Smt. Aruna Vijay Tupe, Pune V. TRO, Range-3, Pune

ITA 703/PUN/2013

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 0436 (ITAT-PUNE)
• Duration Of Justice: 3 year(s) 8 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-12-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 01-08-2016
• Assessment Year: 2004-2005
• Appeal Filed On: 18-03-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: SUNIL PATHAK
• Keywords: Sale consideration of property below Jantri Value; Capital asset; Opportunity of being heard; Principle of natural justice; Cost of acquisition; Fair market value; Corroborative evidences; Valuation report
• Section: 50C; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH A , PUNE , , BEFORE MS. SUSHMA CHOWLA, JM AND SHRI ANIL CHATURVEDI, AM . / ITA NO. 6 39 /PN/20 1 3 / ASSESSMENT YEAR: 20 0 4 - 0 5 THE TAX RECOVERY OFFICER, RANGE - 3, PUNE . / APPELLANT VS. SMT. ARUNA VIJAY TUPE, FLAT NO.202, SWOJAS VANDAN, 65/1, ERANDWANE, PUNE 411004 . / RESPONDENT PAN: BDMPB8791F . / ITA NO. 703 /PN/201 3 / ASSESSMENT YEAR: 20 04 - 05 SMT. ARUNA VIJAY TUPE, FLAT NO.202, SWOJAS VANDAN, 65/1, ERANDWANE, PUNE 411004 . / APPELLANT PAN: BDMPB8791F VS. THE TAX RECOV ERY OFFICER, RANGE - 3, PUNE . / RESPONDENT ITA NO S . 639 TO 641 / PN /201 3 ITA NO S . 702 TO 704 /PN/201 3 SMT. A RUNA V. TUPE & ORS . 2 . / ITA NO. 640 /PN/201 3 / ASSESSMENT YEAR: 20 04 - 05 THE TAX RECOVERY OFFICER, RANGE - 3, PUNE . / APPELLANT VS. SHRI VISHAL VIJAY TUPE, FLAT NO.202 , SWOJAS VANDAN, 65/1, ERANDWANE, PUNE 411004 . / RESPONDENT PAN: ADHPT7647J . / ITA NO. 70 2 /PN/201 3 / ASSESSMENT YEAR: 20 04 - 05 SHRI VISHAL VIJAY TUPE, FLAT NO.202, SWOJAS VANDAN, 65/1, ERANDWANE, 65/1, ERANDWANE, PUNE 411004 . / APPELLANT PAN: ADHPT7647J VS. THE TAX RECOVERY OFFICER, RANGE - 3, PUNE . / RESPONDENT . / ITA NO. 641 /PN/201 3 / ASSESSMENT YEAR: 20 04 - 05 THE TAX RECOVERY OFFICER, RANGE - 3, PUNE . / APPELLANT VS. SHRI VIJAY D. TUPE, FLAT NO.202, SWOJAS VANDAN, 65/1, ERANDWANE, PUNE 411004 . / RESPONDENT PAN: ADEPT6348P ITA NO S . 639 TO 641 / PN /201 3 ITA NO S . 702 TO 704 /PN/201 3 SMT. A RUNA V. TUPE & ORS . 3 . / ITA NO. 70 4 /PN/201 3 / ASSESSMENT YEAR: 20 04 - 05 / ASSESSMENT YEAR: 20 04 - 05 SHRI VIJAY D. TUPE, FLAT NO.202, SWOJAS VANDAN, 65/1, ERANDWANE, PUNE 411004 . / APPELLANT PAN: ADEPT6348P VS. THE TAX RECOVERY OFFICER, / RANGE - 3, PUNE . / RESPONDENT ASSESSEE BY : S HRI SUNIL PATHAK REVENUE BY : SHRI SUHAS KULKARNI / DATE OF HEARING : 07 . 1 1 .201 6 / DATE OF PRONOUNCEMENT: 09 . 1 2 .201 6 / ORDER / ORDER PER SUSHMA CHOWLA, JM: ALL THE RESPECTIVE CROSS APPEALS FILED BY THE REVENUE AND ASSESSEE ARE AGAINST SEPARATE OR DER S OF CIT( A ) - II , PUNE , ALL DATED 2 2 . 1 0 .201 2 RELATING TO ASSESSMENT YEAR 200 4 - 0 5 AGAINST RESPECTIVE ORDER S PASSED UNDER SECTION 14 4 R.W.S. 147 OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT) . R.W.S. 147 OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT) . 2. THIS BUNCH OF CROSS APPEALS FILED BY THE REVENUE AND RELA TED ASSESSEE ON IDENTICAL ISSUES WERE HEARD TOGETHER AND ARE BEING DISPOSED OF BY THIS CONSOLIDATED ORDER FOR THE SAKE OF CONVENIENCE. HOWEVER, REFERENCE IS BEING MADE TO THE FACTS AND ISSUES IN ITA NO.6 39 /PN/201 3 AND ITA NO. 703/PN/2013 TO ADJUDICATE THE ISSUE S . ITA NO S . 