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2022 (9) TMI 657 - AT - Income TaxLong term capital gain - correct valuation of the land - Reference to DVO - Difference in cost adopted by the assessee and the cost of asset suggested by DVO - what should be the fair market value of the asset as on 01.04.1981 as the assessee has acquired the said asset on 04.08.1965? - HELD THAT - DVO has mentioned in its report that while taking the sale instances the factors affecting the land rates such as size, shape, situation, location, utility, specification, long time future prospect and PUC were considered and average value of three instances @ Rs. 21/- per square meter was suggest. We find that no details of various factors considered by DVO is mentioned in his report. And all the factors are mentioned just to fulfil the requirement of contents of report. Also perused the report of registered valuer who suggested the value of land @ Rs. 98,000/- per acre and arrived at the value of asset at Rs. 7,35,000/-. No factors affecting the land rates such as size, shape, situation or location is mentioned in his report. Now, before us, we find two expert reports about the valuation of the same land, however, on their perusal we find that there is very minor difference of rates in both reports. The DVO has referred three sale instances which are with regards to small pieces of land, but the size of land under dispute is very large comparative to the comparable. If we take the average of comparable No. 1 3, and excluded comparable No. 2 for the reasons of its size, which is otherwise on very low side i.e Rs. 11/- per square meter, the average of remaining two comparable comes to Rs. 27.49/-. The assessee has already adopted the rate at Rs. 25.69/- per square meter, which is reasonable and acceptable to us. Considering the facts that we have accepted the rate @ Rs. 25.69 per square meter, therefore, all the submissions of ld AR on legal or factual issues have become academic. In the result, the grounds of appeal raised by the assessee are allowed.
Issues Involved:
1. Validity of the assessment order and first appellate order. 2. Validity of reference under Section 142A of the Income Tax Act. 3. Applicability and validity of the DVO's report under Section 55A. 4. Determination of fair market value of the asset as on 01.04.1981 for computing long-term capital gain. Issue-wise Detailed Analysis: 1. Validity of the assessment order and first appellate order: The assessee argued that both the assessment order and the first appellate order were passed without proper appreciation of the material on record and the legal position, thus deserving to be quashed. The Tribunal noted that the core issue was the determination of the fair market value of the asset as on 01.04.1981, and the validity of the orders hinged on this determination. 2. Validity of reference under Section 142A of the Income Tax Act: The assessee contended that the reference under Section 142A was invalid as it was not related to the provisions of Sections 69, 69B, or 56(2) of the Act. The Tribunal examined the amendment in Section 142A, which allows the Assessing Officer to refer any property, asset, or investment for valuation without rejecting the books of account. The Tribunal upheld the reference under Section 142A, noting that the amendment extended the Assessing Officer's power to make such references for any asset or property. 3. Applicability and validity of the DVO's report under Section 55A: The assessee argued that the DVO's report furnished under Section 55A was invalid as the reference was made under Section 142A. The Tribunal noted that the DVO used the 'comparable sales instances' method to arrive at the value of the property as on 01.04.1981, which was accepted by the Assessing Officer. The Tribunal found no contradiction in the application of Section 55A and upheld the DVO's report, stating that the reference under Section 142A was in accordance with the law. 4. Determination of fair market value of the asset as on 01.04.1981 for computing long-term capital gain: The Tribunal deliberated on the fair market value of the asset, considering both the DVO's report and the registered valuer's report. The DVO valued the land at Rs. 21 per square meter, while the registered valuer suggested Rs. 25.60 per square meter. The Tribunal found both reports lacking detailed factors affecting land rates. To resolve the dispute, the Tribunal accepted the rate of Rs. 25.69 per square meter, as adopted by the assessee, considering it reasonable and acceptable. Conclusion: The Tribunal allowed the appeal of the assessee, determining the fair market value of the land at Rs. 25.69 per square meter as on 01.04.1981. Consequently, the grounds of appeal raised by the assessee were allowed, and the assessment order was modified accordingly. Order Pronouncement: The order was pronounced in the open court on 12th September 2022, and the result was also placed on the notice board.
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