LATE SMT. SEEMA MUKHERJEE,JAIPUR vs. ITO, JAIPUR

आयकर अपीलीय अधिकरण] जयपुर न्यायपीठ] जयपुर IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES, JAIPUR Jh fot; iky jko] U;kf;d lnL; ,oa Jh foØe flag ;kno] ys[kk lnL; ds le{k BEFORE: SHRI VIJAY PAL RAO, JM & SHRI VIKRAM SINGH YADAV, AM vk;dj vihy la-@ITA No. 692/JP/2016 fu/kZkj.k o"kZ@Assessment Year : 2005-06 cuke Late Smt. Seema Mukherjee The ITO, Vs. L/H Shri Alok Mukherjee & Aroop Ward 3(2), Mukherjee Jaipur. Hathi Babu ka Bagh, Station Road, Jaipur. LFkk;h ys[kk la-@thvkbZvkj la-@PAN/GIR No.: ACTPM 0161 H vihykFkhZ@Appellant izR;FkhZ@Respondent fu/kZkfjrh dh vksj ls@ Assessee by : Shri Pravin Saraswat (C.A.) jktLo dh vksj ls@ Revenue by : Ms Shanmuga Priya (JCIT) lquokbZ dh rkjh[k@ Date of Hearing : 05/06/2018 mn?kks"k.kk dh rkjh[k@Date of Pronouncement: 08/06/2018 vkns'k@ ORDER

PER: VIJAY PAL RAO, J.M. This appeal by the assessee is directed against the order dated 12.04.2013 of ld. CIT (A), Jaipur for A.Y. 2005-06. The assessee has raised the following grounds:-

That Learned CIT(A) has not considered the facts on record that 1. notice issued U/s 148 was not served to all legal heirs of deceased assessee. Hence assessment made is not justified.

4 The Learned C.I.T. (A) & A.O. has wrongly considered 50C value of Plot No. 14, Hathi Babu Ka Bagh, Station Road, Jaipur of Rs.5,68,452/- and applied cost of acquisition as on 1.4.1981 and made addition of long term capital gain of Rs.5,20,577/-, which is not justified.

5 The Learned C.I.T. (A) & A.O. has not considered the fact on record, that property Plot of land No. 14 was on rent to Shri Raghuveer Singh on 01.09.1972, thereafter tenant him-self made construction on it. So after considering land value (44.72 Sq. Mtr. @ 150= 6,708/-) & construction (1096.85 Sq. Ft. @ 130=1,40,000) as on 1.4.1981 of Rs.1,46,708/- after indexation capital gain will be nil, which has not been considered by Learned C.I.T. (A) and not given any finding on assessee's submission.

the time of hearing the ld. AR of the assessee has submitted that the

assessee does not want to press additional ground and the same may be dismissed as withdraw. Since, the additional ground was not even

admitted by the Bench, therefore in view of the statement of the ld. AR

of the assessee, we allow to the assessee to withdraw the additional

ground and consequential the same is dismissed as withdraw.

sold two properties details of which are as under:-

“

Plot No. Buyer Date of Actual value Stamp value Registration

5, Hathi Babu Ka Champa Lal Jain 25/02/2005 250000/- (1/3 317190/- (1/3 Bagh, Jaipur share) share)

14, Hathi Babu Raghuveer 01/03/2005 150000/- 568452/- Ka Bagh, Jaipur Singh

Late Smt. Seema Mukherjee did not file any return of income in the

year under consideration and died intestate on 10.11.2008. The AO

reopened the assessment by issuing notice U/s 148 of the IT Act on

29.03.2012 to Shri Alok Mukherjee and Shri Aroop Mukherjee legal heir

of late Smt. Seema Mukherjee. The assessee raised the objection

against the notice issued U/s 148 of the Act which was disposed off by

the AO vide separate order dated 08.03.2013. Accordingly, the AO has

completed the re-assessment and assessed the long term capital gain in 3 the hands of the assessee through legal heirs on account of sale of the

properties. The dispute is regarding full value consideration as adopted

by the AO as per the provisions of Section 50C of the Act as well as cost

of acquisition being fair market value as on 01.04.1981 in respect of

two properties which first Plot 5, Hathi Babu Ka Bagh, Station Road,

Jaipur 1/3 share and second plot 14, Hathi Babu Ka Bagh, Station Road,

Jaipur.

the relevant materials on record. As regards the valuation of the

properties bearing plot no. 5, Hathi Babu Ka Bagh, Station Road, Jaipur

the AO has adopted the full value consideration U/s 50C of the Act.

