MUTIUR REHMAN NAUSHADALI, MUMBAI V. ITO 19(3)(3), MUMBAI

ITA 5703/MUM/2012

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 2757 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 9 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-07-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 18-03-2016
• Assessment Year: 2007-2008
• Appeal Filed On: 10-09-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SUMIT KUMAR ITA NO M A Y
• Assessee Lawyers: SNEHAL R SHAH
• Keywords: Sale consideration of property below Jantri Value; Value adopted by valuation officer; Fair market value; Valuation report
• Section: 50C

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, MUM BAI . . , , !' #$, % , & BEFORE SHRI R.C.SHARMA, AM AND SHRI AMARJIT SINGH, JM / I.T.A. NO.5703/MUM/12 ( %' ( / ASSESSMENT YEAR: 2007-08) SHRI MUTIUR REHMAN NAUSHADALI ASHIANA, CARTER ROAD, BANDRA(W), MUMBAI - 400050 ' / VS. INCOME TAX OFFICER WARD 19(3)(3 ) ROOM NO. 303, PIRAMAL CHAMBERS, LALBAUG, MUMBAI - 400012 / I.T.A. NO.5722/M/12 ( %' ( / ASSESSMENT YEAR: 2007-08) INCOME TAX OFFICER WARD 19(3)(3) ROOM NO. 303, PIRAMAL CHAMBERS, LALBAUG, MUMBAI - 400012 ' / VS. SHRI MUTIUR REHMAN NAUSHADALI ASHIANA, CARTER ROAD, BANDRA(W), MUMBAI - 400050 ./ ./ PAN/GIR NO. : AAAPN6589P ( / APPELLANT ) .. ( / RESPONDENT ) / DATE OF HEARING: 18.03.2016 !' /DATE OF PRONOUNCEMENT: 08.07.2016 ASSESSEE BY: SHRI SNEHAL R. SHAH DEPARTMENT BY: SHRI SUMIT KUMAR ITA NO.5722&5703/M/12 A.Y. 2007-08 2 #$ / O R D E R PER AMARJIT SINGH, JM: THIS ORDER SHALL DISPOSED OF BOTH THE APPEALS FILED BY THE ASSESSEE AS WELL AS BY THE REVENUE AGAINST THE ORDE R DATED 29.06.2012 PASSED BY THE COMMISSIONER OF INCOME TAX (APPEALS) 30, MUMBAI [HEREINAFTER REFERRED TO AS THE CIT(A)] RELEVANT TO THE A.Y.2007-08. THESE APPEALS ARE TAKEN UP TOGETHER FOR ADJUDICATIO N BEING BOTH THE APPEALS ACCRUED WITH THE SINGLE ORDER IN WHICH THE PARTIES ARE THE SAME AND CAN CONVENIENTLY ADJUDICATED BY A SINGLE ORDER. 2. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL:- 1. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS ) {HEREIN REFERRED AS LD. CIT(A)} HAS ERRED IN THE FA CTS AND CIRCUMSTANCES OF THE CASE BY PARTIALLY UPHOLDIN G THE ASSESSING OFFICERS (A.O.) DECISION. 2. A. THE LD. CIT(A) HAS ERRED IN LAW BY HOLDING TH E DECISION OF A.O. TO REFER THE MATTER U/S.55A OF THE ACT TO THE VALUATION OFFICER, WHICH WAS BEYOND THE SCOP E OF 55A AND AS SUCH IT WAS VOID-AB-INITIO. B. THE LD. CIT(A)SHOULD HAVE APPRECIATED THE FACT THAT THE APPELLANT HAD TAKEN THE VALUATION REP ORT FROM THE REGISTERED GOVERNMENT VALUER WHO HAD HAD DETERMINED THE FAIR MARKET VALUE AS ON 01.04.1981 A T RS.1,750/- PER SQ.FT. C. THE LD. CIT(A) SHOULD HAVE APPRECIATED THE FACT THE VALUE OF THE PROPERTY VALUED BY THE REGIST ERED VALUER WERE LESS THAN THE INDICATORS FOR THE YEAR 1981. 