Arvindbhai Ishvarbhai Patel, Surat V. Income Tax Officer, Ward-2(2)(1), Surat, Surat

ITA 7/SRT/2024

• Counselvise Citation: [2024] 101 COUNSELVISE.COM (IT) 8175 (ITAT-SURAT)
• Duration Of Justice: 2 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-03-2024
• Appeal Filed By: Assessee
• Order Result: PartlyAllowed
• Bench Allotted: SMC
• Next Hearing Date: 10-03-2024
• Assessment Year: 2011-2012
• Appeal Filed On: 03-01-2024
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Value adopted by valuation officer; Income from undisclosed sources; Cost of acquisition; Fair market value; Valuation report; Condonation of delay; Capital Gains
• Section: 148; 143(3); 142(1); 133(6)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, SURAT BENCH, SURAT BEFORE SHRI PAWAN SINGH, JM & DR. A. L. SAINI, AM आयकर अपील सं./ITA No.07/SRT/2024 Assessment Years: (2011-12) (Physical Hearing) Arvindbhai Ishvarbhai Patel, At & Post – Sherdi, Variav, Tal. Olpad, Surat – 394520. Vs. The ITO, Ward – 2 (2)(1), Surat èथायीलेखासं./जीआइआरसं./PAN/GIR No.: BLYPP9017Q (Assessee) (Respondent) आयकर अपील सं./ITA No. 08/SRT/2024 Assessment Years: (2011-12) (Physical Hearing) Kaushikkumar Ishvarbhai Patel, 155, Post – Sherdi, Tal. Olpad, Surat – 394520. Vs. The ITO, Ward – 2 (2)(2), Surat èथायीलेखासं./जीआइआरसं./PAN/GIR No.: AUFPP1127Q (Assessee) (Respondent) Assessee by Shri Rajesh M. Upadhyay, AR Respondent by Shri Vinod Kumar, Sr. DR Date of Hearing 11/03/2024 Date of Pronouncement 22/03/2024 आदेश / O R D E R PER DR. A. L. SAINI, AM: Captioned two appeals filed by the different assessees, pertaining to common Assessment Year (AY) 2011-12, are directed against the separate order passed by the Learned Commissioner of Income Tax (Appeals), [in short “the ld. CIT(A)”], National Faceless Appeal Centre (in short ‘the NFAC’), Delhi, dated 29.07.2021 and 26.09.2023 respectively, which in turn arise out of separate assessment orders passed by the Assessing Officer u/s 143(3)/143(3) r.w.s. 147 of 2 7/SRT/2024 & 8/SRT/2024/AYs.2011-12 Arvindbhai I. Patel & Kaushikkumar I. Patel the Income Tax Act, 1961 (hereinafter referred to as “the Act”), dated 19.12.2018 and 21.12.2018 respectively. 2. Since the issues involved in these two appeals are common and identical; therefore these two appeals have been clubbed and heard together and a consolidated order is being passed for the sake of convenience and brevity. The facts as well as grounds of appeal raised by the assessee in ITA No.07/SRT/2024 for assessment year (AY), 2011-12 have been taken into consideration for deciding these appeals en masse. 3. The grounds of appeal raised by the assessee as per ‘lead case” in ITA No. 07/SRT/2024, for AY.2011-12 are as follows: “1. Ld. CIT(A), NFAC, Delhi has erred in law and on fact to direct the AO to take cost of acquisition adopted by the DVO at Rs.50 per sq. mtr as on 01/04/1981 as against the cost of acquisition determined by the RVO at Rs.99/- per sq. mtr. For land situated at Survey No.62/1/B, Block No.126, Village Sherdi, Tal. Olpad, District – Surat. 2. Ld. AO has erred in law and on facts on reopen my case u/s 147 and also issue of notice u/s 148 of the Act only on the basis of AIR Information as well as ignoring the law that Capital Gains provisions are not attracted on Sale of Immovable Property for Rs.1,01,68,000 on 04/02/2011. 3. Ld. AO has erred in law and on facts to tax LTCG at Rs.25,17,902/- on sale of immovable Property being agriculture land situated at Survey No.62/1B/Block No.126, Village Sherdi, Tal. Olpad, District – Surat.” 4. The additional grounds of appeal raised by the assessee in ITA No.07/SRT/2024 are as follows: 1. Ld. AO has erred in in law and on facts to reopen my case u/s 147 and also issue of notice u/s 148 of the Act only on the basis of AIR/TIS data on ITD System as well as ignoring the law that Capital Gains provisions are not attracted on Sale of Immovable Property for Rs.1,01,68,000 on 04/02/2011. 2. Ld. AO has erred in law and on facts to assessed LTCG at Rs.25,17,902/- on Sale of immovable property being agriculture land situated at survey No.62/1B/Block No.126, Village Sherdi, Tal. Olpad, District – Surat. 