9911796707
TMI Blog2022 (11) TMI 731X X X X Extracts X X X X X X X X Extracts X X X X ..... is also provided to transit to upper level. The property is having good potential value. The rates of various instances are ranging from Rs. 126/- to 2500/- per square meter. In our view the report of Government approved valuer is based on minute details and supported with various comparable. Still considering the entire facts and circumstances, as find that the value suggested by Government approved valuer is on little higher side. No other cost of improvement is claimed by the assessee. Therefore, considering all the facts, the reports of the Government approved valuer and the instances recorded therein and taking holistic view, we direct the assessing officer to take value of land @ Rs. 1200/- per square meter and the rate of RCC and wooden structure @ 800/- per square meter and to re-compute the capital gain. The assessing officer shall allow the exemption under section 54F 54EC, which was otherwise not disputed by him during assessment. Considering the facts, as given considerable relief in directing the assessing officer to adopt the rate of land and construction, therefore, consideration and adjudication of other submissions of the assessee have become academic. In t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... apital gains and deduction under the head capital gains , the Assessing Officer required the assessee to furnish certain details to substantiate his claim. The assessee filed his reply on 31.01.2017. In the reply, the assessee stated that he has sold built up property (asset) admeasuring 101.17 Square meter situated at 3/129, Parsi Sheri, Navapura, Surat on 16.12.2015 for a sale consideration of Rs.90 lakhs. The property was acquired prior to 01.04.1981 and to ascertain its value, the assessee obtained the report of Government Approved Valuer who has ascertained the value of land as on 01.04.1981 at Rs.3,72,050/-. The Government Approved Valuer, Shri Nikunj M. Choksi estimated the rate of land @ Rs.1500/- per square meter and cost of RCC structure was estimated at Rs.950/- per square meter and for wooden furniture estimated valued at Rs.850/- per square meter. The assessee has earned total capital gains of Rs.51,90,208/- out of which, the assessee has claimed deduction under section 54 of the Act of Rs.36,10,728/- on purchase of one residential house at 12, Vishnodevi Farmville, Sector-C, Block No.583/A, Olpad, Surat and Rs.15,79,480/- was invested in infrastructure bond and claim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ces: Sr. No Regn. No. Survey No. Area In sq.mtr Sale Price Rate Per sq.mt. Seller Buyer 1 3804 3/3000 63.5 8000 125.98 Hashmukhlal Thakordas Bros Babubhai Prabhubhai 2 1540 3/1211 59.3 34999 590.20 Shivlal K. Shashiwala Kanaiyalal N Rana 3 2804 3/4000 173.9 275000 1581.37 Jashuben Ochhavlal Dushiyant G Patel 4 2422 3/2939 129.5 77499 598.44 Pransukhlal Umedram HUF Indravadan Champaklal 5 6402 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bmission, the assessee apart from making his submission, as made before the Assessing Officer, submitted that Assessing Officer has not brought any evidence on record to justify that land rate adopted by assessee was on higher side. The Assessing Officer has mentioned that value of land was adopted at Rs. 1,500/- per square meter seems to be on higher side . The Assessing Officer himself was not cited any comparable rates and referred the matter to DVO without any reasoning by simply stating that land rate seems to be on higher side without application of mind. Hence, the reference under section 55A bad in law and without jurisdiction. The rate adopted by assessee on the basis of valuation report of Government Approved Valuer, supported with sale instances should have been accepted. The valuation report of Government Approved Valuer is backed by various sales instances which was ignored by Assessing Officer without bringing anything on record that rate adopted by Government Approved Valuer was on higher side. The report of the DVO was received by assessee on 02.11.2018, after almost one year of completion of assessment order. The assessee filed his objection. The DVO adopted the r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in respect of RCC structure wherein DVO has valued the same at Rs.435/- per square meter as against the value of RCC adopted by assessee on the basis of Government Approved Valuer at Rs.650/- per square meter. The Ld. CIT(A) further noted that assessee has not objected the DVO s report regarding valuation of land as on 01.04.1981 at Rs.850/- per square meter