3. THE LD. CIT(A) HAS ERRED IN ESTIMATING THE VALUE OF THE PROPERTY AS ON 01.04.1981 AT RS.1,100/- BY ITA NO.5722&5703/M/12 A.Y. 2007-08 3 AVERAGING OUT THE RATES AS PER THE RATES DERIVED BY THE REGISTERED VALUER AND THE DEPARTMENT VALUATION OFFICER AS AGAINST THE VALUE CONSIDERED BY THE APPELLANT AT RS.1,750/- PER SQ.FT. 4. THE LD. CIT(A) HAS ERRED IN CONSIDERING THE BUIL T UP AREA (BUA) OF THE PROPERTY AT 2190.85 SQ.FT. (203.5 3 SQ. METER) AS PER THE VALUATION REPORT INSTEAD OF B UA CONSIDERED BY THE REGISTERED VALUER AT 2760 SQ.FT. (256.51 SQ. METER) BASED ON THE SALE AGREEMENT WHEREIN THE CARPET AREA OF THE PROPERTY WAS CONSIDERED AT 2300 SQ. FT. 5. THE LD. CIT(A) HAS ERRED IN NOT CONSIDERING THE PRIME LOCATION OF THE PROPERTY AND ITS PROXIMITY WITH REG ARD TO THE SEA VIEW AND TRANSPORTATION FOR DERIVING AT THE VALUE OF PROPERTY. 6. THE LD. CIT(A) HAS ERRED IN NOT CONSIDERING THE FACT THAT IN CASE OF VIJAYKUMAR M. SHAH V/S. DY.ADDL. CI T, THE HONORABLE MUMBAI TRIBUNAL HAD WORKED OUT AN AVERAGE RATE OF THE PROPERTY AT RS.1,677/- PER SQ. FT., LOCATED AT B G KHER ROAD (RIDGE ROAD), WHILE THE LD . CIT(A) HAS WORKED OUT THE AVERAGE RATE OF PROPERTY AT JUST RS.1,100/- PER SQ. FT. WHICH IS LOCATED NEAR O PERA HOUSE NEAR THE SEA-FACE. ADDITIONAL GROUND:- 1. WITHOUT PREJUDICE TO THE GROUND NO.5, THE LD. INCOM E TAX OFFICER WAS WRONG IN PASSING THE ASSESSMENT ORD ER IN CONFIRMING WITH THE ESTIMATION MADE BY THE VALUA TION OFFICER BY ISSUING VALUATION REPORT U/S.16A(5) OF T HE WEALTH TAX ACT R.W.S. 55A OF THE INCOME TAX ACT. 2. THE VALUATION OFFICER II (VO) HAD WRONGLY VALUED THE PROPERTY AS ON 01.04.1981 AT RS.9,86,103/- ITA NO.5722&5703/M/12 A.Y. 2007-08 4 3. THE VO HAD VALUED THE PROPERTY U/S.55A OF THE INCOM E TAX ACT. R.W.S.16A(5) WITHOUT CONSIDERING THE OBJEC TION RAISED BY THE APPELLANT. 3. THE REVENUE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL:- 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AND IN LAW, THE CIT(A) HAS ERRED IN DIRECTING THE ASSESSING OFFICER TO WORK OUT FMV OF THE PROPERTY B Y APPLYING THE RATE OF RS.1100/- PER SQ. FT. ON THE A REA OF 203.53 SQ. MTRS AS ON 01.04.1981 AS AGAINST 450/ - PER SQ. FT. ADOPTED IN THE ASSESSMENT ORDER WITHOUT APPRECIATING THE FACT:- A. WHILE VALUATION OF THE IMPUGNED PROPERTY, THE DVO H AS BROUGHT 4 COMPARABLE SALE INSTANCES ON RECORD WHICH ARE OF COMMERCIAL UNITS AND THE RATES OF COMMERCIAL UNI TS ARE ALWAYS MUCH HIGHER THAN THE RESIDENTIAL UNITS A ND THEREFORE, THE DVO HAS CORRECTLY TAKEN THE RATE OF THE RESIDENTIAL UNITS AND THEREFORE, THE DVO HAS CORREC TLY TAKEN THE RATES OF THE