE H AVE BEEN DIFFERENT RATES AVAILABLE AS ON 1.4.1981 IN RELATION TO ARRIV E AT THE COST OF ACQUISITION OF THE PIECE OF LAND SOLD BY THE ASSESS EE. THESE RATES CAN BE SUMMED UP - 1. RATE GIVEN BY SUB-REGISTRAR, DAMAN VIDE LETTER 15.9.2010 IN REPLY TO LETTER OF AO DT. 3.9.2010 BETWEEN RS.33 TO 53/- PER SQ.METER 2. RATE OBTAINED FROM SUB-REGISTRAR, DAMAN VIDE CERTIFICATE OF VALUATION DATED 22.1.2007 RS.165/- PER SQ. METER. 3. RATE GIVEN BY THE GOVT. APPROVED VALUER PAREKH & ASSOCIATES, AS PER VALUATION REPORT DATED 28.2.2008 RS.108/- PER SQ.METER FROM THE ABOVE, IT SEEMS THAT ON ONE HAND THE REPOR T OF SUB- REGISTRAR, DAMAN, IS RANGING FROM MINIMUM RS.33 PER SQ.METER TO A MAXIMUM OF RS.165/- PER SQ. METER WHEREAS THE REPOR T OF REGISTERED VALUER WHO IS A PERSON WITH TECHNICAL EXPERTISE FOR THE PURPOSE OF VALUATION HAS GIVEN THE RATE OF RS.108/- PER SQ.MET ER FOR THE PURPOSE OF VALUATION BY CONSIDERING MORE THAN ONE INSTANCES OF SALE/TRANSFER OF LAND AT RINGANWADA, NANI DAMAN. IN OTHER WORDS T HE GOVT. ITA NOS.273 & 479/AHD/2012 ASST. YEAR 2008-09 9 APPROVED VALUER HAS TRIED TO ARRIVE AT QUITE CLOSE TO THE FAIR MARKET VALUE OF THE SAID LAND DUE TO HIS ADOPTION OF SCIEN TIFIC AND TECHNICAL METHOD. WE FURTHER NOTICE THAT AO HAS RELIED PURELY ON THE AVERAGE RATE GIVEN BY SUB-REGISTRAR, DAMAN EVEN WHEN DURING THE COURSE OF ASSESSMENT PROCEEDINGS THE ASSESSEE HAS SUBMITTED T HAT HE HAS ADOPTED THE RATE OF RS.165/- PER SQ.METER ON THE BA SIS OF A CERTIFICATE OF VALUATION BY SUB-REGISTRAR, DAMAH. IN SUCH CIRCU MSTANCES, IT WAS REQUIRED ON THE PART OF THE AO TO MAKE A REFERENCE TO THE VALUATION OFFICER UNDER SECTION 55A OF THE ACT IN ORDER TO AS CERTAIN THE FAIR MARKET VALUE OF THE ASSET BECAUSE VALUATION OFFICER IS A PERSON OF TECHNICAL KNOWLEDGE FOR THE PURPOSE OF SUCH VALUATI ON. IN THE PRESENT CASE NO SUCH REFERENCE WAS MADE BY THE AO TO APPROA CH THE VALUATION OFFICER. WE, THEREFORE, FIND IT APPROPRIA TE TO GIVE COGNIZANCE TO VARIOUS RATES AS REFERRED TO ABOVE IN SUCH A WA Y SO AS TO COVER THE RATES FOR THE PURPOSE OF VALUATION GIVEN BY SUB-REG ISTRAR, DAMAN TO THE AO, RATES GIVEN BY SUB-REGISTRAR, DAMAN TO THE ASSESSEE AS WELL AS THE RATE GIVEN BY THE GOVT. APPROVED VALUER. WE, THEREFORE, DECIDE TO APPLY THE AVERAGE OF THREE RATES I.E. MINIMUM RA TE GIVEN BY SUB- REGISTRAR, DAMAN AT RS.33, MAXIMUM RATE GIVEN BY SU B-REGISTRAR, DAMAN AND THE RATE GIVEN BY THE GOVT. APPROVED VALU ER AT RS.108/-. THE AVERAGE RATE WILL WORK OUT AT RS.102/- PER SQ.M ETER (RS.33 + RS.165 + RS.108 = RS.306/3 = RS.102/-). IN THE CIRC UMSTANCES, WE DIRECT THE AO TO ADOPT THE FAIR MARKET VALUE OF THE ASSET AS ON 1.4.1981 AT RS.102/- ONLY. ACCORDINGLY, THE APPEAL OF THE ASSESSEE IS PARTLY ALLOWED. ITA NOS.273 & 479/AHD/2012 ASST. YEAR 2008-09 10 10. NOW WE TAKE UP ITA NO.479/AHD/2012 (REVENUES A PPEAL). THE REVENUE HAS RAISED THE FOLLOWING GROUND IN THIS APP EAL :- 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, AND IN LAW, THE LD. CIT(A) ERRED IN DELETING THE ADDITION MADE ON ACCOU NT OF LONG TERM CAPITAL GAIN OF RS.13,55,724/-. 