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TMI Blog2012 (9) TMI 936X X X X Extracts X X X X X X X X Extracts X X X X ..... he CIT(A) has also erred both in Law and in fact in computing Long Term Capital Gains at Rs. 3,31,15,811 in place of Capital Gains Rs. 61,92,697 (As Revised) as claimed by your Appellant.. 4. (a) The CIT(A) has further erred both in Law and in fact in upholding the Market Value of Land as on 1-4-81 relied by the Assessing Officer based on evidence given by the Sub-Registrar disregarding the Valuation Report of Authorized and Approved Valuer relied by your Appellant. (b) It is submitted that as per provision of the Act the Income Tax Officer was duty bound to accept the Valuation Report of Assessee or refer to matter of Valuation to Departmental Valuation Officer and therefore the CIT(A) ought to have held that the value as on adopted by AO is not valid. 5. It is further submitted that the CIT(A) has erred in making enhancement to computation of Capital Gain and by limiting cost of acquisition @ 12.65 % as against 18.1%, which is made in haste and hurry and without providing proper and sufficient time to your Appellant to consider effect/consequences of the said notice. . 6. The CIT(A) has also erred in upholding levy of Interest u/s.234A, B, & C which is not applicable on the f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fferent per sq. mtr values and the land in the sale instances were not in vicinity of appellant's land. AO held that the Valuer's report could not be depended upon. AO sought information from Sub-Registrar, Baroda-I in respect of comparable sale instances for determining fair market value as on 1.4.81. The Sub-Registrar, Vadodara through letter dt. 21.12.2010 furnished details and copy of registered document in respect of sale on 6.2.81 of 446 sq. mtrs of land in R.S.No. 324 for Rs. 38,400/-. Accordingly, AO proposed to adopt rate of Rs. 86.1 per sq. mtr for the purpose of determining FMV of appellant's land as on 1.4.1981. Appellant did not agree to AO's proposal but did not file any further documents in support of its claim. AO adopted the cost of the land sold as on 1.4.1981 after indexation at Rs. 1,05,37,597/- and worked out the taxable long term capital gains at Rs. 3,19,76,019/-." 5. Being aggrieved, the assessee carried the matter in appeal before ld. CIT(A) but without success and now, the assessee is in further appeal before us. 6. It is submitted by the Ld. A.R. before us that the decision of the A.O. is based on the information received form sub-regist ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... velopment cost is justified or not. The 3rd aspect is whether the cost of acquisition as on 01.04.1981 of the assessee should be 18.10% of the total cost being the share of the assessee in the total land or whether it should be only 12.65% of the total cost as has been adopted by Ld. CIT(A) on the basis of net sale value of the assessee of Rs. 421.52 lacs compared to Rs. 3333.16 lacs being the total sale value. - Regarding the first aspect as to what is the fair market value of the land as on 01.04.1981, we find that the registered valuer had applied the rate of Rs. 295.81 per sq. mtr. on the basis of average rate of 4 different plots of land. The A.O. has applied the rate of Rs. 86.10 per sq. mtr. on the basis of a single sale instance collected form sub-Registrar office by the A.O. Ld. CIT(A) has adopted the rates of Rs. 156.50 per sq. mtr by ignoring two sales instances adopted by the registered valuer i.e. of Rs. 538.20 per sq. mtr. being the first sale instance and Rs. 253.60 per sq. mtr. being the 3rd sale instance. These two sales instances were ignored by the Ld. CIT(A) on this basis that in both these cases, open plot of land was not sold but partially constructed area wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ining valuation report from the DVO. The AO has taken value as on 1.4.1981 on other basis. We are of the view that assessee's valuation as on 1.04.1981 is supported by valuation by a technical person ie. report of registered valuer and contrary to that no such material or departmental valuation report is available on record. Merely on the basis of other general enquiries the valuation declared by the registered valuer cannot be substituted. We therefore set aside the orders of Revenue authorities on this issue and direct the AO to adopt the valuation of the flats as on 1.4.1981 as declared by the assessee. " Reference is also invited to decision of ITAT in ITO vs Smt Usha Ramesh 133 1TD 67 (Chennai) (TM) but since in the case of appellant, Registered Valuer's Report was furnished, there was no justification in relying on irrelevant sale instances from SubRegistrar's office and thereby rejecting the value as on 1st April, 1981 computed by Registered Valuer." - Regarding the action of Ld. CIT(A) of excluding two sale instances adopted by the registered valuer on this basis that these sale instances are in respect of partly constructed plot, we are of the considered opin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... admitted position of facts that the assessee was having 18.10% share in the land in question and the entire land was acquired by the State Government for SRP camp and the total consideration was worked out for 18.10% share of the assessee to the extent of Rs. 5,99,68,115/-. From this amount, there was deduction made of Rs. 1,78,16,427/- on account of disputed amount and the net sale value of the plot of the assessee was adopted at Rs. 4,21,51,688/-To this extent, there is no dispute. The dispute is this that it is adopted by the Ld. CIT(A) that since the share of the assessee in the total sale value worksout to Rs. 4,21,51,688/- only, which is only 12.65% of the total sale value of the plot in question at Rs. 33,33,15,552/-, only 12.65% of the total fair market value of the property as on 01.04.1981 should be considered for the purpose of working out capital gain in the hands of the assessee. We do not find any merit in this view of Ld. CIT(A) because this is not in dispute that entire land had been sold out and the consideration received by the assessee is for the entire land and it is not the fact that only a portion of land was acquired and some portion of land is still owned by ..... X X X X Extracts X X X X X X X X Extracts X X X X
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