Loading judgment…
No AI summary yet for this case.
Income Tax Appellate Tribunal, JAIPUR BENCHES “B”, JAIPUR
Before: SHRI RAMESH C SHARMA, AM & SHRI SANDEEP GOSAIN, JM vk;dj vihy la-@ITA No. 89/JP/2020
ORDER PER: R.C. SHARMA, A.M. This is an appeal filed by the assessee against the order of ld. CIT(A)-2, Jaipur dated 15/01/2020 for the A.Y. 2011-12 in the matter of order passed U/s 147 r.w.s. 143(3) of the Income Tax Act, 1961 (in short, the Act). The assessee has raised following grounds of appeal:
1. Ld. CIT(A) grossly erred in issuing the notice U/s 143(2) as per guidelines issued by the CBDT nor it is generated on portal. 2. Ld. CIT(A) grossly erred not considering the situation of land which is situated in ecological zone on which section 50C or DLC rate nor applicable as compared with other land.
2 ITA 89/JP/2020_ Anita Jain Vs ITO 2. The hearing of the appeal was concluded through video conference in view of the prevailing situation of Covid-19 Pandemic.
Rival contentions have been heard and record perused. Facts in brief are that the assessee is an, individual and running printing press in the name of M/s Anita Printers regularly file her income tax return and during the Assessment Year assessee sold an immovable property vide registered sale deed for a total consideration of Rs. 75,00,000.00 which was valued by sub-registrar at Rs. 1,75,94,778.00 and on the objection of assessee, valuation was referred to DVO, who valued the Land Rs. 1,46,179.00 and cost of boundary wall is Rs. 27,86,833.00 and the addition so made by the A.O. was challenged by the assessee before the ld. CIT(A).
Before the ld. CIT(A), the assessee has challenged the framing of assessment without issuance of notice U/s 143(2) of the Act as well as on merit, addition so made was also challenged. By the impugned order, the ld. CIT(A) has rejected the assessee’s ground with regard to issuance of notice U/s 143(2) of the Act and upheld the assessment so framed. The ld. CIT(A) also upheld major portion of addition made. Against which the assessee is in further appeal before the ITAT.
It was argued by the ld AR of the assessee that the assessee was regularly filing Return and filed ITR u/s 148 of IT Act also vide 3 ITA 89/JP/2020_ Anita Jain Vs ITO acknowledgement number 308476130270918 dated 27.09.2018 That it is submitted that the A.O. never issue notice u/s 143(2) of the Act which is mandatory for assuming Jurisdiction for making assessment u/s 143(3) of the Act. In support of the above contention, the assessee placed on record the following evidences:
(i) There is no mention in the proceeding sheet that notice u/s 143(2) has been issued. (PB Page No. 1 to 7)
(ii) All the notices including notice u/s 148, 142(1) and 147 of IT Act were issued from Income Tax portal but no notice u/s 143(2) of IT Act has been generated on portal. Copy of Notices issued on portal enclosed (PB Page No. 8 to 19).
All the notices which was issued from portal mentioned in assessment proceeding sheet except notice of 143(2) of IT Act. Chart detail are as per (PB Page No. 20).
(iii) That there is also not mentioned in the assessment order that notice u/s 143(2) of IT Act has been issued.
We submit there is no evidence that notice u/s 143(2) of IT Act has been originated.
(iv) As per CBDT Circular No. F.No. 225/157/2017/ITA.11 dt 23.06.2017 notice u/s 143(2) of IT Act can be issued in the revised format generated through ITBA portal. (PB Page No. 21 to 25).
(v) When we took the grounds of appeal before the Ld. CIT (A) about the not issuing of Notice u/s 143(2) of IT Act than Ld A.O. submitted a manual notice receipt by son of assessee, although we
4. ITA 89/JP/2020_ Anita Jain Vs ITO have submitted an affidavit (PB Page No. 26) before the CIT (Appeal) that assessee did not received notice u/s 143(2) of IT Act. We got certified copy from the Ld. A.O. of the notice u/s 143(2) of Income Tax Act. Copy of Notice enclosed (PB Page No. 27) But surprisingly there is no dispatch no. on the notice, it is type written prepared manually and signature is also made of son of assessee, which we denied that the signature of son of assessee Sh. Rishab Jain.
(vi) That a show cause notice has been issued by Ld A.O. on 24.12.2018 from ITBA portal then why notice u/s 143(2) dt 24.12.2018 has not been generate from the portal.
