Adarsh Kumar Agarwal, Faizabad V. Asstt. Commissioner of Income Tax, Faizabad

ITA 66/LKW/2014

• Counselvise Citation: 6623714 RSA 2014
• Duration Of Justice: 7 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-09-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 27-08-2014
• Assessment Year: 2010-2011
• Appeal Filed On: 07-02-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: O N PATHAK
• Keywords: Opportunity of being heard; Principle of natural justice; Fair market value; Valuation report

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH A, LUCKNOW BEFORE SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER AND SHRI A.K. GARODIA, ACCOUNTANT MEMBER ITA NO.66/LKW/2014 ASSESSMENT YEAR:2010 - 11 SHRI ADARSH KUMAR AGARWAL, 4/1/11, DHARA ROAD, FAIZABAD. PAN:AAPPA0832P VS. A.C.I.T., CIRCLE, BAREILLY. (APPELLANT) (RESPONDENT) APPELLANT BY SHRI RAKESH GARG, ADVOCATE RESPONDENT BY SHRI O. N. PATHAK, D.R. DATE OF HEARING 27/08/2014 DATE OF PRONOUNCEMENT 2 3 /09/2014 O R D E R PER A. K. GARODIA, A.M. THIS IS AN ASSESSEES APPEAL DIRECTED AGAINST THE ORDER PASSED BY LEARNED CIT(A) - I, LUCKNOW DATED 28/11/2013 FOR THE ASSESSMENT YEAR 2010 - 2011. 2. THE GROUNDS RAISED BY THE ASSESSEE ARE AS UNDER: 1. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED IN LAW AND ON FACTS IN PASSING THE ORDER WHICH IS ILLEGAL, IMPROPER AND AGAINST THE PRINCIPLES OF NATURAL JUSTICE. 2. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED IN LAW AND ON FACTS IN PASSING THE ORDER WITHO UT GIVING ADEQUATE OPPORTUNITY OF BEING HEARD AND WITHOUT CONSIDERING THE WRITTEN SUBMISSION 2 SUBMITTED BEFORE HIM AND BEFORE THE LEARNED ASSESSING OFFICER. 3. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED IN LAW AND ON FACTS IN MAKING ADDITIO N OF RS.22,20,450/ - UNDER THE 'CAPITAL GAINS'. 3. IT WAS SUBMITTED BY LEARNED A.R. OF THE ASSESSEE THAT THE ASSESSEE HAS SUBMITTED A REPORT OF REGISTERED VALUER REGARDING MARKET VALUE OF THE PROPERTY AS ON 01/04/81. HE ALSO SUBMITTED THAT THIS REPORT OF THE REGISTERED VALUER IS AVAILABLE ON PAGE NO. 17 AND 18 OF THE PAPER BOOK AS PER WHICH THE VALUE OF LAND WAS ADOPTED AT RS.7,02,674/ - @RS.12/ - PER SQ. FT. HE ALSO SUBMITTED THAT IT IS OBSERVED BY THE REGISTERED VALUER ON PAGE NO. 17 THAT CIRCLE RATE FOR LAND WAS RS.8/ - TO RS.12/ - PER SQ. FT. IN CITY AREA IN 19 8 0 - 8 1 AND CONSIDERING THIS , HE ADOPTED THE RATE OF RS.12/ - PER SQ. FT. ON MAIN HIGHWAY CALLED DEOKALI CHAURAHA . HE ALSO SUBMITTED THAT AS PER THE ASSESSMENT ORDER, THERE IS NO DISPUTE REGARDING COS T OF CONSTRUCTION AS ON 01/04/81 BECAUSE THE ASSESSING OFFICER HAS ALSO ACCEPTED THE COST OF CONSTRUCTION AS ON 01/04/81 AT RS.2,24,807/ - AS HAS BEEN REPORTED BY THE REGISTERED VALUER BUT THE ASSESSING OFFICER HAS ADOPTED THE VALUE OF LAND AT RS.3,51,337/ - @RS.6/ - PER SQ. FT. AS AGAINST RS.7,20,674/ - ADOPTED BY REGISTERED VALUER BY APPLYING RATE OF RS.12/ - SQ. FT. HE FURTHER SUBMITTED THAT EVEN IF THE ASSESSING OFFICER WAS NOT IN AGREEMENT WITH THE REGISTERED VALUER, HE SHOULD HAVE REFERRED THE MATTER TO