639 TO 641 / PN /201 3 ITA NO S . 702 TO 704 /PN/201 3 SMT. A RUNA V. TUPE & ORS . 4 3 . THE REVENUE IN ITA NO. 6 39 /PN/201 3 HAS RAISED THE FOLLOWING GROUNDS OF APPEAL : - 1) THE LEARNED COMMISSIONER OF INCOME - TAX (APPEALS) ERRED IN HOLDING THAT THE PROVISIONS OF SECTION 50C(3) OF THE ACT WOULD BE APPLICABLE WHEN THE ASSESSEE HAD ADM ITTEDLY NOT OBJECTED TO THE STAMP DUTY VALUATION BEFORE THE ASSESSING OFFICER. 2) THE LEARNED COMMISSIONER OF INCOME - TAX (APPEALS) ERRED IN NOT APPRECIATING THAT THE ASSESSING OFFICER CONSEQUENTLY NEVER HAD THE OPPORTUNITY TO REFER THE CAPITAL ASSET TO TH E VALUATION OFFICER U/S.50C(2) OF THE ACT. 4 . THE ASSESSEE IN ITA NO. 703 /PN/2013 HAS RAISED THE FOLLOWING GROUNDS OF APPEAL: - 1 . THE ASSESSEE NOT HAVING ANY KNOWLEDGE OF TAX LAWS AND NEVER HAVING INCOME WHICH WAS LIABLE TO TAX COULD NOT APPRECIATE INCOME TAX NOTICES AND THEREFORE EXHAUST THE OPPORTUNITY OF BEING HEARD AND REQUESTS TO GRANT AN OPPORTUNITY OF BEING HEARD. 2 . THE LAND WHICH IS TRANSFERRED DURING THE PREVIOUS YEAR IS AN ANCESTRAL PROPERTY AND DOES BELONG TO ASSESSEE AS AN INDIVIDUAL AND THEREFORE THE RESULTANT GAIN IS NOT TAXABLE IN THE HANDS OF SMT. ARUNA VIJAY TUPE. 3 . THE ASSESSMENT ORDER IS BAD IN LAW AS INCOME BELONGING TO THE HINDU UNDIVIDED FAMILY OF WHICH THE ASSESSEE IS A MEMBER HAS BEEN ASSESSED IN UNDIVIDED FAMILY OF WHICH THE ASSESSEE IS A MEMBER HAS BEEN ASSESSED IN THE HANDS OF SMT. ARUNA VIJAY TUPE AND TH E COMMISSIONER OF INCOME TAX (APPEAL) - II , HAS ERRED IN CONSIDERING THE SAME. 4 . THERE ARE FIVE OWNERS AND THE SHARE OF THE ASSESSEE CAN BE ONE FIFTH IN THE CONSIDERATION WHICH HAS BEE N WRONGLY ASSESSED AT A HIGHER AMOUNT AND THE COMMISSIONER OF INCOME TAX (APPEAL) - II , HAS ERRED IN CONSIDERING THE SAME. 5 . HUNDREDS OF ACRES OF LAND IN AND AROUND THE AREA WHERE THE ASSESSEE'S PROPERTY IS SITUATE D HAS BEEN SOLD AT THE RATE WHICH IS SIMILAR TO THE RATE REALIZED BY THE ASSESSEE, THE ASSESSING OFFICER HAS FAILE D TO APPRECIATE THAT THE CONSIDERATION RECEIVED IS WORKED OUT AS PER THE FAIR MARKET VALUE AND THE SAME AMOUNT SHOULD BE ADOPTED FOR COMPUTATION OF CAPITAL GAIN AS CONSIDERATION RECEIVED. 6 . CAPITAL GAINS HAS NOT BEEN WORKED OUT AS PER PROVISIONS OF THE INC OME TAX - ACT, 1961. 7 . THE ASSESSMENT ORDER IS NOT IN KEEPING WITH THE PROVISIONS OF LAW AND SAME NEEDS TO B E CANCELLED. 5. THE ASSESSEE HAS ALSO RAISED AN ADDITIONAL GROUND OF APPEAL WHICH READS AS UNDER: - 1] LEARNED CIT(A) ERRED IN NOT ALLOWING THE DEDUCT ION OF FMV AS ON 01 - APRIL - 1981 AT RS.15.81 PER SQ. FT. AS PER THE REGISTERED VALUERS REPORT WHILE DETERMINING THE CAPITAL GAINS ON SALE OF LAND. ITA NO S . 639 TO 641 / PN /201 3 ITA NO S . 702 TO 704 /PN/201 3 SMT. A RUNA V. TUPE & ORS . 5 6. BRIEFLY, IN THE FACTS OF THE CASE, THE ASSESSEE ALONG WITH HER HUSBAND SHRI VIJAY D AGDU TUPE AND SON SHRI VI SHAL D AGDU TUPE HAD SOLD LAND SITUATED AT HADAPSAR, PUNE VIDE REGISTERED AGREEMENT DATED 20.01.2004 TO M/S. CIT Y CORPORATION LTD. FOR CONSTRUCTION OF PROJECT AMNORA TOWN FOR TOTAL CONSIDERATION OF RS. 1,47,60,000/ - . THE ASSESSEE HAD NOT FURNISHED ANY RET URN OF INCOME. HOWEVER, IN RESPONSE TO NOTICE ISSUED BY THE ASSESSING OFFICER, IT WAS CLAIMED THAT THE HEAD OF FAMILY HAD DECLARED AND COMPUTED INCOME FROM CAPITAL GAINS ON TOTAL SALE CONSIDERATION IN THE HUF