Shri Kamlesh Tiwari, Jaipur V. Income Tax Officer, Ward-5(3), Jaipur

ITA 771/JPR/2018

• Counselvise Citation: [2018] 119 COUNSELVISE.COM (IT) 1027 (ITAT-JAIPUR)
• Duration Of Justice: 5 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-11-2018
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Assessment Year: 2008-2009
• Appeal Filed On: 01-06-2018
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: J C KULHARI
• Keywords: Salary income; Principle of natural justice; Fair market value; Valuation report

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHE S, JAIPUR JH FOT; IKWY JKO] U;KF;D LNL; ,OA JH FOE FLAG ;KNO] YS[KK LNL; DS LE{K BEFORE: SHRI VIJAY PAL RAO, JM & SHRI VIKRAM SINGH YADAV, AM VK;DJ VIHY LA-@ ITA. NO. 771/JP/2018 FU/KZKJ.K O'K Z@ ASSESSMENT YEARS : 2008-09 SMT KAMLESH TIWARI 1, NANDWAN, MAHAVEER NAGAR, TONK ROAD, JAIPUR CUKE VS. INCOME TAX OFFICER, WARD 5(3) JAIPUR LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: AANPT4872G VIHYKFKHZ@ APPEL LANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ L S@ ASSESSEE BY : SHRI VINOD GUPTA (CA) JKTLO DH VKSJ LS @ REVENUE BY : SHRI J. C. KULHARI (JCIT) LQUOKBZ DH RKJH[ K@ DATE OF HEARING : 25/10/2018 MN?KKS'K.KK DH RKJH[ K@ DATE OF PRONOUNCEMENT : 29/11/2018 VKNS'K@ ORDER PER: VIKRAM SINGH YADAV, A.M. THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST TH E ORDER OF LD. CIT (A)-2, JAIPUR DATED 12.03.2018 FOR ASSESSMENT YEAR 2008-09 WHEREIN THE ASSESSEE HAS TAKEN THE FOLLOWING GROUNDS OF APP EAL:- 1. THAT THE IMPUGNED ORDER PASSED U/S 143 (3)/148 OF THE INCOME-TAX ACT, 1961 BY LEARNED ITO, WARD-5(3) AND BEING UPHELD BY LEARNED CIT (APPEALS)-2, JAIPUR, IS BAD IN LAW AS WELL AS ON FACTS BEING AGAINST THE PRINCIPAL OF NATURAL JUSTICE AND FOR OTHER REASONS. ITA NO. 771/JP/2018 KAMLESH TIWARI, JAIPUR VS. ITO, JAIPUR 2 2. THAT LD. ASSESSING OFFICER HAS ERRED IN THE LAW AND FACTS BY ACCEPTING REPORT OF THE DVO WITHOUT CONSIDERING THE VARIOUS OBJECTIONS RAISED BY THE APPELLANT ON THE VALUATION OF RS. 47,34,400/- MADE BY DVO AS AGAINST DECLARED VAL UE OF RS. 27,00,000/-. 3. THAT THE LD. ASSESSING OFFICER HAS FAILED TO APPREC IATE AND GIVE FINDINGS ON THE FOLLOWING OBJECTIONS RAISED BY THE APPELLANT ON THE VALUATION REPORT DATED 28.12.2015 SENT BY DVO AND LD. CIT (APPEALS-2) NOT APPRECIATING THE SU BMISSIONS OF THE ASSESSING OFFICER: (I) THAT THERE IS A IOC PIPELINE PASSING BENEATH THE LA ND AND WHICH IN TURN CAUSES RESTRICTION ON EXCAVATION AND OTHER USE OF LAND AND, THEREFORE, THE MARKET VALUE OF THE LAND CANNOT BE REALIZED. (II) THAT AN FURTHER ADDITION OF 10% ON THE DLC VAL UE OF THE COMMERCIAL LAND ON THE GROUND THAT LOCATION IS JUST AT THE END OF THE BRIDGE, IS ABSOLUTELY UNFOUNDED RATHER I N OUR SUBMISSION, WE HAVE STATED THAT THERE IS A BRIDGE I N FRONT OF THE LAND, THE MARKET VALUE DRASTICALLY GOES DOWN BEING APPROACH ISSUE AND TRAFFIC NOT TAKING U-TURN TO REA CH THE VENUE. (III) THAT THERE WAS A MANDATORY CONDIT ION IN THE SALE DEED OF LEAVING 10% OF THE AREA FOR PASSAGE, WHICH WAS T O BE GIVEN FOR THE OTHER LANDHOLDERS BEHIND THE LAND WAS ALSO NOT CONSIDERED. 