Case Law Details

Case Name : ACIT Vs Smt. Hiraben Govindbhai Patel (ITAT Ahmedabad)
Appeal Number : I.T.(SS) No. 137/Ahd/2009
Date of Judgement/Order : 17/05/2013
Related Assessment Year : 2007-08
Courts : All ITAT (4443) ITAT Ahmedabad (332)

When the value declared by the assessee as on 01.04.1981 is supported by valuation report of a registered valuer and the A.O. has taken different valuation without obtaining valuation report from the DVO, such value taken by the registered valuer cannot be substituted by the A.O. merely on the basis of general inquiries without obtaining a report from DVO.

Similarly, in the case of Pramila M Desai (supra) also, it is held by the tribunal that the report of the registered valuer being a technical person, cannot be substituted without obtaining DVO’ s report or any other report of a technical person. Hence, this issue is squarely covered in favour of the assessee by these two Tribunal decisions. Moreover, we find that while adopting the value as on 01.04.1981 @ Rs.250/- per sq. yard as against Rs.800/- per sq. yard as adopted by the registered valuer, the basis of the A.O. was this much only that as per this report of the registered valuer, various sales instances considered by him which are for smaller plots but for a larger plot like that of the assessee, the value will be much less per sq. yard. Copy of the valuation report is available on page 108-111 of the paper book. On page 111 of the paper book, the registered valuer has given various sale instances during the period form 25.03.1980 to 30.08.1982 and the lowest value as per these sales instances is Rs.211.57 per sq. yard and the highest value as per these sales instances is Rs.97 1.73 per sq. yard as per the instance noted at Sl. 6, the rate is Rs.971.73 only. Sl. No.7 it is Rs.700/-, Sl. No.8 it is Rs.773.41 and as per Sl. No.9, it is Rs.800/- per sq. yard. The stand of the A.O. that the value of larger plot has to be lesser is without any basis and it depends on many factors. In some cases, the A.O. may be right that the price of a larger plot will be lesser but in other cases, it may be different and it may be found that price of larger plot is higher and, therefore, no decision can be taken on the basis of these presumptions. Apart form this that the area of the land is smaller in the sales instances noted by registered valuer, no defect has been pointed out by the A.O. in the valuation report of the registered valuer and we have already seen that this objection of the A.O. is without any basis and the correct position may be different than what is stated by the A.O. In the absence of any valid basis adopted by the A.O. to substitute the rate adopted by the assessee on the basis of a valuation report of a registered valuer, we feel that no interference is called for in the order of Ld. CIT(A) on this issue also. This ground of the revenue is also rejected.

ITAT “D ” BENCH, AHMEDABAD
Before Shri A. K. GARODIA, ACCOUNTANT MEMBER
and Shri KUL BHARAT, JUDICIAL MEMBER
I.T.(SS) No. 137 / Ahd/2009 – (Assessment year 2007-08)

 ACIT Vs. Smt. Hiraben Govindbhai Patel

C.O. No. 282/Ahd/2009 in IT(SS) No. 137/Ahd/2009
(Assessment year 2007-08)

Smt. Hiraben Govindbhai Patel Vs. ACIT, CC-2(4),

 Date of hearing: 07.03.2013

Date of pronouncement :    17.05.2013

O R D E R

PER SHRI A. K. GARODIA, AM:-

This appeal is filed by the revenue and the C.O. is filed by the assessee, which are directed against the order of Ld. CIT(A) I, Ahmedabad dated 24.08.2009 for the assessment year 2007-08.

2. First, we take up the cross objection filed by the assessee. The grounds raised by the assessee in the C.O. are as under:

“In the facts and circumstances of the case the learned CIT(A) erred in rejecting the relevant ground of appeal raised by the assessee claiming that there was no cost of acquisition in respect of the land bearing Survey No. 186 which was transferred by the deceased assessee during this year, and therefore, no income under the head “Capital Gain” was chargeable to tax.”

