M/s. A.Rathanasabapathi, S/o. (Late) M.Arthanari Chettiar, Erode V. DCIT, Coimbatore

ITSSA 23/CHNY/2011

• Counselvise Citation: [2012] 121 COUNSELVISE.COM (IT) 8520 (ITAT-CHENNAI)
• Duration Of Justice: 11 month(s) 17 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 10-10-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 04-10-2012
• Assessment Year: misc
• Appeal Filed On: 24-10-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DR S MOHARANA
• Keywords: Question of law; Cost of acquisition; Fair market value; Valuation report; Block assessment
• Section: 80C; 143(3); 54F; 234B; 132

Judgement Text

IN THE INCOME-TAX APPELLATE TRIBUNAL B BENCH, CHENNAI. BEFORE SHRI N.S. SAINI, ACCOUNTANT MEMBER & SHRI S.S. GODARA, JUDICIAL MEMBER I.T.(SS)A. NO.23/MDS/2011 BLOCK ASSESSMENT PERIOD: 1996-97 TO 2002-03 SHRI A. RATHANASABAPATHI, S/O (LATE) M. ARTHANARI CHETTIAR, 77/2, AVVAYAR STREET, TEACHERS COLONY, ERODE 638 011. [PAN:AAFHA8267C] VS. THE DEPUTY COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE IV, COIMBATORE. (APPELLANT) (RESPONDENT) I.T.A. NO. 1732/MDS/2011 ASSESSMENT YEAR : 2008-09 A. RATHANASABAPATHI (HUF) 77/2, AVVAYAR STREET, TEACHERS COLONY, ERODE 638 011 VS. THE ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE I, COIMBATORE. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI S. SRIDHAR, ADVOCATE (ADYAR) (WITHOUT VAKALATH) RESPONDENT BY : DR. S. MOHARANA, CIT DR DATE OF HEARING : 04.10.2012 DATE OF PRONOUNCEMENT : 10.10.2012 ORDER PER S.S. GODARA, JUDICIAL MEMBER I.T.(SS)A. NO.23/MDS/2011 THIS ASSESSEES APPEAL IS DIRECTED AGAINST THE ORD ER OF THE COMMISSIONER OF INCOME TAX (APPEALS) II, COIMBATORE DATED 29.07.2011 IN I.T. I.T. I.T. I.T.(SS) (SS) (SS) (SS)A. A.A. A. NO. NO. NO. NO.2 22 23 33 3/M/ /M/ /M/ /M/11 & 11 & 11 & 11 & I.T.A. NO. 1732/M/12 I.T.A. NO. 1732/M/12 I.T.A. NO. 1732/M/12 I.T.A. NO. 1732/M/12 2 ITA NO. 386C/09-10 FOR THE BLOCK ASSESSMENT PERIOD 1996-97 TO 2002-03 IN PROCEEDINGS UNDER SECTION 158BD R.W.S. 158BC & 144 OF THE INCOME TAX ACT 1961 [IN SHORT THE ACT]. 2. BRIEF FACTS OF THE CASE ARE THAT ON 06.03.2002, A SEARCH WAS CONDUCTED UNDER SECTION 132 OF THE ACT QUA ONE DR . D. KANDASAMY, ERODE. THE ASSESSEE AND HIS FAMILY MEMBERS HAD ENTERED INT O A SALE TRANSACTION OF A PIECE OF VACANT LAND, WHICH WAS SOLD TO THE SAID DR. KANDASAMY AND HIS FAMILY MEMBERS. A SEARCH HAD ALSO BEEN CONDUCTED IN THE PREMISES OF THE PRESENT ASSESSEE BEFORE US ON THE VERY SAME DAY LEA DING TO SEIZURE OF BOOKS OF ACCOUNTS AND OTHER DOCUMENTS. SOME OF THE SAID MATERIALS PERTAINED TO THE ORIGINAL ASSESSEE NAMELY SHRI M. A RTHANARI CHETTIAR, WHO HAD DIED ON 18.07.2001. THE ASSESSING OFFICER INVOK ED SECTION 158BD AND ISSUED NOTICE TO THE ASSESSEE ON 10.03.2005. IN VIE W OF THE FACT THAT THE ORIGINAL ASSESSEE NAMELY SHRI M. ARTHANARI CHETTIAR HAD EXPIRED (SUPRA), THE ASSESSING OFFICER ISSUED FURTHER NOTICE TO HIS SON (THE PRESENT ASSESSEE). THE ASSESSEE DID NOT FILE ANY BLOCK RETURN OF INCOM E. THE ASSESSING OFFICER ISSUED ANOTHER NOTICE. A PERUSAL OF THE RECORD REVE ALS THAT THEREAFTER ALSO, THE ASSESSING OFFICER ISSUED LETTERS TO THE ASSESSE E. 3. SINCE THERE WAS NO RESPONSE FROM THE ASSESSEES SIDE, THE ASSESSING OFFICER PROCEEDED UNDER SECTION 144 OF THE ACT AN D RESORTED TO EXPARTE ASSESSMENT PROCEEDINGS, WHICH WERE COMPLETED ON 22. 12.2006. IN THE SAID I.T. I.T. I.T. I.T.(SS) (SS) (SS) (SS)A. A.A. A. NO. NO. NO. NO.2 22 23 33 3/M/ /M/ /M/ /M/11 & 11 & 11 & 11 & I.T.A. NO. 1732/M/12 I.T.A. NO. 1732/M/12 I.T.A. NO. 1732/M/12 I.T.A. NO. 1732/M/12 3 ASSESSMENT, THE ASSESSING OFFICER CAME TO THE CONCL USION THAT THE ASSESSEE, THE ORIGINAL ASSESSEE AND OTHER FAMILY ME MBERS HAD SOLD PROPERTY TO DR. KANDASAMY (SUPRA). THE ASSESSING OF FICER THEREAFTER SUMMARIZED THE DETAILS AS PER THE RECORD SEIZED AS UNDER: S. NO. NAME OF THE SELLER EXTENT OF LAND SQ.FT. COST AS PER REGD. DOCUMENT ACTUAL COST SOLD DIFFERENCE 1. A. RATHINASABAPATHI 1,742 1,74,200 10,53,910 8,79,710 2. ARTHANARI CHETTIAR 1,637 1,63,700 9,90,385 8,26,685 3. SMT. SALAIMAYILKODI 4,110 4,11,000 24,86,550 20,75,550 