ACIT 16(3), MUMBAI V. DILIP SHOORJI, MUMBAI

ITA 5987/MUM/2013

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 2723 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 9 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-07-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: D
• Next Hearing Date: 12-05-2015
• Assessment Year: 2009-2010
• Appeal Filed On: 10-10-2013
• 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; Competent authority
• Section: 143(3); 50C

Judgement Text

D IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, MUMBAI BEFORE SHRI SAKTIJIT DEY, JUDICIAL MEMBER AND SHRI RAMIT KOCHAR, ACCOUNTANT MEMBER ./ I.T.A. NO.5987 /MUM/2013 ( / ASSESSMENT YEAR : 2009-10) ASSTT. COMMISSIONER OF INCOME TAX 16(3), MATRU MANDIR, 2 ND FLOOR, R. NO. 206, TARDEO ROAD, MUMBAI 400 007. / V. SHRI DILIP SHOORJI, 4 TH FLOOR, CUTCH CASTLE, 523, S.V.P. ROAD, OPERA HOUSE, MUMBAI 400 004. ./ PAN : AOQPS0438E ( / APPELLANT ) .. ( / RESPONDENT ) REVENUE BY : SHRI SANJEEV KASHYAP ,DR ASSESSEE BY : SHRI J.P. BAIRAGRA / DATE OF HEARING : 18-04-2016 / DATE OF PRONOUNCEMENT : 12-07-2016 / O R D E R PER RAMIT KOCHAR, ACCOUNTANT MEMBER THIS APPEAL, FILED BY THE REVENUE, BEING ITA NO. 5 987/MUM/2013, IS DIRECTED AGAINST THE ORDER DATED 15-07-2013 PASSED BY LEARNED COMMISSIONER OF INCOME TAX (APPEALS)- 27, MUMBAI (HEREINAFTER CA LLED THE CIT(A)), FOR THE ASSESSMENT YEAR 2009-10, THE APPELLATE PROCEEDINGS BEFORE THE LEARNED CIT(A) ARISING FROM THE ASSESSMENT ORDER DATED 30-12-2011 PASSED BY THE LEARNED ASSESSING OFFICER (HEREINAFTER CALLED THE AO) U/S 143(3) OF THE INCOME TAX ACT,1961 (HEREINAFTER CALLED THE ACT). ITA 5987/MUM/2013 2 2. THE GROUNDS OF APPEAL RAISED BY THE REVENUE BEF ORE INCOME TAX APPELLATE TRIBUNAL, MUMBAI (HEREINAFTER CALLED THE TRIBUNAL) IN THE MEMO OF APPEAL FILED WITH THE TRIBUNAL READ AS UNDER:- 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND I N LAW, ID. CIT(A) HAS ERRED IN ALLOWING RELIEF TO THE ASSESSEE BY ADOPT ING MEAN VALUE OF THE PROPERTIES BASED ON VALUATION REPORTS SUBMITTED B Y THE DVO AND ASSESSEE VALUER FOR THE PURPOSE OF COST OF ACQUISITI ON OF LAND AS ON 01.04.1981 WITHOUT GIVING CREDENCE TO VALUE ADOPTED B Y DISTRICT VALUATION OFFICER U/S 55A. 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, ID. CIT(A) HAS ERRED IN NOT APPRECIATING THE FACT THAT THE INCOME-TAX DOES NOT PERMIT MEAN VALUE OF GOVERNMENT VALUER AND REGISTER VALUE FOR THE PURPOSE OF COST OF ACQUISITION AS ON 01.04.1981. 3. THE APPELLANT CRAVES LEAVE TO AMEND OR ALTER ANY GROUND OR ADD A NEW GROUND WHICH MAY BE NECESSARY. THE APPELLANT PRAY THAT THE ORDER OF THE CIT(A) ON THE ABOVE GROUNDS BE SET ASIDE AND THAT OF THE ASSESSING OFFICER BE RESTOR ED. 3. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSE E IS AN INDIVIDUAL DERIVING INCOME FROM HOUSE PROPERTY, CAPITAL GAINS AND ALSO INCOME FROM OTHER SOURCES. DURING ASSESSMENT PROCEEDINGS U/S 143(3) READ WITH SECTION 143(2) OF THE ACT, THE ASSESSEE SUBMITTED ALL THE SUPPORT ING DOCUMENTS FOR COMPUTATION OF CAPITAL GAINS , LIKE AGREEMENTS, RAT ES AS PER THE READY RECKONER, MAPS OF THE PLOT SOLD. THE ASSESSEE HAS S HOWN THE SALE CONSIDERATION AS PER SECTION 50C OF THE ACT. HOWEV ER, THE A.O. OBSERVED THAT THE ASSESSEE HAS COMPUTED THE COST OF ACQUISITION A S ON 1 ST APRIL, 1981 AS PER THE READY RECKONERS RATE FOR DEVELOPED LAND. TH E A.O. REFERRED THE CASE TO THE DVO-I , MUMBAI FOR DETERMINATION OF FMV/COST OF ACQUISITION AND SALE VALUE U/S 50-C AND 55A OF THE ACT ON 22.11.2011. T HE DVO ISSUED NOTICE DATED 30 TH NOVEMBER, 2011 U/S 55A OF THE ACT TO THE ASSESSEE. THE DVO-I, MUMBAI FURTHER REFERRED THE MATTER TO THE DVOII,MU MBAI VIDE LETTER DATED 21 ST DECEMBER, 2011 FOR SOME PLOTS AS THE JURISDICTION WAS LYING WITH HIM. ITA 5987/MUM/2013 3 THE DVO-II, MUMBAI INFORMED THE A.O. THAT THE VALUA TION OF PROPERTY WILL TAKE SOME TIME AND AS SUCH THE A.O. WAS REQUESTED T O PASS A PROTECTIVE ORDER AS THE CASE WAS GETTING TIME BARRED. THE A.O. ACCO RDINGLY PASSED THE ASSESSMENT ORDER DATED 30-12-2011 U/S 143(3) OF THE ACT BASED UPON THE INFORMATION AVAILABLE ON RECORD AND IT IS STATED IN THE ASSESSMENT ORDER DATED 30-12-2011 PASSED BY THE AO THAT THE APPROPRIATE AC TION WILL BE TAKEN ONCE THE DVO REPORT IS RECEIVED. DURING ASSESSMENT PROCEEDINGS U/S 143(3) READ WITH SECTION 143(2) OF THE ACT, THE ASSESSEE WAS ASKED BY THE AO TO JUSTIFY TH E ADOPTION OF RATES AS PER THE DEFINITION OF THE DEVELOPED LAND , AND RELIAN CE BY THE ASSESSEE IN CONTEXT THEREOF ON THE REFERENCE IN THE AGREEMENTS THAT THE LAND IS DEVELOPED BECAUSE THERE WERE STRUCTURES STANDING THEREON AND IN CERTA IN CASES THERE WERE NOTIFICATION BY COLLECTOR THAT THE AREAS ARE NOTIFI ED TO BE SLUMS. THE A.O. OBSERVED THAT AS PER RECKONER OF VALUATIO N OF PROPERTY AS ON 1-4- 1981 , THE RATE MENTIONED FOR DEVELOPED LAND WAS AP PLICABLE TO THOSE LAND WHICH IS DEFINED AS LAND HAS APPROVED BUILDING AND HAS FACILITIES OF ROAD, ELECTRICITY, DRAINAGE AND WATER OR HAS GOT NON-AGRI CULTURAL PERMISSION . THE A.O. DID NOT ACCEPT THE SUBMISSIONS OF THE ASSE SSEE DUE TO THE REASONS MENTIONED BELOW AGAINST EACH PROPERTY IN THE LIGHT OF DEFINITION OF DEVELOPED LAND AS INDICATED ABOVE, VIDE ASSESSMENT ORDERS DA TED 30-12-2011 PASSED BY THE AO U/S. 143(3) OF THE ACT:- (I) CTS NO. 7/1 OF VILLAGE HARIYALI, AREA OF PLOT IS 10,249.48 SQ FTS AND COST OF ACQUISITION WAS TAKEN AS RS.96 PER SQ.F T.