2020 (9) TMI 815 - AT - Income Tax

Tribunal rules in favor of assessee on assessment issues, directs recalculation of capital gains.

The Tribunal found in favor of the assessee on two key issues. Firstly, it determined that the absence of a valid notice under Section 143(2) of the ... Enhancement of Capital Gain - Initially the value was taken as determined by the Sub-Registrar - Later, on objection raised by asessee, matter was referred to DVO - Application of section 50C, since the land is in Dark Zone - HELD THAT:- As during the course of assessment proceedings u/s 143(3)/148 of the Act, the A.O. has enhanced capital gain by taking value as determined by the Sub-Registrar. However, the assessee has filed objection then the matter was referred to the DVO. DVO done valuation without considering the facts that land is in Ecological Area exists in Dark Zone as declared by Geological Survey of India and Central Ground Water Authority, no construction activities are allowed on that land as well as comparable case of adjacent land was also not considered. DVO has taken excessive rate without considering the average rate i.e. ₹ 9,28,300.00 and taken ₹ 22,20,625.00 per Bigha which is more than double of prevailing Market rate. Judicious view should be taken for valuation of land and true valuation is ₹ 9,28,300.00 per bigha as per surrounding sale value to be taken. In addition to cost of boundary wall as taken by the DVO also considered for cost of acquisition. Accordingly, we do not find any merit in the addition so made. Issues Involved:1. Validity of notice issuance under Section 143(2) of the Income Tax Act.2. Correctness of land valuation for capital gains calculation under Section 50C of the Income Tax Act.Detailed Analysis:1. Validity of Notice Issuance under Section 143(2) of the Income Tax Act:The assessee contended that the assessment was framed without the issuance of a mandatory notice under Section 143(2) of the Income Tax Act. The assessee argued that the Assessing Officer (A.O.) did not issue a notice under Section 143(2), which is essential for assuming jurisdiction for making an assessment under Section 143(3). The evidence provided included:- No mention of the notice in the proceeding sheet.- Absence of the notice in the Income Tax portal records.- A manual notice allegedly received by the assessee's son, which lacked dispatch details and was claimed to be fabricated.- Reference to CBDT Circular No. F.No. 225/157/2017/ITA.11 dated 23.06.2017, which mandates that notices under Section 143(2) should be generated through the ITBA portal.The Revenue countered that the notice was issued and a copy was sent to the Commissioner of Income Tax (Appeals) [CIT(A)]. However, the Tribunal found the assessee's arguments convincing, noting the lack of proper issuance and record of the notice under Section 143(2). The Tribunal concluded that the absence of a valid notice vitiated the assessment proceedings.2. Correctness of Land Valuation for Capital Gains Calculation under Section 50C of the Income Tax Act:The assessee challenged the valuation of the land used for calculating capital gains, arguing that the land was situated in an ecological zone, making the standard rates inapplicable. Key points included:- The land was in an ecological zone where construction was restricted to 10% of the total area.- The land could only be used for agricultural purposes, and water extraction was prohibited due to its classification as a 'Dark Zone' by the Central Ground Water Authority.- The DVO did not consider these restrictions or comparable sales of adjacent land, which showed significantly lower values.The Tribunal observed that the DVO failed to account for the ecological restrictions and the actual market conditions. The Tribunal referenced judicial precedents that emphasized the need to consider comparable sales and specific land characteristics in valuation. The Tribunal found that the DVO's valuation was excessively high and not reflective of the true market value.Conclusion:The Tribunal directed the A.O. to recalculate the capital gains based on a more reasonable valuation of Rs. 9,28,300 per bigha, considering the ecological restrictions and comparable sales. The revised calculation resulted in a net capital gain of Rs. 1,42,733, on which the assessee was liable to pay tax.Final Judgment:The appeal of the assessee was allowed in part. The Tribunal directed the A.O. to reassess the capital gains based on the corrected valuation, leading to a tax liability on the revised capital gains amount.