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TMI Blog2015 (3) TMI 672X X X X Extracts X X X X X X X X Extracts X X X X ..... 12, in-as-much as it relates to the determination of FMV of land as on 01.04.1981, thus, could not be taken cognizance of; the reference in its respect to the DVO being bad in law. - Decided in favour of assessee. Whether the cost of acquisition to be set off is to be of the cost of land or of development rights therein - Held that:- The sale value having crystallized (at ₹ 48.695 cr.), it is the value of the same asset, both quantitatively and qualitatively, value of which has been accepted, that, as on 01.04.1981, shall stand to be set off there-against in computing the LTCG arising to the assessee on its transfer. - Decided in favour of assessee. - I.T.A. No. 5561/Mum/2013 - - - Dated:- 21-7-2014 - SHRI SANJAY ARORA AND DR. S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n as the full value of the consideration received or accruing as a result of transfer, i.e., in terms of section 50C(1). The assessee carried the matter in appeal, raising the following grounds: '1. The Learned Assessing Officer has erred in replacing the sale consideration to the stamp duty valuation invoking provisions of section 50C without appreciating the fact that the assessee has not transferred the entire land but merely granted development right on part of the land. 2. The Learned Assessing. Officer has erred in not considering the Cost of Acquisition of the Land as on 01.04.1981 and treating the Cost of Acquisition of the Development Right as on 01.04.1981 against sale value of entire Land.' The ld. CIT(A) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... egistered valuer, in the opinion of the A.O., is lower than the FMV as on the relevant date. The amendment, relaxing the said condition, so that reference could be made for any variance, i.e., lower or higher, stands made by Finance Act, 2012, w.e.f. 01.07.2012. This proposition had found affirmation by the hon'ble jurisdictional High Court per its decision in the case of CIT vs. Pooja Prints [2014] 360 ITR 697 (Bom). Reference u/s.55A being bad in law, would constrain the A.O. in adopting the DVO's valuation for the FMV of the capital asset as on 01.04.1981. The decision by the ld. CIT(A) is, thus, i.e., in terms of the said binding decision, bad in law. The Revenue, on the other hand, would support the order by the ld. CIT(A). ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... court, per its constitution bench decision in Pooran Mal vs. Director of Inspection (Investigation) [1974] 93 ITR 505 (SC), after an extensive review of judicial precedents, clarified that admissibility of evidence under the Indian jurisprudence lies in its relevancy, so that it would be, where so, admissible, unless of-course there is an express or implied prohibition in the constitution or the law. Evidence obtained as a result of an illegal search or seizure was accordingly held as not liable to be shut out. As such, in its view, even assuming the search or seizure was in contravention of the provisions of s. 132 of the Act, still the material obtained thereby was liable to be used by the income authorities for the purpose of assessment, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... squarely covered by the decision by the hon'ble jurisdictional high court in the case of Pooja Prints (supra). The foregoing aspects stand highlighted by us only with a view of their consideration, in a particular case, by the hon'ble high court, whose decision is binding on us. We, therefore, respectfully following the said decision, hold that no adjustment to the value as on 01.04.1981, as returned by the assessee, could be made with reference to the DVO's report dated 27.12.2012. 4.3 There is another aspect/s of the matter. The ld. CIT(A) has decided this issue purportedly in deciding the assessee's ground no. 2 (supra) before her. The same only refers to whether the cost of acquisition to be set off is to be of the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ell as the development agreement is not before us. Again, per his grounds before the first appellate authority, the assessee contends of having sold only a part of the land. Clearly, if that be so, only the proportionate cost (or FMV as on 01/4/1981) would stand to be allowed set off of, in computing the LTCG. The impugned order is silent on this aspect of the matter. We may also clarify, if one is needed, that the impugned order, though titled as 'Order of rectification', is essentially as much an order u/s. 250(6) as the earlier order dated 11.02.2013 by the ld. CIT(A). The only 'mistake' therein is that it did not consider and dispose of the assessee's ground # 2 raised before her. The scope thereof, therefore, is not ..... X X X X Extracts X X X X X X X X Extracts X X X X
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