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TMI Blog2016 (7) TMI 1321X X X X Extracts X X X X X X X X Extracts X X X X ..... l Sachhidanand at Shirdi. The sale consideration which was shown at ₹ 1,30,00,000/- was below the value determined by the stamp valuation authorities at ₹ 2,65,75,000/-. The AO further noted that as per the valuation report dated 20-09-2004 the Government Valuer has determined cost of acquisition at ₹ 1,46,77,000/- in the A.Y. 2003-04 when he acquired the property by inheritance and the long term capital loss has been determined at ₹ 20,34,263/-. Further, the assessee is one of the partners of the firm M/s. Hotel Sai Sachhidanand. Since the full value of consideration received or accruing on transfer of capital asset is less than the value adopted by the stamp valuation authority, the AO referred the matter to the DVO for ascertaining the fair market value. The DVO determined the fair market value at ₹ 2,01,80,000/- as on 16-01-2010. The AO accordingly determined the long term capital gain at ₹ 74,44,005/- and assessee s share in the same was computed at ₹ 11,91,040/-, the details of which are as under : 6.4 The value adopted by the Stamp Duty Authorities as per the sale deed is of ₹ 2,65,75,000/-. However the assessee has sold f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the DVO u/s 55A for the current year was bad in law and therefore, the valuation as on 01 . 04.1981 claimed by the assessee should have been adopted for the purposes of computing long term capital gains on sale of the hotel property. 4. The learned ' CIT(A) ought to have appreciated that the issue under consideration was squarely covered by the decision of Hon'ble Bombay High Court in the case of Pooja Prints [360 ITR 697] and Hon'ble ITAT, Pune in the case of Surekha Tanaji Bhilare [ITA No. 1612/PN/2012] dated 29.05.2014 and hence, there was no reason to follow the decision of Hon'ble ITAT, Mumbai by completely ignoring the decisions of Hon'ble Jurisdictional High Court and ITAT which were binding on the learned CIT(A). 5. The appellant craves leave to add, alter, amend or delete any of the above grounds of appeal . 5. The Ld. Counsel for the assessee referring to the decision of the Hon ble Bombay High Court in the case of Puja Prints reported in 360 ITR 697 submitted that reference u/s.55A could be made to the DVO only when the value adopted by the assessee was less than the fair market value. Since in the instant case the value adopted b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... visions of section 55A as well as the amendment to the said section by the Finance Act, 2012 w.e.f. 01-07-2012 has held that reference u/s.55A can be made to the DVO only when the value adopted by the assessee is less than the fair market value. Where the value adopted by the assessee is much more than the fair market value, no reference can be made to the valuation officer under the provisions of section 55A. The relevant observation of the Hon ble High Court at page 701 to 703 read as under : 6. We have considered the rival submissions. We find that the impugned order dated 18 February, 2011 allowing the respondent assessee's appeal holding that no reference to the Departmental Valuation Officer can be made under Section 55A of the Act, 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 e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 contend to the contrary. 10. The contention of the revenue that the Assessing Officer is entitled to refer the issue of valuation of the property to the Departmental Valuation Officer in exercise of its power under Sections 131, 133(6) and 142(2) of the Act is entirely based upon the decision of the Guwahati High Court in Smt. Amiya Bala Paul (supra). However, the Apex Court in Smt. Amiya Bala Paul (supra) has reversed the decision of the Guwahati High Court and held that if the power to refer any dispute with regard to the valuation of the property was already available under Sections 131(1), 136(6) and 142(2) of the Act, there was no need to specifically empower the Assessing Officer to do so in circumstances specified under Section 55A of the Act. It further held that when a specific provision under which the reference can be made to the Departmental Valuation Officer is available, there is no occasion for the Assessing Officer to invoke the general powers of enquiry. In view of the above and particularly in view of clear prov ..... X X X X Extracts X X X X X X X X Extracts X X X X
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