Asha Dalmia, vs Department Of Income Tax

ITO, Late Shri Asha Dalmia, Ward- 24 (1), P-8A, New Delhi Vs. Hauz Khas Enclave, New Delhi

(Appellant) (Respondent)

Appellant by : Sh. B R R Kumar Sr. DR Respondent by : Sh. K Sampath Adv, Sh. Raja Kumar, Adv

Date of Hearing 21.04.2015 Date of pronouncement 24.06.2015

ORDER

PER A. T. VARKEY, JUDICIAL MEMBER

This appeal filed by the Revenue is directed against the order dated 28.2.2007 passed by the Ld. CIT(A)-XXIII, New Delhi pertaining to assessment year 1993-94.

2. The Revenue has raised the following grounds in its Appeal:-

"(i) On the facts and circumstances of the case the Ld. CIT(A) has erred in law and on facts in deleting the addition of Rs. 39,68,751/- made on account of long term capital gain, determined on the basis of DVO's report by the AO which was in keeping with the direction of the ITAT while setting aside the case for re-examination.

(ii) On the facts and circumstances of the case, the Ld. CIT(A) has erroneously rejected the DVO's report in favor of the report of Approved Valuer of the assessee despite the fact that the latter had no basis in reaching the valuation of the land as on 1.4.1981 and valued the building on rental basis.

ITA NO.3117/Del/2007

(iii) On the facts and circumstances of the case, the Ld. CIT(A) has erred in law and on facts in holding that the assessment order of the AO was not correct and in accordance with the law."

3. The Ground no. 4 is general in nature and needs no adjudication.

4. The Ground No. 1, 2 & 3 is regarding Valuation of the property in question, wherein the Ld. CIT(A) has upheld the valuation made by Registered Valuer and discarded the DVO Report relied by the AO thus paving way for relief prayed by the assessee. Against the same, Revenue is assailing this by these grounds.

5. The brief facts of the case are that the return of income, declaring an income of Rs. 2,80,384/- was filed by the assessee on 6.5.1994. However, the AO assessed the assessee on an income of Rs. 1,54,33,250/- vide orders dated 25.3.1996 made in terms of section 143(3) read with section 144A of the Income Tax Act, 1961 (hereinafter "the Act''). The return of income as originally submitted by the assessee declared the capital gains on the sale of 1/3rd share in property no. 8/6, Alipore Park Road, Calcutta. But the AO had adopted the long term capital gains at Rs. 51,52,969/- as 1/3rd share of capital gains on the said sale of property. This order of AO, was challenged by the assessee and in the first round of litigation, since the valuation done on the property as on 1.4.1981 was remanded back by the ITAT, New Delhi, the AO, issued statutory notice and the valuation of the property was also referred to the Valuation Officer of the Department at Calcutta. Thereafter, in response thereto notice u/s. 143(2), assessee's counsel attended the hearing before the AO, who was served with the copy of the DVO's Report on assessee's 1/3rd share of the property as determined by the DVO and thereafter, the AO was pleased to uphold the valuation report prepared in the second round by the DVO as correct and adopted it for the purposes of computation of capital gains on the sale of such property and in the process debunked the Registered Valuer report harped upon by the assessee. The AO completed the assessment u/s. 143(3)/254 on 30.3.2005 and made the addition.

6. Against the aforesaid order of the Assessing Officer, the assessee appealed before the Ld. CIT(A), who vide his order dated 28.2.2007 has partly allowed the appeal of the assessee by upholding her (assessee) Valuation of

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Fair Market Value (FMV) for the property on the basis of Valuation made by Registered Valuer and did not accept the valuation of DVO relied by the AO in computing the FMV of the property. Since the Legal expenses claimed by the assessee, was not pressed before the Ld. CIT(A) that ground regarding it was dismissed. Thus the appeal of the assessee was partly allowed.

7. Aggrieved by the order of the Ld. CIT(A), now the Revenue is in appeal before the Tribunal.

8. Ld. DR relied upon the order of the AO and reiterated the contention raised in the grounds of appeal raised by the Revenue and want us to reverse the order of ld CIT(A) and uphold the order of AO .

9. On the contrary, Ld. Counsel of the assessee has relied upon the order of the Ld. CIT(A) and defended the same and does not want us to interfere in the same.

