9911796707
TMI Blog2014 (7) TMI 384X X X X Extracts X X X X X X X X Extracts X X X X ..... not estopped from contending that the value taken for wealth-tax purposes need not be followed for capital gains purposes, that value taken for wealth tax purposes could be considered to be the only one piece of evidence which could be contradicted by the assessee by producing further data for a more accurate determination of the market value. The report given for the Wealth tax purposes need not be considered for the Income tax purposes, particularly for computation of capital gains - this aspect was not before AO at the time of completing the assessment - the assessee filed additional evidence in the form of order in the case of Pankaj. P. Shah , accepting assessee valuation in the subsequent order passed after CIT(A) order and also two valuation reports of the department dated 19.04.90 valuing property as on 31.03.87 to 31.03.88 - These valuation reports of the department along with the Wealth tax report of Shri Umrigar are to be considered viz-a-viz the report of Shri Ganjawala - The assessee’s objection on adopting report of Shri Umrigar for the purpose of capital gains also required detailed examination of the AO, as CIT(A) took upon himself without giving opportunity to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rightly observed that reference to DVO u/s 55A and its valuation of ₹ 29,62,000/- was incorrect, as specifically held by the Hon ble ITAT in one of the coowners case. 2. These appeals and cross objections were argued together by both the parties, hence, for the sake of convenience these appeals and cross objections are disposed of by this consolidated order. 3. It may be mentioned here that Department is aggrieved by the relief given by Ld. CIT(A) and has filed aforementioned ground of appeal and in cross objection the assessee is just supporting the order passed by Ld. CIT(A). 4. Both the assessees are co-owners of one property namely, Plot No.105B at Sion -Matunga Scheme No.6. The said property was devolved upon these assesses as co-owners alongwith other co-owners under the family settlement and it was sold in the year under consideration for a total consideration of ₹ 4.21 crores. In order to determine the fair market value as on 1/4/1981 for the purpose of computing capital gain, the assessee has referred the matter to Registered Valuer , who has valued the share of assessee in the said property at ₹ 43,10,000/- as on 1/4/1981. Accordingly, capital ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d back to the file of AO with the following observations: 8. We have considered the issue. There is no dispute with reference to adopting value as on 01.04.81 for the purpose of cost of acquisition and subsequent indexation. The issue is only with reference to value to be adopted. The assessee along with other co-owners adopted the value of M/s. Ganjawala at ₹ 43.10 lacs which was also accepted in other cases as the AO has no power to refer to the valuation officer in a case where assessee relied on Regd. valuers report, so as to determine at a lesser value,as held by the Hon'ble Jurisdictional High Court with reference to power of AO for determining the cost of acquisition when assessee submitted his own valuation report. this principle was followed in the case of Mrs. Asha Bharat Shah , another co owner and the AO was directed to accept the cost of acquisition as reported by Shri Ganjawala. In the present case the CIT(A) came to know about the existence of another report of Shri Umrigar, which was in fact adopted for the purpose of Wealth tax . Even the method of valuation was also different as Shri Umrigar did not consider the open land which is available for future ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urn that the value of the property was ₹ 1,30,000 amounted to an admission, it did not estop him from contending otherwise in the income-tax proceedings. Though section 55 of the Income tax Act uses the phrase fair market value of the asset as on 1..1.1964 , and section 7 of the Wealth-tax Act uses the phrase value of any asset, other than cash, for the purpose of this Act, it shall be estimated to be the price which in the opinion o the WTO it would fetch if sold in the open market on the valuation date and, thus, both practically mean the same. Both the provisions of the Acts require the determination of the value of an asset with reference to the facts relating to the assets such as its location, its features, the market value of other properties in the locality and at works, the expert opinion of valuers. Still any such determination of the market value will remain an opinion of the valuer on hypothetical basis or at best an estimate based on relevant data. Such an opinion is only a piece of evidence when a similar determination is required under another Act. It is always open to the assessee to show that the determination of the market value under the provisions of on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of Shri Ganjawala. The assessee s objection on adopting report of Shri Umrigar for the purpose of capital gains also required detailed examination of the AO, as CIT(A) took upon himself without giving opportunity to the AO. In view of these, since the issue of adoption of value under section 50C was referred to the AO by the CIT(A), this issue also required to be set aside to the file of AO. Therefore, both issue of sale consideration under section 50C(2) and cost of acquisition as on 01.04.81 for computing of capital gains should be examined by AO afresh. For this, the order of the AO is set aside and issue restored to the file of AO. The AO is directed to keep in mind the orders of ITAT in other co-owner cases and also principles laid down on the above two issues. Before deciding the issue, assessee should be given due opportunity in the proceedings. With these directions, the issue of ground No.2 is restored to the file of AO. Ground considered allowed for statistical purposes. Copy of aforementioned order was placed on our record and was also given to Ld. DR. It was the common contention that the matter may be restored back to the file of AO so that there may be uniformity o ..... 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