11. THE FACTS OF THE CASE HAVE ALREADY BEEN DEALT W ITH BY US IN OUR ORDER IN ITA NO.373/AHD/2012 AGAINST THE ADDITION M ADE BY THE AO AT RS.46,33,231/- DUE TO APPLICATION OF FAIR MARKET VA LUE OF THE PIECE OF LAND AS ON 1.4.1981 AT RS.43/- PER SQ. METER AGAINS T RATE OF RS.165/- PER SQ. MTR. CLAIMED BY THE ASSESSEE IN HIS RETURN OF INCOME. AGGRIEVED, ASSESSEE WENT IN APPEAL BEFORE THE CI(T( A) WHO WAS PROVIDED A COPY OF GOVT. APPROVED VALUERS REPORT G IVING THE RATE OF RS.108/- PER SQ. METER. THE LD. CIT(A) PARTLY ALLOW ED THE APPEAL OF THE ASSESSEE BY ADOPTING FAIR MARKET VALUE ON 1.4.1 981 AT RS.76 PER SQ. METER WHICH WAS WORKED OUT BY AVERAGING THE RAT ES TAKEN BY AO AT RS.43/- AND THE RATE GIVEN BY GOVT. APPROVED VAL UER AT RS.108/- (RS.43 + RS.108)/2 = RS.75.5 PER SQ. METER SO RS.76 /-. AGGRIEVED, THE REVENUE HAS PREFERRED THE APPEAL BEFORE THE TRI BUNAL. 12. WE HAVE DEALT THE ISSUE IN ITA NO.373/AHD/2012 (ASSESSEES APPEAL) AND GIVEN THE FINDING OF ADOPTING THE FAIR MARKET VALUE OF RS.102/- BY AVERAGING MINIMUM AND MAXIMUM RATE GIVE N BY SUB- REGISTRAR, DAMAN AND THE RATE GIVEN BY GOVT. APPROV ED VALUER (RS.33 + RS.165 + RS.108)/2 = RS.102/-. ACCORDINGLY, APPLY ING THE SAME TO THIS CASE, WE PARTLY ALLOW THE APPEAL OF REVENUE. ITA NOS.273 & 479/AHD/2012 ASST. YEAR 2008-09 11 13. IN THE RESULT, THE APPEAL OF ASSESSEE AND THAT OF REVENUE BOTH ARE PARTLY ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 11/9/2015 SD/- SD/- (RAJPAL YADAV) JUDICIAL MEMBER (MANISH BORAD) ACCOUNTANT MEMBER DATED 11/9/2015 MAHATA/- COPY OF THE ORDER FORWARDED TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT CONCERNED 4. THE CIT(A) CONCERNED 5. THE DR, ITAT, AHMEDABAD 6. GUARD FILE BY ORDER DY. REGISTRAR, ITAT, AHMEDABAD 1. DATE OF DICTATION: 9/9/2015 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE T HE DICTATING MEMBER: 9/9/2015 OTHER MEMBER: 3. DATE ON WHICH APPROVED DRAFT COMES TO THE SR. P. S./P.S.: 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE TH E DICTATING MEMBER FOR PRONOUNCEMENT: __________ 5. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE S R. P.S./P.S.: 6. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK: 11/9/2015 7. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK: 8. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT REGISTRAR FOR SIGNATURE ON THE ORDER: 9. DATE OF DESPATCH OF THE ORDER: