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Simran Pal Singh Gill Versus Deputy Commissioner of Income-Tax

[2016] 51 ITR (Trib) 602 - Calculation of long-term capital gain - adoption of cost of acquisition - land was inherited by the assessee along with other co-owners - Held that:- There is no merit in the submissions of the learned Departmental representative that the same facts were there earlier, which have not been contradicted by the assessee in the subsequent proceedings. The assessee in the subsequent proceedings has been able to satisfy that in the case of co-owner, Shri Birender Singh Gill, .....

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f ₹ 5500 per sq. yard as against ₹ 600 adopted by the authorities below for the purpose of calculation of long-term capital gain. - I. T. A. No. 260/Chd/2014 - Dated:- 9-8-2016 - Bhavnesh Saini (Judicial Member) And Maharishi Prashant Kumar (Accountant Member) For the Appellant : Sudhir Sehgal For the Respondent : Sushil Kumar, Departmental Representative ORDER Bhavnesh Saini (Judicial Member) 1. This appeal filed by the assessee is directed against the order of the learned Commissio .....

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ong-term capital gain in respect of 1708 sq. yards land sold by the assessee by adopting fair market value of land as on April 1, 1981 at ₹ 600 per sq. yard. 3. That the learned Commissioner of Income-tax (Appeals)-II, has also erred in not considering the facts that the cost of acquisition as on April 1, 1981 of 1708 sq. yards of land sold has been rightly been adopted by the assessee at ₹ 8,000 per sq. yard on the basis of report of Halka Patwari, dated October 26, 2006, countersig .....

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Ludhiana is against the facts and circumstances by not considering our submissions properly." 2. We have heard the learned representatives of both the parties, perused the findings of the authorities below and considered the material available on record. 3. Brief facts are that in this case the assessee filed return declaring income of ₹ 14,38,800 on March 31, 2007. During the course of assessment proceedings, the Assessing Officer noted that the assessee had shown sale of property on .....

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in the report that there was no solid proof available for this report for this rate and the rate given by him was as per the property dealers of the area. There was no documentary evidence in support of this rate. The Assessing Officer referred the matter to Valuation Officer under section 55A of the Income- tax Act, 1961 (in short "the Act") for this purpose. However, no report was received from the Valuation Officer till the completion of assessment proceedings. 4. The Assessing Offi .....

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rust, Ludhiana regarding the prevailing market rate in this area during the year 1981. Ludhiana Improvement Trust vide letter dated October 22, 2008 provided a copy of the allotment letter dated March 12, 1981 in respect of shop-cum-flat No. 18 allotted in the name of Shri Vinod Kumar S/o Shri Hari Chand. As per this letter, market price of the property was ₹ 635 per sq. yard. The Assessing Officer observed that it was a matter of common knowledge that rate for commercial property was alwa .....

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at ₹ 8,000 per sq. yard was taken correctly. 5. The Assessing Officer collected more information regarding sale of land in and around the residential house sold by the appellant. The details collected by the Assessing Officer are summarised as under : Sl. No. Details of property Vasika No. & Date Area of plot sold Total sale consideration (Rs.) Rate per sq. yard (Rs.) 1. Plot situated in Ghumar Mandi 7063/18.3.1981 90-2/3 18,134 201 2. Plot situated in Krishna Nagar Near Ghumar Man .....

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Assessing Officer held that the fair market value of the property sold by the assessee as on April 1, 1981 was ₹ 600 per sq. yard. The Assessing Officer accordingly, recomputed the long-term capital gains from the property at ₹ 5,81,80,344 The assessment was completed under section 143(3) of the Act on December 26, 2008 at total income of ₹ 5,98,84,092. 7. Aggrieved with the order, the assessee preferred an appeal before the Commissioner of Income-tax (Appeals)-II, Ludhiana, w .....

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giving reasonable opportunity of hearing to the assessee. The matter was restored by the Income- tax Appellate Tribunal, in the background of the facts that (i) The cases of other co-owners which have been reopened and the issue of determination of cost of acquisition as on April 1, 1981 was being considered afresh by the respective Assessing Officers and that (ii) The reference to Valuation Officer for valuation of the property which was not received by the Assessing Officer with the result tha .....