3 7/SRT/2024 & 8/SRT/2024/AYs.2011-12 Arvindbhai I. Patel & Kaushikkumar I. Patel 5. The appeal filed by the assessee in ITA No.07/SRT/2024 for AY.2011-12, is barred by limitation by 829 days. The assessee moved a petition for condonation of delay, requesting the Bench to condone the delay. The contents of the petition for condonation of delay are reproduced below: “I, the undersigned, Arvindbhai Ishvarbhai Patel , the petitioner have to state following facts of my case w.r.t. my prayer for condonation of delay for filing of appeal against the order Ld. CIT(A) NFAC, Delhi for A.Y. 2011-12 1. That appeal order of NFAC, Delhi for A. Y. 2011-12 is dated 29.07.2021 has been served electronically through portal. So it is presume to be served on 29.07.2021. Appeal is filed with the registry, ITAT, Surat on 04.01.2024, which is late by -859- days. 2. That my Income Tax matter is being handled by Advocate Shri Kishorbhai Patel of Surat. He has filled my ROI U/s 148 for A.Y. 2017-18 and also attended valuation matter before the DVO, Surat. He has handled the matter of first appeal with CA firm Kansariwala & Chevli. He received order of CIT(A), NFAC, Delhi dated 29/07/2021 i.e. during Covid-19 effected period. It is needless to say that Pandemic Covid-19 had disturbed whole economy in the entire world. Honorable CBDT, New Delhi has extended time limit for making various compliance, assessments, as well as payment of normal tax and payment of taxes under VSVS 2020 also by issuing various notification/circulars from time to time with following words: “In view of the impact of the Covid-19 pandemic, taxpayers are facing inconvenience in meeting certain tax compliances and also in filing response to various notices. In order to ease compliances to be made by taxpayers during this difficult time, reliefs are being provided through Notifications nos. 74/2021 & 75/2021 dated 25th June, 2021 Circular no. 12/2021 dated 25th June, 2021.” Honorable Supreme Court of India has also granted substantial relief w.r.t. filing of appeals, petitions, various proceedings under different laws, compliances, reply to notices, assessment proceedings etc. Last of such orders is in MA No.21/2022 whereby period from 15.03.2020 to 28.02.2022 stands extended. Further -90- days period is allowed w.e.f 01.03.2022 (i.e. up to 31.05.2022) vide their order dated 10.01.2022. In these adverse situations my AR forgot to take remedial action against order of C1T(A), NFSC, Delhi. He has recollected the matter when another order from CIT(A), NFAC, Delhi was received in the case of other joint owner, Shri Kaushik I. Patel [AUFPP1127Q] in the month of September, 2023. He consulted Shri Rajesh M. Upadhyay on 29/12/2023 and discussed my case with him along with the case of my brother Kaushik I. Patel. Shri Rajesh M. Upadhyay has advised to file second appeal, before the ITAT, Surat with request for condonation of delay of 859 days in filling of appeal 4 7/SRT/2024 & 8/SRT/2024/AYs.2011-12 Arvindbhai I. Patel & Kaushikkumar I. Patel by admitting true facts before the Hon. Tribunal. I made payment of ITAT fees of Rs. 10,000/- by following his advice. 3. That the delay in filing the appeal for 859 days is neither willful nor deliberate but due to the above circumstances. Earlier, I had participated through AR in assessment proceeding in past, Valuation matter before DVO and first appeal proceedings before CIT(A), NFAC, Delhi. I have also cooperated in reassessment proceedings. Therefore, assessment was completed u/s 143(3) of the Act and first appeal is decided on merits”. 6. Shri Rajesh M. Upadhyaya, the Ld. Counsel for the assessee, argued that most of the delay is covered by the Covid-19 pandemic period which is exempted by the Hon'ble Supreme Court by Suo Motu Writ Petition (C) No. 3 of 2020, in Miscellaneous Application No.21 of 2022, dated 10.01.2022 whereby period from 15.03.2020 to 28.02.2022 stands excluded. Further, 90 days period is allowed with effect from 01.03.2022, i.e. upto 31.05.2022 vide order dated 10.01.2022. The period of delay covered by Covid-19 pandemic is nearly 10 Months, which should be treated, as explained delay, in the light of the judgment of Hon'ble Supreme Court in Miscellaneous Application No.21 of 2022, dated 10.01.2022 (supra). 