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TMI Blog2016 (8) TMI 690X X X X Extracts X X X X X X X X Extracts X X X X ..... proved valuer is on the higher side. Had the valuation of the Asst. Valuation Officer been on the lower side, the matter would have been standing on a different foot. In that view of the matter, the authority ought not to have referred the matter to the Valuation Officer by applying provisions of section 55 A of the Income-tax Act by reopening of the assessment. Thus, in view of the decision of this court in Commissioner of Income-tax v. Gauranginiben S. Shodhan Indl. (2014 (2) TMI 78 - GUJARAT HIGH COURT ) and keeping in mind the above facts, the reopening of the assessment is not permissible. Therefore, the issues are required to be answered in favour of the assessee and against the revenue. - TAX APPEAL NO. 1187 of 2008 - - - Dated:- 8-8-2016 - MR. KS JHAVERI AND MR. G.R.UDHWANI, JJ. FOR THE APPELLANT : MR. B.S. SOPARKAR, ADVOCATE FOR MRS. SWATI SOPARKAR, ADVOCATE FOR THE OPPONENT : MR PRANAV G DESAI, ADVOCATE ORAL JUDGMENT (PER : HONOURABLE MR.JUSTICE KS JHAVERI) By way of this appeal under section 260A of the Income-tax Act, 1961, the appellant-assessee has challenged the order of the Income-tax Appellate Tribunal (hereinafter referred to as the T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... missions made by the appellant. In this case, the Assessing Officer reopened the assessment only after receiving the valuation report which clearly mentioned the discrepancies in respect of cost of acquisition as on 1.4.1981. Therefore, in the present case, it cannot be said that the appellant has disclosed all the facts during the course of original assessment proceedings. Under the circumstances, I hold that the action of the Assessing Officer in reopening the assessment is correct and no interference is call for. 3.2 In further appeal by the assessee, the Tribunal vide its order dated 26.3.2008 has upheld the view taken by the Commissioner (Appeals). The relevant observations of the Tribunal are as under: We have heard the rival contention of both the parties. We find that the A.O. while framing the assessment order has referred the matter to Valuation Cell for determining the cost of acquisition of property as on 1.4.1981. The A.O. could not get the report of the registered valuer within time so A.O. has completed the assessment without report the A.O. has obtained the report on 25.9.2003 and determined the fair market value of the property atRs. 1,68,468/- and ₹ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ead of rejecting the said valuation report and accepting the cost as per the claim of the assessee in his return is concerned, the Tribunal has given its findings in paragraph Nos. 10 and 11 which are reproduced as under: para 10 - We have heard the rival contention of both the parties. Looking to the facts of the case, we find from the copy of the registered valuer s report which is submitted along with the return on 7.3.2001, the valuer has determined the value as on 1.4.1981 at ₹ 6,60,225/- and assessee s share was 66.67%. Thus the Fair Market Value as on 1.4.1981 is taken at ₹ 4,40,200/-. The valuer in his report has submitted that there was no comparative instance of sale on open agriculture land in this area and in the absence of comparative sale instance fair and reasonable value of the land is fixed at 75/- per sq. mtr. After that the Asst. Valuation Officer of the department has determined the FMV with comparative sale instance in that locality which is at page 18 of the paper book. While valuing the property, the assessee did not file any objection to proposed valuation which was communicated to him. Moreover, valuation officer has considering all other fa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the details show that the rate at which the property was sold was much higher than the rate at which the appellant s valuer had valued the property. However, we have to keep in mind that this cannot be the sole indicator for determining the value. It has been admitted by the government approved valuer (whose report was filed by the appellant) that no comparative instances in respect of agricultural land were available. Even a perusal of the report submitted by the Asst. Valuation Officer will show that transaction pertains to earlier period and these transactions were for the different survey numbers. Therefore, in the instant case, it will be seen that the departmental valuer, i.e. Asstt. Valuation Officer has taken the cost for earlier period and that too for the land situated in different sector albeit for very smaller plots in urban area. No doubt the rates of the properties are very high but these cannot be adopted as these are for small plots in well defined areas connected by roads with infrastructural facilities which is not so in the case of sale transaction under consideration which are for agricultural land. Not only this, the land is agricultural but falls within the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to DVO for ascertaining the fair market value as on 1.4.1981 also, we find that such reference was not competent. We have noticed that prior to the amendment in section 55A with effect from 1.7.2012 in a case, the value of the asset claimed by the assessee is in accordance with the estimate made by the Registered Valuer, if the Assessing Officer was of the opinion that the value so claimed was less than its fair market value as on 1.4.1981. It would not be the case of the Assessing Officer that the value of the asset shown as on 1.4.1981 was less than the fair market value. Such clause, therefore, as it stood at the relevant time, had no application to the valuation as on 1.4.1981. We are conscious that with effect from 1.7.2012, the expression now used in clause (a) of section 55A is is at variance with its fair market value. The situation may, therefore, be different after 1.7.2012. We are, however, concerned with the period prior thereto. Clause (b) of section 55A is in two parts and permits a reference to DVO if the Assessing Officer is of the opinion that (i) the fair market value of the asset exceeds the value of the asset so claimed by the assessee by more than such percenta ..... X X X X Extracts X X X X X X X X Extracts X X X X
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