2.1 Regarding this contention raised by the assessee in ground No.1 of the C.O. that there was no cost of acquisition and hence, there cannot be any capital gain on the sale of land in question, it was submitted by the Ld. A.R. that various decisions in support of this contention were cited before Ld. CIT(A), the details of which are available on page 112 of the paper book and on the same decisions reliance is being placed before us  also.   In addition to this, reliance was placed on the following judicial pronouncements:

i) 83 ITD 273 ITO Vs Uppala Venkat Rao (Hyd.)

ii)  70 TTJ 919 G N Ghorpade (HUF) Vs DCIT (ITAT Pune)

iii) Tax Appeal No.10 of 2010 dated 28.06.2011Shri Rama Multitech Ltd. (Guj.)

2.2 As against this, Ld. D.R. supported the orders of authorities below. He placed reliance on the following judicial pronouncements:

i) 281 ITR 19 (Guj.) CIT Vs. Manoharsinhji P Jadeja

ii) 222 ITR 799 (Ktk) Emrald Valley Estates Ltd. Vs CIT

iii)106 ITD 153 (Ahd.) Vijaysinh R Rathod Vs ITO, Vapi

2.3 We have considered the rival submissions, perused the material on record and have gone through the orders of authorities below and the judgements cited by both the sides. We find that the mode of purchasing the land in question by the assessee is indicated at page 3 of the sale deed and the same is reproduced in the letter of the assessee dated 19.06.2009 to CIT(A) copy of which is available on pages 1-16 of the paper book and the relevant portion is available on page 5 of the paper book. The relevant portion is reproduced below for the sake of ready reference:

“AND WHEREAS the Vendor was tenant in his separate and individual capacity, of Inami Land of inamdar, Shah Alam Roza Trust. The said Land is received by him as of Old Tenure upon coming into force of the Devstan Inam Abolition Act, and is accordingly, held and registered in the name of the Vendor in the revenue records as per appropriate orders passed. No member of the Vendor’s family has any right or interest in the said Land.”

2.4 From the above para of the sale deed regarding mode of acquisition of land in question by the assessee, it is seen that the assessee was a tenant in his separate and individual capacity and thereafter, the said land is received by him as of old tenure upon coming into force of the Devstan Inam Abolition Act. Now, we reproduce the provisions of Section 55 (2)(a) of the Income tax Act, 1961:

“2) [For the purposes of sections 48 and 49, “cost of acquisition”,—

[(a) in relation to a capital asset, being goodwill of a business [or a trade mark or brand name associated with a business] [or a right to manufacture, produce or process any article or thing] [or right to carry on any business], tenancy rights, stage carriage permits or loom hours,—

(i) in the case of acquisition of such asset by the assessee by purchase from a previous owner, means the amount of the purchase price ; and

(ii) in any other case [not being a case falling under sub-clauses (i) to (iv) of sub-section (1) of section 49], shall be taken to be nil.”

2.5 From the provisions of Section 55(2)(a), it is seen that in the case of tenancy rights, cost of acquisition is required to be taken as ‘nil’. When the provisions of this section was confronted to Ld. A.R., it was his submission that the assessee has not sold the tenancy right but the assessee has sold the free hold right which were acquired by the assessee on Devstan Inam Abolition Act and hence, provisions of this section are not applicable in the present case. We do not find any force in this contention of the Ld. A.R. because it is admitted fact that the assessee was the tenant of the property in question and because of this fact only, the assessee became the owner of this land property upon coming into force of the Devstan Inam Abolition Act, which means the tenancy rights were converted into ownership right and hence, the provisions of Section 55(2)(a) as per which in the case of tenancy right, the cost of acquisition is required to be take as ‘nil’ because only tenancy right having nil cost of acquisition was converted into ownership right, the ownership right sold by the assessee is also having nil cost of acquisition. Hence, this argument of the assessee that there will be no capital gain because there is no cost of acquisition, has no merit.

