VENKATESH GOPALKRISHNA KAMATH, MUMBAI V. INCOME TAX OFFICER WARD 3(4), THANE

ITA 5188/MUM/2018

• Counselvise Citation: [2021] 108 COUNSELVISE.COM (IT) 3418 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 4 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-01-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: F
• Assessment Year: 2014-2015
• Appeal Filed On: 07-09-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Sale consideration of property below Jantri Value; Value adopted by valuation officer; Capital asset; Cost of acquisition; Fair market value; Valuation report
• Section: 50C; 143(1); 55A; 48

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH F, MUMBAI BEFORE SHRI RAJESH KUMAR, ACCOUNTANT MEMBER AND SHRI RAM LAL NEGI, JUDICIAL MEMBER ITA NO.5188/M/2018 ASSESSMENT YEAR: 2014-15 SHRI VENKATESH GOPALKRISHNA KAMATH, 1202-B, PRINCETON HIRANANDANI ESTATES, THANE (W), PATLIPADA, THANE-400 607 PAN: AHAPK8647G VS. INCOME TAX OFFICER, WARD 3(4), 6 TH FLOOR, ASHAR IT PARK, ROAD NUMBER 16Z, NEHRU NAGAR, WAGLE INDUSTRIAL ESTATE, THANE WEST, THANE 400 604 (APPELLANT) (R ESPONDENT) PRESENT FOR: ASSESSEE BY : SHRI GIRISH DAVE, A.R. & SHRI TANZIL PADVEKAR, A.R. REVENUE BY : SHRI VIJAY KUMAR, D.R. DATE OF HEARING : 06.11.2020 DATE OF PRONOUNCEMENT : 08.01.2021 O R D E R PER RAJESH KUMAR, ACCOUNTANT MEMBER: THE PRESENT APPEAL HAS BEEN PREFERRED BY THE ASSES SEE AGAINST THE ORDER DATED 10.07.2018 OF THE COMMISSIO NER OF INCOME TAX (APPEALS) [HEREINAFTER REFERRED TO AS TH E CIT(A)] RELEVANT TO ASSESSMENT YEAR 2014-15. 2. THE GROUNDS RAISED BY THE ASSESSEE ARE AS UNDER: THE LD. AO HAS ERRED IN NOT CONSIDERING THE SUBMIS SIONS MADE BY THE APPELLANT DURING THE COURSE OF ASSESSMENT, WHERE THE APPELLAN T HAS STATED THE ACTUAL REASONS FOR THE LOWER VALUATION OF THE PROPERTY SOLD @ RS.1 ,85,00,000/- AND NOT RS.5,13,19,000/- THE ASSESSEE HAS ALSO RAISED THE FOLLOWING ADDITIO NAL GROUNDS OF APPEAL: ITA NO.5188/M/2018 SHRI VENKATESH GOPALKRISHNA KAMATH 2 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AND IN LAW, THE PROPERTY IN QUESTION BEING LAND IS A LONG TERM CAPITAL ASSET WI THIN THE MEANING OF SECTION 2(29A) AND HENCE, CAPITAL GAIN ON THE TRANSFER OF T HE SALE OF LAND IS A LONG TERM CAPITAL GAIN WITHIN THE MEANING OF SECTION 48 OF TH E INCOME TAX ACT. