I.TO., Ward 2(3), Gwalior V. Sh., Ram Charan Lal Gupta(HUF), Gwalior

ITA 91/AGR/2014

• Counselvise Citation: 9120314 RSA 2014
• Duration Of Justice: 1 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-05-2014
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 19-05-2014
• Assessment Year: 2009-2010
• Appeal Filed On: 04-04-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RADHA RANI SHARMA
• Assessee Lawyers: ASHOK VIJAYWARGIYA
• Keywords: Sale consideration of property below Jantri Value; Value adopted by valuation officer; Cost of acquisition; Fair market value; Valuation report; Assessment record
• Section: 54; 50C

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, AGRA BENCH, AGRA BEFORE : SHRI BHAVNESH SAINI, JUDICIAL MEMBER AND SHRI PRAMOD KUMAR, ACCOUNTANT MEMBER ITA NO. 91/AGRA/2014 ASSTT. YEAR : 2009-10 INCOME-TAX OFFICER, VS. SHRI RAM CHARAN LAL GUPTA (HUF), WARD 2(3), GWALIOR. KASIM KHAN KA BADA, DAL BAZA R, GWALIOR. (PAN : AAEHR 9157 H) (APPELLANT) (RESPONDENT) APPELLANT BY : SMT. RADHA RANI SHARMA, JR. DR RESPONDENT BY : SHRI ASHOK VIJAYWARGIYA, C.A. DATE OF HEARING : 19.05.2014 DATE OF PRONOUNCEMENT OF ORDER : 22.05.2014 ORDER PER BHAVNESH SAINI, J.M.: THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST THE ORDER OF LD. CIT(A), BHOPAL DATED 28.01.2014 FOR THE ASSESSMENT YEAR 200 9-10, CHALLENGING THE DELETION OF ADDITION OF RS.36,87,340/- MADE BY THE AO ON ACC OUNT OF LONG TERM CAPITAL GAIN. 2. BRIEFLY, THE FACTS OF THE CASE ARE THAT THE AO M ADE ADDITION OF RS.36,87,340/- ON ACCOUNT OF LONG TERM CAPITAL GAIN. THE ASSESSEE CLAIMED EXEMPTION U/S. 54 EC OF THE IT ACT BY WAY OF INVESTMENT MADE IN SPECIFIE D BONDS OF RS.30 LACS. THE ASSESSEE HAS OBJECTED TO THE COMPUTATION OF CAPITAL GAINS AT RS.66,87,340/- BY THE AO AFTER ALLOWING FOR CLAIMED EXEMPTION U/S. 54EC A T RS.30 LACS MAKING ADDITION ITA NO. 91/AGRA/2014 2 OF RS.36,87,340/-. THE AO BRIEFLY NOTED THAT THE AS SESSEE HAS SOLD LAND AT BAHORAPUR, GWALIOR FOR RS.40 LACS IN WHICH THE SHAR E OF THE ASSESSEE WAS 4/5 TH , I.E. RS.32 LACS. THE ASSESSEE MADE INVESTMENT OF RS.30 L ACS IN SPECIFIED BOND AND CLAIMED EXEMPTION. THE ASSESSEE FILED VALUATION REP ORT CLAIMING VALUE OF THE LAND ON 01.04.1981 IN A SUM OF RS.190/- PER SQ. METER. T HE AO CALLED FOR THE INFORMATION FROM THE SUB-REGISTRAR, GWALIOR U/S. 13 3(6) FOR KNOWING THE VALUATION AS ON 01.04.1981 IN WHICH THE SUB-REGISTRAR REPORTE D THAT ON 01.04.1981, THERE WAS NO GUIDELINES PROVIDED, BUT COPIES OF CERTAIN R EGISTERED DOCUMENTS WERE PROVIDED AND ACCORDING TO THE AO, THE AVERAGE VALUE OF SALE CONSIDERATION WAS FOUND AT RS.1.67 PER SQ. METER ON 01.04.1981.THE AO , THEREFORE, CALLED FOR THE EXPLANATION OF THE ASSESSEE WHY SUCH AVERAGE RATE S HOULD NOT BE APPLIED FOR THE