2.6 In view of the above decision, as per which the assessee’s case is covered against the assessee by the provisions of Section 55(2)(a) of the Income tax Act, 1961, various decisions cited by both the sides have no application in the present case since the facts in those cases are different where the issue was not covered by the provisions of Section 55(2)(a) of the Income tax Act, 1961. Still, we feel that at least we should examine the applicability of the judgement of Hon’ble Gujarat High Court cited by both the sides. One of the judgements cited by the Ld. A.R. is the judgement of Hon’ble Gujarat High Court rendered in the case of CIT Vs Shri Rama Multitech Ltd. (supra). This judgement is with regard to assessment by way of total income declared by the assessee in the return of income and since we have held above that the assessee’s income under the head capital gains is liable to be taxed in view of the provisions of Section 55(2)(a), this judgement of Hon’ble Gujarat High Court has no application in the present case.

2.7 Various decisions cited by the Ld. A.R. on page 112 of the paper book are with reference to the argument that when there is no cost of capital asset, capital gain should not be computed but we have seen in he present case that the cost of capital asset has to be considered as nil in view of the provisions of Section 55(2)(a) of the Income tax Act, 1961 and, therefore, these judgements have no relevance in the present case.

 2.8 Ld. D.R. has also cited certain judgements but since the issue is being decided in favour of the revenue even without considering those judgements, we feel that those judgements are not required to be discussed in the present case.

2.9  In view of above discussion, this ground of the C.O. is rejected.

2.10 In the result, C.O. of the assessee is dismissed.

3.  Now, we take up the appeal filed by the revenue. The grounds raised by the revenue are as under:

“1. The Ld. CIT(A) has erred in law and on facts and circumstances of the case in directing the A. O. to consider the sale consideration at Rs. 7.36 crores as against the amount of Rs. 14.71 crores.

2. The Ld. CIT(A) has erred in law and on facts and circumstances of the case in directing A. O. to accept the value of property as on 01.04.1 981 at Rs.800/- per sq. yard.”

 3.1 The brief facts till the assessment stage in respect of both the issues i.e. regarding the amount of sale consideration and regarding the market value as on 01.04.1981, are noted by Ld. CIT(A) in para 4-4.5 of his order and for the sake of ready reference, these paras from the order of Ld. CIT(A) are reproduced below:

“4. The Assessing Officer has observed that search proceedings were carried out u/s.132(1) in the Savvy Group of cases on 14-2- 2007 and during the course of search proceedings, documents relating to sale of land by the appellant were found. Accordingly, the search was also carried out at the appellant’s premises on same day. At the time of search, the appellant was of the age of 82 years and was earning income from rent, interest and agriculture.

4.1 The Assessing Officer has stated that at the time of search from the premises of Savvy Group of cases, following documents were found relating to sale of land by the appellant.

“1. Memorandum of Understanding dated 23.9.2006 between Shri Govindbhai Ambalal Patel and Savvy Infrastructure Ltd.

2. Banakhat (unsigned) between Shri Govindbhai Ambalal Patel and Smt. Chetnaben Mukeshbhai Patel as promoter of Savvy Homes Co. Op. Housing Society (Proposed) showing rate of Rs.9500 per sq. yd. and the total value of 15488 sq. yds. at Rs. 14,71,36,000/-.

3. Duly notarized banakhathh dated 1 7.1.2007 between Shri Govind Ambalal Patel and Smt. Chetnaben Mukeshbhai Patel as promoter of Savvy Homes Co. Op. Housing Society (Proposed). Here the rate shown is Rs.5685/- per sq. mt. and valule of 12950 sq. mts, (equivalent to 15488 sq. yds.) is shown at Rs. 7,36,20,750. 4. Sale deed dated 3.2.2007 between Shri Govind Ambalal Patel and Savvy Homes Co.op. Housing Society Ltd. with Smt. Chetnaben Mukeshbhai Patel as the confirming party.”The Assessing officer has discussed the contents of the above documents which are summarized as under:

(i) The first document being MOU dated 23/09/2006 between the appellant and the Savvy Infrastructure Ltd. and it is stated that as per this document, the appellant has sold the land bearing No. 186 at Vasana admeasuring 15488 sq. yds. to Savvy Infrastructure Ltd., according to which the sale price decided was of Rs.14, 71,36,000/- and token amount of Rs.21 lakh was paid to the appellant by cheque and that further payment was required to be made by Savvy Infrastructure Ltd. The Balance amount was to be paid in equal quarterly installments.

