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TMI Blog2019 (2) TMI 42X X X X Extracts X X X X X X X X Extracts X X X X ..... ase and as per law, the Commissioner of Income Tax (Appeal)-1, Nashik is not justified in confirming the action of the AO of making reference for valuation of property to the DVO u/s.55A of the Act. 2. On the basis of facts and in the circumstances of the case and as per law, the addition of Rs. 5,02,459/- made by the AO on account of Long Term capital Gain by confirming the substitution of the Valuation of DVO as on 01.04.1981 against the valuation adopted by the appellant of agriculture land situated at Gat No.151 Makhmalbad, Nashik. 3. On the basis of facts and in the circumstances of the case and as per law, the Commissioner of Income Tax (Appeal)-1, Nashik is not justified in confirming the disallowance made by the AO on account of exemption claimed by the appellant u/s.54B of the Act. 4. The appellant craves for addition to deletion, alteration, modification, change any of the grounds." 3. The brief facts in this case are that the assessee is an individual and derives income from capital gain, interest, etc. It is observed by the Assessing Officer that the assessee had filed his return of income manually in paper for the A.Y. 2011-12 on 19/12/2013 which is beyond due d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 04.1981. The Ld. AR submitted that the Hon'ble Jurisdictional High Court in the case of CIT Vs. Pooja Prints, reported as 360 ITR 697 (Bom.) has held that such reference cannot be made prior to the amendment to Section 55A of the Act. In para 8 of the said order Hon'ble Court specified that law to be applied for Section 55A shall be as existing during the relevant assessment year. The copy of the said judgment is enclosed at page 1 to 3 of the legal compilation submitted before us. The Ld. AR further submitted that following this judgment in assessee's group concern, the Hon'ble Pune ITAT has also considered this reference as beyond the power of the Assessing Officer, respective orders are attached at page 4 to 6, in case of Bhima Dada Kharate for assessment year 2009-10 and page 7 to 19 in the case of Arjun Dada Kharate and Parvatibai Kharate for assessment year 2009-10. 6.1 That with regard to the ground No.3, we had asked the Ld. AR of the assessee to furnish compilation of dates in case of the assessee as well as in case of other cases on the assessee relies. The said compilation of dates is as under: Sr. No. Particulars Appellant Humayun Merchant R D Pimple ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rty disclosed by assessee is less than the fair market value. If the value adopted by the assessee of the property is much more than the fair market value, there is no question of reference to DVO. (ii) That the amendment to Section 55A is effective only from 1st July, 2012 and this amendment was not retrospectively applicable. The second proposition of the judicial pronouncement of the Hon'ble Court is applicable in the instant case. The present case pertains to assessment year 2011-12 i.e. F.Y. 2010-11 and the amendment to Section 55A is brought into effect from 1st July, 2012 i.e. effective from assessment year 2012-13. 8.1 We also find that in ITA No.1582/PUN/2015 for the assessment year 2009-10 in assessee's group concern, in the case of Assistant Commissioner of Income Tax, Circle-1, Nashik Vs. Shri Bhima Dada Kharate, this issue was observed in detailed and it was held by the Co-ordinate Bench of the Tribunal that the applicability of amendment so far as Section 55A is concerned, it cannot be applicable retrospectively. The relevant part of the order is as under: "11. I have considered the rival arguments made by both the sides, perused the orders of the AO and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as been held in various decisions that once the Commissioner (Appeal) has recorded his findings for or against the assessee the Commissioner (Appeal) is not competent to review its own order on the basis of same facts in garb of powers vested u/s.154 of the I.T. Act. All issues which involve prolonged arguments and are debatable and where two views are possible fall outside the scope of the powers u/s.154 of the I.T. Act. 15. I find the Hon'ble Bombay High Court in the case of Puja Prints (Supra) at Para 8 of the order has observed as under : "8. The contention of the revenue that in view of the amendment to Section 55A(a) of the Act in 2012 by which the words "is less than the fair market value" is substituted by the words " "is at variance with its fair market value" is clarifactory and should be given retrospective effect. This submission is in face of the fact that the 2012 amendment was made effective only from 1 July 2012. The Parliament has not given retrospective effect 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 clear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court dealt with the same issue wherein assessee sold an agricultural land and out of sale proceeds purchased another agricultural land in the name of his wife. He claimed deduction u/s.54B of the Act but same was disallowed as land was purchased by assessee in the name of his wife. The question was whether the assessee had invested sale proceeds of agricultural land in purchase of new land, the assessee could not be denied deduction u/s.54B since the new property was not in his name but in the name of his wife. The Hon'ble Rajasthan High Court observed that the contentions which have been raised by the department are that the investment has to be made by the assessee in his own name but the Legislature has not used specific language with precision and the Hon'ble Delhi High Court in CIT Vs. Kamal Wahal reported as 351 ITR 4 has also held that it can be in the name of wife. In that view of the matter contention raised by the assessee is required to be accepted with regard to section 54B regarding investment. In the case of Commissioner of Income Tax Vs. Gurnam Singh (supra.), the Hon'ble Punjab & Haryana High Court held wherein the assessee sold an agricultural land a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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