4. SMT. SIVAKAMI RAMESH 4,107 4,10,700 24,84,735 20,74,035 TOTAL 11,596 11,59,600 70,15,580 58,55,980 IN THE LIGHT THEREOF, THE ASSESSING OFFICER CAME TO THE CONCLUSION THAT THERE HAD BEEN AN UNDISCLOSED INCOME OF ` .8,26,685/-, THEREFORE, THE SAME WAS INCLUDED IN THE BLOCK PERIOD AS DETAILED HEREIN BEL OW: SALE CONSIDERATION FOR THE SALE OF LAND MEASURING 1637 SFT @ ` .605/- PER SFT. 990,385 LESS: SALE CONSIDERATION AS PER DEED 163,700 BALANCE TREATED AS UNDISCLOSED INCOME 826,685 ASSESSED INCOME 826,690 IN THIS MANNER, THE ASSESSING OFFICER FINALIZED ASS ESSMENT UNDER SECTION 158BD R.W.S. 158BC R.W.S. 144 OF THE ACT. 4. AGGRIEVED, THE ASSESSEE PREFERRED AN APPEAL BEF ORE THE CIT(A), WHEREIN, THE ASSESSING OFFICERS FINDING STOOD CONF IRMED VIDE ORDER DATED 29.06.2007. THE ASSESSEE, THEREAFTER, FILED AN APPE AL IN I.T(SS).A. NO. 143/MDS/2007 BEFORE THIS TRIBUNAL. IT IS NOTICED TH AT THE SAME WAS DISPOSED OFF ON 13.07.2009, WHEREIN, THE ASSESSING OFFICERS ORDER WAS CONFIRMED ON I.T. I.T. I.T. I.T.(SS) (SS) (SS) (SS)A. A.A. A. NO. NO. NO. NO.2 22 23 33 3/M/ /M/ /M/ /M/11 & 11 & 11 & 11 & I.T.A. NO. 1732/M/12 I.T.A. NO. 1732/M/12 I.T.A. NO. 1732/M/12 I.T.A. NO. 1732/M/12 4 MERITS. AT THE SAME TIME, THE COORDINATE BENCH REST ORED THE ISSUE OF LEGAL HEIRSHIP OF THE ORIGINAL ASSESSEE NAMELY SHRI ARTHA NARI CHETTIAR BACK TO THE FILE OF THE CIT(A), WHILE TREATING THE SAME AS A PU RELY LEGAL PLEA. THE RELEVANT PORTION OF THE ORDER DATED 13.07.2009 PASSED BY COO RDINATE BENCH IS REPRODUCED HEREIN BELOW: 7. WE HAVE HEARD BOTH THE SIDES AND CONSIDERED TH E MATERIAL ON RECORD AS WELL AS PRECEDENTS RELIED UPON AND FIND T HAT THE LD.CIT(A) UPHELD THE ORDER OF THE ASSESSING OFFICER BY CONCLU DING AS UNDER: 3. I HAVE CONSIDERED THE ARGUMENTS OF THE APPELLA NT AND THE REMAND REPORT SUBMITTED BY THE AO. SRI RATHINASABAP ATHI IS UNDER MISTAKEN BELIEF THAT ASSESSMENT IS MADE ON HI M. AS SRI M. ARTHANARI CHETTIAR WAS ALIVE AT THE TIME OF THE SAL E, THE INCOME ARISES TO HIM ONLY. ACTUALLY ASSESSMENT HAS ALSO BE EN MADE IN THE CASE OF LATE M. ARTHANARI (INDIVIDUAL) ONLY. HOWEVE R, AS AT THE TIME OF ISSUE OF NOTICE, HE WAS NOT ALIVE, NOTICE H AS TO BE SERVED TO THE LEGAL HEIR. SRI RATHINASABAPATHI BEING SON IS A UTOMATICALLY HELD BY AO AS LEGAL HEIR AND ACCORDINGLY, NOTICE HA S BEEN ISSUED TO HIM. BUT AT THE COST OF REPETITION AGAIN IT IS C LARIFIED THAT THE ASSESSMENT ORDER HAS BEEN MADE ONLY IN THE HANDS OF LATE SRI M. ARTHANARI CHETTIAR (INDIVIDUAL). THE CLAIM MADE IN THE APPEAL THAT SMT. SEETHALAKSHMI IS LEGAL HEIR OF LATE SRI A RTHANARI CHETTIAR HUF WITH REFERENCE TO THIS PROPERTY IS NOT CORRECT AS IS EVIDENCED FROM THE COPY OF PARTITION DEED SUBMITTED DURING APPELLATE PROCEEDINGS. (TRANSLATED COPY) IT IS SEEN THAT IN FINAL DECREE NO PROPERTY HAS BEEN GIVEN TO HUF. THE PROPE RTY HAS BEEN GIVEN TO INDIVIDUALS ONLY. IT IS AGAIN WORTH M ENTIONING THAT THE PROPERTY IS NOT SELF ACQUIRED PROPERTY OF SRI A RTHANARI CHETTIAR BUT ANCESTRAL PROPERTY. THEREFORE ON HIS D EATH AS PER HINDU LAW, HIS SON, WIFE AND DAUGHTERS, ALL WILL BE COME JOINTLY LEGAL HEIRS FOR THIS PROPERTY. EVEN IN THE SALE DEE D THE PROPERTY IS NOT SHOWN AS OWNED BY HUF BUT BY SRI M. ARTHANARI C HETTIAR (INDIVIDUAL) ONLY. THEREFORE THE CLAIM OF HUF BEING OWNER OF THE PROPERTY IS NOT EVIDENCED AND THEREFORE REJECTED. T HUS THERE IS NOTHING WRONG IN THE ACTION OF THE AO IN ISSUING NO TICE TO SRI A. RATHINASABAPATHI, SON OF THE LATE SRI ARTHANARI CHE TTIAR AND ACCORDINGLY THE ASSESSMENT ORDER PASSED IS ALSO HEL D A VALID ASSESSMENT ORDER. I.T. I.T. I.T. I.T.(SS) (SS) (SS) (SS)A. A.A. A. NO. NO. NO. NO.2 22 23 33 3/M/ /M/ /M/ /M/11 & 11 & 11 & 11 & I.T.A. NO. 1732/M/12 I.T.A. NO. 1732/M/12 I.T.A. NO. 1732/M/12 I.T.A. NO. 1732/M/12 5 3.1 COMING TO THE QUANTUM OF THE UNDISCLOSED INCOME , IT IS NOTICED THAT THE AO HAS CONSIDERED ONLY THE DIFFERE NCE BETWEEN THE ACTUAL SALE CONSIDERATION AND DOCUMENT PRICE AS UNDISCLOSED INCOME. THIS WORKING IN MY VIEW IS NOT CORRECT, AS RETURN OF INCOME WAS NOT FILED BEFORE THE DATE OF SEARCH THOU GH THE DUE DATE FOR FILING THE RETURN OF INCOME UNDER SECTION 139(1) WAS ALREADY EXPIRED. AS MENTIONED BY THE AO HIMSELF IT IS NOT EVIDENCED WHETHER THE TRANSACTION AT ALL I.E. EVEN THE PRICE AS PER DOCUMENT IS RECORDED IN THE REGULAR BOOKS OF ACCOUN TS OR DOCUMENTS MAINTAINED IN NORMAL COURSE OR NOT. THERE FORE ENTIRE CAPITAL GAIN INCOME ARISING OUT OF THIS TRANSACTION WILL BE TREATED AS UNDISCLOSED INCOME. THE AO IS THEREFORE DIRECTED TO REWORK CAPITAL GAINS CONSIDERING THE TOTAL CONSIDERATION A S ADOPTED BY HIM WHICH IS NOT UNDER DISPUTE. 