PURPOSE OF COMPUTATION OF LONG TERM CAPITAL GAIN. T HE ASSESSEE SUBMITTED BEFORE THE AO THAT VALUE OF THE LAND @ RS.190/- PER SQ. ME TER HAS BEEN REPORTED BY THE REGISTERED VALUER WHO IS A TECHNICAL PERSON HAVING FULL KNOWLEDGE ON THE SUBJECT. IT IS COMMON KNOWLEDGE THAT IN PROPERTY, THE ACTUAL FA IR MARKET VALUE IS NOT STATED AND NO GUIDELINES HAVE BEEN PROVIDED REGARDING RATE S IN THE YEAR 1981. THEREFORE, THE RATES DEPEND UPON VARIOUS RELEVANT FACTORS LIKE LOCATION, SIZE, FUTURE POTENTIAL, COMMERCIAL AND RESIDENTIAL, SURROUNDED AREA ETC. IN THE DETAILS PROVIDED NO SUCH DETAILS HAVE BEEN MENTIONED. THE LAND IN QUESTION W AS PURCHASED ON 18.11.1972, WHICH WAS AGRICULTURAL LAND, BUT WHEN IT WAS SOLD, IT HAS BECOME COMMERCIAL CUM RESIDENTIAL LAND. IT WAS ALSO SUBMITTED THAT WHEN E NTIRE SALE CONSIDERATION HAS BEEN ITA NO. 91/AGRA/2014 3 INVESTED IN SPECIFIED BONDS, THE ENTIRE CAPITAL GAI N WOULD BE EXEMPT U/S. 54EC AND RELIED UPON THE DECISION OF ITAT, JAIPUR BENCH IN T HE CASE OF GYAN CHAND BATRA, 45 DTR 41. IT WAS, THEREFORE, CLAIMED THAT INDEXATI ON COST APPLIED BY THE AO IS VERY LESS. IT WAS ALSO EXPLAINED THAT IN THE COMPUT ATION OF STATEMENT, THE SALE CONSIDERATION HAS BEEN SHOWN AS PER STAMP DUTY PAID ACCORDING TO SECTION 50C AND RETURN WAS FILED ACCORDINGLY. THE AO, HOWEVER, DID NOT ACCEPT THE CONTENTION OF THE ASSESSEE AND COMPUTED THE CAPITAL GAINS BY ADOP TING THE VALUATION RATE OF RS.1.67 PER SQ. METER AS ON 01.04.1981 AND MADE THE ADDITION OF RS.36,87,340/-. 3. THE ADDITION WAS CHALLENGED BEFORE THE LD. CIT(A ). IT WAS SUBMITTED THAT THE LAND IN QUESTION WAS PURCHASED ON 18.11.1972 BY THE BIGGER HUF TITLED AS PYARE LAL RAMCHARAN LAL, HUF, WHICH WAS LATER ON PARTITIO NED AND THE ASSESSEE ACQUIRED 4/5 TH SHARE IN THE LAND. THE ASSESSEE OBTAINED REPORT OF REGISTERED VALUER ON 01.04.1981 FOR VALUATION OF PROPERTY, WHO DETERMINE D THE FAIR MARKET VALUE @ 190/- PER SQ. METER AMOUNTING TO RS.7,98,000/-, I.E . RS.8,00,000/- AS ON 01.04.1981 CONSIDERING THE LOCATION, SIZE, FUTURE POTENTIALS, COMMERCIAL AND RESIDENTIAL AND DEVELOPED SURROUNDINGS ETC. THE ASSESSEES SHARE IN FAIR MARKET VALUE OF THE LAND AS ON 01.04.1981 WAS DETERMINED AT RS.6,40,000/- (4 /5 TH OF RS.8,00,000/-). THE SAME LAND WAS SOLD FOR RS.40,00,000/- HAVING VALUE OF RS.84,00,000/- FOR STAMP DUTY PURPOSE. THE ASSESSEES SHARE IN SALE VALUE WA S RS.32,00,000/- (4/5 TH OF RS.40,00,000/-) AND FOR STAMP DUTY PURPOSE WAS RS.6 7,20,000/- (4/5 TH OF ITA NO. 91/AGRA/2014 4 RS.84,00,000/-). THE ASSESSEE HAS DECLARED LONG TER M CAPITAL GAIN OF RS.29,95,200/- AND MADE INVESTMENT IN SPECIFIED BONDS AND HAS CORR ECTLY SHOWN NIL LONG TERM CAPITAL GAIN. IT WAS CLARIFIED THAT THE VALUATION A S PER GUIDELINES FOR STAMP DUTY PURPOSE WAS SHOWN BY THE ASSESSEE AT