(ii)  It is stated that the second document being unsigned Banakhat between the appellant and Smt. Chetnaben Mukeshbhai Patel as promoter of Savvy Home Co-op. Housing (proposed). It is stated that as per this document the sale price was typed at Rs. 14,71,36,0007- and this figure was altered by pencil and was substituted by total value of Rs. 7,36,20,750/-.

(iii) It is stated that the notarized Banakhat dated 17-1-2007 is between the assessee and Chetnaben M. Patel, as promoter of Savvy Home Co-op. Housing (proposed). In this document, the figure written is Rs. 7,36,20,750/-.

(iv) The forth document is Registered Sale Deed between the appellant and Savvy Home Co-op. Housing (proposed) being purchaser. As per the sale deed, the payment of Rs.1,46,00,000/- had already been paid and balance amount of Rs.5,90,20, 750/- was to be paid by 16th April 2008. Thus, the sale consideration was of Rs. 7,36,20,750/-.

4.2 With the above background of the documents, the Assessing Officer had issued a show cause notice to the appellant asking as to why the four documents relating to the same property were found and that as to why the difference of Rs. 7,35,15,520/- be not treated as unaccounted receipt of the appellant on sale of the said premises. The appellant had explained before the A. O. that the land was under the green belt area declared by the concerned authority and that 50% of the land was to be surrendered to the Municipal authorities and that, therefore, the sale price was fixed at Rs. 7.36 crores which is as per the final Banakhat and sale deed executed between the parties. It was also stated before the A. O. that the appellant had not received any cash for the transaction.

However, this explanation has not been accepted by the A. O. stating that the entire land was sold to Savvy Home Co-op. Housing (proposed) and that since entire area of the land was transferred, it is established that the assessee has received the entire consideration of Rs. 14,71,36,000/- as per the MOD dated 23-9-2006. The same is treated as actual consideration received by the appellant.

4.3 The assessing officer has further stated that in the course of hearing before him, the appellant had filed written submissions claiming that no capital gain was taxable in respect of the said land as it had no cost. It was claimed that the land was received by appellant as of old tenure upon coming into force of Devastan Inam Abolition Act. The appellant had also given revised return with this claim. However, this revised return has not been accepted by the A. O. stating that the proceedings were getting time barred. It is further stated that the appellant had himself shown capital gain in the return of income. It is also stated that the asset is not self generated asset.

4.4 In the return of income, the appellant had claimed that for the purpose of deduction of cost, the fair market value as on 1-4-1 981 be . adopted and for that purpose the appellant had claimed Rs. 800/- per sq. yd as fair market value of the property as on 1-4- 1981. in support of this, the appellant had furnished a certificate from the Registered Valuer. This has not been accepted by the Assessing Officer and he has adopted the value of Rs.250/- per sq. yd. as the value of the land as on 1 -4-1 981. He has stated that the rates taken by the valuer were for smaller plot and that the appellant’s plot was large and hence it has lesser value. He has further stated that the appellant’s premises are away from city. It is stated that rates are between Rs.250/- and Rs. 800/-. With this discussion it is concluded that the rate of Rs.250/- per sq. yd. is to be adopted.

4.5 With the above discussion the assessing officer has computed the capital gains as under:

Total Consideration Rs. 14,71,36.000/-
Less: Cost as on 1 -4-1981 (Total value of Rs.38, 72,000/- indexed to Rs. 2,00,95,680) Rs. 2,00,95,680/-
  Rs. 12.70.40,320/-

 3.2 Being aggrieved, the assessee carried the matter in appeal before Ld. CIT(A) who decided both these issues in favor of the assessee and directed the A.O. to consider the sale consideration at Rs. 7.36 crores as against Rs. 14.71 crores adopted by him and he also directed the A.O. to consider the market value of the property as on 01.04.1981 at Rs. 800/- per sq. yard as has been claimed by the assessee in stead of Rs.250/- sq. yard adopted by the A.O. Now, the revenue is in appeal before us.