10. We have heard both the parties and perused the records. We find that the AO in his order has observed that the return of income declaring income of Rs. 2,80,284/- was filed on 6.5.94 and the assessment was completed under section 143(3)/144A of the Act on the total income of Rs. 1,54,33,250/- on 25.3.96. This order was subject matter of appeal and the Co-ordinate Bench of this Tribunal vide order dated 4.7.2003 restored the issue of determination of capital gains to the file of the Assessing Officer. Thereafter the valuation of the property was referred to the DVO at Calcutta by the AO and his report was provided to the assessee. It was further observed by the Assessing Officer that the Valuation thus determined by the DVO of assessee's 1/3rd share of the property was accepted by the AO as correct and the said value of property had been adopted for the purpose of computation of capital gains. The assessee also claimed legal expenses of Rs. 1,76,026/- which were on account of lawyer's fee and stamp duty etc. According to AO, in terms of section 48(1) the legal expenses were not allowable and therefore would not fall within the permissible deduction under section 48 of the Act. He accordingly denied the assessee's claim and based on 1/3rd share of sale price of the property at Rs.

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53,33,333/- as determined by the DVO, the long term capital gain was worked at Rs. 39,68,751/- and finally the total income was determined at Rs. 42,49,040/-.

11. It was contended by the assessee before the Ld. CIT(A) that after the ITAT remanded the matter to the AO for determination of capital gains, the AO referred for the Departmental Valuation Officer's report and the assessee received on 11.01.05 a notice dated 4.1.05 under section 55A of the Act, read with section 16(A)(2) of the Wealth Tax Act, 1957 from Distt. Valuation Officer (DVO), Valuation Cell, I. T. Department, 54 RAK Road, Kolkatta, asking for certain information and documents to be submitted on 18.1.05 for valuation of the property and reference as on 1.4.81. According to the Ld. Counsel for the assessee, the desired information accompanied with supporting documents was submitted to the DVO through registered post/speed post vide letter dated 17.1.05 and the DVO has admitted in his report that the assessee had submitted all the required information and documents. It was submitted by the assessee that vide letter dated 19.3.05 she requested for a copy of the draft of the valuation report, but could not get it. As per the assessee, she received it only on 24.3.05 (a photo copy of valuation report dated 18.3.05 from DVO, Kolkata) estimating the market value of the property at Rs. 16,93,700/- and so the 1/3rd share of the assessee worked out to be at Rs. 5,64,566/- as against the value declared by the assessee at Rs. 77,23,000/- and her 1/3rd share at Rs. 25,74,333/- as on 1.4.81. According to the assessee, her FMV of the property was duly supported with the valuation report from the government approved valuer and brought to our notice that it was changed three times by the assessing and appellate authorities of the Department as under:

1st valuation by the Assessing Officer 1,00,042

Assessee's 1/3rd share 33,347

Revised valuation by the CITCA) vide

Order dated 1.9.96 3,62,250

1/3rd share of the assessee 1,20,750

Valuation by the DVO vide report

Dated 18.3.05 16,93,700

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(l/3rd share of the assessee) 5,64,566

12. It was further contended by the assesse's counsel that the valuation report of the DVO dated 18.3.05 suffered from manifold defects and was not acceptable under the law. Before arriving at the figure of Rs. 16,93,700/. the DVO did not neither provide a single opportunity to the assessee nor was she confronted with the evidence collected by the DVO, before arriving at the valuation which according to Ld. Counsel for assessee, is in violation of the natural justice. It was pointed out by the Ld. Counsel that Assessing Officer after receiving valuation report dated 18.3.2005, which the assessee received on 24.3.2005, fixed up the hearing on 28.3.05 and everything was done in a hurry, since the assessment was becoming barred because of limitation. According to the Ld. Counsel, the Assessing Officer did not apply his mind and also failed to take into consideration objections of the assessee filed vide letter dated 28.3.2005 and also failed to consider the valuation report of the government approved valuer submitted by the assessee before passing the assessment order on 30.3.2005. The Ld. Counsel pointed out that the DVO on page 1 and on page 4 of his report stated" Having considered the statement of objections made by the assessee in writing and in person and having considered the evidence produced by the assessee and having taken into account all the relevant material gathered by the ld. CIT(A), he estimated the fair market value of the said property as under and as detailed in annexures". However, it was contended by the Ld. Counsel of the assessee that the DVO's observations on both the occasions were factually wrong and misleading. According to him, neither the assessee was called upon by the DVO to make her submissions nor given an opportunity to raise any objections against the valuation proposed by the DVO. Therefore, it was contended by the Ld. Counsel that on this ground only the valuation report of the DVO was vitiated and thus bad in law and so was null and void and hence it could not be relied upon. It was further contended that the DVO while giving his valuation report did not take into consideration the facts and figures given by the government approved valuer in his report. The Ld. Counsel assailed the value of the structure estimated by the

