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TMI Blog2020 (2) TMI 1522X X X X Extracts X X X X X X X X Extracts X X X X ..... nt period are available Therefore, we are of the view that the Registered Valuer has quite considerate in taking rate at 600 per sq. meter as against ₹ 833 being average rate. As considered the average of three method and has relied upon sale instances of sale price prevalent in the neighborhood in the near about dates of 01.04.1981 . No other factors to determine the value of assets as on 01.04.1981 while the Registered Valuer has examined the relevant factors, which is important to estimate the market value of the land - the valuation report of B.H. Patel in the case of the assessee is quite reasonable and therefore, the issue is decide in favour of the assessee. Accordingly, the AO is directed to apply rate of ₹ 600 per sq. meter for calculation if long-term capital gain in the hands of the assessee. Accordingly, Ground No. 1 to 3 of appeal are allowed. Non-admission of claim of deduction under section 54B on the ground that it was not made during the course of assessment proceedings - HELD THAT:- We find that that Appellate Authorities have power to admit bona fide claim of deduction if is made during appellate proceedings before them. The decision relied by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al sale consideration of ₹ 5,27,02,500 in which assessee`s shares comes to ₹ 52,05,285. The assessee has not disclosed long-term capital gain in return of income but shown capital receipt of ₹ 52,74,144 in the return of income. On enquiry, the assessee has filed working of long-term capital gain at loss of ₹ 1,35,590 based on Government Registered Valuer report of Shri P. K. Desai dated 28.05.2013 by taking FMV as @ 600 per sq. meter as on 01.04.1981.The FMV of entire plot of land area of 8498 was computed at ₹ 50,98,000. However, the AO made a reference to DVO and obtained report dated 29.11.2016 determined FMV at ₹ 2,54,940 by taking FMV value @ 60 per sq. meter as on 01.04.1981. Accordingly, the AO computed long-term capital gain at ₹ 41,03,549 i.e. [ 52,05,285 being 1/10th of sale consideration of the assessee Less index cost of acquisition at ₹ 11,01,736 (4,78,776+6,22,960)]. Therefore, a show-cause notice was issued to the assessee as to why long-term capital gain at ₹ 41,03,549 should not be taken in his case against loss of long-term capital gain shown at ₹ 1,36,590. It was explained that the assessee has got valua ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ), when market value is determined the main factor is sale instances of similar and nearby land sold during the period. After that, there can be minor adjustments. Therefore, the CIT (A) held that DVO has rightly taken the value of land as on 01.04.1981. Hence, the action of the assessee was confirmed. 7. Being, aggrieved the assessee filed this appeal before the Tribunal. The learned counsel for the assessee submitted that the observation of CIT (A) that the assessee has submitted fresh Registered Valuer report for Shri B.H. Patel at the appellate stage amounts as fresh evidence under Rule 46A of Income-Tax Rules, 1962 is not correct as the assessee has duly filed valuation report of B.H. Pate before DVO , which find mention in DVO report dated 29.11.2016. (PB-161) The appellant has relied earlier on report of Shri P.K. Desai and subsequently it has filed fresh evidence under Rule 46A. The learned counsel for the assessee has drawn our attention to Paper Book Page No. 157 to 164, which is copy of DVO, report dated 29.11.12016 which contained a reference in para No. 10 P(Placed at Paper Book Page No. 161) and submitted that it has been clearly mentioned by the DVO that the asses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Kaushik Sureshbhai v. ITO-Wd-7(2) Surat [I.T.A.No. 3374-3380/Ahd / 2009 dated 09.04.2010.]. In view of this matter, it was submitted that DVO has only considered the sale instances of agricultural land for the year 1981 or 1980 etc. of the same village or vicinity area and only average find out case in Pal Surat, average of four sale instances is ₹ 59.85 per i.e. ₹ 60 per sq. meter adopted but valuation not adopted / applied by taking other factors of adjustment /influence and not given any weightage even though clear guidelines published by the IT Department (Page No. 45 to 51) hence, ₹ 60 per sq. meter as on 01.04.1981 fixed by the DVO is quite unfair, unreasonable and on lower side also. It was also stated that there 50 factors which were enclosed as Annexure VII, hence, same are also required to be considered for fixing the agricultural land price as on 01.04.1981. 8. Per contra, the ld. Sr. D.R. relied on the orders of lower authorities. 9. We have heard the rival submissions and perused the relevant material on record. We find that the observation of the CIT (A) that B.H. Patel valuation report is additional evidence under Rule 46A is not correct as th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that it was not made during the course of assessment proceedings. 11. The assessee has shown long-term capital gain loss hence, the assessee has not made claim of deduction of ₹ 44,82,725 under section 54B of the Act However, when the long-term capital gain was not allowed then a claim of deduction under section 54B was made before the AO. However, the AO had not entertained the same. 12. Being, aggrieved, the assessee filed an appeal before the Ld. CIT (A). However, before CIT (A) this claim of deduction was left out therefore, it was raised as additional ground before CIT (A). However, CIT (A) observed that it is seen that the assessee has neither claimed deduction under section 54B of the Act in the return of income nor it was claimed during the course of assessment proceedings. This claim of deduction is filed during appellate proceedings. Since the assessee has not made this claim by filed return of income under section 139(5) of the Act. The CIT (A) has not allowed the same as the AO has no power to entertain the claim other than revised return of income. 13. Being, aggrieved the assessee filed this appeal before the Tribunal. The learned counsel for the asses ..... X X X X Extracts X X X X X X X X Extracts X X X X
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