RS.67,20,000/- AND THE INDEXATION COST OF ACQUISITION COMES TO RS.37,24,800/-, WHICH HAS NOT BEEN ACCEPTED BY THE AO AND THE AO TOOK SUCH INDEXED COST OF ACQUISITION AT RS. 32660/- BY TAKING AVERAGE RATE AT RS.1.67 PER SQ. METER. THE INFORMATION SUPPLIED BY THE SUB-REGISTRAR WAS NOT OF COMPARABLE CASE. IT WAS, THEREFORE, SUBMITTED THAT THE ADDITION WAS WHOLLY UNJUSTIFIED. THE ASSESSEE ALSO RELIED UPON SEVERAL DECISIONS IN SUPPORT OF HIS CONTENTION. 4. THE LD. CIT(A) CONSIDERING THE EXPLANATION OF TH E ASSESSEE IN THE LIGHT OF MATERIAL ON RECORD AND THE DECISION OF ITAT, AGRA B ENCH IN THE CASE OF MADAN MOHAN CHHAPARWAL, AS HAS BEEN CONFIRMED BY THE HON BLE HIGH COURT, DELETED THE ENTIRE ADDITION. THE FINDINGS OF LD. CIT(A) IN PARA 5 TO 6 OF THE IMPUGNED ORDER ARE REPRODUCED AS UNDER : 5. APPELLANTS SUBMISSION ALONG WITH ASSESSMENT OR DER AND RELEVANT CASE LAWS HAVE BEEN CONSIDERED CAREFULLY AND ARE FOUND A CCEPTABLE. THE FIRST ISSUE OF DISPUTE IS ADOPTION OF RATE OF RS.1.67 PER SQ. METE R AS AVERAGE SALE VALUE TO DETERMINE FAIR MARKET VALUE (FMV) FOR THE PURPOSE O F COMPUTING INDEXED COST OF ACQUISITION OF LAND SOLD TO DETERMINE RESULTANT CAP ITAL GAINS. THE APPELLANT HAS SOLD LAND OF 40,500 SQ. FT I.E. 4200 SQ. MT. HAVING VARI OUS COMMERCIAL ADVANTAGES AND ITS FMV BEEN COMPUTED ON THE BASIS OF REPORT OF REG ISTERED VALUER ONLY. ON THE ITA NO. 91/AGRA/2014 5 OTHER HAND, A.O. HAS BEEN INFORMED THAT NO GUIDELIN ES OF CIRCLE RATE AS ON 01.04.1981 OF THE LAND UNDER CONSIDERATION WAS IN E XISTENCE. THE CONCERNED SUB REGISTRAR OF PROPERTIES HAS INTIMATED THE A.O. CERT AIN INSTANCES OF SALE OF LAND MADE ON THE BASIS OF WHICH A.O. HAS APPLIED THE SAI D RATE OF RS.1.67 PER SQ. MT. THE SUMMARY OF INFORMATION GIVEN BY THE SUB-REGISTR AR IS FOUND AS UNDER:- SR. NO. DATE OF TRANSACTION LOCATION REGISTRATION NO. SALE VALUE AREA VALUE PER SQ. METER 1. NOT GIVEN NOT GIVEN 7345 5000 73.49 SQ.M 68 2. NOT GIVEN NOT GIVEN 7428 2000 1104 SQ.FT 1.81 3. NOT GIVEN NOT GIVEN 7431 3000 1280 SQ.FT. 10.71 4. NOT GIVEN NOT GIVEN 7437 2000 1200 SQ.FT. 17.93 5. NOT GIVEN NOT GIVEN 7598 17500 139.29 SQ.M 125.64 5.1 FROM PERUSAL OF ABOVE, IT IS SEEN THAT THESE RE LIED ON INSTANCES ARE NOT COMPARABLE EVEN WITH EACH OTHER BECAUSE THERE IS VA ST DISPARITY IN AREA AND VALUE OF LAND AND RATE ADOPTED WHICH IS FOUND RANGING BET WEEN RS.1.81 PER SQ. MT. TO RS.17.93 TO RS.68 AND EVEN RS.125.64 PER SQ.MT. THE AREA OF EACH LAND IS ALSO FOUND VASTLY VARYING WITH EACH OTHER AND IN ANY CAS E WITH THAT OF THE APPELLANT WHO HAS SOLD LAND OF 4200 SQ.MT. THERE IS NO MENTION OF ANY SERVICE ROAD OR LOCATIONAL ADVANTAGE EITHER AS IS AVAILABLE IN CASE OF THE APP ELLANTS LAND ON THE BASIS OF MAP PRODUCED BY IT. THE VALUE OF ANY LAND DEPENDS UPON MANY FACTORS