RESIDENTIAL UNITS AT A LOWER RATE THAN COMMERCIAL UNITS. B. THE VALUATION OF THE DVO IS MANDATORY AND BINDING F OR THE A.O. AND A.O. HAS CORRECTLY VALUED THE PROPERTY AS ON 01.04.1981 AFTER TAKING INTO CONSIDERATION THE VALU ATION REPORT OF THE DVO. C. THE DECISION OF THE ITAT DELHI BENCH IN THE CASE OF GULAB SINGH VS. ACIT (ITAT DELHI) 89 ITD 510. WHEREIN IT WAS HELD THAT ORDER OF THE DISTRICT VALU ATION OFFICER IS BINDING ON THE A.O. D. THE HONBLE ITAT, HYDERABAD B BENCH, IN THE CASE OF G.PRATAP REDDY, HYDERABAD VS. ACIT 10(1), HYDERABAD , HAS HELD THAT PROVISIONS OF SECTION (2), (3), (4), (5) AND (6) OF SECTION 16A AND SOME OTHER PROVISIONS OF WEA LTH TAX ACT 1957 SHALL, WITH MODIFICATIONS, APPLY IN RE LATING TO SUCH REFERENCE AS THEY APPLY IN RELATION TO A RE FERENCE MADE BY THE A.O. E. THE PROVISIONS OF SECTION 16(A)(6) OF THE WEALTH TA X ACT PROVIDES THAT ON RECEIPT OF THE ORDER OF THE VALUAT ION ITA NO.5722&5703/M/12 A.Y. 2007-08 5 OFFICER, THE AO SHALL, AS FAR AS THE VALUATION OF T HE ASSET IS CONCERNED, PROCEED TO COMPLETE THE ASSESSMENT IN CONFORMITY WITH THE ESTIMATE OF THE VALUATION OFFIC ER AND THE PROVISIONS OF SECTION 16A(6) OF THE WEALTH TAX ACT MAKES THE VALUATION MADE BY THE DVO BINDING ON THE A.O. 2. THE APPELLANT PRAYS THAT THE ORDER OF THE CIT(A) ON THE ABOVE GROUND BE SET ASIDE AND THAT OF THE AO BE RESTORED. 4. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSE E FILED RETURN ON INCOME DECLARING TOTAL INCOME TO THE TUNE OF RS.6,8 6,580/- ON 26.07.2007. THE RETURN OF INCOME WAS PROCESSED U/S .143(1) OF THE INCOME TAX ACT, 1961( IN SHORT THE ACT) ACCEPTING THE RETURN OF INCOME. THEREAFTER, THE CASE WAS SELECTED FOR SCRU TINY AND ACCORDINGLY STATUTORY NOTICE U/S.143(2) OF THE ACT WAS ISSUED AND SERVED UPON THE ASSESSEE. A FRESH NOTICE U/S.142(1 ) OF THE ACT WAS ALSO ISSUED ON 28.04.2009 AND SERVED UPON THE ASSES SEE. THE ASSESSEE HAD SOLD FLAT NO.601 & 602 AT SUKH SAGAR PREMISES C O-OP. SOCIETY LTD., N.S.PATKAR MARG, MUMBAI 400007 FOR A TOTAL CONSIDERATION OF RS.1,86,31,000/-. THE MARKET VALUE AS PER THE SECT ION 50C OF THE ACT WAS TAKEN AT RS.2,12,89,500/-. THE PROPERTY WAS AC QUIRED ON 30.09.1964 FOR A TOTAL CONSIDERATION OF RS.53,001/- . TO ASSESS THE LONG TERM CAPITAL GAIN ON SALE OF THE SAID PROPERTY , THE ASSESSEE FILED A VALUATION REPORT DATED 27.05.2006 IN WHICH THE VALU E OF PROPERTY WAS SHOWN AT RS.48,30,000/- AS ON 01.04.1981. THE REPO RT DID NOT CONSIDER THE SALE INSTANCES. THE SAID REPORT WAS P REPARED ON THE BASIS ITA NO.5722&5703/M/12 A.Y. 2007-08 6 RATES PUBLISHED IN THE TIMES OF INDIA DATED 31.10.1 996 IN WHICH THE VALUE OF THE SIMILAR PROPERTIES PEGGED AT RS.1,300/ - TO RS.2,400/- PER SQ.FT. THEREAFTER, THE ASSESSING OFFICER