9911796707
TMI Blog2014 (1) TMI 764X X X X Extracts X X X X X X X X Extracts X X X X ..... u/s 55A(a) - This is for the reason that Section 55A(b)of the Act very clearly states that it would apply in any other case i.e. a case not covered by Section 55A(a) of the Act - The CBDT Circular dated 25 November 1972 can have no application in the face of the clear position in law. This is so as the understanding of the statutory provisions by the revenue as found in Circular issued by the CBDT is not binding upon the assessee and it is open to an assessee to contend to the contrary - Decided against Revenue. - Income Tax Appeal No. 248 of 2012 - - - Dated:- 15-1-2014 - Mohit S. Shah, C.J. And M. S. Sanklecha,JJ. For the Appellant : Mr. Charanjeet Chanderpal For the Respondent : Mr. Subhash Shetty ORDER P. C. Thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urpose of indexation, particularly when this issue was not raised either before the AO or the CIT(A) and hence did not arise from the order of the CIT(A)? 3 Briefly, the facts leading to this appeal are: (a) In its return of income, the appellant had claimed long term capital gains of Rs.11.20 lakhs in respect of sale of its land and building (property) at village Marol, Andheri (East), Mumbai for a consideration of Rs.2 Crores. The respondent assessee claimed a deduction on account of brokerage of Rs.5 lakhs and the costs of indexation was claimed at Rs.1.78 Crores, on the basis of the value of the property being Rs.35.99 lakhs as on 1 April 1981. This valuation of Rs.35.99 lakhs as a fair market value as on 1 April 1981 of the propert ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ee firm. For the above purpose i.e. to determine the issue of the date of first acquisition of the property by the firm, the issue was restored to the Assessing Officer. The impugned order clarifies that in case the Assessing Officer concludes that the respondent assessee is holding the property w.e.f. 1 April 1981 then the Assessing Officer to accept the valuation as given by the respondent assessee and work out its capital gain; (e) Being aggrieved, the revenue is in appeal from the impugned order dated 18 February 2011. 4 Mr. Charanjeet Chanderpal, learned Counsel appearing for the appellant submits that : (a) The impugned order of the Tribunal failed to appreciate the fact that the Finance Act 2012 has amended Section 55A(a) of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me Tax14 v/s. Daulal Mohta HUF in Income Tax Appeal No.1031 of 2008 rendered on 22 September 2008 on an identical issue; (b) In the face of Section 55A of the Act, it is not permissable to refer the issue of valuation to the Departmental Valuation Officer in terms of Sections 133, 133(6) and 142(2) of the Act. Moreover, the decision of the Guwahati High Court in Smt. Amiya Bala Paul (supra), has been reversed by the Apex Court in Smt. Amiya Bala Paul v/s. CIT 262 ITR 407. Consequently, decision cited by the revenue is no longer good law; (c) Section 55A(b)(ii) of the Act would have no application when Section 55A(a) of the Act covers the field. The Circular No.96 dated 25 November 1972 relied upon by the revenue is neither binding upon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f valuation to the Departmental Valuation Officer only because in his view the valuation of the property as on 1981 as made by the respondentassessee was higher then the fair market value. In the aforesaid circumstances, the invocation of Section 55A(a) of the Act is not justified. 8 The contention of the revenue that in view of the amendment to Section 55A(a) of the Act in 2012 by which the words is less then the fair market value is substituted by the words is at variance with its fair market value is clarifactory and should be given retrospective effect. This submission is in face of the fact that the 2012 amendment was made effective only from 1 July 2012. The Parliament has not given retrospective effect to the amendment. There ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pon the decision of the Guwahati High Court in Smt. Amiya Bala Paul (supra). However, the Apex Court in Smt. Amiya Bala Paul (supra) has reversed the decision of the Guwahati High Court and held that if the power to refer any dispute with regard to the valuation of the property was already available under Sections 131(1), 136(6) and 142(2) of the Act, there was no need to specifically empower the Assessing Officer to do so in circumstances specified under Section 55A of the Act. It further held that when a specific provision under which the reference can be made to the Departmental Valuation Officer is available, there is no occasion for the Assessing Officer to invoke the general powers of enquiry. In view of the above and particularly i ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
