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TMI Blog2014 (8) TMI 1033X X X X Extracts X X X X X X X X Extracts X X X X ..... iating that no reference was made to the DVO u/s 55A of the I.T Act, 1961. 3. The learned Commissioner of Income-tax (Appeals) erred in not appreciating that the value adopted by the A.O was reasonable and scientific and was based on real time sale instances. 4. The learned Commissioner of Income-tax (Appeals) erred in not appreciating that the report of the DVO relied upon by the A.O while arriving at the FMV as on 1.4.1981 is a relevant and admissible piece of evidence. 5. The appellant craves leave to add, alter or amend the ground of appeal. 2.1 The assessee is an individual and during the year under consideration had derived capital gains on account of sale of land at Hadapsar. The Assessing Officer had received information regarding the above sale and that the assessee had not disclosed full and true capital gains, therefore, the case was reopened by issue of notice u/s 148 on 25.01.2011 after obtaining prior approval of the Addl. CIT Range-3, Pune. The return of income was filed declaring total income of Rs. 3,57,403/-, which was assessed at Rs. 1,61,62,110/- by the Assessing Officer. During the assessment proceeding the Assessing Officer on perusal of the Development ag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of addition by the CIT(A) by accepting the contention of the assessee that no reference could be made by the Assessing Officer if value declared by the assessee as on 01.04.1981 on the basis of Report of the Government Approved Valuer is more than F.M.V. The assessee is an individual and during the year under consideration had disclosed long term capital gain on sale of property. The date wise relevant details in chronological order are as under:- a) Return of Income declaring income Rs. 349460/- filed on 31.07.2007; b) F.M.V of the property as on 1.04.1981 as per Govt. Approved Valuer Report at Rs. 32,85,000/-; c) Date of Notice u/sec. 148 was issued on 25.01.2011; d) F.M.V. as on 1.04.1981 adopted by the Assessing Officer on the basis of Report of DVO obtained in the case of other person at Rs. 5,92,471/- and e) Capital Gain assessed by the Assessing Officer at Rs. 1,39,25,210/- 2.4 The assessee sold the ancestral property situated Hadpasar at Rs. 159,29,250/-. Since the property was held prior to 01.04.1981, the assessee got the valuation as on 01.04.1981 from the Government Approved Valuer, who has certified the valuation as on 01.04.1981 at Rs. 32,85,000/-. Accordingl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... even formed an opinion as contemplated by section 55A of the Act. The FMV as on 01.04.1981 adopted by the assessee is based upon the valuation report of the registered approved valuer. The value adopted by the assessee is not less than the Valuation adopted by the Assessing Officer. We find that ITAT, Pune in the case of ITO Vs. Sangeeta Jeevan Bhosale in ITA No.1125/PN/2012 dated 30.05.2014 and in the case of Ramdas Sonba Tupe Vs. ITO in ITA No.534/PN/2013 dated 08.07.2014 has held as under: "6. In the case of Puja Prints (supra) the Hon'ble High Court has examined the powers of the Assessing Officer for making the reference u/s. 55A of the Act as well as the amendment made to Sec. 55A (a) and held as under: 7. We find that s. 55A(a) of the Act very clearly at the relevant tie provided that a reference could be made to the DVO only when the value adopted by the assessee was less than the fair market value. In the present case, it is an undisputed position that the value adopted by the respondent-assessee of the property at Rs. 35.99 lakhs was much more than the fair market value of Rs. 6.68 lakhs even as determined by the DVO. In fact, the AO referred the issue of valuation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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. 11. As can be seen from the communication dated nil (Annex. D) from respondent No. 2 - 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 the DVO is shown at Rs. 3,97,000, which is less than the fair market value shown by the assessee as on 1st April, 1981. Therefore, cl. (a) of s. 55A of the Act cannot be made applicable. Clause (b) of s. 55A of the Act can be invoked only in any other case, namely when the value of the asset claimed by the assessee is not supported by an estimate made by a registered valuer. In the facts of the present case, cl. (b) of s. 55A of the Act also cannot be invoked. Therefore ..... X X X X Extracts X X X X X X X X Extracts X X X X
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