D .V.O. BUT WITHOUT REFERRING THE MATTER TO D.V.O., THE ASSESSING OFFICER CANNOT REJECT THE REPORT OF REGISTERED VALUER AND ADOPT THE VALUE ON HIS OWN. IN SUPPORT OF THIS CONTENTION, HE PLACED RELIANCE ON A TRIBUNAL DECISION RENDERED IN THE CASE OF MRS. GOP I S. SHIVNANI VS. INCOME TAX OFFICER [2011] 9 TAXMANN.COM 223 (MUM ). HE SUBMITTED A COPY OF THIS DECISION. HE ALSO PLACED RELIANCE ON A TRIBUNAL DECISION RENDERED IN THE CASE OF 3 PYARE MOHAN MATHUR, HUF IN I.T.A. NO.471/AGRA/2009 DATED 15/10/2009. HE SUB MITTED A COPY OF THIS TRIBUNAL DECISION ALSO . HE POINTED OUT THAT IN BOTH THESE CASES, IT WAS HELD BY THE TRIBUNAL THAT THE REGISTERED VALUER IS A TECHNICAL EXPERT AND OPINION OF THE EXPERT CANNOT BE THROWN OUT WITHOUT BRINGING ANY CONTRARY MATERIAL ON RE CORD. IT WAS ALSO HELD THAT IF THE ASSESSING OFFICER WAS NOT AGREEABLE WITH THE REPORT OF THE REGISTERED VALUER, HE WAS DUTY BOUND TO REFER THE MATTER TO THE D.V.O. FOR DETERMINING THE FAIR MARKET VALUE OF THE LAND AS ON 01/04/1981 AND THE ASSESSING OFFIC ER HAS FAILED TO DO SO AND HENCE , THE REPORT OF THE REGISTERED VALUER HAS TO BE ACCEPTED. HE ALSO SUBMITTED THAT THE ASSESSING OFFICER HAS NOT REFERRED THE MATTER TO D.V.O. AND THEREFORE, HE CANNOT REJECT THE REPORT OF REGISTERED VALUER. 4. LEARNED D.R. OF THE REVENUE SUPPORTED THE ASSESSMENT ORDER. 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. WE ARE OF THE CONSIDERED OPINION THAT THERE IS NO DISPUTE REGARDING THE MARKET VALUE AS ON 01/04/1981 WITH REGARD TO COST OF CONSTRUCTION. THE ONLY DISPUTE IS RE GARDING VALUE OF LAND AS ON 01/04/1981. IN SUPPORT OF THE VALUE OF THE LAND ADOPTED BY THE ASSESSEE FOR COMPUTING THE CAPITAL GAIN, THE ASSESSEE HAS SUBMITTED A REPORT OF REGISTERED VALUER. THE ASSESSING OFFICER HAS NOT REFERRED THE MATTER TO D.V.O. AND ON HIS OWN, HE HAS REJECTED THE REPORT OF REGISTERED VALUER AND CHOSE TO ADOPT RATE OF RS.6/ - PER SQ. FT. AS MARKET VALUE OF LAND AS ON 01/04/81. UNDER THESE FACTS, WE ARE OF THE CONSIDERED OPINION THAT THE ISSUE IS COVERED IN FAVOUR OF THE ASSESSEE BY TH ESE TRIBUNAL DECISIONS WHERE IT IS HELD BY THE TRIBUNAL THAT WHERE THE ASSESSEE HAS SUBMITTED THE VALUATION REPORT OF THE REGISTERED VALUER AND THE MATTER WAS NOT REFERRED Y THE ASSESSING OFFICER TO D.V.O., THE ASSESSING OFFICER HAS TO ACCEPT THE REPORT OF THE REGISTERED VALUER 4 REGARDING MARKET VALUE OF THE LAND AS ON 01/04/81 AS CLAIMED BY THE ASSESSEE. HENCE, WE SET ASIDE THE ORDER OF CIT(A) AND DIRECT THE ASSESSING OFFICER TO RECOMPUTE THE CAPITAL GAIN BY ADOPTING VALUE OF LAND AS ON 01/04/81 AS CLAIMED BY THE ASSESSEE DULY SUPPORTED BY THE REPORT OF THE REGISTERED VALUER. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE STANDS ALLOWED. (ORDER WAS PRONOUNCED IN THE OPEN COURT ON THE DATE MENTIONED ON THE CAPTION PAGE) SD/. SD/. (SUNIL KUMAR YADAV) ( A. K. GARODIA ) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 2 3 /09/2014. *C.L.SINGH COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT. 3. CONCERNED CIT 4. THE CIT(A) 5. D.R., I.T.A.T., LUCKNOW ASSTT. REGISTRAR