Shri Praful Kumar Jain, Khandwa V. The Income Tax Officer, Khandwa

ITA 551/IND/2010

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 54069 (ITAT-INDORE)
• Duration Of Justice: 1 year(s) 3 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-12-2011
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: DB
• Next Hearing Date: 25-08-2011
• Assessment Year: 2006-2007
• Appeal Filed On: 23-08-2010
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: ARUN DEWAN
• Keywords: Sale consideration of property below Jantri Value; Capital asset; Principle of natural justice; Fair market value; Difference of opinion; Valuation report; Change of opinion
• Section: 142(1); 147; 148; 37

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL , INDORE BENCH, INDORE BEFORE SHRI JOGINDER SINGH, J.M. AND SHRI R.C.SHARM A, A.M. PAN NO. : ABJPJ7631A I.T.A.NO. 551 / IND /20 10 A.Y. : 2006 - 07 SHRI PRAFUL KUMAR JAIN, INCOME TAX OFFICER, PROP. P.K. JEWELLERS, VS KHANDWA M.G. ROAD, KHANDWA APPELLANT RESPONDENT PAN NO. : ABJPJ7639A I.T.A.NO. 552/IND/2010 A.Y. : 2006 - 07 SHRI ARUN KUMAR JAIN, INCOME TAX OFFICER, PROP. SURAJMAL JAIPRAKASH, VS KHANDWA SARAFA BAZAR, KHANDWA APPELLANT RESPONDENT PAN NO. : AGYPJ6298D I.T.A.NO. 553/IND/2010 A.Y. : 2006 - 07 SMT. PUSHPA JAIN, INCOME TAX OFFICER, SARAFA BAZAR VS KHANDWA KHANDWA APPELLANT RESPONDENT -: 2: - 2 PAN NO. : AGFJP44444A I.T.A.NO. 55 4 /IND/2010 A.Y. : 2006 - 07 SHRI YOGENDRA KUMAR JAIN, INCOME TAX OFFICER, PROP. ARCHIT JEWELLERS, 113, GHANTAGHAR CHOWK, KHANDWA VS KHANDWA APPELLANT RESPONDENT APPELLANT S BY : SHRI PRAKASH JAIN, FCA RESPONDENT BY : SHRI ARUN DEWAN, SR. DR DATE OF HEARING : 12 . 12.2011 DATE OF PRONOUNCEMENT : 29 .12.2011 O R D E R PER R. C. SHARMA, A.M. THESE ARE THE APPEALS FILED BY THE ASSESSEE AGAINST THE ORDER OF CIT(A) FOR THE ASSESSMENT YEAR 2006-07 IN THE MATTER OF ORDER PASSED BY THE ASSESSING OFFICER U/S 147/14 3(3) OF THE INCOME-TAX ACT, 1961. -: 3: - 3 2. GRIEVANCE OF THE ASSESSEE RELATES TO VALIDITY OF REOPENING U/S 147 AND ALSO ON THE MERIT OF ADDITION MADE IN RESPECT OF LONG TERM CAPITAL GAIN SHOWN BY THE ASSE SSEE. 3. RIVAL CONTENTIONS HAVE BEEN HEARD AND RECORDS PERUSED. ALL THE ASSESSEES IN THESE APPEALS ARE IND IVIDUAL AND ARE FAMILY MEMBERS. THEY WERE HAVING AGRICULTURAL L AND SITUATED AT KHASRA NOS. 508/2, 507/2 AND 508/3. DUR ING THE YEAR, ASSESSEE SOLD ITS LAND AND LONG TERM CAPITAL GAINS WAS OFFERED BY