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2019 (5) TMI 425

property was constructed during Portuguese Regime - finding of the Learned CIT that the cost of property should be taken as Nil for calculation of the long term capital gain - CIT observed that the Registered Valuer report suffers from self contradiction - HELD THAT:- The order of the AO could not be termed as erroneous or prejudicial to the interest of the revenue warranting exercise of revisional jurisdictional u/s 263 because the Learned CIT formed a different opinion. The valuer as simply commented upon condition of the property during the course of his verification only. This does not automatically mean that property was under bad and dilapidated condition as on 01.04.1981. However, we find that when two views are possible and that has resulted in loss of the revenue it cannot be treated as erroneous order prejudicial to the interest of the revenue unless the view taken by the Assessing officer is unsustainable in law. We find nothing contrary to come to a conclusion that the Learned AO has not made any enquiry in the assessment proceeding. Taking into consideration, the entire aspect of the matter we are of the considered view that the order impugned before us is not .....

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8377; 6,00,000/-. The value of property as 01.04,1981 was determined at ₹ 7,57,800/- (Value of construction 5,01,840/- + Value of land 2,56,000/-) by a private valuer. After getting benefit of indexation, LTCG on this property was worked out at ₹ 15,89,604/-. The valuer had valued the constructed structure excluding land at ₹ 5,01,840/-. However, as per the valuation report and sale deed, the property was constructed during Portuguese regime and its written history is available only from 1944. It was further noticed from the valuation report, where the valuer has himself stated that "bungalow was in very bad and dilapidated condition. It cannot be repaired with minimum expenses. The cost of reconditioning of structure will be as good as building a new structure". This clearly indicated that in the valuer own admission the value of the structure was 'nil'. As such, while computing value of property, it was required to be taken as zero." In that view of the matter, a show-cause dated 18.12.2013 u/s 263(1) was issued against the assessee, upon which the assessee filed a written submission on 11.02.2014, wherein the assessee submitted as follows .....

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luation of property is highly technical matter and value can be determined by the technical person, who has a knowledge of such a valuation. The same approach has been followed by your assessee and your assessee has obtained a Valuation Report from an approved Valuer, who has valued the property and the same has been adopted by your assessee while filing the Return of Income. The value of property is based on several factors and this being highly technical, can be determined by a technical person only when the valuation is to be determined for a previous date as compared to present valuation, which is based on market forces and can be adopted by taking ajuntry value as declared by the State Government. In view of above. I request you to kindly drop the penalty proceedings and oblige. However, such plea of the assessee was not accepted by the Learned CIT and he thus set aside the order passed by the Learned AO with a further direction upon him to pass a fresh order after bringing on record all relevant evidences making enquiry and also after giving the assessee an opportunity of being heard. While doing so, the Learned CIT observed that the Registered Valuer report suffers from self .....

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entioned was of 30.01.2009. The description given in the said valuation report in respect of the property in question is as follows: The property consisting of an N.A. land bearing plot no. 38 of village Devka in the Dist. Daman, is located on the main road from Nani Daman to Devka. it admeasures 6400.00 sq.mt. land area. The Bungalow existing on the plot is known as "HILL VIEW" bungalow, it is an old structure, traditional architectural style, built in stone, bricks and wood. As it is not in use for quite long and not maintained so far, It is in a very bad and dilapidated condition. It apparently seems that it cannot be repaired with minimum expenses. The cost of reconditioning of the structure will be as good as building a new structure. Thus, even though the location of the plot is on the main road (prime area), the construction on the plot is not possible as on today, and the utility, usage of the plot is nil except, keeping it open Moreover the plot is at higher level and the soil is rocky. The level of the ground near the existing bungalow is approximately 10'-0" higher than that of the existing main road. There is a nala passing through the approach culver .....

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ndition is to satisfy that the order passed by the Assessing Officer is erroneous and the same is prejudicial to the interest of Revenue. In the instant case, we have gone through the order passed by the Learned CIT but we have failed to understand as to why such order passed by the Assessing Officer is erroneous. It is the law of the land that before the Commissioner exercise jurisdiction of suo moto revision he has to be satisfied about the fulfillment of twin conditions as stated above namely; (i) the order of Assessing Officer sought to be revised is erroneous, (ii) it is prejudicial to the interest of Revenue. If one of them is absent recourse cannot be had to Section 263(1) of the Act. If the order is erroneous but is not prejudicial to the interest of Revenue or if the order is not erroneous but is prejudicial to the interest of Revenue, the Commissioner of Income Tax cannot exercise revisional powers. It has been further held that when the Assessing Officer has adopted one of the courses permissible in law and it has resulted in loss of Revenue it cannot be treated as prejudicial to the interest of Revenue or where two views are possible and the AO has taken one view with w .....

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her of the two contentions were invalid in facts or law, he ought to have come to such a conclusion without holding to the contrary. He merely brushed aside the assessee's contentions observing that the Assessing Officer had not made proper inquiries. For such reasons, tax appeal is dismissed" Upon going through the records particularly the order passed by the Learned AO, we find nothing contrary to come to a conclusion that the Learned AO has not made any enquiry in the assessment proceeding. Taking into consideration, the entire aspect of the matter we are of the considered view that the order impugned before us is nothing but a change of opinion and the very basis of such order i.e. the finding of the CIT does not depict the original factual matrix of the matter. At the cost of repetition we say that the valuation of the property was made upon inspection on 31.01.2009. The description of the property was in respect of that relevant point of time and not of the 01.04.1981 of which the valuation was assessed by the registered valuer. Since, the very basis of the finding of the CIT is not proper, we find no merit in the order impugned before us u/s 263 of the Act passed by .....

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