7. In addition to the Covid-19 period, the balance delay has occurred due to various reasons which are explained in the petition for condonation of delay. One of the important reason of delay was mistake committed by the old Advocate/CA of the assessee, who was negligent and did not take the steps to file the appeal on time before this Tribunal, therefore, because of mistake committed by old Advocate/CA of the assessee, the assessee should not suffer and hence delay may be condoned. The ld Counsel relied on the many judgments and stated that there should be a liberal, pragmatic, justice oriented, non-pedantic approach while dealing with an application for condonation of delay, for the courts are not supposed to legalize injustice but are obliged to remove injustice. The terms “sufficient 5 7/SRT/2024 & 8/SRT/2024/AYs.2011-12 Arvindbhai I. Patel & Kaushikkumar I. Patel cause” should be understood in their proper spirit, philosophy and purpose regard being had to the fact that these terms are basically elastic and are to be applied in proper perspective to obtaining fact situation. Therefore, ld Counsel prays the Bench that delay should be condoned in the interest of justice. 8. On the other hand, Learned Senior Departmental Representative (ld. Sr. DR) for the Revenue opposed the prayer for condonation of delay and stated that the delay which is covered by Covid-19 period may be condoned and the balance delay should not be condoned because the assessee has not explained sufficient cause for delay. Therefore, ld. Sr. DR for the Revenue, contended that such huge delay should not be condoned and for that he relied on the judgment of the Hon'ble Supreme Court in the case of Majji Sannemma @ Sanyasirao vs. Reddy Sridevi & Ors., in Civil Appeal No.7696 of 2021, dated 16.12.2021. 9. We have heard both the parties on this preliminary issue and noted that the Hon'ble Supreme Court vide Miscellaneous Application No.21 of 2022, has condoned the delay pertaining to Covid-19 period. Thus, the Hon'ble Supreme Court, in Miscellaneous Application No.21 of 2022, dated 10.01.2022 whereby period from 15.03.2020 to 28.02.2022 stands excluded. Further, 90 days period is allowed with effect from 01.03.2022, i.e. up to 31.05.2022 vide order dated 10.01.2022. Thus, we note that assessee need not to explain the period of delay which is covered by Covid-19 pandemic. 10. For the balance delay, the Ld. Counsel for the assessee submitted that mainly the delay has occurred due to the mistake of old Advocate/Chartered Accountant of the assessee, who could not advice 6 7/SRT/2024 & 8/SRT/2024/AYs.2011-12 Arvindbhai I. Patel & Kaushikkumar I. Patel the assessee to file the appeal on time. We note that mistake committed by the assessee’s Advocate/Chartered Accountant is a sufficient cause/reason to condone the delay, for that, reliance is placed on the judgment of the Co-ordinate Bench of I.T.A.T., 'C' Bench, of Kolkata in the case of M/s. Garg Bros. Pvt. Ltd. & Others vs. DCIT [ITA Nos.2519 to 2521/Kol/2017, order dated 18.04.2018], wherein under similar set of facts and reasons, the Hon'ble Tribunal was pleased to condone the delay of 211 days by holding as under: “3. We have heard both the parties on this preliminary issue. Having regard to the reasons given in the application for condonation of delay, we are of the considered opinion that assessee was under a bona fide belief that the impugned order of Pr. CIT was not appealable before this Tribunal since they were not advised by their Tax Consultants about this legal right. Later on, when a Senior Lawyer advised them to file an appeal, the assessees immediately took steps to file the appeals. Therefore, the delay caused. We note that delay was occurred because of the wrong advice of the Tax Professional for which assessees cannot be penalized. For the ends of justice, we condone the delay and admit the appeal for hearing.” 11. Besides, there are other reasons given by the assessee in the affidavit. Therefore, we note that the reasons given in the affidavit for condonation of delay are convincing and would constitute reasonable and sufficient cause for the delay in filing this appeal, and there was no deliberateness or malafide on the part of the assessee. We are of the view that provisions of law have to be adhered strictly and that one cannot be allowed to act in leisure and make a mockery of enacted law, because law and provisions are laid down to benefit both sides of litigation. Be that as it may, we have to do justice and the Hon’ble Supreme Court in the case of Collector, Land Acquisition vs Mst. Katiji and others, reported in 167 ITR 471, (1988 SC 897) (7) has observed as follows: “4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non- deliberate delay. 7 7/SRT/2024 & 8/SRT/2024/AYs.2011-12 Arvindbhai I. Patel & Kaushikkumar I. Patel 12. When we weigh this aspect then the side of justice becomes heavier and casts a duty on us to deliver justice. The reasons given in the affidavit for condonation of delay were convincing and these reasons would constitute reasonable and sufficient cause for the delay in filing this appeal. We, therefore, condone this delay of 859 days and admit the appeal for hearing. 