4. THIS APPEAL IS DISPOSED OF ACCORDINGLY AND FOR STATISTICAL PURPOSES THE APPEAL IS TREATED AS DISMISSED. 7.1 SINCE PROPERTY HAS BEEN SOLD BY THE DECEASED AS SESSEE IN INDIVIDUAL CAPACITY WITHOUT MENTIONING ANYTHING ABO UT HUF OR SIGNING THE SALE DEED IN REPRESENTATIVE CAPACITY, SO WE ARE OF THE VIEW THAT THE ASSESSMENT HAS RIGHTLY BEEN FRAMED IN THE INDIVIDUA L CAPACITY. SO ACTION OF THE AUTHORITIES BELOW TO THIS EXTENT IS UPHELD. 8. AS REGARDS, THE ALTERNATIVE PLEA OF THE ASSESSE ES COUNSEL ABOUT NOT SERVING ALL THE L/H BEFORE PROCEEDING WITH THE ASSESSMENT IS CONCERNED, WE FIND THAT THIS PLEA HAS BEEN TAKEN BE FORE US FOR THE FIRST TIME AND SINCE IT IS A LEGAL PLEA AND LD. CIT(A) HA D NO OCCASION TO CONSIDER SUCH PLEA/ASPECT, THEREFORE, IN THE INTERE ST OF JUSTICE AND TO HAVE FAIR PLAY IN THE MATTER, WE THINK IT JUST AND APPRO PRIATE TO SET ASIDE THE ORDER OF THE LD. CIT(A) AND RESTORE BACK THE MATTER ON HIS FILE WITH THE DIRECTION TO LOOK INTO THIS ASPECT AFTER DUE OPPORT UNITY TO THE ASSESSEE AS WELL AS ASSESSING OFFICER. WE HOLD AND DIRECT ACCOR DINGLY. 9. IN THE RESULT, APPEAL OF THE ASSESSEE GETS PART LY ACCEPTED FOR STATISTICAL PURPOSE. IN THIS MANNER, ON THE LEGAL PLEA RAISED BY THE AS SESSEE, FOR THE FIRST TIME BEFORE THIS TRIBUNAL, THE MATTER WAS REMITTED BACK TO THE LOWER APPELLATE I.T. I.T. I.T. I.T.(SS) (SS) (SS) (SS)A. A.A. A. NO. NO. NO. NO.2 22 23 33 3/M/ /M/ /M/ /M/11 & 11 & 11 & 11 & I.T.A. NO. 1732/M/12 I.T.A. NO. 1732/M/12 I.T.A. NO. 1732/M/12 I.T.A. NO. 1732/M/12 6 AUTHORITY. WE FIND THAT IT IS IN FURTHERANCE TO THE DECISION OF THE COORDINATE BENCH REPRODUCED ABOVE THAT THE CIT(A) HAS DECIDED THE ASSESSEES PLEA (SUPRA) AS UNDER: I HAVE GONE THROUGH THE FACTS OF THE CASE, SUBMISS IONS OF THE ASSESSEE AND THE CASE LAWS RELIED UPON BY THE ASSESSEE. THE MAIN PLEA RAISED BY THE ASSESSEE BEFORE THE HONBLE ITAT IS THAT THE HE ARING NOTICES SERVED DURING THE COURSE OF ASSESSMENT WERE NOT SENT TO AL L THE LEGAL REPRESENTATIVES OF LATE ARTHANARI CHETTIAR AND THAT IT HAD BEEN SERVED ONLY ON THE APPELLANT. THIS CASE HAS BEEN REMANDED TO THE FILE OF CIT(APPEALS) ONLY ON THIS ISSUE. 7. AT THE OUTSET, IT IS VERY CLEAR THAT THE APPELL ANT HAS WILFULLY ABSTAINED FROM ATTENDING THE HEARING IN RESPONSE TO VARIOUS NOTICES ISSUED BY THE ASSESSING OFFICER. THE APPELLANT HAD BEEN SERVED WITH NOTICE ON 14.09.2006 AND AGAIN ON 10.10.2006. AGAIN FINALLY AN OPPORTUNITY WAS GIVEN TO THE APPELLANT TO APPEAR BE FORE THE ASSESSING OFFICER ON 06.11.2006 WHICH HAD BEEN SERVED ON THE ASSESSEE ON 31.10.2006 ITSELF. BUT THERE HAD BEEN NO RESPONSE F ROM THE APPELLANT FOR THE NOTICE SENT FOR POSTING THE CASE GIVING A F INAL OPPORTUNITY TO THE APPELLANT. ONLY AFTER GIVING ADEQUATE OPPORTUNITY T O THE APPELLANT, THE ASSESSMENT HAD BEEN COMPLETED UNDER SECTION 158BC R .W.S.144 OF THE INCOME TAX ACT BY THE ASSESSING OFFICER. SUBSEQUENT LY, THE ASSESSEE WENT ON APPEAL BEFORE THE CIT(APPEALS), WHERE ALSO NO GROUND OF APPEAL HAD BEEN FILED PERTAINING TO THIS ISSUE OF N ON SERVICE OF NOTICE TO ALL THE LEGAL REPRESENTATIVES. LATER ON WHEN APPEAL WAS FILED BEFORE THE ITAT, THE ASSESSEE HAD FINALLY DECIDED TO TAKE AN A LTERNATE PLEA BEFORE THE TRIBUNAL THAT THE ASSESSING OFFICER HAD NOT ISS UED THE HEARING NOTICE TO ALL THE LEGAL REPRESENTATIVE. THIS CLEARL Y SHOWS THAT IT IS ONLY AN AFTERTHOUGHT OF THE ASSESSEE. SINCE THE OTHER GR OUND OF APPEAL REGARDING THE, ASSESSMENT TO BE MADE IN THE STATUS OF HUF WAS WEAK AND THEY WERE NOT SURE OF GETTING A REMEDY, THE APP ELLANT, TO BE ON THE SAFER SIDE, HAD RAISED THIS AS AN ALTERNATE PLEA, B EFORE THE HON'BLE TRIBUNAL. THE HON'BLE ITAT HAD UPHELD THE ACTION OF THE ASSESSING OFFICER IN ASSESSING THE INCOME IN THE CAPACITY OF INDIVIDUAL AND HAD REMANDED THE ALTERNATE PLEA TO THE FILE OF CIT(APPE ALS). 