ISSUED TH E NOTICE U/S.133(6) OF THE ACT TO SUKH SAGAR PREMISES CO-OP. SOCIETY LTD. FOR PROVIDING THE DETAILS OF THE SALE TRANSACTION OF SIMILAR UNITS IN THE SAID BUILDING. THE SOCIETY PROVIDED THE FOLLOWING DETAILS:- SR. NO. UNIT NO. AREA AS PER SALE DEED PER SQ. FT. AGREEMENT YEAR VALUE OF TRANSFER 1 UG-8 555 1979-80 61,000/- 2 UG-11 355 1980-81 45,000/- 3 F-102 1250 1980-81 2,00,000/- 4 F-103 65 1980-81 8,000/- 5 F-105D 300 1980-81 42,000/- 6 F-201B 710 1980-81 2,58,000/- 7 F-203 360 1979-80 90,000/- SINCE THE VALUATION REPORT WAS NOT IN ACCORDANCE WI TH LAW. THEREFORE, THE ASSESSING OFFICER CALLED THE DETAILS OF THE DVO -II, MUMBAI WHO ASSESSED THE VALUE OF THE PROPERTY TO THE TUNE OF R S.9,86,103/-. THEREAFTER, THE ASSESSING OFFICER RELYING UPON THE REPORT SUBMITTED BY THE DVO-II, MUMBAI ASSESSED THE TOTAL INCOME TO THE TUNE OF RS.1,12,45,720/-. SINCE THE ASSESSEE WAS NOT SATIS FIED WITH THE VALUATION REPORT SUBMITTED BY THE DVO-II, MUMBAI, T HEREFORE, THE ASSESSEE FILED AN APPEAL BEFORE CIT(A) WHO DECIDED THE MATTER OF CONTROVERSY ON THE BASIS OF AVERAGE VALUE OF BOTH T HE REPORTS I.E. REPORT OF SHRI A.V.VORA FURNISHED BY THE ASSESSEE AND THE REPORT OF THE ITA NO.5722&5703/M/12 A.Y. 2007-08 7 DVO-II, MUMBAI. SINCE THE ASSESSEE AS WELL AS REVE NUE WERE NOT SATISFIED WITH THE ORDER PASSED BY THE CIT(A), THER EFORE BOTH THE PARTIES FILED APPEALS BEFORE US. 5. ALL THE ISSUES WHICH HAVE BEEN RAISED BY THE REV ENUE AS WELL AS ASSESSEE ARE IN CONNECTION WITH THE PROPER VALUATIO N OF THE SOLD PROPERTY I.E. FLAT NO.601 & 602 AT SUKH SAGAR PREMI SES CO-OP. SOCIETY LTD., N.S.PATKAR MARG, MUMBAI 400007 AS O N 01.04.1981 TO ASSESS THE LONG TERM CAPITAL GAIN FOR THE PURPOSE O F TAX. IT IS ON RECORD THAT THE ASSESSEE SOLD THE FLAT NO.601 & 602 AT SUKH SAGAR PREMISES CO-OP. SOCIETY LTD., N.S.PATKAR MARG, MUMB AI 400007 FOR A TOTAL CONSIDERATION OF RS.1,86,31,000/-. THE ASSESSEE ACQUIRED THE SAID PROPERTY BY VIRTUE OF AGREEMENT DATED 30.0 9.1964. THE MARKET VALUE AS PER THE SECTION 50C OF THE ACT HAS BEEN TAKEN AT RS.2,12,89,500/-. THE PROPERTY WAS ACQUIRED ON 30. 09.1964 FOR A TOTAL CONSIDERATION OF RS.53,001/-. SINCE THE PROPERTY W AS PURCHASED EARLIER TO 01.04.1981, THEREFORE FOR THE PURPOSE OF COMPUTATION OF LONG TERM CAPITAL GAIN U/S.55A OF THE ACT, THE ASSESSEE OPTED FOR FAIR MARKET VALUE OF THE PROPERTY AND GOT THE PROPERTY VALUED B Y VALUER DAG-DOO S. BHONSALE WHO FILED HIS VALUATION REPORT DATED 27 .05.2006 AND ASSESSED THE VALUE OF THE PROPERTY TO THE TUNE OF R S.48,30,000/- AS ON 01.04.1981. THE APPELLANT PURCHASED THE RESIDENTIA L PROPERTY AT RS.51,75,000/- AND CLAIMED THE DEDUCTION U/S.54 OF THE ACT. THE PROPERTY WHICH WAS SOLD FOR THE CONSIDERATION OF RS .1,86,31,000/- WAS ITA NO.5722&5703/M/12 A.Y. 2007-08 8 VALUED FOR THE PURPOSE OF STAMP DUTY, AS PER THE PR OVISION OF SECTION 50C OF THE ACT TO THE TUNE OF RS.2,12,89,500/-. TH E ASSESSING OFFICER RELIED UPON THE REPORT OF DVO-II, MUMBAI AND ACCORD INGLY VALUED THE PROPERTY AS ON 01.04.1981 TO THE TUNE OF RS.9,86,10 3/-. THE ASSESSEE FILED AN APPEAL BEFORE CIT(A) WHO ASSESSED THE VALU E OF PROPERTY @ RS.1100 PER SQ. FT. WHICH IS AVERAGE VALUE OF DVO-I I, MUMBAI VALUATION REPORT I.E. RS.450 PER SQ. FT. AND THE VA LUER REPORT WHO ASSESSED THE VALUE OF PROPERTY AS RS.1750 PER SQ. F T. IN VIEW OF THE PUBLICATION OF THE REPORT IN THE TIMES OF INDIA. 6. HOWEVER, THE SAID VALUATION WAS DETERMINED BY TH E CIT(A) ON THE BASIS OF THE ORDER PASSED BY THE INCOME TAX APP ELLATE TRIBUNAL IN CASE OF VIJAY KUMAR SHAH VS. DY. ADDL. CIT, RANGE 1 6(2), MUMBAI 124 ITD 93 (2010)(MUM). THE LEARNED REPRESENTATIVE OF THE ASSESSEE HAS ARGUED THAT THE VALUATION OF THE PROPERTY ASSES SED BY THE GOVERNMENT APPROVED VALUER WHO VALUED THE PROPERTY IN QUESTION IN HIS VALUATION REPORT DATED 27.05.2006 IS NOT LIABLE TO BE IGNORED IN VIEW OF THE LAW SETTLED IN 2007(1) SUPREME 1, SUPRE ME COURT OF INDIA IN CASE OF SUMANGALAM CO-OP. HOUSING SOCIETY LTD. V S. SUO MOTU, HIGH COURT OF GUJARAT & ORS. CIVIL APPEAL NO. 3986 OF 2004. WHILE ON THE OTHER HAND THE LEARNED REPRESENTATIVE OF THE DEPARTMENT HAS ARGUED THAT DVO REPORT IS BINDING UPON THE ASSESSIN G OFFICER WHICH IS NOT LIABLE TO BE DECLINED IN VIEW OF THE LAW SET TLED IN GULAB SINGH VS. ACIT (ITAT DELHI) 89 ITD 510. ITA NO.5722&5703/M/12 A.Y. 2007-08 9 7. NOW IT IS TO BE SEEN WHICH VALUATION REPORT IS H AVING CREDENCE AND RELIABLE AND IS LIABLE TO BE APPLICABLE IN THE PRESENT CASE JUSTIFIABLY. THE ASSESSEE WHILE SUBMITTING HIS RET URN OF INCOME HAS PLACED RELIANCE UPON THE REPORT OF THE GOVERNMENT V ALUER DAG-DOO S. BHONSALE DATED 27.05.2006 IN WHICH THE VALUER ASSES SED THE VALUE OF THE SOLD PROPERTY TO THE TUNE OF RS.48,30,000/- AS ON 01.04.1981. HOWEVER, THE ASSESSING OFFICER WAS NOT SATISFIED WI TH THE SAID REPORT AND CALLED THE REPORT OF DVO WHO ASSESSED THE VALUE OF THE PROPERTY IN QUESTION TO THE TUNE OF RS.9,86,103/-. AT THE COST OF REPETITION, THE VALUATION REPORT DATED 27.05.2006 FURNISHED BY THE DAG-DOO S. BHONSALE WAS PREPARED UPON THE APPROXIMATE RATE OF PROPERTY PUBLISHED IN THE NEWS PAPER IMES OF INDIA DATED 31. 10.1996 WHEREIN THE COMMERCIAL RATE HAS BEEN REFLECTED OF RS.1,300/ - TO RS.2,400/- PER SQ. FIT. SO FAR AS THE REPORT OF DVO IS CONCERNED, THE DVO RELIED UPON THE FOLLOWING TRANSACTIONS:- SALE INSTANCES SR. NO. DATE OF AGREEMENT / CONVEYANCE PROPERTY TRANSFEROR TRANSFEREE CONSIDERATION BUILD UP AREA RATE PER SQM. REMARKS 1. 