ITO 16(2)(1), MUMBAI V. PANKAJ POPATLAL SHAH, MUMBAI

ITA 6489/MUM/2013

• Counselvise Citation: [2015] 121 COUNSELVISE.COM (IT) 0976 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 7 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-07-2015
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: H
• Next Hearing Date: 02-07-2015
• Assessment Year: 2005-2006
• Appeal Filed On: 04-11-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: REEPAL G TRISHAWALA
• Keywords: Sale consideration of property below Jantri Value; Value adopted by valuation officer; Additional evidence; Cost of acquisition; Fair market value; Valuation report
• Section: 50C

Judgement Text

, , , IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES H, MUMBAI , , , BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER, AND SHRI RAJENDRA, ACCOUNTANT MEMBER ITA NO.6529/MUM/2013 ASSESSMENT YEAR: 2005-06 INCOME TAX OFFICER-16(2)(3) ROOM NO. 218, 2 ND FLOOR, MATRU MANDIR, TARDEO ROAD, MUMBAI-400007 / VS. SHRI SHAKUNTALA H SHAH, FLAT NO.11, LE-JERDIN, KASHIBAI NAVRANG MARG, GAMDEVI, MUMBAI-400007 ( / REVENUE) ( !'# $ /ASSESSEE) P.A. NO. AAHPS4941F ITA NO.6530/MUM/2013 ASSESSMENT YEAR: 2005-06 INCOME TAX OFFICER-16(2)(3) ROOM NO. 218, 2 ND FLOOR, MATRU MANDIR, TARDEO ROAD, MUMBAI-400007 / VS. SMT. ASHA B SHAH, FLAT NO.11, LE-JERDIN, KASHIBAI NAVRANG MARG, GAMDEVI, MUMBAI-400007 ( / REVENUE) ( !'# $ /ASSESSEE) P.A. NO.AAHPS4944A ITA NO.6531/MUM/2013 ASSESSMENT YEAR: 2005-06 INCOME TAX OFFICER-16(2)(3) ROOM NO. 218, 2 ND FLOOR, MATRU MANDIR, TARDEO ROAD, MUMBAI-400007 / VS. SHRI BHARAT P. SHAH FLAT NO.11, LE-JERDIN, KASHIBAI NAVRANG MARG, GAMDEVI, MUMBAI-400007 ( / REVENUE) ( !'# $ /ASSESSEE) P.A. NO.AAHPS4943H HARSHAD P. SHAH & ORS. ITA NO.6532/MUM/2013 & ORS. CASES 2 ITA NO.6532/MUM/2013 ASSESSMENT YEAR: 2005-06 INCOME TAX OFFICER-16(2)(3) ROOM NO. 218, 2 ND FLOOR, MATRU MANDIR, TARDEO ROAD, MUMBAI-400007 / VS. SHRI HARSHAD P. SHAH FLAT NO.11, LE-JERDIN, KASHIBAI NAVRANG MARG, GAMDEVI, MUMBAI-400007 ( / REVENUE) ( !'# $ /ASSESSEE) P.A. NO.AAHPS4940E ITA NO.6489/MUM/2013 ASSESSMENT YEAR: 2005-06 INCOME TAX OFFICER-16(2)(1) ROOM NO. 221, MATRU MANDIR, TARDEO ROAD, MUMBAI-400007 / VS. SHRI PANKAJ POPATLAL SHAH, 804, WEST WING, SHIVTIRTH NO.2, 4/6, BHULABHAI DESAI ROAD, MUMBAI-400006 ( / REVENUE) ( !'# $ /ASSESSEE) P.A. NO.AAHPS4946C ITA NO.6542/MUM/2013 ASSESSMENT YEAR: 2005-06 INCOME TAX OFFICER-16(2)(1) ROOM NO. 221, MATRU MANDIR, TARDEO ROAD, MUMBAI-400007 / VS. SHRI BHAVIN P. SHAH 804, WEST WING, SHIVTIRTH NO.2, 4/6, BHULABHAI DESAI ROAD, MUMBAI-400006 ( / REVENUE) ( !'