9911796707
TMI Blog2022 (10) TMI 849X X X X Extracts X X X X X X X X Extracts X X X X ..... We observe that vide order sheet entry ITAT observed that assessee had not filed Form number 35, and accordingly it is not possible to decide whether this ground of appeal was raised before CIT(Appeals). We now observe that a perusal of Form 35 shows that the assessee has not raised any ground of appeal in connection with claim of cost of improvement before Ld. CIT(Appeals). Further, we have also perused the various written submissions filed by the assessee before CIT(Appeals) and from the same also it is apparent that the assessee has not filed any written submissions in respect of the claim of cost of improvement before Ld. CIT(Appeals) for his consideration. Though, apparently order of the CIT(Appeals), wherein the CIT has re-produced the relevant extracts of remand report received from the AO, there an indirect mention that in absence of evidence to the effect, cost of improvement could not be verified , however, besides the above, neither this ground is coming as per the grounds of appeal before CIT(Appeals), nor is it anywhere coming in written submissions filed before CIT(Appeals) during the course of appellate proceedings. Accordingly, in our considered, view ground of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in law, the Ld.CIT(A) ought not to have upheld the valuation made by DVO u/s 50C disregarding the objections raised by the appellant and thereby confirming the addition to the extent of valuation by DVO of RS. 15,49,375/-. 2.3 The Ld. CIT(A) has grievously erred in law and on facts in not considering the claim of cost of improvements, stamp duty etc. of Rs. 15,03,323/-. 3.1 The Ld. CIT(A) has erred in upholding the disallowance of interest expenses of RS. 18,655/-. It is, therefore, prayed that the additions upheld by the CIT(A) may kindly be deleted. 3. Grounds 1.1 and 1.2 of assessee s appeal are general and are covered as part of the succeeding grounds. Accordingly, the same are not being separately adjudicated upon since they are forming part of the succeeding grounds of appeal. Ground 2.1: 4. In this ground, the assessee has challenged the Revenue in confirming the valuation of properties done by DVO under section 50C of the Act, disregarding the objections raised by the assessee and also ignoring the submission of the assessee to the effect that when the discrepancy between the sale value adopted by the DVO and the value of sale of properties as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s.23,06,000/-] 2 37, jay Bhole Bunglows, Bhat Gam, Gandhinagar Rs.26,93,877/- Rs.20,00,000/- Rs.23,70,000/- 3 6, Haridwar Soc., Saijhpur Bogha Rs.47,71,428/- Rs.22,00,000/- Rs.23,23,000/- The V.O. has valued approx near to declare value in return filed by appellant assesses. So many circumstances are working for property purchase and sale like location, construction, neighbor and other facilities payment condition etc, which effect price consideration of property appellant assesses have taken loan paying interest rent realization of property was very law in compare to interest expenses hence appellant assesses was intending to reduce his liabilities at that time it was buyer market as recession was on pick considering the above fact Difference between Value disclosed by assesses and Value assesses by V.O. Rs.639000/- (Rs.5864000/- less Rs.5225000/-) which is about 10.9% appellant assesses request to accept genuine consideration received and declared by assesses in IT Retur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... espect of the same society is ₹ 5384.6 per square metres, whereas the DVO has adopted the land rate at ₹ 6574 per square metres, which is far higher than the prevailing market rate in the same society. The counsel for the assessee further drew our attention to pages 30 and 32 of the paper book and submitted that the DVO has also erred in taking an incorrect average, thereby leading to a higher sale value in respect of the other two properties. Accordingly, the counsel for the assessee submitted that in the instant set of facts the value adopted by the DVO may be ignored for the reasons cited above and the sale value adopted by the assessee may be considered. 8. In response, the DR submitted that the value adopted by the DVO has to be relied upon since the assessee has never challenged/filed any objection against the report prepared by the DVO before Ld. CIT(Appeals) in appellate proceedings. Since the assessee has not challenged the report prepared by the DVO before Ld. CIT(Appeals), therefore the rate adopted by the DVO are to be relied upon. Then the Ld. DR placed reliance upon the observations made by Ld. CIT(Appeals) in his appeal order. 9. We have heard the r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stimation where some degree of difference is bound to occur therefore the Assessing Officer is not justified in substituting the sale consideration at Rs. 20.50 lacs as against actual sale consideration of Rs. 19 lacs disclosed by the assessee. All the aforesaid judicial findings justify that small variation is bound to occur considering the fact that valuation is always a matter of estimation. In the case of the assessee apart of small variation of 12.73% between the sale consideration as per sale deed and the value as per DVO report , there was also encroachment on the impugned land till the time of sale and assessee was not having the possession of the land. In this regard, we have gone through the report of the DVO placed in the paper at page no. 169 to 175 and it is noticed that nowhere in his report the DVO has discussed the encroachment of the land which compelled assessee to sell the land at the price which was only less by about 12% from the value determined by the DVO in his report. The Assessing Officer has considered the material facts of the existence of encroachment on the land and the finding of the Hon'ble Supreme Court since the variation in the value shown in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no cogent evidence that difference between fair market value and apparent consideration was more than 15 per cent, initiation as well as acquisition proceedings u/s 269UD of the Act had rightly been held to be bad in law. 9.6 In the case of Bimla Singh v. CIT [2009] 308 ITR 71 (Patna) , the High Court held that where difference between cost of construction shown by assessee and that estimated by valuer was less than 15 per cent and further construction of house was spread over period of 7 years, difference was so meagre that one could assume it to be bona fide difference, fit to be ignored. 9.7 We further observe that In the case of DCIT v. Unitech Industries (P.) Ltd[1998] 98 Taxman 343 (Punjab Haryana) , the Hon'ble Punjab and Haryana High Court held that fair market value has to be based on factors such as sale of properties situated in same locality, and since land which was treated as a comparable sale instance was not located in same village, the High Court held that reliance by DVO on that sale instance could not be treated as fair basis for determining fair market value. Further, in the case of Suresh C. Mehta, [2013] 35 taxmann.com 230 (Mumbai) , the ITAT h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of cost of improvement before Ld. CIT(Appeals). Further, we have also perused the various written submissions filed by the assessee before Ld. CIT(Appeals) and from the same also it is apparent that the assessee has not filed any written submissions in respect of the claim of cost of improvement before Ld. CIT(Appeals) for his consideration. Though, apparently at page 3 of the order of the Ld. CIT(Appeals), wherein the CIT has re-produced the relevant extracts of remand report received from the AO, there an indirect mention that in absence of evidence to the effect, cost of improvement could not be verified , however, besides the above, neither this ground is coming as per the grounds of appeal before Ld. CIT(Appeals), nor is it anywhere coming in written submissions filed before Ld. CIT(Appeals) during the course of appellate proceedings. Accordingly, in our considered, view ground number 2.3 of the assessee s appeal is infructious since this issue was never raised before Ld. CIT(Appeals) for his consideration. 13. Accordingly, Ground number 2.3 of the assessee s appeal is dismissed. Ground number 3.1 relates to Ld. CIT(Appeals) having erred in upholding the disallowance ..... X X X X Extracts X X X X X X X X Extracts X X X X
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