I.E. DEVELOPMENT POTENTIAL, TIME OF TRANSACTION, LOCATION OF LAND, A VAILABILITY OF CIVIC AMENITIES AND SO ON. EVEN ALL PLOTS OF LAND SOLD DURING THE SAME PERIOD NEED NOT NECESSARILY HAVE THE SAME SALE VALUE KEEPING IN VIEW FACTS AND CIRCU MSTANCES OF EACH CASE. SIMILAR VIEW HAS ALSO BEEN HELD BY HONBLE JURISDICTIONAL I TAT INDORE IN CASE OF MOHD. ATIQUE, BHOPAL VS ACIT-3(1), BHOPAL IN ITA NOS. 310 TO 316/IND/2012 VIDE ORDER DTD. 31.01.2013. SIMILARLY HONBLE APEX COURT HAS A LSO HELD THAT IN CONSIDERING THE FMV OF THE IMMOVABLE PROPERTY PROPOSED TO BE SO LD THE FACT OF COMPARISON OF INCOMPARABLE PROPERTIES IS FALLACIOUS ALONG WITH EQ UALLY FALLACIOUS FACT OF NON COMPARISON OF COMPARABLE PROPERTIES. [UOI VS CHIRAN JI ESTATE (P) LTD (2001) 251 ITR 7(SC)]. 5.2 FURTHER, THE APPELLANT HAS GIVEN COPY OF VALUAT ION REPORT PREPARED BY REGISTERED VALUER DETERMINING THE FMV AS ON 01.04.1 981 FOR THE PURPOSE OF TAKING COST OF ACQUISITION AS ON 01.04.1981 IN VIEW OF PROVISIONS OF SECTION 55(2)(B) OF THE IT ACT WHILE COMPUTING CAPITAL GAIN S. A.O. IS NOT FOUND JUSTIFIED IN TAKING THE AVERAGE COST OF ACQUISITION DETERMINED AS PER INFORMATION SUPPLIED BY THE SUB-REGISTRAR ON THE BA SIS OF SOME INSTANCES WITHOUT MENTIONING THE DATE OF SALE EITHER AND WHIC H ARE FOUND NON COMPARABLE TO THE APPELLANTS CASE. THERE IS NO ADV ERSE MATERIAL BROUGHT ON RECORD BY THE A.O., IN FORM OF REPORT OF DVO ETC, B EFORE REJECTING VALUERS ITA NO. 91/AGRA/2014 6 REPORT GIVEN BY THE APPELLANT. ON IDENTICAL FACTS, SIMILAR VIEW HAS ALSO BEEN HELD BY HONBLE ITAT, AGRA IN CASE OF ACIT, CIRCLE- 1, GWALIOR VS SHRI MADAN MOHAN CHHIAPARWAL IN ITA NO.395/AGRA/2012 VID E ORDER DTD 24.05.2013 BY MENTIONING AS UNDER: 3. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESS EE DERIVES INCOME FROM CAPITAL GAIN, HOUSE PROPERTY AND INTEREST. DURING T HE ASSESSMENT PROCEEDINGS, THE A.O. NOTICED THAT THE ASSESSEE SHO WN CAPITAL GAIN AS PER BOOKS OF ACCOUNT IN RESPECT OF CAPITAL GAIN ARRIVED ON LAND CEDED, SALE OF SHOPS. THE PROPERTY STATED TO BE SOLD THAT HAD BEEN ACQUIRED BY THE ASSESSEE BEFORE 01.04.1981. THE ASSESSEE ADOPTED VALUE OF PR OPERTY @ 2,500/- PER SQ. METER TREATING THIS AS MARKET RATE OF PROPERTY AS O N 01.04.1981. THE A.O. ON THE BASIS OF INFORMATION COLLECTED FROM SUB-REGISTR AR TAKEN VALUE OF RS.130/- PER SQ. METER IN PLACE OF RS.2,500/- PER SQ. METER CLAIMED BY THE ASSESSEE. THE A.O. RECALCULATED THE LONG TERM CAPITAL GAIN AC CORDINGLY. 