# $ /ASSESSEE) P.A. NO.AAMHS 8285B / REVENUE BY SHRI JEETENDRA KUMAR-DR !'# $ / ASSESSEE BY SHRI REEPAL G. TRISHAWALA % & ' $ ( / DATE OF HEARING : 02/07/2015 ' $ ( / DATE OF ORDER: 24/07/2015 HARSHAD P. SHAH & ORS. ITA NO.6532/MUM/2013 & ORS. CASES 3 / O R D E R PER BENCH THIS BUNCH OF SIX APPEALS IS BY THE REVENUE DIRECT ED AGAINST THE IMPUGNED ORDERS ALL DATED 12/08/2013 OF THE LD. FIRST APPELLATE AUTHORITY, MUMBAI, BROADLY IN D IRECTING THE ASSESSING OFFICER TO ADOPT THE FAIR MARKET OF T HE PROPERTY AS ON 01/04/2008 BASED UPON THE VALUATION REPORT OF THE REGISTERED VALUER OF SHRI GANJA BALA WITHOUT CONSIDERING THE REPORT OF SHRI UMRIKAR APPOINTED BY THE CO- OWNERS OF THE PROPERTY WHO ADOPTED DIFFERED FAIR MA RKET VALUE OF THE PROPERTY. 2. AT THE TIME OF HEARING, WE HAVE HEARD, SHRI JEETENDERA KUMAR, LD. DR, AND SHRI REEPAL TRASHWALA , LD. COUNSEL FOR THE ASSESSEE. IT WAS CLAIMED THAT THE IMPUGNED ISSUES ARE COVERED BY THE DECISION OF THE TRIBUNAL IN THE CASE OF CO-OWNERS (ITA NO.6541,654 3/ MUM/2013), ORDER DATED 26/06/2014 AND ITA NO.1178/MUM/2012, ORDER DATED 12/07/2013. THIS FACTUAL MATRIX WAS NOT CONTROVERTED BY THE REVENUE. 2.1. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. IN VIEW O F THE ABOVE, WE ARE REPRODUCING HEREUNDER THE RELEVANT PO RTION FROM THE AFORESAID ORDER OF THE TRIBUNAL FOR READY REFERENCE:- HARSHAD P. SHAH & ORS. ITA NO.6532/MUM/2013 & ORS. CASES 4 THESE APPEALS AND CROSS OBJECTIONS ARE DIRECTED AG AINST COMMON ORDER PASSED BY LD.CIT(A)-27, MUMBAI DATED 12/08/2013 FOR ASSESSMENT YEAR 2005-06. GROUNDS OF APPEAL AND GROUND OF CROSS OBJECTIONS ARE IDENTICAL AND READ AS UNDER: GROUNDS OF APPEAL: 1. WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) HAS ERRED IN DIRECTING THE AO TO ADOPT THE FAIR MARKET VALUE OF THE PROPERTY AS ON 01.04.81 AT RS.43 ,10,000/- BASED ON VALUATION REPORT OF THE REGISTERED VALUER OF SHRI GA NJAWALA. 1.A. WHILE DOING SO, THE LD. CIT(A) FAILED TO CONSIDE R THE VALUATION REPORT OF SHRI UMRIGAR APPOINTED BY THE CO-OWNERS OF THE PROPERTY, WHO ADOPTED THE FMV OF THE PROPERTY AT RS.8,08,000/- A S ON 01.04.1981. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE IN LAW, THE LD. CIT(A) HAS FAILED TO APPRECIATE THE FACTS THAT THE VA LUE OF THE PROPERTY AS ON 01.04.81 WAS ADOPTED BY THE DVO AT RS .29,62,000/- AS AGAINST THE VALUE ADOPTED BY THE REGISTERED VALUER OF THE ASSESSEE AT RS.43,10,000/-. GROUNDS OF CROSS OBJECTIONS: 1. IN LAW & IN THE FACTS AND IN THE CIRCUMSTANCES OF THE APPELLANTS CASE, THE HONBLE CIT(A), HAD APPROPRIATELY DIRECTED THE A.O. TO ADOPT THE FAIR MARKET VALUE OF THE PROPERTY AS ON 01. 