2. BRIEFLY STATED, THE FACTS OF THE CASE ARE THAT THE ASSESSEE IS A AN INDIVIDUAL DERIVING INCOME FROM SALARY, RENTAL INCO ME AND INTEREST ITA NO. 771/JP/2018 KAMLESH TIWARI, JAIPUR VS. ITO, JAIPUR 3 INCOME WHO HAS FILED HER RETURN OF INCOME ON 29.07. 2008 DECLARING TOTAL INCOME OF RS. 8,43,060/-. THE ASSESSEE HAD PU RCHASED A PIECE OF LAND AT KHASRA NO. 124, VILLAGE SALADVAS THAMER, JA IPUR DELHI ROAD FOR CONSIDERATION OF RS. 8 LACS VIDE DEED OF SALE DATED 7 TH AUGUST, 2004. SUBSEQUENTLY, THE ASSESSEE ENTERED INTO A MEMORANDU M OF UNDERSTANDING WITH M/S. STERLING CONSTRUCTIONS, JAI PUR ON 19 TH SEPTEMBER, 2005 FOR DEVELOPMENT OF THE PROPERTY, WH ICH STARTED THE CONSTRUCTION THEREON. HOWEVER, THE CONSTRUCTION WAS NOT COMPLETED BY THE BUYER IN STIPULATED PERIOD AND PROJECT REMAINS WITHOUT FULL EXECUTION. AS THE ASSESSEE WAS IN NEED OF MONEY, SH E AGREED TO GIVE THE LAND TO THE BUYER ON AGREED PRICE OF RS. 27 LAC S, ON AS IS WHERE IS BASIS AND THE CONSTRUCTION AS WAS DONE BY THE BUYER ALSO GOT PASSED ON TO BUYER WHO IN FACT HAD INCURRED ALL THE EXPENSES THEREON. HOWEVER, FOR THE PURPOSE OF REGISTERING THE PROPERTY, THE SU B-REGISTRAR WHILE REGISTERING THE PROPERTY TOOK THE VALUE OF LAND AT RS. 47,34,400/- AND COST OF CONSTRUCTION AT RS. 50,85,756/-(TOTAL RS.98 ,20,156/-). THE ASSESSING OFFICER FOR CALCULATION OF CAPITAL GAIN T OOK THE SAME VALUE WITHOUT EXCLUDING THE CONSTRUCTION VALUE VIDE ORDER DATED 15.12.2011. 3. ON APPEAL, THE LD CIT(A) DELETED THE ADDITION OF RS. 50,85,756/- AS COST OF THE CONSTRUCTION, WHICH WAS NOT PART OF THE SALE CONSIDERATION VIDE HIS ORDER DATED 19.03.2013. BUT, SINCE THE VAL UATION REPORT OF THE LAND WAS NOT AVAILABLE, NO RELIEF WAS GRANTED ON TH E VALUE OF THE LAND WHICH WAS TAKEN AT RS. 47,34,400/-. ON FURTHER APP EAL BY THE ASSESSEE, THE TRIBUNAL VIDE ITS ORDER DATED 27.2.20 15 DIRECTED THAT THE ASSESSING OFFICER IS DIRECTED TO REFER THE VALUATIO N OF LAND TO DVO FOR THE PURPOSE OF VALUATION OF THE LAND ON THE DATE OF SALE. ACCORDINGLY, THE MATTER IS SET ASIDE TO THE ASSESSING OFFICER. ITA NO. 771/JP/2018 KAMLESH TIWARI, JAIPUR VS. ITO, JAIPUR 4 4. THE ASSESSING OFFICER REFERRED THE MATTER TO VALUATION OFFICER WHO VALUED THE LAND AT RS. 47, 34,400/- INSTEAD OF DECLARED VALUE OF RS. 27.00 LACS. BEFORE THE ASSESSING OFFICER, THE ASSES SEE RAISED