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Income Tax Appellate Tribunal, JAIPUR BENCHES, JAIPUR
Before: SHRI VIJAY PAL RAO, JM & SHRI VIKRAM SINGH YADAV, AM vk;dj vihy la-@ITA No. 692/JP/2016
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.
ITA No. 692/JP/2016 Late Smt. Seema Mukherjee vs. ITO
That Learned C.I.T. (A) has erred in Confirmation the addition of Rs.8,07,829/- of long term capital gain as the facts on record has not been properly considered and simply given cut & paste, the facts of other case, while facts in case are separate. 3 The Learned C.I.T. (A) has erred in confirming the addition of Rs.2,87,252/- on account of long term capital gain (1 /3rd of the property, 5, Hathi Babu Ka Bagh, Station Road, Jaipur) on basis of wrong findings of A.O., which are sub-judice, while assessee has given complete details of land & construction on basis of sale deed for ascertaining the proper valuation, but same has been ignored by Learned C.I.T. (A). Thus addition 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.
That assesse can add, alter or amend grounds of appeal before hearing during hearing.”
The assesse has also filed an additional ground No. 7 however, at
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
ITA No. 692/JP/2016 Late Smt. Seema Mukherjee vs. ITO
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.
The assessee Late Smt. Seema Mukherjee during her life time
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
ITA No. 692/JP/2016 Late Smt. Seema Mukherjee vs. ITO
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.
We have heard the ld. AR as well as the ld. DR and considered
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.
On the other hand, the ld. DR has submitted that the assessee
has failed to produce any evidence in support of the claim that the
ITA No. 692/JP/2016 Late Smt. Seema Mukherjee vs. ITO
property was not capable of fetching the sale consideration as adopted
by the AO. She has relied upon the orders of the authorities below.
We have considered the rival submissions as well as the relevant
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.
ITA No. 692/JP/2016 Late Smt. Seema Mukherjee vs. ITO
As regards the value of the property bearing Plot No. 14, Hathi
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.
The ld. DR has relied upon the orders of the authorities below.
We have heard the rival submissions as well as the relevant
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
ITA No. 692/JP/2016 Late Smt. Seema Mukherjee vs. ITO
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.
As regards the issue raised for validity of reassessment since, the
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.
ITA No. 692/JP/2016 Late Smt. Seema Mukherjee vs. ITO 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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