TaxTMI 
TaxTMI 
2013 (8) TMI 623
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....ficer having no authority in law to pass such order. 3. That the Order u/s 254 read with section 147/143(3) dated 15.12.2011 is also bad in law as the reference was made to the Assistant Valuation Officer to estimate the fair market value of the asset sold (i.e. open land) and not to estimate the fair market value of the Deemed Sellable Area as if there is constructed property over the said land. 4. That the Learned Assessing Officer on the basis of an illegal order passed by the Assistant Valuation Officer have gone beyond their jurisdiction in by passing and over powering the directions of the Hon'ble ITAT who have directed "That the AO shall refer this matter for Valuation to the DVO" for determining consideration of the asset sold by the assessee u/s 50C of the Act and not to determine the Fair Market Value of the Sellable Area of the constructed property over the vacant plot sold. 5. That in any view of the case and having looking to various aspect of the case, the working of taxable Capital Gain at Rs.43,49,587/- is highly excessive and is liable to be reduced. 6. That the provisions of section 50C do not attract on the sale effected on the basis of agreement to s....
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....tary and reliable evidence. The D.V.O. after considering the assessee's objection vide order 30.03.2011 estimated the fair market value of the said property at Rs.54,03,600/- as on 03.11.2003. In view of the report of the Valuation Officer, the A.O. provided opportunity of hearing to the assessee and asked why assessment for A.Y. 2004-05 may not be completed taking into consideration the fair market value taken by the D.V.O. The assessee filed his objection against the value estimated by the D.V.O. and submitted that the D.V.O. is incorrect in estimating the property. The case was discussed with the assessee at length. The A.O. considered the assessee's objection and the same was rejected as under :- (Paragraph no.8) "8. The reply of the assessee along with the objections filed by him have been considered. The contention of the assessee cannot be accepted and deserves to be rejected on the following grounds :- (i) The property was referred to the DVO for valuation on the directions of the Hon'ble ITAT vide its order ITA No.705/Agr/2008 dated 25.06.2010. He is a technical person who is authorized by the Income Tax Act for the purpose. Hence the request of the assessee for valu....
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.... the Act and not on assumed jurisdiction and powers. The CIT(A) called the remand report from the A.O. The remand report submitted by the A.O. was given to the assessee for rebuttal. However, the ld. Authorised Representative of the assessee submitted before the CIT(A) that the issue stands covered by the written submission given by the assessee, hence there is nothing more to submit. After considering all these facts, the CIT(A) held as under :- (Paragraph no.4.4, page nos.11 & 12) "4.4 I have carefully considered the assessment order, the written submission of the appellant as well as the remand report of the AO and the case laws referred to by the Ld. AR present for the appellant. In this case the assessee sold land on 03.11.2003 declaring the sale value at Rs.3,52,200/-. The circle rate of stamp duty purposes by the sub registrar Agra was Rs.53,01,000/-. The AO in the original assessment dated 27.12.2001 worked out the taxable capital gain at Rs.50,76,413/- on the basis of the circle rate. The CIT(A)-II, Agra vide order dated 14.10.2008 confirmed the action of the AO but recalculated the taxable capital gain at Rs.43,49,587/-. The assessee being aggrieved with the order of C....
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....ultistoried) (multipurposeuse). 2. Ground Coverage - 40% FAR - 1.20 (For Nursing Home). 5.3 Actual Area covered and plintharea of construction. Being open land without constructionso far. 7.0 METHOD OF VALUATION 7.1 Method adopted - By development method taking permissible ground coverage and FAR for marked use of land (multipurpose/nursing home) as per building by Law of ADA Agra 2000- 2001. Applicable at time of sale and prevailing market rate for land of Society at time of sale enquired by survey of Area. 7.2 Reasons in support of the Method adopted This is most appropriate method in Absence of 1. Reliance sale instances 2. Approved plan/lay out as per Master plan. 7.3 Any special observations or Qualification Being land of co-operative Housing Society, rate of resale of plot of which is restricted upto rate of allotment/ normal rate, it is impossible to obtain Reliable/Actual sale instances" Valuation is a technical matter which has been performed by the officer competent to perform this function. From what is extracted above, to my understanding, I find that it is not as if the valuation officer has valued the land as if there was constr....
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....ection 147/143(3) dated 15.12.2011 is bad in law being illegal and out of jurisdiction under section 50C of the Act read with section 16A(5) of the Wealth Tax Act, 1957 dated 30.03.2011 passed by Assistant Valuation Office having no authority in law to pass such order. Ld. Authorised Representative submitted that as per the scheme of the Act applicable, order can only be passed by the competent authority having power under the Act and not on assuming jurisdiction and powers. The ld. Authorised Representative submitted that the Assistant Valuation Officer has jurisdiction and authority to pass order under section 50C of the Act and also to estimate the fair market value of deemed saleable area of open land as it is constructed property over the said land. The ld. Authorised Representative with reference to the direction of the I.T.A.T. order submitted that the matter was restored to the file of the A.O. with direction that the A.O. shall refer the matter for valuation to the D.V.O. in the light of the provisions of sub-section(2) of section 50C of the Act. The ld. Authorised Representative referring various facts of the case submitted that the report of the Assistant Valuation Offic....
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.... under :- "F.M.V. of land: As per Building Byelaw's 2000-2001 of A.D.A., Agra, prevalent at time of sale of land (NOV 2003) and permissible Ground coverage and F.A.R. for the use of this Plot of land [Nursing Home/Multistoried Flats (Multi purpose use)] saleable area of land as per permissible ground coverage and F.A.R. is 1.28 times, calculation of it is as per following :- Ground coverage - 35%, F.A.R. - 1.5, Nos. of storeys = 1.5 = 5 0.35 (4 x 0.35 = 1.40 + 0.10) Saleable area For Ground Floor = 0.35 x 0.60 = 0.21 First Floor = 0.35 x 0.50 = 0.18 Second & Third = 2 x 0.35 x 0.30 = 0.21 Fourth Floor = 0.10 x 0.30 = 0.03 Open land = 0.65 F.M.V. of land Total saleable land = 1.28 time = @ 1.28 x 1600 = @ Rs.2046/m2 Less development charges (-) @ (180 + 50%) = @ Rs.211/m2 1.28 Net F.M. Rate of land = @ Rs.1835/m2 F.M.V. of Land = 1835 x 2944.74 = Rs.54,03,598/- (Area of land is 2944.74 m2) Say Rs.54,03,600/-" 15. The D.V.O. is correct in estimating the value of the plot as per the building byelaws of Agra Development Authority, Agra because that plot is having potentiality for constructing of many floors suitable for ....