CAPACITY IN ASSESSMENT YEAR 2004 - 05. THE COPY OF CAPITAL GAINS STATEMENT FILED BY SHRI VIJAY DAGDU TUPE, HUF WAS FILED, WHEREIN THE ENTIRE SALE CONSIDERATION OF RS.1.47 CRORES WAS SHOWN IN THE HANDS OF HUF. THE ASSESSING OFFICER NOTED FROM THE PERUSAL OF BANK ACCOUNT OF SHRI VIJAY DAGDU TUPE THAT FU LL SALE CONSIDERATION WAS NOT RECEIVED BY HIM, HENCE, THE CLAIM OF ASSESSEE THAT SALE PROCEEDS SHOULD BE ASSESSED IN THE HANDS OF HUF, WAS REJECTED. FURTHER, ON GOING THROUGH SALE DEED BETWEEN THE PURCHASER AND SELLER, IT REJECTED. FURTHER, ON GOING THROUGH SALE DEED BETWEEN THE PURCHASER AND SELLER, IT WAS NOTED THAT THE SALE PROCEEDS WERE PAID IN 1/3 RD SHARE EACH BY THE PURCHASER O F THE LAND TO SMT. ARUNA V IJAY TUPE, THE ASSESSEE, HER HUSBAND SHRI VIJAY DAGDU TUPE AND SON SHRI VISHAL DAGDU TUPE . THE ASSESSING OFFICER THUS, PROPOSED TO ALLOCATE THE PROCEEDS AMONG THE THREE PERSONS FOR THE PURPOSE OF TAXING THE CAPITAL GAINS. THE ASSESSING OFFICER FURTHER NOTED THAT THERE WAS NO PROOF / EVIDENCE ABOUT THE FORMATION OF HUF AND HENCE, THE CLAIM OF ASSESSEE THAT GAIN IS TO BE ASSESSED IN THE HANDS OF SHRI VIJAY DAGDU TUPE , HUF WAS REJECTED . THE ASSESSING OFFICER THUS, PROPOSED TO TAX THE CAPITAL GAINS IN THE HANDS OF THREE PERSONS TO THE EXTENT OF 1/3 RD SHARE EACH. THE SECOND ISSUE NOTED BY THE ASSESSING OFFICER WAS THAT THE FAIR MARKET VALUE OF THE SAID PROPERTY AS PER STAMP DUTY AUTHORI TY WAS RS. 3,15,78,460/ - AS AGAINST AGREED CONSIDERATION OF RS. 1,47,60,000/ - . APPLYING THE PROVISIONS OF SECTION 50C OF THE ACT, FAIR MARKET VALUE OF THE SAID PROPERTY WAS TAKEN AT RS.3.15 CRORES FOR COMPUTING LONG TERM ITA NO S . 639 TO 641 / PN /201 3 ITA NO S . 702 TO 704 /PN/201 3 SMT. A RUNA V. TUPE & ORS . 6 CAPITAL GAINS. FURTHER, THE ASSESSI NG OFFICER NOTED THAT IN SIMILAR CASES IN THE SAME AREA, THE GOVERNMENT VALUATION OFFICER AS PER HIS VALUATION REPORT DATED 24.12.2009 IN THE CASE OF SAMEER SOMAN TUPE HAD ADOPTED THE FAIR MARKET VALUE OF RS.101/ - PER SQ.MTR. AS ON 01.04.1981 , THEREFORE, T HE SAME WAS ADOPTED FOR INDEXATION PURPOSE. THE ASSESSING OFFICER ALSO NOTED THAT THE MATTER OF VALUATION WAS REFERRED TO THE VALUATION OFFICER FOR VALUING THE LAND VIDE LETTER DATED 01.11.2011 AND THE REPORT WAS STILL AWAITED. THE REMINDER WAS SENT TO T HE VALUATION OFFICER ON 12.12.2011 BUT THE SAME WAS STILL AWAITED. THE ASSESSMENT WAS THUS, COMPLETED BY THE ASSESSING OFFICER SUBJECT TO VALUATION THAT MAY BE REPORTED IN THE VALUATION REPORT BY THE DEPARTMENTAL VALUATION OFFICER. THE ASSESSING OFFICER THUS, COMPUTED THE INCOME FROM LONG TERM CAPITAL GAINS IN THE HANDS OF ASSESSEE, HER HUSBAND AND THE SON AND ASSESSED TO THE EXTENT OF 1/3 RD SHARE EACH. 7. BEFORE THE CIT(A), FIRST OBJECTION OF THE ASSESSEE WAS NON - GRANT OF SUFFICIENT OPPORTUNITY OF BEING HEARD BY THE ASSESSING OFFICER. THE CIT(A) NOTES THAT THE REQUEST OF ASSESSEE WAS ACCEDED TO BY GRANTING ADEQUATE OPPORTUNITIES DURING THE COURSE OF APPELLATE PROCEEDINGS, HENCE THE SAID GROUND WAS HELD TO BE PARTLY ALLOWED. THE SECOND ISSUE RAISED BEFO RE THE CIT(A) WAS THAT THE LAND WAS AN ANCESTRAL PROPERTY BELONGING TO SHRI VIJAY D. TUPE (HUF) AND THE ENTIRE GAIN HAD TO BE ASSESSED IN THE HANDS OF HUF , WAS REJECTED IN THE ABSENCE OF ANY PROOF OF LEGAL EXISTENCE OF HUF. IT WAS ALSO NOTED BY THE CIT(A) THAT THE COPY OF AGREEMENT ENTERED INTO BETWEEN SHRI VIJAY D. TUPE & ORS AND M/S. CITI CORPORATION LTD. ALSO DO NOT INDICATE ANY SUCH SIGN AS TO THAT THE PROPERTY BELONGED TO HUF AND EVEN THE PAYMENT OR SALE CONSIDERATION HAD NOT BEEN RECEIVED BY THE HUF. FURTHER, THE ASSESSEE FAILED TO EXPLAIN THE SOURCE OF ITA NO S . 