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TMI Blog2017 (1) TMI 730X X X X Extracts X X X X X X X X Extracts X X X X ..... d for the assessment year falling prior to the amendment so brought in by Finance Act 2012. Undisputedly, relevant assessment year under consideration is assessment year 2004-05, which is prior to the amendment brought in Section 55A(a) by Finance Act 2012 w.e.f. 01/07/2012. Facts and circumstances in all the appeals before us are same, respectfully following the decision of Bombay High Court, we do not find any merit for the reference so made by the AO to the DVO, when the value offered by assessee was more than the value determined by the AO in respect of assessment year falling prior to introduction of amendment brought in Section 55A(a) by Finance Act 2012 w.e.f. 1/7/2012. - Decided in favour of assessee. - ITA No. 4233 to 4244 /Mum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evelopment agreements. 4. The Id. AO holding a belief that the FMV adopted by the assessee was higher than the actual value, referred the determination of FMV as on 01.04.1981 to the DVO, Thane who valued the land @ ₹ 5/- per sq. mtr. In appeal proceedings, the Hon. CIT (A) upheld the reference to the DVO made u/s 55A but allowed FMV of ₹ 301- per sq. mtr on the basis of certain non-comparable sale instances. The Hon. CIT(A) has relied upon sale instances of village Chikanghar, Kalyan not appreciating that the land under consideration was located at village Gandhare, Kalyan and the location and other factors were not comparable. 5. Before us assessee had disputed the validity of reference made by AO to the DVO. It was argu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r (i.e. ₹ 20/- per sq. feet) by relying upon the valuation report of Registered Valuer. The AO holding a belief that the FMV adopted by the assessee was higher than the actual value, referred the determination of FMV as on 01.040.1981 to the DVO, Thane, who valued the land @ ₹ 5/- per sq. mtr. In appellate proceedings, the CIT (A) upheld the reference to the DVO made u/s 55A but allowed FMV of ₹ 30/- per sq. mtr on the basis of certain non-comparable sale instances. 5. Against the above order of CIT(A), the assesses are in further appeal before us. 6. It was contended by ld. AR that the assessment year in question is A.Y. 2004-05. The Id. AO prior to 01.07.2012 could not make a reference to the DVO u/s 55A when ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... only follows the decision of this Court in the matter of Daulal Mohta HUF (supra). The revenue has not been able to point out how the aforesaid decision is inapplicable to the present facts nor has the revenue pointed out that the decision in Daulal Mohta HUF (supra) has not been accepted by the revenue. On the aforesaid ground alone, this appeal need not be entertained. However, as submissions were made on merits, we have independently examined the same. 7. We find that Section 55A(a) of the Act very clearly at the relevant time provided that a reference could be made to the Departmental Valuation Officer only when the value adopted by the assessee was less then the fair market value. In the present case, it is an undisputed position ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ustainable in view of Section 55A(a) (ii) of the Act is not acceptable. This is for the reason that Section. 55A(b)of the Act very clearly states that it would apply in any other case i.e. a case not covered by Section 55A(a) of the Act. In this case, it is an undisputable position that the issue is covered by Section 55A(a) of the Act. Therefore, resort cannot be had to the residuary clause provided in Section 55A(b)(ii) of the Act. In view of the above, the CBDT Circular dated 25 November 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 not binding upon the assessee and it is open to an assessee to co ..... X X X X Extracts X X X X X X X X Extracts X X X X
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