(AS DEVELOPED LAND). AS PER THE DEED OF CONVEYANCE, DATED 2ND APRIL, 200 8, IT IS FOUND THAT THE LAND BEARING CTS NO.7/1 ADMEASURING 952.20 SQ MTRS SITUATE, LYING AND ITA 5987/MUM/2013 4 BEING AT VILLAGE HARIYAL TALUKA KURLA HAS BEEN DECL ARED AS SLUM VIDE GAZETTE NOTIFICATION NO. SLM-OCK-II-WS-I-3025 DATED 6TH APRIL, 1984. IT IS FURTHER MENTIONED THAT: 'WE HEREBY ALSO AGREE AN D UNDERTAKE TO DEVELOP THE SAID SLUM NOTIFIED PROPERTY AS MENTIONE D HEREINABOVE UNDER THE SLUM AND THE SAME HEREIN UNDER THE PRESCRIBED G UIDELINES OF DEVELOPMENT CONTROL REGULATION FOR GREATER BOMBAY, 1991, 33(10), 33(14- D) OF MUMBAI MUNICIPAL CORPORATION AND CONFORMITY W ITH SRA(SLUM REHABILITATION AUTHORITY) OR ANY OTHER SCHEME PERMI SSIBLE BY LAW BY DEMOLISHING THE EXISTING STRUCTURES AND CONSTRUCTIO N NEW BUILDING IN ITS PLACE AS PER SLUM REHABILITATION SCHEME UNDER THE M AHARASHTRA SLUM AREA(IMPROVEMENT, CLEARANCE AND RE-DEVELOPMENT) ACT , 1971'. IT IS CLEAR FROM THE ABOVE FACTS, THE LAND HAS BEEN PURCHASED F OR DEVELOP THE SAME WHICH IS ALSO CLEAR FROM THE INDEMNITY BOND FILED B Y M/S. KANCHI KONCEPT IT AND AS PER THE STAMP DUTY AUTHORITY ALSO THE LAND HAS ZERO VALUE FOR THE PURPOSE OF STAMP DUTY. THE SAID LAND HAD ALREADY DECLARED AS SLUM AS ON 6TH APRIL, 1984 INDICATED THAT LAND I S NOT DEVELOPED AS ON 0L.04.1981. HENCE, FAIR MARKET VALUE OF LAND TAKEN BY THE ASSESSEE AS DEVELOPED LAND IS NOT JUSTIFIABLE. ACCORDINGLY, THE F.M.V IS TAKEN AS RS.30 PER SQFT AS FOR UNDEVELOPED LAND WHICH COMES TO RS. 3,07,484/-. (II) CTS NO. 122(PT) OF VILLAGE HARIYALI. AREA OF P LOT IS 8156.85 SQ FTS. COST OF ACQUISITION TAKEN BY THE ASSESSEE IS R S. 100/- PER SQ FTS. (AS DEVELOPED LAND). THE AFORESAID PROPERTY HAS BEEN NOTIFIED AS SLUM AR EA VIDE THE NOTIFICATION NO. SLM-DC-K-11,77, PUBLISHED IN THE M AHARASHTRA GOVERNMENT GAZETTEE DATED 8TH FEBRUARY, 1979 ISSUED BY THE DEPUTY COLLECTOR (ENC) & COMPETENT AUTHORITY, SUB DIVISION , KURLA-II. IT IS FURTHER FOUND THAT THE PURCHASER AGREED AND UNDERTOOK TO DE VELOP THE SAID SLUM NOTIFIED PROPERTY AS MENTIONED HEREINABOVE UNDER TH E SLUM AND THE SAME HEREIN UNDER THE PRESCRIBED GUIDELINES OF DEVELOPME NT CONTROL REGULATION ITA 5987/MUM/2013 5 FOR GREATER BOMBAY, 1991, 33(10), 33(14-D) OF MUMBA I MUNICIPAL CORPORATION AND CONFORMITY WITH SRA(SLUM REHABILITA TION AUTHORITY) OR ANY OTHER SCHEME PERMISSIBLE BY LAW BY DEMOLISHING THE EXISTING STRUCTURES AND CONSTRUCTION NEW BUILDING IN ITS PLA CE AS PER SLUM REHABILITATION SCHEME UNDER THE MAHARASHTRA SLUM AR EA (IMPROVEMENT, CLEARANCE AND RE-DEVELOPMENT) ACT, 1971. IN VIEW OF THE ABOVE, THE PLOT OF LAND IS ENCROACHED BY THE SLUM REHABILITANT AND IT IS UNDEVELOPED PROPERTIES AS ON 0 L.04.1981, HENCE THE COST OF ACQ UISITION IS TAKEN AS RS.26 PER SQFT AS FOR UNDEVELOPED LAND WHICH COMES TO RS.2,12,078/ - . (III) CTS NO. 238, 239, 240, 241, 245, 214, 215, 21 6, 217, AREA: 290,493.45 SQFTS, THE ASSESSEE HAS ONLY 2L.5% OF SH ARES IN THESE PROPERTY. AS PER PARA NO. 'N' OF DEED OF CONVEYANCE THAT SOME PORTION OF THE SAID PROPERTY IS ENCROACHED. IN VIEW OF THE ABOVE, THE P LOT OF LAND IS TREATED AS UNDEVELOPED AND COST OF ACQUISITION IS TAKEN AS RS. 24 PER SQFT WHICH COMES TO RS. 69,71,843/-. 2L.5% OF 69,71,843/- IS R S.14,98,946/-. (IV) CTS NO.62/39(PART) OF VILLAGE HARIYALI, AREA-5 99.99SQFTS, COST OF ACQUISITION TAKEN BY THE ASSESSEE IS RS.112/ - PER SQFT (AS DEVELOPED LAND). AS PER THE DEED OF CONVEYANCE IT IS CLEAR THAT THIS PROPERTY IS ALREADY ENCROACHED AND WAS NOT HAVING ANY APPROVED BUILDING S OR MEETS THE OTHER CRITERIA AS PER DEFINITION OF DEVELOPED LAND. HENCE, THE COST OF ACQUISITION IS TAKEN AS RS.32/ - PER SQFT AS FOR UN DEVELOPED LAND WHICH COMES TO RS.4,223 / -. (V) CTS NO.62/39(PART) OF VILLAGE HARIYALI, AREA: 5 99.99SQFT. COST OF ACQUISITION TAKEN BY THE ASSESSEE IS RS. 112/- PER SQ.FT. (AS DEVELOPED LAND). ITA 5987/MUM/2013 6 AS PER THE DEED OF CONVEYANCE IT IS CLEAR THAT THIS PROPERTY IS ALREADY ENCROACHED AND WAS NOT HAVING ANY APPROVED BUILDING S OR MEETS THE OTHER CRITERIA AS PER DEFINITION OF DEVELOPED LAND. HENCE, COST OF ACQUISITION IS TAKEN AS RS.32/ - PER SQFT AS FOR UN