CERTAIN OBJECTIONS ON THE VALUATION, WHICH WERE NOT CONSIDE RED BY VALUATION OFFICER. HOWEVER, ASSESSING OFFICER FOLLOWED THE VA LUATION OF LAND AS DONE BY DVO AT RS. 47, 34,400/- INSTEAD OF DECLARED VALUE OF RS. 27.00 LACS. ON APPEAL, THE LD. CIT(A) UPHELD THE ORDER OF LD. AO. 5. DURING THE COURSE OF HEARING, THE LD. AR DID NOT PRESS GROUND NO. 1, 4 & 5. HENCE, THE SAME ARE DISMISSED AS NOT PRE SSED. 6. REGARDING GROUND NO. 2 & 3, DURING THE COURSE OF HEARING, THE LD. AR SUBMITTED THAT IN COMPLIANCE TO THE DIRECTION OF THE TRIBUNAL, THE MATTER OF DETERMINATION OF FMV AS ON DATE OF SALE I .E. 30.8.2007 WAS REFERRED TO THE DVO BY LD. A.O. VIDE LETTER DATED 2 .9.2015. A DETAILED OBJECTION WAS FILED ON 18.12.2015 ON PROPOSED FMV. THEREAFTER, DVO DETERMINED THE FMV VIDE HIS ORDER DATED 28.12.2015 WHEREIN, ANNEXED HIS COMMENTS TO THE OBJECTIONS. IT WAS SUBMITTED TH AT THE DVO HAS CARRIED OUT ENTIRE EXERCISE IN A MANNER TO ARRIVE A T VALUE DETERMINED BY SUB-REGISTRAR, WHICH IS EVIDENT FROM DISCUSSION MAD E HEREINAFTER:- 6.1 IT IS RELEVANT TO NOTE THAT AS EVIDENT ON LAST PARA ON PAGE 5 CONTINUE TO PAGE 6 OF SALE DEED THAT A 10 FEET WIDE PASSAGE HAS TO BE KEPT OPEN, TO BE USED BY THE LAND OWNER OF KHASRA N O. 125/580. PERUSAL OF THE SAID CLAUSE MAKES IT ABUNDANTLY CLEA R THAT SAID PASSAGE HAS BEEN LEFT TO BE SOLELY USED BY SAID LAND OWNER. THERE IS NO RIGHT OF BUYER TO USE THE SAID PASSAGE COMMONLY. IT WAS SUBM ITTED THAT THE LOWER AUTHORITIES HAVE ERRED BY OBSERVING OR SUSTAI NING THAT 50% OF THE COMMON AREA SHALL BE USED BY THE BUYER AND 50% SHAL L BE USED BY THE ITA NO. 771/JP/2018 KAMLESH TIWARI, JAIPUR VS. ITO, JAIPUR 5 SELLER, THEREFORE, 5% DOWNWARD ADJUSTMENT HAS BEEN GIVEN. THE OBSERVATION IS INCORRECT DUE TO (I) PERUSAL OF THE CLAUSE SHOWS THAT IT IS FOR THE USE OF LAND OWNER OF KHASRA NO. 125/580, TH EREFORE, DRAWING THE INFERENCE THAT THE PASSAGE SHALL BE COMMON AREA IS FACTUALLY INCORRECT. (II) MOREOVER, EVEN OTHERWISE IT IS ALSO STIPULATED OBLIGATION ON THE BUYER NOT TO CONSTRUCT ANYTHING ON SAID PASSAGE . UNDER THE SAID OBLIGATION, IT IS CLEAR THAT SAID PASSAGE OR ANY PA RT THEREOF DOES NOT REMAIN A COMMERCIAL LAND OR A NORMAL LAND WHICH CAN FETCH ANY VALUE. (III) IT IS RELEVANT TO POINT OUT THAT THE FACTOR O F ADJUSTMENT HAS BEEN CALCULATED ON AD-HOC BASIS, RATHER THE SAME SHOULD BE CALCULATED ON ACTUAL BASIS AFTER TAKING INTO ACCOUNT THE CORRECT FACT, WHICH COMES TO 11.11% (200 SQ. MTRS. DIVIDED BY 1800 SQ. MTRS.). T HEREFORE, THE FACTOR NEEDS TO BE REVISED DOWNWARD BY 11.11% INSTEAD OF 5 %. 