So it is very much clear that notice u/s 143(2) has not been generated validly.
(vii) That the date of receipt of notice is also not mentioned on so called notice u/s 143(2) of IT Act.
So we submit that no notice u/s 143(2) of IT Act has been originated, issued only a manual notice which has been prepared without dispatch no., without date of receipt, does not hold good and valid in the eyes of Law. It is clearly shows that preparation of notice u/s 143(2) of Income Tax Act is after thought of Ld A.O. So whole proceeding without issuing notice u/s 143(2) of Income Tax Act is vitiated and required to be quashed.
With regard to merit of addition, the ld AR has contended that the ld CIT (A) has grossly erred in not considering the situation of land which is situated in ecological zone on which Sec. 50C of the Act or DLC rate not applicable as compared with other land 5 ITA 89/JP/2020_ Anita Jain Vs ITO 7. On the other hand, the ld DR has contended that the A.O. has issued notice U/s 143(2) of the Act and in the remand proceedings, copy was sent to the ld. CIT(A). With regard to merit, she has contended that the A.O. has correctly valued the land as per the rate adopted by the Sub- Registrar.
We have considered the rival contentions and carefully gone through the orders of the authorities below and found from the record that 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. However, the 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.
We also observe that the DVO has not considered the fact of the case during valuation of land which are under:-
(i) Assessee’s Land was situated in ecological Zone and according to JDA site plan and notification of JDA for use of ecological zone it is clearly stated that assessee cannot make construction on the land more than 10% of total Area. The above fact was discovered after the purchase of land so normal rate of Sub Registrar decided for all 6 ITA 89/JP/2020_ Anita Jain Vs ITO Amer (Jaipur) Area cannot be applied. Copy of JDA letter for ecological zone and use of ecological Land define by JDA are placed at PB Page No. 31 to 32.
(ii) According to JDA the assessee can use the above land only for agriculture purpose but according to Central Ground water Authority the above area is notified as Dark Zone and nobody can extraction water trough boring on the above land according to notification 19th August 2011 placed at PB Page No. 33 to 34 which reads as under:
“Notified Area” vide publication No. 2/2011 dated 13th august 2011 and issued dictions in exercise of powers under clause (v) of sub section 2 of section 3 of the aforesaid act, to impose prohibition and restriction on the construction, installation of any structure for extraction of ground water resources etc. to avoid its further depletion and deterioration in the area.”
So above land is not useable for residential purpose and commercial purpose. (Copy of order of Ground water authority are placed at PB Page No. 35 to 37.
(iii) Plotting and Housing activities completely restricted by JDA in ecological zone.
(iv) Assessee can use the land for some specified purposes notified by local authority, but minimum 12-meter road is necessary. In assessee’s land only 3-4-meter road available which is also not official road.
(v) In the above Ecological Zone water bodies, Regional Park, Botanical Garden, Orchard & Nursery, Zoological Garden, Swimming Pool, Play Ground, Farm House, Outdoor Stadium, Gas Godown and some other activities allowed but for all the above activities minimum 12 meter road is necessary. However, in assessee’s land only 3-4 meter unofficial road is available.