639 TO 641 / PN /201 3 ITA NO S . 702 TO 704 /PN/201 3 SMT. A RUNA V. TUPE & ORS . 7 ACQUISITION OF PROPERTY BY THE HUF AND HENCE, THE CLAIM OF ASSESSEE THAT IT BELONGED TO HUF WAS DISMISSED. 8. WITH REGARD TO NEXT CLAIM WITH RESPECT TO WORKING OF CAPITAL GAINS, THE CONTENTION OF A SSESSEE WAS THAT SINCE HUNDREDS OF ACRES OF LAND IN THE VICINITY IN THE ASSESSEES LAND WAS SOLD, THEN THE RATE OF SALE ADOPTED FOR THE TRANSACTION IS ITSELF THE FAIR MARKET VALUE. THE OBJECTION WAS RAISED TO THE RATES ADOPTED BY THE STAMP VALUATION AUTHO RITIES. THE ASSESSEE ALSO SUBMITTED THAT WHERE THE SAID PROPERTY WAS ACQUIRED PRIOR TO 01.04.1981, THEN THE COST OF ACQUISITION SHOULD HAVE BEEN ADOPTED AS PER REPORT OF VALUATION OFFICER AND NOT AS PER ESTIMATIONS MADE BY THE ASSESSING OFFICER. THE CIT( A) TAKING NOTE OF THE PROVISIONS OF SECTION 50C OF THE ACT OBSERVED THAT THE ASSESSEE HAD NOT OBJECTED TO THE STAMP DUTY VALUATION ADOPTED BY THE ASSESSING OFFICER DURING THE COURSE OF ASSESSMENT PROCEEDINGS NOR OBJECTED BEFORE REGISTERING AUTHORITY, THOUG H HE HAD OBJECTED TO PROCEEDINGS NOR OBJECTED BEFORE REGISTERING AUTHORITY, THOUG H HE HAD OBJECTED TO THE SAME DURING THE COURSE OF APPELLATE PROCEEDINGS. THE CIT(A) OBSERVED THAT AFTER SECTION 50C OF THE ACT CAME INTO STATUTE, THEN IT WAS THE MANDATE OF LAW, WHEREIN THE STAMP DUTY VALUATION HAD TO BE SUBSTITUTED FOR APPARENT CONSIDER ATION EXCEPT BY FOLLOWING PROCEDURE LAID DOWN IN SECTION ITSELF. WHERE THE ASSESSEE HAD NOT OBJECTED TO THE ADOPTION OF STAMP DUTY VALUATION AS AGAINST THE ADOPTED CONSIDERATION, THE LAW PROVIDED A REMEDY IN SUB - SECTION (2) TO SECTION 50C OF THE ACT BUT T HE ASSESSEE HAD NOT OBJECTED TO THE SAID ADOPTION OF VALUE NOR HAD FILED ANY VALUATION REPORT JUSTIFYING THE SALE CONSIDERATION. THEREFORE, THE ORDER OF ASSESSING OFFICER IN ADOPTING THE VALUE AS PER STAMP DUTY VALUATION AUTHORITY WAS UPHELD. THE CIT(A) FURTHER NOTES THAT THE ASSESSEE DURING THE COURSE OF APPELLATE PROCEEDINGS OBJECTS TO THE VALUE ADOPTED BY THE ASSESSING OFFICER AND IN SUCH CIRCUMSTANCES, THE MATTER SHOULD HAVE BEEN REFERRED FOR VALUATION TO THE VALUATION OFFICER. SINCE IN THE PRESENT C ASE, REFERENCE WAS ALREADY MADE BY THE ASSESSING ITA NO S . 639 TO 641 / PN /201 3 ITA NO S . 702 TO 704 /PN/201 3 SMT. A RUNA V. TUPE & ORS . 8 OFFICER EARLIER DURING THE COURSE OF ASSESSMENT PROCEEDINGS ITSELF AND NO REPORT WAS RECEIVED TILL DATE, THE CIT(A) HELD THAT IN SUCH SITUATION, SUB - SECTION (3) OF SECTION 50C OF THE ACT WOULD BE APPLICABLE. THUS, THE ASSESSING OFFICER WAS DIRECTED TO APPLY THE REPORT OF DVO AND WORK OUT THE SALES CONSIDERATION AS PER SECTION 50C(3) OF THE ACT. FURTHER OBJECTION OF THE ASSESSEE WAS TO THE COST OF ACQUISITION BEING WORKED OUT AS ON 01.04.1981, WHEREIN THE AS SESSING OFFICER HAD ADOPTED THE FAIR MARKET VALUE BASED ON COMPARABLE CASE OF LAND SOLD IN THE SAME AREA AND LOCATION AS THAT OF ASSESSEE . THE CONTENTION OF ASSESSEE BEFORE THE CIT(A) WAS THAT THE FAIR MARKET VALUE