TAKING ACTUAL SALE CONSIDERATION RECEIVE D BY THEM. THE RETURN SO FILED BY THE ASSESSEE WAS PROCESSED U /S 143(1), THEREAFTER, ON FINDING THAT VALUE TAKEN BY STAMP DU TY AUTHORITY WAS MORE THAN THE ACTUAL SALE CONSIDERATI ON, THE AO ISSUED NOTICE U/S 148. THE AO FOUND THAT VALUE OF L AND FOR THE PURPOSE OF STAMP DUTY WAS MORE THAN THE ACTUAL SALE CONSIDERATION RECEIVED AND SHOWN BY THE ASSESSEE. T HEREFORE, A SHOW CAUSE NOTICE WAS GIVEN TO THE ASSESSEE FOR S UBSTITUTION OF VALUE TAKEN BY STAMP DUTY AUTHORITY AS A SALE CONSIDERATION FOR THE PURPOSE OF COMPUTATION OF LON G TERM CAPITAL GAIN. THE ASSESSEE OBJECTED FOR THE SAME AN D REQUESTED FOR MAKING A REFERENCE TO THE DVO FOR DETERMINATION OF FAIR -: 4: - 4 MARKET VALUE AS ON THE DATE OF SALE. THE MATTER WAS REFERRED TO THE DVO TO SEND HIS REPORT ON THE FAIR MARKET VALUE ON THE DATE OF SALE. ACCORDING TO DVOS REPORT, VALUE WORK ED OUT TO BE MORE THAN THE ACTUAL SALE CONSIDERATION RECEIVED BY THE ASSESSEE BUT MUCH LESS THAN THE VALUE TAKEN BY THE STAMP DUTY AUTHORITY. THE AO HAS TAKEN THE VALUATION SHOW N BY THE DVO AND COMPUTED CAPITAL GAIN ACCORDINGLY. THE CAPI TAL GAINS SO COMPUTED BY THE ASSESSING OFFICER WAS UPHELD BY THE LD. CIT(A) AND THE ASSESSEE IS IN FURTHER APPEAL BEFORE US. 4. IT WAS CONTENDED BY THE LD. AUTHORIZED REPRESENTATI VE THAT THE MATERIAL FACTS WHICH ARE REQUIRED TO BE DI SCLOSED BY THE ASSESSEE ARE PRIMARY FACTS NECESSARY FOR THE PU RPOSE OF HIS ASSESSMENT. THE DUTY TO DISCLOSE MATERIAL FACTS NEC ESSARILY POSTULATES EXISTENCE OF A THING OR MATERIAL. IF A M ATERIAL IS NOT IN EXISTENCE OR IF A MATERIAL IS SUCH OF WHICH THE ASSESSEE HAD NO KNOWLEDGE OR OF WHICH HE CANNOT BE ATTRIBUTED WI TH ANY KNOWLEDGE , THERE WOULD BE NO DUTY TO DISCLOSE SUCH MATERIAL. IN ABSENCE OF SUCH MATERIAL HANDICAPS THE INCOME - TAX OFFICER IN ASSESSING THE INCOME OR IN PASSING THE ORDER ON THE RETURN, HE HAS AMPLE POWER TO CALL UPON THE ASSESSEE UNDER SECTION -: 5: - 5 142(1) TO SUPPLY SUCH MATERIAL. IF HE DOES NOT EXER CISE THAT POWER OR FAILS TO EXERCISE THAT POWER AND PROCEEDS TO ASSESS THE ASSESSEE ON THE MATERIAL WHICH IS BEFORE HIM, I T CAN BE SAID THAT THE ASSESSING OFFICER DID NOT FIND THAT M ATERIAL NECESSARY FOR ASSESSMENT AND, THEREFORE, HE CANNOT RESORT TO HIS POWER UNDER SECTION 147(A) OF THE INCOME TAX AC T. 5. RELIANCE WAS PLACED ON THE FOLLOWING DECISIONS :- (I) KHEM SINGH SANKHIA, 266 ITR 485 (RAJ). (II) CIT VS. PARAMJIT