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2019 (5) TMI 425

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..... 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 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 the Learned CIT. Thus, the same is hereby quashed. The appeal preferred by the assessee is, therefore, allowed. - I.T.A. No.1069/Ahd/2016, I.T.A. No.1139/Ahd/2014 - Dated:- 3-5-2019 - Shri Waseem Ahmed, Accountant Member And Ms. Madhumita Roy, Judicial Member For the Appellant : Shri M.J. S .....

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..... ssion 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: "I am in receipt of your above referred notice wherein you have mentioned that as per the Valuation Report, the impugned property was constructed during Portuguese Regime and its written history is available from 1044. It was further noticed by you from the Valuation Report that 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" On the basis of above remarks, you have assumed the value of structure as 'NIL' In the matter I would like to highlight that - First of all valuation of whole property is done for the purpose of valuation of Capital Gain and that the date of valuation is 1-4-1081. Whereas the Valuer Report is dated 30-1-2009 that is inspection .....

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..... e 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 contradiction. The bungalow is in extremely dilapidated condition and was not in a position of being repaired and apparently had no market value and yet the same has been estimated by the Registered Valuer at a very high value, this particular aspect of the matter has not been examined by the Assessing Officer as also opined by the Learned CIT. The comparable instances given by the Registered Valuer has not been verified by the Assessing Officer. In order to attract the point as raised by the assessee that valuation is a technical matter and can be determined by the technical person, the Learned CIT observed that the Assessing Officer is not precluded from applying his mind to this issue. It was the contention of the Learned CIT that since the Assessing Officer did not make proper enquiry and failed to apply his mind, the order is both pre .....

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..... n 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 culvert which is partly broken. At present there is no direct approach to the plot from the main road and it is observed that there is village road on the rear side (East side) of the plot from which the vehicle can be brought to the plot. There is no new construction near by, not seen for many years, in the line with the existing bungalow. Thus it appears that the property was described in its present condition since the verb is , is available in the 6th line of the first paragraph of description at Page 5 of the valuation report. It was further mentioned that the present condition of the structure is not good, not in use, not repairable. Presently no water or electric power connection is available and no direct approach to the plot is found. The plot is covered by illegal tents. The Learned CIT in the second paragraph of this notice observed bu .....

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..... nue, 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 which the Commissioner does not agree, the order cannot be treated as an erroneous order prejudicial to the interest of the Revenue unless the view taken by the AO is unsustainable in law. In the present case, action of the Commissioner will have to be tested at the anvil of the aforesaid principles. In our considered view, 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 .....

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