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2021 (6) TMI 536 - AT - Income TaxReopening of assessment - capital gain on sale of property - assessee was appointed as the power of attorney holder by the owner in respect of her immovable property - sale in “Individual capacity” as against “representative assessee of owner" - Capital gain on sale of immovable property in terms of the provisions of section 163(1)(c) - HELD THAT:- As rightly pointed out by the ld CIT(A), mere mentioning the assessee's status as “Individual” instead of representative assessee of Smt. Pamela Jean Colleco is a curable defect in terms of section 292B of the Act as the assessment order so passed is in substance and effect has been passed in the status of representative assessee in conformity with and to give effect to the directions of the tribunal and thus, according to the intent and purpose of this Act. In light of aforesaid discussions, we are of the considered view that the order so passed by the AO in the impugned set-aside proceedings u/s 147/144/set-aside has been passed in the capacity of the assessee as representative assessee of Smt. Pamela Jean Colleco and continues to carry the same consequences and implication in terms of section 160, 161 and 162 of the Act as the original order passed u/s 147/144 except for the variation of the fair market value which the assessee has challenged and we shall be dealing while adjudicating the subsequent ground of appeal. In the result, we donot find any merit in the ground so taken by the assessee and the same is hereby dismissed. Determination of the Fair Market Value of the two properties - assessee is challenging the findings of the ld CIT(A) for considering part of property as residential and part commercial, and submitted that entire property is residential and should therefore be valued at ₹ 1.21 crores each as alternatively determined by the DVO in his valuation report - Revenue challenging the findings of the ld CIT(A) for considering part of property as residential and part commercial and at the same time, submitted that entire property be treated and valued as commercial property as done by the DVO and should therefore be valued at ₹ 3.00 crores each as determined by the DVO in his valuation report - HELD THAT:- Both the documentary evidences and the actual usage of the property have their own relevance and importance and need to be considered while determining the fair market value of the property. At the same time, where there are visible and demonstrable variations in the actual usage or part usage of the property, the same have to be necessarily considered and cannot be ignored for the purposes of valuation. Therefore, on face of such findings, we fail to appreciate why the DVO has not considered the property part residential and part commercial and has applied purely commercial rates. Therefore, the findings of the ld CIT(A) to this extent that the land is under mixed land use and not entirely residential or commercial is hereby confirmed. In the instant case, we note that the revised valuation as so determined in respect of both the properties works out to less than 10% of the actual sale consideration as declared by the assessee and considering the fact that valuation is always a matter of estimation where some degree of difference is bound to occur which even the legislature has lately recognized and has introduced the tolerance limit of 10% which have consistently been held by various Benches as curative in nature, such a difference needs to be ignored and declared sale consideration be accepted. We accordingly direct the AO to accept the sale consideration as declared by the assessee as per the two registered sale deeds. For the reasons stated above, the ground of appeal taken by the assessee is allowed and the ground of appeal taken by the Revenue is dismissed.
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