05.07.1979 UNIT NO.22, GROUND GLOOR, PANCHRATNA CHS LTD., GIRGAON, MUMBAI-04 M/S.SAGAR INVESTMENT CORPN. SMT. TARUBALA R. DAFTARY RS.2,30,000/- 53.41 SQM. (CARPET AREA) RS.4306/- YOC- 1976,26 STOREYED BUILDING 2. 21.04.1979 UNIT NO.23, GROUND GLOOR, PANCHRATNA CHS LTD. GIRGAON, MUMBAI-04 M/S.SAGAR INVESTMENT CORPN. RAMESH M. DAFTARY RS.1,17,200/- 18.21 SQM. (CARPET AREA) RS.6436/- ---DO--- 3. 02.03.1983 OFFICE PREMISES NO. 22, GROUND GLOOR, M/S.SANGHAVI TEXTILES RS.3,59,037/- 26.66 SQM. RS.13,467/- ---DO--- ITA NO.5722&5703/M/12 A.Y. 2007-08 10 PANCHRATNA CHS LTD., MUMBAI-04 THE BOMBAY DIAMOND MERCHANT ASSOCIATION (CARPET AREA) 4. 21.04.1984 OFFICE NO.2014, 2 ND FLOOR, MANI MAHAL, MOTHER X CROSS ROAD, OPERA HOUSE, MUMBAI- 04 SMT. SARITRI H. LALYYANI M/S. FINOLEX CABLES LTD. RS.4,70,000/- 43.66 SQM. (CARPET AREA) RS.10,765/- G+4 FLOORS, YOC- 1969 HOWEVER, THE AVERAGE VALUE OF THE ABOVE MENTIONED P ROPERTY COMES TO THE TUNE OF RS.8743/- PER SQ. MTR. THE DVO ASSE SSED THE VALUE OF THE PROPERTY @ RS.4845/- PER SQ. MTR. BUT ON APPRAI SAL OF THE ENTIRE REPORT WE NOWHERE FIND ANY REASONS TO ARRIVE AT THI S CONCLUSION THAT THE RATE OF THE PROPERTY WAS TO THE TUNE OF RS.4845 PER SQ. MTR. AT THE RELEVANT TIME. IF THE AVERAGE VALUE OF THE SALE D EED WHICH HAVE BEEN RELIED BY THE DVO IN HIS REPORT IS TO BE TAKEN THEN THE SAME SHOULD BE TO THE TUNE OF RS.8743/- PER SQ. MTR. THE CIT(A) D ECIDED THE MATTER OF CONTROVERSY ON THE BASIS OF THE CASE TITLED AS V IJAY KUMAR SHAH VS. DY. ADDL. CIT, RANGE 16(2) (SUPRA) WHEREIN THE AVER AGE VALUE OF BOTH THE VALUERS I.E. VALUATION REPORT OF THE DVO A ND THE VALUATION REPORT OF GOVERNMENT VALUER RELIED BY THE ASSESSEE WERE TAKEN INTO CONSIDERATION. THE REPORT OF THE GOVERNMENT VALUER NOWHERE SEEMS JUSTIFIABLE BECAUSE THE SAID VALUATION IS BASED UPO N THE PRICES WHICH HAVE BEEN REFLECTED IN TIMES OF INDIA NEWSPAPER, HO WEVER, THE TRANSACTIONS DURING THE RELEVANT PERIOD OF PROPERTY HAVE NOT BEEN MENTIONED AT ALL. ACCORDINGLY, THE DVO ASSESSED TH E VALUE TO THE TUNE OF RS.4845/- PER SQ. MTR. WITHOUT ANY REASONS JUST TAKING THE ITA NO.5722&5703/M/12 A.Y. 2007-08 11 AVERAGE VALUE OF THE PROPERTY ASSESSED. THE DVO A SSESSED THE AVERAGE VALUE OF THE PROPERTY TO THE TUNE OF RS.874 3/- PER SQ. MTR. AS ON 01.04.1981. THE REPORT OF THE DVO IS BASED UPON THE TRANSACTION EFFECTED DURING THE SAID PERIOD. HOWEVER, THE TRAN SACTION OF THE RELEVANT YEAR NOWHERE SEEMS TO BE CONSIDERED WHILE ASSESSING THE VALUE OF THE PROPERTY IN QUESTION. THE CIT(A) TOOK AVERAGE VALUE OF BOTH THE REPORTS WHICH ARE NOT ON ANY BASIS OR WITH OUT ANY COGENT AND CONVINCING REASONS. AS PER THE REPORT THE FOUR SAL E DEEDS WHICH HAVE BEEN MENTIONED ABOVE ARE ON RECORD, THEREFORE THE A