DEVELOPED LAND WHICH COMES TO RS.19,200/ -. (VI) CTS NO.181(PT) OF VILLAGE HARIYALI, AREA: 44,1 32.40SQFT, COST OF ACQUISITION TAKEN BY THE ASSESSEE AS RS.52/ - PER S QFT(AS DEVELOPED LAND) THE AFORESAID PROPERTY HAS BEEN NOTIFIED AS SLUM AR EA VIDE THE NOTIFICATION NO. SLM-OC-K-L1, 77, PUBLISHED IN THE MAHARASHTRA GOVERNMENT GAZETTE, DATED 8TH FEBRUARY, 1979. IT IS ALSO FOUND FROM THE DEED OF CONVEYANCE, THE PROPERTY HAS VARIOUS RESERV ATIONS IN FORCE ON VARIOUS PORTION OF THE SAID PROPERTY. FURTHER, THE PROPERTY WAS SOLD TO DEVELOP THE SLUM AREA. IN VIEW OF THE ABOVE AND ALS O SINCE IT DOES NOT FULFILL THE CONDITIONS OF DEVELOPED LAND, THE COST OF ACQUISITION IS TAKEN AS RS. 20/- PER SQFT AS FOR UNDEVELOPED LAND WHICH COM ES TO RS.8,82,648/-. (VII) CTS NO. 215,221,231 OF VILLAGE HARIYALI, AREA : 67045.73 SQFT, COST OF ACQUISITION TAKEN BY THE ASSESSEE AS RS.25/ - PER SQFT. THE AFORESAID PROPERTY HAS BEEN NOTIFIED AS SLUM AR EA VIDE THE NOTIFICATION NO. SLM-OC-K-11, 77, PUBLISHED IN THE MAHARASHTRA GOVERNMENT GAZETTE, DATED 8TH FEBRUARY, 1979. IT IS ALSO FOUND FROM THE DEED OF CONVEYANCE THAT THE SAID PROPERTY IS ALMOST FULLY RESERVED BY VARIOUS RESERVATIONS. IN VIEW OF THE ABOVE AND ALSO NOT FULFILL THE CONDITION OF DEVELOPED PROPERTY, THE COST OF ACQUIS ITION IS TAKEN AS RS.20/- PER SQFT WHICH COMES TO RS.13,40,915/-. ITA 5987/MUM/2013 7 THUS, IT WAS OBSERVED BY THE A.O. THAT PROPERTIES C LAIMED TO BE PRESENT ON THE PLOTS SOLD BY THE ASSESSEE ARE IN THE NATURE OF SLU MS/ENCROACHMENTS AND ARE NOT APPROVED BUILDING PER-SE. THE A.O. OBSERVED THAT THE ASSESSEE HAS ALSO NOT PROVED THE OTHER CONDITIONS AS PER THE AFOREMEN TIONED DEFINITION OF DEVELOPED LAND. IT WAS ALSO OBSERVED BY THE AO THAT SOME PROPERTIES ARE UNDER THE FORCE OF RESERVATIONS. THUS , THE A.O. A DOPTED THE RATE OF UNDEVELOPED LAND FOR THE PURPOSE OF VALUATION OF CO ST OF ACQUISITION AS ON 01- 04-1981 AS PER THE READY RECKONER RATES AND RECOMP UTED THE CAPITAL GAINS ACCORDINGLY, VIDE ASSESSMENT ORDERS DATED 30-12-201 1 PASSED BY THE AO U/S 143(3) OF THE ACT. 4. AGGRIEVED BY THE ASSESSMENT ORDERS DATED 30-12-2 011 PASSED BY THE A.O. U/S 143(3) OF THE ACT, THE ASSESSEE FILED FIRST APP EAL BEFORE THE LEARNED CIT(A). 5. BEFORE THE LEARNED CIT(A), THE ASSESSEE SUBMITTE D THAT THE ONLY ISSUE INVOLVED IN THIS APPEAL IS REGARDING COMPUTATION OF LONG TERM CAPITAL GAIN ON SALE OF SEVEN PROPERTIES IN WHICH THE ASSESSEE HAS 1/3 RD SHARE. THE ASSESSEE HAS DECLARED THE LONG TERM CAPITAL LOSS ON THE SALE OF THESE SEVEN PROPERTIES AT RS. 8,96,153/- AND THE STATEMENT OF COMPUTATION OF CAPITAL GAIN WAS DULY ENCLOSED. IT WAS SUBMITTED THAT THESE PROPERTIES W ERE INHERITED BY THE ASSESSEE WHICH WERE PURCHASED BY THE PREVIOUS OWNER PRIOR TO 1-4-1981, THE ASSESSEE HAS ADOPTED COST OF THE PROPERTIES AS ON 1 -4-1981 BY TAKING READY RECKONER RATES OF DEVELOPED LAND AS ON 1-4-1981, TH E READY RECKONER RATE LIST AS ON 01-04-1981 WERE ENCLOSED BY THE ASSESSEE. SI NCE THE A.O. WAS NOT SATISFIED OF THE ABOVE READY RECKONER RATE OF DEVEL OPED LAND AS ON 01-04-1981, THE AO REFERRED THE VALUATION OF THESE PROPERTIES A S ON 01-04-1981 TO THE DVO-I, MUMBAI ON 22-11-2011, HOWEVER, THE A.O. DID NOT RECEIVED THE VALUATION REPORT FROM THE DVO , WHEREBY THE DVO INF ORMED THE AO THAT SINCE THE VALUATION OF THE PROPERTY WILL TAKE SOME TIME, THE A.O. MAY PASS A PROTECTIVE ORDER AS THE CASE WAS GETTING TIME BARRE D. THUS, THE A.O. HAS ITA 5987/MUM/2013 8 ESTIMATED THE VALUE ON HIS OWN AND HELD THAT APPROP RIATE ACTION WILL BE TAKEN ONCE THE REPORT FROM THE DVO IS RECEIVED AND IN VIE W OF TIME BARRING DATE, THE ASSESSMENT ORDER U/S 143(3) OF THE ACT WAS PASSED B ASED ON THE INFORMATION AVAILABLE ON RECORD. IN THE ABSENCE OF THE DVO REP ORT, THE A.O. FINALISED THE ASSESSMENT BY ESTIMATING VALUE AND AGREED TO ADOPT THE READY RECKONER RATE OF 1-4-1981 BUT HE HAD TAKEN THE RATE OF UNDEVELOPE D LAND WHILE THE ASSESSEE HAS ADOPTED THE READY RECKONER RATE OF DEVELOPED LA ND. THE ASSESSEE EXPLAINED THAT DEVELOPED LAND MEANS LAND THAT HAS A PPROVED BUILDING AND HAS FACILITIES OF ROAD, ELECTRICITY, DRAINAGE AND W ATER OR HAS GOT NON- AGRICULTURAL PERMISSION. THE A.O. REJECTED THE CON TENTIONS OF THE ASSESSEE ON THE GROUND THAT THESE LANDS ARE DECLARED AS SLUM BY THE MAHARASHTRA GOVERNMENT AND THE PURCHASER OF THE LAND HAS TO DEV ELOP THE PROPERTY. THE ASSESSEE AVERRED BEFORE THE LEARNED CIT(A) THAT THE A.O. ERRED IN NOT CONSIDERING THE FACTS THAT ON THESE LANDS STRUCTURE S CREATED BY THE INHABITANTS CALLED SLUM DWELLERS ARE EXISTING, THER E ARE FACILITIES LIKE ROAD ELECTRICITY, DRAINAGE AND WATER ON THESE LANDS AND THESE LANDS ARE NON- AGRICULTURAL LANDS AS PER NON-AGRICULTURE PERMISSIO N ISSUED BY THE AUTHORITIES. THE PURCHASER OF THE LAND HAS TO DEVEL OP THE