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TMI Blog2015 (3) TMI 672X X X X Extracts X X X X X X X X Extracts X X X X ..... . The facts of the case are that the assessee, an individual, returned long term capital gains (LTCG) at Rs. 605.32 lacs on the sale of development rights in land during the year to one, M/s. Supreme Housing & Hospitability Ltd., a company in which he was a director, for consideration of Rs. 43.849 crores. The stamp valuation, i.e., the value adopted by the Stamp Valuation Authority (SVA), per the development agreement, was however observed by the Assessing Officer (A.O.) to be, at Rs. 133.12 cr., much higher. The assessee objecting thereto, the matter was referred by the Assessing Officer (A.O.) to the Departmental Valuation Officer (DVO) u/s.50C(2), also forwarding along with the copy of the valuation report (from the registered valuer) f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itted to dispose of the assessee's ground no. 2 before her. The assessee, on being required by her to submit its case in its respect, stated that he did not wish to press the said ground. In her opinion, however, as the DVO's valuation had been directed for being adopted for the sale (transfer) consideration, it would, by logical conclusion, extend to the cost of the acquisition as on 01.04.1981 as determined by the DVO, as well; both the values being only toward determining the LTCG on the same asset (refer para 3 of the impugned order). Aggrieved, the assessee is in appeal. 3. The assessee's case before us was that the A.O. had no legal competence to refer determination of the fair market value (FMV) as on 01.04.1981, which a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... refore, there is no question of there being no reference by the AO u/s.55A to the DVO, who, as it appears, made a combined report qua reference u/ss.50C(2) and 55A to him. The next question is the date on which reference u/s.55A was made by the A.O. There is no mention thereof in any order passed by the Revenue authorities. However, inasmuch as the assessment order stands passed on 29.12.2011, the same would only be during the year 2011. This becomes relevant as a reference, where the value adopted by the assessee is considered by the A.O. as higher than the FMV (as on the relevant date), could be validly made, as clarified by the hon'ble jurisdictional high court in Pooja Prints (supra), only after 30.06.2012. The DVO's report dat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l the power to question the same, and disturb it in one or more respects, albeit for good and sound reasons, reduced in writing. The A.O., however, being not a technical person, the law provides for his assistance in the matter by the Valuation Officer (VO), making it also incumbent on the appellate authorities to, in appellate proceedings, extend opportunity to the VO. The apex court in the case of Saraswati Industrial Syndicate vs. CIT [1999] 237 ITR 1 (SC) has held that the adjudicating authority cannot comment on technical matters de hors the material on record. The law itself, per sections 23A and 24 of the WTA, requires that the objections by the assessee to the valuation by the Valuation Officer are to be adjudicated upon after heari ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t land itself, was, as it appears, principally to preclude invocation of section 50C, applicable only in case of a land and/or buildings, application of which provision has been accepted by the assessee, and which perhaps led to his not pressing his ground no. 2 before the ld. CIT(A). However, one thing is clear: the FMV as on 01.04.1981 as well as on the transfer date (26.05.2006) have to be reckoned with reference to the same capital asset. And it cannot be that the cost of land is set off against the sale of development rights and vice-a-versa. To this extent, the argument of the ld. CIT(A) is unexceptional, and could be advanced by her irrespective of the fact that the assessment order did not consider it or the assessee did not prosecu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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