3.3 Regarding the first aspect i.e. value of sale consideration, it was submitted by the Ld. D.R. that as per para 7.3 of the order of Ld. CIT(A), it is noted by him that it is stated by the A.O. that the first document being MOU fixes the price at Rs.14,71,36,000/-. He also submitted that the MOU dated 23.09.2006 is available on page 30-46 of the paper book and in particular, our attention was drawn to page 43 of the paper book where it is noted that there will be 50% deduction in the land area as per the TP scheme and hence, this is not correct to say that the price determined as per this MOU was for the full area of the land and what is ultimately sold afterwards is only 50% area and, therefore, price reduction is justified. He strongly supported the assessment order. He also submitted that the order of Ld. CIT(A) should be reversed and that of the A.O. should be restored.

3.4 As against this, Ld. A.R. supported the order of Ld. CIT(A). Regarding MOU available on pages 30-46 of the paper book, it was submitted that this MOU is not for sale of property but in fact, as per clause 7 of this MOU on page 41 of the paper book, it was agreed that for the purpose of developing the land in question, a new partnership firm is to be formed jointly by the parties of one part Shri Govindbhai Ambalal Patel and his other partners and on the other par i.e. Savvy Infrastructure Co. Ltd. He submitted that this agreement is not for sale of land in question but for contributing of said land to the partnership firm as the capital contribution and therefore, the same cannot be the basis for adopting the sale vale of the land in question.

3.5 He also drawn our attention to the copy of the agreement to sell of the land in question which is dated 17.01.2007 as per English version available on pages 47-78 of the paper book and it was pointed out that the price was fixed after negotiation @ Rs.5685/- per sq. mtr. for the land area of 12950 sq. mtrs and the total value was worked out at Rs.7,36,20,250/- and hence, nothing more than this can be considered as the sale value of the land in question.

3.6 He also submitted that the search was carried out on 14.02.2007 and the sale deed in question was executed on 03.02.2007 which means that the search was carried out only 11 days after the date of sale deed and still, no cash was found nor any unaccounted asset was found in the course of search and this also supports the case of the assessee that the actual sale value is as declared in the sale deed.

3.7 He also submitted that the copy of the statement recoded by the assessee on 14.02.2007 at his residence in the course of search along with English translation is available on pages 95-107 of the paper book and in particular, our attention was drawn to question 10 on page 105 of the paper book where, it is noted that only a sum of Rs. 1.50 lacs was found in cash and the same was also explained by the assessee being out of withdrawal from the bank for the purpose of expenses in respect of marriage of assessee’s daughter. He also drawn our attention to question No.5 of the same statement which is available on page 101 of the paper book where a question was raised regarding sale price of the land in question sold by the assessee and in reply, it was submitted that the land measuring about 15400 sq. yards was sold for a consideration of Rs.714 lacs and it was also stated that an amount of Rs. 21 lacs was received by him in Sep., 2006 by way of cheque and further amount of Rs. 125 lacs was received by way of cheque in January 2007 and the balance amount of 568 lacs was still to be received by him. Our attention was also dawn to question No.6 and its reply where, the question was as to whether any amount was received by the assessee in cash and in reply, it was submitted by the assessee that no amount is received in cash in respect of this sale of land. He also submitted that there is no addition in the hands of the buyer and for this reason also, no addition is justified in the hands of the assessee being seller.

