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TMI Blog2014 (7) TMI 1179X X X X Extracts X X X X X X X X Extracts X X X X ..... sment year on 02- 12-2005 declaring total long term capital loss of ₹ 96,08,800/-. Subsequently, the Assessing Officer re-opened the assessment u/s.147 by issuing notice u/s.148 on 17-03-2010. On perusal of the computation of total income, the Assessing Officer noticed that the assessee has sold lands situated at Sade Satra Nali, Hadapsar, i.e. Sy.No.182/2/1+2+3+4A+4 admeasuring 40R, Sy.No.182/2/1+2+3+4B admeasuring 75R and Sy.No.182/2/5 admeasuring 68R to M/s. City Developers and Promoters vide Development Agreement dated 22-04- 2004 for a consideration of ₹ 1,85,00,000/-. The Fair Market Value for the purpose of stamp duty was adopted at ₹ 2,27,75,033/-. According to the Assessing Officer as per the provisions of section 50C, if the Fair Market Value is higher than the sale consideration received the Fair Market Value will be taken as the full value of the consideration as a result of transfer/sale. He noted that the assessee has taken the indexed cost of acquisition at ₹ 320 per sq. mtr, i.e. 29.73 per sq.ft. as on 01-04- 81 of ₹ 58,56,000/-. He, therefore, referred the matter to the DVO u/s.55A and 50C(2) of the Income Tax Act to determine the Fair ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed and the long term capital loss declared by the assessee should be accepted. 4. However, the Ld.CIT(A) also was not satisfied with the arguments advanced by the assessee and upheld the action of the Assessing Officer. Aggrieved with such order of the CIT(A) the assessee is in appeal before us with the following grounds :- The Appellant would like to object to the impugned assessment order on the following grounds of Appeal, which are raised without prejudice to each other on the facts and in law. 1. The Learned Commissioner of Income Tax (Appeal- I)erred in computing Long Term Capital Gain at ₹ 1,44,00,724/- as against Long Term Capital Loss disclosed by the assessee at ₹ 96,08,800/-. 2. The Learned Commissioner of Income Tax (Appeal- I) is erred in referring the matter for valuation cell for determining the value as on 1/4/1981 thereby misinterpreting the provisions of Section 55A(a)and (b). 3. The Learned Commissioner of Income Tax (Appeal- I) is erred in adopting the valuation as on 01/04/1981 and 22/04/2004 which is wrongly made by the Valuation Officer by referring the instances which are non-comparable to assessee's case due to location pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iled by the assessee from a Registered Valuer we find the following details : DVO Registered Valuer Fair Market Value determined as on 01-04-1981 Rs.18,48,000/- 58,56,000/- Fair Market Value determined as on 22-04-2004 Rs.2,59,86,000/- 2,27,75,033/- (FMV for stampduty) 7.1 We find the indexed cost of acquisition as on 01-04-1981 has been taken by the assessee at ₹ 320 per sq. mtr. i.e. 29.72 per sq.ft. whereas the DVO has determined such Fair Market Value at ₹ 101 per sq. mtr as on 01-04-1981, i.e. 9.40 per sq.ft. Similarly, the Fair Market Value determined by the DVO stands at ₹ 2,59,86,000/- whereas the Fair Market Value adopted for stamp duty purpose is ₹ 2,27,75,033/-. 7.2 It is the submission of the Ld. Counsel for the assessee that the provisions of section 55A are not applicable if the value adopted by the assessee as on 01-4-1981 is more than the Fair Market Value. We find an identical issue had come up before the Tribunal in the case of Mrs. Sangeeta Jeevan Bhonsal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) [55A(b)(ii)] of the Act is not acceptable. This is for the reason that s. 55A(b) of the Act very clearly states that it would apply in any other case i.e. a case not covered by s. 55A(a) of the Act. In this case, it is an undisputable position that the issue is covered by s. 55A(a) of the Act. Therefore, resort cannot be had to the residuary clause provided in s. 55A(b)(ii) of the Act. In view of the above, the CBDT circular dt. 25th Nov., 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 riot binding upon the assessee and it is open to an assessee to contend to the contrary. 7. In the case of Hiaben Jayantilal Shah (supra) the Hon'ble Gujarat High Court has held as under: 10. Under cl. (a) of s. 55A of the Act the AO 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 AO is of the opinion that the value so claimed is less than the fair market value. In any other case, as provided under cl. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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