TMI Blog2013 (8) TMI 623X X X X Extracts X X X X X X X X Extracts X X X X ..... ment Authority, Agra because that plot is having potentiality for constructing of many floors suitable for Nursing Home, Multi storey flat etc. Certainly, these are part and parcel of valuation of the plot – No infirmity in the valuation made by D.V.O – Decided against the Assessee. - ITA No.119/Agra/2013 - - - Dated:- 9-7-2013 - Shri Bhavnesh Saini And Shri A. L. Gehlot,JJ. For the Appellant : Shri P. N. Agarwal, Advocate For the Respondent : Shri Waseem Arshad, Sr. D.R. ORDER Per A. L. Gehlot, Accountant Member:- This is an appeal filed by the assessee against the order dated 14.03.2013 passed by the ld. CIT(A)-II, Agra for the A.Y. 2004-05. 2. The assessee has raised the following grounds of appeal :- "1. That the authorities below have erred on facts and in law in estimating the taxable Capital Gain at Rs.43,49,587/- ignoring all the evidences and explanations filed before them, as well as, filed before the Assistant Valuation Officer, Agra. 2. That the Order under Section 254 read with Section 147/143(3) dated 15.12.2011 passed by the ITO-4(1), Agra is bad in law being based on illegal and out of jurisdiction Order u/s 50C of the Income Tax Act, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld that the A.O. has rightly taken sale consideration at Rs.53,00,000/- as per provisions of section 50C of the Act. The assessee preferred appeal before the I.T.A.T. The I.T.A.T. vide order dated 25.06.2010 in ITA No.705/Agr/2008 restored the matter to the file of the A.O. with direction that the A.O. shall refer this matter for valuation to the D.V.O. The relevant abstract of the direction of the I.T.A.T. is reproduced as under:- "8. Respectfully following the aforesaid decision, we set aside the order of the CIT(A) and restore this issue back to the file of the A.O. with the direction that the A.O. shall refer this matter for valuation to the D.V.O. for determining consideration of the asset sold by the assessee under section 50C of the Act." 5. In compliance to the direction of the I.T.A.T, the A.O. accordingly referred the matter to the D.V.O. The D.V.O. vide letter dated 18.02.2011 issued to the assessee informed the proposed estimation of fair market value of the property at Rs.54,03,600/- as on 03.11.2003 and called upon the assessee to file objections, if any. The assessee vide letter dated 03.03.2011 raised objections against the proposed estimation of fair market val ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the sale consideration at Rs.53,01,000/- being circle rate estimated by the Stamp Valuation Authority and recalculated the capital gain at Rs.50,76,413/-. 7. The assessee has raised many grounds before the CIT(A) which was decided by the CIT(A) as under :- 8. The CIT(A) confirmed the action of the A.O. in taking value of Rs.53,01,000/- being the value taken for stamp duty as value estimated by the D.V.O. was higher. The CIT(A) held that in accordance with section 50C, the A.O. has to adopt the value taken by the Stamp Valuation Authority as the value estimated by the D.V.O. exceeds the value adopted by Stamp Valuation Authority. 9. The assessee has also challenged reopening before the CIT(A) on the ground that the Assistant Valuation Officer having no authority in law to pass such order. The CIT(A) has rejected this ground of appeal observing that the I.T.A.T., Agra Bench vide order dated 25.06.2010 directed the A.O. to refer the matter for valuation to Valuation Officer in the light of provisions of sub-section (2) of section 50C. Therefore, the matter was accordingly referred to the Valuation Officer. It was contended before CIT(A) by the assessee that as per the scheme o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Agra and is statutory reference, hence the provisions of sub sec.(2)(3)(4)(5) (6) of sec. 16 of W.T. Act becomes applicable. It is amply clear from the relevant section that have been extracted and reproduced in the remand report. The valuation officer has followed the directions and after applying the procedures, valuation report has been made after consideration of the appellant's written and oral objections under the relevant sections of the I.T. Act. Hence the objection raise by the appellant has no merit and is rejected." 10. The assessee has also challenged vide ground nos.3 4 before the CIT(A) that reference was made to the Valuation Officer to estimate the fair market value of the open land sold and not to estimate fair market value of the deemed saleable area as if there is constructed property over the said land. The CIT(A) decided this objection of the assessee as under :- (Page nos.12, 13 14) "4.5 At this juncture, it will be important to go through the valuation report of the Asstt. Valuation Officer dated 20.03.2011. The relevant portion of which is extracted below:- 5.0 PROPERTY DESCRIPTION. 5.1 Land Area 2944.74 m2. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en taken at the rate of Rs.100 per sq. yard and calculated the value to be Rs.3,52,200/-. In view of the reasons given, I am of the opinion that the valuation officer has based his valuation on the basis of directions issued by the Hon'ble ITAT Agra and hence the objection raised by the appellant in these grounds have no merit and hence are dismissed." 11. One more ground raised before the CIT(A) that the agreement to sale was entered into prior to the incorporation of provisions of section 50C of the Act. The CIT(A) did not accept this contention of the assessee on the ground that section 50C of the Act has been introduced by the Finance Act 2002 w.e.f. 01.04.2003 which is applicable to A.Y. 2003-04. The year under consideration of the assessee's case is A.Y. 2004-05 and hence application of this section is justified. 12. The ld. Authorised Representative submitted that the assessee has some open land measuring 2944.74 sq. meter bearing Khasra No.245, 254, 256 257 at Mauza Kakretha. The. Dist. Agra on 01.11.2003 for Rs.3,52,200/-. The circle rate for stamp duty purpose is taken at Rs.53,01,000/- by the Sub-Registrar, Agra. The D.V.O. estimated fair market value of the sale ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... grounds like the DVO is having no jurisdiction under section 50C for passing the order and others, these issues has already been considered by the CIT(A) in details in his order. Mere mentioning of Assistant Valuation Officer's order under section 50C of the Act does not mean that he has passed order under section 50C of the Act. In fact, the substance of the fact is that the Assistant Valuation Officer has furnished his estimation of the property as recorded by the A.O. However, the main objection of the assessee raised in the grounds of appeal is that the A.O. has wrongly taken circle rate in calculation of capital gain on the ground that the D.V.O. inspite of valuing the plot has valued it as a constructed area on the plot. This contention of the ld. Authorised Representative is not acceptable as the value of the plot depends upon a number of factors including location, size, road on which the plot is situated, area and others. The Stamp Valuation Authorities have also certain criteria and basis for determining the circle rate. The ld. Authorised Representative is not correct in submitting that the D.V.O. estimated the value of the plot as it is a constructed area. The D.V.O. h ..... X X X X Extracts X X X X X X X X Extracts X X X X
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