04.1981 AT RS.43,L0,000/- BASED ON VALUATION REPORT OF THE REGI STERED VALUER, SHRI. GANJAWALA, BY RESPECTFULLY FOLLOWING DIRECTION OF THE HONBLE ITAT IN ONE OF THE CO-OWNERS CASE. HARSHAD P. SHAH & ORS. ITA NO.6532/MUM/2013 & ORS. CASES 5 2. IN LAW & IN THE FACTS AND IN THE CIRCUMSTANCES OF THE APPELLANTS CASE, THE HONBLE CIT(A), FAIRLY APPRECIATED THE FACT THAT, THE PURPOSE OF THE VALUATION REPORT OF SHRI UMRIGAR, WAS PRIMARILY FOR FAMILY SETTLEMENT AND NOT FOR THE PURPOSES OF CAPITA L GAINS. HE ALSO RIGHTLY OBSERVED THAT REFERENCE TO DVO U/S 55A AND I TS VALUATION OF RS. 29,62,000/- WAS INCORRECT, AS SPECIFICALLY HELD BY THE HONBLE ITAT IN ONE OF THE COOWNERS CASE. 2. THESE APPEALS AND CROSS OBJECTIONS WERE ARGUED TOGETHER BY BOTH THE PARTIES, HENCE, FOR THE SAKE O F CONVENIENCE THESE APPEALS AND CROSS OBJECTIONS ARE DISPOSED OF BY THIS CONSOLIDATED ORDER. 3. IT MAY BE MENTIONED HERE THAT DEPARTMENT IS AGGR IEVED BY THE RELIEF GIVEN BY LD. CIT(A) AND HAS FILED AFOREMENTIONED GROUND OF APPEAL AND IN CROSS OBJECT ION THE ASSESSEE IS JUST SUPPORTING THE ORDER PASSED BY LD. CIT(A). 4. BOTH THE ASSESSEES ARE CO-OWNERS OF ONE PROPERTY NAMELY, PLOT NO.105B AT SION -MATUNGA SCHEME NO.6. THE SAID PROPERTY WAS DEVOLVED UPON THESE ASSESSES AS C O- OWNERS ALONGWITH OTHER CO-OWNERS UNDER THE FAMILY SETTLEMENT AND IT WAS SOLD IN THE YEAR UNDER CONSID ERATION FOR A TOTAL CONSIDERATION OF RS.4.21 CRORES. IN ORD ER TO DETERMINE THE FAIR MARKET VALUE AS ON 1/4/1981 FOR THE PURPOSE OF COMPUTING CAPITAL GAIN, THE ASSESSEE HAS REFERRED THE MATTER TO REGISTERED VALUER , WHO HAS VALUED THE SHARE OF ASSESSEE IN THE SAID PROPERTY AT RS.43 ,10,000/- AS ON 1/4/1981. ACCORDINGLY, CAPITAL GAIN WAS COMPU TED HARSHAD P. SHAH & ORS. ITA NO.6532/MUM/2013 & ORS. CASES 6 AT NIL AFTER CLAIMING EXEMPTION UNDER SECTION 54EC OF THE ACT. DURING THE COURSE OF ASSESSMENT PROCEEDINGS TH E MATTER WAS ALSO REFERRED TO DVO FOR DETERMINATION O F THE FAIR MARKET VALUE AS ON 1/4/1981 FOR WORKING OUT LO NG TERM CAPITAL GAIN, WHO VALUED THE SHARE OF THE ASSE SSEE IN THE SAID PROPERTY AT A SUM OF RS.29,62,000/-. THE L ONG TERM CAPITAL GAIN WAS COMPUTED BY THE AO ACCORDINGL Y. AGGRIEVED, ASSESSEE FILED AN APPEAL BEFORE LD. CIT( A) WHO