Kamlesh Devi, Saharanpur V. ITO, Ward-3(5), Deoband

ITA 6418/DEL/2017

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 3197 (ITAT-DELHI)
• Duration Of Justice: 4 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-03-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2010-2011
• Appeal Filed On: 23-10-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: V K JIWANI
• Keywords: Value adopted by valuation officer; Opportunity of being heard; Principle of natural justice; Fair market value; Valuation report

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: SMC NEW DELHI BEFORE SHRI H. S. SIDHU, JUDICIAL MEMBER I.T.A. NO. 6418/DEL/2017 ASSESSMENT YEAR: 2010-11 KAMLESH DEVI, VS. ITO, WARD 3(5) W/O SH. SEVA RAM, DEOBAND VILL. & PO PAHANSHU, (U.P.) DISTT SAHARANPUR, UTTAR PRADESH (PAN:CLPPD5062H) (ASSESSEE) (RESPONDENT) ASSESSEE BY : SH. SUSHIL KUMAR, ADV. REVENUE BY : SH. V.K. JIWANI, SR. DR ORDER THIS APPEAL IS FILED BY ASSESSEE AGAINST THE ORDER PASSED BY THE LD. CIT(A), MUZAFFARNAGAR RELATING TO ASSESSMENT YE AR 2010-11 ON THE FOLLOWING GROUNDS:- 1. THE LEARNED CIT(A) ERRED IN LAW, FACTS AND CIRCU MSTANCES OF THE CASE FOR NOT ALLOWING REASONABLE TIME TO REBUT THE DVO REPORT. 2. THE LEARNED CIT(A) ERRED IN LAW, FACTS & CIRCUMS TANCES OF THE CASE WITH THE FACT THAT DVO HAS NOT CALLED ANY DOCUMENT AS LISTED BELOW FROM ASSESSE WHICH HAVE A DIRECT NEXUS WITH THE VALUE CHAIN. 3 DVO HAS MENTIONED IN HIS REPORT THAT THE ASSESSE HAS ALSO STATED THAT HE GOT CONVERTED THE GODOWNS INTO CLASS ROOMS BY WAY OF MODIFICATION/ALTERATION. AT THIS POINT FO LLOWING WOULD BE FOUND WORTH MENTIONING. 2 A. THE ASSESSE HAS NOT PROVIDED ARCHITECTURAL/STRUC TURAL DRAWINGS OF THE THEN GODOWNS. B. THE HEIGHT OF THE GODOWN WHICH WERE CONSTRUCTED FOR HIRING TO FOOD CORPORATION OF INDIA OUGHT TO BE MUCH MORE THAN THE HEIGHT OF THE CLASS ROOMS. C. THERE EXISTS TWO ROWS OF THE CLASS ROOMS WITH C ORRIDOR IN BETWEEN ON THE PART OF THE SAID LAND. D. CONVERSION OF GODOWN INTO CLASS ROOM WOULD REQUI RE EITHER COMPLETE DEMOLITION OF GODOWN OR CARRYING OUT HUGE ADDITIONS / ALTERATIONS/RENOVATIONS AS MAY BE LISTE D BELOW. I. DEMOLISHING OF THE ENTIRE ROOF OF GODOWN TO RECA ST ROOF SLAB AT LOWER HEAD ROOM SUITABLE FOR CLASS ROO MS. II. CONSTRUCTION OF MANY- BRICK WALLS TO DIVIDE GO DOWN INTO TWO ROWS OF CLASSROOMS AND A CORRIDOR IN BETWEEN. III. RELAYING OF FLOORS. IV. EXECUTION OF FINISHING ITEMS. V. CONSTRUCTIONS OF TOILETS INVOLVING MANY SUB ITEM S. THE ASSESSE HAS NOT GIVEN THE DETAILS FOR EXECUTION OF ABOVE LISTED ACTIVITIES. IN THE ABSENCE OF REQUISITE DOCU MENTS / EVIDENCE PROVIDED BY THE ASSESSEE, IT IS DIFFICULT TO VISUALIZE THE ACTUAL SEQUENCE OF CONSTRUCTION/ADDITION/ALTERATION ACTIVITIES. IN SUCH CIRCUMSTANCES THE YEAR OF CONSTRUCTION OF ENTI RE STRUCTURE (BUILT UP AREA RESTRICTED TO AREA SHOWN IN SALE DEE D AS WELL AS TAKEN IN REGISTERED VALUER'S REPORT HAS BEEN CONSID ERED FOR THE PURPOSE OF VALUATION) HAS BEEN CONSIDERED AS YEAR 2 009-10. THIS 3 IS QUITE REASONABLE AND JUSTIFIED IN PREVAILING SIT UATION AND APPARENT LIMITATION OF VERIFICATION. 4. THE LEARNED CIT(A) ERRED IN LAW, FACTS & CIRCUM STANCES OF THE CASE WITH THE FACT THAT NO OPPORTUNITY PROVIDED BY DVO TO SUBMIT THE REQUIRED DOCUMENTS FOR THE SATISFACTION OF DVO AND NOT ALLOWING TIME TO REBUT DVO REPORT DURING THE AP PEAL. 5. THE LEARNED CIT(A) ERRED IN LAW, FACTS & CIRCUM STANCES OF THE CASE NOT CONSIDERING THE REPORT OF REGISTERED V ALUER AS SUBMITTED BY THE ASSESSE. 