TaxTMI 
TaxTMI 
2002 (2) TMI 347
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....ee being Rs. 42,39,000. 3. The assessees had filed retums of income for assessment year 1995-96 on 31-10-1995 which were processed under section 143(1)(a) on 30-9-1996. In these returns, the assessees had not disclosed the income from capital gains from the sale of said land. Accordingly, proceedings under section 147 were initiated by issue notice under section 148 on 30-9-1996 to bring their respective incomes from capital gains to tax. The assessees challenged the action of the Assessing Officer before the CIT(A) who upheld the action of the Assessing Officer. 4. Shri D.E. Robinson, the learned counsel for the assessee submitted that the assessees bona fide believed that the population of Canacona was less than 10,000 and the sale made on 27-10-1994 was not liable to capital gains tax for such reason. Therefore, the transaction was not part of the returns of income filed by the assessees for the assessment year 1995-96. He submitted that the information on record of the Assessing Officer or in possession did not indicate that income had escaped the assessment. The learned D.R. relied upon the orders of the authorities below. 5. We have considered the rival submission....
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....r in respect of the value of land. As per the valuation report in respect of the land, the same was valued at Rs. 50 per sq. mtr. which was worked out to Rs. 54,00,000 as on 1-4-1981 as against the total sale consideration of Rs. 1,69,56,000 received by all the co-owners on the sale made in October, 1994. The Assessing Officer summoned the approved valuer and examined him on oath. It came out that Shri Vikas Desai had not visited the Sub-Registrar's office to collect information of sale deeds for comparison nor had he visited any Government Office for getting information on specific amenities available as on 1-4-1981 in and around the area where the said land was situated. He also confirmed that the land was considered as agricultural land in 1981 and the area was not yet notified as settlement zone although it had the potentialities of a settlement zone as there were cluster of houses around this land. On the request of the assessee Mr. Vikas Desai was allowed to be examined by the assessee's counsel. It appears that during this cross examination, it transpired that since Shri Vikas Desai was not a valuer of agricultural property, the market value as on 1-4-1981 may be got dete....
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....on 1-4-1981 by extrapolating the value of Rs. 35,000 as on 17-11-1969 as per sale deed with Shri Kunde. But the principle is hereby decided and the opportunity will not be extended to refute this principle. This ground of appeal is disposed of accordingly." Aggrieved by the order of the CIT(A) both the assessees and the Revenue are in appeals before us. 8. The grievance of the assessees is that the learned CIT(A) erred in rejecting the valuation reports of the Registered Valuers for the purpose of determination of market value of the land sold during the year of account as on 1-4-1981 for purposes of section 55(2)(b)(ii) of the Act, while the grievance of the Revenue is that the learned CIT(A) has erred in holding that the gift deed referred to by the Assessing Officer for working out the fair market value as on 1-4-1981 does not reflect the fair market value being evident family arrangements. We will first take up the grievance of the assessees. 9. Shri D.L. Robinson, the learned counsel for the assessee submitted that the assessees secured a valuation report initially from a registered Valuer for immovable properties in which the value as on 1-4-1981 was stated at Rs. 54....
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....submitted that it is significant that the partnership between the first assessee and Mr. Kunde was dissolved in 1983 soon after the demise of the assessee's father in February, 1982, though the father of Mr. Dominic Dias was not a partner in the said firm. The firm M/s. Goa Chitrapur Bus Service was assessed to tax. The records are available with the Department. He also drew our attention to the affidavit of Mr. Dominic Dias. 10. The learned counsel further submitted that it is on record that Mr. Dominic Dias transferred this land back to his father and he was required to do so because on his marriage in 1979 to ensure that both Mr. Dominic Dias and his brother Mr. Richard Dias had the benefit of this land and the first purchase in Shri Dominic Dias name is not questioned as violating provisions of Portuguese Civil Code as being in excess of the father's disposable quota by the other son and to prevent the assessee's wife from acquiring interest in the property on the marriage of Mr. Dominic Dias. The transfer was done on 2-6-1979 and Mr. Dominic Dias was married on 5-6-1979. Considering the fact that the property was purchased by Mr. Dominic Dias's father from out of his own fu....