HAS HELD THAT FAIR MARKET VALUE AS ON 1/4/1981 COUL D NOT BE TAKEN AT RS.29,62,000/- AS TAKEN BY THE DVO AS REFERENCE TO VALUATION OFFICER WAS NOT CALLED FOR. HE IN THIS REGARD HAS RELIED UPON THE DECISION OF ITAT RENDERE D IN THE CASE OF ANOTHER CO-OWNER AND HE HAS DIRECTED TH E AO TO ADOPT THE FAIR MARKET VALUE OF THE SHARE OF THE ASSESSEE AS ON 1/4/1981 AT RS.43,10,000/- SHOWN BY THE ASSES SEE IN THE COMPUTATION OF CAPITAL GAIN. 5. ONE MORE FACT WHICH WILL BE RELEVANT TO DESCRIBE HERE IS THAT THERE WAS ONE VALUATION REPORT IN RELATION TO WEALTH TAX WHICH WAS OBTAINED BY THE CO-OWNERS OF THE PROP ERTY VALUING THE SHARE OF THE CO-OWNER OF THE SAID PROPE RTY AS ON 1/4/1981 AT RS.8,08,000/-, ON THE BASIS OF WHICH IMPUGNED ASSESSMENTS WERE RE-OPENED AND ASSESSEES H AVE CHALLENGED THE RE-OPENING ON THAT GROUND THAT GROUN D OF THE ASSESSEE HAS BEEN DISMISSED BY LD. CIT(A) FOR T HE REASON THAT IT HAS BECOME INFRUCTUOUS AS IT WAS THE CONTENTION OF ASSESSEE THAT RE-OPENING OF THE ASSES SMENT WAS BAD IN LAW AS ALL THE RELEVANT FACTS WERE EXIST ING ON HARSHAD P. SHAH & ORS. ITA NO.6532/MUM/2013 & ORS. CASES 7 RECORD AT THE TIME OF PASSING OF THE ORIGINAL ORDER AND ALL THE MATERIAL FACTS WERE FURNISHED AS CALLED FOR DUR ING THE COURSE OF ASSESSMENT PROCEEDINGS UNDER SECTION 143( 3) OF THE INCOME TAX ACT, 1961(THE ACT). HOWEVER, SINCE V ALIDITY OR OTHERWISE OF RE-ASSESSMENT PROCEEDINGS IS NOT CHALLENGED EITHER BY THE ASSESSEE OR BY THE DEPARTM ENT, THE RELEVANCE OF VALUATION ADOPTED FOR WEALTH TAX PURPOSES HAS NOTHING TO DO WITH THESE CASES. HOWEVE R, DEPARTMENT IN GROUND NO.1(A) HAS RELIED UPON THAT VALUATION WHICH HAS NOT EVEN THE CASE OF AO IN THE ASSESSMENT ORDER. 6. ON THESE FACTS I HAVE HEARD BOTH THE PARTIES. IT WAS THE COMMON CONTENTION OF BOTH THE PARTIES THAT THIS ISS UE HAD COME UP FOR CONSIDERATION IN THE CASE OF ANOTHER CO -OWNER NAMELY SHRI JAY HARSHAD SHAH (HUF) VS. ITO AND VIDE ORDER DATED 12/7/2013 IN ITA NO.1178/MUM/2012 THE MATTER WAS RESTORED BACK TO THE FILE OF AO WITH THE FOLLOWING OBSERVATIONS: 8. WE HAVE CONSIDERED THE ISSUE. THERE IS NO DISPUTE W ITH REFERENCE TO ADOPTING VALUE AS ON 01.04.81 FOR THE PURPOSE OF COST OF ACQUISITION AND SUBSEQUENT INDEXATION. THE ISSUE IS ONLY WITH REFERENCE TO VALUE TO BE ADOPTED. THE ASSESSEE ALONG WITH OTHER CO- OWNERS ADOPTED THE VALUE OF M/S. GANJAWALA AT RS.43 .10 LACS WHICH WAS ALSO ACCEPTED IN OTHER CASES AS THE AO HAS NO POWE R TO REFER TO THE VALUATION OFFICER IN A CASE WHERE