4. THE CIT(A) DELETED THE ADDITION MADE BY THE A.O. AS UNDER (PAGE 10 AND 11) 3.2 APPELLANTS SUBMISSION HAVE BEEN CONSIDERED CA REFULLY ALONG WITH THE ASSESSMENT ORDER. ASSESSMENT RECORDS HAVE ALSO BEEN PERUSED. AS PER THE AO, PROPERTIES IN THE AREA OF MLB ROAD HAVE BEEN PURCHASED/SOLD AT AN AVERAGE PRICE OF RS.9050 PER SQ. METER DURING THE YEAR 1980-81 ON THE BASIS OF SUB-REGISTRARS REPORT AND THEREFORE APPLI CATION OF RATE OF RS.130/- SQ. MT. IN PLACE OF RS.2,500/- PER SQ. MT., TO DETE RMINE COST OF ACQUISITION IN 1981 IS REASONABLE. APPELLANTS EXPLANATION AND DET AILED SUBMISSIONS HAVE THEREFORE BEEN FOUND NOT ACCEPTABLE BY SOLELY REPLY ING ON SUB-REGISTRARS INFORMATION WHO HAS BEEN HELD TO BE THE ONLY GOVT. AUTHORITY HAVING RIGHT OF PROPER VALUATION OF THE LAND AND PROPERTIES. A.O. H AS NOT MADE ANY COMMENTS WHATSOEVER REGARDING REGD. VALUERS VALUAT ION REPORT SUBMITTED BY THE APPELLANT ON THE BASIS OF WHICH RATE OF RS.2 ,500/- PER SQ. MT. BEEN TAKEN NOR THE FACT OF DISTINCTION BETWEEN THE APPEL LANTS PROPERTY IN NATURE, LOCATION, SIZE ETC. VIS--VIS OTHER PROPERTIES BEEN DISPUTED BY THE A.O. IT IS A CONFIRMED FACT THAT DURING YEAR 1980-81 AS PER RECO RDS OF SUB-REGISTRAR, GWALIOR, THERE WERE NO PRESCRIBED GUIDELINES IN PLA CE TO DETERMINE FAIR MARKET VALUE OF PROPERTIES IN QUESTION. THIS IS EVI DENT FROM REPLY DT. 01.05.2012 ISSUED BY SUB-REGISTRAR IN RESPONSE TO R TI APPLICATION DT. 07.04.2012 FILED BY APPELLANTS AR. FURTHER, VIDE L ETTER DATED 26.12.2011. O/O. SUB REGISTRAR HAS ONLY SENT PHOTOCOPY OF INDEX REGISTER MAINTAINED BY THEM IN RESPECT OF SOME PROPERTIES SOLD DURING THE YEAR 1981-82 GIVING DETAILS LIKE BRIEF DESCRIPTION OF THE PROPERTY, ITS ADDRESS, AREA AND SALE VALUE ITA NO. 91/AGRA/2014 7 ETC. A.O. HAS RELIED HEAVILY AND SOLELY ON THIS INF ORMATION WITHOUT BRINGING ANY ADVERSE MATERIAL ON RECORD BEFORE REJECTING APP ELLANTS SUBMISSIONS. THE QUOTED PROPERTY TRANSACTIONS ARE ONLY MUTUALLY AGREED UPON VALUATION OF CONCERNED BUT DIFFERENT AND DISTINCT PROPERTIES VIS--VIS APPELLANTS COMMERCIAL PROPERTIES, AS DETERMINED BY RESPECTIVE BUYERS AND SELLERS. THESE ARE NOT EVEN RATES FIXED BY REGISTERING AUTHO RITY FOR PURPOSE OF STAMP VALUE FIXATION AS IS EVIDENT FROM HUGE VARIATION IN THE PRICES (FROM RS.11.50 TO 347.20 PER SQ. MT.) IT IS A SETTLED LEGAL POSITI ON THAT RATES FIXED FOR COLLECTION OF STAMP DUTY CANNOT BE EQUATED AS FMV. THERE IS NO PROVISION UNDER THE CHAPTER RELATING TO CAPITAL GAINS WHICH S TATES THAT CIRCLE RATE SHALL BE TREATED AS COST OF ACQUISITION. IT HAS BEEN HELD BY JURISDICTIONAL HONBLE ITAT, AGRA IN CASE OF PYARE MOHAN MATHUR HUF VS. IT O IN ITA NO.471/AGRA/2009 THAT CIRCLE RATES ARE NOTIFIED BY THE STATE GOVERNMENT FOR LEVY OF STAMP DUTY FOR REGISTRATION OF SALE DEEDS. THE CIRCLE RATES ARE DEEMED TO BE FULL VALUE OF CONSIDERATION RECEIVED OR ACCRU ING AS A RESULT OF TRANSFER U/S 50C. BUT THIS SECTION NOWHERE STATES THAT CIRCL E RATES AS NOTIFIED WILL BE THE FAIR MARKET VALUE. THE TRIBUNAL HELD THAT IN VI EW OF THE PROVISIONS OF SECTION 55A ONCE THE ASSESSEE HAS SUBMITTED THE NEC ESSARY EVIDENCE