PROPERTY BY REMOVING THE STRUCTURE AND DEVELOP THE PROPERTY THE REBY SETTLE THE HUTMENTS DWELLERS AND SELL THE BALANCE PROPERTY, MEANING RED EVELOPMENT OF PROPERTY. IT WAS SUBMITTED BY THE ASSESSEE BEFORE THE LEARNED CIT(A) THAT DVO HAS DONE VALUATION OF ONLY ONE PROPERTY AND VALUATION OF THE REMAINING SIX OTHER PROPERTIES HAS BEEN DONE BY THE VALUATION OFFICER A ND THE REPORTS WERE SUBMITTED BY THE ASSESSEE BEFORE THE LEARNED CIT(A) OF DVO/VO. THE COMPREHENSIVE CHART SHOWING THE VALUATION OF 1/3 RD SHARE OF THE ASSESSEE AS ON 01-04-1981 WAS ALSO FURNISHED BEFORE THE LEARNED CIT(A) COMPRISING THE VALUE DECLARED BY THE ASSESSEE IN THE RETURN OF INC OME FILED WITH THE REVENUE, THE VALUE AS ESTIMATED BY THE A.O. IN THE ASSESSMEN T ORDER , THE VALUE AS MADE BY DVO/VALUATION OFFICER AND THE VALUE AS PER THE ASSESSEES VALUER SHAH & SHAH WHICH WAS SUBMITTED BEFORE THE DVO/VO W HILE RAISING THE ITA 5987/MUM/2013 9 OBJECTION AGAINST THE DRAFT VALUATION REPORTS , WER E ALL FURNISHED BEFORE THE LD. CIT(A) DURING APPELLATE PROCEEDINGS BY THE ASSESSEE . IN THE LIGHT OF ABOVE, THE ASSESSEE SUBMITTED BEFORE THE LEARNED CIT(A) THAT THE VALUE ADOPTED BY THE A.O. AS ON 1-4-1981 BY TREATING THE LAND AS UNDEVEL OPED LAND WAS NOT JUSTIFIED AND THE ASSESSEES VALUATION AS PER READY RECKONER RATE OF 1-4-1981 BY TREATING THE LAND AS DEVELOPED LAND IS CORRECT A ND ACCORDINGLY THE COST OF ACQUISITION AS ON 1-4-1981 OF THE 1/3 RD SHARE OF THE ASSESSEE ADOPTED BY THE A.O. AT RS. 14,21,831/- INSTEAD OF VALUE ADOPTED BY THE ASSESSEE AT RS. 43,86,339/- WAS NOT JUSTIFIED AND THE ASSESSEE PRAY ED BEFORE THE LEARNED CIT(A) THAT THE ADDITION MADE BY THE A.O. MAY BE DE LETED. IT WAS ALSO SUBMITTED BY THE ASSESSEE BEFORE LEARNED CIT(A) THA T WHILE VALUING THE SAID LAND, THE DVO/VO HAS ACCEPTED THIS LAND AS DEVELOPE D LAND, HOWEVER, THEY HAVE NOT ACCEPTED THE READY RECKONER RATE BUT ADOPT ED THE VALUATION AS PER SALE INSTANCES IN THE VICINITY. THUS, THE ACTION O F THE A.O. IN VALUING THE LAND AS UNDEVELOPED LAND THOUGH AGREEING WITH THE READY RECKONER RATE IS NOT JUSTIFIED. IT WAS SUBMITTED THAT THE DVO AFTER REJ ECTING READY RECKONER RATES AS ON 01-04-1981, HAS VALUED THE LAND AS ON 1-4-198 1 AS PER THE SHARE OF THE ASSESSEE WHICH COMES TO RS. 29,36,679/- , WHEREAS T HE VALUER OF THE ASSESSEE M/S SHAH & SHAH IN THE REPORT GIVEN TO THE DVO VALU ED THE SAID LAND AT RS. 49,57,208/- WHEREBY THE ASSESSEE VALUER CITED THE S ALE INSTANCES OF THAT YEAR IN THE VICINITY. IT WAS OBJECTED THAT THE A.O. CANN OT EXTEND THE TIME BARRING LIMIT OF THE ASSESSMENT IF THE DVO REPORT IS NOT RE CEIVED. IN SUPPORT THE ASSESSEE RELIED ON THE DECISION OF HONBLE CALCUTTA HIGH COURT IN THE CASE OF RELIANCE JUTE & INDUSTRIES LTD. V. ITO, 150 ITR 643 (CAL.) AND IN THE CASE OF SHAHDARA (DELHI) SARANGPUR LIGHT RAILWAY CO. LTD. V . CIT, 208 ITR 882 (CAL.). IT WAS FURTHER SUBMITTED THAT ALL THE LANDS ARE DEV ELOPED LANDS HAVING STRUCTURE, ROAD, ELECTRICITY, DRAINAGE AND WATER FA CILITIES AND ARE NON AGRICULTURAL LANDS AS PER NON-AGRICULTURAL PERMISSI ON AND MERELY BECAUSE THEY ARE OCCUPIED BY HUTMENTS, IT CANNOT BE SAID TH AT THEY ARE NOT DEVELOPED LANDS. ITA 5987/MUM/2013 10 THE LD. CIT(A) OBSERVED THAT THE A.O. HAS MADE THE ADDITION BY VALUING THE LAND AS UNDEVELOPED LAND BASED ON THE READY RECKONE R RATE AS ON 01-04-1981 AS THE DVO REPORT WAS NOT RECEIVED AND THE ASSESSME NT WAS GETTING TIME BARRED. THE A.O. HAS MADE THE ASSESSMENT BY STATIN G THAT APPROPRIATE ACTION WILL BE TAKEN ONCE THE VALUATION REPORT IS RECEIVED FROM DVO. NOW THE DVO/VO REPORT WAS RECEIVED AND HAS BEEN MADE PART O F THE PROCEEDINGS BEFORE THE LD. CIT(A). THE ASSESSEE SUBMITTED BEFO RE THE LD. CIT(A) THAT THE DVO AND V.O. HAVE TREATED ALL THE LAND AS DEVELOPED LAND THOUGH THEY HAVE NOT ACCEPTED THE READY RECKONER RATES BUT ADOPTED T HE VALUATION AS PER SALE INSTANCES. THUS, IT WAS SUBMITTED THAT THE A.O.S ACTION IN VALUING THE LAND AS UNDEVELOPED THOUGH AGREEING WITH THE READY RECKO NER RATE IS NOT JUSTIFIED. THE LD. CIT(A) REJECTED THE CONTENTION OF THE ASSES SEE OBSERVING THAT THE A.O. HAS PASSED THE ORDER DUE TO TIME BARRING OF THE ASS ESSMENT AND THERE IS NO INFIRMITY IN THE ACTION OF THE AO KEEPING IN VIEW T HE FACTUAL MATRIX OF THE CASE. THE LD. CIT(A) OBSERVED THAT DIFFERENT AUTHORITIES HAVE VALUED THE LAND DIFFERENTLY WHICH IS EVIDENT FROM THE FOLLOWING TAB ULATION:- ASSES SEES VALUA TION AO VAL UAT ION VALUATI ON AS PER ASSESS EE VALUER VALU ATION AS PER VO/ DVO SR NO DESCRIPTION OF PROPERTY ADDRESS AREA IN SQ,FEETS PER SQ.FEE T TOTAL VALUE PER SQ. FEET TOTAL VALUE PER.SQ. FEET TOTAL VALUE PER SQ.FE ET TOTAL VALUE 1 CTS NO. 7/1 VILLAGE HARIYALI 10,249. 48 96.00 983,950. 08 30. 0 307,48 4.40 99.00 1,014,6 98.52 52.2 0 535,022. 