KAUR, 311 ITR 38 ( P & H). (III) CIT VS. SHRI RAJASTHAN SYNTEX LIMITED, 313 ITR 231 (RAJ). (IV) SHIVNARAYAN JAISWAL, 176 ITR 352 (PAT). (V) GARDEN SILK, 237 ITR 668 (GUJ). (VI) OPAL CONSTRUCTION, 262 ITR 675 (RAJ). (VII) ANDHRA BANK LIMITED, 225 ITR 447 (S.C.) (VIII) GERMAN REMEDIES LIMITED VS. DY. CIT, 285 ITR 26/28-29 (IX) NITIN P. SHAH ALIAS MODI VS. DY. CIT, 276 ITR 411/441 (X) DURGA PRASAD GOYAL VS. ITO, 98 ITD 227 (ASR.) (XI) (2011) 9 TAXMAN. COM 254 (I.T.A.T. MUMBAI) -: 6: - 6 6. FURTHER RELIANCE WAS PLACED ON THE DECISION OF I.T. A.T. AMRITSAR SPECIAL BENCH IN THE CASE OF DURGA PRASAD GOYAL, 98 ITD 227, IN SUPPORT OF THE PROPOSITION THAT GENERAL INFORMATION CONTAINED IN THE LETTER OF ASSISTANT COMMISSIONER, INVESTIGATION CIRCLE, IS NOT RELEVANT MATERIAL TO S USTAIN INITIATION OF THE ASSESSMENT PROCEEDINGS. 7. IN VIEW OF THE ABOVE SUBMISSIONS, THE CONTENTIONS O F THE LD. AUTHORIZED REPRESENTATIVE WAS THAT CONSIDER ING THE FACTS OF THE CASE AND PARTICULARLY WHEN FULL DISCLO SURE OF FACTS WERE GIVEN IN THE STATEMENT OF TOTAL INCOME ITSELF, THE PROCEEDINGS INITIATED U/S 147 AND LATER ON ORDER FR AMED U/S 148 IS BAD IN LAW AND CONTRARY TO THE SETTLED POSIT ION OF LAW. 8. WITH REGARD TO MERIT OF THE ADDITION, THE CONTENTIO N OF THE LD. AUTHORIZED REPRESENTATIVE WAS THAT THE ASSE SSEE ENTERED INTO SALE AGREEMENTS FOR SALES OF AGRICULT URE LAND ON 20.08.04. XEROX COPIES OF THE SAME WERE ENCLOSED ON PAGES NO. 24 TO 32.. THE ENTIRE AMOUNT OF SALE CONSIDERATION WAS RECEIVED THROUGH ACCOUNT PAYEE CHEQUES. THAT AT TH E TIME OF ENTERING INTO SALE AGREEMENT THE RATE OF PROPERTY W AS VERY LOW AND THERE WAS NO BOOM IN THE REAL ESTATE MARKET. TH US IT IS -: 7: - 7 AGAINST THE BASIC PRINCIPAL OF NATURAL JUSTICE TO T AKE THE BASIS OF MARKET RATE AT THE TIME OF REGISTRATION INSTEAD OF RATES PREVAILING ONE YEAR BEFORE THE EXECUTION OF SALE DE EDS. 9. HE FURTHER CONTENDED THAT EVEN AT THE TIME OF EXECUTION OF SALE DEEDS THE PREVAILING MARKET RATE IN THE SAME LOCALITY IN WHICH ASSESSEES LAND WAS SITUATED AND IN THE SURROUNDING AREA ARE MUCH MORE LESS IN COMPARISON T O LAND SOLD BY THE ASSESSEE WHICH WILL BE CLEAR FROM COMP ARABLE SALES INSTANCES FILED BY ASSESSEE ALONG WITH XEROX COPIES OF SALE DEEDS. IT WAS SUBMITTED THAT IN THE FINANCIAL YEAR 2005- 06 IN WHICH ASSESSEE SOLD ITS LAND THE PREVAILING M ARKET RATE PER ACRE WAS RS.L LACS TO 3 LACS AND IN THE FINANCI AL YEAR 2006-07 RS. 1.92 