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.... According to the learned counsel, the assessee had actually entered into a memorandum of sale with a reputed hotel owner from Bombay Mr. Luthria of Sea Rock Hotels, in which the price offered was Rs. 51. The assessee had not accepted this price at the material time since it was not considered as adequate and thus not acceptable. A copy of the memorandum was filed before the Assessing Officer. Even on the basis of this memorandum taking into account the published inflation index for the purpose of capital gains, the equated index price per square metre would be Rs. 34 in 1981, and if the reduction in construct able area of 18.796 imposed in 1983 is taken into account the value equated would be Rs. 47.6. The learned counsel submitted that the valuation made by the valuer obviously took into account the restrictions imposed beginning from 1983 on beach properties which as stated above retarded therate of increase. The offer made by Mr. Luthria and the fact that it was rejected as inadequate are established by documents. There was substantial persuasion from Mr. Luthria which was repelled and offer was not accepted. The Assessing Officer was not justified in totally ignoring this evid....
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.... principle of Estoppel has exceptions and in this particular case the assessee cannot take advantage of the rule of Estoppel, having avoided payment of gift tax in respect of the gift made by the assessee's father in favour of the first two assessees on 11-9-1981, stating the value of the gift at Rs. 48,000 only. This, according to the learned D.R. is a fraud on the Department and the assessee cannot be allowed to take further advantage having thus deprived the Department of legitimate gift tax due. In support of this contention, he placed reliance on the judgment of the Supreme Court in the case of CIT v. B.N. Bhattacharjee [1979] 118 ITR 461. The learned D.R. further relied on the comparable cases of sales which had taken place near about the date relevant for valuation, the sales having been effected by Mr. Kunde. In these transactions, value may be substituted for the value determined by the approved valuer. The learned D.R. submitted that the Assessing Officer has collected very recently all the materials from the office of the Sub-Registrar. 13. With regard to the appeals filed by the Revenue, the learned D.R. submitted that the learned CIT(A) was not justified in holding ....
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....cal enactments, the principle of which is the Mundkar Act. Under the provisions of the Mundkar Act landlords are compelled to sell portions of the property in possession of Mundkars at an upset price determined by the Government. According to the learned counsel, by no stretch of imagination sales to Mundkars can be considered as comparable case. The learned counsel concluded that in view of the facts and circumstances of the case, the value determined by the approved valuer for agricultural land as expressly required, by the Assessing Officer be directed to be accepted. 15. We have considered the rival submissions and perused the facts on record. The subject land was purchased by Mr. Dominic Dias, the first assessee in the year 1969 for a consideration of Rs. 35,000 from one Mr. Kunde. At the material time, Mr. Dominic Dias was 22 years of age and had no source of income worth the name. At the material time he was a partner of Mr. Kunde from whom the property was purchased having been admitted to the benefits of the said firm in 1960 (Goa Chitrapur Bus Service) when he was a minor on the basis of capital provided by his father and on account of friendship between his father and....
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....gular commercial transaction. Thereafter on 11-9-1981 the subject property was transferred by the father of first two assessees by way of gift deed to his two sons viz., Mr. Dominic Dias and Mr. Richard Dias by taking the value at Rs. 48,000 in the registered gift deed. This, in our opinion, is clearly a family arrangement considering the antecedents. The father of the first two assessee's had intended the land to be inherited only by his sons excluding the daughters who were all married and made the gift deed in September, 1981 when his health deteriorated. He expired on 202-1982. We accordingly hold that none of the two transactions which clearly vested the subject land in the hands of the first two assessees is a regular commercial transaction. The learned CIT(A) has rightly accepted the plea that the later two of the three transactions are family arrangement and do not provide the basis for determination of the market value as on 1-4-1981. We accordingly reject the appeals of the Revenue. 17. After having held that none of the three transactions referred to supra were commercial transactions and hence cannot be the basis for determination of fair market value as on 1-4-1981,....
