TMI Blog1997 (5) TMI 87X X X X Extracts X X X X X X X X Extracts X X X X ..... at Rs. 3,18,000 for assessment year 1981-82 and at Rs. 3,85,000 for assessment year 1982-83. Considering the valuation of the impugned property to be low, the Assessing Officer, while framing the assessment for assessment year 1981-82, referred the matter to the DVO. The DVO, vide his report dated 19-3-1986, valued the property at Rs. 16,95,000 as on 31-3-1981. After confronting the assessee with this report, the Assessing Officer observed that the main objection was with regard to the valuation of the open land. In his opinion, the valuation taken by the DVO at Rs. 150 per sq. mtr. for assessment year 1981-82 was reasonable and accordingly adopted the valuation of Rs. 16,95,000 as determined by the DVO. Similarly for assessment year 1982-83, the DVO initially valued the property at Rs. 25,79,000 as on 31-3-1982, but later, after taking into consideration the objections of the assessee, reduced it to Rs. 18,53,000 by taking the rate at Rs. 165 per sq. mtr. The Assessing Officer adopted this value in the assessment. 3. In the first appeal, the CWT(Appeals) observed that in the case of Shri R.K. Atal, the brother of the assessee, under similar circumstances, the value of open land ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... age 46 of the Paper book). In this valuation, the DVO treated 600 sq. mtrs. as appurtenant land and valued it at Rs. 27.50 per sq. mtr., whereas the land other than appurtenant land was valued at Rs. 150 and Rs. 165 per sq. mtr. respectively. 6. After taking us through the above facts, the ld D/R took us through the site plan of the property. It was pointed out by him that on one side was the house of the assessee and on the other side was a tennis court, orchard etc. These two portions, he submitted were divided by a fifteen feet wide common road. Thus it was contended that when the land was divided by a common road, how could the land on the other side of the said common road be considered as appurtenant land. It was further submitted that when the valuation was done for assessment year 1971-72, the question of appurtenance was not considered, nor was the issue ever decided at the lower levels. 7. In reply to this, it was submitted by the ld counsel for the assessee that it was a huge plot of land in which the assessee and his two brothers had their own shares. The entire land was surrounded by a boundary wall and within the said boundary wall, the share of each brother was w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Supplied]. The first objection of the ld D/R was that the aspect of appurtenance was never considered while valuing the property for assessment year 1971-72. In our opinion, this itself shows that the entire land belonging to the assessee was never considered as anything but appurtenant. For the first time, the DVO, while valuing the property for the years under consideration, considered 600 sq. mtrs. as appurtenant and the rest as excess land. However, he has not given any reasons for doing so or as to how only 600 sq. mtrs. is considered as appurtenant and why not the entire land. The learned CWT(Appeals) also, on page 9 of his order, has merely agreed with the DVO without assigning any reason therefore. The Tribunal, in its decision cited supra, while dealing with a case of cinema hall wherein major portion of the land was not treated as appurtenant, observed that no material worth the name was produced to show that the open land was used by the assessee for any of the purpose. Similar is the situation in the instant case. Nothing has been brought on record to show as to why the entire open land cannot be treated as appurtenant land. The only objection raised by the ld D/R is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icer was proper and the same be restored. 12. In reply, the ld counsel took us through the order of the Tehsildar which showed that the impugned land was an agricultural land. Further, it was submitted that in the case of JK. Atal assessee's brother, the benefit of section 7(4) has been given throughout and accordingly the present assessee has been discriminated against. As regards the ld D /R's contention that agricultural land cannot come within the purview of ULC Act, it was stated that such land would be covered under ULC Act if the same was within Urban Agglomeration. Thus, it was strongly urged that the benefit of section 7(4) be extended to the entire land and accordingly the value of land be taken at Rs. 27.50 per sq. mtr. 13. We have considered the rival submissions and the evidences on record. First and foremost, we are of the firm opinion that open area is necessary for quiet, peaceful and convenient enjoyment of the property, depending upon one's means and taste. Hence, benefit of section 7(4) has to be extended to the open land which is appurtenant to the house property. This view has been taken by the Madras Bench of the Tribunal in ITO v. Smt. M. Kalpagam [1980] ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , etc. have a role to play. Due allowances have to be made for such restrictive legislations. At the same time, it has to be recognised that despite restrictive enactments and divergent factors which affect the market value of the property, inflationary conditions, the notorious fact of generation and investment of unaccounted money, speculative investments etc. shoot the prices up in the real estate market. Coupled with these factors, with the increase in demand for land, over a period of time the local authorities also have been relaxing the restrictions by increasing the floor space index. The owner of vast land do derive benefit out of this. Thus considering the imperfections in real estate market, it would be rather fallacious to peg down the valuation at a figure arrived at before twenty or thirty years on the basis of the laws and conditions prevailing at that point of time. 17. We, therefore, direct that in all fairness, it would be just and proper to increase the valuation by 10% every year subsequent to assessment year 1980-81. This was also the alternate prayer made by the assessee before the lower authorities (page 16 of the Paper Book). We accept the same and direct ..... X X X X Extracts X X X X X X X X Extracts X X X X
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