TMI Blog2019 (11) TMI 594X X X X Extracts X X X X X X X X Extracts X X X X ..... said land - HELD THAT:- main basis of addition on this ground was that existence of poultry farm building was not emerging from the sale deed, however, the other vital evidences submitted by the assessee in support of existence of poultry farm building were not considered by the AO. But those were taken into consideration by the CIT(A). That further in the record, it is stated that the assessee had availed bank loan from Central Bank of India for construction of the poultry farm building and in support thereof the assessee has placed before the CIT(A), the copies of certificates issued by the Central Bank of India, civil Lines Branch, Raipur. CIT(A) had adjudicated the issue regarding existence of building constructed right from the time when survey took place, a declaration by the assessee was made before the survey team regarding the construction of the poultry farm building and the bank loan was taken by the assessee for construction of the said poultry farm building. All these were analyzed by the Ld.CIT(A) and therefore, existence of poultry farm building cannot be doubted. Thus, relief provided to the assessee in view of provisions of Section 50 of the Act is thereby sus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t there should not be any cohesive action by the quasi-judicial Authority. It is the duty of the quasi-judicial authority, the AO or the Ld. CIT(A) to guide the assessee to enable him to get benefit whether or not claimed by him for which he is legally eligible. We do not find any infirmity with the findings of the Ld. CIT(A) and relief provided to the assessee is hereby sustained. - ITA No. 52/BLPR/2012, ITA No. 56/RPR/2012 - - - Dated:- 7-11-2019 - Shri Anil Chaturvedi, AM And Shri Partha Sarathi Chaudhury, JM For the Assessee : Shri R.B. Doshi For the Revenue : Shri Sanjay Kumar ORDER PER PARTHA SARATHI CHAUDHURY, JM : These cross appeals preferred by the assessee and Revenue emanates from the order of the Ld. CIT(Appeals), Raipur dated 15.03.2012 for the assessment year 2009-10 as per the grounds of appeal on record. 2. These cases were heard together. Since facts common and issues are similar, these cases are being disposed of vide this consolidated order. For the sake of convenience, we would first adjudicate the Revenue s appeal in I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the calculation of the fair market value for the land sold by the assessee u/s.55(2) (b) of the Income Tax Act, 1961 (hereinafter referred to as the Act ) . 5. The brief facts on the issue are that the Assessing Officer has stated in his order that as per information/documents received from the Registrar, Raipur it is clear that the assessee had purchased land at Labhandih bearing khasra No.382/1 of 0.426 hectare, Khasra No.382/3 of 0.162 hectare and Khasra No.382/4 of 0.214 hectare from Shri Dinesh Rathore, Fafadih, Raipur on 15.03.1977 for ₹ 18,000/- i.e. ₹ 0.20/- sq.ft that the purchase price of land at Labhandi bearing Khasra No.381/1 of 0.275 hectare from Shri Shivram Panka, S/o. Shri Umrao Panka, Labhandi on 21.08.1979 at ₹ 12,000/- that in the absence of the Government Guidelines, the price of the land per square feet at village Labhandi as on 21.08.1979 will be suitably taken at ₹ 0.41 i.e. the purchase price of the land by the assessee that since the plot was agricultural land and by considering the price of land to increase @20% per year, the market price of the plot as on 01.04.1981 will be ₹ 0.60/- sq.ft. Thus, the fai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the DVO was obtained and moreover, when the assessee submitted a report of the registered valuer, same cannot be ignored or substituted without obtaining report of technical person i.e. DVO and or some other technical expert. 10. Reverting to the facts of the present case, it is undisputed and admitted fact that neither the Assessing Officer nor the Ld. CIT(A) had made reference to the DVO for estimation of the fair market value of the said land in question. Both the Authorities evolved their own ideas calculating the estimation of the fair market value without referring the matter to the DVO. This cannot be accepted within the ambit of the Income Tax Act. 11. We have perused the case records and heard the rival contentions. We have also analyzed the judicial pronouncements placed before us. The assessee has adopted fair market value as on 01.04.1981 at ₹ 50/- per Sq. Ft. The Assessing Officer has considered the same to be at ₹ 0.60/- per Sq. Ft. as per own calculation and estimation without referring the matter to the DVO. The Ld. CIT(A) as per reasons appearing in his order considered the fair market value on estimation basis @ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isited the Poultry Farm of the appellant at Lalbandih, Raipur. I