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ining to the reference made by the Assessing Officer vide letter dated December 17, 2008. The Assessing Officer received the valuation report dated September 24, 2010 from the DVO. As per this report, the fair market value as on April 1, 1981 of 1680 sq. yards of the land belonging to the assessee was estimated at ₹ 600 per sq. yard. A copy of this report was brought to the notice of the assessee. The assessee referred to the case of Shri Birender Pal Singh Gill, a co-owner, in whose case .....

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tion deeds on which the Assessing Officer had relied upon for taking the value of land as on April 1, 1981 at ₹ 600 per sq. yard. The Assessing Officer also observed that the assessee had failed to produce any material to the contrary in spite of number of opportunities provided to the assessee. Keeping in view the aforesaid facts and the report of the DVO the Assessing Officer once again held that the fair market value of the property sold by the assessee, as on April 1, 1981 was ₹ .....

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r death, the land devolved on the survivors/legal heirs of both the brothers as under : (i) K.P. S. Gill S/o Sh. Rachhpal Singh (ii) Smt. Virinder Grewal D/o Sh. Rachhpal Singh (iii) Smt. NeenaBal D/o Sh. Rachhpal Singh (iv) Sh. Birender Singh Gill S/o Sh. Rachhpal Singh (v) Sh. KiratBrar S/o Sh. Harbans Singh (vi) Sh. Simranpal Singh Gill S/o Sh. Harbans Singh 3. Though, the land had devolved to other persons also, but since some of the persons had died/left their right and the abovenamed perso .....

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35,550 per sq. yard. This rate of sale was in September 2005 and against which, the circle rate was ₹ 8,000 to 9,000 per sq. yard. Thus, the registration deed was effected at much higher rate than the circle rate, meaning thereby, that the land had been registered at the "fair market value". 5. The share of the assessee, i.e., Sh. Simranpal Singh was 1680 sq. yards out of 5851 sq. yards and during the original assessment proceedings, the assessee had filed his return declaring th .....

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ril 19, 2011 and which is being reproduced as under : "We shall now turn to the estimation of cost of acquisition being the fair market value of the property as on April 1, 1981. The property sold by the assessee is a part of bigger property sold by other co- owners. It is reported by the learned Departmental representative that the cases of other co-owners have been reopened and the issue as regards the determination of cost of acquisition as on April 1, 1981 is being considered afresh in .....

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y in adopting the cost of acquisition in the cases of all co-owners, it is concerned appropriate to restore the matter to the file of the Assessing Officer with the direction to decide the issue of cost of acquisition as on April 1, 1981 afresh in conformity with law after giving reasonable opportunity of hearing to the assessee. We order accordingly. The Assessing Officer shall be free to make relevant inquiries and to seek valuation report from the Valuation Officer in conformity with law so a .....

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600 per sq. yard of 1680 sq. yard as on April 1, 1981 and to which, the asses see raised various objections and which were forwarded to the DVO and the Assessing Officer without considering the directions given by the hon'ble Bench in the order to verify the rate as adopted as on April 1, 1981 in the case of other co-owners, reproduced the finding given in earlier order, dated December 26, 2008 and framed the assessment and, thus, the directions of the hon'ble Bench have been ignored, to .....

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ormity with the law in order to come to the correct value as on April 1, 1981. 8. As regards the report from the Valuation Officer is concerned, it is submitted that though, the report has been received by the Assessing Officer, but our objections have not been taken care of, either by the Assessing Officer or by the DVO before the finalisation of the assessment proceedings. The Assessing Officer was required to look into the objections raised by the assessee and other judgments as relied upon b .....

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00 per sq. yard is contrary to the material facts with regard to the "fair market value" of the land as, defined in section 2(22B) of the Act and copy of the objections along with paper book was submitted to the Assessing Officer and which have been summarily ignored by him. Thus, the finding of the Assessing Officer that the assessee has not submitted any explanation or led any evidence is contrary to the material facts on record and, thus, the addition as made by him deserves to be d .....

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uch, the value as on April 1, 1981 has to on the basis of 'fair market value' and not the registered consideration as per title deeds. 11. Reliance is also being placed in the judgment of the Income-tax Appellate Tribunal, Cochin Bench in ITA No. 606/Cochin/2011, in which, it has been held that guidelines for adopting the market value as on April 1, 1981 on the basis of rates of Sub-Registrar may be one of the factor but that cannot be the sole basis for fixing the 'fair market value .....