6. DVO IN HIS VALUATION REPORT ALSO REFERRED THE F ACT THAT IN ABSENCE OF ALL THE REQUISITE DOCUMENTS/ EVIDENCE IT IS DIFFICULT TO VISUALIZE THE ACTUAL SEQUENCE OF CONSTRUCTION AND T HE VALUATION IS SUBJECT TO APPARENT LIMITATION OF VERIFICATION. FROM THE ABOVE IT IS CLEAR THAT ABOVE DOCUMENT WERE CRUCIAL FOR DETER MINING THE FMV OF PROPERTY. IN SPITE OF THAT DVO SUBMITTED HIS REPORT WHICH IS HIGHLY INJUSTICE TO THE ASSESSEE. EVEN DVO NOT B OTHERED TO REVISIT THE PROPERTY IN THE LIGHT OF OBJECTION RAIS ED BY ASSESSEE. 7. THE APPLICANT CRAVES LEAVE TO ADD, ALTER, RESCI ND OR AMEND ANY OF THE ABOVE GROUNDS OF APPEAL. 2. FACTS NARRATED BY THE REVENUE AUTHORITY ARE NOT DISPUTED BY BOTH THE PARTIES, HENCE, THE SAME ARE NOT REPEATED HERE FOR THE SAKE OF BREVITY. 3. AT THE TIME OF HEARING, LD. COUNSEL OF THE ASSES SEE HAS STATED THAT DEPARTMENTAL VALUATION OFFICER (DVO) NEITHER P ROVIDED ANY OPPORTUNITY TO ASSESSEE NOR ASKED TO SUBMIT FURTHER EVIDENCE IN SUPPORT OF OBJECTION UPTO THE SATISFACTION OF DVO A ND SUBMITTED HIS REVISED REPORT DIRECTLY AT THE OFFICE OF THE LD. CI T(A), MUZAFFARNAGAR, AS A RESULT THEREOF, THE ASSESSEE WAS NOT ALLOWED REAS ONABLE TIME TO REBUT 4 THE DVOS REPORT, WHICH IS AGAINST THE PRINCIPLE OF NATURAL JUSTICE AND NOT SUSTAINABLE IN THE EYES OF LAW. HENCE, HE REQUE STED THAT THE ISSUE IN DISPUTE MAY BE SET ASIDE TO THE FILE OF THE AO W ITH THE DIRECTIONS TO REFER THE MATTER TO THE DVO AND DVO SHOULD ALLOW FU LL OPPORTUNITY OF HEARING TO THE ASSESSEE, AS PER LAW AND ONLY THEN S UBMIT HIS FRESH REPORT, AS PER LAW TO THE AO. THEREAFTER, THE AO SH ALL DECIDE THE MATTER IN DISPUTE AFRESH, AFTER CONSIDERING THE FRE SH REPORT OF THE DVO AND GIVE ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE, AS PER LAW. 4. ON THE CONTRARY, LD. DR RELIED UPON THE ORDER P ASSED BY THE LD. CIT(A) AND STATED THAT ASSESSEE WAS GIVEN SUFFICIE NT OPPORTUNITY FOR SUBSTANTIATING HER CLAIM, BUT HE COULD NOT AVAIL T HE SAME. THEREFORE, THE ORDER OF THE AUTHORITIES BELOW ESPECIALLY THE I MPUGNED ORDER MAY BE UPHELD AND APPEAL OF THE ASSESSEE MAY BE DISMISS ED. 5. I HAVE HEARD BOTH THE PARTIES AND PERUSED THE RE CORDS, ESPECIALLY THE IMPUGNED ORDER PASSED BY THE LD. CI T(A). I FIND CONSIDERABLE COGENCY IN THE CONTENTION OF THE LD. COUNSEL OF THE ASSESSEE THAT DEPARTMENTAL VALUATION OFFICER (DVO) NEITHER PROVIDED ANY OPPORTUNITY TO ASSESSEE NOR ASKED TO SUBMIT FUR THER EVIDENCE IN SUPPORT OF OBJECTION UPTO THE SATISFACTION OF DVO A ND SUBMITTED HIS REVISED REPORT DIRECTLY AT THE OFFICE OF THE LD. CI T(A), MUZAFFARNAGAR, AS A RESULT THEREOF, THE ASSESSEE WAS NOT ALLOWED REAS ONABLE TIME TO REBUT THE DVOS REPORT, WHICH IS AGAINST THE PRINCIPLE OF NATURAL JUSTICE AND NOT SUSTAINABLE IN THE EYES OF LAW. HENCE, I AM OF THE CONSIDERED VIEW THAT THE ISSUE IN DISPUTE REQUIRES SETTING ASIDE T O THE FILE OF THE AO WITH THE DIRECTIONS TO REFER THE MATTER TO THE DVO AND DVO SHOULD ALLOW FULL OPPORTUNITY OF HEARING TO THE ASSESSEE, AS PER LAW AND SUBMIT THE FRESH REPORT TO THE AO. THEREAFTER, TH E AO SHALL DECIDE THE MATTER IN DISPUTE AFRESH, AFTER CONSIDERING THE FRESH REPORT OF THE 5 DVO AND GIVE ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE, AS PER LAW. I HOLD AND DIRECT ACCORDINGLY. 6. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE STANDS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED ON 01/03/2018. SD/- [H.S. SIDHU] JUDICIAL MEMBER DATE 01/03/2018 SRBHATNAGAR COPY FORWARDED TO: - 1. APPELLANT - 2. RESPONDENT - 3. CIT 4. CIT (A) 5. DR, ITAT TRUE COPY BY ORDER, ASSISTANT REGISTRAR, ITAT, DELHI BENCHES