though the Government Approved Valuer valued the same at Rs.1,500/- per square meter. The assessee objected the report of DVO on the ground that in the reference under section 55A of the Act the reference was for land as on 01.04.1981 and not for building / RCC structure and such objection of assessee has no force as draft valuation report was already sent to assessee for his comment before submitting final report to Assessing Officer. No objection was raised by assessee at the time of inspection or against the draft valuation report. Secondly, the assessee contended that Assessing Officer has only referred the valuation of land and therefore valuation report of DVO in respect of land and not in respect of RCC structure. The Ld.CIT(A) held that computation of Long Term Capital Gains made by Assessing Officer for the entire sale ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uring 101.17 Square meter for sale consideration of Rs.90 lakhs on 16.12.2015. The said residential property was acquired prior to 01.04.1981. The assessee adopted it value at Rs.3,72,050/- as on .1.04.1981 on the basis of report of Shri Nikunj Choksi, Government Approved Valuer. The valuer estimated the rate of land at Rs.1,500/- per square meter and RCC structure was at Rs.950/- per square meter and for wooden structure at Rs.850/- per square meter. The report of Government Approved Valuer is filed on record. On the basis of report of Government Approved Valuer, the index cost of land in structure was arrived at Rs.38 lakhs. The sale consideration of Rs.90 lakhs thus, on the basis of index, the assessee computed Long Term Capital Gains of Rs.52 lakhs. The assessee made investment of Rs.36 lakhs by purchased one residential property on 30.03.2015 of claimed deduction under section 54. The remaining amount of Rs.16 lakhs was invested in infrastructure bonds, thus, the assessee also claimed exemption under section 54EC. Thus the Long Term Capital Gains was worked out as nil. The case of assessee was selected for scrutiny. During the assessment, the Assessing Officer asked to substan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he vicinity of Jhaveri bazar. The assessee filed his objection against the proposed valuation of DVO, which was not considered properly. The DVO narrated only three instances in his report. Out of which two instances pertains to year 1979. No sale instances of built-up property are narrated by DVO. The DVO adopted rate of land @ Rs. 880/- and for construction @ Rs.437/- per square meter. No bifurcation of wooden structure or RCC was specified. The ld AR for the assessee submits that the lower authorities may be directed to accept the valuation report furnished by the assessee. 10. In the alternative and without prejudice submissions, the ld AR for the assessee submits that having regard to the facts of the case, the bench may estimate the value of land on the basis of report of DVO and Government approved valuer. As the assessing officer has not made any reference about valuation of RCC structure and wooden structure those value may be accepted as it is. To support his submissions, the ld AR for the assessee relied on the decision of division bench of this Tribunal in Dharmendra B Patel Vs DCIT in ITA No. 55/Srt/2018 dated 30.06.2021, wherein the average of DVO and Government ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... having good potential value. The rates of various instances are ranging from Rs. 126/- to 2500/- per square meter. In my view the report of Government approved valuer is based on minute details and supported with various comparable. Still considering the entire facts and circumstances, I find that the value suggested by Government approved valuer is on little higher side. No other cost of improvement is claimed by the assessee. Therefore, considering all the facts, the reports of the Government approved valuer and the instances recorded therein and taking holistic view, I direct the assessing officer to take value of land @ Rs. 1200/- per square meter and the rate of RCC and wooden structure @ 800/- per square meter and to re-compute the capital gain. The assessing officer shall allow the exemption under section 54F 54EC, which was otherwise not disputed by him during assessment. Considering the facts, that I have given considerable relief in directing the assessing officer to adopt the rate of land and construction, therefore, consideration and adjudication of other submissions of the assessee have become academic. In the result, the grounds of appeal raised by the assessee are ..... 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