AS ON 01.04.1981 SHOULD BE ADOPTED AS PE R REPORT OF APPROVED VALUER. THE CIT(A) HELD THAT SINCE THE ASSESSING OFFICER HAD RELIED ON SUCH REPORT OF VALUATION OF DVO AND HAD NOT ESTIMATED THE VALUE AS ON 01.04.1981, THERE WAS NO MERIT IN THE PLEA OF ASSESSEE BUT SINCE THE ASSESSING OFFICER HAD RE FERRED THE MATTER TO THE VALUATION OFFICER, WHOSE REPORT WAS NOT RECEIVED TILL FINALIZATION OF ASSESSMENT AND WHERE THE ASSESSING OFFICER HIMSELF IN RECEIVED TILL FINALIZATION OF ASSESSMENT AND WHERE THE ASSESSING OFFICER HIMSELF IN THIS REGARD HAS STATED THAT FAIR MARKET VALUE AS PER VALUATION REPORT BE ADOPTED, ONCE THE REPORT IS RECEIV ED FROM THE VALUER, THE CIT(A) DIRECTED THE ASSESSING OFFICER TO RE - COMPUTE THE INCOME FROM CAPITAL GAINS AFTER THE VALUATION REPORT IN ASSESSEES CASE IS RECEIVED FROM THE VALUATION OFFICER. 9. THE ASSESSEE IS IN APPEAL AGAINST THE ORDER OF CIT(A). 10. THE FIRST ISSUE RAISED BY THE ASSESSEE BEFORE US WAS THAT THE LAND SOLD BY THE ASSESSEE WAS ANCESTRAL PROPERTY AND THE GAIN ARISING THEREFROM IS NOT TO BE ASSESSED IN THE INDIVIDUAL HANDS OF ASSESSEE. IN THIS REGARD, SECOND ISSUE RAISED BY THE ASSESSE E IN THE ORIGINAL GROUND OF APPEAL IS AGAINST ADOPTION OF SALE VALUE IN THE HANDS OF ASSESSEE. BY WAY OF ADDITIONAL GROUND OF APPEAL, THE ASSESSEE HAS AGITATED THAT THE DEDUCTION OF FAIR MARKET VALUE AS ON 01.04.1981 AT RS.15.81 ITA NO S . 639 TO 641 / PN /201 3 ITA NO S . 702 TO 704 /PN/201 3 SMT. A RUNA V. TUPE & ORS . 9 PER SQ.FT. AS PER REGISTER ED VALUERS REPORT SHOULD BE ADOPTED FOR DETERMINING THE INCOME FROM CAPITAL GAINS. 11. THE REVENUE IS IN APPEAL AGAINST THE DIRECTIONS OF CIT(A) IN HOLDING THAT THE PROVISIONS OF SECTION 50C(3) OF THE ACT WOULD BE APPLICABLE WHERE THE ASSESSEE HAD NOT OBJECTED TO THE STAMP VALUE BEFORE THE ASSESSING OFFICER. THE LINKED GROUND OF APPEAL IS THAT CONSEQUENTLY, THE ASSESSING OFFICER NEVER HAD AN OPPORTUNITY TO REFER THE SALE VALUE TO THE VALUATION OFFICER UNDER SECTION 50C(2) OF THE ACT. 12. THE LEARNED A UTHORIZED REPRESENTATIVE FOR THE ASSESSEE POINTED OUT THAT THE LANDS SOLD BY THE ASSESSEE AT HADAPSAR FOR BUILDING AMNORA TOWNSHIP W ERE INHERITED FROM HIS GREAT - GRAND FATHER S , WHO IN TURN, HAD PURCHASED THE PROPERTY IN 1850. THE LEARNED AUTHORIZED REPRESE NTATIVE FOR THE ASSESSEE FURTHER SUBMITTED 1850. THE LEARNED AUTHORIZED REPRESE NTATIVE FOR THE ASSESSEE FURTHER SUBMITTED THAT THE ASSESSEE HAD DISCLOSED THE INCOME FROM CAPITAL GAINS IN THE HANDS OF ASSESSEE , HUF . HE FURTHER STRESSED THAT THE ASSESSING OFFICER HAD PASSED EX PARTE ASSESSMENT ORDER IN THE HANDS OF INDIVIDUAL ASSESSEE . FURTHER CONTENTION OF LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE BEFORE US WAS THAT THE ASSESSEE WAS AN AGRICULTURIST AND VARIOUS FARMERS HAD SOLD THE LAND TO M/S. CITY CORPORATION LTD. THE ASSESSEE WAS ASKED TO PROVE ITS CASE OF HUF AGAINST WH ICH THE ASSESSEE CLAIMS THAT IT HAD FILED AN AFFIDAVIT AFTER RECEIVING THE PAPERS THROUGH RTI. HE FAIRLY ADMITTED THAT THE PAPERS REFLECTED THE LAND OWNERSHIP IN THE NAME OF HIS FATHER AND NOT IN THE NAME OF GRANDFATHER. 13. COMING TO THE SECOND ISSUE OF COST OF ACQUISITION OF PROPERTY @ ABOUT RS.15/ - PER SQ.FT. AS AGAINST RS.9/ - ADOPTED BY THE ASSESSING OFFICER, THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE FAIRLY POINTED OUT THAT THE ISSUE WAS ITA NO S . 