TaxTMI 
TaxTMI 
2017 (12) TMI 1777
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....s on 01-04-1981 at Rs. 200/- per sq. yard on the basis of the opinion of the DVO based on the sale instance of the property at Shiv Marg, Bani Park and Mado Singh Road, Bani Park ignoring that they are not comparable with the land at Ghiya Marg and also ignoring that the Hon'ble ITAT in its order dated 08-04-2011 has taken the FMV of land as on 01-04-1981 at Rs. 300/- per sq. yard which was recalled on pointing out the mistake of not considering the comparable sale instance of property at Bhawani Singh Road.'' 2.1 Apropos Ground No. 1 to 3 of the assessee, the facts as emerges from the order of the ld. CIT(A) is as under:- ''2.3 I have perused the facts of the case, the assessment order and the submissions of the appellant In this case, the original assessment order under section 143(3) of the I.T. Act, 1961 was passed on 26-12-2007. Subsequently, vide its order dated 21-012014, the ITAT had set aside the issue of capital gains as it was felt that a comparable case cited by the assessee had not been considered. After considering the authorized representative's objections in regard to the values of properties D-81 and F50,Ghiya Marg relied on by the Assessing ....
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....rsal method of capital gain can be applied then it will mean that the increase in the value of the property throughout India is the same. The increase in the value of property depends upon the number of factors. Hence, we do not feel that reversal method of capital gain index is to be applied to ascertain the cost as on 1-4-1981 by adopting sale of property in financial year 1992-92. The ld. CIT(A) has observed that the plot which was sold was on main road and was a corner plot and therefore, we feel that it will be fair and reasonable to estimate the rate of land as on 1-4-1981 at Rs. 300/-per sq. yard . The corner plot as well as the location of plot on the main road will fetch more price and therefore, we have estimated that the rate of land in respect of the said plot as on 1-41981 should be Rs. 300/- per sq. yard. The AO will recompute the capital gain.'' Thus two things are clear that the reversal method of capital gain index to ascertain the cost as on 01-04-1081 by adopting sale of property in financial year 1992-93 was rejected and also the reliance of the Authorized Representative on the decision of Jahanganj Cold Storage vs ACIT, 133 TTJ (Agra) was not agreed to....
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....gh Road to determine the land cost at 1.4.81.Hence order is recalled to the effect that sale instance of property at Bhawani Singh Road to determine FM as on 1-4-81 in respect of property sold.'' Further, the order was set aside as follows: ITA No. 1301/JP/2010 A.Y. 05-06 dated 21/01/2014 ''7. We have considered the submission of both the parties and carefully gone through the material available on the record. In the present case, it appears that the comparable case cited by the assessee was either not brought to the notice of the authorities below or due to oversight it was not considered bythe AO/ld. CIT(A) . We, therefore, deem it appropriate to restore this issue ack to the file of the AO to be decided afresh in accordance with law after providing due and reasonable opportunity of being heard.'' Thus, the assessee was afforded an opportunity by the Assessing Officer. As regards the property at Bhawani Singh Road, it is seen that this is a built up property and the land rate has been arrived at by the Registered Valuer by relying on a registered sale deed for Plot No. S-6, Bhawani Singh Road, C-Scheme, dated 2410-1981. It is seen that the CIT(....
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.... neighbourhood or adjoining localities. It would be appropriate to consider the sale instances as per above preference. The sale instances of the same locality i.e. Bani Park are available. As desired, a copy of sale instances as received from the State Govt.ofthe year 1981 is enclosed for your perusal and necessary action please. Calculation of land rate as per Sale instances S. No. Description Details 1 Property Details Part of B-20, Shiv Marg, Bani Park, Jaipur A Sale instance document No. 2833 B Date of sale 07.11.1981 C Sale value 9036.00 E Area of plot in Sqm = 150.60Sqm F Land rate in Rs. Per Sqm 9036.00/150.60 = 60.00 2 Property Details Part of D-60, Madhosingh road, Bani park, Jaipur A Sale instance document No. 2857 B Date of sale 17.11.1981 C Sale value 98000.00 E Area of plot in Sqm 700 Sqyd = 585.29 Sqm F Land rate in Rs. Per Sqm 98000/585.29 = 167.44 3 Property Details Part of D-60, Madhosingh road, Bani park, Jaipur A Sale instance document No. 2858 B Date of sale 17.11.1981 ....
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....sessee.'' The submissions of the authorized representative have been considered. The DVO has provided five sale instances relating to two plots of the relevant period and the same area. If the Authorized Representative's contention that there was no prescribed rates during the period and the same were decided mutually by the seller and purchaser and that due to wide variation in the rates in different registries the same cannot be taken, then how would it be justified to rely on a single instance cited by the Authorized Representative and that too of an area which is not comparable. In view of the discussion as above, and taking the rates of the five instances now sent by the Valuation Officer as well as earlier instances considered by the Assessing Officer, the average rate of property comes to Rs. 113.00 per square yard whereas the Assessing Officer after making allowance for the corner plot has taken the sameat Rs. 154.00 per square yard which is more when compared to the cost if the instances now sent by Valuation Officer are taken into account. The sale instances forwarded now by the District Valuation Officer of the same locality, validate the sale values of the land....
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.... by the DVO itself shows wide variation of approximately three times of the land located at Shiv Marg and Madho Singh Road, both of which are in Bani Park Area. Therefore, these sale instances are not determinative of the FMV as on 01.04.1981 of the property sold by the assessee at F-32, Ghiya Marg, Bani Park, Jaipur. Further, in the year 1981, the DLC rates were not prescribed. The registry was carried out as per the rates mutually decided between the parties. There may be number of reasons for which the parties may agree to transact at rate lower than the market rate. Hence, the instances cited by the DVO for determining the FMV as on 01-04-1981 can't be said to be indicating of the FMV of the land sold by the assessee. 4. So far as the property at Bhawani Singh road is concerned, this property measuring 372.50 sq. meter which was sold on 24-10-1981 (PB 6674) for Rs. 5,50,000/- giving a rate of Rs. 1,476.51/- per sq. meter. In the year 1981, Bani Park was the prime residential colony of the city of the Jaipur and the rates there were more as compare to that at JLN Marg/Bhawani Singh Road. It may also be pointed out that the registered valuer Shri Govind Singh Bafna vide ....
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....o determine FMV as on 01.04.1981 in respect of the land of property sold. Thereafter, Hon'ble ITAT in its order dated 21.01.2014 restored this issue to the file of AO to decide afresh in accordance with law. The relevant portion of ITAT order para 7 is reproduced hereunder". ''7. We have considered the submissions of both the parties and carefully gone through the materials available on the record. In the present case, it appears that the comparable case cited by the assessee was either not brought to the notice of the authorities below or due to oversight it was not considered by the AO /ld. CIT(A). We therefore, deem it appropriate to restore this issue back to the file of the AO to be decided afresh in accordance with law after providing due and reasonable opportunity of being heard. The legal heirs of the deceased-assessee are also free to adduce any evidence in support of their claim.'' The assessee submits a report of registered valuer dated 20.12.2004 wherein the FMV of property as on 01.04.1981 is determined at Rs. 10,40,832/- comprising of the value of construction at Rs. 1,72,580/- and the value of land at Rs. 8,68,252/- which gives the land rate of Rs. 1,540/....