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW, THE CAPITAL GAIN ON THE SALE OF LAND/PROPERTY IS TO BE TREATED AS LO NG TERM CAPITAL GAIN AND BENEFIT OF INDEX COST OF ACQUISITION NEEDS TO BE GIVEN UNDE R SECT. 48 OF THE INCOME TAX ACT. 3. THE ONLY ISSUE RAISED IN THE SOLE GROUND OF APPE AL BY THE ASSESSEE IS AGAINST THE ORDER OF LD. CIT(A) AFFIRMI NG THE ORDER OF AO IN WHICH THE AO CALCULATED THE SHORT TERM CAPITA L GAIN BY TAKING MARKET VALUE OF THE PLOT AS PER SECTION 50C AT RS.5,13,19,000/- AS AGAINST THE SALE CONSIDERATION AS PER AGREEMENT DATED 24.10.2013 AT RS.1,85,00,000/- THER EBY COMPUTING THE SHORT TERM CAPITAL GAIN AT RS.2,06,61 ,480/- BY ALLOWING THE DEDUCTION OF COST OF ACQUISITION OF RS .1,45,73,520/-. 4. FIRST WE WOULD LIKE TO ADJUDICATE THE ADDITIONAL GROUNDS OF APPEAL AS RAISED BY THE ASSESSEE BEFORE US. THE LD . A.R. VEHEMENTLY SUBMITTED BEFORE US THAT THE ISSUE WHETH ER THE CAPITAL GAIN ARISING FROM THE SALE OF PROPERTY IS A SHORT TERM CAPITAL GAIN OR LONG TERM CAPITAL GAIN IS A LEGAL I SSUE, THE FACTS QUA WHICH ARE AVAILABLE ON RECORD AND NO NEW FACTS NEED TO BE BROUGHT ON THE RECORD NOR ANY FURTHER VERIFICATION OF FACTS IS REQUIRED. THE LD. A.R. THEREFORE, PRAYED THAT THE GROUND RAISED BY THE ASSESSEE MAY KINDLY BE ADMITTED IN THE INTER EST OF JUSTICE AND FAIRPLAY AND ACCORDINGLY ADJDUCATED AS IT HAS I MPORTANT AND SIGNIFICANT BEARING ON THE INCOME OF THE ASSESSEE. IN DEFENCE OF HIS ARGUMENT THE LD. A.R. RELIED ON THE DECISIONS O F NATIONAL THERMAL POWER CO. LTD. V. CIT (1998) 229 ITR 383/15 7 CTR 249 (SC). THE LD. D.R., ON THE OTHER HAND, STRONGLY OP POSED THE ARGUMENT OF THE LD. A.R. ON THE ADMISSION OF ADDITI ONAL GROUND ITA NO.5188/M/2018 SHRI VENKATESH GOPALKRISHNA KAMATH 3 BY SUBMITTING THAT THESE WERE NEVER RAISED BEFORE T HE AUTHORITIES BELOW AND MAY KINDLY BE DISMISSED. 5. AFTER HEARING THE RIVAL PARTIES AND PERUSING THE MATERIAL ON RECORD WE FIND THAT THE ISSUE RAISED IN THE ADDITIO NAL GROUND IS PURELY A LEGAL ISSUE WHETHER THE CONVEYANCE DATES B ACK TO THE AGREEMENT TO SELL OR FROM THE DATE OF REGISTRATION OF CONVEYANCE DEED IN FAVOUR OF THE ASSESSEE. IN OUR VIEW THE IS SUE IS SQUARELY COVERED IN FAVOUR OF THE ASSESSEE BY THE DECISIONS OF NATIONAL THERMAL POWER CO. LTD. V. CIT (SUPRA). WE, THEREFO RE, RESPECTFULLY FOLLOWING THE DECISION OF THE HONBLE APEX COURT ADMIT THE ADDITIONAL GROUND RAISED BY THE ASSESSEE. 