BY WAY OF VALUATION REPORT MADE BY THE REGISTERED VALUER, THE ONUS GETS SHIFTED ON THE AO TO CONTRADICT THE REPORT OF THE REGISTERED V ALUER. THE REGISTERED VALUATION OFFICER IS A TECHNICAL EXPERT AND THE OPI NION OF AN EXPERT CANNOT BE THROWN OUT WITHOUT BRINGING ANY MATERIAL TO THE CON TRARY ON RECORD. IN CASE A.O. IS NOT AGREEABLE WITH THE REPORT OF THE REGIST ERED VALUER, HE IS DUTY BOUND TO REFER THE MATTER TO THE DVO FOR DETERMININ G THE FAIR MARKET VALUE OF THE LAND AS ON 01.04.1981 WHICH HE FAILED TO DO SO. FURTHER, LOCATIONAL POSITION OF LAND CREATED THE FMV DIFFERENCE FROM OT HERS. SECTION 55(2)(B) OF THE IT ACT ALLOWS AN OPTION TO THE APPELLANT TO AD OPT THE FMV OF THE PROPERTY AS ON 01.04.1981. THE EVIDENCE GIVEN BY TH E APPELLANT SHOWING HIS ADVANTAGEOUS POSITION VIS--VIS OTHER PROPERTIES SO LD DURING THE YEAR HAS NOT BEEN CHALLENGED BY THE A.O. TO BE LACKING IN BO NAFIDES. A.O. HAS NOT MADE ANY ADVERSE COMMENTS ON THE VALUATION REPORT O F REGISTERED VALUER NOR HAS REFERRED THE MATTER TO THE DVO, IF REGISTERED V ALUER REPORT SUBMITTED BY THE APPELLANT IS NOT FOUND ACCEPTABLE, DESPITE THER E BEING A SPECIFIC REQUEST MADE BY THE APPELLANT DURING THE COURSE OF ASSESSME NT PROCEEDINGS. IN VIEW OF FACTS ABOVE AND AFTER PERUSAL OF SUBMISS ION AND RECORDS, A.O. IS NOT FOUND JUSTIFIED IN MAKING ADDITION TO L ONG TERM CAPITAL GAIN AS PER AVERAGE COST OF ACQUISITION DETERMINED AS PER S UB-REGISTRAR INFORMATION ONLY BASED ON PURCHASE/SALE OF SOME DISTINGUISHABLE PROPERTIES DURING THE YEAR 1981-82. ACCORDINGLY, THE SAME IS, HEREBY, DEL ETED. ITA NO. 91/AGRA/2014 8 5. THE SECOND GROUND OF APPEAL IS AGAINST THE ORDER OF CIT(A) CORRECTING THE TYPOGRAPHICAL MISTAKE. 6. NONE WAS PRESENT ON BEHALF OF THE ASSESSEE. 7. WE HAVE HEARD THE LD. DEPARTMENTAL REPRESENTATIV E AND PROCEED TO DECIDE THE APPEAL ON MERIT. 8. AS REGARDS THE FIRST GROUND OF APPEAL, WE NOTICE THAT THE CIT(A) HAS RIGHTLY DELETED THE ADDITION AFTER A DETAILED DISCU SSION. THE CIT(A) HAS FOLLOWED THE ORDER OF I.T.A.T., AGRA BENCH IN THE C ASE OF PYARE MOHAN MATHUR HUF VS. ITO IN ITA NO.471/AGRA/2009. THE CIT (A) HAS RIGHTLY HELD THAT THE A.O. WAS NOT CORRECT IN MAKING THE ADDITIO N OF LONG TERM CAPITAL GAIN AS PER AVERAGE COST OF ACQUISITION DETERMINED AS PER SUB-REGISTRAR INFORMATION. THE REVENUE HAS FAILED TO POINT OUT AN Y CONTRARY MATERIAL TO THE FINDING OF CIT(A). IN THE LIGHT OF THE FACT, WE CONFIRM THE ORDER OF CIT(A) ON THE ISSUE. 5.3 THIS ORDER OF HONBLE ITAT, AGRA IN CASE OF SHR I MADAN MOHAN CHHAPARWAL HAS ALSO BEEN UPHELD BY HONBLE MP HIGH COURT, GWALIOR BENCH IN ITA NO.31/2013 VIDE ORDER DTD. 30.12.2013. 