TMI Blog2016 (11) TMI 955X X X X Extracts X X X X X X X X Extracts X X X X ..... , for claiming to be the owner of the land, the assessee was required to produce necessary evidences. In the absence of evidence, when contrary evidences are on record, we do not see any reason to interfere with the orders of the authorities below - Decided against assessee Not taking the fair market value of the asset as on April 1, 1981 as cost of acquisition under section 55(2) - Held that:- The Assessing Officer has adopted the value at indexed cost of acquisition as on April 1, 1981 at ₹ 4,31,940 and in respect of the strip of land, adopted the indexation cost of acquisition at ₹ 13,97,120. So far as the indexed cost of acquisition with regard to the strip of land is concerned, in ground No. 3, we have already decided the matter against the assessee. Therefore, we are not inclined to interfere with the finding of the learned Commissioner of Income-tax (Appeals) on this issue. The submission of the assessee is rejected. Fair market value ought to have adopted at ₹ 110 per sq. yard for other portions of land - Held that:- We find force in the contention of the learned counsel for the assessee that fair market value of the property is to be adopted on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of strip of land for computing the long-term capital gain. The action of the learned Commissioner of Income-tax (Appeals) is illegal, unjustified, arbitrary and against the facts of the case. Relief may please be granted by allowing appropriate indexation of ₹ 13,97,120 for computing the long-term capital gain as claimed by the assessee. 4. In the facts and circumstances of the case and in law the learned Commissioner of Income-tax (Appeals) has erred in confirming the action of the learned Assessing Officer in not taking the fair market value of the asset as on April 1, 1981 as cost of acquisition under section 55(2) of the Income-tax Act, 1961, for the purpose of computing the long-term capital gains. The action of the learned Commissioner of Income-tax (Appeals) is illegal, unjustified, arbitrary and against the facts of the case. Relief may please be granted by taking the fair market value of the asset as on April 1, 1981, as cost of acquisition for computing the long-term capital gains. 2. Briefly stated the facts are that the assessee filed return of income on July 30, 2010 declaring total income of ₹ 1,61,66,940. The case of the assessee was picked up f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ibunal in the case of ITO v. Kaaddu Jayghosh Appasaheb, vide ITA No. 441/Pn/2004 for the assessment year 1992-93 and relied on by the learned counsel for the assessee following the decision of the Jammu and Kashmir High Court in the case of Honest Group of Hotels (P) Ltd. v. CIT [2002] 177 CTR (J K) 232 had held that when the margin between the value as given by the assessee and the Departmental valuer was less than 10 per cent., the difference is liable to be ignored and the addition made by the Assessing Officer cannot be sustained. Since in the instant case such difference is less than 10 per cent. and considering the fact that valuation is always a matter of estimation where some degree of difference is bound to occur, we are of the considered opinion that the Assessing Officer in the instant case is not justified in substituting the sale consideration at ₹ 20,55,000 as against the actual sale consideration of ₹ 19,00,000 disclosed by the assessee. We, therefore, set aside the order of the Commissioner of Income-tax (Appeals) and direct the Assessing Officer to take ₹ 19,00,000 only as the sale consideration of the property. The grounds raised by the asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l contentions, perused the material on record and gone through the orders of the authorities below. The assessee is claiming to be the owner of the land even prior to the allotment made by the concerned authority, thus the assessee is claiming indexation since April 1, 1981. On a pointed query, the assessee could not produce any material suggesting that the ownership of the land in question was transferred to the assessee prior to the date when the land was allotted to the assessee. Even in respect of the Theory of Adverse Possession, the assessee has not placed any material on record that the assessee was declared owner by virtue of theory of adverse possession. In our considered view, for claiming to be the owner of the land, the assessee was required to produce necessary evidences. In the absence of evidence, when contrary evidences are on record, we do not see any reason to interfere with the orders of the authorities below. Therefore, this ground of the assessee's appeal is dismissed. 6. Ground No. 4 in respect of not taking the fair market value of the asset as on April 1, 1981 as cost of acquisition under section 55(2) of the Act for the purpose of computing the long- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncome-tax (Appeals) has given a finding of fact, which is not rebutted by the assessee by placing any material on record. 6.3. We have heard the rival contentions, perused the material on record and gone through the orders of the authorities below. The Assessing Officer has adopted the value at indexed cost of acquisition as on April 1, 1981 at ₹ 4,31,940 and in respect of the strip of land, adopted the indexation cost of acquisition at ₹ 13,97,120. So far as the indexed cost of acquisition with regard to the strip of land is concerned, in ground No. 3, we have already decided the matter against the assessee. Therefore, we are not inclined to interfere with the finding of the learned Commissioner of Income-tax (Appeals) on this issue. The submission of the assessee is rejected. 6.4 With regard to the other portion of land, it is contended by the assessee that the fair market value ought to have adopted at ₹ 110 per sq. yard. The working given by the assessee in respect of fair market value at paragraph 3.2 of his submission are as under : 3.2. Before the lower authorities, letter duly conveying the fair market value on April 1, 1981 at ₹ 110 per sq ..... X X X X Extracts X X X X X X X X Extracts X X X X
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