LACS TO 4 LACS PER ACRE AND IN TH E FINANCIAL YEAR 2008-09 RS. 4.76 LACS WHILE THE ASSESSEE IN T HE FINANCIAL YEAR 2005-06 SOLD THE LAND @ RS.3.75 LACS PER ACRE. THAT FROM THE COMPARABLE SALES INSTANCES IT IS BEYO ND DOUBT THAT TRANSACTION VALUE MENTIONED IN THE DOCUMENT AR E AS PER THE PREVAILING MARKET PRICE AND VALUE FIXED BY THE STAMP AUTHORITY FOR REGISTRY ARE AT A VERY HIGHER SIDE TH US SAME COULD NOT BE FASTEN FOR LEVY OF INCOME TAX U/S 50C.. THAT DURING THE -: 8: - 8 COURSE OF ASSESSMENT PROCEEDINGS, ASSESSEE FILED A VALUATION REPORT OF APPROVED REGISTERED VALUE SHRI.TARUN K.JA IN WHO PERSONALLY VISITED THE LAND ON 03.10.2005 AND DETE RMINE THE FAIR MARKET VALUE OF LAND @ RS.3,40,000/- PER ACRE REFER PAGE 17 TO 19 OF THE COMPILATION. THE LD.A.O. DISCARDED THE SAME WITHOUT GIVING ANY FINDING IN THE BODY OF ASSESSMEN T ORDER AND MADE REFERENCE TO THE DVO. 10. HE FURTHER SUBMITTED THAT THE LD. DVO NEITHER ACCEPTED THE COLLECTORS GUIDE LINE NOR MENTIONED A NY COMPARABLE SALE INSTANCES IN VALUATION REPORT FOR D ETERMINING VALUE, THIS FACT SHOWS AND PROVED THAT THE ACTUAL V ALUE OF AGRICULTURAL LAND IN KHANDWA TARAF KUNBI IS MUCH MO RE LESS THAN THE COLLECTOR GUIDE LINE. HE FURTHER POINTED OUT THAT THE DVO INSPECTED THE LAND FOR THE PURPOSE OF VALUATION ON 24.06.2009 WHILE THE LAND IN QUESTION WAS AGREED TO SOLD VIDE SALES AGREEMENT DATED 20.08.2004 AND REGISTERED IN THE NA ME OF BUYER ON 10.11.2005. THIS FACT PROVE THAT LAND IN Q UESTION WAS INSPECTED BY THE DVO AFTER ABOUT FIVE YEARS FRO M THE DATE OF AGREEMENT TO SALES AND DURING THAT FIVE YEARS TH ERE WAS LOT OF CHANGES IN THE LOCALITY OF LAND AND SAME IS NOT CONSIDERED -: 9: - 9 BY THE LD.DVO WHICH WILL BE CLEAR FROM PAGE 6 PARA 2 OF THE DVO'S REPORT. IN HIS REPORT, DVO FOR PURPOSE OF VAL UATION CONSIDERED FOLLOWING CRITERIA. 'HOWEVER THE REFERRED PROPERTY IS SITUATED NEAR INDORE KHANDWA HIGHWAY, AND NEARBY OCCUPANCY OF SANTHOSH NAGAR IS QUITE POSH LOCALITY HENCE THE PROPERTY UNDER CONSIDERATION IS OF HIGHER VALUE THE N THE SALE INSTANCES '. IT WAS SUBMITTED THAT WHEN THE AFORESAID LAND WAS ACTUALLY SOLD THERE WAS NO EXISTENCE OF SANTOSH NAG AR NOR THE LOCALITY IN WHICH LAND SOLD WAS A RESIDENTIAL L OCALITY WHICH IS CLEAR FORM PAGE 5 OF THE DVO'S REPORT ITSE LF. OUR ATTENTION WAS ALSO INVITED TO PARA 3 OF PAGE 5 OF T HE DVO'S REPORT, WHICH SPEAKS AS UNDER :- '(III) LESS 10% O/(A) DUE TO GREEN BELT + NEARBY RAILWAY LINE + LOWER CATEGORY OCCUPANCY AND INDUSTRIAL CLUS TER NEARBY & LARGER SIZE PLOT'. FROM THE ABOVE IT IS CLEAR THAT THERE WAS A CONTRAD ICTION -: 10: - 10 IN THE REPORT OF DVO AS AT ONE PLACE HE HAS MENTION ED THAT THE LAND IS NEARBY SANTOSH NAGAR WHICH IS QUIT E POSH LOCALITY AND ANOTHER PLACE IN THE REPORT HE HA D MENTIONED THAT THERE IS A LOWER CATEGORY OCCUPANCY. THUS THE REPORT OF THE DVO SUFFERS FROM LOTS OF AMBIGUIT Y AND THEREFORE LIABLE TO BE DISCARDED. 11. FURTHER CONTENTION OF THE LD. AUTHORIZED REPRESENTATIVE WAS THAT LD.DVO HAS ALLOWED DEDUCTIO N OF ONLY 10 % ON ACCOUNTS OF HEAVY FEELING DUE TO BIG HOLE IN THE LAND AND 10 % FOR GREEN BELT + NEAR BY RAILWAY LINE + LO WER CATEGORY OCCUPATION AND INDUSTRIAL CLUSTER NEARBY A ND LARGE SIZE OF PLOT. FOR THESE DEFICIENCIES THE DEDUCTION SHOULD BE ALLOWED @ 50 %. 12. AS PER LD. AUTHORIZED REPRESENTATIVE ON THE SAID AGRICULTURE LAND THERE WAS ENCROACHMENT OF TRIBAL P EOPLES AND THEY HAVE COVERED THE LAND BY THEIR HUTS. IN THIS R ESPECT APPELLANT LODGED POLICE COMPLIANT AT MANY TIMES BUT UP TO THE DATE OF SALE AGREEMENT NO ACTION WAS TAKEN BY THE P OLICE AUTHORITIES. THIS FACT WAS NOT CONSIDERED BY THE DV O. DURING THE COURSE OF ASSESSMENT PROCEEDINGS AFTER RECEIPT OF DVO'S -: 11: - 11 REPORT ASSESSEES HAVE FILED REJOINDER PREPARED BY T HE APPROVED REGISTERED VALUER SHRI TARUN K.JAIN (REFER PAGE 115 TO 120 OF THE COMPILATION) SAME IS ALSO NOT CONSIDERED BY THE A.O. NOR SAME IS FORWARDED BY THE LD. AO. TO DVO FOR COMMENT S. IN VIEW OF THE ABOVE AND AFTER CONSIDERING THE COMPARA BLE SALES INSTANCES AND SO ALSO THE REPORT OF THE AVO AND REJ OINDER OF THE AVO ON THE REPORT OF DVO IT IS PRAYED THAT THE ADDITION MADE BY THE LD.A.O. BE DELETED. 13. ON THE OTHER HAND, CONTENTION OF THE LD. SENIOR D. R. WAS THAT THE AO HIMSELF HAS REFERRED THE MATTER TO THE DVO AND AS PER PROVISIONS OF SECTION 50-C, HE HAS TAKEN THE VALUE AS DETERMINED BY THE DVO, WHICH WAS MUCH LOWER THAN THE VALUE ARRIVED AT BY THE STAMP DUTY AUTHORITY. ACCOR DINGLY, HE JUSTIFIED THE ADDITION MADE BY THE ASSESSING OFFICE R ON ACCOUNT OF LONG TERM CAPITAL GAIN. 14. WE HAVE CONSIDERED THE RIVAL CONTENTIONS, CAREFULLY GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW AN D ALSO THE REPORT OF THE DVO AS WELL AS REPORT OF THE REGISTER ED VALUER FILED BY THE ASSESSEE ALONGWITH OBJECTIONS FILED BY THE ASSESSEE IN REPLY TO THE DVOS REPORT. WITH REGARD TO VALIDI TY OF -: 12: - 