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DVO at Rs. 93,700/- as wrong and without any basis. And according to him, records will bear out that structure under reference was constructed somewhere in the year 1937-38, therefore, it was wrong to assume that the structure which was 40 years old, outlived its life. It was pointed out by the Ld. Counsel that the buyers after purchasing the said property in the year 1989 had demolished the old structure and had constructed a multi storied building in place thereof, so according to Ld. Counsel, the subsequent demolition does not mean that the old structure which was there in the property in 1981 had outlived its life. Ld. Counsel of the assessee has stated that the government approved valuer had estimated the cost of structure including boundary wall at Rs. 19,30,303/-. According to him, the structure under reference was double storied house and even the value of wood, used - sanitary fittings and electric fitting etc. itself was more than Rs. 8 to 10 lacs. It was further contended that the DVO had estimated the value of the land measuring 32 kattas at Rs. 16 lakhs i.e. @ Rs. 50,000/- per katta which was without any basis.

According to him, the DVO himself had admitted that the property in question is in a posh residential locality i.e. Alipore Park Road, Kolkatta having all advantages such as shape , frontage, location, transport facility and other amenities and potential to be used either for commercial or residential purpose or for both. And the plot is a corner plot having two frontages of vehicular width. The DVO gave certain sale instances for the years 1978-79 of plots at Alipore Park Road, Kolkatta which could not be taken as basis because those were located inside the lane and did not enjoy any benefit as described above except for the fact that they were located nearby and/or at Alipore Park Road, Kolkatta. Moreover, according to Ld. Counsel, prices of 1978-79 could not hold good to be the basis of valuation in 1981 in any manner. It was contended that the Government Approved Valuer (GAV) had estimated the value of land measuring 32 kattas at Rs. 64,00,000/- for the reason that the land of Alipor park road has two frontages one being the east and the other on south. The Ld. Counsel explained that the style of use of the property as they stand on either side of the said road are mainly for sophisticated offices, guest houses and for other like purposes and these

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aspects have not been rightly appreciated by the DVO or the AO because Assessing Officer gave no proper opportunity to the assessee to give her comments and objections to the proposed valuation by the DVO and so the valuation of the DVO was hit for violation of natural justice.

13. We find that this is the second round of litigation before us. During the first round, the Coordinate Bench of this Tribunal set aside the matter back to the file of the AO to counter the report prepared by the Registered Valuer (Govt. Approved Valuer) which assessee harps on to bolster her claim and to bring on record the Report of the DVO, so as to enable the AO to calculate the actual FMV of the property as on 1.4.81 on the basis of which the correct capital gain could be worked out. The Tribunal's order in ITA No. 738 (Del) of 1997 for the instant A.Y. i.e. assessment year 93-94 dated 4th July 2003 was as follows:-

"It is apparent from the discussion aforesaid that something more is required on the part of the department and that is to counter the report prepared by a registered valuer on behalf of the assessee with reference to the FMV as on 1.4.1981 and this would be to bring on record the report of the DVO attached to the income tax department and failing such a course of action any other appropriate. action provided by law. The Assessing Officer thereafter would be required to reexamine the entire issue on merits, after giving a reasonable opportunity to the assessee ".

14. In the second round of appeal, the Ld. CIT(A) took note of the grievance of the assessee, that she had not been heard and her objections to the DVO vis-à-vis the GAV Report, has not been addressed by neither the DVO nor AO, prompted the Ld. CIT(A) to ask for a remand report from the AO vide letter dated 2.1.2006. The Ld. CIT(A) directed the AO to provide the assessee sufficient and reasonable opportunity to put forth her objections on the DVO's report and to cross examine the DVO, if necessary before his report could be admitted and used as evidence against the assessee. From the records, we find that as intimated by the ITO, Ward 24(1) vide his letter dated 17.11.06 a commission was issued under section 131(1)(d)and the report from ITO, Ward 29(4), 2-Ganihat road(South) Kolkatta was called for.