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n'ble Andhra Pradesh High Court took note of the judgment of the Income-tax Appellate Tribunal, wherein the Cochin Bench of the Income-tax Appellate Tribunal has taken into consideration the fair market value as defined in section 2(22B) and it has been held that the valuation as per Sub-Registrar is only guidance for the purpose of fixing the stamp duty and not for adopting "fair market value". Copy of the judgment is being enclosed herewith. Thus, the Assessing Officer has grossl .....

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d a separate calculation chart in this respect is being submitted herewith in the paper book at pages 91 and 91A. This is being submitted to prove that our rate of ₹ 8,000 per sq. yard is very much in order. 13. The hon'ble Bench had also directed the Assessing Officer in their order to look into the rates as adopted in the case of co-owners as on April 1, 1981 and which fact has totally been ignored by the learned Assessing Officer because it never suited to the Assessing Officer. 14. .....

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m during the course of assessment proceedings, after the case had been remanded from the hon'ble Income-tax Appellate Tribunal, Chandigarh Bench, Chandigarh. The same has been ignored summarily and the finding of the hon'ble Bench in the order that uniformity should be ensured in adopting the cost of acquisition in the cases of other co-owners and which have not been considered at all and, therefore, since the cost of acquisition in the case of other co- owner have been accepted by the D .....

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valuer of Sh. Birender Singh during the course of assessment proceedings wherein the Registered Valuer has applied a rate of ₹ 5,500 per. sq. yard and that report has been totally ignored by the Assessing Officer and accepted by the Assessing Officer in the case of co-owner. 16. Even our reliance to the judgment of Chandigarh Bench in the case of Sh. Manjit Singh as reported in Manjit Singh v. Deputy CIT [2013] 21 ITR (Trib) 149 (Chandigarh) ; [2013] 151 TTJ (Chd) 1 has not been taken into .....

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gard to the definition of 'fair market value' and it was held that 'fair market value' could not be equated with the 'registered consideration'. 17. We are also placing reliance on the judgment of Amritsar Bench of the Income-tax Appellate Tribunal in the case of Abdul Rashid in ITA No. 104/Chd/2009, which is on the similar facts and circumstances. In this judgment also in paragraph 6, section 2(22B) of the Income-tax Act, with regard to 'fair market value' has be .....

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n of the hon'ble Income-tax Appellate Tribunal, Chandigarh Bench, Chandigarh, the valuation be adopted as claimed by the asses see, because the comparable case of the co-owner, which is immediate adjoining, wherein the rate of ₹ 5,500 has been accepted by the Department in which on 75 per cent. portion of that area, no construction can be raised and comparing the same with our area, which has the 100 per cent. constructed area, the valuation as adopted as on April 1, 1981 is extremely .....

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dence regarding the cost of acquisition of ₹ 5,500 per sq. yard having been adopted by the Assessing Officer during the course of proceedings under section 148. (iv) Evidence that the issue of cost of acquisition of front portion in respect of Shri Birender Singh which was claimed as ₹ 5,500 per sq. yard was examined and adopted by the Assessing Officer. (v) The cost of acquisition adopted by the Assessing Officer with regard to the back portion of Shri Birender Singh." 11. The .....

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d relations with them. (c) We have already submitted some extracts of the order of the Assessing Officer, at Chandigarh and Sh. Birender Singh is being assessed with the Assessing Officer, Circle-I(1), Chandigarh and it is requested that the same may, please, be got verified from the concerned Assessing Officer of Sh. Birender Singh. As per our information, the cost of acquisition of ₹ 5,500 remains unchanged. (d) We shall request you to kindly get the verification from the Assessing Offic .....

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in the original assessment proceed ings and only the value of land of ₹ 5,500 per sq. yard as on April 1, 1981 was adopted. Your goodself may, if desire, verify from the concerned Assessing Officer. (e) As regards the back portion is concerned, the cost was originally claimed by the assessee at ₹ 1,000 per sq. yard in the computation of income and was assessed under section 143(3) by the Assessing Officer, but, later on, in the proceedings under section 148, the same was reduced to & .....

