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TMI Blog2016 (11) TMI 744X X X X Extracts X X X X X X X X Extracts X X X X ..... PANDA, AM For The Appellant : Shri S.N. Puranik For The Respondent : Shri Suhas Kulkarni, JCIT ORDER PER SUSHMA CHOWLA, JM: This appeal filed by the assessee is against order of CIT(A)-II, Nashik, dated 28.12.2012 relating to assessment year 2009-10 against order passed under section 143(3) of the Income Tax Act, 19 61 (in short the Act ). 2. The assessee has filed the following concise ground of appeal:- 1. Commissioner (Appeals) has erred in confirming the computation of Long Term Capital Gain at Rs.1,61,39,390/- taking Stamp Duty Valuation as full value of Consideration, against Long Term Capital Loss of ₹ 1,29,690/- returned by the Assessee, on actual Consideration. Additions made may please be deleted. 2. Commissioner (Appeals) has erred in accepting DVO s comments on objections to Valuation Officer Report, even though DVO has not given the opportunity of being heard to assessee. 3. Commissioner (Appeals) erred in not extending the opportunity of being heard to DVO. (36 Taxman.com 393 B bay) 4. CIT(A) has erred in not appreciating that neither the stamp valuation Authority nor the valuation officer has taken i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s show caused to explain as to why the long term capital gains should not be recomputed by adopting sale consideration at ₹ 1,99,59,350/- and the Fair Market Value as on 01.04.1981 at ₹ 2,04,000/-. The assessee in reply at the outset, pointed out that the value determined by the Valuation Officer was both not correct and not acceptable. The assessee pointed out that the Valuation Officer had not given reasonable opportunity to file objections to his proposed valuation. Another issue raised by the assessee was that the property sold by her was under litigation and the said fact was totally ignored by the Assessing Officer and in this regard, copy of MOU entered into with the buyers was filed. The Assessing Officer however, rejected the claim of assessee and in view of provisions of section 50C(3) of the Act, recomputed the income from capital gains by taking the sale value as assessed by the Stamp Valuation Authority and t he Fair Market Value at ₹ 2,04,000/-. The assessee claimed deduction under section 54F of the Act, which was allowed to the assessee and the income from long term capital gains was determined at ₹ 1,61,39,390/-. The assessee on the other ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act by taking value determined by the Stamp Duty Valuation Authority as per the provisions of sec.50C (3) of the Act. In view of the above, the appellant's grounds challenging the action of the AO are dismissed. The LTCG calculated by the AO is confirmed. 7. The assessee is in appeal against the order of CIT(A) against the adoption of sale consideration as per Stamp Valuation Authority and also Fair Market Value of the property as on 01.04.1981. 8. The learned Authorized Representative for the assessee pointed out that the objections raised by the assessee against report of the DVO have not been taken note of. Though the sale deed says that the property was free from encumbrances, but MOU was executed between the parties, which clearly mentioned that the property was not free from encumbrances. The learned Authorized Representative for the assessee filed certain additional evidences in respect of dispute between the parties and pointed out that because of dispute, half portion of the land was kept undeveloped awaiting the final outcome of dispute. With respect to the additional ground of appeal, the learned Authorized Representative for the assessee pointed out that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2) of the Act further provides that in case the assessee raises any objection against the said valuation adopted by the Stamp Valuation Authority before the Assessing Officer and where the assessee has not filed any appeal or any proceedings against the valuation determined by the Stamp Valuation Authority, then the statute requires that the Assessing Officer was to refer the matter to the DVO to determine the market value of property as on date of sale. The duty of the DVO is to provide an opportunity of hearing to the assessee before finalizing the valuation of property. The DVO is also to consider the various aspects of the said property which could have bearing on its market value. The perusal of assessment reflects that though the DVO had asked the assessee to appear and file her submissions, but proceedings could not be attended by the assessee because of certain constraints. The valuation report prepared by the DVO was applied by the Assessing Officer. The assesse e further filed objections before the CIT(A) and pointed out that the issue and dispute between the parties which had affected its market value; but all these issues were not considered by any of the authorities. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Registered Valuer Report and the same is undisputed, hence, in the present case, provisions of clause (a) to section 55A of the Act are attracted. The pre -amended provisions of said clause very clearly provided that a reference could be made to the valuation officer only in cases where the Assessing Officer was of the opinion that the value so claimed by the assessee was less than its fair market value. In the instant case, the Registered Valuer had worked out the value of property at ₹ 19,29,500/-, whereas the DVO has worked out the value of property at ₹ 2,04,000/-. Consequently, where the value as determined by the DVO was lesser than the value as declared by the assessee as on 01.04.1981, then the reference to the DVO under section 55A of the Act is not warranted. In this regard, we find support from the ratio laid down by the Hon ble Bombay High Court in CIT Vs. Puja Prints (supra), wherein it has been held that where the Assessing Officer referred the issue of valuation to the DVO only because in his view, the valuation of the property as on 01.04.1981 as made by the respondent-assessee was higher than the fair market value, thus, in such cases, invocation of s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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