639 TO 641 / PN /201 3 ITA NO S . 702 TO 704 /PN/201 3 SMT. A RUNA V. TUPE & ORS . 10 REFERRED BY THE ASSESSING OFFICER TO THE DVO BUT THE REPORT OF DVO HAS NOT BEEN RECEIVED TILL DATE. IN RESPECT OF CLAIM OF APPLICABILITY OF PROVISIONS OF SECTION 50C(3) OF THE ACT, THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE POINTED OUT THAT THE ISSUE WAS RAISED BEFORE THE CIT(A). HE FURTHER STATED THAT THE ASSESSING OFFICER SAYS THAT THE MATTER WAS REFERRED AND EVEN THE CIT(A) SAID THAT THE MATTER WAS REFERRED AND IN ORDER TO COMPLETELY ADJUDICATE THE PROCEEDINGS AN OPPORTUNITY MAY BE GIVEN TO THE ASSESSEE AS REQUIRED UNDER THE PROVISIONS OF SECTION 50C OF THE ACT. THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE FURTHER POINTED OUT THAT SINCE THE ASSESSMENT WAS COMPLETED EX PARTE , THERE WAS NO CHANCE TO APPEAR AND FILE THE EVIDENCE BEFORE THE ASSESSING OFFICER. WITH REGARD TO APPEAL OF REVENUE, IT WAS POINTED OUT BY THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE THAT THE ASSESSING OFFICER HIMSELF SAYS THAT THE VALUATION OF THE PROPERTY WAS REFERRED TO THE DVO. 14. THE LEARNED DEPARTMENTAL REPRESENTATIVE FOR THE REVENUE PLACED RELIANCE ON THE ORDERS OF CIT(A) / ASSESSING OFFICER. 15. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE RECORD. THE ISSUE ARISING IN THE PRESENT APPEAL IS AGAINST THE COMPUTATION OF INCOME UNDER THE HEAD INCOME FROM CAPITAL GAINS. ANOTHER ISSUE RAISED BY THE ASSESSEE IS THAT THE INCOME ARISING FROM SALE OF LAND IS ASSESSABLE IN THE HANDS OF HUF OF SHRI VIJAY D. TUPE AND NOT IN THE INDIVIDUAL HANDS OF SHRI VIJAY D. TUPE, HIS WIFE AND HIS SON. IN THE FACTS OF THE PRESENT CASE, THE LAND AT HADAPSA R WAS SOLD BY THE ASSESSEE ALONG WITH ADJACENT LANDHOLDERS TO M/S. CITY CORPORATION LTD. FOR BUILDING AMNORA TOWNSHIP. THE SALE WAS UNDERTAKEN BY THE ASSESSEE ALONG WITH HER HUSBAND & SON AND THE BUYERS HAD PAID THE SALE CONSIDERATION TO THREE PERSONS IN 1/3 RD SHARE EACH. THE ASSESSEE NO DOUBT STRESSE S THAT THE ENTIRE SALE CONSIDERATION BELONGS ITA NO S . 639 TO 641 / PN /201 3 ITA NO S . 702 TO 704 /PN/201 3 SMT. A RUNA V. TUPE & ORS . 11 TO THE HUF OF ASSESSEE OF SHRI VIJAY D. TUPE BUT TIME AND AGAIN OPPORTUNITY WAS GIVEN TO THE ASSESSEE TO FURNISH THE COMPLETE EVIDENCE IN THIS REGARD TO ESTABLISH ITS CASE THAT THE SAID PROPERTY WAS AN ANCESTRAL PROPERTY. THE ASSESSEE WAS UNABLE TO PRODUCE ANY SUCH EVIDENCE BEFORE THE ASSESSING OFFICER OR THE CIT(A). EVEN BEFORE US THE ASSESSEE AT BEST COULD PRODUCE THE LAND RECORDS WHICH SHOWS THE OWNERSHIP IN TH E NAME OF FATHER OF SHRI VAJAY D. TUPE AND NOT IN THE NAME OF GRANDFATHER OF THE PERSON. IN THE ABSENCE OF THE SAME, THE CLAIM OF ASSESSEE THAT THE SAID LAND BELONGS TO THE HUF CANNOT BE ACCEPTED. ANOTHER POINT TO BE NOTED IS THAT THE SALE CONSIDERATION HAS NOT BEEN PAID TO THE HUF OF SHRI VIJAY D. TUPE BUT IN ACTUAL FACT, HAS BEEN PAID 1/3 RD SHARE TO THE ASSESSEE, HER HUSBAND AND HER SON AND HAS BEEN DEPOSITED IN THEIR INDIVIDUAL ACCOUNTS AND NOT IN THE ACCOUNT OF HUF. IN VIEW OF THE ABOVE SAID FACTS AN D CIRCUMSTANCES, THE CLAIM OF ASSESSEE THAT THE SAID LAND BELONGS TO THE HUF CANNOT BE ACCEPTED. THE LINK ISSUE RAISED BY THE ASSESSEE IN THIS REGARD IS THAT THE ASSESSING OFFICER HAD FAILED TO ALLOW BY THE ASSESSEE IN THIS REGARD