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....the factual superiority of the land and the high price it did command in 1981 as established by the foregoing facts. In our opinion, the Assessing Officer was in error in rejecting the said report. Thereafter, the Assessing Officer required the assessee to file a report from an Agricultural Valuer and accordingly a report from Mr. Nagarsenkar who was an Agricultural Valuer was produced as specifically required by the Assessing Officer. The report of the Agricultural Valuer is at page 37 of the paper book and we find that the Agricultural Valuer had given a detailed report and had relied on the very same comparable cases already filed before the Assessing Officer and had made a reasonable valuation of the property which has been rejected by the Assessing Officer who is not a qualified valuer by merely stating that the valuation is a 'mere opinion' and the basis 'hypothetical'. Besides the comparable cases and the potentiality of the land, the Agricultural Valuer relied on the following factors for the purposes of valuation: "(1) The excellent location of the land and the near rectangular shape. (2) The made to order access to the Beach and the Main Road. (3) The flat topogr....
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....ble cases of sales ranging from Rs. 42 to Rs. 277 per sq. mtrs., which was not available to the other valuer, has taken into account the rich agricultural potentialities of the land and acceptance of the department of the value of Rs. 50 per sq. mtrs. of the inferior adjoining land made by him. Valuations being estimates are bound to vary and Rs. 10 variation in the circumstances cannot be described as wide in the circumstances explained. 19. The CIT(A) has further directed that the market value as on 1-4-1981 be determined by indexing the purchase price in 1969 by application of cost index. We agree with the learned counsel for the assessee that this method is falacious and wholly unwarranted in face of valuation reports of experts available on record. Besides, there was no approved inflation index prescribed earlier to 1981. The only index available during such period was based on cost of essential commodities and would have no relevance to determination of market price of land. 20. Now we come to the contentions of the learned D.R. His first contention that Mr. Kunde - the vendor had no friendly relation with the father of the first two assessees had already been dealt ....
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....ment is aware of the existence of any return or non-existence thereof. That the principle of Estoppel and res judicata do not apply to Income-tax proceedings is too well established to be called into question as on this date. 21. In the light of the above discussion, we direct the Assessing Officer to adopt the fair market value of the subject land as on 1-4-1981 at Rs. 66,46,000 as determined by the approved valuer for agricultural land Mr. Nagarsenkar as expressly required by the Assessing Officer after rejecting the report of Mr. Vikas Desai, the approved valuer. 22. The next grievance of the assessee is that the learned CIT(A) erred in not considering the assessee's objection to levy interest under section 234B in the light of the provisions of the Act and written submissions made before him. It is noted that as held by the CIT(A) this ground is consequential in nature. The Assessing Officer is directed to levy interest under section 234B if any, after taking into consideration the observations made by us. 23. In the result, assessee's appeals are allowed in part while the departmental appeals are dismissed. Per Singhal, J.M. 24. After going through the order pro....
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....these transactions were not commercial transactions but were merely family arrangement. With due respect to him, I am unable to agree with such broad proposition. According to the generallaw of the land, all transfers of land by way of sale or gift are compulsorily registerable under the provisions of Registration Act, 1908. For the purpose of such registration, adequate stamp duty has to be paid by the parties in accordance with provisions of Stamp Act, 1899. Such stamp duty is to be paid on the basis of market value of the immovable property to be registered. The concerned registrar has to satisfy himself that adequate stamp duty has been paid. If he thinks that market value is more than stated in the deed, then either he can refuse to register the same or ask the parties to pay adequate stamp duty in accordance with the market value. No provision has been brought to our notice to show that transfer of property by way of family arrangement can be registered at the value below the market value. Therefore, even assuming that sale deed and gift deed were by way of family arrangement, it is difficult to hold that such deeds cannot represent the fair market value. Rather a legal pr....
