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TMI Blog1977 (7) TMI 67X X X X Extracts X X X X X X X X Extracts X X X X ..... (3) Malki Rs. 20,825.00 (4) Statutory allowance at 15% on Rs. 26,13,914.40 Rs. 3,92,087.10 . . Rs. 30,06,001.50 This award is approved by the Government of India in their letter No. RD 263 AQB 72 dt. 14th Dec., 1972. There were also further claims from 24 persons who claimed to be lessees under the various lease deeds by the assessee and out of the grand total compensation award of Rs. 30,06,001.50 the share of the assessee was fixed by the Land Acquisition Officer by his order dt. 22nd Jan., 1973 at Rs. 18,49,837, balance of the award amount being distributed between the 24 other lessees who claimed a portion of the award amount. 4. On the basis of the compensation actually received by him the assessee therefrom a sum of Rs. 8,40,000 as the fair market value of the property a on 1st Jan., 1954 and declared the balance of Rs. 10,09,837 as capital gains. 5. The ITO noted that the assessee had claimed compensation at Rs. 250 per sq.yd. as against Rs. 125 per sq.yrd. awarded by the Special Land Acquisition Officer and according to the claims of the assessee his share of the compensation would, according to the ITO, have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the assessee could be taken as the amount of consideration the learned Departmental Representative relied on s. 48 of the IT act which refers to the full value of the consideration received or accruing as a result of the transfer and according to the learned Departmental Representative in this case it could be held that the higher amount claimed by the assessee did accrue to the assessee although it had not been actually received. In any case, he urged that the Tribunal may pass an order directing that whatever amount is ultimately fixed as compensation may be substituted for the full value of the consideration for the purpose of computing the capital gains under s. 48. 9. In this regard, the learned counsel for the assessee, apart from supporting the order of the AAC, urged a number of points. Since, however, we are in agreement with the AAC that the full value of the consideration in this case can only be taken as the figure of Rs. 18,49,837 it is really not necessary for us to deal with the other arguments stated by the learned counsel for the assessee. However, for the completeness, we will only briefly mention them. 10. Relying on the instruction No. 251 issued by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esting arguments urged on behalf of the assessee with regard to s. 52(2) because from what we have quoted of the assessment order of the ITO is clear that the ITO has not, in fact, applied not has he purported to apply the provisions of s. 52(2) of the IT Act at all. It is clear that, according to the ITO, because the assessee has not accepted the award granted by the Special Land Acquisition Officer the amount claimed by the assessee itself is the full value of the consideration. The words 'full value of the consideration occur in s. 48 and substitution of the fair market value is referred to in s. 52(2). Nowhere has the ITO stated that the fair market value is referred to in s. 52(2). Nowhere has the ITO stated that the fair market value is the value which the assessee has claimed before the Land Acquisition Officer as well as in reference against that Officer's order. In essence the argument urged by the learned counsel for the assessee comes to this that the ITO could have enhanced the full value of the consideration upto the fair market value only under s. 52(2) and, therefore, and enhancement made by the ITO should be taken to have been done under s. 52(2) and since the IAC's ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... higher amount becomes payable to the assessee to the higher amount could be said to be due the assessee from the date of the award by to the Land Acquisition Authority but that is purely a hypothetical proposition so far as this appeal is concerned. The question would arise; if and when either the District Judge or the High Court or the Supreme Court decides that a higher amount of compensation should be paid to the assessee. So long as the award of the Special Land Acquisition Officer is not in fact by a higher authority all that the assessee is entitled to is the amount actually awarded by the Special Land Acquisition Officer and no more. The order of the AAC in this regard, therefore, is fully justified and needs no interference. 14. The learned Departmental Representative's request that we may give a direction that the amount that may ultimately be awarded may be substituted for the full amount of consideration cannot, in our opinion, be acceded to. Of course, he has referred to some other cases in which similar directions were given by us but the facts of those case were different and it was not case of computation of capital gains. Having held that under s. 48 the full val ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... economically justifiable and the income from property is a normal commercial and not a controlled return. It is, of course, open to the Department to take inconsistent stands in different cases. As has been observed in a judgment of House of Lords inconsistency is as much a privilege of the Revenue as for the tax payer. But the Tribunal cannot claim inconsistency as its privilege. In our opinion, the observations of the Supreme Court extracted above squarely apply to the facts of this case and the capitalisation of the rental method in arriving at the fair market value of the property as on 1st Jan., 1954 is not the proper method of follow in this case. It may be noted that the full compensation awarded is on the basis of the value of the land and structures separately. The assessee had filed a report of valuer according to whom the value of the property as on 1st Jan., 1954 as Rs. 8,40,000. That value, of course, is not binding on the Department and it will be open to the ITO to determine the fair market value of the property afresh. We accordingly set aside the order of the ITO and the AAC in this regard and direct that the fair market value of the property as on 1st Jan., 1951 b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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