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Kumar K. Chhabria, Versus Income Tax Officer, Ward - 19 (1) (1)

2010 (2) TMI 1252 - ITAT, MUMBAI

I.T.A No.5347/Mum./2008 - Dated:- 24-2-2010 - Shri R.K. Gupta and Shri Pramod Kumar, JJ. Appellant by : Shri D.J. Shukla Respondent by : Shri Lal Chand ORDER Pramod Kumar A.M. This is an appeal filed by the assessee and is directed against the learned CIT(A)'s order dated 27th June 2008, for assessment year 2005-06. 2. The assessee is an individual. During the relevant previous year, assessee sold an office premises at "509, Maker Chambers-V, Nariman Point, Mumbai" for a stated con .....

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s on 1st April 1981, which the assessee was entitled to adopt as cost of acquisition for computing capital gains, was claimed to be ₹ 16,20,000/-. The said claim of the assessee was backed by a valuation report by an approved valuer. This valuation report, in turn, relied upon certain press reports about prevailing market prices and not on any comparable sale instances. When the Assessing Officer tried to find out comparable sale instances in the same society, he fond the same to be much l .....

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of ₹ 3,00,000/- as F.M.V. of the property as on 1st April 1981 and computed capital gains on that basis. The assessee's objections to the D.V.O. report were rejected on the ground that this report is binding on the Assessing Officer. Aggrieved, the assessee carried the matter in appeal before the learned CIT(A) but without any success. The learned CIT(A) rejected the appeal of the assessee by observing as follows:- "2.4 I have considered the assessment order and the submission of .....

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oo. As may be seen, sub section (6) of section 16A of the W.T. Act, 1957 makes it mandatory for the Assessing Officer to proceed to complete the assessment on the asset in question in conformity with the estimate of the valuation officer. This being so, there is no case for adopting any other value in the case. It is to be further noted that the Assessing Officer had referred the 3 Kumar K. Chhabria I.T.A. No.5347/Mum./2008 valuation to the DVO-I only on appellant's request. In these circums .....

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by the DVO-I to be based on an authentic basis. Accordingly, from the point of view of merit also, the valuation submitted by the appellant's valuer is found to be inaccurate and devoid of any scientific basis. I also find that despite there being instances of live sales of properties, the appellant's valuer has referred to his inability to find live instances of sale. This is highly inconsistent and erodes the credibility of the appellant's valuer's report. The appellant's f .....

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law. As regards this, the Hon'ble Supreme Court in their decision in the case of Goetz (India) Ltd. Vs CIT, (2006) 284 ITR 323 has held that a relief if omitted to be sought has to be claimed only by filing a revised return and that this requirement cannot be circumvented by claiming the relief in any other form. In these circumstances, the submission on this point appears to me to be more an afterthought driven solely by the adverse prospect of rejection of appellant's valuation of the .....

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and clear position of law, the Assessing Officer's action is confirmed and the grounds of appeal are dismissed." 3. Not satisfied with the order of the learned CIT(A), the assessee is in second appeal before us. 4. We have heard the rival contentions, perused the material on record and duly considered the applicable legal position as also the factual matrix of the case. 5. We have noticed that in the case of Bubab M. Kazerani Vs JCIT, 91 ITD 429 (TM), a Third Member decision of the Tri .....

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apart, even on merits, the D.V.O's valuation is primarily based as the D.V.O. himself puts it "comparable sale instances". The valuation is said to be "assessed rate based on comparable sale instances". It is not even in dispute that at least in eighties, it was a common practice to pay a part of sale consideration by unaccounted cash and it was because of this practice several legislative measures had to be taken to combat tax evasion in property sale transactions. Bear .....

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