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TMI Blog2020 (4) TMI 116X X X X Extracts X X X X X X X X Extracts X X X X ..... the order passed by the AO wherein he has considered the fair market value of the property at ₹ 95,28,000/- as on 01.04.1981. In hands of the brother of the assessee the AO has already considered the fair market value of the property as on 01.04.1981 at ₹ 95,28,000/- and since the assessee is holding 50% of the share in the said property, therefore, in the fitness of things the fair market value of the property has to be adopted at ₹ 95,28,000/- as on 01.04.1981. AO is accordingly directed to recompute the indexed cost of acquisition and consequential capital gain in the hands of the assessee. Since levy of interest on tax demand is consequential, the ground on this is dismissed. The grounds raised by the assessee are accordingly partly allowed. - ITA No.7201/Del/2017 - - - Dated:- 14-2-2020 - Shri Bhavnesh Saini, Judicial Member And Shri R.K. Panda, Accountant Member For the Assessee : Shri Rakesh Gupta, Advocate For the Revenue : Shri S.L. Anuragi, Sr. DR ORDER PER R.K. PANDA, AM: This appeal filed by the assessee is directed against the order dated 27th September, 2017 of the CIT(A)-43, New Delhi, relating to assessment year 20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ue of the property as on 01.04.1981 at ₹ 16,32,036/- and accordingly recompute the capital gain. 9. Aggrieved with such order of the CIT(A), the assessee is in appeal before the Tribunal by raising the following grounds:- 1. The learned CIT(A) erred in adopting the FMV as on 01/04/1981 at ₹ 16,32,036/- instead of ₹ 95,28,000/- as determined by the registered valuer in terms of the provisions of section 55(2)(b)(ii) after referring to comparable instances in his said valuation report. 2. That the learned CIT(A) erred in law in ignoring the fact that the assessee has claimed the cost of acquisition of property as on 1.4.1981 at ₹ 95,28,000/- as per the fresh valuation report obtained from a Registered Valuer in terms of Hon ble IT AT order/ direction in the Assessee s Case. However, the Ld CIT(A) proceeded to determine the cost as on 1.4.1981 on its own by referring to land Rates schedule on the website of Ministry of Urban Development and accordingly determined the same at ₹ 16,32,036/-. 3. That the Learned CIT(A) while estimating the Fair Market Value completely ignored the provisions of Section 2(22B) of the I.T Act which makes it cl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bunal. Hence, finding of the CIT(A) on this issue attained finality. Therefore, we are now required to adjudicate as to which report to be adopted either of DVO or of Registered Valuer. To adjudicate this issue, we had gone through the reports, we find that both the registered valuer as well as the DVO had not referred to any comparable instances and simply adopted the value without any reference of the supporting material. The term fair market value has been defined under the provisions of Section 2(22B) of the Act to mean that the fair market value to the value which asset would ordinarily fetch on the sale in the open market on the relevant date. In our opinion, the concept of fair market value envisages of hypothetical seller and hypothetical buyer in hypothetical market. The value assessed by registering authorities for stamp duty purpose cannot be the basis for estimating the fair market value. Therefore, any valuation report based on the value as per the register maintained by the Registering Authorities cannot be taken as the basis for the purpose of valuing fair market value. Hence, we are of the considered opinion that interest of justice would be met, if the matt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uring the period. In such facts and circumstances, we find no merit in the exercise of the jurisdiction by the Commissioner u/s 263 of the Act. Hence, we reverse the same and hold the said order passed u/s 263 of the Act as both invalid and bad in law. Thus, grounds raised by the assessee are allowed. 6. He accordingly submitted that in view of the decision of the Tribunal in the case of brother of the assessee quashing the reassessment proceedings, the value determined by the assessee should have been adopted and the grounds raised by the assessee should be allowed. 7. The ld. DR, on the other hand, heavily relied on the order of the CIT(A). He submitted that the ld. CIT(A) has already granted substantial relief to the assessee by directing the AO to adopt the fair market value of the property as on 01.04.1981 at ₹ 16,32,036/- as against the value determined by the AO at ₹ 6,70,000/-. Therefore, the assessee should not have any grievance and the grounds raised by the assessee should be dismissed. 8. We have considered the rival arguments made by both the sides, perused the orders of the AO and the CIT(A) and the paper book filed on behalf of the assessee. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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