8. IN MY OPINION, IT IS A CLEAR CUT CASE. THE APPE LLANT, IF HE HAD WANTED TO RAISE THIS OBJECTION SHOULD HAVE DONE IT SO DURING THE COURSE OF ASSESSMENT ITSELF. LEAVE ALONE THE ASSESSMENT ST AGE, IT HAD NOT EVEN BE RAISED DURING THE COURSE OF FIRST APPELLANT PROC EEDINGS. NOW WHEN I.T. I.T. I.T. I.T.(SS) (SS) (SS) (SS)A. A.A. A. NO. NO. NO. NO.2 22 23 33 3/M/ /M/ /M/ /M/11 & 11 & 11 & 11 & I.T.A. NO. 1732/M/12 I.T.A. NO. 1732/M/12 I.T.A. NO. 1732/M/12 I.T.A. NO. 1732/M/12 7 THE MATTER HAD TRAVELLED UPTO ITAT AND COME BACK TO THE FILE OF CIT(APPEALS), THE APPELLANT SUBMITS THAT THE NOTICE OUGHT TO HAVE BEEN ISSUED TO ALL THE LEGAL HEIRS AND THAT HE IS NOT TH E ONLY HEIR. THE PROPER COURSE OF ACTION THEN THE ASSESSEE OUGHT TO HAVE TA KEN IS THAT THE ASSESSEE SHOULD HAVE FIRST AVAILED THE OPPORTUNITY GIVEN TO HIM BY THE ASSESSING OFFICER TO REPRESENT HIS CASE AS A LEGAL HEIR AND IF HE HAD ANY ARGUMENTS SUCH AS NOT SERVING NOTICE TO OTHER LEGAL HEIRS, HE SHOULD HAVE RAISED THE SAME BEFORE THE ASSESSING OFFICER. THEREFORE THERE IS NO MERIT IN THE ACTION OF THE ASSESSEE BY BRINGING FOR TH SUCH CLAIM AT THIS STAGE. FURTHER THE APPELLANT SUBMITS THAT SMT. SEET HALAKSHMI, WIFE OF THE DECEASED FILED RETURN OF INCOME VOLUNTARILY ON 21.03.2002 ADMITTING THE CAPITAL GAIN AND HENCE THE SAME HAD TO BE ASSES SED IN HER NAME. THE DATE OF SEARCH IS 06.03.2002 AND SMT. SEETHALAK SHMI HAD FILED THE RETURN OF INCOME DECLARING CAPITAL GAIN ON 21.03.20 02 I.E. 15 DAYS AFTER THE DATE OF SEARCH. HAD THE RETURN BEEN FILED VOLUN TARILY IMMEDIATELY AFTER THE DEATH OF HER HUSBAND DECLARING THE CAPITA L GAIN, THE QUESTION OF TAXING IN THE NORMAL RATE MIGHT HAVE COME IN TO PLAY. NOW FILING OF RETURN AFTER THE DATE OF SEARCH IS DEFINITELY A PLA NNED ACTION TO AVOID TAXATION AT HIGHER RATE. SO IN ALL ANGLES, THE GROU ND OF APPEAL FILED BY THE APPELLANT IS BASELESS. THE HON'BLE ALLAHABAD HI GH COURT IN THE CASE OF A.K.M. CIT VS. CHANDRA MOHAN VERMA REPORTED IN 244 ITR 430, ON A SIMILAR ISSUE RAISED BEFORE IT, HELD AS F OLLOWS: 'FROM A PERUSAL OF SECTION 159, IT WILL BE SEEN THA T A LEGAL REPRESENTATIVE HAS BEEN MADE LIABLE TO PAY ANY SUM WHICH THE DECEASED WOULD HAVE BEEN LIABLE TO PAY, IF HE HAD N OT DIED, IN THE LIKE MANNER AND TO THE SAME EXTENT AS THE DECEA SED AND ALL THE PROVISIONS OF THE ACT, HAVE BEEN MADE APPLICABL E IN SUCH A CASE. FURTHER THE LEGAL REPRESENTATIVE OF THE DECEA SED HAS BEEN TREATED AS A DEEMED ASSESSEE AND HAS BEEN MADE PERS ONALLY LIABLE FOR ANY TAX LIABILITY OF THE DECEASED TO THE EXTENT TO WHICH THE ESTATE OF THE DECEASED IS CAPABLE OF MEETING TH E LIABILITY. IT WAS FOUND THAT NEITHER THE ASSESSEE IN WHOSE NAM E THE ASSESSMENTS WERE MADE NOR ANY OTHER LEGAL REPRESENT ATIVE AND THE HEIRS OF THE DECEASED HAD EVER RAISED ANY OBJEC TION ABOUT NON-IMPLEADMENT OF ALL THE HEIRS AND THE LEGAL REPR ESENTATIVES BEFORE THE ITO DURING THE COURSE OF THE ASSESSMENT PROCEEDINGS. ON THE OTHER HAND, THE ASSESSEE COOPERATED WITH THE ASSESSING OFFICER IN MAKING THE ASSESSMENTS. THUS, FOR ALL PR ACTICAL PURPOSES HE REPRESENTED THE ESTATE OF THE DECEASED BEFORE THE ASSESSING OFFICER. ALL OTHER HEIRS AND LEGAL REPRES ENTATIVES OF THE DECEASED WILFULLY ABANDONED THE PLEA OF ABATEME NT AND I.T. I.T. I.T. I.T.(SS) (SS) (SS) (SS)A. A.A. A. NO. NO. NO. NO.2 22 23 33 3/M/ /M/ /M/ /M/11 & 11 & 11 & 11 & I.T.A. NO. 1732/M/12 I.T.A. NO. 1732/M/12 I.T.A. NO. 1732/M/12 I.T.A. NO. 1732/M/12 8 CHOSE TO BE GOVERNED BY THE ASSESSMENT ORDERS PASSE D BY THE ITO AND THE ASSESSMENT PROCEEDINGS WERE NOT A NULLI TY. THE ESTATE OF THE DECEASED, WAS SUFFICIENTLY REPRES ENTED BY THE ASSESSEE AND THE ASSESSMENTS FOR THE AFOREMENTIONED ASSESSMENT YEARS HAD RIGHTLY BEEN MADE IN THE NAME OF THE ASSE SSEE. THE TRIBUNAL HAD ERRED IN QUASHING THE SAID ASSESSMENTS THE FOLLOWING DECISIONS DELIVERED BY VARIOUS HIGH C OURTS ARE ALSO IN FAVOUR OF REVENUE ON THIS ISSUE. I) A.K.M. GOVINDASAMY CHETTIAR VS. ITO (244 ITR 55 9)(MAD) II) CIT VS. SMT. PUSHPA DEVI (132 TAXMAN 506)(RAJ) III) ITO VS. SHAHID ATIQ (89 ITD 489)(DELHI) IN VIEW O THE DETAILED DISCUSSION IN THE FOREGOING PARAGRAPHS AND FOLLOWING THE PRECEDENTS OF VARIOUS HIGH COURTS AND TRIBUNAL, I UPHOLD THE ACTION OF THE ASSESSING OFFICER AND DISMISS THI S GROUND OF APPEAL TAKEN BY THE APPELLANT. THE CASE LAWS RELIED ON BY THE ASSESSEE ARE NOT DIRECTLY ON THE ISSUE. IT IS IN THIS BACKGROUND OF THE FACTS THAT THE ASSE SSEE HAS FILED THE INSTANT APPEAL. 