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2019 (7) TMI 852 - ITAT JAIPURComputation of long term capital gain - adopting the full value consideration as per stamp duty valuation u/s 50C - on challenge matter referred by AO to DVO - revised stamp duty valuation based on commercial property adopted - assessee has submitted that the property in question was a residential property as stated in the sale deed whereas the DVO has considered the same as commercial while determining the fair market value of the land in question - HELD THAT:- The rates of the commercial property cannot be applied to a property which is unauthorisedly used for commercial purpose. Though the locational advantage and actual of commercial use are the relevant factor for determining the fair market value but these cannot be the basis for treating the property as commercial one. Therefore, the fair market value of the property has to be determined on the basis of the prevailing rate in the area as well as on the basis of sale instance which can be considered as comparable cases. The DVO has adopted the commercial rate for determining the fair market value of the property whereas the fact remains that the property is a residential area but is being used for commercial purpose. Thus applying the commercial rates on a residential property used for commercial purpose is not proper and justified. Determination of the fair market value by the DVO requires a fresh look based on the prevailing fair market price well as comparable sale instance. Since, the assessee has now filed the site plan as additional evidence, therefore, in the facts and circumstances of the case we set aside this issue of fair market value to the record of the DVO/AO for redetermination of the same as per above observations. It is also pertinent to note that for the purpose of computing the cost of construction the state PWD rates shall be applied as against CPWD rates as the property is situated in the jurisdiction of State PWD and not in the jurisdiction of CPWD. Hence, the DVO is directed to reconsider the determination of fair market value and after giving an opportunity of hearing to the assessee. Determination of cost of acquisition of the property on 01.04.1981 - HELD THAT:- DVO has taken the fair market value as on 01.04.1981 by considering the comparable instances however, the assessee was not confronted with such comparable cases to be adopted by the DVO. Further, the DVO enhanced the value due corner location of the property this was also not confronted with the assessee. Since, the main issue of determining the fair market value as on the date of the sale has been remanded to the DVO/AO, therefore this issue of determining the fair market value as on 01.04.1981 for the purpose of cost of acquisition of the property is also set aside to the record of the DVO/AO for determining the same afresh after consideration the objections of the assessee. - Appeal of the assessee is allowed for statistical purposes.
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