2012 (7) TMI 685 - AT - Income Tax

Enhancing the capital gains - adopting the rate of the land - Revision u/s 263 - held that - in our view, having regard to the facts and material on record the cost of acquisition as on 01/04/1981 adopted by the assessee for determination of capital gains cannot be considered as erroneous so as to be prejudicial to the interest of the Revenue within the meaning of Section 263 of the Act. Thus, the order of the Commissioner is set aside and that of the Assessing Officer dated 25/07/2006 is restored qua the issue relating to the determination of long term capital gain on sale of plots of land. - Decided in favor of assessee.

Issues:
1. Determination of long term capital gains based on the cost of acquisition as on 01/04/1981.
2. Applicability of fair market value for determining the cost of acquisition.
3. Correctness of adopting the rate of Rs.344.28 per sq.mtr. for computing the cost of acquisition.
4. Exercise of revisionary powers under Section 263 of the Income-tax Act, 1961.

Issue 1: Determination of long term capital gains based on the cost of acquisition as on 01/04/1981:
The appeal challenged the order of the Commissioner of Income-tax (Appeals) enhancing the capital gain by Rs 51,80,558, focusing on the rate of the cost of acquisition of land on 01/04/1981. The Commissioner disagreed with the assessee's adopted rate of Rs.344.28 per sq.mtr. and instead proposed Rs.125 per sq.mtr. based on a Registered Valuer's report. The Commissioner's decision resulted in an increased long term capital gain assessment, which the assessee contested.

Issue 2: Applicability of fair market value for determining the cost of acquisition:
The dispute revolved around the fair market value of the land as on 01/04/1981. The Commissioner argued for adopting a rate of Rs.125 per sq.mtr. solely for the bare land, while the assessee defended the use of Rs.344.28 per sq.mtr., considering the value of construction, pipelines, well, pump, etc. existing on the land. The contention was whether the fair market value should include the value of the land along with the structures present on it, impacting the computation of capital gains.

Issue 3: Correctness of adopting the rate of Rs.344.28 per sq.mtr. for computing the cost of acquisition:
The assessee received a total land area of 42,100 sq.mtrs., later converted into stock-in-trade for land development. The saleable area reduced to 21,827.13 sq.mtr., of which 5,102.66 sq. mtrs. were sold. The dispute centered on whether the rate of Rs.344.28 per sq.mtr. for determining the cost of acquisition was appropriate, considering the entire land area's fair market value, including constructions, as on 01/04/1981.

Issue 4: Exercise of revisionary powers under Section 263 of the Income-tax Act, 1961:
The Tribunal analyzed the exercise of revisionary powers under Section 263, emphasizing that an order can be deemed erroneous only if it is unsustainable in law or on facts. The Commissioner's decision to revise the assessment order was based on the alleged error in the determination of long term capital gains. The Tribunal concluded that the adopted cost of acquisition by the assessee was not erroneous or prejudicial to the Revenue's interest, overturning the Commissioner's order and restoring the Assessing Officer's decision.

This detailed analysis of the legal judgment from the Appellate Tribunal ITAT Pune highlights the key issues surrounding the determination of long term capital gains, the application of fair market value, and the correctness of adopting specific rates for computing the cost of acquisition. The Tribunal's decision to set aside the Commissioner's order and allow the assessee's appeal provides clarity on the interpretation and application of relevant provisions under the Income-tax Act, 1961.

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