86 2 CTS NO.122(PT) VILLAGE HARIYALI 8,156.8 5 100.0 0 815,685. 00 26. 00 212,07 8.10 99.00 807,52 8.15 47.0 0 383,371. 95 3 CTS NO.238,239,24 0,241,245,214, 215,216,217 290,49 3.45 88.00 25,563,4 23.60 24. 00 6,971, 842.80 92.00 26,725, 397.40 57.6 0 16,732,4 22.72 4 CTS 62/39 PART VILLAGE HARIYALI 132.00 112.0 0 14,784.0 0 32. 00 4223.0 0 105.00 13,860. 00 43.5 0 5,742.00 5 CTS 62/39 PART VIILAGE HARIYAL I 599.99 112.0 0 67,198.8 8 32. 00 19,199 ,68 105.00 62,998. 95 43.5 0 26,099.5 7 6 CTS 1801 (PT) VILLAGE HARIYALI 44,132. 40 52.00 2,294,88 4.80 20. 00 882,64 8.00 65.00 2868,6 06.00 35.6 0 1,571,11 3.44 ITA 5987/MUM/2013 11 7 CTS 215,221,231 VILLAGE HARRIYAL I 67,045. 73 52.00 3,486,33 7.96 20. 00 1,340, 914.60 65.00 4,357,9 72.45 40.1 4 2,691,21 5.60 TOTAL OF(1+2+4=5+6+ 7 7,662,88 0.72 2,766, 547.78 9,125,6 64.07 5,212,56 5.41 21.5% OF ITEM NO. 3 5,496,13 6.07 1,498, 946.20 5,745,9 60.44 3,597,47 0.88 GROSS TOTAL 13,159,0 16.79 4,265, 493.98 14,871, 624.51 8,810,03 6.30 1/3 SHARE OF ASSESSEE 4,386,33 8.93 1,421, 831.33 4,957,2 08.17 2,936,67 8.77 THE LD. CIT(A) HELD THAT AFTER THE RECEIPT OF THE R EPORT OF THE DVO/VO THERE WAS NO DISPUTE THAT THE CAPITAL ASSETS IN QUESTION WERE DEVELOPED LAND AND HENCE THE VALUE ADOPTED BY THE A.O. WAS NOT CORRECT METHOD OF ESTIMATING THE FAIR MARKET VALUE AS ON 1-4-1981 AS IT SUFFERED FRO M A MAJOR FALLACY. THE MAJOR REASONS FOR THE DIFFERENCE IN VALUE ADOPTED B Y THE DVO/VO AND THE ASSESSEES REGISTERED VALUER AS SUBMITTED BY THE AS SESSEE BEFORE THE LEARNED CIT(A) ARE AS UNDER:- (I) OUT OF 7 PROPERTIES, 6 PROPERTIES ARE SITUATED IN VILLAGE HARIYALI, VIKHROLI (EAST) AND (WEST) AND ONLY ONE P ROPERTY IS SITUATED IN VILLAGE KANJUR (WEST). (II) THE SALE INSTANCES RELIED ON BY THE DVO/VO ARE OF MULUND (WEST), GHATKOPAR (EAST) AND BHANDUP (WEST) WHEREAS THE SALE INSTANCES RELIED ON BY THE APPELLANT'S REGISTERED V ALUER ARE OF HARIYALI VILLAGE. HERE, WE SUBMIT THAT HARIYALI VILLAGE COMES IN VIKH ROLI AREA WHILE GHATKOPAR AREA COMES PRIOR TO VIKHROLI FROM CST (VT ) SIDE ON THE CENTRAL RAILWAY ROUTE WHILE BHANDUP AND MULUND COME AFTER VIKROLI AND KANJURMARG ON THE CENTRAL RAILWAY ROUTE . FURTHER, SALE INSTANCES CITED BY THE APPELLANT'S RE GISTERED VALUER ARE MUCH CLOSER TO THE APPELLANT'S PROPERTIES I. E. LESS THAN 1 KM WHILE THE SALE INSTANCES CITED BY THE DVO/VO ARE WA Y BEYOND I.E. TWO RAILWAY STATIONS BEYOND THE AREA WHERE THE APPE LLANT'S PROPERTIES ARE SITUATED. ITA 5987/MUM/2013 12 ACCORDINGLY, WHEN THE SALE INSTANCES OF HARIYALI VI LLAGE ARE AVAILABLE, WHERE THE APPELLANT'S PROPERTIES ARE SIT UATED, WHY SALE INSTANCES OF AREAS COMING IN PLACES BEYOND SHOULD B E ADOPTED. (III) THE DVO/VO HAVE TAKEN THE SALE INSTANCES OF T HE YEAR 1983 AND 1985 WHILE THE APPELLANT'S REGISTERED VALU ER HAS TAKEN THE SALE INSTANCES AS OF THE YEAR 1982, WHICH IS MU CH CLOSER TO THE YEAR 1981. (IV) THE METHOD OF COMPUTATION TO DERIVE AT THE RAT E FOR EACH PROPERTY IS SPECIFICALLY DESCRIBED AND JUSTIFIED BY THE REGISTERED VALUER OF THE APPELLANT WHILE THE DVO/VO HAVE NOT G IVEN ANY METHOD OF COMPUTATION TO DENOTE HOW HE HAS ARRIVED AT A PARTICULAR RATE. (V) THOUGH THE DVO/VO HAD ADMITTED TO THE FACT THAT STRUCTURES WERE EXISTING IN THE PROPERTIES IN QUEST ION, HOWEVER, THEY HAVE NOT ASSIGNED ANY VALUE TO THESE STRUCTURE S WHICH FORM PART AND PARCEL OF THE PROPERTIES WHILE THE APPELLA NTS REGISTERED VALUER HAS TAKEN INTO ACCOUNT THE VALUE OF THESE ST RUCTURES WHICH ARE EXISTING ON THESE PROPERTIES. FURTHER, IN RESPECT OF THE ONE PROPERTY VALUED BY T HE DVO, HE HAS INCLUDED THE VALUE OF THE STRUCTURE EXISTING ON THE PROPERTY WHILE CALCULATING THE VALUE OF THE PROPERTY, WHILE IN RES PECT OF THE SIX PROPERTIES VALUED BY THE VO, HE HAS NOT TAKEN INTO CONSIDERATION THE STRUCTURES THE PROPERTIES EXISTING THEREON.' IT WAS OBSERVED BY THE LD. CIT(A) THAT THE DVO/VO H AD TAKEN THE SALE INSTANCES OF MULUND (WEST), GHATKOPAR (EAST) AND BH ANDUP (WEST) WHEREAS THE SALE INSTANCES IN QUESTION VALUED BY THE ASSESS EES VALUER WERE OF HARIYALI VILLAGE SITUATED IN VIKHROLI . THE SALE INSTANCES C ITED BY THE ASSESSEES VALUER WERE MUCH CLOSER TO ASSESSEES PROPERTIES. IT WAS ALSO OBSERVED THAT THE DVO/VO HAD TAKEN THE SALE INSTANCES OF THE YEAR 198 3 AND 1985 WHEREAS THE ASSESSEES VALUER HAD TAKEN THE SALE INSTANCES OF T HE YEAR 1982 WHICH IS MUCH CLOSER TO 1-4-1981. HOWEVER, NEITHER THE DVO/V O NOR THE ASSESSEES VALUER HAD GIVEN THE EXACT SALE INSTANCES OF THE AR EAS IN QUESTION OR THE DATE ITA 5987/MUM/2013 13 UNDER CONSIDERATION I.E.1.4.1981, THUS, NONE OF THE TWO CAN BE SAID TO BE THE PERFECT METHOD FOR VALUING THE PROPERTY. THE LD. C IT(A) OBSERVED THAT THE OPINIONS EXPRESSED BY THE EXPERTS WERE RELEVANT BUT IN CASE THE TWO EXPERTS DIFFER, THE ONLY METHOD AVAILABLE WOULD TO ADOPT TH E MEAN OF THE VALUE ADOPTED BY THE TWO EXPERTS I.E. DVO/VO AND THE ASSE SSEES VALUER. THUS, KEEPING IN VIEW THE ENDS OF JUSTICE, THE LD. CIT(A) ADOPTED THE MEAN RATE GIVEN BY THE DVO/VO AND THE ASSESSEES VALUER WHICH ARE T ABULATED AS UNDER, VIDE APPELLATE ORDERS OF THE LEARNED CIT(A) DATED 15-07- 2013:- SR NO DESCRIPTION OF THE PROPERTY ADDRESS AREA IN SQ. MTR. AREA IN SQ. FEETS. VALUATION AS PER ASSESSE VALUER PER SQ TOTAL FEET VALUE VALUATION AS PER VO & DVO PER SQ. TOTAL VALUE AVE. TOTAL AVG. RATE VALUE 1 CTS NO. 7/1 VILLAGE HARIYALI 952.20 10,249.4 8 99.00 1,014,698. 