5. THE AR OF THE ASSESSEE, BEFORE US HAS REITERATE D THE SUBMISSIONS BASED ON VARIOUS PLEAS RAISED IN THE GROUNDS OF APP EAL AND SUBMITTED THAT THERE HAS NOT BEEN PROPER ADJUDICATION OF THE LEGAL ISSUE (SUPRA) AS DIRECTED BY THE COORDINATE BENCH VIDE ORDER DATED 13.07.2009 . TO ASSAIL THE CIT(A)S ORDER, HE HAS ALSO DRAWN OUR ATTENTION TO THE OBSER VATIONS OF THE CIT(A) AS REPRODUCED HEREIN ABOVE AND PRAYED FOR ACCEPTANCE O F THE APPEAL. 6. THE DR REPRESENTING THE REVENUE, ON THE OTHER H AND, HAS CHOSEN TO SUPPORT THE CIT(A)S ORDER AND PRAYED FOR UPHOLDING THE SAME. I.T. I.T. I.T. I.T.(SS) (SS) (SS) (SS)A. A.A. A. NO. NO. NO. NO.2 22 23 33 3/M/ /M/ /M/ /M/11 & 11 & 11 & 11 & I.T.A. NO. 1732/M/12 I.T.A. NO. 1732/M/12 I.T.A. NO. 1732/M/12 I.T.A. NO. 1732/M/12 9 7. WE HAVE CONSIDERED RIVAL SUBMISSIONS AT LENGTH AND ALSO PERUSED THE RELEVANT FINDINGS AS WELL AS THE ORDER OF THE COORD INATE BENCH. WE FIND THAT THE ISSUE IN HAND ON MERITS IS NO MORE RES INTEGRA. THIS IS SECOND ROUND OF LITIGATION. VIDE ORDER DATED 13.07.2009, THE COORDI NATE BENCH HAS ALREADY UPHELD THE ASSESSMENT ON MERITS. HOWEVER, ONLY QUA THE ALTERNATIVE PLEA RAISED BY THE ASSESSEES COUNSEL REGARDING NON-SERV ICE OF NOTICE TO ALL THE LEGAL HEIRS OF THE DECEASED ASSESSEE SHRI M. ARTHAN ARI CHETTIAR BEFORE FINALIZING ASSESSMENT, THE ISSUE HAD BEEN REMITTED BACK TO THE CIT(A). IT IS OBSERVED FROM THE CIT(A)S ORDER, UNDER CHALLENGE B EFORE US THAT DESPITE THE FACT THAT THE DIRECTION ISSUED BY THE COORDINATE BE NCH HAD ATTAINED FINALITY IN THE ABSENCE OF ANY CHALLENGE BY THE REVENUE. STILL THE ISSUE IN QUESTION HAS NOT BEEN PROPERLY APPRECIATED BY THE CIT(A). WE REI TERATE THAT THIS TRIBUNAL HAD ENTERTAINED THE ASSESSEES LEGAL PLEA, WHEREAS, THE CIT(A) HAS HELD THAT THE SAME PLEA IS WITHOUT ANY BASIS AND THE SAME SHO ULD HAVE BEEN RAISED IN THE ASSESSMENT PROCEEDINGS ITSELF. THIS, IN OUR CON SIDERED OPINION, IS SUBSTANTIVE NON-COMPLIANCE OF DIRECTIONS ISSUED BY THE COORDINATE BENCH. REFRAINING OURSELVES FROM COMMENTING FURTHER QUA TH E FINDINGS OF THE CIT(A), WE REITERATE THE SETTLED LAW THAT DIRECTION ISSUED BY A HIGHER FORUM ALIKE ITAT IS BINDING ON THE LOWER AUTHORITIES. ONCE THE RELEV ANT PLEA STANDS ENTERTAINED BY THE HIGHER FORUM AND THE ISSUE IS REMITTED BACK TO THE LOWER AUTHORITIES, THERE IS NO OTHER WAY OUT FOR THE LOWER AUTHORITIES EXCEPT TO DECIDE THE ISSUE I.T. I.T. I.T. I.T.(SS) (SS) (SS) (SS)A. A.A. A. NO. NO. NO. NO.2 22 23 33 3/M/ /M/ /M/ /M/11 & 11 & 11 & 11 & I.T.A. NO. 1732/M/12 I.T.A. NO. 1732/M/12 I.T.A. NO. 1732/M/12 I.T.A. NO. 1732/M/12 10 ON MERITS WITHOUT ADJUDICATING MAINTAINABILITY OF T HE PLEA. AS WE NOTICE FROM THE ORDER OF THE CIT(A), THE ASSESSEES VOLUMINOUS CASE LAW AND PLEAS RAISED THEREON HAVE NO WHERE BEEN CONSIDERED IN DET AIL BY GIVING REASONS. WE FAIL TO APPRECIATE THE COURSE ADOPTED BY THE CIT (A). IN VIEW OF OUR ABOVE OBSERVATIONS, TO ENSURE SUBSTANTIVE COMPLIANCE OF T HE ORDER DATED 13.07.2009, WE DEEM APPROPRIATE THE CIT(A) SHALL RE DECIDE THE ISSUE AFRESH IN ACCORDANCE WITH LAW AFTER AFFORDING ADEQUATE OPP ORTUNITY OF HEARING TO THE ASSESSEE. AT THE SAME TIME, WE ALSO DIRECT THE LD. CIT-DR TO ENSURE THAT THIS ORDER IS BROUGHT TO THE NOTICE OF THE CONCERNED CIT (A), WHO HAS PASSED THE IMPUGNED ORDER. 8. TO SUM UP, THE APPEAL STANDS ALLOWED FOR STATIS TICAL PURPOSE. I.T.A. NO. 1732/MDS/2011 9. IN THIS APPEAL, THE ASSESSEE HAS CHALLENGED THE ORDER OF CIT(A) I, COIMBATORE DATED 30.08.2011 PASSED IN APPEAL NO. 23 3/10-11 FOR THE ASSESSMENT YEAR 2008-09 IN PROCEEDINGS UNDER SECTIO N 143(3) OF THE INCOME TAX ACT 1961 [IN SHORT THE ACT]. 10. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE HUF HAD FILED ITS RETURN OF INCOME ON 13.06.2008 AND ADMITTED INCOME OF ` .63,35,250/-. IN THE PREVIOUS YEAR RELEVANT TO THE ASSESSMENT YEAR IN QUESTION, I T HAD SOLD ITS LAND AND BUILDING FOR A CONSIDERATION OF ` .2,59,25,000/-. ON THE BASIS OF THE SAME, THE I.T. I.T. I.T. I.T.(SS) (SS) (SS) (SS)A. A.A. A. NO. NO. NO. NO.2 22 23 33 3/M/ /M/ /M/ /M/11 & 11 & 11 & 11 & I.T.A. NO. 1732/M/12 I.T.A. NO. 1732/M/12 I.T.A. NO. 1732/M/12 I.T.A. NO. 1732/M/12 11 ASSESSEE HAD DECLARED CAPITAL GAINS OF ` .63,35,251/-. IN EXPLANATION, IN SUPPORT OF COMPUTATION OF CAPITAL GAINS BEFORE THE ASSESSING OFFICER, THE ASSESSEE ADOPTED COST OF ACQUISITION OF THE PROPERT Y SOLD AS ON 01.04.1981 @ ` .125/- PER SQ.FT. TO BUTTRESS ITS PLEA, THE ASSESSE E DREW SUPPORT FROM VALUATION REPORT QUA FAIR MARKET VALUE OF THE PROPE RTY SOLD, WHICH WAS PREPARED BY A CHARTERED ENGINEER CUM REGISTERED VAL UER. HOWEVER, VIDE ASSESSMENT ORDER DATED 30.12.2010, THE ASSESSING OF FICER NEGATED THE ASSESSEES EXPLANATION ON THE BASIS OF A REPORT SUB MITTED BY THE SUB- REGISTRAR OF THE CONCERNED LOCALITY STATING FAIR MA RKET VALUE OF THE ASSESSEES PROPERTY AS ON 01.04.1981 AT THE RATE OF ` .62.50 PER SQ.FT. ACCORDINGLY, THE ASSESSING OFFICER ADOPTED THE VALU E OF THE ASSESSEES PROPERTY AT THE RATE OF ` .62.50 PER SQ.FT. AND RECOMPUTED THE ASSESSEES INCOME FROM CAPITAL GAINS AS UNDER: INCOME FROM HOUSE PROPERTY ` . 34,790 INCOME FROM CAPITAL GAINS: LAND COST 17,772 SQ.FT. X ` .62.50/- = 10,73,250 X 551 100 ` . BUILDING VALUE: ` .10,00,000 = ` .10,00,000 X 551 100 ` . 55,10,000 ` . 1,14,23,608 LESS: SALE CONSIDERATION RECEIVED `. 2,59,25,000 GROSS CAPITAL GAINS `. 1,45,01,392 LESS: EXEMPTION U/S 54F INVESTMENT MADE ` .68,00,000 PROPORTIONATE EXEMPTION: ` .1,45,01,392 X ` .68,00,000 ` .2,59,25,000 `. 38,03,643 NET LONG TERM CAPITAL GAINS `. 1,06,97,749 ` . 1,06,97,749 INCOME FROM OTHER SOURCES AS RETURNED `. 38,910 I.T. I.T. I.T. I.T.(SS) (SS) (SS) (SS)A. A.A. A. NO. NO. NO. NO.2 22 23 33 3/M/ /M/ /M/ /M/11 & 11 & 11 & 11 & I.T.A. NO. 1732/M/12 I.T.A. NO. 1732/M/12 I.T.A. NO. 1732/M/12 I.T.A. NO. 1732/M/12 12 GROSS TOTAL INCOME `. 1,07,71,449 LESS: DEDUCTIONS U/S. 80C `. 73,700 TOTAL INCOME `. 1,06,97,749 INCOME TAX ON OTHER INCOMES `. NIL INCOME TAX ON LONG TERM CAPITAL GAIN `. 21,17,550 ADD: SURCHARGE & EDUCATION CESS `. 2,81,634 `. 23,99,184 LESS: TDS & ADVANCE TAX ( ` .3,891 + 14,00,000) `. 14,03,891 `. 9,95,293 ADD: INTEREST U/S. 234B `. 1,99,040 234C `. 48,047 PAYABLE `. 12,42,380 LESS: 140A PAID `. 16,815 DEMAND RAISED AS PER 143(1) INTIMATION `. 37,980 `. 54,795 BALANCE PAYABLE `. 11,87,585 THIS DEMAND OF ` .11,87,585/- SHOULD BE PAID AS PER DEMAND NOTICE & CHALLAN ENCLOSED. 11. AGGRIEVED, THE ASSESSEE PREFERRED APPEAL, WHE REIN THE CIT(A) HAS MODIFIED THE VALUE ADOPTED BY THE ASSESSING OFFICER FROM ` .62.50 PER SQ.FT. TO ` .80/- PER SQ.FT. BY OBSERVING AS UNDER: 7. I HAVE GONE THROUGH THE SUBMISSIONS MADE BY TH E APPELLANT AND THE ORDER OF THE ASSESSING OFFICER. THE ASSESSING O FFICER RELIED ON THE SUB-REGISTRAR VALUE @ ` .62.50/- PER SQ.FT. AS SEEN FROM THE SUB- REGISTRAR LETTER DATED 8.12.2010, THE SUB-REGISTRAR SUBMITTED THAT THE VALUE AS PER HIS RECORDS IS ` .62.50/- PER SQ.FT. THE ASSESSING OFFICER HAS MENTIONED THAT THE SUB-REGISTRAR HAS STATED THE FAI R MARKET VALUE OF THE SAID PROPERTY AS ON 1.4.1981 AS ` .62.50/- PER SQ.FT. 8. DURING THE COURSE OF APPELLATE PROCEEDINGS, THE AR WAS ASKED TO PRODUCE ANY DETAILS OF REGISTRATION IN AN AROUND TH E PROPERTY TO SHOW THE DIFFERENCE BETWEEN THE GUIDE LINE VALUE AND FAI R MARKET VALUE. IT IS DIRECTLY EVIDENT THAT FAIR MARKET VALUE WILL ALWAYS BE MORE THAN THE GUIDE LINE VALUE PARTICULARLY IN THE PAST. THE SUB- REGISTRAR HAS GIVEN ONLY THE VALUE AS PER RECORD, WHICH IS ONLY THE GUI DE LINE VALUE. TAKING INTO CONSIDERATION THAT FACT THAT THE PROPERTY WAS SITUATED NEAR THE MAIN ROAD OF BROUGH ROAD (NOW IT IS PERUNDURAI ROAD ) LEADING TOWARDS COIMBATORE, THE ASSESSING OFFICER IS DIRECT ED TO ADOPT THE FAIR MARKET VALUE AT ` .80/PER SQ.FT. THE APPEAL IS PARTLY ALLOWED. I.T. I.T. I.T. I.T.