5.4 THE FACTS OF APPELLANTS CASE ARE FOUND COVERED BY ABOVE MENTIONED DECISIONS OF VARIOUS HIGHER JUDICIAL AUTHORITIES. A CCORDINGLY, A.O. IS NOT FOUND JUSTIFIED IN MAKING THE IMPUGNED ADDITION OF LTCG AS PER AVERAGE COST OF ACQUISITION DETERMINED ON THE SOLE BASIS OF SUB-REGISTRAR INFORMATION PERTAINING TO DISTINGUISHABLE PROPERTIES DISCARDING THE VALUATION OF LAND AS ON 01.04.1981, AS ADOPTED BY THE APPELLANT, BASED O N THE VALUATION REPORT OF THE REGISTERED VALUER IN ABSENCE OF ANY CONTRARY MA TERIAL INCLUDING DVO REPORT ON RECORD. A.O. IS, THEREFORE, DIRECTED TO C OMPUTE LTCG ON THE BASIS OF FMV OF RS.6,40,000/- AS ON 01.04.1981 AS ADOPTED BY THE APPELLANT. 5.5 FURTHER, THE APPELLANT ITSELF HAS TAKEN THE FUL L VALUE OF CONSIDERATION, AS ASSESSED BY THE STAMP VALUATION AUTHORITY, IN VI EW OF PROVISIONS OF SECTION 50C OF THE IT ACT. THE SAME IS ALSO FOUND D ULY INVESTED IN SPECIFIED BONDS, WHICH FACT HAS ALSO NOT BEEN DISPUTED BY THE A.O. EITHER. THUS, THE APPELLANT IS FOUND ELIGIBLE FOR EXEMPTION U/S54EC O F THE IT ACT IN RESPECT OF LTCG EARNED AND AS DECLARED BY IT IN VIEW OF DECISI ON IN CASE OF GYAN CHAND BATRA VS ITO (2010) 45 DTR (JP) (TRIB)41: CIT VS CHANDNI BHUCHAR (2010) 34 DTR (P&H) 137; AND MRS. NILA V. SHAH VS C IT (2012) 21 TAXMANN.COM 324 (MUB.TRIB). ITA NO. 91/AGRA/2014 9 5.6 KEEPING IN VIEW THE ENTIRE MATERIAL ON RECORD, ADDITION OF RS.36,87,340/- MADE TO THE APPELLANTS TOTAL INCOME BY THE A.O. IN RESPECT OF LTCG IS NOT FOUND SUSTAINABLE AND, ACCORDINGLY, DEL ETED. 6. IN THE RESULT, APPEAL IS ALLOWED. 5. THE LD. DR SUBMITTED THAT THE INDEXED COST OF AC QUISITION TAKEN BY THE AO AS ON 01.04.1981 ON AVERAGE SALE VALUE WAS CORRECT MET HOD. THEREFORE, THE ADDITION SHOULD NOT BE DELETED. ON THE OTHER HAND, THE LD. C OUNSEL FOR THE ASSESSEE REITERATED THE SUBMISSIONS MADE BEFORE THE AUTHORITIES BELOW A ND REFERRED TO VALUATION REPORT AND COMPUTATION OF INCOME AND SUBMITTED THAT AVERAG E SALE VALUE AS ON 01.04.1981 WAS NOT FOUND CORRECT BY ITAT, AGRA BENCH IN THE CA SE OF MADAN MOHAN CHHAPARWAL (SUPRA) AND OTHER DECISIONS REFERRED TO IN THIS CASE. HE HAS SUBMITTED THAT THIS DECISION IS CONFIRMED BY HONBLE JURISDIC TIONAL M.P. HIGH COURT IN INCOME-TAX APPEAL NO. 31/13 VIDE ORDER DATED 18.11. 2013, COPIES OF THE SAME ORDERS ARE FILED IN THE PAPER BOOK FROM PAGES 81 TO 87 AND OTHER DECISIONS ARE ALSO FILED IN THE PAPER BOOK. 6. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND THE MATERIAL ON RECORD. THE ASSESSEE HAS CLAIMED 4/5 TH SHARE IN THE PROPERTY. THE TOTAL SALE CONSIDERATIO N WAS RS.40 LACS AND THE SHARE OF ASSESSEE COMES TO RS.32 LACS AND ADMITTEDLY, THE ASSESSEE MADE INVESTMENT OF RS.30 LACS IN SPECIFIED BONDS. THE AO COMPUTED THE LONG TERM CAPITAL GAIN BY TAKING SALE CONSIDERATION AS PER STAMP DUTY AT ITA NO. 91/AGRA/2014 10 RS.84,00,000/- AND THE SHARE OF ASSESSEE AT 4/5 TH COMES TO RS.67,20,000/-. THE ASSESSEE IN