6. NOW WE ARE ADJUDICATING ALL THE GROUNDS INCLUDIN G THE ADDITIONAL GROUNDS TOGETHER IN THE FOLLOWING PARAS. THE FACTS IN BRIEF ARE THAT THE ASSESSEE FILED RETURN OF INCOME ON 02.02.2015 SHOWING A TOTAL INCOME OF RS.2,15,870/- WHICH WAS P ROCESSED UNDER SECTION 143(1) OF THE ACT. THEREAFTER, THE C ASE OF THE ASSESSEE WAS SELECTED FOR SCRUTINY UNDER CASS AND S TATUTORY NOTICES WERE DULY ISSUED AND SERVED UPON THE ASSESS EE. THE ASSESSEE IS ENGAGED IN THE BUSINESS OF RETAILING IN STOCKS AND PAN ETC. BESIDES THE ASSESSEE IS HAVING INCOME FRO M SALARY FROM MANJIRI GAS & CO. AND ALSO PARTNER IN A FIRM. THE CASE OF THE ASSESSEE WAS SELECTED UNDER CASS IN ORDER TO VE RIFY THE SALE CONSIDERATION OF THE PROPERTY AS DISCLOSED IN ITR W HICH IS LESS THAN THE SALE CONSIDERATION OF THE PROPERTY AS RETU RNED IN AIR. THE AO UPON PERUSAL OF AIR DATA OBSERVED THAT DURIN G FINANCIAL YEAR 2013-14 THE ASSESSEE HAS SOLD IMMOVABLE PROPER TY BEARING OLD SURVEY NO.279, NEW SURVEY NO.76, HISSA NO.1/A, VILLAGE- NAVGHAR, TALUK-BHAYENDAR, DISTRICT- THANE ADMEASURI NG IN ITA NO.5188/M/2018 SHRI VENKATESH GOPALKRISHNA KAMATH 4 AGGREGATE 9680 SQR. YARD EQUIVALENT TO 8093.71 SQR. MTR. THE AGREEMENT WAS REGISTERED ON 24.10.2013 AS PER WHICH THE SALE CONSIDERATION WAS RS.1,85,00,000/- WHEREAS THE MARK ET VALUE AS PER STAMP VALUATION AUTHORITY WAS RS.5,13,19,000 /-. ACCORDINGLY, THE ASSESSEE WAS ASKED BY THE AO TO FU RNISH THE DOCUMENTARY EVIDENCES IN SUPPORT OF THE SALE OF PRO PERTY AND ALONG WITH WORKING OF CAPITAL GAIN. ON THE BASIS O F EVIDENCES FILED THE AO OBSERVED THAT ASSESSEE HAS SOLD THE PR OPERTY VIDE DEED OF CONVEYANCE DATED 24.10.2013 IN FAVOUR OF M/ S. A.A. CORP. FOR A TOTAL CONSIDERATION OF RS.1,85,00,000/- . THE AO OBSERVED, ON THE BASIS OF CAPITAL GAIN COMPUTED BY THE ASSESSEE, THAT SALE CONSIDERATION WAS TAKEN AT RS.1,85,00,000 /- INSTEAD OF RS.5,13,19,000/- WHICH IS IN VIOLATION OF PROVISION S OF SECTION 50C OF THE ACT. ACCORDINGLY, A SHOW CAUSE NOTICE D ATED 03.11.2016 AND 13.12.2016 WERE ISSUED TO THE ASSESS EE CALLING UPON AS TO WHY THE MARKET VALUE SHOULD NOT BE ADOPT ED AS PER THE PROVISIONS OF SECTION 50C OF THE ACT. THE ASSE SSEE REPLIED AS UNDER: 4.1 IN RESPONSE TO THE SAME, THE ASSESSEE'S AR VID E LETTER DATED NIL FILED DURING THE COURSE OF ASSESSMENT PROCEEDINGS DATED 22.12.20 16 MADE THE FOLLOWING SUBMISSIONS:- 'IT IS TRUE THAT YOUR ASSESSEE HAS SOLD THE PROPERT Y WHICH WAS PURCHASED IN THE EARLIER YEARS. VALUATION OF REGISTRAR IS NOT AC CEPTABLE TO MY CLIENT AS HE HAS DONE VALUATION AT VERY HIGH RATE. HENCE WE HAVE TAKEN VALUATION REPORT OF GOVERNMENT APPROVED VALUER. I HERE WITH ENCLOSE THE VALUATION REPORT OF