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TMI Blog2011 (2) TMI 48X X X X Extracts X X X X X X X X Extracts X X X X ..... ing aggrieved with the order of learned CIT(A), both the assessee and the department have preferred appeals before us. First we take up the assessee's appeal. 3. The grounds raised in appeal by assessee read as under : "1. The Ld. Commissioner of Income tax (Appeals), Udaipur, grossly erred in law as well as on facts of the case by confirming the sale value of the Swaroop Sagar Property at Rs. 97,89,450/- u/s. 50-C of the IT Act, on the basis of value taken by the Stamp Valuation authority for stamp duty purpose, as against actual sales consideration of the said property was Rs. 60,00,000/- which is unjustified, unwarranted and bad in law. 2. The Ld. Commissioner of Income Tax (Appeals), Udaipur, failed to appreciate that the actual sale value was only the fair market value of the aforesaid property in open market as the property was situated near Swaroop Sagar Lake, Udaipur which is notified as restricted area where constructions are banned by the State Government, therefore, order of the Ld. Commissioner of Income tax (Appeals), Udaipur, for ignoring the above facts, is unjustified, unwarranted and bad in law. 3. The Ld. Commissioner of Income Tax (Appeals), Udaipur, assumed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the provisions of section 50C are clearly applicable to the assessee. Therefore, he adopted the sale consideration at Rs. 97,89,450/-. 5. Before the learned CIT(A), the assessee reiterated the contentions as were made before the Assessing Officer, inter alia pointing out that the Stamp Valuation Authority completely ignored the fact that the said property was under severe restrictions. It was further submitted that the sale consideration adopted by the assessee was justifiable from the approved valuer's report who had valued the property at Rs. 60.70 lacs. The learned CIT(A), however, did not accept the assessee's contentions and pointed out that the Assessing Officer adopted the sale consideration in accordance with the provisions of section 50C of the Act. 6. The learned counsel for the assessee narrated the facts as noted above and submitted that because of the restrictions of UIT, there could not be any construction by the side of the lake. He referred to page 50 of the paper book, wherein the valuation report dated 28.12.2006 of the registered valuer is contained, who has determined the market value of the property as on 01.04.2003 at Rs. 60.70 lacs. The ld. counsel refe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e made by the Assessing Officer under sub-section (1) of section 16A of that Act. Explanation. - For the purposes of this section, "Valuation Officer" shall have the same meaning as in clause (r) of section 2 of the Wealth-tax Act, 1957 (27 of 1957). (3) Subject to the provisions contained in sub-section (2), where the value ascertained under sub-section (2) exceeds the value adopted or assessed by the stamp valuation authority referred to in sub-section (1), the value so adopted or assessed by such authority shall be taken as the full value of the consideration received or accruing as a result of the transfer." 9. The ingredients of the section are as under : (i) If the valuation adopted or assessed for stamp duty purposes is more than the stated consideration in the sale deed then, the valuation for stamp duty purposes will be deemed to be the sale consideration. (ii) If the assessee disputes the stamp duty valuation before the Assessing Officer, he may refer the valuation of the capital asset to DVO subject to the condition that valuation adopted by the stamp valuation authority has not been disputed by the assessee before any higher forum. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he only ground raised by the department reads as under : "On the facts and in the present circumstances of the case, the ld. CIT(A) has erred in directing the AO to adopt the fair market value of the property situated at Mumbai as on 01.04.1981 at Rs. 9,76,000/- as against Rs. 1,91,000/- taken by the AO." 13. The brief facts apropos the issue are that during the year under consideration, the assessee sold a flat No. 165 situated at Jolly Maker Apartment Cuffe Parade, Mumbai for a consideration of Rs. 80,00,000/-. This property was acquired by the assessee as per gift deed dated 31.05.2001 from Shri Gaurang Singhal. Since the property was acquired through gift, the cost of acquisition of the property to the original owner was to be adopted and the same was Rs. 96,600/- on 29.09.1977. Since the flat was purchased on 29.09.1977, the assessee adopted the fair market value of the property as on 01.04.1981 at Rs. 11,76,000/-. The Assessing Officer required the assessee to justify the valuation at Rs. 11,76,000/- as on 01.04.1981. The assessee filed copy of valuation report prepared by Chawala Architects & Consultants Pvt. Ltd., Mumbai. The Assessing Officer noticed that the valuation r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aluer, M/s. Kanti Karmesey & Co., Mumbai valued the aforesaid property based on similar property in cuffe Parade Area. The registered valuer valued the property under sale @ Rs. 1150/- per sq. ft. relying on the factor of appreciation in cost of property from Rs. 874/- per sq. ft. as on 02.05.1980 to the date of valuation, i.e., 01.04.1981 and other valuation documents. The Assessing Officer also pointed out that in the report, the valuer himself has calculated the appreciated value of the property based on interpolation at Rs. 1000/- per sq. fit. as on 01.04.1981. He further pointed that the registered valuer has adopted the value of parking at Rs. 10,000/- which is nowhere under sale. He further pointed out that the parking amenities were attached with property under sale and neither the assessee paid any cost for that nor it was separately transferred. The learned CIT(A), after considering the remand report invited the assessee's comments. The assessee inter alia pointed out that the Assessing Officer has accepted the value taken by the Government Registered Estate Valuer, M/s. Kanti Karamsey & Co., Mumbai. The learned CIT(A) Pointed that the Government Registered Estate Valuer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e valuation as per registered valuer's second report has to be accepted. There cannot be any quarrel with the position that since the valuer is an expert of his field, therefore, his opinion cannot be substituted by the opinion of a non-technical person. Admittedly, the Assessing Officer is not a technical person to determine the valuation of property and therefore, under the normal circumstances, the valuation as per registered valuer's report has to be given weightage than that determined by the Assessing Officer. This is also evident from the observations of the Tribunal which are reproduced hereunder : "18. Insofar as assessee's claim for adopting cost as on 01.04.1981 on the basis of approved valuers' reports who are technical in the matter of valuation is concerned, it can be seen from the record that the assessee acted bona fidely by taking opinion from experts and taking least of the cost as on 01.04.81 estimated by the two approved valuers. The second valuation report submitted by Arun Kumar Goyal was a valid report as the same merely corrected the calculation errors in his first report. The Assessing Officer himself is not a person competent to comment on technical matte ..... X X X X Extracts X X X X X X X X Extracts X X X X
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