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....essees and M/s. Deeksha Holdings Ltd. that land was very much agricultural land. In the preamble at page 2, it has been dearly stated as under:-- "Whereas the Vendors herein have been carrying on intensive agricultural operations in the said agricultural operations in the said agricultural properties for the last several years and have grown substantial number of coconut trees, and other fruit bearing trees, besides growing paddy on part of the said agricultural property and," 2. The observations that the land had immense potentiality to be used for the purpose of Beach resort are not appealable. As on 1-4-1981, there is no evidence that any resort or hotel or lodge or any other object of tourist attraction was established. As mentioned earlier, the entire land was cultivated land in 1981. Merely the land is situated near the sea or river cannot be a ground for holding that there was immense potentiality for beach resort. Subsequent event as late as in 1987 (offer to purchase by Hotel Co.) cannot be considered as material for such finding as against the fact that the land was purely agricultural. 3. Mr. Desai, the approved valuer has considered the subject land as urban la....
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....; in answer to question No. 22 that the land was sold for residential purpose. ---------------------------------------------------------------------------------- 28. In view of the above discussion, the valuation report of Mr. Desai cannot be accepted. The valuation of land at Rs. 54,00,000 appeals to be arbitrary having no rational with facts of the case. In short, the reasons for rejection can be summarised as under:-- (1) There is a basic fallacy in the valuation report inasmuch as he has valued this land as residential property as can be seen from the answer to question No. 23 of the statement on oath recorded by Assessing Officer on 5-12-1997. (2) The valuer was influenced by the considerat....
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.... Desai. No material has been referred to regarding the value of land in or around the year 1981. Therefore, the value of the land adopted by him at the rate of Rs. 60 per sq. mtr. on ad hoc basis is arbitrary and based on surmises and suspicion. Accordingly, in my opinion, this report cannot be accepted. 30. Now the next question is how to deal with the issue of valuation as on 1-4-1981 in the circumstances of the case. As already observed by me, the burden is on the assessee to prove the valuation as on 1-4-1981. It has already been held by me that there is legal presumption that the value mentioned in the legal registered document of sale or gift of immovable property is the correct market value, which is no doubt open for rebuttal by the person who alleges that registered document does not represent the correct value. No instances of sale are brought to notice pertaining to the year 1981 or to the period nearer to such year. However, keeping in view the fact that there was offer of Rs. 51 per sq. mtr. by one Shri Shyam Bajanlal Luthria, Managing Director of Searock Resorts Pvt. Ltd. shows that valuation of the subject land in 1981 could not have been as low as mentioned in th....
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....port can be relied on being arbitrary. (ii) The assessee has been able to rebutt the legal presumptions that value in the gift-deed is not the correct market value. (iii) No factual data or material is available before the Bench to determine the value as on 1-4-1981. (iv) It is necessary to refer the matter on valuation to the Departmental Valuation Officer under section 55A. Accordingly, the orders of CIT(A) are set aside and the matter is restored to the file of the Assessing Officer, who is directed to refer the matter of valuation to a Senior District Valuation Officer and then adjudicate the matter after taking into consideration such report and all other material which may be brought on record by the assessee or gathered by him. Assessees shall be given a reasonable opportunity of being heard in this regard. 33. In the result, all the appeals are allowed for statistical purposes. ORDER UNDER SECTION 255(4) OF THE INCOME-TAX ACT, 1961 Per Shri B.L. Chhibber, Accountant Member.--As there is a difference of opinion between the Accountant Member and the Judicial Member, the matter is being referred to the President of the Income-tax Appellate Tribunal with a ....
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....n 148 to them on 26-9-1997. In response thereto they filed return declaring capital gains of Rs. 6,92,500 in their respective returns. In reassessment proceedings, controversy arose as to what should be the fair market value of the property as on 1-4-1981. The assessees submitted two valuation reports on 2-12-1997 one for the valuation of trees and the other for valuation of land for determining its fair market value as on 1-4-1981. The valuation of land was done by Mr. Vikas Desai, Government registered valuer. In his report dated 10-11-1997 he valued the land at Rs. 50 per sq. mtr. at Rs. 54 lakhs as on 1-4-1981. The Assessing Officer summoned Shri Desai under section 131 and recorded his Statement on Oath on 5-12-1997. He deposed that he is the valuer of immovable properties other than the agricultural land, forests, plantations, mines and quarries. He further deposed that he had not visited the Sub-Registrar's office to collect the information of sale deed for comparison purpose and that he did not visit any Government Office for getting information on civic amenities as on 1-4-1981 in and around the area being valued. He further deposed that though the land was considered as a....
