TaxTMI 
TaxTMI 
2023 (8) TMI 816
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....stances of the case the Id. CIT(A) grossly erred in not providing the opportunity of hearing and to submit objection on the valuation report dated 04.05.2018 issued by Divisional Valuation Officer. 1.3. That on the law and in the facts and in the circumstances of the case the ld. CIT(A) grossly erred in relying upon the valuation report 04.05.2018 issued by the Id. Divisional Valuation Officer without considering the drawback factor i.e IOCL Gas Line passing through middle of the Land. 1.4. That on the law and in the facts and in the circumstances of the case the ld. DVO grossly erred in taking the Value of agriculture land at Rs 1,69,13,700/- against Rs 1,25,00,000/- by holding that P & MP Act do not put any restriction on use of land whereas proviso of sub clause 1 of section 9 of P & MP Act 1962 imposed restriction, i.e., any construction over land, any construction or excavate of well, reservoir or dam or plant any tree. 2. The appellant craves leave to add, alter, modify or amend any ground on or before the date of hearing." 3. The fact as culled out from the records is that the assessee has filed return of income on 27.09.2013 at Rs. 4,19,770/-. ....
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.... matter of cost of property to the DVO for correct valuation of the property. Accordingly, the AO vide his letter No.ITO/W-5(2)/JPR/2017-18/2157 dated 22.02.2018 made a reference to the DVO to make valuation of the property as on the date of transfer i.e. 20.02.2018. In view of the above reference, the Valuation Officer, Income Tax Department, Jaipur vide his letter dated 03.05.2018 forwarded the report wherein the said property was estimated by Valuation Cell at Rs.1,69,13,700/- as against declared by the appellant at Rs.1,25,00,000/-. The said valuation was made by the team of Valuation Office, Jaipur on 18.04.2018 in the presence of the appellant and the AO forwarded the Valuation Report vide his letter dated 04.05.2018 to the CIT(Appeals)-2, Jaipur. 5.3 In view of the above, the report of the Valuation Cell was forwarded to the appellant for his comments/objections. However, there was no compliance from the appellant on the Valuation Report. Thus, it is clear that the property under consideration is valued at Rs.1,69,13,700/- which is the same as per the Sub- Registrar, Amer, Jaipur. Therefore, the action of the Assessing Officer is upheld and Ground No. 1 is dismissed....
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....ich was received prior to the sale of land was also submitted before the ld. Assessing Officer & also to the ld. DVO. However, they refused to consider the same. 9. That I am law abiding citizen of the country and never intended to evade tax so help me God." 7. The ld. AR of the assessee also filed a copy of section 9 of Petroleum and Mineral Pipeline Act, 1962 and the relevant section under which the assessee is supposed to follow the law is reproduced here in below:- "9. RESTRICTIONS REGARDING THE USE OF LAND (1) The owner or occupier of the land with respect to which a declaration has been made under sub-section (1) of section. 6 shall be entitled to use the land for the purpose for which such land was put to use immediately before the date of the notification under sub-section (1) of section 3. Provided that, such owner or occupier shall not after the declaration under sub-section (1) of section 6- (i) construct any building or any other structure; (ii) construct or excavate any tank, well, reservoir or dam: or (iii) plant any tree, On that land, (2) The owner or occupier of the land under which....
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....t P & MP Act do not put restrictions regarding use of land is contrary to the fact on record of the State Government produced by the assessee. Based on these set of facts, the ld. AR of the assessee that the DLC rate applied by both the valuation is correct, the DVO has not considered the reduction in rate at 25% on wrong assumption on fact. No such restrictions are put is against the set of facts and therefore, the assessee prayed that relief of 25% granted by the registered valuer be given to the assessee. The ld. AR of the assessee further submitted that valuation report obtained by him or dated 01.12.2012 whereas the sale agreement is subsequent to the valuation report dated 20.12.2012. This shows the conduct of the assessee, not to defeat the provisions of section 50C of the Act. 10. As the assessee has not found any favour from the appeal so filed before the ld. CIT(A), the assessee filed an appeal before this tribunal on the various grounds as reproduced here in above. To support grounds so raised by the assessee the ld. AR of the assessee relied upon the following written submissions. "During the year under consideration the assessee appellant had sold an agricultural....