3.8 We have considered the rival submissions, perused the material on record and have gone through the orders of authorities below. We find that the case of the A.O. is this that as per the MOU between the assessee and SMT. Chetnaben M Patel dated 23.09.2006, it is stated at various places in clause 1, 2 etc that the assessee is selling this land in question to Smt.. Chetnaben M Patel for a consideration of Rs. 1471.36 lacs. In para 7 of the same MOU, it is noted that for the purpose of developing the land in question, a new partnership firm is to be formed jointly by the assessee and his other partners Shri Rajnibhai Ambalal Patel, Mukeshbhai Keshavlal Patel and Shri Kalpeshbhai Atmaram Patel and the second part M/s. Savvy Infrastructure Co. Ltd. From this MOU, the true meaning of this MOU is not consistent as to whether it is for the purpose of sale of land in question for the given price of /Rs. 1471.36 lacs or whether it is for the purpose of transferring the land in question to a new partnership firm to be formed jointly by the assessee along with his three partners of one part and the other part M/s. Savvy Infrastructures Co. Ltd. Again on page 8 of the same MOU it is stated that a token amount given towards sale price by the party on other part to the first part is to be treated as given to the new partnership firm by the other part. This has increased the confusion as to whether this MOU is for formation of a new partnership firm or it is for sale of land simplicitor. Although only one name is given as party of one part i.e. the assessee Shri Govindbhai A Patel but on page 37 of the paper book, it is stated that “we the party of the one part is exclusively owning, holding, possessing and enjoying and this land is free from all encumbrances….” In para 2 of this MOU, it is also agreed that the tenure of this MOU will be 18 months and during this period, installment of equal amount has to be paid at every month. There is nothing brought on record by the revenue to show that any such monthly installment was paid by the party of 2nd part i.e. Shri Chetnaben M Patel to the assessee. Further, para 10 of the MOU is relevant and the same is reproduced from page 42-43 of the paper book for the sake of ready reference:

“11. The said land is falling within the green belt and hence, whatever betterment or increment contribution for the purpose of town planning scheme is to be paid, shall be borne by he party of the other part and whatever land is allotted against the 50% deduction as per the T P Scheme or whatever reimbursement is received, it will belong to the new partnership firm; which means in view of the T P scheme, whatever final plot is allotted or whatever amount is received as a benefit of the same, shall all go to the new partnership firm and whatever responsibilities that may arise, shall be borne by the party of the other part with the help of party of the one part. Further, all the benefits as well as responsibilities of the said land due to T P scheme shall rest upon the new partnership firm.”

3.9 From the above para of the MOU, it is seen that even the expenditure towards land price as well as construction to be put up upon the said land is to be borne by both the parties i.e. assessee as well as the party of other part in the ratio of 50:50 each. It is also agreed that the profit will be distributed between these two parties in the ratio of 45% to the assessee and 55% to M/s. Savvy Infrastructure Co. Ltd. This clause of the agreement in the MOU to get only 45% profit although the cost to be borne in the ratio of 50% by the assessee, it is possible that the price of land agreed to by the other party was possibly at higher figure for any purpose not disclosed in the MOU but to compensate the assessee for, lesser amount of profit percentage being given to the assessee in the profits of the project. In view of these clauses of this MOU as discussed above, we find force in these contentions of the Ld. A.R. that this MOU is not a sale simplicitor of the land in question but the same is mainly towards contribution as capital to the new partnership firm by the assessee and although a high value of land was considered for this purpose, but the fact that the assessee was to bear 50% expenses of the partnership firm along with cost of land, the assessee was eligible for only 45% of the profits and therefore, the value considered in the MOU cannot be considered as the sale price of the land in question.

