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TMI Blog2013 (6) TMI 551X X X X Extracts X X X X X X X X Extracts X X X X ..... as estimated by the DVO. Since determination of the FMV as on 1.4.1981 was based on the report of the DVO, the same is held to be invalid. Consequently, estimation of the FMV of the property as on 1.4.1981 as made by the assessee is directed to be accepted. Ground of the assessees is allowed. X X X X Extracts X X X X X X X X Extracts X X X X ..... the Assessing Officer made a reference to the DVO under section 55A. The DVO, vide his report dated 21st December 2010, took the value of the property as on 1st April 1981 at Rs. 3,73,74,000 instead of 5,67,11,059. Detailed objections were made before the Assessing Officer which, however, was rejected and, as a result, addition of Rs. 30,03,122, was made in the computation of long term capital gains based on the valuation report submitted by the DVO. 4. Before the learned Commissioner (Appeals), the assessee submitted that the reference under section 55A to the DVO was not made in accordance with the provisions of law, as all the conditions required for making reference to the DVO under section 55A was seriously lacking in this case. The l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere the value of the property disclosed by the assessee based on the approved valuer's report is on a higher side i.e. Rs. I crore in this case. As such, invoking jurisdiction under section 263 on the above basis is illegal." 3.2 In view of the above the appeal is allowed on this issue and the Assessing Officer is directed to re-compute the capital gains by accepting the disclosed valuation of the property as on 1.4.1981." 5. The learned Departmental Representative strongly relied upon the findings of the Assessing Officer and submitted that reference was rightly made by the Assessing Officer to determine the fair market value as on 1st April 1981 and such a report of the DVO was binding on the Assessing Officer. 6. None appeared on beha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and the also decision of Sarala N. Sakaraney v/s ITO, [2010] 46 DTR (Trib.) (Mum.) 2008, held as under:- "4. The Tribunal in its order dated 23rd July, 2004 has categorically observed thus :- "The first issue that arises for our consideration is whether the reference made by the Assessing Officer to the DVO u/s. 55A is bad in law under the facts and circumstances of the case. This issue, in our considered opinion is covered in favour of the assessee and against the revenue by the Judgement in the case of Rubab M. Kazerani reported in 91 ITD 429 (Mum)(TM). Further the assessee also covered by the Third Member decision of the Pune Bench of the Tribunal, the case of the Krishnabai Tingore Vs. ITO reported in 101 ITD 317 (Pune)(TM) wherein it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 55A, the AO has to record an opinion that (i) the fair market value of the asset exceeds the value of the asset as claimed by the assessee by more than such percentage or by more than such an amount as may be prescribed; or (ii) having regard to the nature of the asset and other relevant circumstances, it is necessary to make such a reference. As can be seen from the communication dated nil from DVO to the petitioner insofar as the fair market value of the property as on 1st April, 1981 is concerned, the petitioner had claimed the same at a sum of Rs. 6,25,000 as per registered valuer's report. Therefore, the AO was required to form an opinion that the value so claimed is less than the fair market value. The estimated value proposed by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the assesseee is more than the fair market value. Thus, the condition of clause (a) of section 55A is not satisfied. Respectfully following the decision of the Tribunal referred to above we uphold the order of the CIT(A) and dismiss the appeal by the revenue."
8. Thus, in view of the aforesaid decision and the decision relied upon by the learned Commissioner (Appeals), we do not find any reason to deviate from such a finding and, accordingly, confirm the order passed by the learned Commissioner (Appeals) on this score. Thus, the grounds raised by the Revenue is treated as dismissed.
9. In the result, Revenue's appeal is treated as dismissed.
Order pronounced in the open Court on 10th May 2013. X X X X Extracts X X X X X X X X Extracts X X X X
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