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TMI Blog2019 (7) TMI 852X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee has explained the cause of delay as he was engaged in taking care of his mother who was not maintaining good health and was hospitalized therefore, the assessee could not take the necessary steps in filing the appeal within limitation. The assessee has also filed the medical record of mother of the assessee as well as the death certificate dated 05.09.2017 of the mother of the assessee. 4. On the other hand ld. DR has objected to the application for condonation of delay. 5. Having considered the rival submissions and careful perusal on record, we find that the assessee has explained the cause of delay as the mother of the assessee was not well and was hospitalized on 28.07.2017. Further, the mother of the assessee died on 05.09.2017. The assessee has produced the medical record of the ailing mother and therefore, the reasons explained by the assessee are found to be reasonable for delay in filing the present appeal. Hence, we are satisfied with the cause of delay explained by the assessee being reasonable and accordingly the delay of 51 days in filing the present appeal is condoned. 6. The assessee has raised the following grounds:- "1.(a) In the facts and circumstan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3,07,171 as declared by the assessee, for computing the Long Term Capital Gain. 2. The assessee craves his rights to add, amend or alter any of the grounds on or before the hearing." 7. Ground No. 1(c), at the time hearing, the learned counsel for the assessee has stated at bar that the assessee does not press ground no. 1(c) and the same may be dismissed as not pressed. The ld. DR has raised no objection if ground no. 1(c) of the assessee's appeal is dismissed as not pressed. Accordingly the ground no. 1(c) of the assessee's appeal is dismissed being not pressed. 8. Ground Nos. 1(a) (b) and (d) are regarding the addition made by the AO on account of long term capital gain by adopting the full value consideration as per the provisions of Section 50C of the IT Act at Rs. 2,61,53,980/- as against sale consideration of Rs. 1,55,00,000/-. The assessee is an individual and proprietor of M/s Trading Corporation and e-filed his return of income on 13.10.2010 declaring total income of Rs. 3,75,690/-. In the scrutiny assessment, the AO noted that the assessee has sold some portion of building D-38A, Ashoka Marg, Ahinsha Circle, Jaipur for a consideration of Rs. 1,55,00,000/- and the sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... estion was a residential property as stated in the sale deed whereas the DVO has considered the same as commercial while determining the fair market value of the land in question. Since, the assessee never apply for conversion of the said land/property therefore, the same can be valued as a residential property and not commercial. In support of his contention, he has relied upon the decision of Hydrabad Benches of the Tribunal in case of N. Revathi vs. ITO in ITA No. 67/Hyd/2013 and submitted that when the building has been constructed for residential use with all amenities which are necessary for residential accommodation then even if it is used for non residential purpose it would not lose its character as a residential building. Further, the DVO has also computed the value/cost of construction by adopting the CPWD rates whereas the property situated in the State PWD jurisdiction and therefore, State PWD rates ought to have applied. He has relied upon the decision of Hon'ble Jurisdictional High Court in case of CIT vs. Dinesh Talwar 265 ITR 344 . The AR has also referred to a show cause notice issued by the Nagar Nigam dated 24.12.2012 against the unauthorized use of property fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he valuation of the same cannot be determined by adopting the commercial rates. The unauthorized use of the property would not enhanced the value as per the contention of the assessee. There is no dispute that the property in question as per record is a residential property however, the location of the property as well as the actual use of the property for commercial purposes has led to the stamp duty authority as well DVO to adopt commercial rates for the purpose of valuation. The stamp duty authority has initially applied the residential rate at the time of sale deeds but subsequently the value was revised by adopting commercial rates. This appears to be based on the actual used of the property in question. Even the assessee has not disputed the actual used of the property as for commercial purpose and due to such unauthorized used the Nagar Nigam issued a show cause issued dated 24.12.2012. The assessee has also filed the sanctioned plan of the property in question as additional evidence in support of the claim that at the time of sale the property was a residential one and subsequent misuse of the same for commercial purpose will not enhance the fair market value. It is pertine ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isition of Rs. 23,07,171/- whereas the DVO has determined the same as on 01.04.1981 at Rs. 14,03,400/-. The ld. AR of the assessee has submitted that the DVO has determined the cost of acquisition as on 01.04.1981 on the basis of comparable sales but the same was not confronted with the assessee. Even otherwise the sale instances taking into consideration by the DVO are not comparable as there are in respect of area not similar to the property of the assesee. The AO/DVO has also made addition of 50% to the value as it was situated in the corner. All these facts were not confronted with the assessee. 14. On the other hand, the ld. DR has submitted that the DVO has considered all the relevant factors while adopting the fair market value as on 01.04.1981. He has relied upon the order of the authorities below. 15. Having considered the rival submissions as well as relevant material on record we find that the DVO has taken the fair market value as on 01.04.1981 by considering the comparable instances however, the assessee was not confronted with such comparable cases to be adopted by the DVO. Further, the DVO enhanced the value due corner location of the property this was also not con ..... X X X X Extracts X X X X X X X X Extracts X X X X
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