6.2 THE ASSESSEE FURTHER SUBMITTED THAT AN OIL GAS PIPELINE IS PASSING BENEATH THE LAND UNDER CONSIDERATION. IN SUPPORT OF HER CONTENTION, REQUEST LETTER MADE TO SDM, AMER AND THE REPLY OF T HE PATAWARI CONFIRMING THAT SUCH PIPELINE IS PASSING THROUGH TH E LAND UNDER CONSIDERATION WAS FILED. LD. DVO HELD THAT PATAWARI IS NOT COMPETENT TO ISSUE SUCH LETTER; RATHER, IT SHOULD BE ISSUED BY T HE IOC. IT IS FURTHER HELD THAT ASSESSEE FAILED TO SHOW ALIGNMENT OF IOC PIPELINE. IT WAS FURTHER SUBMITTED THAT SUCH PIPELINE CREATE HINDRAN CE AND RESTRICTION REGARDING THE USE OF THE LAND TO A CERTAIN EXTENT A ND IN SUPPORT OF HER CLAIM A WARNING LETTER ISSUED BY THE IOC TO THE ADJ ACENT LAND OWNER WAS ALSO FILED AND SAME WERE IGNORED BY SAYING THAT IT IS IN THE NAME OF SMT. POOJA TIWARI WHO IS THE OWNER OF KHASRA NO. 12 5/580 AND DAUGHTER-IN-LAW OF ASSESSEE. SIMILARLY, IT IS STATE D THAT THERE IS ALREADY BUILDING AND STRUCTURE MEANS THERE IS NO HINDRANCE UNDER PURVIEW OF ITA NO. 771/JP/2018 KAMLESH TIWARI, JAIPUR VS. ITO, JAIPUR 6 9(I) OF PETROLEUM PIPELINES (ACQUISITION OF RIGHT O F USER IN LAND) ACT, 1962. 6.3 IN THIS REGARD, IT WAS SUBMITTED BY THE LD AR T HAT THE ASSESSEE HAS FILED LETTER FROM PATAWARI CONFIRMING HER CONTE NTION OF PASSING PIPELINE, WHICH IS AUTHENTIC EVIDENCE AND FROM OFFI CE OF GOVERNMENT OF RAJASTHAN. THE CONTENTION HAS NOT BEEN ACCEPTED WIT HOUT ANY CONTRARY EVIDENCE. IT IS ALSO IMPORTANT TO NOTE THAT EVEN TH EN, VIDE LETTER DATED 18.12.2015, IT WAS REQUESTED TO DVO THAT ANY FURTHE R INFORMATION IS REQUIRED, MAY BE CALLED FROM IOC OR TEHSILDAR. THE DVO IS FULLY EMPOWERED TO CALL ANY INFORMATION TO HIS SATISFACTI ON AND IN THE INSTANT CASE, WITHOUT EXERCISING, SUCH POWER, HE CHOOSE TO IGNORE THE EVIDENCE FILED BY THE ASSESSEE. THE ACTION OF THE LD. DVO IS UNJUSTIFIED AND ARBITRARY. SINCE, IT IS NOT HIS CASE THAT EVIDENCE FILED BY THE ASSESSEE IS FALSE. THEREFORE, UNDER THE FACTS AND CIRCUMSTANCES , WITHOUT ANY MATERIAL, HE SHOULD NOT DRAW ANY INFERENCE WHICH IS CONTRARY TO EVIDENCE FILED. MORE SO, EVIDENCE FILED BY THE ASSE SSEE HAS BEEN IGNORED BY CREATING CERTAIN DOUBTS BASED UPON SUSPI CION. IT IS SETTLED LEGAL POSITION, SUSPICION CANNOT TAKE PLACE OF THE EVIDENCE, HOW SO EVER, STRONG THE EVIDENCE MAY BE. IT WAS FURTHER SUBMITT ED THAT PERUSAL OF THE PATAWARI LETTER CLEARLY SHOWS THAT PIPELINE IS PASSING UNDERNEATH THE LAND UNDER CONSIDERATION AND DETAILS OF ALIGNME NT VISIBLE IN THE ADJACENT LAND HAVE ALSO BEEN GIVEN. HINDRANCE AND R ESTRICTIONS HAS NOT DENIED WITH THE LAND PASSING UNDERGROUND PIPELINE. THE ONLY OBJECTION RAISED IS THAT LETTER OF WARNING IS IN THE NAME OF SMT. POOJA TIWARI AND RELATED TO ADJACENT LAND. THEREFORE, ONCE, IT IS AD MITTED ON THE BASIS OF APPRECIATION OF EVIDENCE FILED THAT A GAS PIPELINE IS PASSING THROUGH THE LAND UNDER CONSIDERATION, DOWNWARD ADJUSTMENT HAVE TO BE