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15. We find that the Assessing Officer vide his letter No.297 dated 12.2.07 furnished the reply of the DVO, Kolkata dated 26.12.06k to the objections raised by the assessee on the valuation determined by the DVO. The AO informed the Ld. CIT(A) that the final report as directed by him, was still awaited from ITO, Ward 29(4), Kolkatta. We find that the Ld. CIT(A) took note of the fact that more than an year has elapsed and despite that the AO failed to procure the report as directed by him, so he decided to adjudicate the mater on the basis of the materials on record and inferred that the DVO, Kolkata has no material to meet the objections raised by the assessee and opined that it would be a denial of justice if the appeal is kept pending sine die. Accordingly her appeal was decided by ld CIT(A) on merits on the basis of material available on record.

16. We concur with the observation of the Ld. CIT(A) that when the matter was referred by the AO, pursuant to the Tribunal order, to the DVO, at Calcutta for ascertaining the FMV of the property at issue as on 1.4.81, it was incumbent- upon the DVO to point out shortcomings if any in respect to the Registered Valuer's report and also spell out the reason for arriving at his valuation of the property. We find that the AO has not given any reason to accept the DVO's report while simultaneously discarding the registered valuer's report and computed the capital gains. Ld. CIT(A) has acknowledged the fact that AO did not allow the assessee sufficient and reasonable opportunity to offer her comments, to controvert the DVO's report. This is evident from the fact that the DVO's report was received by the assessee on 24.3.05 i.e., just six days before the assessment order was passed and her objections dt 28.3.02 was completely ignored by the Assessing Officer while passing the assessment order. We agree with Ld. CIT(A) that neither the assessee was heard properly before passing the assessment order nor any reason was given by the AO to the objections raised by the assessee vide letter dt. 28/03/2005, which is against natural justice and this ground is sufficient to say that the assessment order was vitiated and legally unsustainable.

17. Ld. CIT(A) has taken note of the DVO's report dated 18.3.05 wherein, it is stated by the DVO in Para 10.0 that he (DVO) has considered the statement of 8 ITA NO.3117/Del/2007

made by the assessee in writing and in person and he has estimated the fair market value of the said property which according to the Ld CIT(A) is incorrect ; and the ld CIT(A) records a finding of fact that at no point of time the assessee was given any opportunity to raise her objections before the DVO. The DVO claims in his report that it is based on the evidences submitted by the assessee and material gathered by him, which according to the Ld CIT(A) was found to be an incorrect assertion and so was of the opinion that it was not safe to rely on it. The Ld CIT(A) further take note that in Para 7.0 of DVO report that the DVO indicated that the method of valuation adopted was "Land and Building method" and in Para 7.2 for reasons in support of the method he simply says "this is the most appropriate method" without neither assigning any reason as to this was the only most appropriate method nor he clarifies the defect of average method adopted by the Registered Valuer of the assessee . More over the Ld CIT(A) take note of the DVO report in para 5.6 wherein, the DVO states that "the old building had out lived its life''.

However the Ld CIT(A) wonders as to how the DVO could have made such an observation when on the date of inspection ie on 7.3.05 ( vide para 3.2 of the report) the old building had already been demolished and a new complex had come up, so the Ld CIT(A) rightly opines that DVO report was based on surmises, and this presumption was based on the sale deed dt 13 .12.1946 and so the DVO concluded that because the structure was built in 1946, the value of it expired in 1981 and so the salvage value was adopted by him ie Rs. 93,700/-. Since the DVO was not in a position to ascertain what was the actual physical condition of the building, his finding was only a guess work. Pitched against the said report of DVO against the assessee's registered valuer report, which was prepared after physical inspection of the property commands and inspires more confidence and is more authentic and acceptable. The Ld CIT(A) has taken note that the assessee's Registered valuer has not only brought out in his report dt. 26 November 1992 the room wise details of the, entire building but also of out-house, their electrification and water arrangement, along with details of boundary wall and the front gate etc. and then has estimated the salvage value.