VERAGE VALUE OF THE SAID SALE DEED SEEMS JUSTIFIABLE BECAUSE NO OTH ER COMPARABLE ARE ON RECORD. AT THE RELEVANT TIME OF ASSESSMENT I.E. 01.04.1981 CONSIDERING THE VALUATION OF THE DVO ON THE BASIS O F THE SALE DEEDS MENTIONED THEREIN WE ARE OF THE VIEW THAT THE AVERA GE VALUE OF THE PROPERTY IN QUESTION SHOULD BE TO THE TUNE OF RS.87 43/- PER SQ. MTR. AS ON 01.08.1981. TAKING AVERAGE VALUE OF BOTH THE RE PORTS LOWERED DOWN THE VALUE OF THE PROPERTY BELOW RS.8743/- PER SQ. MTR. WHICH IS QUITE JUSTIFIABLE AND BASED UPON THE AVERAGE VALUE OF SALE DEEDS AVAILABLE ON RECORD AS MENTIONED BY THE DVO. 8. THERE IS NO DISPUTE WITH REGARD TO THE LAW RELI ED BY THE PARTIES ARE CONCERNED BUT THE APPLICABILITY OF THE LAW IS B ASED ON THE FACTS AND CIRCUMSTANCES OF THE EACH CASE. THE LAW RELIED BY THE LEARNED REPRESENTATIVE OF THE ASSESSEE IS CONCERNED, THE HO NBLE SUPREME COURT RELIED UPON THE REPORT OF THE VALUER TO DECID E THE CERTAIN MATTER ITA NO.5722&5703/M/12 A.Y. 2007-08 12 BUT IT NOWHERE SPEAKS THAT WHEN THE VALUATION REPOR T OF THE GOVERNMENT APPROVED VALUER AND DVO ARE ON THE FILE THEN IN THE SAID CIRCUMSTANCES THE VALUATION REPORT OF THE GOVERNMEN T APPROVED VALUER RELIED BY THE ASSESSEE IS ONLY REQUIRED TO BE ACCEP TABLE. 9. SO FAR AS THE RELIABILITY OF THE REPORT OF DVO I S CONCERNED AND THE LAW RELIED BY THE LEARNED DEPARTMENTAL REPRESEN TATIVE IS CONCERNED WE ARE OF THE VIEW THAT EACH AND EVERY ASPECT OF TH E REPORT IS REQUIRED TO BE ANALYSES IN VIEW OF THE FACTS AND CIRCUMSTANC ES OF THE EACH CASE. COMING TO THE INSTANT CASE THERE IS NO BASIS TO ASS ESS THE VALUE OF THE PROPERTY @ RS.4845/- PER SQ. MT. IN VIEW OF THE SA ID CIRCUMSTANCES WE SET ASIDE THE ORDER OF CIT(A) AND DIRECT THE ASS ESSING OFFICER TO ASSESSED THE VALUATION OF THE PROPERTY @ RS.8743/- PER SQ. MTR. FOR ASSESSING THE LONG TERM CAPITAL GAIN. THE ASSESSIN G OFFICER IS DIRECTED TO DECIDE THE MATTER OF CONTROVERSY IN THE OBSERVATIONS MADE ABOVE IN ACCORDANCE WITH LAW AFTER PROVIDING AN OPP ORTUNITY OF BEING HEARD TO THE ASSESSEE. ACCORDINGLY APPEAL OF THE ASSESSEE IS ALLOWED AND REVENUE IS DISMISSED. 10. IN THE RESULT, BOTH THE APPEALS FILED BY THE ASSESSEE IS HEREBY ALLOWED AND APPEAL FILED BY THE REVENUE IS HEREBY D ISMISSED . ITA NO.5722&5703/M/12 A.Y. 2007-08 13 ORDER PRONOUNCED IN THE OPEN COURT ON 8 TH JULY , 2016. SD/- SD/- (R.C.SHARMA) (AMARJIT SINGH) # / ACCOUNTANT MEMBER %& # /JUDICIAL MEMBER ' ( MUMBAI; )# DATED :8 TH JULY, 2016 MP MP MP MP * +%'#, -,(' / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. * ( ) / THE CIT(A)- 4. * / CIT 5. -./ &&01 , 01' , ' ( / DR, ITAT, MUMBAI 6. /34 5 / GUARD FILE. ' / BY ORDER, - & //TRUE COPY// ./$ ! /(DY./ASSTT. REGISTRAR) , ' ( / ITAT, MUMBAI