However, the assessee has contended that the said property has been

occupied by an old tenancy Shri V.S. Mathur and it was very difficult to

get the property vacated from the tenant. Thus, the assessee

contended that the property along with the occupancy of the tenant

was sold to a third party for a very low consideration which has not

been taken into consideration by the AO while adopting the full value

consideration U/s 50C of the Act.

has failed to produce any evidence in support of the claim that the property was not capable of fetching the sale consideration as adopted

by the AO. She has relied upon the orders of the authorities below.

materials on record. We find that once the assessee has brought these

facts that the property was occupied by the old tenant and was sold

along with tenancy then as per provisions of Section 50C (2) of the Act

the valuation of the property was required to be determined by the DVO

after considering all the relevant facts affecting value of the property in

question. No doubt the property occupied by the old tenant certainly

suffers from deficiency in comparison to a property which is free from any such encumbrances. Accordingly we are of the considered view that

the dispute of adopting the valuation of the property in terms of Section

50C of the Act shall be determined after considering the factors which

adversely affected the fair market value of the property. Hence, we set

aside this issue to the record of the Assessing Officer to get the fair

market value of the assessee through DVO. As regards the cost of

acquisition as on 01.04.1981 both the parties are at liberty to bring the

supporting evidence for the fair market value as on 01.04.1981.

Accordingly, he shall determine the fair market value after considering

the comparable sale instances or DLC rate as on 01.04.1981.

Babu Ka Bagh, Station Road, Jaipur the assessee has submitted that

this property was also occupied by the old tenant and finally the said

property was sold to him at very depressed price therefore, the AO is

not justified in adopting the full value consideration U/s 50C of the Act,

being the valuation adopted by the stamp valuation authority. He has

further contended that the property was constructed by the tenant

himself as it is evident from the sale deeds and therefore, stamp duty

valuation for land and building cannot be adopted when the assessee

sold only plot of land. Hence, the ld. AR has submitted that the

valuation adopted by the stamp valuation authority has to be

segregated for land part of the said property. Since the tenant has

constructed the building on the land therefore, only DLC value of the

land can be taken into consideration subject to the other factors that

the said property was also sold to the tenant himself which was in

occupation.

materials on record. We note from the terms of the sale deed as

manifest that the construction of the building on the said plot of land bearing No. 14, Hathi Babu Ka Bagh, Station Road, Jaipur was

constructed by the tenant. However, it is not clear from the sale deed

as what is portion of the stamp duty valuation assigned to the land and

building respectively. Thus, when the tenant himself as constructed the

building then the subject matter of transfer was only the land

underneath the building and therefore, the full value consideration U/s

50C of the Act has to be taken only for the land and not for land and

building both. Further, since the said transfer was made to the tenant

himself who was occupying the property, therefore, this is relevant

factors for determining the fair market value of the property as per

Section 50C(2) of the Act. Accordingly, we set aside this issue to the

record of the Assessing Officer for determination of the fair market

value of the property through DVO. As far as the cost of acquisition

both the parties have to produce their supporting evidence and the AO

has to determine the fair market value as on 01.04.1981 for the

purpose of computing the capital gain.

issue on merits is set aside to the record of the Assessing Officer,

therefore, we keep this issue upon subject to the outcome of the set

aside proceedings.

In the result, the appeal of the assessee is allowed for statistical purposes. Order pronounced in the open court on 08/06/2018.

Sd/- Sd/- ¼fot; iky jko½ ¼foØe flag ;kno½ (Vikram Singh Yadav) (Vijay Pal Rao) ys[kk lnL;@Accountant Member U;kf;d lnL;@Judicial MemberTk;iqj@Jaipur fnukad@Dated:- 08/06/2018. *Santosh. आदेश की प्रतिलिपि अग्रेf’ात@ब्वचल वf जीम वतकमत वितूंतकमक जवरू 1. vihykFkhZ@The Appellant- Late Smt. Seema Mukherjee, Jaipur. 2. izR;FkhZ@ The Respondent- ITO Ward 3(2), Jaipur. 3. vk;dj vk;qDr@ CIT 4. vk;dj vk;qDr@ CIT(A) 5. विभागीय प्रतिनिधि] आयकर अपीलीय अधिकरण] जयपुर@क्त्ए प्ज्Aज्ए Jंपचनत. 6. xkMZ QkbZy@ Guard File {ITA No. 692/JP/2016} vkns'kkuqlkj@ By order,

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