Apart from the bricks, the timber

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steel, electrical wiring and all other electrical fitting, sanitary fittings and other furnishings were capable of fetching substantial salvage value. For the aforesaid reason Registered Valuer's report inspires confidence because it was made after physical inspection of the building and so is acceptable than the report of the DVO which is based on Pure guess work and surmises only. Regarding valuation of land it has been reported by the DVO vide para 8.1 of the report that it is based on "land sale instances, given in Annexure-I of the report. The Ld CIT(A) after perusal of this Annexure-I has found that the sale instances adopted by the DVO are for the years 1978, 1979 and concerning another property situated altogether in a different locality for the year 1980. Since the sale instances of the same locality only would be relevant, adoption of sale instance in respect of the property situated at Sambhunath Pandit Street would not serve any purpose and thus needs to be ignored. So far as the other three properties situated at Alipore Road are concerned it was taken note by the Ld CIT(A) that they are in respect of very small size of plots as compared to the assessee's plot, therefore, there would always be a difference in their sale rates and so cannot be compared.

The Ld CIT(A) has taken into account the difference in these properties are situated in inner lane I8H & I8L, without the advantage of having two open sides and not in as prominent a place as that of the assessee and therefore they would fetch much less market rate than what the assessee's property would fetch. Thirdly as would be seen the rates in respect of the property situated in the same locality on the same day of purchase were highly different, whereas one property measuring 7.42 kattah was registered at the rate of Rs. 29,012/- per kattah, the property on the same day i.e. 31.7.79 was registered having just 478 sq.mtr. area at the rate of Rs. 37,728/- per kattah. Thus the Ld CIT(A) observes that the rates were not being governed on the basis of prevalent rate of the registry but depended on the choice, need & utility of the purchaser. Thus to depend solely on these two very different rates in order to estimate the value of the property as on 1.4.1981, would be not correct. Ld CIT(A) takes note that the sale instances adopted by the DVO are for the year 1979 and as there was the price difference on the same date and wondered as

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to why no rate prevalent as on 1.4.1981 was adopted by the DVO? And the Ld CIT(A) infers that since no registry somewhere near 1.4.1981 was found by the DVO as well as the Registered Valuer therefore estimated the FMV of the land independently. The DVO in his report has observed that comparing the sales instances and after considering the fact that the property is situated in a posh residential locality at Alipur Park, it is a corner plot and considering the facts such as size, shape, frontage, location, transport facilities and other amenities, time factor and usage of the plot, whether commercial, residential or commercial-cum-residential, the land rate of the plot under consideration was taken as Rs. 50,000/- per kattah as on 1.4.1981. Now if two years back the rate of a small size of plot, situated in an inner lane was as high as Rs. 37,728/- per kattah, how can be a plot having all the advantages as observed by the DVO himself, can be as low as Rs. 50,000/- per kattah after a gap of two years.

18. Since the cost of construction was worked out at Rs. 9,37,209/-by the DVO the salvage value was estimated at Rs. 93,700/-. According to him, as already discussed earlier since the building structure was no longer in existence which has been considered by the DVO also in his letter dated 26.12.06, the cost of construction worked out by him was only an estimate without taking into account the reality. Further what is the basis for adopting only 10% of the value of the structure so as to estimate the salvage value has not been clarified by the DVO. Thus Ld. CIT(A) observed that the estimate of salvage value is also based on surmises only. As against this the report of the Registered Valuer of the assessee is based on physical verification of the property and therefore the same was more acceptable than the DVO's report. As regards to the fair market value of the land, the DVO says that sale instances were the basis for estimating the value of the land and that the land rates prevailing in Alipore Road area in the year 1978-79, 79-80 and 80-81 was ranging between Rs. 30,000/- to Rs. 38,000/-per kattah. However, as discussed in the forgoing para because of the fast escalation in the rate of the properties, particularly situated in a posh area like Alipore Road, Calcutta, the sale instance of the year 1979 could not be made the basis to estimate the rate of the property as on 1.4.81. ld CIT(A) took

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note of the fact that there was much variation in the rate in respect of two different properties purchased by the same person in the same locality on the same date at different rates. Ld. CIT(A) nullifies certain observation of the DVO to controvert the valuation made by the Registered Valuer by stating as under:

(i) The registered valuer considered Rs. 350/- per sq. ft. as cost of construction in the year 1981 for a load bearing structure whereas according to DVO load bearing prevailing rate was varying between Rs.

