Hemant Vithalrao Waje, Nashik V. Deputy Commissioner of Income Tax Circle 1, Nashik

ITA 651/PUN/2020

• Counselvise Citation: [2022] 106 COUNSELVISE.COM (IT) 1491 (ITAT-PUNE)
• Duration Of Justice: 1 year(s) 8 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-08-2022
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2012-2013
• Appeal Filed On: 22-12-2020
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Fair market value; Valuation report; Capital Gains
• Section: 143(3); 234B; 55A; 13

Judgement Text

आयकर अपीऱीय अधिकरण “ए” न्यायपीठ पुणे में । IN THE INCOME TAX APPELLATE TRIBUNAL “A” BENCH, PUNE BEFORE SHRI S.S.GODARA, JM AND SHRI DR. DIPAK P. RIPOTE, AM आयकर अपीऱ सं. / ITA No.651/PUN/2020 ननधधारण वषा / Assessment Year : 2012-13 Shri Hemant Vithalrao Waje, 57, Ashok Nagar, Ganesh Peth, Sinnar, Dist. Nashik, Pin – 422 103 PAN : AAMPW3885H .......अपऩलधथी / Appellant बनधम / V/s. DCIT, Circle 1, Nashik ......प्रत्यथी / Respondent Assessee by : Shri Sanket Joshi Revenue by : Shri S.P. Walimbe सपनवधई की तधरऩख / Date of Hearing : 23.06.2022 घोषणध की तधरऩख / Date of Pronouncement : 29.08.2022 आदेश / ORDER PER S. S. GODARA, JM : 1. This assessee‟s appeal for A.Y. 2012-13 is directed against the CIT(A)-1, Nashik‟s order dated 22/09/2020 passed in case No. Nsk/CIT(A)- 1/192/2015-16 involving proceeding u/s. 143(3) of the Income Tax Act, 1961; in short "the Act”. Heard both the parties. Case file perused. 2 ITA No.651/PUN/2020 A.Y. : 2012-13 Shri Hemant Vithalrao Waje, 2. The assessee pleads the following substantive grounds in the instant appeal. “1. The learned CIT(A) erred in making the addition of Rs. 1,70,11,837/- on account of long term capital gains on sale of immoveable property by adopting the fair market value of the impugned property as on 01.04.1981 on the basis of the DVO’s valuation report without appreciating that the said action of the CIT(A) was not justified on facts and in law. 2. The learned CIT(A) erred in adopting the fail market value of the impugned immoveable property as on 1.4.1981 at Rs. 20,08,500/- by relying upon the DVO’s valuation report as against the fair market value of Rs.41,75,613/- claimed by the assessee on the basis of the valuation report of Govt. Approved Valuer and thereby making an addition of Rs. 1,70,11,837/- without appreciating that the said action of the CIT(A) was not justified on facts and in law. 3. The learned CIT(A) failed to appreciate that the fair market value of the property adopted by the appellant was based on the valuation report of the Govt. Approved Valuer and the same was more than the value adopted by the A.O and hence, the reference made to the DVO u/s 55A for A.Y.2012 - 13 was bad in law and therefore, the valuation as on 1.4.1981 as claimed by the appellant should have been adopted for the purposes of computing long term capital gains. 4. Without prejudice to ground no.3, the assessee submits that even on merits, the fair market valuation of the property determined by the DVO was on a very lower side as against the valuation determined by the Govt. Approved Valuer and therefore, upon the facts of the instant case, the valuation 3 ITA No.651/PUN/2020 A.Y. : 2012-13 Shri Hemant Vithalrao Waje, determined by the Govt. Approved Valuer ought to have been adopted for the purposes of computing long term capital gains on sale of such property. 5. Without prejudice to the ground nos.3 & 4, it is submitted that the learned CIT(A) has erred in making enhancement of Rs.25,19,881/- by adopting the fair market value of the property as on 01.04.1981 at Rs.20,08,500/- as against the fair market value as on 01.04.1981 adopted by the A.O. at Rs.23,29,504/- without issuing any notice of enhancement as mandated under the provisions of section 251(2) of the Act and hence, the said enhancement of Rs.25,19,881/- made by the CIT(A) may be declared as null and void in law. 6. Without prejudice to the above grounds, the assessee submits that the interest liability u/s 234B computed by the A.O. at Rs.28,95,948/- is incorrect in law and the A.O. may be directed to compute the interest u/s 234B on the amount of returned income and not on the amount of assessed income. 7. The appellant craves, leave to add, alter, amend and delete any of the above grounds of appeal.” 3. Suffice to say, the assessee „s sole substantive grievance herein challenges correctness of both the lower authorities action adopting fair mark value of the capital asset in the issue as on 01.04.1981 at Rs.20,08,500/- after making reference to the DVO thereby rejecting his valuation report claiming the same to be Rs.41,75,653/- . We note in this factual background that section 55(A); as in assessment year 2012-13 before us contained, only the statutory expression “ is less than its fair market value” before its subtutions by Finance Act 2012 w.e.f. 01.07.2012 as “is at 4 ITA No.651/PUN/2020 A.Y. : 2012-13 Shri Hemant Vithalrao Waje, variance with its fair market value” in an instance involving the registered valuer‟s report. Hon‟ble jurisdictional high court decision in CIT V/s Pooja Prints (2014) 360 ITR 697 (Bom) holds forgoing amendment to be having prospective effect only. That being the case, we conclude that learned lower authorities have erred in law and on facts in making the impugned long term capital gain addition of Rs.1,70,11,837/- after reference to the DVO u/s. 55A(a) of the Act. The assessee‟s corresponding grounds in the instant appeal are accepted. 4. Delay of 09 days in filing of the instant appeal instituted on 23.12.2020 is condoned since falling in Covid-19 pandemic outbreak period. 5. This assessee‟s appeal is allowed in above terms. Order pronounced in the Open Court on this 29 th day of August, 2022. Sd/- Sd/- (DR.DIPAK P.RIPOTE) (S.S. GODARA) लेखध सदस्य/ ACCOUNTANT MEMBER न्यधनयक सदस्य/JUDICIAL MEMBER पपणे / Pune; ददनधांक / Dated : August, 2022. Ashwini 5 ITA No.651/PUN/2020 A.Y. : 2012-13 Shri Hemant Vithalrao Waje, आदेश की प्रनतनलनप अग्रेनषत / Copy of the Order forwarded to : 1. अपऩलधथी / The Appellant. 2. प्रत्यथी / The Respondent. 3. The CIT(A)-1, Nashik. 4. The Pr.CIT-1, Nashik. 5. नवभधगऩय प्रनतनननध, आयकर अपऩलऩय अनधकरण, “ए” बेंच, पपणे / DR, ITAT, “A” Bench, Pune. 6. गधर्ा फ़धइल / Guard File. आदेशधनपसधर / BY ORDER, // True Copy // Senior Private Secretary आयकर अपऩलऩय अनधकरण, पपणे / ITAT, Pune. 6 ITA No.651/PUN/2020 A.Y. : 2012-13 Shri Hemant Vithalrao Waje, S.No. Details Date Initials 1 Draft dictated on 23.06.2022 2 Draft placed before author 29.08.2022 3 Draft proposed & placed before the Second Member 4 Draft discussed/approved by Second Member 5 Approved Draft comes to the Sr. PS/PS 6 Kept for pronouncement on 7 Date of uploading of Order 8 File sent to Bench Clerk 9 Date on which the file goes to the Head Clerk 10 Date on which file goes to the A.R. 11 Date of Dispatch of order