GOVERNM ENT APPROVED VALUER FOR THE ABOVE SAME PROPERTY SOLD. THE PROPE RTY I.E. LAND SHOWN UNDER RESIDENTIAL ZONE IN DC RULE APPLICABLE BY MBA & IS AFFECTED BY CRZ-III WHERE ONLY SCHOOL/COLLEGE CAN BE BUILT UPON, THE SA ID LAND IS SITUATED IN LOW LYING AREA OF EXCESSIVE SOIL FILLING (APPOX. UPTO E XTENT OF 3 TO 4 METERS) IS ESSENTIAL, AS ON TODAY THE SAID PROPERTY IS LOCKED PROPERTY WITH MARSHY LAND, MANGROWS, & IRREGULARITIES & HIGH TENSION LINE (ELE CTRIC WIRE LINES) PASSING THROUGH THE SAID PROPERTY. THE PLOT IS HIGHLY FLOOD S IN MONSOON. THE LOCATION OF THE SAID LAND IS SURROUNDED BY SLUMS, M MIDDLE C LASS & APPROACH IS ITA NO.5188/M/2018 SHRI VENKATESH GOPALKRISHNA KAMATH 5 RESTRICTED. THE MOVEMENT OF VEHICLES IS INSUFFICIEN T & THE NEAREST RAILWAY STATION IS 5 KM AWAY I.E. MIRA ROAD, HENCE VALUATIO N OF LAND IS MADE ON THE BASIS OF CRZ-HI FOR THE LAND SOLD PERIOD BECAUSE CR Z-HI WAS LEVIED BY MBMC DEPARTMENT AFTER THE SALE OF LAND. BECAUSE OF SUCH ABOVE REASONS THE SAID PROPERTY IS IN LITIGATION & FOR THE SAME COURT CASE IS ALSO GOING TO TILL TODAY. I HEREWITH ENCLOSE ALL THE DOCUMENTS FOR THE ABOVE SA ID PROPERTY SUCH AS VALUATION REPORT, COURT FILED DOCUMENTS, ETC FOR YO UR REFERENCE'. FURTHER, VALUATION REPORT ACCOMPANIED WITH THE LETT ER SUBMITTED DURING THE COURSE OF ASSESSMENT PROCEEDINGS DATED 2 2.12.2016, IT IS SEEN THAT THE VALUATION HAS BEEN DONE BY SHRI JAWAHAR P THAKAR, GOVERNMENT REGISTERED VALUER OF THE SAID PLOT OF LAND BEARING OLD SURVEY NO. 279, NEW SURVEY NO. 76, HISSA NO. I/A, VILLAGE- NAVGHAR, TAL UKA- BHAYANDER, DIST- THANE AREA ADMEASURING 8100 SQ. MTRS, ADOPTING THE RATE PER SQ. MTRS IS RS.4350 OF 8100 SQ. MTRS. THUS, THE FMV DURING FY 2 013-14 RELEVANT TO AY 2014-15 OF THE SAID PLOT VALUED AT RS.3,52,35,000/- AS PER VALUER REPORT. THE EXPLANATION SUBMITTED BY THE ASSESSEE IS NOT BACKED UP BY ANY CONCRETE EVIDENCE. AS THE SUBMISSION HAS BEEN MADE ON 22.12. 2016 IN WHICH THE ASSESSEE HAS OBJECTED TO THE VALUE ADOPTED BY STAMP VALUATION AUTHORITY, A REFERENCE IS MADE TO THE DEPARTMENTAL VALUATION OFF ICER FOR VALUATION OF THE PROPERTY TRANSFERRED. 