80-100/- sq.ft. As rightly pointed out by the Ld CIT(A) from the report of the DVO it should be discernible as to what was the basis on which the DVO was of the opinion that the prevailing rate was between Rs. 80 - 100sq.ft. which the Ld CIT(A) has noticed that DVO has not brought out in his report. The DVO further says that the registered valuer considered the structure as new one whereas the structure was old one and constructed in the year during 1940 which had outlived its life. Ld CIT(A) after perusal of the registered valuer's report reproduces the same to controvert the factual error made by DVO. The relevant portion of the report of registered valuers as reproduced by the Ld CIT(A) is as under:-

"Present state of the structure although devoid of any maintenance with the orientation as shown in the drawing supplied to him but the condition is absolutely in repairable state of its use. This state of structure appears t be because of Nil maintenance ( i.e. on the date of inspection on 26.11.92) as the matter relates to as far back as in 1981, it is accepted that the condition of the structure was definitely much better and quite habitable".

19. He (Registered Valuer) further reports that in consideration of price of the material as well as labour charges prevailing at that time could cost around Rs. 200 per sq.ft. of the covered area for a single storied building and it is so Rs. 350 p.sq.ft. in gross for the two storied building. Thus the Ld CIT(A) rightly repells the said reasoning of the DVO and opined that the valuation by the Registered Valuer was not made considering the structure as new one and held that it was an incorrect observation of DVO. The DVO further states in his letter that the cost of construction as on today i.e. in the year 2006 varied between Rs. 550 to Rs.

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650 for a load bearing G+1 structure and how the rate could be Rs. 350/- pr sq. ft. as on 1.4.81 for an old building which was built in and around 1940. The Ld CIT(A) takes notes that the DVO's finding that the cost of construction in the year 2006 was between 550 to 650 is not supported with any evidence. The Ld CIT(A) rightly observes that there is a basic difference between determining the cost of construction and valuing the fair market value of any property and the fair market value is always higher than the cost of construction. Ld CIT(A) takes into account that in any case the salvage value of the structure in comparison to the overall value of the property was much less and negligible and even if there is some variation, it would not substantially reduce the value of the entire property as a whole. Finally the DVO finds fault that the Registered Valuer had not given any sale instances for the land and has only stated that the rates available from the registrar were 4-5 times lower as compared to the actual sale rate and so his finding could not be accepted as FMV since it had to be supported by the evidence. Ld CIT(A) agrees to the said observation of the DVO but rightly observes that even the sale instances adopted by him (DVO) also did not serve any purpose for the same reason ; and therefore the valuation of the property was just a matter of estimate of one expert versus another expert.

20. We find considerable force in the observation of the Ld. CIT(A) that from the discussion in the foregoing para it would be clear that the basic purpose for which the case was remanded by the ITAT to the file of the Assessing Officer remained unfulfilled. The DVO ought to have controverted the report of the Registered Valuer's report, so it cannot be acted upon and the failure of the DVO as stated above, give us no other alternative but to uphold the valuation of the registered valuer for the purpose of computation of capital gain. The Ld CIT(A) has rightly taken note of the fact that Registered valuer report is based on the average of two different methods of valuation and DVO failed to controvert the said method nor could clarify as to his selection of single method was better. In the facts and circumstances we find that registered valuer report more acceptable, since the estimate of the DVO is based only on one method

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of valuation, where as we find that the Registered Valuer's estimate was based on two different methods; and moreover the fact remains that he could physically examine the property, so it is more acceptable being nearer to correct estimate.

21. In the background of the aforesaid discussions, we do not find any infirmity in the well reasoned order of the Ld. CIT(A) which does not need any interference on our part, hence, we uphold the same. Therefore, the issue involved in ground no. 1 & 2 are dismissed.

22. In the result, the appeal of the Revenue stands dismissed.

Order pronounced in the Open Court on 24/06/2015.

-Sd/- -Sd/- (N.K.SAINI) (A. T. VARKEY) ACCOUNTANT MEMBER JUDICIAL MEMBER Dated:24 /06/2015 A K Keot

Copy forwarded to 1. Applicant 2. Respondent 3. CIT 4. CIT (A) 5. DR:ITAT ASSISTANT REGISTRAR ITAT, New Delhi

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