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....ucts. However, the valuer has based his estimate of Fair Market Value on the likely price to be paid by the beach resort developers. The Assessing Officer was of the view that none of the two valuation reports submitted by the assessee could be relied upon as they were not based on any hard facts but merely constituted their opinions. 3. At this stage the Assessing Officer noted certain facts. These are that this property was originally purchased by Mr. Dominic Dias for a consideration of Rs. 35,000 in the year 1969. It was later on sold to Mr. Ubaldino Dias in June 1979 for a consideration of Rs. 40,000. On 11-9-1981, the land was transferred by a Gift Deed by the late Mr. Ubaldino Dias and his spouse to their sons, Mr. Dominic Dias and Mr. Richard Dias. The Assessing Officer found the recital in the gift deed by which the land was transferred on 11-9-1981 to the assessee's that it was specifically mentioned therein that the value of the property gifted is estimated to Rs. 48,000 'at the present market price' and based thereon stamp duty of Rs. 2,880 paid. The same was accepted by the sub-Registrar as reasonable and the deed was registered. According to the Assessing Officer th....
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....for a consideration of Rs. 25,00,000 and another instance of a beach side property measuring 50,068 sq. meters which was sold in May 1995 to Sunset Resorts Pvt. Ltd. for a consideration of Rs. 2,47,80,600. This worked out to Rs. 442 per sq. mtr. The Assessing Officer observed that the price increase was 10.6 times from 1985 to 1995 (in 10 years). He, therefore, held that the assessee's contention regarding drastic decrease in the rate of prices due to Government restrictions between the period from 1981 to 1994 is without any basis. 4. Regarding certain sale deeds of properties located at Agonda, Canacona relied upon by the assessee, the Assessing Officer found that all these properties were of smaller area and were located about 5 to 7 kms. away from the impugned property of the assessee. He further observed that copies of such sale deeds or agreements were not furnished for verification. He, therefore, held that these should not be considered as comparable cases. The Assessing Officer observed that when the price of land sold to Dalmia Resort in Mobor, Cavelossim in 1985 was Rs. 41.66 per sq. meters, it in nothing but imaginary that the property in question was worth Rs. 60 pe....
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....erence of Rs. 8,000 between the value of the property in those two years represent normal increase in the price. He, therefore, held that the registered documents had to be taken as guiding factors for determining the fair market value as on 1-4-1981. He rejected the assessee's plea to the effect that the said documents were made between the family members and were not for commercial consideration, hence the recital therein about the transactions are not dependable or authentic on the ground that both these are legal documents registered with the Government authorities. These documents have to be registered at the market price which fact had been mentioned in these documents. In the absence of any confirmation whether gift tax returns had been filed by the donors or their legal representatives despite specific query in this regard, the Assessing Officer presumed that the gift-tax returns had not been filed. The Assessing Officer was of the view that the assessee could not have one value for stamp duty and gift-tax and another value for capital gains and he cannot choose the value, which suits him to defraud the revenue. He, therefore, accepted the value as per the registered gift d....
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....essee. It was argued that though the assessment under section 143(3) in the case of Mr. Kunde was not made, the Assessing Officer was bound to adopt it as a comparable value. 7. On consideration of the contentions of the assessee and "the evidence adduced in the course of appellate proceedings", the CIT(A) expressed a view that the values estimated by both the valuers have to be rejected outright 'for the informities pointed out by the Assessing Officer as also the wide gap between the valuation made by the two approved valuers'. He further observed that the memorandum of sale drawn in 1987 with Shri Luthra of Sea Rock Hotel does not provide any help inasmuch as it was more than six years later and it not evident why the transaction was aborted. According to the CIT(A), the capital gains offered by Mr. Kunde, if any, in respect of the adjoining property is also an extraneous material inasmuch as the market value taken by him as on 1-4-1981 has nowhere been examined. The CIT(A) found that the assessee have come forward with at least four values - Rs. 50 per sq. meter taken by the approved valuer for immovable properties, Rs. 60 per sq. meter taken by the approved valuer for agric....