13. On merits, the facts of the assessee`s case are as follows: During the assessment proceedings, it was observed by the assessing officer that the assessee had sold an immovable property worth Rs.1,01,68,000/- on 04.02.2011, alongwith three other co-owners, during the financial year (F.Y.) 2010-11 relevant to assessment year (A.Y.) 2011-12. The share of the assessee in the immovable property comes to Rs.25,42,000/-. However, on issuing letter through the NMS system, the assessee has not filed any written submission/explanation regarding sale of immovable property made by him, within the time period provided. Therefore, the notice u/s 133(6) of the I.T. Act was issued by the assessing officer on 09.02.2018, wherein, the assessee was requested to explain the details of property sold and capital gain earned from the sale of property. In this notice it was specifically pointed out that in case of non-compliance of the notice it will be presumed that the assessee have unaccounted income to the tune of Rs.25,42,000/- during the period relevant to the A.Y. 2011-12. However, no compliance was made on the date fixed for compliance. Therefore, Assessing Officer noted that non-compliance of the notice u/s. 133(6) clearly establishes that the assessee had unaccounted income of Rs.25,42,000/- in the period relevant for A.Y. 2011-12 which escaped assessment because of non-filing of return of income and because of non-furnishing of material facts necessary for the 8 7/SRT/2024 & 8/SRT/2024/AYs.2011-12 Arvindbhai I. Patel & Kaushikkumar I. Patel assessment in such return. Therefore, assessing officer noted that it is an evidence that the income of Rs.25,42,000/- has escaped assessment within the meaning of section 147 of the I.T. Act. Thereafter, the case was reopened u/s 147 of the I.T. Act after obtaining approval of Pr.C.I.T-2, Surat. Subsequently, a Notice U/s 148 of the I.T Act dated 21.03.2018 and online notice u/s 148 dated 30.03.2018 were issued which were duly served upon the assessee. Thereafter, notice u/s142(l) of the Income-Tax Act dated 18.07.2018 issued and served upon the assessee alongwith questionnaire for the details in respect of assessment year. 14. During the course of assessment proceedings, it was noticed by the assessing officer that the assessee along with three co-owners had sold an immovable property situated at Survey No.62/1B/Block No.126, Village Sherdi, Tal. Olpad, District - Surat for a sale consideration of Rs.1,01,68,000/-, vide document No. OPD/810/201, during the year under consideration wherein the assessee is partner of 25%. In this regard, sale deed of the property is procured from Sub Registrar, Olpad. As per assessee's submission, it is noticed that Valuation report of Registered Valuer for value of land as on 1.4.1981 comes to Rs.13,42,100/- in which assessee's share comes to Rs.3,35,525/- (3389.25 x 99). On perusal of Return of income for A.Y 2011-12 filed on 17.10.2018 declaring total income of Rs.82,190/- and on analysis of computation of total income alongwith return of income, it was noticed by the assessing officer that assessee has claimed cost of acquisition after indexation of Rs.23,85,583/-, as on 01.04.1981. The valuer report dated 01.02.2013, the assessee’s valuer has estimated the fair market value of the immovable property as on 01.04.1981 to the tune of Rs.13,42,143/- i.e. Rs.99/- per sq. yd., which is found to be 9 7/SRT/2024 & 8/SRT/2024/AYs.2011-12 Arvindbhai I. Patel & Kaushikkumar I. Patel very high. Since the value of land estimated as on 01.04.1981 estimated by the registered valuer of assessee appears to be very high in comparison of value of the Agriculture land in the surrounding areas, hence the matter was referred by Assessing Officer to Department Valuation Officer to estimate the actual fair market value of the property in question as on 01.04.1981 and the same was pending with him during assessment proceedings. 