find that the appellant did give statement before the survey team that he owns the poultry farm land on which poultry farm building was got constructed between 1977 to 1986 and that no investment was made thereafter, the relevant page of the statement is contained in page No.131 of the paper book submitted by the appellant. The photographs submitted by the appellant are also providing strength to the claim of the appellant. The books of accounts of the appellant for the assessment years 2008-09, 2007-08, 2006-07 and 2005-06 were audited u/s.44AB and in the financial statements also, the auditor mentioned the nature of business of the appellant to be that of poultry farming. I find that the appellant did claim depreciation in respect of building and cages, grinders etc. I am of the considered opinion that merely because the fact of existence of poultry farm building is not emerging from the sale deed, the vital evidences submitted by the appellant in support of existence of poultry farm building cannot be disregarded. 5.4 It is also seen that the appellant had availed bank loan from Central Bank of I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on which poultry farm building was got constructed between 1977 to 1986. The books of accounts of the assessee for the assessment years 2008-09, 2007-08, 2006-07 and 2005-06 were audited u/s.44AB and in the financial statements also, the auditor mentioned the nature of business of the assessee to be that of poultry farming. The main basis of addition on this ground was that existence of poultry farm building was not emerging from the sale deed, however, the other vital evidences submitted by the assessee in support of existence of poultry farm building were not considered by the Assessing Officer. But those were taken into consideration by the Ld.CIT(A). That further in the record, it is stated that the assessee had availed bank loan from Central Bank of India for construction of the poultry farm building and in support thereof the assessee has placed before the Ld.CIT(A), the copies of certificates issued by the Central Bank of India, civil Lines Branch, Raipur. The Ld.CIT(A) had adjudicated the issue regarding existence of building constructed right from the time when survey took place, a declaration by the assessee was made before the survey team regarding the construction of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... portunity (a) to examine the evidence or document or to cross examine the witness produced by the appellant or; (b) to produce any evidence or document or any witness in rebuttal of the additional evidence produced by the appellant . However, Rule 46A(4) categorically states as follows: (4) Nothing contained in this rule shall affect the power of the [Deputy Commissioner (Appeals) or as the case may be, the Commissioner (Appeals) to direct the production of any document or the examination of any witness, to enable him to dispose of the appeal or for any other substantial cause including the enhancement of the assessment or penalty (whether on his own motion or on the request of the [Assessing Officer] under clause (a) of sub section (1) of Section 251 or the imposition of penalty under section 271. That from this, it is absolutely clear that notwithstanding anything contained in this particular Rule, the Commissioner (Appeals) shall have power to direct the production of any document or examination of any witness to enable him to dispose of the appeal. 22. Therefore, it was well within the jurisdiction of the Ld. CIT(A) to admi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rwal Vs. Income Tax Officer, Bilaspur wherein it was observed by the Bench as follows: Further, we agree with the submissions of the Ld. AR that it is duty of the Assessing Officer to guide the assessee and allow the deduction wherever and whenever it is applicable depending on facts and circumstances of each case. The Income Tax laws are welfare in nature and the very purpose of welfare legislation is that there should not be any cohesive action by the quasi-judicial Authority. Even if, the assessee has not claimed, the Assessing Officer is duty bound to guide the assessee and allow the deduction. Thus, duty of the Revenue Authority is to communicate with the assessee and provide them required relief or deduction for which he is legally eligible. In that way, there will be continuity of justice and fair-play and the principles of natural justice shall be upheld for its true purpose and applicability. 29. We also find that the Revenue Authorities have not contradicted the facts and circumstances in this case regarding claim of exemption u/s.54B of the Act by the assessee. Meaning thereby ingredients required for the exemption u/s.54B of the Act ..... X X X X Extracts X X X X X X X X Extracts X X X X
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