IS THAT THE ASSESSING OFFICER HAD FAILED TO ALLOW SUFFICIENT OPPORTUNITY TO THE ASSESSEE BEFORE PASSING E X PARTE ORDER AND HENCE, THE ASSESSEE WAS UNABLE TO FURNISH COMPLETE DETAILS. THE CIT(A) HAD GIVEN SEVERAL OPPORTUNITIES TO THE ASSESSEE TO ESTABLISH ITS CASE BUT THE ASSESSEE WAS UNABLE TO BRING ON RECORD ANY SUPPORTING EVIDENCE . EVEN BEFORE THE TRIBUNA L, SUFFICIENT OPPORTUNITIES WERE GIVEN TO THE ASSESSEE TO ESTABLISH ITS CASE THAT THE SAID PROPERTY BELONGS TO THE HUF BUT THE ASSESSEE IS UNABLE TO FURNISH ANY EVIDENCE IN THIS REGARD ALTHOUGH, IT HAS REPEATEDLY CLAIMED THAT THE SAID LAND WAS INHERITED FR OM HIS GREAT GRANDFATHER. IN THE ABSENCE OF EVIDENCE AND ALSO IN THE ABSENCE OF ASSESSEE HAVING DISCHARGED HIS ONUS AND EVEN THE DOCUMENTS FILED BY THE ASSESSEE RELATE BACK TO THE FATHER OF SHRI VIJAY D. TUPE, WHERE THE ASSESSEE HAS FAILED TO ESTABLISH IT S CLAIM THAT THE LAND BELONGS TO HIS FOREFATHERS, THERE IS NO MERIT IN THE PLEA OF ASSESSEE THAT BECAUSE OF EX PARTE ORDER, IT COULD NOT FURNISH THE DETAILS. AS SUFFICIENT OPPORTUNITIES HAVE BEEN ALLOWED TO THE ASSESSEE BOTH BY ITA NO S . 639 TO 641 / PN /201 3 ITA NO S . 702 TO 704 /PN/201 3 SMT. A RUNA V. TUPE & ORS . 12 THE CIT(A) AND THE TRIBUNAL , THE ENDS OF JUSTICE ARE MET BY PROVIDING SUFFICIENT OPPORTUNITY OF HEARING TO THE ASSESSEE. 16. NOW, COMING TO THE ISSUE ON MERITS OF COMPUTATION OF INCOME FROM LONG TERM CAPITAL GAINS, THE ASSESSEE HAD SOLD THE SAID PROPERTY FOR AGREED CONSIDERATION OF RS.1.47 CRORES, WHEREAS THE FAIR MARKET VALUE AS PER STAMP DUTY AUTHORITY WAS RS.3.15 CRORES. THE ASSESSING OFFICER HAD ADOPTED THE SAID VALUATION OF RS.3.15 CRORES AS PER PROVISIONS OF SECTION 50C OF THE ACT IN ORDER TO WORK OUT THE INCOME FROM LONG TER M CAPITAL GAINS IN THE HANDS OF ASSESSEE. FURTHER, THE COST OF ACQUISITION AS ON 01.04.1981 WAS APPLIED BY THE ASSESSING OFFICER RELYING ON THE VALUATION REPORT IN THE CASE OF ANOTHER OWNER OF LAND IN THE SAME AREA SHRI SAMEER SOMAN TUPE . THE DVO HAD WOR KED OUT THE FAIR MARKET VALUE AT RS.101/ - PER SQ.MTR. I.E. RS.9.39 PER SQ.FT. AS ON 01.04.1981. THE ASSESSING OFFICER IN THE ASSESSMENT ORDER ADMITS THAT THE MATTER OF VALUATION WAS ASSESSING OFFICER IN THE ASSESSMENT ORDER ADMITS THAT THE MATTER OF VALUATION WAS REFERRED TO THE DVO FOR VALUING THE LAND AS PER PROVISIONS OF THE ACT AND THE REPORT WAS AWAITED. EVEN THE REMINDER SENT TO THE DVO WAS NOT COMPLIED WITH. THE CASE OF THE ASSESSEE IS THAT FIRST VALUATION FOR ADOPTING THE VALUE AS PER SECTION 50C OF THE ACT IS TO BE RECEIVED FROM THE DVO AS THE ASSESSEE OBJECTS TO THE STAMP DU TY VALUATION WORKED OUT BY THE STAMP DUTY AUTHORITIES. THE CASE OF REVENUE IN THIS REGARD WAS THAT THE PROVISIONS OF THE ACT CLEARLY PROVIDE THAT THE ASSESSEE WHO OBJECTED TO THE VALUATION ADOPTED BY STAMP DUTY VALUATION AUTHORITIES , SHOULD RAISE SUCH PLE A BEFORE THE ASSESSING OFFICER DURING THE COURSE OF ASSESSMENT PROCEEDINGS ; BUT SINCE THE ASSESSEE HAS FAILED TO DO SO, IT COULD NOT BE GIVEN ANOTHER CHANCE, AS DIRECTED BY THE CIT(A). IN THE PRESENT SET OF FACTS AND CIRCUMSTANCES WHERE ALL ALONG THE CASE OF ASSESSEE WAS THAT HE / SHE WAS NOT ASSESSABLE TO TAX ON THE GAIN S ARISING ON SALE OF LAND , SINCE THE LAND BELONG TO THE HUF AND FOR THAT MATTER, THE ASSESSEE HAD NOT FURNISHED ANY RETURN OF INCOME ITA NO S . 