7. THE ASSESSEE SUBMITTED A VALUATION REPORT FROM T HE APPROVED VALUER DURING THE COURSE OF ASSESSMENT PRO CEEDINGS VALUING THE MARKET VALUE OF THE PLOT AT RS.3,52,35, 000/-. THE AO ALSO MADE REFERENCE TO THE DEPARTMENTAL VALUATIO N OFFICER ON 23.12.2016 AS PER THE PROVISIONS OF SECTION 50C(II) AND 55A OF THE ACT. HOWEVER, DUE TO TIME LIMITATION AND TIME BARRING NATURE OF ASSESSMENT THE MARKET VALUE ADOPTED BY TH E VALUER IN THE VALUATION REPORT DATED 09.11.2016 AS SUBMITTED BY THE ASSESSEE WAS ADOPTED FOR COMPUTING THE SHORT TERM C APITAL GAIN/PROFIT ON SALE OF PROPERTY WITH THE REMARKS TH AT SAME WILL BE REVISED WHEN THE VALUATION REPORT WILL BE RECEIV ED FROM THE DEPARTMENTAL VALUER. 8. SIMILARLY, THE AO DETERMINED THE COST OF ACQUISI TION AS UNDER: 4.3 COST OF ACQUISITION ITA NO.5188/M/2018 SHRI VENKATESH GOPALKRISHNA KAMATH 6 FURTHER, THE ALLEGED PROPERTY BEARING OLD SURVEY NO .279, NEW SURVEY NO.76, HISSA NO.1/A, VILLAGE-NAVGHAR, TALUKA-BHAYANDER, DIST-THA NE WAS PURCHASED FROM (I) MRS. KAMAL SHREEKRISHNA JOSHI (MARRIED DAUGHTER OF SHRI VASUDEO DAMODAR KASHALIKAR), (II) MRS. JAYSHREE SURESH NAKHARE ALIAS MRS. JAYA S URESH NAKHARE (MARRIED DAUGHTER OF SHRI VASUDEO DAMODAR KASHALIKAR), (III) SHRI RAM ESH VASUDEO KASHALIKAR (SON OF SHRI VASUDEO DAMODAR KASHALIKAR) AND (IV) SHRI DAMO DAR VASUDEO KASHALIKAR (SON OF SHRI VASUDEO DAMODAR KASHALIKAR) FOR A TOTAL CONSID ERATION OF RS.44,00,000/-. THE AGREEMENT WAS REGISTERED ON 22.02.2011. THE ASSESS EE PAID STAMP DUTY OF RS.34,42,000/-, REGISTRATION CHARGES OF RS.31,520/- AND RS.71,00,000/- PAID TO M/S. THE ESTATE INVESTMENT COMPANY PRIVATE LIMITED AS PE R RELEASE DEED DATED 15.09.2011. THUS TOTAL COST OF THE SAID PLOT TOTAL ING TO RS.1,45,73,520/-. 9. IN THE APPELLATE PROCEEDINGS, THE LD. CIT(A) DIS MISSED THE APPEAL OF THE ASSESSEE BY OBSERVING AND HOLDING AS UNDER: 7. I HAVE CAREFULLY CONSIDERED THE FACTS OF THE CA SE AND THE CONTENTION OF THE APPELLANT. ON PERUSAL OF THE SAME IT HAS BEEN NOTIC ED THAT THE DEPARTMENTAL VALUATION OFFICER HAS FORWARDED PROPOSED VALUATION TO THE APPELLANT AND THE APPELLANT HAS ALSO FILED HIS OBJECTIONS TO THE DVO. THE DVO HAS VALUED THE PROPERTY AT RS 3,53,48,000/- AFTER CONSIDERING THE OBJECTION S RAISED BY THE APPELLANT. THE DVO IS EXPERT IN THE FIELD OF VALUATION AND HIS RE PORT IS TO BE FOLLOWED. FURTHER, THERE IS NO MUCH DIFFERENCE BETWEEN THE VALUE OF TH E PROPERTY AS PER VALUATION OF GOVERNMENT APPROVED VALUER FILED BY THE APPELLANT A ND THE VALUATION REPORT OF THE DVO. THE OBJECTIONS RAISED BY THE APPELLANT ARE DISMISSES. THE AO HAS MENTIONED IN THE ASSESSMENT ORDER THAT AFTER RECEIP T OF VALUATION REPORT, THE COMPUTATION OF CAPITAL GAIN SHALL BE REVISED. THE A O IS DIRECTED TO CONSIDER THE FAIR MARKET VALUE OF THE PROPERLY AT RS.3,53,48,000/- AS