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ideration. Your goodself's attention is also invited to section 2(22B) of the Act with regard to 'fair market value' and the judgment of the Cochin Bench, confirmed by the Andhra Pradesh High Court and which have elaborately been discussed by us in paragraph 11 of our submissions, dated November 13, 2013 and the judgment of the Chandigarh Bench of the Income-tax Appellate Tribunal as per paragraph 16 that 'fair market value' cannot be equated with the registered consideration .....

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Assessing Officer held that the fair market value as on April 1, 1981 was ₹ 600 per sq. yard. The Assessing Officer has relied on the following facts and instances for estimating the fair market value of the properly as on April 1, 1981 at ₹ 600 per sq yard : (i) Ludhiana Improvement Trust had developed the commercial property situated opposite the property sold by the appellant during the years 1980-81 and 1981-82. The plots were allotted at ₹ 635 per sq. yard. (ii) As per the .....

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gar) 3207/20.8.1980 60 30,000 500 4. Plot in Krishna Nagar Near Ghumar Mandi 1133/5.5.1981 642 44,600 70 5. Plot situated in Krishna Nagar Near Ghumar Mandi 1154/6.5.1981 642 44,600 70 6. Plot situated in Feroze Gandhi Market 12810/31.1.1984 181-50 64,070 100 7. Plot situated in Kara Bara Gurdev 4951/1.2.1980 518-5 51,850 100 8. Plot situated in Ghumar Mandi 3345/12.9.1980 156 12,000 77 (iii) As per the report of the DVO, the fair market value of the property as on April 1, 1981 has been estimat .....

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of fair market value and not on the basis of registered consideration as per the title deeds. I do not agree with this contention of the appellant. As discussed above, the fair market value adopted by the Assessing Officer as on April 1, 1981 is not based merely on the title deeds or on the basis of rates of Sub-Registrar. The Assessing Officer has specifically referred to the cases of property sold/allotted by the Ludhiana Improvement Trust in the year 1981-82. Such sale/allotments by the Gove .....

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asis of the rates as per the title deeds or the rates as per the Sub-Registrar only. Moreover, the Assessing Officer had also referred the matter to the DVO who has estimated the fair market value at ₹ 600 per sq. yard. In these facts and circumstances of the case the case law referred to by the appellant are clearly distinguishable on facts. 4.11. The appellant has referred to the order of the hon'ble Income-tax Appellate Tribunal and the issue of the rate adopted as on April 1, 1981 .....

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al Singh Gill. 2. Smt. Virinder Grewal. 3. Mrs. Neena Bal. 4. Sh. Birender Singh Gill. 5. Sh. Kirat Brar. 6. Sh. Simranpal Singh Gill, the appellant. This property measured 4006.8 yards and was sold for total consideration of ₹ 14,84,28,600. A copy of the site plan of this prop erty sold, as provided by the appellant, is enclosed as Annexure A-1 of this order. 4.13. The second property purchased by M/s. Omaxe Construction Ltd. on September 14, 2005 was owned exclusively by Sh. Birender Sin .....

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render Singh Gill was a co-owner of the property sold through the sale deed referred to in paragraph 4.11 above and was the sole owner of the property sold through sale deed referred to in paragraph 4.12 above. 4.15. It is evident that the reference to the uniformity in the fair market value of properties sold by co-owners pertains to the land measuring 4006.8 sq. yards which were sold jointly by the co-owners. In this joint property, the share of Sh. Birender Singh Gill was 230 sq. yards. As pe .....

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s factually incorrect. It is also seen from the copy of the assessment order in the case of Sh. Birender Pal Singh Gill that the only issue before the Assessing Officer was with respect to the fair market value of 230 sq. yards of joint property sold by Sh. Birender Pal Singh Gill. Sh. Birender Pal Singh Gill had adopted a rate of ₹ 1,000 per sq. yard for this property as against which the Assessing Officer held the fair market value to be ₹ 600 per sq. yard. 4.17. In any case, the c .....

