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TMI Blog2017 (9) TMI 464X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. Thus 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. 300/Mum/2014 - - - Dated:- 1-9-2017 - SRI MAHAVIR SINGH, JM AND SRI RAJESH KUMAR, AM For The Assessee : Shri Subodh Ratnaparkhi, AR For The Revenue : Shri Suman Kumar, DR ORDER PER MAHAVIR SINGH, JM : This ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of agreement recording subsequent transfer of such development rights by the purchaser / s, whereas the transfer by the appellant as per see . 2 ( 47 )( v ) of the I . T . Act 1961 had already occurredj1 . 2 . Without prejudice, the Hon . CIT ( A ) erred in confirming the working of capital gains by adopting the F . M . V . of land as on 01 . 04 . 1981 at Z 6,000 /- ( 0 . 50 paise per sq . feet ) on the basis of tentative valuation report of Department Valuation Officer ( DVO ) , Thane in place of 6,69,088 /- claimed by the assessee ( 56 /- per sq . feet ). 3 . The Hon . CIT ( A ) erred in relying upon the tentative valuation report of DV ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 04 . 1981 at Rs . 200 /- per sq . mtr ( i . e . Rs . 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 @ Rs . 5 /- per sq . mtr . In appellate proceedings, the CIT ( A ) upheld the reference to the DVO made u / s 55A but allowed FMV of Rs . 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 . It was contended by ld . ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... decision of Hon ble Bombay High Court in the case of Puja Prints, 360 ITR 697, wherein the Hon ble High Court held 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 gro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fect to the amendment . Therefore, the law to be applied in the present case is Section 55A ( a ) of the Act as existing during the period relevant to the Assessment Year 2006 - 07 . At the relevant time, very clearly reference could be made to Departmental Valuation Officer only if the value declared by the assessee is in the opinion of Assessing Officer less than its fair market value . 9 . The contention of the revenue that the reference to the Departmental Valuation Officer by the Assessing Officer is sustainable 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2012 . 8 . 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 . 4. The facts and circumstances are exactly identical, respectfully following this Tribunal decision in assessee s own case, wherein the same property sold and computation of long term capital gain was under dispute, we allow the appeal of the assessee partly. 5. In the result, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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