7 ITA 89/JP/2020_ Anita Jain Vs ITO (vi) Comparison chart of adjacent land registered in same period which is also produced before DVO but DVO not considered the same. Comparison Chart of Sale of Nearby Land S.No. Date of Name of Party Area in Sale PB Page Sale Bigha Consideration No. 1 20.04.2010 Jamil 2.01 15,00,000 50 to 56 Mohammed 2 04.08.2010 Nitesh 0.42 8,00,000 57 to 62 Agrawal 3 24.08.2008 Ramkaran 0.54 9,50,000 63 to 67 Meena 4 03.02.2009 Nanda S/o 4.84 40,00,000 68 to 73 Jeeta & Others Total 7.81 72,50000.00 So as per the above sale, average sale of land per bigha is Rs. 9,28,300.00 but in DVO report above facts were not considered. Following are the judicial pronouncement shows that comparable cases are need to be considered by the DVO. In the case of Laxmi Narain Saiwal V/S ITO ward 5(4) Jaipur it is decision 26.12.2017 by Hon’ble ITAT Jaipur it was held that comparable case need to be considered when sale instances are available. In our case sale instances are available but DVO has not considered the comparable case of adjacent rate of land in our case ITAT view that” 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/- per sq. yd. (8,68,252 divided by 563.80), being a corner plot. The ld. CIT(A) has sought the opinion of DVO who had provided the land rate of Shiv Marg, Bani Park and Madhao Singh Road, Bani Park as on 01.04.1981 at 8 ITA 89/JP/2020_ Anita Jain Vs ITO Rs.60/- sq. mtr. and Rs.167/- sq. mtr. Respectively. Thus there is a wide gap in land rate as given by Registered Valuer and actual sale instances cited by the DVO. The Registered Valuer had simply stated in the Valuation Report that the rate of land as on 01-04- 1981 is Rs. 1400/- per sq. yard based on local survey. No sale instance is quoted to arrive at such rate by Registered Valuer. Thus Registered Valuer’s valuation of land @ Rs. 1400/- per square yard is not based on any independent supporting document. It is simply mentioned in the valuation report that rate is based on local survey. However, what evidences were gathered in the survey to arrive at such rate is not provided. Therefore, in my considered view the value adopted by the Registered Valuer at Rs.1400/- per sq. yard is very high and unreasonable. The DVO had given sale instances of the same locality. The assessee relied on sale instances which are from far away areas from the location of concerned property. Keeping all these relevant facts in view, the rate adopted by ITAT, Jaipur bench in first round at Rs. 300/- per sq. yard is quite fair and reasonable. Hence, the Bench directs to adopt the fair market value @ Rs. 300/- per sq. yard as on 01-04-1981. In the result, the appeal of the assessee is allowed on above terms.” The ITAT Jaipur in the case of Shri Khurshid Ahmad V/S Income Tax Officer ward 3(1) Jaipur decided on 24.07.2018 that “I hold that the fair market value Shri Khurshid Ahmed, Jaipur. determined by the DVO and considered by the AO is not sustainable in law as an arbitrary exercise without considering the relevant factors. The assessee has already brought on record the comparable sale instances and, therefore, instead of going by the DLC rates of the area and that too for commercial property, the fair market value has to be determined based on the actual character of the property and the sale instances of the 9 ITA 89/JP/2020_ Anita Jain Vs ITO similarly situated property. In the case in hand, when the sale instances are available and which support the case of the assessee that the fair market value of the property cannot be more than the purchase consideration, then no addition is called for under section 56(2)(viii) of the Act. The addition by the AO and sustained by the ld. CIT (A) is deleted. In the result, the appeal of the assessee is allowed.
In view of the above discussion, it is very much clear that the DVO has taken excessive rate without considering the average rate i.e. Rs. 9,28,300.00 and taken Rs.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 Rs. 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. The A.O. is directed to calculate capital gain accordingly: S. No. Particulars Amount (in Rs.) 1. Cost of land as per assessment order 31,81,247.00 2. Cost of boundary wall as per DVO 27,86,833.00 report Total cost of acquisition 59,58,080.00 Less:- Sale price of Rs. 9,28,300 x 61,10,813.00 6.48 bigha Net Capital gain 1,42,733.00 Thus, the assessee is liable to pay tax on capital gains of Rs. 1,42,733/-, We direct accordingly.
10 ITA 89/JP/2020_ Anita Jain Vs ITO 11. In the result, appeal of the assessee is allowed in part. Order pronounced in the open court on 03rd September, 2020.
Sd/- Sd/- ¼lanhi x®lkÃa½ ¼jes'k lh 'kekZ½ (SANDEEP GOSAIN) (RAMESH C SHARMA) U;kf;d lnL;@Judicial Member ys[kk lnL;@Accountant Member Tk;iqj@Jaipur fnukad@Dated:- 03/09/2020 *Ranjan आदेश की प्रतिलिपि अग्रेf’ात@ब्वचल वf जीम वतकमत वितूंतकमक जवरू vihykFkhZ@The Appellant- Smt. Anita Jain, Jaipur. 1. izR;FkhZ@ The Respondent- The I.T.O., Ward 5(5), Jaipur. 2. vk;dj vk;qDr@ CIT 3. vk;dj vk;qDr¼vihy½@The CIT(A) 4. विभागीय प्रतिनिधि] आयकर अपीलीय अधिकरण] जयपुर@क्त्ए प्ज्Aज्ए Jंपचनत 5. xkMZ QkbZy@ Guard File (ITA No. 89/JP/2020) 6. vkns'kkuqlkj@ By order,
सहायक पंजीकार@Aेेज. त्महपेजतंत