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TMI Blog2011 (3) TMI 1673X X X X Extracts X X X X X X X X Extracts X X X X ..... valuer and not the valuation given by the DVO wherein reference was made to the DVO by the AO u/s. 55A of the IT Act to determine the cost of acquisition. (ii) Furthermore the ld. CIT(A) has erred in treating the reference to valuation officer u/s. 55A as invalid. On the contrary he ought to have upheld the reference to the DVO in view of the provisions laid down in Sec. 55A(b)(ii) of the I.T. Act, 1961 which clearly states the following: "that in any other case if AO is of the opinion that having regard to the nature of the asset and other relevant circumstances it is necessary to do." 2. The assessee is an individual. He sold during the previous year a plot of land at Andheri, Mumbai. The plot of land had been purchased by the asses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... )(i). However, it is noted that in that case it was the assessee who had sought a direction to the ld. Assessing Officer to make reference to VO u/s. 55A. 1. On plain reading of the provisions of section 55A, I find merit in the argument of the appellant. Section 55A could be invoked only if the Ld. Assessing Officer is of the opinion that the value declared by the assessee is less than the fair market value of the asset. In the appellant's case, the ld. Assessing Officer has made this reference because he felt that the value of the property as on 1/4/1981 declared by the appellant is more than the fair market value. Thus, in my opinion, the condition of clause (a) of section 55A is not satisfied. Further, since the appellant submitted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ribunal in the case of Smt. Sarla N. Sakraney Vs. ITO (2010) 46 DTR (Mum) (Trib) 208 and this Tribunal has held as follows. 11. Aggrieved by the orders of learned CIT(A), assessees have preferred ground No. 1 to 3 before the Tribunal. 12. We have heard the rival submissions. As far as Ground No. 1 is concerned, we are of the view that the reference to the DVO was invlaid. On this issue, learned DR relied on the order of learned CIT(A). While learned counsel for the assessee relied on the decisions which were cited before learned CIT(A) and further drew our attention to the decision of Hon'ble Bombay High Court in the case of Daulal Mohta HUF, ITA No. 1031 of 2008 dated 22.9.2008; wherein, Hon'ble Bombay High Court has approved t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n making a reference under section 55A of the Act to the DVO for determination of the fair market value of the property?" In para No. 4&5 of its Judgement of Hon'ble High Court held as follows:- "4. The Tribunal in its order dated 23rd July, 2004 has categorically observed thus :- "The first issue that arises for our consideration is whether the reference made by the Assessing Officer to the DVO u/s. 55A is bad in law under the facts and circumstances of the case. This issue, in our considered opinion is covered in favour of the assessee and against the revenue by the Judgement in the case of Rubab M. Kazerani reported in 91 ITD 429 (Mum)(TM). Further the assessee also covered by the Third Member decision of the Pune Bench of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... value so claimed is less than the fair market value. In any other case, as provided under cl. (b) of s. 55A, the AO has to record an opinion that (i) the fair market 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. As can be seen from the communication dated nil from 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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