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....nd for future, because due to norm of the IOC maximum land should always keep vacate for safety purposes. Now when one buyer ready to purchase the property he immediately agree to sold the property. Assessee also taken valuation report from a registered valuer and approached to SUB Registerar to reduce DLC due to particular reason. But this work was time consuming and buyer was not allowing more time so assessee registered his property below DLC. We are enclosing both papers for your ready reference. Due to above reason and fact DLC should not be applied in our case. 3.1. That your honour shall notice that the ld. Assessing Officer has blindly applied the rates adopted by the Sub-Registrar without any comments on the Registered Valuer's Report and the submissions of the assessee appellant that due to adverse factors associated with the impugned agricultural land sold by the assessee appellant. 4. We also wish to refer to the following authorities in this regards: a. Hon'ble Jurisdictional Rajasthan High Court in CIT v. Rameshwar Prasad Kacholia (DBITA 51/2014 dated 15.10.2015) PB 27-33 wherein the property was sold for Rs. 70.00 lacs and the property w....
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....ation report, however, we find that even the valuation by the DVO has placed too much of emphasis on the assessment or valuation by the stamp valuation authority. This is neither desirable nor permissible. The reason is this. The valuation by the stamp valuation authority is based on the circle rates. These circle rates adopt uniform rate of land for an entire locality, which inherently disregards peculiar features of a particular property. Even in a particular area, on account of location factors and possibilities of commercial use, there can be wide variations in the prices of land. However, circle rates disregard all these factors and adopt a uniform rate for all properties in that particular area. If the circle rate fixed by the stamp valuation authorities was to be adopted in all situations, there was no need of reference to the DVO under Section 50C(2). The sweeping generalizations inherent in the circle rates cannot hold good in all situations. It is, therefore, not uncommon that while fixing the circle rates, authorities do err on the side of excessive caution by adopting higher rates of the land in a particular area as the circle rate. In such circumstances, the DVO's ....
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....) 57 taxmann.com 414 (Mumbai ITAT) PB 65-67 it was held: Where AO had not examined whether assessee could have sold her plot at a price which was stipulated by stamp duty authorities and assessee had given a detailed clarification about low price, addition made on basis of stamp duty valuation was to be deleted. GROUND NO. 2 Not pressed. Kindly consider, grant relief and oblige." 11. On the other hand, the ld. DR representing, the revenue has relied upon the finding of the lower authority and submitted that the assessee has not given the correct fact before the DVO and ld. CIT(A) and therefore, the ld. AR of the assessee cannot take. Further, benefit even the assessee has not objected to the DLC rate and has accepted rate of DLC rate and therefore, the contention of the assessee cannot be accepted at this stage. The ld. CIT(A) has accepted the request of the assessee and has preferred the matter to DVO and DVO has also confirmed the DLC rate valuation. Based on these observations, heavily relied upon the finding of ld. CIT(A) in the rejoinder of the ld. AR of the assessee submitted that the purpose of referring or taking ground before ld. CIT(A) is to challenge....
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....o it by the competent authority and after holding such inquiry as it may deem-fit, cause the building, structure, reservoir, dam or tree to be removed or the well or tank to be filled up, and the costs of such removal or filling up shall be recoverable from such owner or occupier in the same manner as if the order for the recovery of such costs were a decree made by that Court." 13. In addition to the above, even the State Government also placed restrictions on the assessee on the impugned land of the assessee and assessee was directed spare the 5 sq.ft. on both the side of pipe line and assessee directed to maintain that nothing long is growing on that part of the land. Thus, this restrictions are in addition to the provision of P & MP Act. We note that the finding of DVO that IOCL pipeline passing through the assessee's land does not put any restrictions is against the fact and we also persuade that the DVO rate adopted by both the valuer price not under dispute. The dispute before us as challenged is that whether considering the restrictions put u/s 9 of P&MP Act on account of passing through IOCL pipeline in the middle part of land .The DLC rate can be subjected to deduction....
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.... but DVO and ld. CIT(A) failed to consider the specific disadvantage and thereby the claim of 25% relief in that DLC rate considering overall fact placed before us stands justified. We also take support of the decision of the jurisdictional high court in the case of Rameshwar Prasad Kacholia DBITA 51/2014 wherein the court has held as under:- "3. The matter was carried in appeal before the Commissioner of Income Tax (Appeals) (for short, CIT(A)), who after taking into consideration the various factors and the contention of the assessee, while adopted the value @ Rs. 2905/- per sq. ft as per the DLC rate, however, added 5% on account of the two side open plot but reduced the value by giving a relief of 25% for bigger size plot and he accordingly determined the value Rs. 1,09,92,000/- as against Rs. 1.39 crores. 4. Both, the AO as well as the assessee carried the matter in appeal before the Tribunal. The Tribunal, taking into consideration various factors, not only upheld the order of the CIT(A) but also took into consideration the report of the two approved valuers being technical persons and allowed further deduction of 20% on the value of Rs. 2905/- per sq. ft wh....