ASSESSEE RELIED ON REGD. VALUERS REPORT, SO AS TO DETERMINE AT A LESSER VALUE,AS HELD BY THE HON'BLE JURISDICTIONAL HIGH COURT WITH REFERENCE TO POWER OF AO FOR DETERMINING THE COST OF ACQUISITION WHEN ASSESSEE SUB MITTED HIS OWN HARSHAD P. SHAH & ORS. ITA NO.6532/MUM/2013 & ORS. CASES 8 VALUATION REPORT. THIS PRINCIPLE WAS FOLLOWED IN THE CASE OF MRS. ASHA BHARAT SHAH , ANOTHER CO OWNER AND THE AO WAS DIRECTED T O ACCEPT THE COST OF ACQUISITION AS REPORTED BY SHRI GANJAWALA . IN THE PRESENT CASE THE CIT(A) CAME TO KNOW ABOUT THE EXISTENCE OF A NOTHER REPORT OF SHRI UMRIGAR, WHICH WAS IN FACT ADOPTED FOR THE PURP OSE OF WEALTH TAX . EVEN THE METHOD OF VALUATION WAS ALSO DI FFERENT AS SHRI UMRIGAR DID NOT CONSIDER THE OPEN LAND WHICH IS AVAILA BLE FOR FUTURE DEVELOPMENT AND HAS ONLY CONSIDERED ACTUAL RENT RECE IVED AT THAT POINT OF TIME AND VALUED PROPERTY UNDER WEALTH TAX P ROVISIONS ON RENT CAPITALIZATION METHOD. THE ASSESSEE IS OBJECTING TO THE ABOVE VALUE ON THE REASON THAT SUCH VALUATION WAS ONLY FOR THE PURPOSE OF WEALTH TAX AND NOT FOR THE PURPOSE OF CALCULATING TAX ON CAPITAL GAINS. ASSESSEE HAS EVERY RIGHT TO CONTEST THIS ISSUE, AS CONSIDERED BY CO-ORDINATE BENCH IN THE CASE OF INDIRA BAI VS. INCO ME TAX OFFICER (42 ITD 397), WHEREIN ON THE FOLLOWING FACTS IT WAS HE LD AS UNDER :- IN THE PREVIOUS YEAR ENDED 31-3-1982, CORRESPONDING TO THE ASSESSMENT YEAR 1982-83, THE ASSESSEE SOLD A HOUSE PR OPERTY FOR RS. 10.80,000 AND IN THE RETURN FILED BY THE ASSESSEE; NO CAPITAL GAIN WAS ADMITTED FROM THIS TRANSACTION. THIS WAS EXPLAINE D BY A NOTE STATING THAT DEDUCTING THE COST OF THE PROPERTY AS THE ESTIMATED MARKET VALUE AS ON 1-1-1964 AT RS. 3 LAKHS FROM THE SALE VALUE OF RS. 10,80,000 THE CAPITAL GAINS WAS RS. 7,80,000/- AND S INCE THE ASSESSEE HAD PURCHASED A NEW HOUSE PROPERTY AT RS.7 LAKHS AND I NCURRED STAMP DUTY OF RS. 1 LAKH AND ALSO MADE INVESTMENTS IN UNIT TRUST OF INDIA FOR RS. 25,000 AND IN NATIONAL SAVINGS CERTIF ICATES FOR RS.2,50,000, THE CAPITAL GAIN ARISING FROM THE TRANSA CTION WAS NOT EXIGIBLE TO TAX. THE ITO DID NOT AGREE WITH THE ASSESSEE, WITH RESPECT TO, INTER ALIA, VALUE OF THE PROPERTY AS ON 31-3-1964. HE FOUND THAT THE VALUE OF THE PROPERTY HAD BEEN TAKEN AT RS. 1,30,000 AS ON 31-3- 1964 FOR WEALTH- TAX PURPOSES. HE WAS, THEREFORE, OF THE VIEW THAT THE S AME VALUE HARSHAD P. SHAH & ORS. ITA NO.6532/MUM/2013 & ORS. CASES 9 SHOULD BE ADOPTED FOR CAPITAL GAINS PURPOSES ALSO. O N APPEAL, THE COMMISSIONER (APPEALS) ALSO UPHELD THE SAID VIEW. ON SECOND APPEAL, THE REVENUE CONTENDED THAT THE ASSESSEE WAS P RECLUDED FROM GOING BACK ON THE VALUE RETURNED AND ACCEPTED FOR WE ALTH-TAX PURPOSES IN RESPECT OF THE DETERMINATION OF THE VALUE OF THE SAME PROPERTY FOR THE PURPOSES OF CAPITAL GAINS. HELD: THE REVENUES CONTENTION IMPLIED THAT THERE WAS AN AD MISSION REGARDING THE VALUE OF THE PROPERTY LEADING TO AN EST OPPEL. AN ADMISSION IS A STATEMENT WHICH SUGGEST ANY INFERENCE AS TO FACT IN ISSUE BY A PERSON HAVING AN INTEREST IN THE SUBJECT M ATTER. BUT SUCH A STATEMENT DOES NOT AMOUNT TO AN ADMISSION WHEN IT CONSISTS MERELY OF AN OPINION OR BELIEF. EVEN ASSUMING THAT THE STATEMENT MADE BY THE ASSESSEE IN THE WEALTH-TAX RETURN THAT THE VALUE OF THE PROPERTY WAS RS.1,30,000 AMOUNTED TO AN ADMISSION, IT DID NOT ESTOP HIM FROM CONTENDING OTHERWISE IN THE INCOME-TAX PROCEEDINGS. THOUGH SECTION 55 OF THE INCOME TAX ACT USES THE PHRASE FAIR MARKET VALUE OF THE ASSET AS ON 1..1.1964, AND SECTION 7 OF THE WEALTH-TAX ACT USE S THE PHRASE VALUE OF ANY ASSET, OTHER THAN CASH, FOR THE PURPOSE OF THIS ACT, IT SHALL BE ESTIMATED TO BE THE PRICE WHICH IN THE OPINION O THE WTO IT WOULD FETCH IF SOLD IN THE OPEN MARKET ON THE VALUATION DATE AND, THUS, BOTH PRACTICALLY MEAN THE SAME. BOTH THE PROVISIONS OF THE ACTS REQUIRE THE DETERMINATION OF THE VALUE OF AN ASSET W ITH REFERENCE TO THE FACTS RELATING TO THE ASSETS SUCH AS ITS LOCATION , ITS FEATURES, THE MARKET VALUE OF OTHER PROPERTIES IN THE LOCALITY AND AT WORKS, THE EXPERT OPINION OF VALUERS. STILL ANY SUCH DETERMINAT ION OF THE MARKET VALUE WILL REMAIN AN OPINION OF THE VALUER ON HYPOTHE TICAL BASIS OR AT BEST AN ESTIMATE BASED ON RELEVANT DATA. SUCH AN OPINION IS ONLY A PIECE OF EVIDENCE WHEN A SIMILAR DETERMINATION IS RE QUIRED UNDER HARSHAD P. SHAH & ORS. ITA NO.6532/MUM/2013 & ORS. CASES 10 ANOTHER ACT. IT IS ALWAYS OPEN TO THE ASSESSEE TO SHOW THAT THE DETERMINATION OF THE MARKET VALUE UNDER THE PROVISIO NS OF ONE ACT REQUIRES CONSIDERATION IN THE LIGHT OF OTHER EVIDENCE AVAILABLE WHEN A FRESH DETERMINATION IS REQUIRED IN THE CURRENT PROC EEDINGS. THERE IS ALSO ANOTHER FACTOR, VIZ. THAT THE PURPOSE OF AN AC T MAY BE DIFFERENT FROM THE PURPOSE OF OTHER ACT AND THE APPRO ACH TO THE VALUATION UNDER ONE ACT MAY NOT BE APPROPRIATE FOR THE OTHER. IN THE PRESENT CASE ALSO, THE DETERMINATION OF THE VALUE FO R THE WEALTH-TAX PURPOSES WAS A MATTER OF ROUTINE WITHOUT REFERENCE T O THE COMPLETE DATA AVAILABLE. MOREOVER, THE