GIVEN. REGARDING THE OBSERVATION OF DVO THAT THERE IS ALRE ADY CONSTRUCTION AND ITA NO. 771/JP/2018 KAMLESH TIWARI, JAIPUR VS. ITO, JAIPUR 7 HENCE THE QUESTION OF PIPELINE IS NOT RELEVANT, IT WAS SUBMITTED THAT THE CONSTRUCTION IS ON AROUND 50% OF GROUND COVERAGE; F URTHER UNDERGROUND PIPELINE PER SE DOES NOT MEAN THAT ON E NTIRE PLOT, NO CONSTRUCTION CAN BE MADE. RESTRICTION ON CONSTRUCTI ON IS LIMITED TO ADJACENT AREA TO PIPELINE ONLY. THE FACTS DISCUSSED HEREINBEFORE SHOWS THAT CONCLUSION HAS BEEN DRAWN WITHOUT APPRECIATING THE FACTS, HENCE, UNJUSTIFIED AND UNTENABLE. FURTHER, ALTERNATIVELY, EVEN FOR SAKE OF ARGUMENT, CONSTRUCTION ON RESTRICTED AREA IF ANY, I S NOT ONLY DANGEROUS BUT ALSO ILLEGAL AND AGAINST THE STIPULATION OF IOC . THEREFORE, SUCH ASSUMPTION IS NOT ONLY IRRATIONAL AND UNSUSTAINABLE . UNDER THE FACTS AND CIRCUMSTANCES, THE VALUE OF THE LAND SHALL ALWAYS B E EFFECTED DUE TO UNDERGROUND PIPELINE. 6.4 REGARDING THE UNEVEN SIZE OF LAND, DETAILED OBJ ECTIONS FILED BEFORE THE LOWER AUTHORITIES WERE REITERATED AND IT WAS SUBMITTED THAT THE PRESENCE OF DEEP NALLAH JUST BEHIND THE LAND MA KES THE AIR STINK ALL THE TIME. IT IS DIFFICULT TO STAND THERE, ESPECIALL Y IN RAINY SEASON. DUE THE NALLAH, LAND GETS ISOLATED AND DISCONNECTED FROM TH E BACKSIDE. THE POSSIBILITY OF BACKWARD EXPANSION, BY PURCHASING MO RE LAND, IS ALSO NOT THERE. THE LAND IS OF UNEVEN SIZE, THE DEPTH OF PLO T VARIES RADICALLY, AND IN THE DEPTH IN SOUTH SIDE IS ALMOST HALF TO THE DE PTH IN NORTH SIDE. THE FRONT SIDE AND BACK SIDE OF THE LAND IS NOT PARALLE L, WHICH MAKES THE LAND UNFIT FOR CONSTRUCTION. OUT OF THE TOTAL LAND AREA, IF A RECTANGULAR PORTION IS WORKED OUT, IT WILL COME TO ONLY APPROX. 950 SQ. METERS, THIS ITSELF SHOWS THAT ALMOST HALF OF THE LAND IS UNFIT FOR CONSTRUCTION. WITH SO MANY ABNORMALITIES AND VASTU IMPERFECTIONS, ALMOST 25% OF THE TOTAL LAND AREA IS NOT CONSTRUCTIBLE. THEREFORE, THE FACT OR NEEDS TO BE REVISED DOWNWARD BY 25%. IT WAS SUBMITTED THAT PERUSAL OF T HE COMMENTS OF THE DVO SHOWS THAT FACTS REGARDING ABNORMALITY IN T HE LAND SIZE AND ITA NO. 771/JP/2018 KAMLESH TIWARI, JAIPUR VS. ITO, JAIPUR 8 SHAPE ARE UNDISPUTED. HOWEVER, WITHOUT ASSIGNING TH E REASON, THE REQUEST OF DOWNWARD ADJUSTMENT BY 25%, LD. DVO ONLY MAKE ADJUSTMENT OF 5% AND HAD NOT GIVEN ANY RATIONALITY FOR TAKING HIS ACTION. THE SUBMISSION OF ASSESSEE IS BACKED BY UND ISPUTED FACTS AND FIGURES; HENCE, THE REQUEST SHOULD BE ACCEPTED IN F ULL AND CANNOT BE ACCEPTED IN PART WITHOUT ANY BASIS. 