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TMI Blog2021 (6) TMI 535X X X X Extracts X X X X X X X X Extracts X X X X ..... ) misinterpreted the provisions and erroneously applied it retrospectively. We note that with effect from 1st July, 2012, the expression now used in Clause (a) of Section 55A is at variance the situation may therefore, be different after 1st July, 2012, which is applicable for assessment year 2013-14, whereas the assessee s case under consideration relates to assessment year 2012-13, hence amended provisions are not applicable to the assessee under consideration. We allow appeal of assessee. - ITA Nos.1686, 1687, 1688, 1293 & 1294/ AHD/ 2017 - - - Dated:- 14-6-2021 - Shri Pawan Singh, Jm And Dr. A. L. Saini, Am For the Assessee : Shri Mehul Patel, Advocate For the Revenue : Ms Anupama Singhla, Sr. DR ORDER PER DR. A. L. SAINI, ACCOUNTANT MEMBER: These five appeals filed by different assessees, pertaining to assessment year (AY) 2012-13, are directed against the separate orders passed by the Learned Commissioner of Income Tax (Appeals), Surat [in short the ld. CIT(A) ], which in turn arise out of separate assessment orders passed by the Assessing Officer under section 143(3) of the Income Tax Act, 1961 (hereinafter referred to as the Act ). 2. Si ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tered valuer and adopted the DVO's FMV @ ₹ 71.60 per sq.meter. and calculated the long term capital gains of ₹ 20,51,553/- (12.5% Share).Regarding the validity of reference to the DVO under section55A of the Act, we note that amendment in section 55A of the Act is effective from 01.07.2012, which is applicable for AY.2013-14, however the assessee s case under consideration is for AY 2012-13, therefore the amended provisions are not applicable to the assessee under consideration. We note that at the relevant time, that is, AY 2012-13, the Assessing Officer can make a reference to the DVO under section 55A of the Act only if the value so adopted by the assessee under section 48 is not supported by the Valuation Report and Government Approved Valuer and if the AO is the opinion that the value of capital asset claimed by the assessee is less than its fair market value and not when it is more than its fair market value . We note that none of the conditions got fulfilled, hence ld. Assessing Officer is not legally competent to make reference to the DVO. As explained above the amended provisions under section 55A is not applicable to all those documents which got regist ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... only dispute which has survived between the assessee and the Department is relating to determination of Fair market Value (FMV) as on 01.04.1981 of the impugned land admeasuring 38579 sq. meter, which the assessee has valued at ₹ 100/- per sq. meter as against value estimated by the DVO @₹ 19/- per sq. meter. We note that the valuation adopted by the assessee is supported by report from Govt. Approved Valuer, whereas the Ld. AO has based his estimation on value determined by the DVO. The assessee has adopted the FMV as on 01.04.1981 at ₹ 38,57,900/- @₹ 100/-per sq. meter as against ₹ 7,32,050/- estimated by the DVO @Rs.l9/- per sq. meter for entire land. This is the precise issue of dispute between the assessee and the Department, as noted by ld. CIT(A). 7. Regarding the validity of reference to the DVO u/s.55A of the Act, first of all, it is to be noted that amendment in section 55A of the Act is effective from 01.07.2012, that is, applicable for assessment year 2013-14 and assessee`s case under consideration is for assessment year 2012-13, therefore, the amended provisions are not applicable to the assessee under consideration. We note that at t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) was not correct. We find that Hon'ble Bombay High Court in case of CIT vs. Daulal Mohta (HUF) [2014] 3601TR 680 (Bom.) the Hon'ble Bombay High Court wherein respondent had adopted fair market value of property as on 01.04.1981 at ₹ 2,13,31,000/- based on the valuation report of Government approved Valuer and Assessing Officer determined the fair market value as on 1st April 1981 at ₹ 1,35,40,000/- based on Valuation report of DVO. Hon'ble Bombay High Court upheld the order of Tribunal by observing as under: 3. We hove perused .the judgment of the Tribunal. It is explicitly-dear that thequestions sought to be raised are with regard to the quantum of valuation which is only a finding of fact and there is absolutely no question of law involved in the above appeal. 4. The Tribunal in 'its order dated 23rd July, 2008 has categorically observed thus: 5. The first issue that arises for our consideration is whether the reference made by the Assessing Officer to the DVO u/s 55A is bad- in- law under the facts and circumstances of the case. This issue, in our considered opinion, is covered in favour of assesses and against the Revenue by the jud ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... own as on 1st April, 1981 was less than the fair market value. Such clause, therefore, as it stood at the relevant time, had no application to the valuation as on 1st April, 1981. Therefore, respectfully following the same the reference made by the AO to DVO is not justified hence, findings recorded by the CIT(A) are not proper. Similarly, the Pune Tribunal in the case of ACIT V. Bhima Daca Kharate I.T.A.No. 1582/PUN/2015 dated 31.10.2017, observed in para 10 as follows: 10. Now, coming to the facts of the present case, the year under reference is assessment year 2009-10 and since the amendment was made effective from 01.07.2012 and the Hon'ble High Court has held. that law which is to be applied in such cases is as existing during assessment year 2009-tOf then the pre- amended provisions of section 55A(a) of the Ant are to 0e applied. In such scenario, there is no merit in the order of Assessing Officer in adopting the cost of acquisition as on 01.04.1981 at the value less than the value shown by the assesses which .in- turn, .is based on, the report of the approved Valuer. , Therefore, The AO v/as not justified in referring to DVO for valuation as on 01,04,1981. Similar ..... X X X X Extracts X X X X X X X X Extracts X X X X
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