WEALTH-TAX IS A REPETI TIVE TAX, AND THE VALUATION NEED NOT BE ACCURATE. IT IS ALSO WELL REC OGNIZED THAT IN THE CASE OF SELF OCCUPIED HOUSE PROPERTIES WHICH DO NOT EA RN ANY INCOME, THE VALUE IS GENERALLY KEPT LOW EVEN BY THE D EPARTMENT AS CAN BE SEEN FROM THE PROVISIONS OF RULE 1BB. ON THE O THER HAND, TAX ON CAPITAL GAINS IS A ONE-TIME TAX ON THE DIFFERENCE BETWEEN THE CONSIDERATION RECEIVED AND THE MARKET VALUE AS ON 1. 1.1964. SINCE THE ASSESSEE WAS NOT ESTOPPED FROM CONTENDING THAT THE VALUE TAKEN FOR WEALTH-TAX PURPOSES NEED NOT BE FOLLOWED FOR CA PITAL GAINS PURPOSES, THAT VALUE TAKEN FOR WEALTH TAX PURPOSES COULD BE CONSIDERED TO BE THE ONLY ONE PIECE OF EVIDENCE WHIC H COULD BE CONTRADICTED BY THE ASSESSEE BY PRODUCING FURTHER DA TA FOR A MORE ACCURATE DETERMINATION OF THE MARKET VALUE. IN THE PR ESENT CASE, THE ASSESSEE HAD DONE ONLY THAT BY PRODUCING THE SALE DEED RELATING TO THE SALE OF AN ADJACENT PROPERTY IN APRIL 1964 WHICH I NDICATED A VALUE SIMILAR TO THAT ADOPTED BY THE ASSESSEE. IN THE CIRCUMSTANCES, THE VALUE OF THE PROPERTY COUL D BE REASONABLY ESTIMATED AT RS. 3 LAKHS AS ON 11.1964 FOR THE PURPO SE OF COMPUTING THE CAPITAL GAINS. 2 FOLLOWING THE PRINCIPLES LAID DOWN THEREIN, WE ARE OF THE OPINION THAT THE REPORT GIVEN FOR THE WEALTH TAX PURPOSES NEED NOT BE CONSIDERED FOR THE INCOME TAX PURPOSES, PARTICULARLY FOR HARSHAD P. SHAH & ORS. ITA NO.6532/MUM/2013 & ORS. CASES 11 COMPUTATION OF CAPITAL GAINS. HOWEVER, THIS ASPECT W AS NOT BEFORE AO AT THE TIME OF COMPLETING THE ASSESSMENT. MOREOVER THE ASSESSEE FILED ADDITIONAL EVIDENCE IN THE FORM OF ORDER IN TH E CASE OF PANKAJ. P. SHAH , ACCEPTING ASSESSEE VALUATION IN THE SUBSEQUE NT ORDER PASSED AFTER CIT(A) ORDER AND ALSO TWO VALUATION RE PORTS OF THE DEPARTMENT DATED 19.04.90 VALUING PROPERTY AS ON 31 .03.87 TO 31.03.88. THESE VALUATION REPORTS OF THE DEPARTMENT A LONG WITH THE WEALTH TAX REPORT OF SHRI UMRIGAR ARE TO BE CONSIDERE D VIZ-A-VIZ THE REPORT OF SHRI GANJAWALA. THE ASSESSEES OBJECTION ON ADOPTING REPORT OF SHRI UMRIGAR FOR THE PURPOSE OF CAPITAL GAI NS ALSO REQUIRED DETAILED EXAMINATION OF THE AO, AS CIT(A) TOOK UPON HIMSELF WITHOUT GIVING OPPORTUNITY TO THE AO. IN VIEW OF THESE, SINCE THE ISSUE OF ADOPTION OF VALUE UNDER SECTION 50C WAS REFERRED TO THE AO BY THE CIT(A), THIS ISSUE ALSO REQUIRED TO BE SET ASIDE TO THE FILE OF AO. THEREFORE, BOTH ISSUE OF SALE CONSIDERATION UNDER SEC TION 50C(2) AND COST OF ACQUISITION AS ON 01.04.81 FOR