3.10 The basis of the revenue for adopting the amount of Rs. 1471.36 lacs as total sales consideration of the land in question was this MOU only and except this MOU, no other evidence even circumstantial evidence has been found even in the course of search carried out only 11 days after the date of sale deed to corroborate this allegation that the assessee has received sales consideration in cash of Rs.735. 15 lacs. If this much huge cash was received by the assessee, something must be found in the course of search either unaccounted cash or unaccounted investment or any other paper etc., which may have indicated such a huge cash transaction. This is also not the case of the A.O. that jantri price of this land in question at the relevant point of time was more than the value declared by the assessee in the sale deed. Hence, we find that neither the value as per jantri rates is more than the sale value declared in the sale deed nor any other evidence was found suggesting receipt of money by the assessee in cash apart from this MOU. We have already discussed that this MOU cannot be said to be a sales simiplicitor because various clauses of this MOU are suggesting that this MOU was mainly for entering into a partnership firm between the assessee along with his three partners with the other party i.e. Savvy Infrastructure Co. Ltd., in which the assessee was to bear 50% of the expenditure including land expenses but the assessee was entitled to profits of only 45% and it is also seen that along with the assessee, his three partners; Shri Rajnibhai Ambalal Patel,Mukeshbhai Keshavlal Patel, and Kalpeshbhai Atmaram Patel are also considered along with the assessee as parties of one part who will share 45% of the profits of the firm to be created and considering all these facts, in our considered opinion, this cannot be accepted in the facts of the present case that in the absence of any other corroborating evidence, the price stated in this MOU is the sale price of the land in question.

3.11 Now, we consider the decision of Ld. CIT(A) as per para 7.3 of his order and the same is reproduced below for the sake of ready reference:

“7.3 The Assessing Officer has stated that the first document being Memorandum of Understanding, fixes the price at Rs.14, 71,36,000/-and payment of Rs.21 lakh was made to the assessee by way of cheque by Savvy Infrastructure Ltd. He has further stated that the second document being unsigned banakhat between the assessee and Chetnaben Mukeshbhai Patel, promoter of Savvy Co-op. Hsg. Society is for Rs.14,71,36,000/-. This figures are changed to Rs. 7,36,20,750/-; He has therefore, presumed that the sale consideration was of Rs. 14.71 crores and not of Rs. 7.36 crores. He has considered the differential amount as payment in cash. However, on perusal of the submissions of the appellant and the details furnished, it is found that first document being MOU can not be the basis as it has not resulted into final transaction between the parties of MOU. Second document relied upon by Assessing Officer is unsigned and hence it cannot be the basis for conclusion reached by Assessing Officer. As such, based on both these documents, no presumption about passing of cash can be reached, it is also found that at the same time, appellant’s premises were subjected to search and statement of appellant was recorded on 14-2 -2007, wherein he had in clear terms stated before the search officer that the sale price was around Rs. 7.14 crores and on further question, he had specifically stated that no cash was received against sale of such land. Apart from this, at the time of search, cash of only Rs.1,50,000/- was found from the appellant’s premises which was also explained from the withdrawals from bank account and further no evidence about any other unaccounted assets or receipt of cash was found during the course of search from the appellant’s premises. It is also noticed that no specific evidence is referred to by the A. O. that the appellant was paid any amount in excess of the prices of Rs. 7.36 crores as per the documents. The appellant has also specifically pointed out that the price as per the documents is also accepted for stamp duty purpose and it is not disputed by that authority. Considering these facts, I am of the view that the A. O. has no basis for adopting the sale value of the land at Rs. 14.71 crores as against the value of Rs. 7.36 crores as per the document in the form of sale deed dated 3-2-2007. The A. O. is, therefore, directed to consider the sale consideration at Rs. 7.36 crores as against the amount of Rs. 14.71 crores adopted by him.”

 3.12 From the above para of the order of Ld. CIT(A), it is seen that he has given a clear finding that the MOU and no other document can be a basis for the conclusion reached by the A.O. and on the basis of these documents, a presumption cannot be raised abut receiving the cash by the assessee. We have also seen that no specific evidence is referred to by the A.O. about the allegation that assessee has been paid any amount in excess of the price of Rs. 7.36 crores as per the documents. It is also noted by us that this price has been accepted by the stamp duty authority and it is not disputed by the authority. Hence, considering all these facts of the present case as discussed above by us and also by Ld. CIT(A) in the above para as reproduced above, we find that there is no infirmity in the order of Ld. CIT(A) on this issue and hence, we decline to interfere in the order of Ld. CIT(A) on this issue. This ground is rejected.