15. In this connection, a show cause notice dated 16.12.2018 was issued by the assessing officer and served upon the assessee, the same is reproduced as under: “During the course of assessment proceedings, on verification of sale deed No.OPD/810/1/34/2011 dated 04.02.2011, it is noticed that you along with other three co-owners have jointly sold ancestral immovable property (agriculture land admeasuring 13557 sq. mtr.) situated at Survey No. 62/IB Block No. 126, Village Sherdi, Tal. Olpad, District- Surat for a sale consideration of Rs.1,01,68,000/- in which you were holding share of 25% thereby you have received an amount of Rs.25,42,000/- (25% of Rs.1,01,68,000/). On perusal of Return of income for A.Y. 2011-12 filed on 17.10.2018 in response to the Notice u/s 148 of the Act, it is noticed that you have claimed cost of acquisition after indexation of Rs.23,85,583/- on the basis of valuation report of Registered Valuer for calculating Long term Capital Gain. The Registered Valuer vide his report dated 01.02.2013, has estimated the fair market value of the immovable property (Agriculture land) as on 01.04.1981 to the tune of Rs.13,42,100/- i. e Rs.99/- per sq. mtr, which is found to be very high. Since the value of land estimated as on 01.04.1981 by the Registered Valuer appears to be very high, matter was referred to Department Valuation Officer to estimate the actual fair market value of the property as on 01.04.1981 and the same is pending with him. As the matter is time barring one which expires on 31.12.2018, you are requested to show cause as to why prevailing rate of Agriculture Land as on 01.04.1981 in the surrounding areas approximately of Rs.1.00 per sq mtr should not be adopted on ad hoc basis for the purpose of calculating Long term Capital gain until the valuation report of Department Valuation Officer receives. As and when report of DVO receives, Long term capital will be decided accordingly. You are requested to submit your explanation by 18 th Dec. 2018 by 5.00 p.m. If you fail to submit the explanation, it is presumed that you have 10 7/SRT/2024 & 8/SRT/2024/AYs.2011-12 Arvindbhai I. Patel & Kaushikkumar I. Patel nothing to say in this matter and assessment will be finalized accordingly. Please treat this letter as Notice u/s. 142(1) of the Act.” 16. In response to the above show cause notice, the assessee submitted its reply before the assessing officer, which is reproduced below: “In response to your goodselfs above notice I have to submit that your goodself has mentioned in the above notice that the rate of agriculture land as on 01.04.1981 in the surrounding area of land transferred by me is Rs.1 per sq. mtr. However, in support of your goodselfs above finding your good self has not relied upon any evidence / material confirming the above fact. Your goodself will thus find that the adoption of rate of Rs.1 per sq. mtr as on 01.04.1981 for the purpose of calculating long term capital gam in respect of land transferred by me would be totally arbitrary and without any basis. I therefore, request your goodself not to recalculate the capital gain income in my case as proposed in your goodselfs above notice and oblige.” 17. However, the assessing officer rejected the contention of the assessee and observed that the Registered Valuer’s instances of the sales of agricultural lands are not available, and are very few in nos. of surrounding areas of the location of property in question as on 01.04.1981, based on which registered valuer adopted the fair market value of the land as on 01.04.1981. Failure on the part of the assessee, it was presumed by Assessing Officer that there is no such sale instances on the adjacent area, therefore, a show cause notice was issued asking to the assessee as to why the assessment proceedings should not be completed on ad hoc basis (conditional basis) by adopting the value of agriculture land @ Rs. l/- per sq. mtr as on 01.04.1981 for the purpose of calculating Long term Capital gain, since valuation report of Department Valuation Officer is not received and the time barring date left for completion of assessment proceedings which is very short. Therefore, the assessee was requested to show - cause, as to why the valuation of the property should not be adopted at the minimum guidelines rates of Rs.1/- per sq. meter for the purpose of 11 7/SRT/2024 & 8/SRT/2024/AYs.2011-12 Arvindbhai I. Patel & Kaushikkumar I. Patel determining the cost of acquisition (subject to the revision of the rate after receipt of the Departmental valuer's report) vide show cause notice dated 18.12.2018. Therefore, the capital gain computed by the assessing officer is as follows: “The Capital Gain calculated as under: Whole property Assessee's share (25%) Jantri rate of the property 1,01,68,000 25,42,000 Value of land as on 1.4.1981 As per Valuer Report (13,42,143 x 711/100) 95,42,636 23,85,659 Adopted the value of approximately Rs.1/- per sq. yd. [(13557 x 711/100) =96,390] _______ 96,390 24,097 Capital Gain comes to (25,42,000 - 24,097)= Rs. 25,17,902” 18. Hence, the capital gain worked out, as above, amounting to Rs.25,17,902/- was added to the total income of the assessee for the year under consideration. 