(SS) (SS) (SS) (SS)A. A.A. A. NO. NO. NO. NO.2 22 23 33 3/M/ /M/ /M/ /M/11 & 11 & 11 & 11 & I.T.A. NO. 1732/M/12 I.T.A. NO. 1732/M/12 I.T.A. NO. 1732/M/12 I.T.A. NO. 1732/M/12 13 9. IN THE RESULT, THE APPEAL IS PARTLY ALLOWED. THEREFORE, THE ASSESSEE IS AGGRIEVED. 12. THE AR REPRESENTING THE ASSESSEE HAS REITERATE D VARIOUS PLEAS RAISED IN THE GROUNDS OF APPEAL AND SUBMITTED THAT THE VAL UE ADOPTED BY THE ASSESSING OFFICER AS WELL AS THAT MODIFIED BY THE C IT(A) IS NOT THE ACTUAL FAIR MARKET VALUE OF THE ASSESSEES PROPERTY, WHICH CAN IN NO WAY BE TAKEN AS LESS THAN ` .125/- PER SQ.FT. AS CLAIMED BY THE ASSESSEE (SUPRA ). TO BUTTRESS HIS PLEA, THE AR HAS ALSO DRAWN SUPPORT FROM THE RE PORT SUBMITTED (AS QUOTED IN THE ORDER OF AO) ACCOMPANYING ASSESSEES VALUATION STATING THE PROPERTY RATE AS ` .125/- PER SQ.FT. PER AR, THE VALUE HIGHLIGHTED BY THE SAID SUB-REGISTRAR, AS RELIED UPON BY THE ASSESSING OFFI CER AND MODIFIED BY THE CIT(A) IS ONLY DIRECTORY IN NATURE. IT IS THE SUBMI SSION OF THE AR THAT THE ASSESSEES VALUATION OF THE PROPERTY IN QUESTION IS MORE ACCURATE BEING BASED ON A DETAILED REPORT OF ITS CHARTERED ENGINEE R CUM VALUER. NOT ONLY THIS, THE AR HAS ALSO DRAWN OUR ATTENTION TO THE JU DGMENT OF HONBLE JURISDICTIONAL HIGH COURT REPORTED AS [2012] 204 TA XMAN 258 (MAD) DATED 13.12.2011 TITLED AS CIT V. J. CHELLADURAI AND PRAY ED FOR ACCEPTANCE OF THE APPEAL. 13. THE DR REPRESENTING THE REVENUE HAS CHOSEN TO SUPPORT THE CIT(A)S ORDER AS WELL AS FINDINGS CONTAINED THEREIN AND PRA YED FOR UPHOLDING THE SAME. 14. WE HAVE CONSIDERED RIVAL SUBMISSIONS AT LENGTH AND ALSO PERUSED THE I.T. I.T. I.T. I.T.(SS) (SS) (SS) (SS)A. A.A. A. NO. NO. NO. NO.2 22 23 33 3/M/ /M/ /M/ /M/11 & 11 & 11 & 11 & I.T.A. NO. 1732/M/12 I.T.A. NO. 1732/M/12 I.T.A. NO. 1732/M/12 I.T.A. NO. 1732/M/12 14 RELEVANT FINDINGS OF THE ASSESSING OFFICER AS WELL AS THOSE RECORDED BY THE CIT(A) AND ALSO GONE THROUGH THE CASE LAW CITED (SU PRA). THE FACTS OF THE INSTANT CASE ARE NOT IN DISPUTE. ADMITTEDLY, THE AS SESSEE SOLD ITS IMMOVABLE PROPERTY. IN COMPUTATION OF CAPITAL GAINS, IT ADOPT ED VALUATION OF THE PROPERTY AT THE RATE OF ` .125/- PER SQ.FT. AS ON 01.04.1981 IN THE HANDS OF PREVIOUS OWNER. IT ALSO PLACED RELIANCE ON THE REPORT OF THE CHARTERED ENGINEER CUM VALUER. THE REVENUE, ON THE OTHER HAND, HAS PLACED ON THE REPORT OF THE SUB-REGISTRAR STATING GUIDELINE VALUE OF THE PROPER TY AT THE RATE OF ` .62.50 PER SQ.FT. AS ON 01.04.1981. THERE IS NO OTHER EVID ENCE ON THE RECORD PRODUCED FROM EITHER SIDE. IT IS NOT IN DISPUTE THA T THE GUIDELINE VALUE AS ADOPTED BY THE AUTHORITIES UNDER REGISTRATION ACT A ND STAMP DUTY ACT MAY NOT STATE THE FAIR MARKET VALUE OF A PARTICULAR PIE CE OF LAND. THE REASON BEING THAT THE GUIDELINES FOR THE STAMP DUTY AND REGISTRA TION AUTHORITIES ARE BLANKET IN NATURE, RELEVANT FOR THE PURPOSES OF REG ISTRATION AND STAMP FEE ETC. THE SAME CANNOT BE PRESUMED AS FAIR MARKET VALUE OF A PROPERTY FOR THE PURPOSE OF COMPUTING CAPITAL GAINS BEING GENERAL IN NATURE. AT THE SAME TIME, WE CANNOT IGNORE THAT THERE COULD BE SOME MIS CALCULATION BY THE ASSESSEE AS WELL IN STATING THE ACTUAL FAIR MARKET VALUE OF THE PROPERTY DUE TO PERSONAL INTEREST INVOLVED. WE NOTICE THAT FACED WI TH SUCH A SITUATION, THE HONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF J. CHELLADURAI (SUPRA) HAD ADOPTED MIDDLE AND REASONABLE PATH IN HOLDING THE A VERAGE OF THE FAIR MARKET VALUE AS ADOPTED BY THE CONCERNED ASSESSEE A ND THE REVENUE AS I.T. I.T. I.T. I.T.(SS) (SS) (SS) (SS)A. A.A. A. NO. NO. NO. NO.2 22 23 33 3/M/ /M/ /M/ /M/11 & 11 & 11 & 11 & I.T.A. NO. 1732/M/12 I.T.A. NO. 1732/M/12 I.T.A. NO. 1732/M/12 I.T.A. NO. 1732/M/12 15 UNDER: 7. IN RESPECT OF THE FIRST QUESTION OF LAW, THE AS SESSEE SOLD KURINCHI GARDEN LANDS. THE ASSESSEE SOLD 1.5 ACRES OF KURINC HI GARDEN LANDS TO ONE V.KANDASAMY GOUNDER AT ` .4,500/- PER CENT AND THE TOTAL CONSIDERATION RECEIVED WAS ` . 