4. Now, we decide the second issue raised as per ground No.2.

4.1 On this issue, Ld. D.R. supported the assessment order. It is also submitted that no DVO report was obtained. He also drawn our attention to sub-section (22B) of Section 2 where the term fair market value has been defined and it is stated that fair market value in relation to a capital asset means price that the capital asset would ordinarily fetch on sale in the open market on the relevant date; and where the price referred to in sub-clause (i) is not ascertainable, such price as may be determined in accordance with the rule made under this Act. He submitted that because of this fair market value as on 01.04.2008, should be the price at which the capital asset in question can be sold in the open market and since the value adopted by the assessee is not on this basis, the order of Ld. CIT(A) should be reversed and that of the A.O. should be restored.

4.2 Ld. A.R. supported the order of Ld. CIT(A). He also placed reliance on a Tribunal decision rendered in the case of Pramila M Desai in I.T.A.No. 04/Ahd/2012 dated 21.09.2012 and also on another Tribunal decision rendered in the case of Rajendra H Seth in I.T.A.No. 1495/Ahd/2007 dated 11.11.2011. He submitted copies of these tribunal decisions. He also submitted that the registered valuer report is available on page 108 – 111 of the paper book.

4.3 We have considered the rival submissions, perused the material on record and have gone through the orders of authorities below and the tribunal decisions cited by the Ld. A.R. We find that in the case of Rajendra H Seth (supra), this finding is given by the Tribunal in para 10.1 of its order that when the value declared by the assessee as on 01.04. 1981 is supported by valuation report of a registered valuer and the A.O. has taken different valuation without obtaining valuation report from the DVO, such value taken by the registered valuer cannot be substituted by the A.O. merely on the basis of general inquiries without obtaining a report from DVO. Similarly, in the case of Pramila M Desai (supra) also, it is held by the tribunal that the report of the registered valuer being a technical person, cannot be substituted without obtaining DVO’ s report or any other report of a technical person. Hence, this issue is squarely covered in favor of the assessee by these two Tribunal decisions. Moreover, we find that while adopting the value as on 01.04.1981 @ Rs. 250/- per sq. yard as against Rs. 800/- per sq. yard as adopted by the registered valuer, the basis of the A.O. was this much only that as per this report of the registered valuer, various sales instances considered by him which are for smaller plots but for a larger plot like that of the assessee, the value will be much less per sq. yard. Copy of the valuation report is available on page 108-111 of the paper book. On page 111 of the paper book, the registered valuer has given various sale instances during the period form 25.03.1980 to 30.08.1982 and the lowest value as per these sales instances is Rs. 211.57 per sq. yard and the highest value as per these sales instances is Rs.97 1.73 per sq. yard as per the instance noted at Sl. 6, the rate is Rs.971.73 only. Sl. No.7 it is Rs. 700/-, Sl. No.8 it is Rs. 773.41 and as per Sl. No.9, it is Rs. 800/- per sq. yard. The stand of the A.O. that the value of larger plot has to be lesser is without any basis and it depends on many factors. In some cases, the A.O. may be right that the price of a larger plot will be lesser but in other cases, it may be different and it may be found that price of larger plot is higher and, therefore, no decision can be taken on the basis of these presumptions. Apart form this that the area of the land is smaller in the sales instances noted by registered valuer, no defect has been pointed out by the A.O. in the valuation report of the registered valuer and we have already seen that this objection of the A.O. is without any basis and the correct position may be different than what is stated by the A.O. In the absence of any valid basis adopted by the A.O. to substitute the rate adopted by the assessee on the basis of a valuation report of a registered valuer, we feel that no interference is called for in the order of Ld. CIT(A) on this issue also. This ground of the revenue is also rejected.

5. In the result, the appeal of the revenue stands dismissed.

6. In the combined result, Cross objection of the assessee and the appeal of the revenue are dismissed.

7. Order pronounced in the open court on the date mentioned herein above.

Download Judgment/Order

More Under Income Tax

Posted Under

Category : Income Tax (25527)
Type : Judiciary (10278)
Tags : ITAT Judgments (4623)

Leave a Reply

Your email address will not be published. Required fields are marked *