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e Assessing Officer of Sh. Birender Pal Singh Gill has also adopted a rate of ₹ 600 per sq. yard for the 230 sq. yards, i.e., the share of Sh. Birender Pal Singh Gill in the joint property, I hold that the Assessing Officer was fully justified in adopting the fair market value of the property (share of Sh.Simran Pal Singh Gill) as on April 1, 1981 at ₹ 600 per sq. yard. The addition made by the Assessing Officer is confirmed. These grounds of appeal are dismissed. 5. In the result, t .....

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o- owner of a property located on main Ferozepur Road and that land originally belonged to two brothers, namely S/Shri Rachhpal Singh and Harbans Singh. After their death, the land devolved on the survivors/legal heirs as mentioned at page 6 of the appellate order including the assessee. Since the land was in the co-ownership of all these six owners, therefore, the same were sold by way of two separate sale deeds. It is undisputed fact that for the sake of convenience and for proper distribution .....

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oint co-ownership and, in which other co-owners were confirming parties and as on April 1, 1981, the cost has been taken at ₹ 5,500 per sq. yard as per PB-94, which is his computation of income and which fact has attained finality. The case of Shri Birender Singh Gill was reopened under section 148 of the Act but no change was made in the cost as on April 1, 1981, which he adopted for front portion, which majority the area was in no construction zone. The only change was made in respect of .....

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een accepted at ₹ 5500 per sq. yard, in which 70 per cent. of the area fell under no construction zone, therefore, the same rate should have been adopted by the Assessing Officer. The learned counsel for the assessee relied upon the judgment of the hon'ble Punjab and Haryana High Court in the case of CIT v. Mrs. Ravinder Kaur in ITA No. 240 of 2009, dated August 21, 2014, in which the hon'ble High Court was seized of the valuation of some property in the case of one co-owner and it .....

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the Tribunal and there is no new fact brought on record. The Assessing Officer had already adopted the higher rate as compared with the rate shown in the assessment order. The findings of fact of the Commissioner of Income-tax (Appeals) have not been disputed. Therefore, no interference is called for in the matter. 15. We have considered the rival submissions. It is not disputed that the assessee was a co-owner of impugned property measuring 5851 sq. yards located on the main Ferozepur Road. Th .....

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es, copy of this sale deed is filed at pages 16 to 30 of the paper book. As per the second sale deed, the same is executed by Shri Birender Singh Gill in favour of OMEX constructions Ltd. and the other co-owners including the assessee have also signed as confirming parties. These facts would clearly disclose that may be Shri Birender Singh Gill executed the second sale deed but other co-owners including the assessee have confirmed the sale transactions conducted by Shri Birender Singh Gill being .....

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g Shri Birender Singh Gill were the co-owners of both the properties under sale through two separate sale deeds. Therefore, there is no question of holding that Shri Birender Singh was sole owner of the property in reference to second sale deed. Shri Birender Singh Gill filed his return of income for the assessment year 2006-07 under consideration. Copy of the acknowledgment of filing of the return is filed at page 92 of the paper book along with computation of total income, filed at pages 93 an .....

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ue was examined in respect of land measuring 230 sq. yards only. The income earlier assessed was taken into consideration and to the returned income the Assessing Officer made addition of ₹ 4,57,240 computing the total income at ₹ 80,16,711 under section 148 of the Act. These facts clearly prove on record that Shri Birender Singh Gill being joint co-owner of the property in question when sold 1845 sq. yards of land after confirming the transaction by the assessee and other co-owners .....

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ee had 25 per cent. share in SCO No. 52-53, Sector 9, Chandigarh. Her husband was also a co- sharer holding 25 per cent. share. The assessee had declared the value of the cost of construction at ₹ 14,13,860 as against ₹ 23,73,012 assessed by the Departmental Valuation Officer (DVO). The differ ence, thus, came to ₹ 9,59,152 which on bifurcation between assessment years 1994-95 and 1995-96 came to ₹ 7,29,436 and ₹ 2,20,176 respectively. The 25 per cent. share of the .....

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gainst it. In such circumstances, it would not be appropriate to adopt two different valuations in respect of identical shares in the same property for the same period." 16. When in the case of one of the co-owner, the rate of ₹ 5,500 has been accepted as on April 1, 1981, which was also in respect of "no construction zone" land, the Revenue Department should accept sale rate of ₹ 5,500 per sq. yard on April 1, 1981 in respect of the remaining land for which first sale .....

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