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TMI Blog2018 (1) TMI 185X X X X Extracts X X X X X X X X Extracts X X X X ..... ere with the order of Ld.CIT(A). Thus, the grounds of the Revenue are dismissed. - ITA No.895/PUN/2015 - - - Dated:- 23-11-2017 - MS. SUSHMA CHOWLA, JM AND SHRI ANIL CHATURVEDI, AM For The Assessee : None For The Revenue : Shri Mukesh Jha, JCIT ORDER PER ANIL CHATURVEDI, AM : 1. This appeal filed by the Revenue is emanating out of the order of Commissioner of Income Tax (A) 1, Aurangabad dt.16.03.2015 for the assessment year 2005-06. 2. The relevant facts as culled out from the material on record are as under :- Assessee is an individual having income from capital gains and other sources. Assessee filed her return of income for A.Y.2005- 06 on 30.08.2005 declaring total income of ₹ 12,03,110/-. On verification of the records it was noticed that during the year under consideration assessee had sold a plot at survey no.261 of Jalna admeasuring total area of 6816.1 sq.mtrs along with structures standing thereon for a consideration of ₹ 2,15,00,000/- and assessee s share in plot of land was 30% and therefore the share of consideration was ₹ 64,50,000/-. Assessee calculated the capital gain at ₹ 12,03,110/- and paid the ta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... impugned asset claimed by the assessee is less than the Fair Market Value. In the case under appeal, the AO. is of the opinion that value of the impugned asset as on 01/04/1981 claimed by the assessee is more than its Fair Market Value. The above proposition of law is supported by the following decisions - ( 1) CIT-13. Mumbai Vs. Mis Puja Prints (2014) 360 ITR 697 (Born) In this case, the assessee has sold land and building for ₹ 2 Crores. The assessee has considered the value of the said property as on 01/04/1981 at ₹ 35.99 Lakhs on the basis of valuation report . The AO. has noticed that the said property was purchased by the assessee for ₹ 1 . 45 Lakhs only prior to 15 months of 01/04/1981 . The AO. has referred the impugned property for valuation as on 01/04/1981 to the DVO who has valued the same at ₹ 6.68 Lakhs. The Hon'ble Jurisdictional High Court has held that as the value of the property declared by the assessee was not less than its fair market value, reference to DVO u/s 55A is not permissible. The Hon'ble Court has further held that the amendment in section 55A(a) by substituting the words is at variance with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6-07 ( 7) Rubab M. Kazerani Vs. ]CIT (2004) 91 ITD 429 (TM) (Mum) ( 8) Bony Elies Demello Vs. ACIT, ITA No.7870/Mum/2010 dated 05/04/2013 , 2013-TIOL-297ITAT-Mum. ( 9) ITO Vs. Chandrakant Ramchandra Khot, ITA No.1216/PN/2011 (A . Y . 2008-09) order dated 27/11/2014. ( 10) ITO Ward-2(1), Aurangabad Vs. Anil Rajaram Belambe (HUF), ITA No.806/PN/2013 (A.Y. 2009-10) order dt.28.04.2014. In the case of Shri Anil Rajaram Belambe (HUF) at Sr.No.(10) above, the Hon'ble Jurisdictional ITAT has decided the issue in favour of the assessee . The concluding portion of the order of Hon'ble ITAT, Pune is reproduced below- From the above provisions, it is noticed that up to 01.07.2012, the Assessing Officer could make reference to Valuation Officer under clause (a) of section 55A in case of value of asset claimed by assessee in the opinion of Assessing Officer is less than market value. In the case under appeal, the value of 4 land as on 01.04.1981 as per opinion of the Assessing Officer is more than market value claimed by the assessee and hence, the Assessing Officer cannot refer the property for valuation by Valuation Officer under c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hurdle for referring the property for valuation, where as per the A.O. the value of the property is different from the value adopted by the assessee, the legislature has replaced the words is less than its fair market value , by the words is at variance with its fair market value by Finance Act, 2012 w.e.f. 01/07/2012. It is also evident that the amendment is prospective; In view of the above facts and discussion and amendment to section 55A and respectfully following the ratio laid down by the decisions referred to above including the decisions of Hon'ble Jurisdictional ITAT, Pune and Hon'ble Bombay High Court, I hold that the A . O. is not justified in making addition of Rs . 39,33,748/- by referring the property for valuation by DVO u/s 55A of the Act and following the said valuation report of the DVO particularly in view of the fact that the appellant has considered the value of the impugned property as on 01/04/1981 on the basis of valuation report of the Valuer. The addition of Rs . 39,33,748/- is, therefore, deleted . The first issue mentioned above is decided in favour of the appellant. 3. Aggrieved by the order of Ld.CIT(A), Revenue is no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pplication was filed though the notice for hearing was served on the assessee. The case file further reveals that after the hearing, letter was received in the Registry Office on 16.10.2017 addressed by CA Umesh Sharma, the Authorised Representative of the assessee, wherein it was inter-alia submitted that he could not attend the hearing due to the break-down of his car while coming from Ahmednagar. He therefore requested that the case be re-fixed for hearing. It was further submitted that the issue in the present case is covered by the decisions of Bombay High Court in the case of Pooja Prints reported in 360 ITR 697 (Bom), Pune Tribunal in the cases of Arjun Dada Kharate in ITA No.185/PN/2016 and Narayan Keshar Kulkarni in ITA No.1481/PN/2016 reported in 48 CCh 228. Since the aforesaid letter has been received after the conclusion of hearing, the same is ignored and the matter was heard ex-parte-qua the assessee. 5. Before us, at the outset, Ld.D.R. submitted that though the Revenue has raised various grounds but the sole controversy is with respect to the referring the valuation of the property to the Departmental Valuation Officer (DVO) u/s 55A of the Act. 6. Before us, L ..... X X X X Extracts X X X X X X X X Extracts X X X X
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