639 TO 641 / PN /201 3 ITA NO S . 702 TO 704 /PN/201 3 SMT. A RUNA V. TUPE & ORS . 13 ALSO, WE FIND MERIT IN THE PLEA OF ASSESSEE THAT BECAUS E OF EX PARTE ASSESSMENT ORDER, NO SUCH PLEA WAS RAISED BY THE ASSESSEE BEFORE THE ASSESSING OFFICER. HOWEVER, THE ASSESSING OFFICER HAD MADE REFERENCE TO THE VALUATION OFFICER FOR VALUING THE LAND AS PER PROVISIONS OF THE ACT WHICH IS BOTH FOR COMPLYING WITH THE PROVISIONS OF SECTION 50C OF THE ACT AND ALSO FOR WORKING OUT THE FAIR MARKET VALUE AS ON 01.04.1981. HOWEVER, THE LEARNED DEPARTMENTAL REPRESENTATIVE FOR THE REVENUE STRESSES THAT THE REFERENCE WAS MADE TO THE DVO ONLY TO WORK OUT THE FAIR MARKE T VALUE AS ON 01.04.1981 AND NOT UNDER SECTION 50C OF THE ACT. FOLLOWING THE PRINCIPLES OF NATURAL JUSTICE , WE ARE OF THE VIEW THAT THE ASSESSEE DESERVES AN OPPORTUNITY OF HEARING BEFORE THE ASSESSING OFFICER IN ORDER TO COMPLY WITH THE PROVISIONS OF SECT ION 50C OF THE ACT. REFERENCE HAS BEEN MADE TO THE DVO BUT FROM THE RECORD IT IS NOT CLEAR AS TO FOR WHAT PURPOSE. HOWEVER, IN THE INTEREST OF JUSTICE, WE REMIT THE ISSUE BACK TO THE FILE OF ASSESSING OFFICER AND DIRECT THE ASSESSEE TO MAKE REPRESENTATIO N UNDER SECTION 50C OF THE ACT. THE DIRECT THE ASSESSEE TO MAKE REPRESENTATIO N UNDER SECTION 50C OF THE ACT. THE ASSESSING OFFICER AFTER RECEIVING THE REPORT OF DVO ON ACCOUNT OF VALUE OF THE PROPERTY AS ON THE DATE OF SALE SHALL APPLY THE PROVISIONS OF SECTION 50C( 3 ) OF THE ACT TO ADOPT THE SALE CONSIDERATION IN THE HANDS OF ASSE SSEE. AS FAR AS FAIR MARKET VALUE AS ON 01.04.1981 IS CONCERNED, THE ASSESSING OFFICER SHALL OBTAIN THE VALUATION REPORT FROM DVO . THE ASSESSING OFFICER SHALL DIRECT THE DVO TO SUBMIT VALUATION REPORT DETERMINING THE FAIR MARKET VALUE OF THE SAID ASSET AS ON 01.04.1981 AND THE ASSESSING OFFICER SHALL ACCORDINGLY, COMPUTE THE INCOME FROM CAPITAL GAINS IN THE HANDS OF ASSESSEE. THE ASSESSEE IS DIRECTED TO PARTICIPATE IN THE PROCEEDINGS AND FURNISH THE REQUISITE INFORMAT ION. THE ASSESSING OFFICER IS DIRECTED TO ALLOW REASONABLE OPPORTUNITY OF HEARING TO THE ASSESSEE. THE ISSUE IS RESTORED BACK TO THE FILE OF ASSESSING OFFICER WITH OUR DIRECTIONS . ACCORDINGLY, THE APPEAL OF ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES A ND THE APPEAL OF REVENUE IS DISMISSED. ITA NO S . 639 TO 641 / PN /201 3 ITA NO S . 702 TO 704 /PN/201 3 SMT. A RUNA V. TUPE & ORS . 14 17. THE ISSUES AND FACTS IN ITA NO S. 640/PN/2013 & 702/PN/2013 AND 641/PN/2013 & 704/PN/2013 ARE IDENTICAL TO THE ISSUES AND FACTS IN ITA NO S . 639 /PN/201 3 & 703/PN/2013 AND OUR DECISION IN ITA NO S . 639 /PN/201 3 & 703/PN/2 013 SHALL APPLY MUTATIS MUTANDIS TO ITA NOS.640/PN/2013 & 702/PN/2013 AND 641/PN/2013 & 704/PN/2013 . 1 8 . IN THE RESULT, APPEALS OF ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES AND THE APPEALS OF REVENUE ARE DISMISSED. ORDER PRONOUNCED ON THIS 9 TH DAY OF DECEMBER , 201 6 . SD/ - SD/ - ( ANIL CHATURVEDI ) ( SUSHMA CHOWLA ) / ACCOUNTANT MEMBER / JUDICIAL MEMBER / PUNE ; D ATED : 9 TH DEC EMBER , 201 6 . GCVSR / COPY OF THE ORDER IS FORWARDED TO : 1. / THE APPELLANT ; 2. / THE RESPONDENT; 3. ( ) / THE C I T (A) - II , PUNE ; 4. / THE C I T - II , PUNE ; 5. , , / DR A , ITAT, PUNE; 6. / GUARD FILE . / BY ORDER , // TRUE COPY // / SR. PRIVATE SECRETARY , / ITAT, PUNE