19. Aggrieved by the order of Assessing Officer, the assessee carried the matter in appeal before the ld. CIT(A), who has partly allowed the appeal of the assessee. The ld CIT(A) noted that the valuation report of the DVO was submitted by the Assistant Valuation Officer, Surat, vide report dated 17/07/2019. In his order under section 55A of the Act, the Valuation Officer arrived at the fair market value of the immovable property as on 01/04/1981 at Rs.6,77,900/-, that is, Rs. 50/- per squire meter. Since the valuation report was not available with the Assessing Officer at the time of completion of the scrutiny assessment, therefore, the Assessing Officer was forced to take a different value. The ld CIT(A) noted that since now DVO report is available, who has valued the land at Rs.50/- per squire meter, as on date 01.04.1981.Therefore, ld CIT(A) directed the Assessing Officer to recompute the long term capital gains, in accordance with the fair 12 7/SRT/2024 & 8/SRT/2024/AYs.2011-12 Arvindbhai I. Patel & Kaushikkumar I. Patel market value of the immovable property as on 01/04/1981, adopted by the DVO at Rs. Rs.50/- per square meter. 20. Aggrieved by the order of ld. CIT(A), the assessee is in appeal before us. 21. Shri Rajesh M. Upadhyay, Learned Counsel for the assessee, argued that by following the reverse method, the assessee has worked out the cost of acquisition of the land, as on 01.04.1981, at Rs.99 per square meter, which is supported by the Registered Valuer report. The working of the assessee is reproduced below: Therefore, ld Counsel stated that cost of acquisition as on 01.04.1981 should be treated at Rs.99 per square meter, as per Registered Valuer`s report. For this reverse method, the ld Counsel relied on the judgment of the Coordinate Bench of ITAT Ahmedabad in the case of Shri Madhusudan P. Patel, vide ITA No.2579/Ahd/2010, for A.Y. 2007-08. 13 7/SRT/2024 & 8/SRT/2024/AYs.2011-12 Arvindbhai I. Patel & Kaushikkumar I. Patel 22. Therefore, the Ld. Counsel for the assessee relied on the following orders of Hon'ble ITAT, Ahmedabad, wherein fair market value was computed as on 01.04.1981, which method may be adopted for the assessee under consideration: Therefore, Ld. Counsel contended that above method may be adopted for the assessee under consideration. 23. To support his contention, the Ld. Counsel for the assessee relied on the following case laws, the summary of which is reproduced below: 14 7/SRT/2024 & 8/SRT/2024/AYs.2011-12 Arvindbhai I. Patel & Kaushikkumar I. Patel Therefore, Ld. Counsel contended that fair market value, as on 01.04.1981 should be adopted at Rs. 99/- per square meter. 24. On the other hand, Ld. Sr. DR for the Revenue submitted that sufficient relief has been granted to the assessee by the ld. CIT(A) by adopting fair market value determined by DVO at Rs.50/- per square meter, and therefore the assessee does not deserve further relief, hence rate adopted by the DVO at Rs.50/- per square meter, should be taken into account for computation of capital gain. The ld. Sr. DR also stated that assessee’s all the arguments were considered by the ld. CIT(A), hence further relief should not be granted to the assessee. 25. We have heard both the parties and carefully gone through the submissions put forth on behalf of the assessee along with the documents furnished and the case laws relied upon, and perused the facts of the case including the findings of the ld. CIT(A) and other material brought on record. We note that Assessee is an individual, sold immovable property and based on the information made available through NMS (Non-filers Management System), Assessing Officer made an enquiry under section 133 (6) of the Income Tax Act. Since 15 7/SRT/2024 & 8/SRT/2024/AYs.2011-12 Arvindbhai I. Patel & Kaushikkumar I. Patel there was no response from the assessee, notice under section 148 of the Act was issued on 21/03/2018. In response to the said notice, the assessee filed his return for the Assessment Year 2011-12 on 17/10/2018. Subsequently assessment proceedings were initiated under section 143 (3) of the Act read with section 147 of the Act. It was noticed that the assessee, along with other three co-owners, sold an immovable property situated at District - Surat, for sale consideration of Rs.1,01,68,000/-. The Assessee computed the capital gains based on the report furnished by a registered valuer at Rs. 99/- per square meter. The Assessing Officer did not accept the assessee's valuation of the immovable property. Assessing Officer adopted the value of the property at Re. 1 per square meter and computed the capital gain at Rs.25,17,902/-. On appeal, the ld CIT(A) directed the assessing officer to compute the long-term capital gain, by adopting the fair market value of DVO at Rs.50/- per square meter. We note that before us the assessee submitted the following documents and evidences, viz: (1) Registered Valuer Report of Shri P. K. Desai valuation report (vide Pb.15 to 27), (2) DVO letter and assessee`s reply to his letter (vide Pb.28 to 57), (3) DVO valuation report (vide Pb.58 to 54), (4) A chart of city limit extension and population from 1961 to 2020 (vide Pb.57 to 66), (5) Village Sherdi location and population taken from Govt. website (vide Pb.67 to 70), (6) Proof of agriculture income (vide Pb.71 to 72), (7) Revenue records in Form 7 & 12, 8A and 6 (vide Pb.73 to 103), (8) Copy of sale deed of agriculture land (vide Pb.104 to 138) etc. We have gone through the above documents and evidences submitted by the assessee before lower authorities. We note that the Departmental Valuation officer (DVO) did not take into account all the factors and situation of the land, which were considered by the 16 7/SRT/2024 & 8/SRT/2024/AYs.2011-12 Arvindbhai I. Patel & Kaushikkumar I. Patel registered valuer of the assessee. Therefore, there are some drawbacks in the valuation report of the DVO. 26. We note that total land of the assessee is 13,557 Square meter, whereas the DVO has taken the sale instances of 66.48 Square meter land, 143.07 Square meter land etc., which are small size land. Sale instances of the land taken by DVO are situated at inconveniencies position hence these sale instances taken by the DVO cannot be applied in assessee`s case under consideration. Besides, the factors which affect the assessee`s land rate, the assessee`s size of land, shape and situation of land are different from sale instances taken by the DVO. The location and specification of assessee`s land is different from the sale instances taken by the DVO in his report. Hence, DVO report contains a lot of inconsistences and mismatch on many aspects. We are also aware that valuation of land by DVO or Registered Valuer is nothing but an estimate only. Such estimate should be near to accuracy or truth. Therefore, considering these facts, we are of the view that to meet the end of justice the fair market value of Rs.90/- per square meter, should be adopted as on 01.04.1981. Therefore, we direct the assessing officer to compute the long-term capital gain by adopting the fair market value, as on 1 April 1981 at Rs.90 per square meter. 27. In the result, appeal of the assessee (in ITA No.07/SRT/2024) is partly allowed. 28. Now, we shall take assessee’s appeal in ITA No.8/SRT/2024, for AY.2011-12, wherein grounds of appeal raised by the assessee are as follows: “1. Ld. CIT(A), NFAC, Delhi has erred in law and on fact to direct the AO to take cost of acquisition adopted by the DVO at Rs.50 per sq. mtr as on 17 7/SRT/2024 & 8/SRT/2024/AYs.2011-12 Arvindbhai I. Patel & Kaushikkumar I. Patel 01/04/1981 as against the cost of acquisition determined by the RVO at Rs.99/- per sq. mtr. For land situated at Survey No.62/1/B, Block No.126, Village Sherdi, Tal. Olpad, District – Surat. 2. Ld. AO has erred in law and on facts on reopen my case u/s 147 and also issue of notice u/s 148 of the Act only on the basis of AIR Information as well as ignoring the law that Capital Gains provisions are not attracted on Sale of Immovable Property for Rs.1,01,68,000 on 04/02/2011. 3. Ld. AO has erred in law and on facts to tax LTCG at Rs.25,17,902/- on sale of immovable Property being agriculture land situated at Survey No.62/1B/Block No.126, Village Sherdi, Tal. Olpad, District – Surat.” 29. The additional grounds raised by the assessee in ITA No. 8/SRT/2024, are as follows: 1. Ld. AO has erred in in law and on facts to reopen my case u/s 147 and also issue of notice u/s 148 of the Act only on the basis of AIR/TIS data on ITD System as well as ignoring the law that Capital Gains provisions are not attracted on Sale of Immovable Property for Rs.1,01,68,000 on 04/02/2011. 