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....struction of beach properties as that process admittedly started only in 1983. The question of taking cost of trees separately will also not arise as there is admittedly no evidence that any fresh plantation took place during the period from 1969 to 1981. The sale consideration in 1969 naturally included the price of standing trees as well. The Assessing Officer is accordingly directed to do this exercise. In case of any difficulty (which would normally not arise), he may obtain the help of the valuation cell of the department. The appellant shall also be given an opportunity in regard to the actual working of the value as on 1-4-1981 by extrapolating the value of Rs. 35,000 as on 17 -11-1969 as per sale deed with Mr. Kunde. But the principle is hereby decided and that opportunity will not be extended to refute this principle. 8. Aggrieved by the above finding of the CIT(A), the assessee as also the department came before the Tribunal. The assessee challenged the finding of the CIT(A) on the following grounds-- "2. The learned CIT(A) erred in rejecting the valuation reports of two registered valuers for purpose of determining the market value of land sold during the year of a....
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.... parties, the learned Accountant Member in his proposed order held that the CIT(A) was not justified in holding that the sale by Mr. Kunde to Mr. Dominic Dias (or subsequently to his father) was a valid sale to an unrelated person and accordingly not justified in working out the value of Rs. 35,000 as on 17 -11-1969 as per sale deed of Mr. Kunde (para 15 refers). He further held that the CIT(A) rightly accepted the plea of the assessee that the latter two of the three transactions are family arrangement and do not provide the basis for determination of the market value as on 1-4-1981 (para 16 refers). Accordingly, the appeals of the Revenue were rejected. 11. On the appeals of the assessee, the learned Accountant Member in his proposed order observed thus- "17. After having held that none of the three transactions referred to supra were commercial transactions and hence cannot be the basis for determination of fair market value as on 1-4-1981, the issue to be resolved is what should be the fair market value of the subject land as on 1-4-1981 in terms of section 55(2)(b)(ii) of the Act. It is on record that the assessee secured a valuation report initially from a Register Valu....
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.... the assessee to file a report from an Agricultural Valuer and accordingly a report from Mr. Nagarsenkar who was an Agricultural Valuer was produced as specifically required by the Assessing Officer. The report of the Agricultural Valuer is at page 37 of the paper book and we find that the Agricultural Valuer had given a detailed report and had relied on the very same comparable cases already filed before the Assessing Officer and had made a reasonable valuation of the property which has been rejected by the Assessing Officer who is not a qualified valuer by merely stating that the valuation is a 'mere opinion' and the basis 'hypothetical'. Besides the comparable cases and the potentiality of the land, the Agricultural Valuer relied on the following factors for the purposes of valuation: 1. The excellent location of the land and the near rectangular shape; 2. The made to order access to the Beach and the main road. 3. The flat topography making the land suitable for any purpose and in particular for construction of Beach resorts. 4. The fertile soil and the higher water table capable of supporting very healthy coconut trees and tax free agricultural income (Agricultural....
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....de by him. Valuations being estimates are bound to vary and Rs. 10 variation in the circumstances cannot be described as wide in the circumstances explained. 19. The CIT(A) has further directed that the market value as on 1-4-1981 be determined by indexing the purchase price in 1969 by application of cost index. We agree with the learned counsel for the assessee that this method is fallacious and wholly unwarranted in face of valuation reports of experts available on record. Besides, there was no approved inflation index prescribed earlier to 1981. The only index available during such period was based on cost of essential commodities and would have no relevance to determination of market price of land. 20. Now we come to the contentions of the learned DR. His first contention that Mr. Kunde - vendor had no friendly relation with the father of the first two assessees had already been dealt with us in para 12 supra. The second contention was that the principle of Estoppel has exceptions and in this particular case the assessee cannot take advantage of the rule of Estoppel, having avoided payment of gift tax in respect of the gift made by the first assessee's father in favour of....