52 52.20 535,022.86 76 778960.48 2 CTS NO. 122(PT) VILLAGE HARIYALI 757.79 8,156.85 99.00 807,528.15 47.00 383,371.95 7 3 595450.05 3 CTS NO. 238,239,240,2 41,245, 214,215,216,2 17 26,987.5 0 290,493. 45 92.00 26,725,397 .40 57.60 16,732,422. 72 4 CTS NO. 62/39 VILLAGE HARIYALI 12.26 132.00 105.0 0 13,860.00 43.50 5,742.00 74 9768.00 5 CTS NO. 62/39 VILLAGE HARIYALI 55.74 599.99 105.0 0 62,998.95 43.50 26,099.57 74 44399.26 6 CTS NO. 1801 (PT) VILLAGE HAIYALI 4,100.00 44,132.4 0 65.00 2,868,606. 00 35.60 1,571,113.4 4 50 2206620.0 0 7 CTS NO. 215,221,231 VILLAGE HARIYALI 6,228.70 67,045.7 3 65.00 4,357,972. 45 40.14 2,691,215.6 0 53 3553423.6 9 TOTAL OF (1+2+4+5+6+7 9,125,664. 07 5,212,565.4 1 -- 7188621.4 8 21.5% OF ITEM NO. 3 5,745,960. 44 3,597,470.8 8 -- 4684206.8 8 GROSS TOTAL 14,871,624 .51 8,810,036.3 0 -- 11872828. 36 1/3 SHARE OF ASSESSEE 4,957,208. 17 2,936,678.7 7 -- 3957609.4 5 6. AGGRIEVED BY THE APPELLATE ORDERS DATED 15-07-20 13 OF THE LD. CIT(A), THE REVENUE IS IN APPEAL BEFORE THE TRIBUNAL WHEREBY RE VENUE HAS CHALLENGED ADOPTING OF MEAN VALUE OF THE PROPERTIES BASED ON V ALUATION REPORTS SUBMITTED BY THE DVO/VO AND THE ASSESSEES VALUER F OR THE PURPOSE OF COST OF ACQUISITION OF LAND AS ON 1-4-1981 WITHOUT CREDENCE TO THE VALUE ADOPTED BY THE DVO/VO U/S 55A OF THE ACT. ITA 5987/MUM/2013 14 7. THE LD. D.R. SUBMITTED THAT THE ONLY ISSUE INVOL VED IN THIS APPEAL IS WITH RESPECT TO THE COMPUTATION OF LONG TERM CAPITA L GAIN ON SALE OF SEVEN PROPERTIES IN WHICH THE ASSESSEE HAS 1/3 SHARE. HE SUBMITTED THAT THE LAND IS SITUATED IN CENTRAL SUBURBS IN VIKHROLI AND THE COS T OF ACQUISITION IS TO BE DETERMINED W.E.F. 1-4-1981. THE ASSESSEE HAS ADOPT ED THE READY RECKONER RATE FOR DEVELOPED LAND AS ON 01-04-1981, WHILE THE AO ADOPTED READY RECKONER RATES AS ON 01-04-1981 OF UNDEVELOPED LAND BASED ON THE PREMISE THAT THE LAND IS NOTIFIED SLUM BY STATE OF MAHARASH TRA AND WHICH DOES NOT HAVE APPROVED BUILDING. THE LD. D.R. REFERRED TO T HE ORDER OF THE A.O. AND SUBMITTED THAT THE A.O. REFERRED THE MATTER TO THE DVO MUMBAI FOR DETERMINATION OF COST OF ACQUISITION AND SALE VALUE U/S 50C & 55A OF THE ACT ON 22 ND NOVEMBER, 2011. HE SUBMITTED THAT SINCE THE MATTE R WAS GETTING TIME BARRED, THE DVO WROTE TO THE A.O. THAT THE VAL UATION OF THE PROPERTY WILL TAKES SOME TIME AND SO REQUESTED THE AO TO PASS A P ROTECTIVE ORDER. HE SUBMITTED THAT SEVEN PIECES OF LAND WERE ENCROACHED BY THE SLUM DWELLERS AND IT IS NOT DEVELOPED LAND AND THE RATES MENTIONE D FOR DEVELOPED LAND IS DEFINED AS LAND THAT HAS APPROVED BUILDING AND HAS FACILITIES OF ROAD, ELECTRICITY, DRAINAGE AND WATER OR HAS GOT NON-AGRI CULTURAL PERMISSION. IT IS SUBMITTED THAT THE ASSESSEE HAS ADOPTED THE RATES A S ON 01-04-1981 BASED UPON THE READY RECKONER RATES FOR DEVELOPED LAND , WHEREAS THE A.O. HAS ADOPTED THE READY RECKONER RATES FOR UNDEVELOPED LA ND AS ON 01-04-1981. IT IS SUBMITTED THAT AS PER THE ASSESSEES VALUATION, TOTAL VALUATION COMES TO RS. 4,386,338/-, WHILE AS PER THE A.O.S VALUATION COME S TO RS. 1,421,831/-. THE VALUATION AS PER THE ASSESSEES VALUER WAS AT RS. 4 ,957,208.17 WHILE THE VALUATION AS PER THE DVO/VOS COMES TO RS. 2,936,67 8.77. IT WAS SUBMITTED THAT NO VALUATION REPORT WAS FURNISHED BY THE ASSES SEE BEFORE THE DVO/VO AND THE AO , BUT IN THE OBJECTIONS FILED BEFORE DVO SALE INSTANCES WERE SUBMITTED BY THE GOVERNMENT APPROVED REGISTERED VAL UER OF THE ASSESSEE WHICH WERE ALTHOUGH OF VIKHROLI (WEST) LAND BUT WER E DEVELOPED INDUSTRIAL ITA 5987/MUM/2013 15 BUILT-UP LAND ON LBS MARG .IT WAS SUBMITTED THAT T HE LEARNED CIT(A) HAS ADOPTED MEAN OF THE VALUATION AS ADOPTED BY DVO/VO REPORT AND THE VALUATION AS ADOPTED BY THE ASSESSEES VALUER, WHIC H IS NOT ALLOWED AS PER THE PROVISIONS OF THE ACT. 8 THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT T HE MEAN OF THE VALUE ADOPTED BY THE DIFFERENT EXPERTS I.E. DVO/VO ON BEH ALF OF THE REVENUE AND THE REGISTERED VALUER OF THE ASSESSEE WAS THE METHOD AD OPTED BY THE LD. CIT(A) WHICH UNDER THE CIRCUMSTANCES WAS RIGHTLY DONE BY L EARNED CIT(A) TO ARRIVE AT FAIR MARKET VALUE OF THE LAND AS ON 01-04-1981 U/S 55 AND 55A OF THE ACT. HE SUBMITTED THAT IT IS A DEVELOPED LAND WHICH IS A CCEPTED BY THE DVO/VO. 1/3 SHARE IS OWNED BY THE ASSESSEE AND 2/3 SHARE IS OWNED BY THE CO- OWNERS. IT IS AN ANCESTRAL PROPERTY. IT IS ALSO SU BMITTED THAT IN CASE OF CO- OWNERS NO ADDITIONS HAVE BEEN MADE BY THE REVENUE. THE LD. COUNSEL SUBMITTED THAT THERE WERE SOME STRUCTURE CONSTRUCTE D ON THE LAND BY SLUM DWELLERS WHO ENCROACHED THE LAND, HENCE, IT IS DEVE LOPED LAND AS IT ALSO HAS WATER, ELECTRICITY, ROAD AND DRAINAGE AS WELL NON A GRICULTURAL PERMISSION. IT WAS SUBMITTED THAT ASSESSEE'S VALUER REPORT WAS DUL Y GIVEN TO THE DVO/VO AT THE TIME OF FILING OBJECTIONS. 