12 REOPENING, WE FOUND THAT RETURN OF THE ASSESSEE WAS PROCESSED U/S 143(1), THUS, NO OPINION WAS FRAMED BY THE ASSE SSING OFFICER WHILE SUCH PROCESSING OF RETURN. AS PER VER DICT OF HON'BLE SUPREME COURT IN THE CASE OF RAJESH JHAVER I, 291 ITR 500 THE PASSING OF AN INTIMATION U/S 143(1) DOES NO T AMOUNT OF AN ASSESSMENT AND IN THE ABSENCE OF AN ASSESS MENT, THERE WAS NO QUESTION OF A CHANGE OF OPINION. ACC ORDINGLY, WE DO NOT FIND ANY INFIRMITY IN THE ORDER OF LD. CI T(A) FOR HOLDING OF REASSESSMENT AS VALID. 15. FROM THE RECORD, WE FOUND THAT DURING THE YEAR ASSESSEE HAS SOLD HIS AGRICULTURAL LAND AND THE LON G TERM CAPITAL GAIN EARNED THEREON WAS DECLARED IN THE RET URN ACCORDING TO THE ACTUAL SALE CONSIDERATION RECEIVED BY THEM. THE AO FOUND THAT THE VALUATION OF LAND AS PER STAM P DUTY AUTHORITY WAS MORE THAN THE ACTUAL CONSIDERATION RE CEIVED BY THE ASSESSEE, THEREFORE, ON THE OBJECTION OF THE AS SESSEE, THE MATTER WAS REFERRED TO DVO, WHO DETERMINED ITS FAIR MARKET VALUE AFTER GIVING SOME REBATE ON ACCOUNT OF UNDULA TED TERRAIN REQUIRING HEAVY FILLING DUE TO EXCESS PIT/TRENCHES MADE DUE TO UNAUTHORIZED EXCAVATION AS PER THE SITE CONDITIONS. REBATE OF 10% WAS ALSO GIVEN DUE TO THE LAND BEING SITUATED I N GREEN BELT AND NEARBY RAILWAY LINE AND ON ACCOUNT OF LOWE R CATEGORY -: 13: - 13 OF OCCUPANCY AND INDUSTRIAL CLUSTER NEARBY AND LARG ER SIZE PLOT. 16. IN REPLY TO AOS SHOW CAUSE NOTICE FOR TAKING THE V ALUE DETERMINED BY STAMP DUTY AUTHORITY, THE ASSESSEE HA S SUBMITTED DETAILED VALUATION REPORT FROM THE REGIST ERED CHARTERED ENGINEER AND GOVERNMENT VALUER DESCRIBING IN DETAIL THE LOCATION OF LAND. AS PER THE ANALYSIS GI VEN BY THE REGISTERED VALUER THE VALUE OF THE LAND PER ACRE WO RKED OUT TO RS. 3.40 LAKHS. AS PER PROVISIONS OF SECTION 50-C, WHERE THE CONSIDERATION RECEIVED OR ACCRUING AS A RESULT OF T RANSFER OF CAPITAL ASSETS IS LESS THAN THE VALUE ASSESSED BY A N AUTHORITY FOR THE PURPOSE OF PAYMENT OF STAMP DUTY IN RESPECT OF SUCH TRANSFER, THE VALUE SO ADOPTED OR ASSESSED SHALL FO R THE PURPOSE OF SECTION 48 BE DEEMED TO BE THE FULL VALU E OF CONSIDERATION RECEIVED ON SUCH TRANSFER. SUB SECTIO N (2) OF SECTION 50-C PROVIDES THAT ON AN OBJECTION BY THE A SSESSEE, THE AO MAY REFER THE VALUATION OF THE CAPITAL ASSET TO THE VALUATION OFFICER AND WHERE IN SUCH REFERENCE IS MA DE, THE PROVISIONS OF SUB SECTION (2), (3), (4), (5) AND (6 ) OF SECTION 16A, CLAUSE (I) OF