AGAINST RS.3,52,35,000/- ADOPTED BY HIM FOR COMPUTING CAPITAL GAIN. 10. AFTER HEARING BOTH THE PARTIES AND PERUSING THE MATERIAL ON RECORD, WE OBSERVE THAT IN THIS CASE THE ASSESSEE H AS SOLD IMMOVABLE PROPERTY FOR A CONSIDERATION OF RS.1,85,0 0,000/- MEASURING 8100 SQR. MTR. THE STAMP VALUE WHEREOF AS PER THE SUB REGISTRAR OFFICE, THANE WAS RS.5,13,19,000/-. THE AO COMPUTED THE CAPITAL GAIN BY TAKING MARKET VALUE AS PER THE APPROVED REGISTERED VALUER REPORT SUBMITTED BY THE ASSESSEE WHICH CALCULATED THE FAIR MARKET VALUE AS RS.3,52,3 5,000/- AND AFTER ALLOWING THE COST OF ACQUISITION OF RS.1,45,7 3,520/- A SHORT TERM CAPITAL GAIN WAS ADDED TO THE INCOME OF THE AS SESSEE OF RS.2,06,61,480/-. THE AO ADOPTED THE FAIR MARKET V ALUE AS PER ITA NO.5188/M/2018 SHRI VENKATESH GOPALKRISHNA KAMATH 7 REGISTERED VALUER REPORT AS THE DVO REPORT WAS NOT RECEIVED AND FRAMED THE ASSESSMENT DUE TO TIME BARRING PROVISION S OF THE ACT. IN THE APPELLATE PROCEEDINGS, THE LD. CIT(A) DIRECT ED THE AO TO ADOPT THE DVO REPORT AS PER WHICH THE VALUATION WAS CALCULATED AT RS.3,53,48,000/- INSTEAD OF RS.3,52,35,000/- FOR COMPUTING CAPITAL GAIN. THE FIRST CONTENTION OF THE LD. A.R. WAS THAT THE AGREEMENT TO SELL CONFERRING A RIGHT AND INTEREST I N FAVOUR OF THE ASSESSEE IN THE SAID PLOT WAS EXECUTED ON 7 TH AUGUST 2000 A COPY OF WHICH IS ATTACHED AT PAGE NO.1-17 OF THE PA PER BOOK. WE FIND THAT THE ASSESSEE HAS PURCHASED THE PLOT FOR A CONSIDERATION OF RS.44,00,000/-. WE ALSO NOTE THAT ON PAGE 10 PA RA (I) IT WAS STATED THAT THE ASSESSEE HAS PAID RS.4,00,000/- AND IN CLAUSE (II) IT WAS FURTHER STATED THAT RS.40,00,000/- WAS TO BE PAID AT THE TIME OF EXECUTION OF DEED OF CONVEYANCE AND REGISTRATION/EXECUTION OF IRREVOCABLE POWER OF ATTO RNEY IN FAVOUR OF THE ASSESSEE . THE DEED OF CONVEYANCE WAS EXECU TED IN FAVOUR OF THE ASSESSEE ON 22.02.2011 A COPY OF WHICH IS FI LED AT PAGE NO.18 95. WE HAVE ALSO PERUSED THE DEED OF RELEA SE BETWEEN THE ESTATE INVESTMENT CO. PVT. LTD. THE RELEASOR AN D VENKATESH GOPALKRISHNA KAMATH THE RELEASEE. A PERUSAL OF THE SAID RELEASE DEED REVEALED THAT THE ASSESSEE PAID RS.71,00,000/- TO THE RELEASOR VIDE CHEQUE NO.180407 DATED 11.08.2011 DRA WN ON ORIENTAL BANK OF COMMERCE, VILE PARLE, MUMBAI. WE NOTE THAT THE RIGHT AND INTEREST VESTED IN FAVOUR OF THE ESTA TE INVESTMENT CO. PVT. LTD. WAS ASSIGNED BY DEED OF ASSIGNMENT BY THE ASSIGNER M/S. GOVINDRAM BROTHERS LTD. THUS WE FIND THAT THE RE WAS ENCUMBRANCE ON