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TMI Blog2014 (5) TMI 1085X X X X Extracts X X X X X X X X Extracts X X X X ..... dated 29-01-2013 for the A.Y. 2007-08. The Revenue has taken the following grounds in the appeal: 1. The learned Commissioner of Income-tax (Appeals) has erred in deleting the addition made by the Assessing Officer by accepting the assessee's contention that no reference can be made by the Assessing Officer if the value declared by the assessee is more than the Fair Market Value. 2. The learned Commissioner of Income-tax (Appeals) erred in not appreciating 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 Comm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation of Capital Gain. 3. The assessee took the contention before the Ld. CIT(A) that the provisions of Sec. 55A are not applicable if the value adopted by the assessee as on 01-04-1981 is more than the FMV declared by the assessee. The assessee also relied on the following decisions: i. M.V. Shah, Official Liquidator, Anant Mills Ltd. Vs. U.J. Matain and Another 209 ITR 568. ii. Smt. Krishnabai Tingre Vs. Income Tax officer 101 ITD 317 (Pune). iii. Ms. Rubab M. Kazerani Vs. Joint CIT 91 ITD 429. iv. ITO Vs. Smt. Lalitaben B. Kapadia 115 TTJ 935. 4. The Ld. CIT(A) held that the Assessing Officer was not justified in making the reference as the Assessing Officer assumed the power u/s. 55A(a) of the Act if the fair market va ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gher fair market value as on 01.04.1981 for the purpose of indexation. The Assessing officer, however, has not doubt or challenged the valuation report of the approved valuer as provided by the appellant. It has already been seen that the Assessing Officer assumes powers u/s 55A(a) only when in his/her opinion the fair market value disclosed by the Assessee is less and in the case of the appellant the Assessing Officer has himself held the fair market value adopted by the appellant to be more which is already against the provisions of section 55A(a) of the Act. Now the Revenue is in appeals before us. 5. We have heard the parties and perused the record. The Ld. Counsel argues that the issue arising in the Revenue appeal is covered in fav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in face of the fact that the 2012 amendment was made effective only from 1st July, 2012. The Parliament has not given retrospective effect to the amendment. Therefore, the law to be applied in the present case is s. 55A(a) of the Act as existing during the period relevant to the asst. yr. 2006- 07. At the relevant time, very clearly reference could be made to DVO only if the value declared by the assessee is in the opinion of AO less than its fair market value. 9. The contention of the Revenue that the reference to the DVO by the AO is sustainable in view of s. 55A(a)(ii) [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 c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ₹ 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 ₹ 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 pres ..... X X X X Extracts X X X X X X X X Extracts X X X X
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