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TMI Blog2014 (2) TMI 424X X X X Extracts X X X X X X X X Extracts X X X X ..... ted:- 7-8-2013 - Shri R. S. Syal And Shri Vivek Varma,JJ. For the Appellant : Shri Hitesh M. Shah For the Respondent : Shri Kishan Vyas ORDER Per Vivek Varma, JM:- The appeal is filed by the assessee against the order of CIT(A) II, Mumbai, dated 29.07.2011, wherein the following grounds have been taken: "1. On the facts and circumstances of the case, the Learned Commissioner of Income tax (Appeals)-II ["the CIT(A)"] erred in confirming an addition of Rs. 29,54,102/- by invoking the provisions of section 50C for the Agreement of Development entered into on 09/12/2005 and adopting Rs. 1,68,85,645/- as the market value as per the Valuation Report of the Income tax Department (DVO) against the agreement value declared by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... coowners of the property, wherein, it was held, "6. We have considered the issue and perused the rival contentions. As seen from the letter dated 02.05.2009 assessee had objected to the adoption of the District Valuation Officer's report for revising the assessment under section 155 of the Income Tax Act but agreed for adopting the report on sale consideration subject to non levy of interest or penalty. Therefore, the DR's objection on assessee accepting the valuation as on 01.04.1981 is not correct. Assessee has rightly contested the same. As submitted by the learned Counsel, AO lacks jurisdiction for referring the FMV under section 55A wherein the Valuation determined by the DVO is less than the FMV declared by assessee. This issue was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is met. It may mentioned here that the aforesaid decision does not consider decision of Hon'ble Bombay High Court as well as decision of Hon'ble Gujarat High Court and to that extent, we are of the view that the said decision is not binding. The Hon'ble Bombay High Court in the case of Daulal Mohta (HUF) (supra) dealt with following substantial question of law :-- "B. Whether on the facts and in the circumstances of the case the Hon'ble Tribunal was right in law to observe that the Assessing Officer was not justified in making a reference under section 55A of the Act to the DVO for determination of the fair market value of the property?" In para Nos. 4 5 of its Judgment of Hon'ble High Court held as follows:- "4.The Tribunal in its ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... frain from undertaking this academic exercise of disposing this case on merits." 5. In view therefore is no merit in the appeal. Appeal stands dismissed." 13. The Hon'ble Gujarat High Court in the case of Hiaben Jayantilal Shah (supra) has held on this issue as follows :-- "Under clause (a) of section 55A the Assessing Officer is entitled to make the reference to the Valuation Officer in a case where the value of the asset as claimed by the assessee is in accordance with the estimate made by the registered valuer, if the Assessing Officer is of the opinion that the value so claimed is less than the fair market value. In any other case, as provided under clause (b) of section 55A, the Assessing Officer has to record an opinion that (i) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... declared by the assessee as per Government registered valuer's report was more than the FMV 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 No. 1 of the assessees is allowed". 7. Respectfully following the same, we allow the ground raised by assessee and direct AO to adopt the FMV at Rs. 6,25,590 as on 01.04.1981 offered by assessee and rework out the capital gain accordingly on the share of assessee by allowing the necessary indexation. Ground 3 is allowed. 6. The AR pleaded that since the issue is squarely covered on iden ..... X X X X Extracts X X X X X X X X Extracts X X X X
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