SUB SECTION (1, (6) AND (7) OF SECTIO N 23A, SUB SECTION (5) OF SECTION 24, SECTION 34AA, SECTION 35 AND SECTION 37 OF WEALTH TAX ACT, 1957, SHALL WITH NECE SSARY MODIFICATIONS, WILL APPLY IN RELATION TO SUCH REFER ENCE AS THEY APPLY IN RELATION TO THE REFERENCE MADE BY THE ASSE SSING OFFICER UNDER SUB SECTION (1) OF SECTION 16A OF THA T ACT. IN THE INSTANT CASE, THE MATTER FALLS WITHIN THE PROVISION S OF SUB -: 14: - 14 SECTION (2) OF SECTION 50-C, WHEREIN REFERENCE WAS MADE BY THE ASSESSING OFFICER TO THE DVO FOR DETERMINING FAIR M ARKET VALUE. THE DVO HAS INSPECTED THE PROPERTY AND DETER MINED ITS FAIR MARKET VALUE AT RS. 17,51,040/- PER HECTARE AF TER GIVING REBATE OF 10% ON ACCOUNT OF HEAVY FILLING REQUIRING DUE TO EXCESSIVE PIT/THE TRENCHES MADE DUE TO UNAUTHORIZED EXCAVATION AS PER THE SITE CONDITIONS. THE DVO HAS ALSO GIVEN 10% REBATE ON ACCOUNT OF LAND BEING SITUATED IN GRE EN BELT AND NEARBY RAILWAY LINE AND ON ACCOUNT OF LOWER CATEGOR Y OF OCCUPANCY AND INDUSTRIAL CLUSTER NEARBY AND LARGER SIZE PLOT. OBJECT OF MAKING REFERENCE TO DVO IS TO DETERMINE F AIR MARKET VALUE OF PROPERTY ON THE DATE OF ITS SALE. FOR DETE RMINING FAIR MARKET VALUE OF BUILDING THE DVO HAS TO TAKE INTO CONSIDERATION THE TECHNICAL SPECIFICATION OF BUILDI NG, ITS NATURE OF CONSTRUCTION, QUALITY OF MATERIALS USED ETC. HOW EVER, IN CASE OF OPEN LAND THE FAIR MARKET VALUE IS DETERMINED BY TAKING INTO CONSIDERATION THE ADVANTAGE AND DISADVANTAGE ATTAC HED TO THE SAID LAND. IN CASE OF FINDING ADVANTAGES THE VALUE OF LAND WILL INCREASE WHEREAS IN CASE OF FINDING DISADVANTAGES T HE FAIR MARKET VALUE OF PROPERTY WILL GO DOWN. NOW WE HAV E TO SEE WHETHER THE REBATE GIVEN BY THE DVO IN RESPECT OF DISADVANTAGE ATTACHED WITH PROPERTY WAS APPROPRIATE OR NOT. AS PER THE DESCRIPTION GIVEN BY THE DVO HIMSELF, TH E REBATE OF 10 % ALLOWED BY HIM ON ACCOUNT OF HEAVY FILLING REQ UIRED DUE TO EXCESS PIT, TRENCHES DUE TO UNAUTHORIZED EXCAVAT ION, APPEARS TO BE VERY LOW. KEEPING IN VIEW THE VALUATI ON REPORT OF -: 15: - 15 REGISTERED VALUER FILED BY THE ASSESSEE AND ALSO DE SCRIPTIONS GIVEN BY THE DVO HIMSELF, IT WILL BE PROPER TO GIVE REDUCTION OF 30% ON ACCOUNT OF LAND REQUIRING HEAVY FILLING DUE TO EXCESS PIT, TRENCHES DUE TO UNAUTHORIZED EXCAVATION. THE D ETAILED SHORTCOMINGS POINTED OUT BY THE DVO HIMSELF SUGGEST S THAT THE QUANTUM OF REBATE CONSIDERED BY HIM AT 10 % IS NOT APPROPRIATE. KEEPING IN VIEW THE LOCATION