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....air market value of the subject land as on 1-4-1981 at Rs. 66,46,000 as determined by the approved valuer for agricultural land Mr. Nagarsenkar as expressly required by the Assessing Officer after rejecting the report of Mr. Vikas Desai, the approved valuer." 12. The proposed order by the learned Accountant Member was not acceptable to the learned Judicial Member regarding rejection of the appeals of the department on the ground that the sale deed and gift deed executed in 1979 and 1981 respectively did not represent the fair market value merely on the ground that these transactions were not commercial transactions but were merely, family arrangement. He has the following reasons therefor- "According to the general law of land, all transfers of land by way of sale or gift are compulsorily registerable under the provisions of Registration Act, 1908. For the purpose of such registration, adequate stamp duty has to be paid by the parties in accordance with provisions of Stamp Act, 1899. Such stamp duty is to be paid on the basis of market value of the immovable property to be registered. The concerned Registrar has to satisfy himself that adequate stamp duty has been paid. If he....
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.... to refer the matter of valuation to the DVO and then adjudicate the matter after taking into consideration such report and all the other material which will be brought on record by the assessee or gathered by him. It is on account of the above decision and difference of opinion between them that the President has been pleased to refer the aforesaid two questions to me for my opinion. 14. The learned representatives of the parties - Mr. Robinson for the assessee and Mr. Bahuguna for the revenue have been heard. Mr. Robinson appearing for the assessee submitted that the facts leading to the reference before me have been stated in paras 15 and 16 of the order of the learned Accountant Member. As discussed by him at length the transaction and related antecedents resulting in the gift in favour of the assessee on 11-9-1981 is a family arrangement. He argued that the family arrangement need not necessarily be recorded as such and described as such. The verification of surrounding circumstances can lead to such an inference. In support of the above proposition, reference was made to the decision in Maturi Pullaiah s case. He submitted that the gift deed is in effectuation of family ar....
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....square meter than multiple small holdings owned by a large number of owners as the demand is for large area usable for beach resorts. It was submitted that the above fact is eviden19from the comparable cases of sale of land appearing at page 57 of the paper book. He submitted that these comparable cases relate to the case of a hotel company, which purchased smaller plots to consolidate and use the same for hotel. He argued that the comparable cases of sales to protected tenants by average rate of Rs. 19 per sq. meter cannot be accepted. He drew my attention to the minutes of the meeting of the Ecological Development Council and submitted that it would be seen therefrom that a very large number of construction applications were pending as far back as 1983 and the policy of the Government was to promote formation of larger plots. In the last para of the minutes there is an indication that very large number of applications were from hotels and guest houses. Mr. Robinson further submitted that the tourist industry as such being concentrated on the coastal line, it is only the beaches which are in the settlement zone as is the case of the land in question which was sought after for cons....
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....location of the land in question) as against Chauri which was the only municipal town in the year 1981. In cross-examination of Mr. Vikas Desai, a question was put to him whether he could identify the square dots shown on the map to which he replied that these represented houses. Another question No. 15 was put to him to the effect that Chauri which is the earliest township in Canacona contains minimum number of houses as compared to Nagorsen indicating a greater urbanisation outside Chouri. What was the explanation for this? Mr. Vikas Desai had replied that settlement is more concentrated in Nagorsen, Paolem towards the cost because of availability of water. My attention was also drawn to Census Report of 1981 to show that the population of Paolem was 7942 as against the population 1629 of municipal town of Chouri in the year 1981. Mr. Robinson vehemently argued that the valuation made by the valuer is based on the potentiality, possible agricultural yield the comparable cases and is verifiable more or less correctly with reference to the value offered for the land in 1987 and the comparable case cited by the Assessing Officer himself. Further, the opinion of the registered valuer....
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....of urban growth. He led me through the summary of the reasons on the basis of which the valuation report of Mr. Vikas Desai can easily be rejected. Even the second valuation report of Mr. Nagarsenkar, argued Mr. Bahuguna cannot be accepted, it being too general in nature. He has not given any instance of sale. He also drew my attention to the significant finding recorded by the learned Judicial Member that Mr. Nagarsenkar has not pointed to any material to show that there was any urban growth in 1981 much less the beach resort. There is no material to support the presumption of Mr. Nagarsenkar that there was pressure of resort, hoteliers and scramble to acquire beach land in 1981. He was also not correct in stating that the land in question falls within the municipal limit. As a matter of fact, in the year 1981, the land under consideration was outside the municipal limits. He, therefore, supported the view of the learned Judicial Member that the rate of Rs. 60 per sq. meter adopted by the valuer for valuing the land is on ad hoc basis and based on surmises. He, therefore, supported the view of the learned Judicial Member that even the report of Mr. Nagarsenkar could not be accepte....
