O/TAXAP/223/2017 ORDER IN HIGH COURT OF GUJARAT AT AHMEDABAD TAX APPEAL NO. 223 of 2017 PR. COMMISSIONER OF INCOME TAX Appellant(s) Versus BHASKAR KRISHNAJI BARVE (HUF)....Opponent(s) Appearance: MR SUDHIR M MEHTA, ADVOCATE for Appellant(s) No. 1 CORAM: HONOURABLE MR.JUSTICE M.R. SHAH and HONOURABLE MR.JUSTICE B.N. KARIA Date : 10/04/2017 ORAL ORDER (PER : HONOURABLE MR.JUSTICE M.R. SHAH) 1.00. Feeling aggrieved and dissatisfied with impugned judgement and order passed by learned Income Tax Appellate Tribunal, Ahmedabad dated 31/5/2016 passed in ITA No.821/AHD/2011 for A.Y. 2007-08, by which learned tribunal has rejected appeal preferred by revenue in determining fair market value as on 1/4/1981 at Rs.25/- per sq.mtr., revenue has preferred present appeal with following proposed questions of law :- (A). Whether on facts and circumstances of case and in law, ITAT is justified in upholding order of CIT(A) without appreciating fact that CIT(A) had not relied on any evidence etc. Page 1 of 5 HC-NIC Page 1 of 5 Created On Thu Apr 20 09:46:40 IST 2017 O/TAXAP/223/2017 ORDER support his finding and had given his findings based on situation of surroundings / locational advantage etc., which was not existing in year 1981 as process of industrialization / urbanization in Silvassa area started in late nineties ? (B). Whether on facts and circumstances of case and in law, ITAT is justified in upholding order of CIT(A) without appreciating fact that order of CIT(A) was based on assumption & surmises and his finding that Department accepted rate of land @ 18 per sq.mtr. in case of assessee s brother was factually incorrect as re-assessment proceeding in case of Shri Shreekant K. Barve were in process during pendency of appeal before ld. CIT(A) in case of assessee ? 2.00. We have heard Mr.Mehta, learned counsel appearing on behalf of revenue. 3.00. It is not in dispute that while considering long term capital gain in case of assessee for A.Y. 2007-08 A.O. has adopted market value as on 1/4/1981 at Rs.2.23 per sq.mtr. relying upon report of Sub-Registrar. However, it was case on behalf of assessee that valuation as on 1/4/1981 for purpose of calculation of long term capital gain would be Rs.40/- per sq.mtr., however, same was not accepted by A.O. and A.O. considered and/or Page 2 of 5 HC-NIC Page 2 of 5 Created On Thu Apr 20 09:46:40 IST 2017 O/TAXAP/223/2017 ORDER adopted market price as on 1/4/1981 at Rs.2.23 per sq.mtr. On appeal preferred by assessee and considering fact that in case of one another assessee i.e. Shri Shreekant K. Barve, HUF (brother of assessee) revenue accepted valuation as on 1/4/1981 at Rs.18/- per sq.mtr. with respect to very village. However, considering location and vicinity in which land in question was situated and other aspects, learned CITA determined market value as on 1/4/1981 at Rs.25/- per sq.mtr. 3.01. Feeling aggrieved and dissatisfied with order passed by learned CIT(A) determining / adopting market value of land as on 1/4/1981 at Rs.25/- per sq.mtr., revenue has preferred appeal before learned tribunal. assessee also filed objections. 3.02. By impugned order learned tribunal has dismissed appeal preferred by revenue as well as objections filed by assessee. 4.00. Having heard Mr.Mehta, learned counsel appearing on behalf of revenue and considering reasoning given by learned CIT(A) while adopting / determining market value as on 1/4/1981 at Rs.25/- per sq.mtr., more particularly observations made in para 13.2, it cannot be said that learned CIT(A) has committed any error in estimating value of land as on 1/4/1981 at Rs.25/- per sq.mtr. In para 13.2 learned CIT(A) has observed as under :- 13.2. I have carefully considered finding of AO and submissions made by ld. Counsel. Page 3 of 5 HC-NIC Page 3 of 5 Created On Thu Apr 20 09:46:40 IST 2017 O/TAXAP/223/2017 ORDER bone of contention in this ground of appeal was rate of land adopted by AO for period prior to 1981 for computation of LTCG. AO relied on letter from Revenue Deptt., D&NH for arriving at rate. Appellant has also relied on letters from same Revenue Deptt., D&NH and valuation report by Registered Valuer. Further, ld. Counsel has also contended that in case of Shrikant K. Barve, HUF, IT Department has accepted rate of land situated in same vicinity at Rs.18/- per sq.mtr. But in appellant s case value of land adopted @2.23 per sq.mtr. is not justified. I have perused copy of survey map submitted before Mutation Entry No. Prima facie appellant s land has locational advantage with regard to roads, civic amenities like schools,hospitals, offices, markets, etc. Transportation in form of auto-rickshaw and buses is available. Further, land is on main road and has its own potential. land is in vicinity of developed industrial area and since it is situated on main road, it would always fetch higher valuation. In circumstances, determining land value at Rs.2.23/- per sq.mtr. appears to be much less. advantages stated above enjoyed by land has remunerative and fetches better value for land. Therefore, taking into consideration that deptt. had already accepted value of land of letter advantage at Rs.18/- per sq.mtr. and also considering facts and circumstances, I estimate value of land at Rs.25/- per sq.mtr. as against value adopted by AO AT 2.23 per sq.mtr. in interest of Page 4 of 5 HC-NIC Page 4 of 5 Created On Thu Apr 20 09:46:40 IST 2017 O/TAXAP/223/2017 ORDER fairness and justice. Accordingly, AO is directed to adopt value of land at Rs.25/- per sq.mtr. and compute LTCG. Thus, appellant gets part relief in this ground of appeal. 4.01. aforesaid finding has been confirmed by learned tribunal. 4.02. We are in complete agreement with view taken by learned CIT(A) as well as learned tribunal while adopting / estimating value of land as on 1/4/1981 at Rs.25/- per sq.mtr. As observed hereinabove, as such, revenue has accepted valuation of land of same village at Rs.18/- per sq.mtr. That thereafter, considering location advantage etc. and by giving cogent reasons when learned CIT(A) estimated value of land as on 1/4/1981 at Rs.25/- per sq.mtr. it cannot be said that same is erroneous. findings recorded by learned CIT(A) confirmed by learned tribunal are on appreciation of evidence. No substantial question of law arises. 5.00. In view of above and for reasons stated above, present appeal fails and same deserves to be dismissed and is accordingly dismissed. Sd/- (M.R. SHAH, J.) Sd/- (B.N. KARIA, J.) Rafik. Page 5 of 5 HC-NIC Page 5 of 5 Created On Thu Apr 20 09:46:40 IST 2017 Pr. Commissioner of Income-tax v. Bhaskar Krishnaji Barve (HUF)