6.5 THE LD AR FURTHER SUBMITTED THAT THE LD. DVO HA S MADE UPWARD ADJUSTMENT OF 10% EVEN ON SUB-REGISTRAR RATES BY ST ATING THAT LAND LOCATION IS JUST NEAR TO END OF BRIDGE AS THE HOTEL /COMMERCIAL PROPERTY WILL CATER MORE USERS. IN THIS REGARD, IT IS SUBMIT TED THAT THE RATE APPLIED BY THE SUB-REGISTRAR, AS WELL AS BY DVO IS OF LAND SITUATED ON MAIN ROAD AND TYPE OF LAND IS COMMERCIAL. THEREFORE, ONCE DVO HAVE ALREADY TAKEN THE RATE OF LAND ON MAIN ROAD HAVING TYPE CO MMERCIAL, THAN MAKING ANY FURTHER UPWARD ADJUSTMENT ON THE BASIS T HAT LAND IS NEAR TO THE END OF BRIDGE SUITABLE FOR HOTEL AND COMMERCIAL PROPERTY IS NOT JUSTIFIED. SINCE, THE RATE OF THE COMMERCIAL USE HA S ALREADY APPLIED. IT WAS SUBMITTED THAT THERE IS NO U-TURN-CUT IN FRONT THE LAND. THE CUSTOMERS/USERS ON THE OTHER SIDE OF ROAD (FROM JAI PUR SIDE) WILL HAVE TO TRAVEL EXTRA MILES AND HAVE TO TAKE U-TURN THERE AFTER TO APPROACH THE LAND. IT WAS SUBMITTED THAT THE FACTS HAVE NOT PROP ERLY APPRECIATED AND IT IS WRONGLY CONCLUDED THAT DUE TO BRIDGE OTHER SI DE VISITORS CAN COME DIRECTLY, WHEREAS, IN FACT, THERE IS NO U-TURN AND PERSON HAVE TO COME BY TAKING REGULAR U-TURN, HENCE, IT IS CLEAR THAT B RIDGE DOES NOT HAVE ANY CONVENIENCE AS STATED. 6.6 IT WAS FURTHER SUBMITTED THAT THE ASSESSEE IS A N OLD AGE LADY. SHE SOLD LAND TO MEET HER FINANCIAL NEEDS, WHICH IS EVI DENT FROM THE PAGE NO. 4 OF THE SALE DEED. IT IS RELEVANT TO MENTION HERE THAT AS PER THE ITA NO. 771/JP/2018 KAMLESH TIWARI, JAIPUR VS. ITO, JAIPUR 9 MEMORANDUM OF UNDERSTANDING, THE SALE WAS A DISTRES S SALE, AS THE SELLER WAS IN FINANCIAL CRUNCH AND DID NOT WANT TO CONTINUE FOR A LONG TIME WITH THE DEVELOPER . THEREFORE, WE REQUEST YOU TO KINDLY TREAT THE TRANSACTION AS DISTRESS SALE AND KEEPING IN VIEW, T HE VULNERABLE POSITION OF THE SELLER, SUITABLE ADJUSTMENT SHOULD BE ALLOWE D. 7. PER CONTRA, THE LD DR VEHEMENTLY ARGUED THE MATT ER AND SUBMITTED THAT IN RESPECT OF THE OBJECTIONS SO CLAI MED BY THE LD AR AS NOT CONSIDERED AND APPRECIATED BY THE LD CIT(A), TH E SAID CONTENTION OF THE LD AR IS NOT CORRECT AND OUR REFERENCE WAS DRAW N TO THE FINDINGS OF THE LD CIT(A) WHICH ARE REPRODUCED AS UNDER: DURING THE PRESENT PROCEEDINGS, IT IS SUBMITTED THA T A CONFIRMATION FROM PATWARI, CHANDWASI WAS SUBMITTED TO CLAIM THAT THERE IS A PIPELINE OF INDIAN OIL CORPORATION BENEATH THE LAND, A LETTE R RECEIVED FROM IOC DATED 29.10.2005 IN THE NAME OF ANIRUDDA TIWARI & P OOJA TIWARI WHO OWN THE ADJACENT LAND WHICH WARNED THE OWNERS OF SE RIOUS CONSEQUENCES IF EXCAVATION WORK WAS UNDERTAKEN AND A MANDATORY CONDITION OF LEAVING 10% INSIDE FOR PASSAGE WHICH W AS A RESTRICTIVE CLAUSE AND THAT THESE OBJECTIONS HAVE BEEN RAISED B EFORE THE VALUATION OFFICER AND SAME HAVE BEEN ADDRESSED BY HIM IN HIS REPORT. REGARDING THE IOC PIPELINE, IT IS MENTIONED THAT THE ASSESSEE S AUTHORIZED REPRESENTATIVE FAILED TO SHOW THE ALIGNMENT OF IOC PIPELINE AT