9. WE HAVE CONSIDERED THE RIVAL CONTENTIONS AND ALS O PERUSED THE MATERIAL ON RECORD. WE HAVE OBSERVED THAT THE REVENUE IS AG GRIEVED BY THE DECISION OF THE LD. CIT(A) WITH RESPECT TO THE ADOPTION OF MEAN OF THE VALUE TAKEN BY THE DVO/VO ON BEHALF OF THE REVENUE AND THE GOVERNMENT APPROVED REGISTERED VALUER M/S SHAH & SHAH ON BEHALF OF THE ASSESSEE. WE HAVE OBSERVED THAT THE ASSESSEE IS THE CO-OWNER OF THE LAND SITUATED A T VIKHROLI AT HARIYALI VILLAGE. THE SAID LAND WAS ENCROACHED AND OCCUPIED BY THE SLUM DWELLERS AND THE SAID LAND IS NOTIFIED SLUM BY STATE OF MAHA RASHTRA. AS PER THE DEFINITION OF THE DEVELOPED LAND, THE LAND MUST HAV E APPROVED BUILDING AND SHOULD HAVE FACILITIES OF ROAD, ELECTRICITY, DRAINA GE AND WATER SUPPLY AND HAS ITA 5987/MUM/2013 16 GOT NON-AGRICULTURAL PERMISSION. IT IS OBSERVED TH AT THE AO COMPLETED THE ASSESSMENT WITHOUT DVO/VO REPORT AS THE MATTER WAS GETTING TIME BARRED BY ADOPTING READY RECKONER RATE FOR UNDEVELOPED LAND A S ON 01-04-1981 ON THE PREMISE THAT THE LAND IS ENCROACHED BY SLUM DWELLER S AND DOES NOT HAVE APPROVED BUILDING AS PER DEFINITION OF DEVELOPED LA ND, WHILE THE ASSESSEE CONTENDED THE SAME TO BE DEVELOPED LAND AS IT WAS N OTIFIED SLUM BY STATE OF MAHARASHTRA HAVING STRUCTURES BUILT BY SLUM DWELLE RS . THE AO DID NOT HAD THE BENEFIT OF VALUATION DETERMINED BY DVO/VO REPOR T , NOR THE VALUATIONS AS PER SALE INSTANCES SUBMITTED BY THE ASSESSEE VIDE O BJECTIONS FILED BEFORE DVO/VO OF THE ASSESSEES GOVERNMENT APPROVED REGIST ERED VALUER. THE ASSESSEE HAS SUBMITTED COMPARATIVE SALE INSTANCES P REPARED BY ASSESSEES GOVERNMENT APPROVED REGISTERED VALUER WHILE FILING OBJECTIONS TO THE DVO PROPOSED VALUE, THE ASSESSEE HAS SUBMITTED AND CLAI MED THAT THE SALE INSTANCES RELIED UPON BY HIS VALUERS ARE TO BE IN V ICINITY OF THE LAND UNDER CONSIDERATION WHILE FILING OBJECTIONS TO THE PROPOS ED VALUE BY DVO/VO AND THE ASSESSEES RELIED UPON VALUATIONS WERE DULY CON SIDERED BY DVO/VO. THE DVO/VO AS WELL AS VALUER APPOINTED BY THE ASSESSEE HAS RELIED UPON THE SALE INSTANCES STATED TO BE IN THE VICINITY OF THE SAID LAND , BUT THE ASSESSEE IS CONTENDING THAT THE DVO/VO HAS RELIED UPON THE SALE INSTANCES WHICH ARE FAR-AWAY FROM THE PROPERTY UNDER CONSIDERATION AND ARE OF PERIOD 1981,1983 AND 1985 WHILE THE ASSESSEE SUBMITTED THAT VALUATIO N OF ITS RELIED UPON PROPERTIES ARE FROM HARIYALI VILLAGE ITSELF IN VIKH ROLI WEST ON LBS MARG OF THE PERIOD DECEMBER 1982 AND DECEMBER 1985 AND ARE CLOS ER TO 01-04-1981 . IT WAS ALSO SUBMITTED BEFORE DVO/VO THAT STRUCTURES EX ISTING ON THE PROPERTY HAS NOT BEEN CONSIDERED BY DVO/VO IN THEIR PROPOSED VALUATION. THE SAID OBJECTIONS OF THE ASSESSEES VALUER WAS FILED BEF ORE THE DVO WHILE FILING OBJECTIONS TO THE DVOS PROPOSED VALUATION . THE DV O HAS CONTENDED THAT SALES INSTANCES RELIED UPON BY IT ARE MORE RELIABLE AND CLOSER TO THE PROPERTY UNDER CONSIDERATION KEEPING IN VIEW THE STATUS OF T HE LAND UNDER CONSIDERATION IN 1981 AND THE PROPERTY SALE INSTANC ES RELIED UPON BY THE ITA 5987/MUM/2013 17 DVO/VO WERE MORE DEVELOPED THAN THE ASSESSEES LAND IN 1981 AND HENCE THE ASSESSEE IS NOT PREJUDICED . THE LEARNED CIT(A ) WENT AHEAD TO DETERMINE THE VALUE OF THE PROPERTY AS ON 01-04-1981 BEING FA IR MARKET VALUE BASED ON MEAN OF THE VALUATION ADOPTED BY THE DVO/VO AND THE ASSESSEES VALUER WHICH IN OUR CONSIDERED VIEW WAS APPROPRIATE KEEPIN G IN VIEW THE FACTUAL MATRIX AND PREVAILING CIRCUMSTANCES OF THE CASE AS NO EXACT SALES INSTANCES IN THE AREA WERE AVAILABLE . THUS, THE LEARNED CIT(A) WAS REQUIRED TO FIND OUT THE FAIR MARKET VALUE OF THE PROPERTY AS ON 01-04-1981 AS PER PROVISIONS OF SECTION 55 AND 55A OF THE ACT AND IN-FACT WHILE COM PUTING THE FAIR MARKET VALUE , AN ELEMENT OF ESTIMATION IS ALWAYS INVOLVED AS THE VALUE CANNOT BE DETERMINED WITH THE EXACT PRECISION. THE SALE INSTA NCES RELIED UPON BY DVO/VO AS WELL AS OF THE ASSESSEES VALUER HAS SOME INHERENT WEAKNESSES AND UNDER THE FACTUAL CIRCUMSTANCES OF THE CASE , K EEPING IN VIEW OF THE AVAILABILITY OF THE DATA WITH THE DVO/VO AND ALSO W ITH THE ASSESEES GOVERNMENT APPROVED REGISTERED VALUER , THE BEST RE COURSE WAS TO FIND OUT MEAN SO THAT A FAIR MARKET VALUE OF THE PROPERTY