THE COMPUTATION OF INCOME FILED WITH RE TURN OF INCOME HAS ALSO DISCLOSED SALE VALUE U/S. 50C AT RS.67,20,000/- FOR THE PURPOSE OF COMPUTATION OF LONG TERM CAPITAL GAINS. THE AO ALSO GAVE BENEFIT O F INVESTMENT MADE IN SPECIFIED BONDS AS WAS CLAIMED BY THE ASSESSEE. THE ONLY DISP UTE WAS OF INDEXED COST OF ACQUISITION OF LAND IN QUESTION AS ON 01.04.1981. T HE ASSESSEE CLAIMED THE SAME VALUATION AT RS.37,24,800/- AND THE AO GAVE BENEFIT OF RS.32660/-. THE AO TOOK THE AVERAGE SALE VALUE AT RS.1.67 PER SQ. METER AND THE ASSESSEE CLAIMED AT RS.6,40,000/- AS PER REPORT OF THE REGISTERED VALUE R, IN WHICH THE VALUATION AS ON 01.04.1981 WAS REPORTED AT RS.190/- PER SQ. METER. THE LD. CIT(A) HAS GIVEN REFERENCE OF THE INFORMATION GIVEN BY SUB-REGISTRAR IN HIS FINDINGS AS REPRODUCED ABOVE AND ON PERUSAL OF THE SAME INSTANCE, IT IS CL EAR THAT NO SPECIFIC INFORMATION WAS PROVIDED. THEREFORE, THE SAME INSTANCE HAVE BEE N CORRECTLY NOT FOUND TO BE COMPARABLE INSTANCE. THE REPORT OF REGISTERED VALUE R WAS NOT DISPUTED THROUGH ANY RELIABLE AND COGENT EVIDENCE ON RECORD. THE VALUE O F LAND DEPENDS UPON VARIOUS FACTORS LIKE DEVELOPMENT OF AREA, TIME OF TRANSACTI ON, LOCATION, SIZE AND SURROUNDINGS ETC. THE AVERAGE COST OF ACQUISITION D ETERMINED AS PER INFORMATION FROM OFFICE OF SUB-REGISTRAR WAS NOT FOUND CORRECT BY ITAT, AGRA BENCH IN THE CASE OF MADAN MOHAN CHHAPARWAL (SUPRA). THE SAID DE CISION HAS BEEN CONFIRMED BY HONBLE JURISDICTIONAL M.P. HIGH COURT VIDE THEI R JUDGMENT DATED 18.11.2013. THE TRIBUNAL IS, THEREFORE, BOUND TO FOLLOW THE DEC ISION OF CO-ORDINATE BENCHES ITA NO. 91/AGRA/2014 11 AND ALSO BOUND TO FOLLOW THE DECISION OF JURISDICTI ONAL HIGH COURT. THE OTHER DECISIONS CITED BY THE LD. COUNSEL FOR THE ASSESSEE ALSO SUPPORT THE CASE OF ASSESSEE. THE LD. CIT(A) WAS, THEREFORE, JUSTIFIED IN DECIDIN G THE ISSUE IN FAVOUR OF THE ASSESSEE. THE AO HAS ALSO NOT DISPUTED BEFORE THE L D. CIT(A) THAT AFTER SALE OF PROPERTY IN QUESTION, THE ASSESSEE MADE INVESTMENT IN SPECIFIED BONDS. THEREFORE, THE ASSESSEE WOULD BE ELIGIBLE FOR EXEMPTION U/S. 5 4 EC. THE VIEW OF THE LD. CIT(A) IS SUPPORTED BY SEVERAL DECISIONS QUOTED IN THE IMPUGNED ORDER IN WHICH THE LD. DR HAS NOT BEEN ABLE TO POINT OUT ANY DISTI NGUISHABLE FACT. IN VIEW OF THE ABOVE DISCUSSION, WE ARE OF THE VIEW, THE LD. CIT(A ) HAS CORRECTLY DELETED THE ADDITION IN THE MATTER. THE DEPARTMENTAL APPEAL FAI LS AND IS DISMISSED. 7. IN THE RESULT, THE DEPARTMENTAL APPEAL IS DISMIS SED. ORDER PRONOUNCED IN THE OPEN COURT. SD/- SD/- (PRAMOD KUMAR) (BHAVNESH SAINI) ACCOUNTANT MEMBER JUDICIAL MEMBER *AKS/- COPY OF THE ORDER FORWARDED TO : 1. APPELLANT 2. RESPONDENT 3. CIT(A), CONCERNED BY ORDER 4. CIT, CONCERNED 5. DR, ITAT, AGRA 6. GUARD FILE SR. PRIVATE SECRETARY TRUE COPY