THE SAID PROPERTY AND ON PAGE NO.4 O F THE SAID RELEASE DEED THERE WAS REFERENCE TO AGREEMENT OF SA LE DATED 7 TH AUGUST 2000 AND ALSO MENTIONED THAT PURSUANT TO THE SAID ITA NO.5188/M/2018 SHRI VENKATESH GOPALKRISHNA KAMATH 8 AGREEMENT THE OWNER EXECUTED IRREVOCABLE GENERAL PO WER OF ATTORNEY DATED 22.02.2011 IN FAVOUR OF THE RELEASEE THE ASSESSEE AND ALSO DEED OF CONVEYANCE WAS ALSO EXECUTED ON TH E SAME DATE IN FAVOUR OF THE RELEASEE. ALL THESE FACTS SHOW TH AT RIGHT AND INTEREST OF OWNERSHIP WAS CREATED IN THE SAID PROPE RTY IN FAVOUR OF THE ASSESSEE FROM THE DATE OF AGREEMENT TO SELL DATED 07.08.2000 AND NOT FROM THE DEED OF CONVEYANCE DATE D 22.02.2011. CONSIDERING ALL THESE FACTS WE ARE INC LINED TO HOLD THAT THE DATE OF CONVEYANCE SHALL RELATE BACK TO TH E DATE OF AGREEMENT DATED 07.08.2000 AND NOT FROM THE DATE OF REGISTRATION OF CONVEYANCE DEED DATED 21.10.2013. THE CASE OF THE ASSESSEE IS SUPPORTED BY THE DECISION OF HONBL E SUPREME COURT IN THE CASE OF SANJEEV LAL VS. CIT (2014) 365 ITR 389 (SC). THEREFORE, THE DATE OF PURCHASE OF PROPERTY BY THE ASSESSEE WOULD BE 07.08.2000 AND NOT 13.10.2013 WHICH IS THE DATE OF REGISTRATION OF CONVEYANCE DEED. ON THE ISSUE OF T HE SALE CONSIDERATION BEING LESS THAN THE STAMP VALUATION A S PER SUB REGISTRAR OFFICE AND ALSO LESSER THAN THE VALUATION AS PER REGISTERED VALUER, WE FIND THAT IN THE SAID VALUATI ON REPORT AND ALSO IN THE VALUE AS PER STAMP AUTHORITY THE FACT O F ENCUMBRANCE IN FAVOUR OF ESTATE INVESTMENT CO. PVT. LTD. WAS NO T TAKEN INTO ACCOUNT AND THEREFORE WE DO NOT FIND ANY MERIT IN T HE DIRECTION OF LD. CIT(A) TO SUBSTITUTE THE VALUE AS PER DVO WHI CH WAS NOT AVAILABLE AT THE TIME OF PASSING THE ASSESSMENT ORD ER TO COMPUTE THE CAPITAL GAIN. WE ALSO HOLD THAT THE SALE CONSI DERATION HAS TO BE TAKEN AS PER THE AGREEMENT TO SELL DATED 21.10.2 013 OF RS.1,85,00,000/- FOR THE PURPOSE OF CALCULATING OF LONG TERM CAPITAL GAIN. ACCORDINGLY, THE APPEAL OF THE ASSES SEE IS ALLOWED. ITA NO.5188/M/2018 SHRI VENKATESH GOPALKRISHNA KAMATH 9 11. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWE D. ORDER PRONOUNCED IN THE OPEN COURT ON 08.01.2021. SD/- SD/- ( RAM LAL NEGI) (RAJESH KUMAR) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI, DATED: 08.01.2021. * KISHORE, SR. P.S. COPY TO: THE APPELLANT THE RESPONDENT THE CIT, CONCERNED, MUMBAI THE CIT (A) CONCERNED, MUMBAI THE DR CONCERNED BENCH //TRUE COPY// [ BY ORDER DY/ASS TT. REGISTRAR, ITAT, MUMBAI.