COMPUTING OF CAPITAL GAINS SHOULD BE EXAMINED BY AO AFRESH. FOR THIS, THE ORDER OF THE AO IS SET ASIDE AND ISSUE RESTORED TO THE FILE OF AO. THE AO I S DIRECTED TO KEEP IN MIND THE ORDERS OF ITAT IN OTHER CO-OWNER CASES AN D ALSO PRINCIPLES LAID DOWN ON THE ABOVE TWO ISSUES. BEFORE DECIDING THE ISSUE, ASSESSEE SHOULD BE GIVEN DUE OPPORTUNITY IN T HE PROCEEDINGS. WITH THESE DIRECTIONS, THE ISSUE OF GROUND NO.2 IS R ESTORED TO THE FILE OF AO. GROUND CONSIDERED ALLOWED FOR STATISTICAL PU RPOSES. COPY OF AFOREMENTIONED ORDER WAS PLACED ON OUR RECO RD AND WAS ALSO GIVEN TO LD. DR. IT WAS THE COMMON CONTENTION THAT THE MATTER MAY BE RESTORED BACK TO THE FILE OF AO SO THAT THERE MAY BE UNIFORMITY OF DECIS ION. 6.1 IN THIS VIEW OF THE SITUATION, AFTER HEARING BO TH THE PARTIES, RESPECTFULLY FOLLOWING THE AFOREMENTIONED ORDER OF DIVISION BENCH IN THE CASE OF ONE OF THE COOWNERS, I REMIT HARSHAD P. SHAH & ORS. ITA NO.6532/MUM/2013 & ORS. CASES 12 THE MATTER BACK TO THE FILE OF AO WITH SIMILAR DIRE CTIONS IN BOTH THE CASES AND I DIRECT ACCORDINGLY. 7. IN THE RESULT, APPEALS AND CROSS OBJECTIONS ARE CONSIDERED TO BE ALLOWED FOR STATISTICAL PURPOSES I N THE MANNER AFORESAID. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 26TH JUN E, 2014. 2.2. WE FIND THAT IN THE AFORESAID CASES OF CO-OWNE RS, ON IDENTICAL GROUNDS/FACTS, THE TRIBUNAL IN JAY HARSHA D SHAH (HUF) VS ITO VIDE ORDER DATED 12/07/2013 (ITA NO.1178/MUM/2012) THE MATTER WAS RESORTED TO THE FI LE OF THE ASSESSING OFFICER WITH THE OBSERVATION AS CONTA INED IN THE AFORESAID ORDER AND IDENTICALLY VIDE ORDER DATE D 26/06/2014, THE TRIBUNAL GAVE SIMILAR DIRECTIONS. FOLLOWING THE AFORESAID ORDERS, WE REMAND THESE APP EALS TO THE FILE OF THE ASSESSING OFFICER WITH SIMILAR DIRE CTIONS, THUS, ALL THESE APPEALS ARE ALLOWED FOR STATISTICAL PURPO SES. THIS ORDER WAS PRONOUNCED IN THE OPEN COURT IN TH E PRESENCE OF LD. REPRESENTATIVES FROM BOTH SIDES AT THE CONCLUSION OF THE HEARING ON 02/07/2015. SD/ - (RAJENDRA) SD/ - (JOGINDER SINGH) '# / ACCOUNTANT MEMBER $# / JUDICIAL MEMBER % & MUMBAI; * DATED : 24/07/2015 HARSHAD P. SHAH & ORS. ITA NO.6532/MUM/2013 & ORS. CASES 13 F{X~{T? P.S/. .. %$&'()(*& / COPY OF THE ORDER FORWARDED TO : 1. ,-./ / THE APPELLANT 2. 01./ / THE RESPONDENT. 3. 2 2 % 3$ ( ,- ) / THE CIT, MUMBAI. 4. 2 2 % 3$ / CIT(A)- , MUMBAI 5. 56 0$ ! , 2 ,-( ,! 7 , % & / DR, ITAT, MUMBAI 6. 8' 9& / GUARD FILE. / BY ORDER, 15-$ 0$ //TRUE COPY// / (DY./ASSTT. REGISTRAR) , % & / ITAT, MUMBAI