THE TIME OF INSPECTION, THE LETTER FROM IOC WAS NOT IN THE N AME OF THE ASSESSEE AND DID NOT DEAL WITH THOSE KHASRA NUMBERS AND MOST IMPORTANTLY IN THE SAID PIECE OF LAND, THE STRUCTURE ALREADY CONST RUCTION AND HOTEL/RESTAURANT/COMMERCIAL ESTABLISHMENT IS RUNNIN G WHICH MEANS THE SAID LAND DOES NOT COME UNDER THE PURVIEW OF SECTIO N 9(I) OF ANNEXURE A. IT IS ALSO SEEN AS DISCUSSED IN DETAIL IN THE C IT(A) ORDER DATED ITA NO. 771/JP/2018 KAMLESH TIWARI, JAIPUR VS. ITO, JAIPUR 10 19.3.2013 IN THE FIRST ROUND THAT THE ASSESSEE HAD ENTERED INTO THE DEVELOPMENT AGREEMENT WITH THE BUILDER NAMED STERLI NG CONSTRUCTION THROUGH MOU DATED 19.9.2005 AS PER WHICH THE PROPRI ETOR OF STERLING CONSTRUCTING WAS TO CONSTRUCT SHOPS, HOW ROOMS AND RESIDENCES ON THIS LAND FOR SALE/COMMERCIAL EXPLOITATION AND THE APPEL LANT WAS TO SHARE 45% OF NET PROFIT AND BUILDER 55% PROFIT OF THE PRO JECT. SINCE THE BUILDER DID NOT KEEP ITS PROMISE OF COMPLETING THE CONSTRUCTION, THE APPELLANT AGREED TO SELL LAND ONLY. AT THE TIME OF SALE, CONSTRUCTION IS VALUED AT RS. 50, 85,786/- AND WAS CLAIMED TO HAVE BEEN MADE BY THE BUILDER. THUS, IT IS CLEAR THAT THIS FACTOR OF IOC PIPELINE WAS NOT A HINDRANCE AND THE AGREEMENT AND CONSTRUCTION HAD TA KEN PLACE AS RECORDED BY THE VALUATION OFFICER AND A COMMERCIAL COMPLEX EXISTED ON THAT LAND. THUS, THIS FACTOR DID NOT APPEAR TO HAVE REDUCED THE COST OF THE LAND AND THE FINDING OF THE VALUATION OFFICER I S ALSO TO THIS EFFECT. FURTHER, THE VALUATION OFFICER HAS GIVEN DEDUCTION OF 51% FOR ONE SIDE COMMON PASSAGE FOR ENTRY TO KHASRA NO. 125/580 AND 5% FOR UNEVEN LAND AND UNDULATION. IN VIEW OF THE DISCUSSION AS ABOVE, THE VALUE ADOP TED BY THE ASSESSING OFFICER BASED ON THE REPORT OF THE VALUAT ION OFFICER WHICH HAS CONSIDERED THE VARIOUS OBJECTIONS OF THE APPELLANT, IS FOUND TO BE IN ORDER AND CONFIRMED. GROUND OF APPEAL IS DISMISSED. 8. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. THE DVO HAS DETERMINED THE VA LUE OF THE CONVERTED LAND FOR COMMERCIAL USE MEASURING 1800 SQ . METERS EQUIVALENT TO 2152 SQ. YARDS AT RS 47,34,400 BY DET ERMINING THE COMMERCIAL VALUE OF THE LAND AT THE RATE OF RS 2200 /SQ. YARDS AFTER ADJUSTMENT TOWARDS LOCATION OF THE LAND (+10%), COM MON PASSAGE (-5%) AND UNEVEN SIZE OF PLOT (-5%) AND NO ADJUSTME NT HAS BEEN DONE ITA NO. 771/JP/2018 KAMLESH TIWARI, JAIPUR VS. ITO, JAIPUR 11 IN RESPECT OF UNDERNEATH IOC PIPELINE. FIRSTLY, WE DONOT SEE ANY BASIS FOR UPWARD ADJUSTMENT TOWARDS THE LOCATION OF THE L AND WHERE THE COMMERCIAL VALUE OF THE LAND @ RS 2200 PER SQ YARD HAS BEEN ADOPTED AT THE FIRST PLACE BY THE DVO. REGARDING ADJUSTMENT TOWARDS THE COMMON PASSAGE, THE FACTS AS EMANATING FROM THE SAL E DEED IS THAT THERE IS