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TMI Blog2014 (2) TMI 1372X X X X Extracts X X X X X X X X Extracts X X X X ..... onsequently, the addition made by the AO and confirmed by the ld.CIT(A) on the basis of the DVO s report stands deleted. - ITA No.2167/Kol/2009 - - - Dated:- 7-2-2014 - Shri Abraham P. George, Accountant Member AND Shri George Mathan, Judicial Member For the Appellant : Shri S. M Surana, Advocate, ld.AR For the Respondent : Shri Rajendra Prasad, ld.JCIT/Sr.DR ORDER Shri George Mathan, Judicial Member This is an appeal filed by the assessee against the order of the learned Commissioner of Income-tax (Appeals), XVI, Kolkata in appeal no. 115/CIT(A)- XVI/IT/29(4)/07-08 dated 13-11-2009 for the assessment year 2005-06. 2. Shri S. M Surana, Advocate, learned AR represented ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rming the action of the AO with regard to the reference made to the Valuation officer which was bad in law or was not accordance with law and therefore the market value as on 1.4.81 determined by the Valuation Officer as on 1.4.81 cannot be taken and considered for the purpose of determination of capital gain. 6. For that the ld.CIT(A) erred in confirming the cost of the property as on 1.4.81 at an arbitrary figure when the Valuation Officer did not allow the assessee any opportunity of being heard before determining the Valuation as on 1.4.81. 7. For that the ld.CIT(A) erred in not admitting the evidences filed before him with regard to the comparable cases of the market value of land when no opportunity was provided ea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... refore, should have accepted the said constructed area for the purpose of determination of the market value of the building as on 1.4.81. 12. For that on the facts and circumstances of the case the determination of the market value as on 1.4.81 was not lawful and proper. Therefore, the order of the CIT(A) be modified and the assessee be given the relief prayed for. 4. It was submitted by the learned AR for the assessee that the assessee had sold its property and offered for long term capital gains. It was submitted by him that the AO had referred the valuation of the property as on 1-4-1981 to the DVO by invoking the provisions of section 55A of the I.T Act 1961. It was the submission that the provisions of section 55A o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is in accordance with the estimate made by a registered valuer, if the Assessing Officer is of the opinion that the value of so claimed is less than its fair market value. (b) in any other case, if the Assessing Officer is of the opinion. (i) that the fair market value of the asset exceeds the value of the asset as claimed by the assessee by more than such percentage of the value of the asset as so claimed or by more than such amount as may be prescribed in this behalf, or (ii) that having regard to the nature of the asset and other relevant circumstances, it is necessary so to do. Thus, it is clear based on the aforesaid concurrent fact findings that the formation of opinion of the Assessing Officer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ket value of the property as on April 1, 1981 and December 28, 1995. However, in the affidavit-in-reply the Assessing Officer himself states to ascertain the fair market value of the property, a reference was made by this office to the valuation officer on April 26, 1996, since, according to this office, the value declared by the assessee as on the date of execution and registration of the sale deed was lower by more than 25 per cent. The petitioner filed a return on August 27, 1996, for the assessment year 1996-97 and the fair market value as on April 1, 1981, was shown at ₹ 6,25,000. The capital gain was worked out at ₹ 17,43,750 taking the sale value of the property at ₹ 17,50,000 as per the banakhat dated November 29, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e conditions mentioned in section 55A of the Act have not been satisfied by the AO. Consequently, in view of the decision of the Hon ble Jurisdictional Calcutta High Court in the case of Umedbhai International P. Ltd (refer to supra) as also the decision of the Hon ble Gujrat High Court in the case of Hiaben Jayantilal Shah (refer to supra), we are of the view that the reference to the DVO by the AO is not sustainable in law. Consequently, the addition made by the AO and confirmed by the ld.CIT(A) on the basis of the DVO s report stands deleted. 7. No other issues have been specifically argued by the ld.AR for the assessee before us. Consequently, the same are dismissed. 8. In the result, the assessee s appeal in ITA No. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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