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.... falling within the municipal limits consisting of coconut, cashew plantation and drinking water well. The area later classified as settlement by town planning department of Goa. In column 13 it stated that the subject land is abetting of Choudi - Kundelebag Road. In column 16, which requires instances of sale of immovable properties in the localities to be given, the valuer stated that "in the vicinity and in the immediate neighbourhood no sale deed of similar type of land is available". However, he gave the instance of sale vide deed dated 27-7-1974 of 600 sq. meters of land for Rs. 12,000 i.e., Rs. 20 per meter. The said land, according to the valuer falls within the limits of V.P. of Panguinim Tal, Cancona, Goa. The valuer compared the said land in his report with that of the subject land and stated that the said land is not accessible whereas the subject land is easily accessible. In the case of the said land, public transport was not available in 1974 but in case of subject land it was available then. The said land is situated at a distance of 5 kms. From Cancona town with river in between but the subject land is situated at a distance of 1.50 kms. from Cancona town. In the c....
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.... - one of the assessees before us, on 17-11-1969 and as stated in the sale deed dated 27-10-1994 for last several years intensive agricultural operations had been carried on, on the subject agricultural land with the result substantial number of coconut trees and other fruit bearing trees had grown; in addition part of the land was used for growing paddy. So neither the subject land was 'Urban land' nor it fell within the municipal area of Canacona Municipal Council as stated by Mr. Desai in his report. This by itself speaks volume about the quality of the valuation report, though conscious effort appears to have been made by Mr. Desai to fill up the gaps as also to support his valuation during the course of cross examination. It will be revealed from the cross examination that direct questions were put which yielded favourable response. It was, inter alia, for several such reasons that the valuation report of Mr. Desai and his averments made during the course of cross examination did not inspire confidence and the AO/CIT(A) as also the learned Judicial Member rejected the same altogether and in my considered opinion their view appears to be correct. 20. It is observed from the ....
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....num could have been derived from this land". Then in column 9 he gave other features which affect the value of the land. In column 10 the valuation officer has to state the comparable cases of sale against which he stated 'refer conclusion-comment in valuation'. At internal page 5 of the report under the caption 'valuation', he stated that for arriving at value as on 1-4-1981, he had also made inquiries with those who had knowledge of the subject land and lived or reside in the area. He also mentioned that many such agricultural plots and land in South Goa have yielded to non-agricultural use on account of demand for construction of resorts by beach resorts and that the commercial value that such use could command cannot be ignored totally if the land though agricultural in nature is available for such other non-agricultural use in the absence of any prohibition statutory or otherwise. After making the above general remarks, the valuer reverts back to the subject land and observes that the subject land, in particular having been under utilized for agricultural purposes having 200 coconut trees is far too attractive for non-agricultural purposes in view of its topography and locatio....
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....ion of valuation could not have assumed much importance in a family arrangement. The learned Judicial Member has also rejected the value mentioned in the said Gift Deed but on the ground that the assessee has successfully rebutted the presumption that what is stated in the said registered gift deed is the correct value by pointing out to an offer of Rs. 51 per sq. meter in respect of the subject land. In effect, thus, what the learned Judicial Member has held is that the value mentioned in the gift deed can no longer be looked into. This finding has been made clear in paragraphs 30 & 32 of the order, though a first reading of paragraph 25, especially the closing sentence, does suggest that the learned Judicial Member has held that the assessee is yet to successfully rebut the presumption. If the learned Judicial Member is understood as having said that the value mentioned in the gift deed is still subject to rebuttal, then that would mean that the same has not been successfully rebutted before him, in which case his decision to restore the entire matter of valuation to the Assessing Officer would be inconsistent. If the value mentioned in the gift deed is not rebutted, then it woul....