2. Ld. AO has erred in law and on facts to assessed LTCG at Rs.25,17,902/- on Sale of immovable property being agriculture land situated at survey No.62/1B/Block No.126, Village Sherdi, Tal. Olpad, District – Surat. 30. This appeal filed by the assessee, is barred by limitation by 38 days. The assessee moved a petition for condonation of delay, requesting the Bench to condone the delay. The contents of the petition for condonation of delay are as follows: “I, the undersigned, Kaushikkumar Ishvarbhai Patel, Aged about -58- years, Occupation- Agriculture and Residing at 155, At & Post- Sherdi, Ta. Olpad, Surat, take oath and declare as under: 1- That appeal order of NFAC, Delhi for A.Y. 2011-12 is dated 26.09.2023 has been served electronically through portal. So it is presume to be served on 26.09.2023. Appeal is filed with the registry, ITAT, Surat on 04.01.2024, which is late by -38- days. 2- That my Income Tax matter is being handled by Advocate Shri Kishorbhai Patel of Surat. He has filled my ROI U/s 148 for A.Y. 2017-18 and also attended valuation matter before the DVO, Surat. He has handled the matter of first appeal. He received order of CIT(A), NFAC, Delhi dated 26/09/2023 on ITBA portal. He took some time for taking the decision of filling second appeal before the Hon. ITAT, Surat Bench, Surat. He consulted Shri Rajesh M. Upadhyay on 29/12/2023 and discussed my case with him. Shri Rajesh M. Upadhyay has advised to file second appeal, 18 7/SRT/2024 & 8/SRT/2024/AYs.2011-12 Arvindbhai I. Patel & Kaushikkumar I. Patel before the ITAT, Surat with request for condonation of delay 0f 38 days in filing of appeal. 3- That the delay in filing the appeal for -38- days is neither willful nor deliberate but due to the above circumstances. Earlier, I had participated through AR in assessment proceeding in past, Valuation matter before DVO and first appeal proceedings before C1T(A), NFAC, Delhi. Therefore, assessment was completed u/s 143(3) of the Act and first appeal is decided on merits. 4- I have not been benefited, in any way, by filling of late appeal. On the contrary, I am carrying out huge burden of taxes, interest, penalty etc, on my shoulders. This affidavit is prepared to file in the office of the Hon'ble ITAT, Surat Bench, Surat in the matter of condonation of delay in filing of my appeal for A.Y.2011-12. All contents of affidavit are true and correct and binding upon me. I have been explained that execution of false affidavit amount to an offence under the law.” 31. The Ld. Counsel submitted that based on the reason/cause given in the affidavit for condonation of delay, the delay of the assessee may be condoned. 32. On the other hand, ld. Sr. DR for the Revenue submitted that assessee has not explained sufficient cause/ reasons therefore, the delay should not be condoned. 33. We have heard both the parties. Having regard to the reasons given in the petition for condonation of delay, we condone the delay of 38 days in filing the appeal and admit the appeal for hearing on merit. 34. On merit of the case, we have heard both the parties and noted that since, we have adjudicated this issue on merit in ITA No. 7/SRT/2024 for AY.201112 and same facts are there in ITA No. 8/SRT/2024, as these are co-owner of the same land, therefore our instant adjudication in ITA No.07/SRT/2024 in the case of Arvindbhai Ishvarbhai Patel (supra) shall apply mutatis mutandis to this appeal also. Hence, we direct the assessing officer to compute the long-term 19 7/SRT/2024 & 8/SRT/2024/AYs.2011-12 Arvindbhai I. Patel & Kaushikkumar I. Patel capital gain by adopting the fair market value, as on 1 April 1981 at Rs.90 per square meter. 35. The ld Counsel for the assessee did not press/argue the additional grounds raised by the assessee, in both these appeals, hence we do not adjudicate them. 36. In the result, both appeals filed by the assessees are partly allowed in above terms. Registry is directed to place one copy of this order in all appeals folder / case file(s). Order is pronounced on 22/03/2024 in the open court. Sd/- Sd/- (PAWAN SINGH) (Dr. A.L. SAINI) JUDICIAL MEMBER ACCOUNTANT MEMBER lwjr /Surat Ǒदनांक/ Date: 22/03/2024 SAMANTA Copy of the Order forwarded to 1. The Assessee 2. The Respondent 3. The CIT(A) 4. CIT 5. DR/AR, ITAT, Surat 6. Guard File By Order // TRUE COPY // Assistant Registrar/Sr. PS/PS ITAT, Surat