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TMI Blog2017 (8) TMI 1253X X X X Extracts X X X X X X X X Extracts X X X X ..... wners, a plot of land situated at, 16/lF, East Topsia Road, Tiljala, 24- Parganas (5) and the cost attributable to the assessee's l/3rd share was of Rs.l,65,000/- . During the year under consideration, the said land was sold for Rs. 19,35,015/-. The A.O. noticed that the sale value adopted by the Stamp Valuation authority for the entire plot of land was of Rs. 2,56,33,822/-, whereas Deed of Conveyance reflected the sale consideration to the tune of Rs. 58,05,000/- only. In terms of the deed of conveyance the assessee was to have received Rs. 19,35,000/- as its l/3rd share of the sale proceeds, the amount receivable in terms of the stamp duty valuation was of Rs. 85,44,607/-. During original assessment proceedings, the A.O. asked the assessee to explain as to why stamp duty valuation should not be deemed to be the full value of consideration of transfer for the purpose of capital gain u/s. 50C of the Act. Thereafter, the A.O. referred the matter to the D.V.O., who after allowing time to the assessee and obtaining further information/details/datas from Alipore Sub-Registry Office, estimated the total value of the impugned land at Rs. 2,52,13,000/-. The assessee objected to such adopt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... circumstances of the case and in law, the CIT(Appeals) erred in allowing relief to the assessee by accepting the valuation made by the appellant and not considering the valuation made by the Departmental Valuation Officer, thereby reducing the amount of Long Term Capital Gain on sale of property. " Ground No.2 : "That, on the facts and in circumstances of the case and in law, the CIT(Appeals) erred in allowing relief to the assessee by holding that the A 0 has not come up with any reliable material and findings while making the addition while on the contrary AO had passed the order after gathering sufficient material on record and considering the appellant's submissions." Ground No.3 : "That, on the facts and circumstances of the case, and in law, the Ld.CIT(A) has erred in allowing relief to the assessee firm by relying on judgments in cases wherein the factual matrix are different from that of the present case of the appellant firm. Ground No.4 : "That the appellant craves leave to submit additional grounds of appeal, if any, at or before the time of hearing and/or alter, modify, reframe any grounds of appeal at or before the time of hearing." 5. The ld. Senior Depart ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... follows :- "4. After hearing the rival submissions and on careful perusal of the materials available on record and taking into consideration the various submissions made by the Ld. Counsel for the Assessee and the ld. DR and further on careful perusal of the provisions of section 50C, we are of the considered opinion that the AO has passed the assessment order in order to comply the statutory requirements by completing the assessment before 31.12.07 and we further observe that the materials brought on record by the assessee before the AO has neither been considered by the AO nor by the Ld. CIT(A). Therefore, in the interest of justice, we set aside the matter to the file of the AO to re-decide the issue, as per law, after taking into consideration of the various materials filed by the assessee and after giving a reasonable opportunity of being heard to the assessee. " 8. The Tribunal while doing so considered the objections of the assessee on the DVO's valuation. The Registered Valuer of the Income Tax Department, in his valuation report, had valued the very same land at Rs. 58,05,000/-. On these facts the First Appellate Authority in his impugned order held as follows :- "7. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -e-Burhani, who acquired the same between 22/01/2004 and 07/04/2004 for the purpose of constructing of a Mosque. Further, from the letter dated 16/1/2004 received by the appellant from Anjuman-e-Burhani, quoted above, it is evident that the appellant had no real option but to sell the land to this society at a price offered by them. In such situation, there was hardly any option to bargain for better price. Price of a land depends on its geographical position and availabilities of civic amenities. The stamp duty authority generally estimates the value Ward-wise. The Stamp Duty authorities value a property for stamp duty purposes simply on the basis of pre-declared rate and not on the basis of the factors governing each individual premise as had been wrongly presumed by the A.O. It is also fact that each part of the Ward may not fetch the same geographical situation, civic facilities and other factors, therefore, the impugned land cannot fetch such value as estimated by the A.O. and DVO depending upon the value adopted for the purpose of stamp duty. 7.3. The A.R to justify the sale price of the impugned land has referred to the Govt. Notification No.72-LA(Cal)1-2/2000/M.A. dated 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ad. 3. Frontage on a road. 3. Narrow strip of land With small frontage compared to depth 4. Nearness to developed area. 4. Lower level requiring filling up 5. Regular shape factor which would deter a purchaser. 5.Some special disadvantageous If the above factors are applied to the appellant's property, it would be seen that in comparison to plus factors, minus factors existed much at the relevant time. The area of plot was large, which was about 114.95 cottahs. The plot was not on the main road, rather the front approach road was narrow, kutcha and without drainage facility. The approach road was ending at the Mosque which was surrounded by kutcha hutments of slum dwellers. The land at the relevant time was a dumping ground of KMC garbage and thus soft and underdeveloped without proper filling. Further, right to peaceful enjoyment of the property was disturbed and free choice of sale was not possible due to insistence by Anjumane- Burhani for transfer of the land at the price settled by them. It appears, neither the DVO nor the AO has considered the above things while determining the fair market price of the land and instead they were simply guided by the v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the jurisdiction of M/s. Milap Leather during the financial year 2007-08 (during which the assessment for A.Y. 2005-06 was to get barred) was found to be with A.CLT., Circle-31, Kolkata. Accordingly, A.CL.I.T., Circle-31, Kolkata was requested to inform whether any scrutiny assessment was made in this case. He informed that no scrutiny assessment was made in that case also." 8. After considering the facts and circumstances of the case in totality and judicial precedence referred to above, I find merit in the submission of the appellant and find no justifiable reason to adopt the deemed value of sale consideration of the appellant's 1/3rd portion in the property at Rs. 84,04,333/- and consequential assessment of Rs. 82,38,733/- under the head LTCG. Therefore, appeal on this ground is allowed." 10. We find no infirmity in the order of the First Appellate Authority. This is a case where there are two valuation reports, one by the Departmental Valuation Officer and the other by the Registered Valuer of the Income Tax department. In such a situation, we are of the opinion that the adjudicating authority has to examine both the reports on facts and come to a conclusion as to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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