6,75,000/-. WHILE COMPUTING THE CAPITAL GAINS IN RESPECT OF THE SAID LAND, THE ASSESSEE ADO PTED THE VALUE AS ON 01.04.1981 AT ` .50,000/- PER ACRE ON THE BASIS OF THE GUIDELINE VA LUE GIVEN BY THE SUB REGISTRAR BY WAY OF LETTER. THE AS SESSING OFFICER VERIFIED WITH THE SUB REGISTRAR, KODAIKANAL, AND FO UND THAT THE SAID CERTIFICATE DOES NOT APPEAR TO HAVE BEEN ISSUED BY THE SUB REGISTRAR, KODAIKANAL AND THE SAME WAS NOT AVAILABLE WITH THE OFFICE OF THE SUB REGISTRAR, KODAIKANAL. IT WAS ALSO FOUND BY THE ASS ESSING OFFICER THAT ON THE DATE OF TRANSFER OF THE LAND IN THE YEAR 199 4, THE GUIDELINE VALUE AS PER THE REGISTERS MAINTAINED BY THE SUB REGISTRA R WAS ONLY ` .11,300/- PER ACRE AND FURTHER, THE ASSESSING OFFIC ER WAS OF THE VIEW THAT IN THE YEAR 1981, KODAIKANAL WAS VERY MUCH UND ER-DEVELOPED AND THE LANDS IN QUESTION WERE AGRICULTURAL LANDS SITUA TED IN A VILLAGE AND THEY DO NOT FETCH MORE THAN ` .10,000/- PER ACRE. THEREFORE, THE ASSESSING OFFICER FIXED THE FAIR MARKET VALUE AT R. 100/- PER CENT. ON APPEAL, THE COMMISSIONER OF INCOME TAX (APPEALS) FI XED IT AT ` .200/- PER CENT. AGGRIEVED BY THAT ORDER, THE ASSESSEE FIL ED AN APPEAL BEFORE THE INCOME TAX APPELLATE TRIBUNAL. THE TRIBUNAL ACC EPTED THE CERTIFICATE GIVEN BY THE SUB REGISTRAR AND DIRECTED THE ASSESSING OFFICER TO FIX THE COST OF LAND AT ` .500/- PER CENT. IN THE PRESENT CASE, THE VALIDITY OF THE CERTIFICATE GIVEN BY THE SUB REGIST RAR WAS QUESTIONED, WHO ACCEPTED THAT IT WAS NOT ISSUED BY THEM. THEREF ORE, THE TRIBUNAL IS WRONG IN RELYING ON THE CERTIFICATE ISSUED BY THE S UB REGISTRAR AND FIXING THE VALUE AT ` .500/- PER CENT. NO OTHER DOCUMENT WAS FURNISHED BY THE ASSESSEE TO SUBSTANTIATE THE CLAIM THAT MARK ET VALUE AS ON 01.04.1981 WAS ` .500/- PER CENT AND ANY SALE DEED EXECUTED DURING T HAT PERIOD WAS NOT FILED. IN VIEW OF THE ABOVE, WE ARE OF THE VIEW THAT THE TRIBUNAL IS WRONG IN FIXING THE MARKET VALUE AT ` .500/- PER CENT AND THE SAME IS WITHOUT ANY BASIS AND JUSTIFICATION AND NO USEFUL PURPOSE WOULD BE SERVED TO REMAND THE MATTER SINCE THE ASSESSMENT YEAR INVOLVED IN THIS CASE IS 1995-1996. CONSIDERING THE FACTS AND C IRCUMSTANCES OF THE CASE, IT IS REASONABLE TO FIX THE VALUE OF THE LAND BY AVERAGING THE COST GIVEN BY THE ASSESSEE AS WELL AS THE MARKET VALUE F IXED BY THE ASSESSING OFFICER. IN THE PRESENT CASE, THE ASSESSEE CLAIMED THE VALUE OF THE LAND AS ON 01.04.1981 AT ` .500/- PER CENT, WHEREAS THE ASSESSING OFFICER FIXED THE VALUE AT RS.100/-; THE FIRST APPELLATE AU THORITY FIXED IT AT ` .200/- PER CENT AND THE TRIBUNAL FIXED THE SAME AT ` .500/-. AFTER CONSIDERING THE FACTS AND CIRCUMSTANCES OF THE CASE , WE ARE OF THE VIEW I.T. I.T. I.T. I.T.(SS) (SS) (SS) (SS)A. A.A. A. NO. NO. NO. NO.2 22 23 33 3/M/ /M/ /M/ /M/11 & 11 & 11 & 11 & I.T.A. NO. 1732/M/12 I.T.A. NO. 1732/M/12 I.T.A. NO. 1732/M/12 I.T.A. NO. 1732/M/12 16 THAT IT IS REASONABLE TO FIX THE MARKET VALUE OF TH E LAND BY AVERAGING THE VALUE GIVEN BY THE ASSESSEE AND THE ASSESSING OFFIC ER RESPECTIVELY ` .500/- + ` .100/- = ` .600/2= ` .300/-. IN VIEW OF THE SAME, WE DIRECT THE ASSESSING OFFICER TO FIX THE MARKET VALUE OF THE LA ND AS ON 01.04.1981 AT ` .300/- PER CENT AND THE FIRST QUESTION OF LAW IS AN SWERED ACCORDINGLY. TAKING CUE FROM THE SAME AND OBLIVIOUS OF THE FACT THAT THERE IS NO OTHER EVIDENCE PLACED BEFORE US, WE ALSO ADOPT MIDD LE PATH AND TAKE THE AVERAGE OF THE VALUE STATED BY THE ASSESSEE AND REV ENUE I.E. ` .62.50 + ` .125/2 = ` .93.5 AS THE FAIR MARKET VALUE OF THE ASSESSEES PR OPERTY FOR THE PURPOSE OF COMPUTING CAPITAL GAINS. ACCORDINGLY, WE DIRECT THE ASSESSING OFFICER TO COMPUTE THE CAPITAL GAINS OF THE ASSESSE ES PROPERTY @ ` .93.5 PER SQ.FT. AS ON 01.04.1981 AND PASS NECESSARY ORDER. 15. IN VIEW OF THE ABOVE DISCUSSION, WE PARTLY ALL OW THE INSTANT APPEAL. TO SUM UP I.T(SS).A.NO.23/MDS/2011 IS ALLOWED FOR S TATISTICAL PURPOSE AND I.T.A. NO. 1732/MDS/2011 IS PARTLY ALLOWED. ORDER PRONOUNCED ON WEDNESDAY, THE 10 TH OF OCTOBER , 2012 AT CHENNAI. SD/- SD/- (N.S. SAINI) ACCOUNTANT MEMBER (S.S. GODARA) JUDICIAL MEMBER CHENNAI, DATED, THE 10.10.2012 VM/- TO: THE ASSESSEE//A.O./CIT(A)/CIT/D.R.