TMI Blog2017 (5) TMI 723X X X X Extracts X X X X X X X X Extracts X X X X ..... geous factors of civic as well as industrial amenities to arrive at the valuation in question claimed at assessee’s behest. There is no dispute that the Assessing Officer thereafter reduced this valuation by citing sale instances of the relevant era i.e. in the years 1981 and 1982 to drastically reduce the assessee’s rate of ₹ 2050/- per sq.mtr. to ₹ 250/- only. The fact however remains that he has not considered even a single sale deed pertaining to any commercial or industrial plot as is the one involved in the instant lis. We further repeat that the said reduced rate stands enhanced to ₹ 550/- per sq.mtr. in quantum lower appeal and to that @Rs.980/- per sq.mtr. in this tribunal (supra). It is thus crystal clear that both the assessee as well as the Revenue have been found to be at equal fault in evaluating the land in question. We thus are of the considered opinion that the assessee only cannot be penalized for such an act and conduct of valuation of the property in these peculiar facts and circumstances by terming it as an instance of either concealment of income or furnishing of inaccurate particulars of income u/s.271(1)(c) of the Act. We accordingly di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or assessment year 2008-09 as the lead case. 3. The assessee company manufactures drugs and pharmaceuticals. It filed return on 31.03.2010 stating loss of ₹ 24,14,47,411/-. The Assessing Officer took up scrutiny thereafter. He came across the relevant details of the abovestated lands sale executed in lieu of sale consideration amounting to ₹ 51,13,77,104/-. The assessee had submitted a government approved valuer s report in respect of its land sold taking cost of acquisition @Rs.2050/- per sq.mtr. as on 01.04.1981 thereby arriving at its value to be of ₹ 5,82,82,689/-. The Assessing Officer termed the same as not correct since it did not indicate the plot of land concern as commercial in nature in specific wordings. He therefore summoned assessee s valuer for necessary cross examination. This followed numerous opportunities. The abovestated valuer appears to have turned up on 29.12.2010. The assessing authority then sought to know the relevant basis of ₹ 2050/- per sq.mtr. rate as on 01.04.1981 alongwith supportive documents. This valuer thereafter did not produce himself for further cross examination except for reiterating contents of his report submitte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Admittedly, in the present case, neither the AO nor the ld.CIT(A) called for report from DVO and proceeded to make their own estimation. In our considered view, it is incumbent upon the assessing authority to call for report from DVO for ascertaining the fair market value of the asset, in the event, if he is not satisfied about the claim of the assessee. In the present case, we find that without calling from the DVO's report, the AO has adopted a different rate and the ld.CIT(A) has adopted a different rate. The basis for adopting a different rate by the ld.CIT(A) is that in the case of 3rd party, the Department has adopted a rate of ₹ 533 per sq.mt. After considering the totality of the facts of the case and material available on record, we are of the view that both the authorities below are not justified in adopting the rate as the assessee had furnished a report from an expert, i.e. Government Approved Valuer. The sale instances as considered by the AO are pertaining to residential properties and such valuation cannot be adopted in respect of the Industrial Land. The estimation of fair market value depends on various factors; namely, location of property, nature of p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncealment as well as furnishing of inaccurate particulars of income by filing detailed submissions. The Assessing Officer however quoted the above narrated quantum developments to conclude that the assessee s act and conduct in adopting market value of its land sold as on 01.04.1981 in question amounted to furnishing of inaccurate particulars resulting in concealment of its income in the nature of consequential long term capital gains to be computed by adopting the above rate as the cost of acquisition. He thus imposed the penalty under challenge of ₹ 5,33,00,000/- @ 100% of the alleged concealed income. The CIT(A) however modifies the same to the extent of this tribunal s quantum findings (supra). This leaves the assessee aggrieved. 7. We have heard both the learned representatives strongly reiterating their respective stands against and in support of the impugned penalty imposed on account of long term capital gains addition being re-computed by the Assessing Officer reducing assessee s rate from ₹ 2050/- per sq.mtr. to ₹ 250/- per sq.mtr. only as on 01.04.1981 as modified in quantum lower appeal as well as in this tribunal. There can hardly be any dispute ab ..... X X X X Extracts X X X X X X X X Extracts X X X X
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