IS ARRIVED AT WHICH IN-FACT THE LEARNED CIT(A) DID TO DETERMINE FAIR MARKET VALUE O F THE PROPERTY AS ON 01-04- 1981 UNDER THE PROVISIONS OF SECTION 55 AND 55A OF THE ACT. WE DONOT FIND ANY INFIRMITY IN THE ORDER OF THE LEARNED CIT(A) AS THE FAIR MARKET VALUE OF THE PROPERTY IS DEPENDENT ON SEVERAL FACTORS WHICH INFL UENCE VALUATION AND THERE IS NO SCIENTIFIC OR STRAIGHT JACKET METHOD TO VALUE THE PROPERTY AT A PARTICULAR POINT OF TIME AND SOMEWHERE ESTIMATION ELEMENT WILL DEFINITELY CREEP IN WHILE DETERMINING THE FAIR MARKET VALUE OF THE PROPERTY A S ON DATE KEEPING IN VIEW THE MANDATE OF SECTION 55 AND 55A OF THE ACT, THE L EARNED CIT(A) RIGHTLY OBSERVED AS UNDER : 2.4.10 ON PERUSAL OF THE SUBMISSIONS MADE BY THE LD AR , I FIND THAT THE DISTRICT VALUATION OFFICER /VALUATION OFFICER H AS MOSTLY TAKEN THE SALES INSTANCES OF MULUND(WEST) , GHATKOPAR(EAST) A ND BHANDUP(WEST) WHEREAS THE SALE INSTANCES RELIED ON BY THE APPELLA NTS REGISTERED VALUER ITA 5987/MUM/2013 18 ARE OF HARIYALI VILLAGE , WHERE THE CAPITAL ASSETS IN QUESTION ARE SITUATED. IT IS ALSO SEEN INSTANCES CITED BY THE APPELLANTS REGISTERED VALUER ARE MUCH CLOSER TO THE APPELLANTS PROPERTIES WHILE THE SALE INSTANCES CITED BY DISTRICT VALUATION OFFICER/VALUATION OFFICER ARE LI TTLE FAR AWAY. SIMILARLY, THE DISTRICT VALUATION OFFICER/VALUATION OFFICER HA VE TAKEN THE SALE INSTANCES OF THE YEAR 1983 AND 1985 WHILE THE APPEL LANTS REGISTERED VALUER HAS TAKEN THE SALE INSTANCES OF THE YEAR 198 2 WHICH IS MUCH CLOSER TO 01-04-1981.NEVERTHELESS, THERE IS NO GAIN SAYING THE FACT THAT NEITHER DISTRICT VALUATION OFFICER/VALUATION OFFICE NOR THE APPELLANTS REGISTERED VALUER HAS GIVEN THE EXACT SALE INSTANCE S OF THE AREA IN QUESTION OR THE DATE UNDER CONSIDERATION I.E. 01-4- 1981. THUS, NONE OF THE TWO CAN BE SAID TO BE PERFECT METHOD FOR VALUING TH E PROPERTIES IN QUESTION. WHILE MAKING THE ESTIMATE, THE OPINIONS E XPRESSED BY THE EXPERTS ARE RELEVANT BUT IN CASE THE TWO EXPERTS DI FFER, PERHAPS THE ONLY METHOD AVAILABLE AT THIS STAGE WOULD BE TO ADOPT TH E MEAN OF THE VALUE ADOPTED BY THE TWO EXPERTS I.E. DISTRICT VALUATION OFFICER/VALUATION OFFICER ON BEHALF OF THE REVENUE AND REGISTERED VAL UER, M/S SHAH & SHAH ON BEHALF OF THE APPELLANT. ACCORDINGLY, IN THE PEC ULIAR FACTS OF THE CASE AND TO MEET THE END OF JUSTICE, THE FAIR MARKET VAL UE OF THE CAPITAL ASSETS IN QUESTION IS ADOPTED AS AVERAGE RATE GIVEN BY THE DISTRICT VALUATION OFFICER/VALUATION OFFICER AND THE APPELLANTS REGIS TERED VALUER . OUR ABOVE VIEW IS FORTIFIED BY THE DECISION OF THE CHENNAI TRIBUNAL IN THE CASE OF ACIT V. MIL INDUSTRIES LIMITED REPORTED IN (2013 ) 142 ITD 428(CHENNAI TRIB) AS UNDER: 18. EXCEPT THE ABOVE, ON ALL OTHER ASPECTS WE AGREE WI TH THE COMMISSIONER OF INCOME-TAX(APPEALS) AND THE APPROAC H ADOPTED BY HIM. EARLIER THERE WAS A VALUATION. THE VALUE WAS RS. 1. 21 CRORES. THE VALUATION WAS MADE BY THE ASSESSEE'S BANKERS. THE G UIDELINE VALUE IS ITA 5987/MUM/2013 19 RS. 3,95,91,000/-. BUT THE VALUATION MADE BY THE DV O IS LESS THAN THE GUIDELINE VALUE. THE DVO'S ESTIMATION WAS AT RS. 3, 54,73,536/-. WHEN ALL THESE VARIABLES ARE CHANGING FROM TIME TO TIME, FROM AUTHORITY TO AUTHORITY, IT IS NOT POSSIBLE TO REJECT THE CONTENT IONS OF THE ASSESSEE AS A WHOLE. THE TRUTH LIES SOMEWHERE IN BETWEEN . WE CANNOT ACCEPT THE VALUATION REPORTED BY THE DVO AS SACROSANCT. WE HAV E TO GIVE EQUAL IMPORTANCE TO THE OTHER FINDINGS ARRIVED AT BY THE COMMISSIONER OF INCOME-TAX(APPEALS). 19. NOW, TAKING INTO ALL ASPECTS OF THE CASE, WE REFIX THE CONSIDERATION ACCOUNTABLE IN THE HANDS OF THE ASSESSEE-COMPANY FO R THE PURPOSE OF SECTION 50C AT RS. 2.5 CRORES. THUS, BASED ON OUR ABOVE REASONING AND DETAILED DIS CUSSIONS KEEPING IN VIEW PECULIAR FACTS AND CIRCUMSTANCES OF CASE, WE ARE IN CLINED TO ACCEPT THE VALUATION AS ADOPTED BY THE LEARNED CIT(A) BY FOLLO WING MEAN OF THE VALUATION ADOPTED BY DVO/VO AND THE ASSESSEES GOVERNMENT APP ROVED VALUER WHO IS A AND WE DONOT FIND ANY INFIRMITY IN THE ORDER OF THE LEARNED CIT(A) WHICH WE AFFIRM/SUSTAIN, KEEPING IN VIEW FACTUAL MATRIX OF THE CASE. WE ORDER ACCORDINGLY. 10. IN THE RESULT, THE APPEAL FILED BY THE REVENUE IN ITA N0. 5987/MUM/2013 FOR THE ASSESSMENT YEAR 2009-10 IS DI SMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 12 TH JULY , 2016. # $% &' 12-06-2016 ( ) SD/- SD/- (SAKTIJIT DEY) (RAMIT KOCHAR) JUDICIAL MEMBER ACCOUNTANT MEMBER $ MUMBAI ; & DATED 12-06-2016 [ ITA 5987/MUM/2013 20 .9../ R.K. R.K. R.K. R.K. , EX. SR. PS !'#$%&%# / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. : ( ) / THE CIT(A)- CONCERNED, MUMBAI 4. : / CIT- CONCERNED, MUMBAI 5. =>( 99?@ , ?@ , $ / DR, ITAT, MUMBAI D BENCH 6. (BC D / GUARD FILE. / BY ORDER, = 9 //TRUE COPY// / ( DY./ASSTT. REGISTRAR) , $ / ITAT, MUMBAI