A PASSAGE MEASURING 200 SQ. METERS WHICH H AS TO BE KEPT OPEN FOR ENTRY TO THE ADJACENT PIECE OF LAND BEARING KHA SRA NO. 125/580 AND ON WHICH NO CONSTRUCTION ACTIVITY SHALL BE UNDERTAK EN BY THE ASSESSEE. AT THE SAME TIME, THERE IS NO PROHIBITION THAT THE ASSESSEE CANNOT USE THE SAME. THE FACTS REMAINS THAT THE SAID PORTION OF LAND IS LIKE A COMMON PASSAGE WHICH IS IN OWNERSHIP OF THE ASSESSE E AND AS FAR AS RIGHT OF USE IS CONCERNED, THE ADJACENT LAND HOLDER IS EQUALLY ENTITLED TO USE THE SAME. IN LIGHT OF THE SAME, DOWNWARD ADJUS TMENT BY 11% (200/1800 SQ. METERS) AS CLAIMED BY THE ASSESSEE WO ULD NOT BE CORRECT AS THE SAME WILL EFFECTIVELY REDUCE THE VALUE OF SA ID PIECE OF LAND TO NIL AND ADJUSTMENT OF 5% AS DONE BY THE DVO IS HEREBY C ONFIRMED. FURTHER, ON PERUSAL OF LETTER WRITTEN BY PATWARI DA TED 17.12.2015, IT IS AMPLY CLEAR THAT THE IOC PIPELINE IS RUNNING UNDERN EATH KHASRA NO. 122 TO 125 INCLUDING THE IMPUGNED KHASRA NO. 124 AND TH ERE ARE SIGN POSTS AT KHASRA NO. 122 AND AT 125 DEPICTING CLEARING THE SAME. IN LIGHT OF THE SAME AND IN ABSENCE OF ANYTHING CONTRARY WHICH HAS BEEN BROUGHT ON RECORD, THE SAID FACT HAS CLEARLY IMPACTED THE V ALUATION OF THE LAND AS COMPARED TO ANY OTHER COMMERCIAL LAND (WITHOUT S UCH UNDERNEATH PIPELINE) WHICH HAS FORMED THE BASIS FOR COMPARABIL ITY AND CONSEQUENT VALUATION AT FIRST PLACE OF RS 2200/SQ. YARDS. THE AO IS ACCORDINGLY DIRECTED TO MAKE AN ADJUSTMENT TO THE EXTENT OF 10% ON ACCOUNT OF SUCH PIPELINE WHICH HAS EFFECTED THE VALUATION OF S UCH LAND. SIMILARLY, IN RESPECT OF ADJUSTMENT TOWARDS THE UNEVEN SIZE OF PLOT OF LAND WHICH REMAIN UNDISPUTED, WE DEEM IT APPROPRIATE TO INCREA SE THE ADJUSTMENT ITA NO. 771/JP/2018 KAMLESH TIWARI, JAIPUR VS. ITO, JAIPUR 12 TO 10% AS AGAINST 5% DONE BY THE DVO. WITH THE ABO VE DIRECTIONS, THE MATTER IS SET-ASIDE TO THE FILE OF THE AO TO RECOMP UTE THE VALUE OF THE LAND AFTER TAKING INTO CONSIDERATION THE VARIOUS AD JUSTMENTS AS PER AFORESAID DISCUSSION. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS PARTLY ALLOWED WITH ABOVE DIRECTIONS. ORDER PRONOUNCED IN THE OPEN COURT ON 29/11/20 18. SD/- SD/- FOT; IKWY JKO FOE FLAG ;KNO (VIJAY PAL RAO) (VIKRAM SINGH YADAV) U;KF;D LNL;@ JUDICIAL MEMBER YS[KK LNL;@ ACCOUNTANT MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 29/11/2018 * GANESH KR. VKNS'K DH IZFRFYFI VXZSFKR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- SMT. KAMLESH TIWARI, TONK ROAD, JAIP UR 2. IZR;FKHZ@ THE RESPONDENT- ITO, WARD 5(3), JAIPUR 3. VK;DJ VK;QDR@ CIT 4. VK;DJ VK;QDR@ CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR. 6. XKMZ QKBZY@ GUARD FILE { ITA NO. 771/JP/2018} VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASST. REGISTRAR