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2016 (11) TMI 955 - ITAT JAIPUR

2016 (11) TMI 955 - ITAT JAIPUR - [2016] 50 ITR (Trib) 196 - Computation of capital gain - Adoption of value - Held that:- In the instant case, the difference between the valuation adopted by the Stamp Valuation Authority and declared by the assessee is less than 10 per cent. Therefore, we hereby direct the Assessing Officer to adopt the value as declared by the assessee. This ground of the assessee is allowed. - Disallowance of indexation on the amount paid for acquiring possession of strip .....

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ion, 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 - Decided against assessee - Not taking the fair market value of the asset as on April 1, .....

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ng 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 basis of comparable sale instances. Therefore, we hereby direct the Assessing Officer to re-compute the cost of acquisition on the basis .....

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ul Bharat (Judicial Member) 1. The appeal by the assessee is directed against the order of the learned Commissioner of Income-tax (Appeals)-I, Jaipur, dated August 30, 2013, pertaining to the assessment year 2010-11. The assessee has raised the following grounds of appeal : "1. 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 computing the long- term capital gain at & .....

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sing Officer in applying the provisions of section 50C of the Income-tax Act, 1961 and adopting the sale consideration at ₹ 6,12,70,120 against the actual sale consideration of ₹ 6,00,00,000. 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 sale consideration at ₹ 6,00,00,000 for computing the capital gains. 3. In the facts and circumstances of the case .....

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r 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 (Appeal .....

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t, 1961 (hereinafter referred to as the Act) was framed vide order dated February 28, 2013. While framing the assessment, the Assessing Officer made addition on account of long-term capital gain and income from other sources. He computed the total income at ₹ 2,51,28,890. The assessee aggrieved by this order, preferred an appeal before the learned Commissioner of Income-tax (Appeals), who after considering the submissions partly allowed the appeal of the assessee. 3. All these grounds rais .....

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per cent. Since the difference was within the tolerable limits, which is 15 per cent. of variation, as recognised by the hon'ble Supreme Court in the case of C. B. Gautam v. Union of India [1993] 199 ITR 530 (SC), no addition should be made. This decision has been followed by the co-ordinate Bench in the case of Rahul Constructions v. Deputy CIT in [2010] 38 DTR (A. T.) 19 (Pune) ITA No. 1543/PN/2007. 4.1. On the contrary, the learned Departmental representative opposed the submissions of th .....

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filed by the Revenue where the Commissioner of Income-tax (Appeals) had deleted the unexplained investment in house construction on the ground that the difference between the figure shown by the assessee and the figure of the DVO is hardly 10 per cent. Similarly, we find that the Pune Bench of the Tribunal 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 Ja .....

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gree 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 .....

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on on the amount of ₹ 13,97,120 paid for acquiring possession of strip of land for computing the long-term capital gain. 5.1. The learned counsel for the assessee submitted that the strip of land measuring 83.35 sq. yards was in possession of the assessee since purchase of the plot of land. The aforementioned strip of land was regularised by Jaipur Nagar Nigam when the assessee applied for sub-division of the plot in January, 2008. As the strip of land was in possession of the assessee for .....

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p of land by the assessee, there was no intrusion/claim of whatsoever nature, the assessee was the owner of the strip without doubt. In view of this, when the strip of land was in the ownership of the assessee since beginning, therefore cost has to be allowed as deduction with reference to the date since asset was owned by the assessee. 5.2. On the contrary, the learned Departmental representative opposed the submissions and submitted that the piece of land was allotted in the year 2008 so the o .....

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e 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 w .....

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t of acquisition under section 55(2) of the Act for the purpose of computing the long-term capital gain. 6.1. The learned counsel for the assessee vehemently argued that the authorities below was not justified in not granting the relief. He submitted that during the course of assessment, the assessee has sought to correct the workings filed for computing the capital gains. In the return filed, fair market value as on April 1, 1981 in terms of section 55(2) was not considered. During the course o .....

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s brought to the notice of the learned Commissioner of Income- tax (Appeals). The learned Commissioner of Income-tax (Appeals) dismissed the claim of the assessee by simply stating that the assessee could not establish the value of the plot as on April 1, 1981 and that the cost of acquisition adopted by the Assessing Officer was shown by the appellant herself. The learned counsel submitted that the learned Commissioner of Income-tax (Appeals) has misdirected himself in appreciating the legal pro .....

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d that it is a settled law that the income liable to be taxed has to be worked out in accordance with the law as in force. In support of the contention, reliance is placed on the co-ordinate Bench decision rendered in the case of Asst. CIT v. Rupam Impex in ITA No. 472/RJT/2014. 6.2. On the contrary, the learned Departmental representative submitted that the assessee herself has adopted the value and she cannot blow hot and cold at the same time. The learned Commissioner of Income-tax (Appeals) .....

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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 val .....

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