OF THE LA ND AND THE VARIOUS SHORT FALLS POINTED OUT BY THE DVO, WE DIRE CT THE ASSESSING OFFICER TO ALLOW REBATE OF 30% IN PLACE O F 10% AS CONSIDERED OUT BY THE DVO. WE ALSO FOUND THAT DVO H AS GIVEN A REBATE OF 10 % ON ACCOUNT OF LAND BEING SITUATED IN GREEN BELT AND NEARBY RAILWAY LINE AND ALSO ON ACCOUNT OF LOWER CATEGORY OCCUPANCY AND INDUSTRIAL CLUSTER NEARBY AN D LARGE SIZE PLOT. KEEPING IN VIEW THE VARIOUS DEFICIENCIES OBSERVED BY THE DVO HIMSELF, THE REBATE GIVEN BY HIM IS NOT APP ROPRIATE. KEEPING IN VIEW ALL THE FACTS AND CIRCUMSTANCES OF THE CASE, WE DIRECT THE ASSESSING OFFICER TO TAKE REBATE AT 20 % DUE TO THE LAND OF THE ASSESSEE SITUATED IN GREEN BELT AND NEA RBY RAILWAY LINE AND ALSO ON ACCOUNT OF LOWER CATEGORY OCCUPANC Y AND INDUSTRIAL CLUSTER NEARBY AND LARGE SIZE PLOT. WE F OUND THAT THE ENTIRE LAND WAS SITUATED IN THE SAME I.E. 507 AND 5 08, WHEREAS THE DVO HAS GIVEN REBATE ON ACCOUNT OF GREEN BELT A ND NEARBY RAILWAY LINE ETC. ONLY IN CASE OF PRAFUL KUMAR JAIN . SINCE THE ENTIRE LAND WAS SITUATED IN THE SAME KHASRA, THERE DOES NOT APPEAR TO BE ANY VALID REASON FOR NOT ALLOWING REBA TE IN CASE OF SHRI ARUN KUMAR JAIN, SMT. PUSHPA JAIN AND SHRI YOG ENDRA -: 16: - 16 JAIN, WHOSE LAND WAS ALSO SITUATED IN SAME KHASRA. PRECISELY, THERE WAS ONE LAND WHICH WAS OWNED BY DIFFERENT FAM ILY MEMBERS. ON ACCOUNT OF UNAUTHORIZED POSSESSION/ ENCROACHMENT BY TRIBAL PEOPLE BY PUTTING HUTS ON TH E LAND, WHICH COULD NOT BE REMOVED INSPITE OF POLICE COMPLA INT AT MANY TIMES BY ASSESSEE, WE DIRECT THE ASSESSING OFF ICER TO GIVE FURTHER REBATE OF 5% FOR ADVERSE POSSESSION. ACCOR DINGLY, WE DIRECT THE ASSESSING OFFICER TO RECOMPUTE CAPITAL G AIN AFTER GIVING REBATE OF 30% ON ACCOUNT OF HEAVY FILLING DU E TO EXCESS PIT/TRENCHES DUE TO EXCAVATION, AND 20% ON ACCOUNT OF LAND BEING SITUATED IN GREEN BELT, NEARBY RAILWAY LINE AND ALSO ON ACCOUNT OF LOWER CATEGORY OCCUPANCY AND INDUSTRIAL CLUSTER NEARBY AND LARGE SIZE PLOT, AND 5% ON ACCOUNT OF AD VERSE POSSESSION IN THE CASE OF ALL THE FOUR ASSESSEES WH OSE LAND WAS SITUATED IN THE SAME KHASRAS, PRECISELY ONE LAN D ONLY OWNED BY DIFFERENT FAMILY MEMBERS. WE DIRECT ACCORD INGLY. 17. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWE D IN PART. THIS ORDER HAS BEEN PRONOUNCED IN THE OPEN COURT ON 29 TH DECEMBER, 2011. (JOGINDER SINGH) ( R.C.SHARMA) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 29 TH DECEMBER, 2011. CPU* 2329