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TMI Blog2017 (2) TMI 953X X X X Extracts X X X X X X X X Extracts X X X X ..... 006 to arrive the SRO value as at 01/04/1981. It may give some relief to the assessee as well as to the department. The valuation is done as under; the resultant value comes to ₹ 2841/-. Thus In view of the above discussion, we direct the AO to adopt the FMV at ₹ 2,841/- per sq.yd. and calculate the long term capital gains accordingly. - Decided partly in favour of revenue - ITA No. 1422/Hyd/2015, ITA No. 1423/Hyd/2015, C.O. No. 48, 49/Hyd/16 - - - Dated:- 30-12-2016 - Shri P. Madhavi Devi, Judicial Member And Shri S. Rifaur Rahman, Accountant Member Revenue by : Smt. U. Minichandran Assessee by : Shri G. Kalyandas A. Harish ORDER Per S. Rifaur Rahman, A. M. Both these appeals filed by Revenue pertaining to two assesses(who are brothers), are directed against the orders of CIT(A) 4, Hyderabad, both dated, 19/10/2015 for assessment year 2007- 08. The assessees have also filed C.Os. against the very same orders of CIT(A). As identical issues are involved in these appeals, they were clubbed and heard together, therefore, a common order is passed for the sake of convenience. 2. To dispose of these appeals, we refer to the facts in the case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le transactions. The assessing Officer shall re-decide the issue in accordance with law and after giving reasonable opportunity of hearing to the assessee 3.2 Aggrieved with the ITAT order, the assessee filed a Misc. petition before the ITAT raising similar grounds of appeal and the ITAT vide its order dated 17-07-2012 rejected the Misc. petition filed by the assessee. While rejecting the Misc. petition filed by the assessee, the Hon ble ITAT held as under: 10. At the cost of repetition, we would like to reiterate that on going through the order passed by the Tribunal, we are convinced that the Tribunal passed the order dated 17-07-2012, after marshalling all the facts considering the submissions made before it and applying its mind to the decisions cited before it We do not find any mistake in the order of the Tribunal of the nature as envisaged under section 254(2) of the Act. Permitting the assessee to raise the same issues over again in the guise of rectification will amount to recalling the appeal order in its entirety and re-hearing it afresh, which is not within the scope and ambit of section 254(2) of the Act Consequently, the present applications of the assesses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty was inherited on 2-04-1970. The assessee has inherited as residential property which was originally acquired on 4-02-1970 and become the co-owner of the property along with his brother Sri Aditya Waghray each holding 50% of share in the property. The same property was sold on 16-12-2006 and of the sale proceeds of ₹ 2,67,97,500/- were shown and the capital gains arrived were disclosed in the return of income. The property is acquired on 4-02-1970 thereby the FMV of the property as on 1- 04-1981 was adopted by the assessee as ₹ 49.55 lakhs out of which 50% of share of the assessee is ₹ 24.76 lakhs as per the Registered Valuer. This is the issue of the value as on 1-04-1981 which went to Tribunal and Hon'ble High Court also and which was discussed in detail in above paras. 14.1 As per the assessee, the value of the property as on date of sale on 16-12-2006 as per the SRO for registration purpose of ₹ 33,000 per sq. yards whereas the assessee adopted ₹ 45000 per sq. yard in the sale deed as executed and paid capital gains accordingly. Therefore, the assessee's main submission was that when the registered value was of ₹ 33,000/- per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Commissioner of Income Tax (Appeals) in the facts of the case is not correct in directing the Assessing Officer to adopt FMV of land at ₹ 3875/- per sq. yard as on 01.04.1981 as against ₹ 912l per sq. yard. 2. The Id CIT(A) ought to have not restricted the FMV of the Land situated at Jubilee Hills at ₹ 3875/- per square yard as on 01.04.1981 based on the value admitted by the Respondent. 3. The ld CIT(A) is not justified in not adopting cost of acquisition of land based on the Decision of Ashvin Datla wherein cost of Land in Hydernagar is determined at ₹ 750/- per Square Yard. 4. The Ld CIT(A) ought to have determined the value of the land based on the Sale Deed Value ₹ 45000/- per square yard, after indexation of the Cost as on 01.04.1981 at ₹ 9121/- per square yard for Computation of Capital Gains. 5. Without prejudice to the above, the respondent contends cost of land after indexation based on SRO Value at ₹ 33000/- per Square Yard works out to ₹ 6689/- Per square yard. 6. For these and other Grounds that may be urged, Hon'ble Tribunal may kindly uphold the Cost of Acquisition of Land after indexation a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... resentative for the assessee would not reflect the FMV. Guideline value/basic value register is only for the guidance of registration authorities for the purpose of fixing the market value and collecting the stamp duty thereon. Therefore, in our opinion, taking the guideline value which was fixed in the year 1976 as FMV as on 1.4.1981 is not justified. Though the guideline value in the year 2006 was ₹ 3700 per SY, the valuation officer after taking into consideration the location of the property, availability of infrastructure facilities, potential for future development, availability of the educational institutions and banks has estimated the value as on 1.4.1981 at ₹ 750 per SY. In our opinion, the value estimated by the valuation officer is very reasonable. In the absence of any comparative sale instances in the locality, in our opinion, it is safe on the part of the lower authorities to estimate the FMV as on 1.4.1981 on the basis of the valuation officer. Therefore, in our opinion, the property would definitely fetch ₹ 750 per SY if it is sold in the open market as on 1.4.1981. Therefore, the assessee has reasonably estimated the FMV as on 1.4.1981 at ₹ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that in case comparable cases are not available to determine the FMV, the valuation of registered valuer can be adopted where there is no mistake found in the valuation report. In the given case, AO had expressed his doubt on the valuation report. We have checked the other cases, in case, if there is any transaction in the nearby place. We could not find anything in the vicinity of the property under consideration. The AO has adopted ₹ 13.81 per sq.yd. whereas the valuation done by the assessee at ₹ 3,875/-, which are at extremes. The CIT(A) has accepted the contention of the assessee because the assessee had adopted the valuation done by a registered valuer on sales as well as FMV as on 01/04/1981. In the absence of any comparative sale during the period, the value adopted by the assessee seems to be higher side compared to the value adopted by the AO. This appeal is second round of appeal and there is no possibility of remitting back to the AO for recalculation as there will not be any benefit to either side. In our considered view, we need to find a via media so that it could be beneficial to either side. The Registered Valuer has discounted the value of sale price ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5498 0.91 5003 1986 5003 0.91 4553 1985 4553 0.91 4143 1984 4143 0.91 3770 1983 3770 0.91 3431 1982 3431 0.91 3122 1981 3122 0.91 2841 In view of the above discussion, we direct the AO to adopt the FMV at ₹ 2,841/- per sq.yd. and calculate the long term capital gains accordingly. 13. In the result, appeal of the revenue is partly allowed and C.O. of the assessee is dismissed. 14. As the facts in the case of Aditya Waghray are materially identical to that of Arpan Waghray, following the conclusions therein, the appeal of the revenue is partly allowed and the C.O. filed by the assessee is dismissed. 15. To sum up, both the appeals of the revenue are partly allowed a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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