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TMI Blog2021 (7) TMI 246X X X X Extracts X X X X X X X X Extracts X X X X ..... ubmits that the assessee vide adopting value of asset on higher rate than the fair market value and the amendment made in section 55A w.e.f. 01.07.2012 is not applicable. As relieng upon the decision of Pooja Prints[ 2014 (1) TMI 764 - BOMBAY HIGH COURT] and CIT Vs Gaurngiben S Shodhan. [ 2014 (2) TMI 78 - GUJARAT HIGH COURT] wherein it was held that the amended provision of section 55A is not retrospective. Further, we find that in similar said of fact this combination in Jagrutiben V. Patel [ 2020 (11) TMI 991 - ITAT SURAT] from points the following order. Considering the aforesaid factual and legal discussion and keeping in view the binding decision of jurisdictional High Court in Jagrutiben V. Patel (supra) Hon ble Bombay High in Pooja Prints (supra) that amended provision of section 55A is not applicable on the transaction made prior to 01.07.2012. - Decided in favour of assessee. X X X X Extracts X X X X X X X X Extracts X X X X ..... r the assessee submits though the appeal was filed immediately on receipt of the order from accountant before ore this Tribunal. However, there is delay of 29 days in filing appeal. The Ld. AR submits that in filing appeal in time before the Tribunal was not intentional or deliberate. The assessee would not get any benefit in filing the appeal related to. The Ld. AR submits that a liberal view may be taken and the delay in filing appeal and the delay may be condoned. 5. On the other hand, the Ld. Departmental Representative (DR) for the Revenue submits that the application is not supported with the affidavit of accountant or the present AR for assessee. The assessee has not explained the delay properly in filing this appeal. The Ld. DR for the revenue submits that the assessee has taken a casual approach and the application for condonation may be rejected. 6. We have considered the rival submissions of the parties considering the fact that the delay in filing appeal before the Tribunal is neither intentional nor deliberate but due to the fault and casual approach of the accountant of assessee. Further the assessee will not get any benefit in filing the appeal belatedly. Therefo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hough objected for estimation made by DVO. However, the assessee made further prayed for allowing the claim of deduction under section 54B and 54F in respect of newly constructed house property and for purchase of anther agriculture land. The AO rejected the claim of deduction under section 54B and 54F on the ground that no such claim was raised in return of income and that the land sold was not been used for agriculture land in in last two years immediately from the sale of land. The A.O. made addition of long term capital gain of ₹ 22,34,944/-. 9. Aggrieved by the action of AO, the assessee filed appeal before CIT(A). Before CIT(A), the assessee filed detailed written submission, the submission of the assessee in referred para 5 of order of CIT(A). Before Ld. CIT(A), the assessee contended that the assessee adopted value of land as on 01.04.1981 @ ₹ 300 per sq. mtr on the basis of valuation report of Government approved valuer. The Government approved valuer report was based on legal and sound principles, whereas, the Assessing Officer collected sale instances for Sub-Registrar office in the year 1981 and adopted value @ 94.45 per sq. mtr only. On the basis of discre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onstruction, was contract labour, bricks etc. pollution under certificate (PUC), furnished. The assessee only provided measurement sheet on which no name of contractor is mentioned. 11. The assessee in its objection stated that the assessee is holding property No. 87A-01-4551-0-001 and furnished the copy of assessment notice of Surat Municipal Corporation (SMC) dated 04.03.2013 and contended that the assessee demolished the own structure and new residence/construction on the same place. Therefore, the SMC revised property tax, after completion of the procedure, the said from new residence. Regarding the discrepancies in the electricity connection the assessee submitted that it is a number of new connection. Against the objection of AO, assessee has not purchased new property the assessee sated that he constructed new structure after demolishing the earlier structure. The Ld. CIT(A) after considering the contention of the assessee held that during the appellate proceedings, the assessee not press the claim of deduction under section 54B, therefore, the said claim treated as dismissed. However, with regard the other deduction under section 54F, the Ld. CIT(A) concluded that the ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atel v. ITO in ITA No. 650 & 651/Ahd/2017 dated 27.11.2020. The Ld. AR for the assessee to strengthened his submission also relied upon the decision of Hon'ble Gujarat High Court in CIT v. CIT v/s Gauranginiben S. Sodhan [367 ITR 238 (Guj.)] and Hon'ble Bombay High Court in CIT Vs Pooja Prints [360 ITR 697 (Bom.)]. The Ld. AR submits that the decision of jurisdictional High Court and has been followed in number of decisions. The Ld. AR for the assessee submits that since the amended provision of section 55A is not applicable on the transaction undertaken by assessee. Therefore, the addition made by AO and upheld by Ld. CIT(A) are liable to be rejected. 14. On the other hand, the Ld. DR of the Revenue supported the order of lower authorities. The Ld. DR further submits that the assessee during the assessment proceedings requested for valuation suggested by DVO in his co-owner's case. Now he cannot object or call the action of A.O. into question. The assessee is estopped from raising further objection against his own stand before the AO. The Ld. DR for the Revenue further submits that as per section 115 of Evidence Act, the assessee has estopped from objecting of report of DVO. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mendment made in section 55A w.e.f. 01.07.2012 is not applicable. The Ld. AR for the assessee also relied upon the decision of Co-ordinate Bench and Hon'ble Bombay High in Pooja Prints (supra) and Jurisdictional High Court in CIT Vs Gaurngiben S Shodhan (supra) wherein it was held that the amended provision of section 55A is not retrospective. Further, we find that in similar said of fact this combination in Jagrutiben V. Patel (supra) from points the following order. Considering the aforesaid factual and legal discussion and keeping in view the binding decision of jurisdictional High Court in Jagrutiben V. Patel (supra) Hon'ble Bombay High in Pooja Prints (supra) that amended provision of section 55A is not applicable on the transaction made prior to 01.07.2012. We have further noted that on similar set of fact, in Ranchodbhai C Patel in ITA No. 821/AHD/2016, this combination passed the following order: "6. We have heard the submission of learned authorised representative of assessee and the learned Department of representative for revenue. We have also gone through the orders of lower authorities carefully. We learned of the assessee submits that he has raised purely a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... High Court in CIT Versus Gauranginiben S Shodhan (supra) and the decision of Bombay High Court in Commissioner of Income Tax Versus Pooja Prints (supra) passed the following order ; "13. We have heard the rival contentions and perused the material available on record. The relevant provisions which are under consideration are contained in section 55A, it would, therefore, be relevant to refer to the said provisions which reads as under: "55A. With a view to ascertaining the fair market value of a capital asset for the purposes of this Chapter, the Assessing Officer may refer the valuation of capital asset to a Valuation Officer- (a) in a case where the value of the asset as claimed by the assessee is in accordance with the estimate made by a registered valuer, if the assessing Officer is of opinion that the value so claimed is at variance with its fair market value; (b) in any other case, if the Assessing Officer is of 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) t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he estimate made by the registered valuer. The third condition is that the Assessing Officer should form an opinion that the value so claimed by the assessee is less than its fair market value (as per unamended provisions) or is at variance with its fair market value (as per the amended provisions). The formation of the opinion by the Assessing officer therefore has to be seen and examined in the context of determining the liability towards the capital gains and the liability towards the capital gains can be examined during the course of assessment proceedings. Therefore, the formation of the opinion by the Assessing officer has to be during the course of assessment proceedings and not prior or subsequent to the completion of the assessment proceedings. As per the unamended provisions, the Assessing officer has to form an opinion that the value so claimed by the assessee is less than its fair market value. Therefore, only in a scenario, the value so claimed by the assessee of the capital asset is less than its fair market value in the opinion of the Assessing officer, the matter can be referred to the valuation officer. In a scenario, where the value so claimed by the assessee is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Assessing Officer to make a reference to the Valuation Officer where in his opinion the value declared by the assessee is at variance from the fair market value. Therefore, in case where the Assessing Officer is of the opinion that the value taken by the assessee as on 1-4-1981 is higher than the fair market value of the asset as on that date, the Assessing Officer would be enabled to make a reference to the Valuation Officer for determining the fair market value of the property. This amendment will take effect from 1st day of July, 2012." Therefore, the intent and purpose behind the amendment is to enable the Assessing officer to make a reference to the Valuation officer where he is of the opinion that the value adopted by the assessee as on 1-4-1981 is higher than the fair market value of the asset as on that date and in order to check whether the adoption of a higher value for the cost of the asset as the fair market value as on 1st April, 1981, has lead to a lower amount of capital gains being offered for tax. It is therefore an empowering provision wherein the Assessing officer has been given requisite power and authority w.e.f 1.07.2012 to refer the matter relating to va ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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.e. a case not covered by Section 55A(a) of the Act. In this case, it is an undisputable position that the issue is covered by Section 55A(a) of the Act. Therefore, resort cannot be had to the residuary clause provided in Section 55A(b)(ii) of the Act. In view of the above, the CBDT ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ir market value as on 1.4.1981. It would not be the case of the Assessing Officer that the value of the asset shown as on 1.4.1981 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 1.4.1981. We are conscious that with effect from 1.7.2012, the expression now used in clause (a) of section 55A is "is at variance with its fair market value". Thesituation may, therefore, be different after 1.7.2012. We are, however, concerned with the period prior thereto. Clause (b) of section 55A is in two parts and permits a reference to DVO if the Assessing Officer is of the opinion that (i) the fair market value of the asset exceeds the value of the asset so claimed by the assessee by more than such percentage of the value of the asset 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. Sub-clause(i) of clause (b) also for the same reasons recorded above, would have no bearing onthe fair market value as on 1.4.1981. The Assessing Officer had not resorted to sub-claus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court has reiterated the legal position that for the transaction falling in financial year 2010-11 relevant to AY 2011-12, the matter is covered by the earlier decision in case of Gauranginiben S. Shodhan Indl. (supra). We therefore find that there is convergence of view as evident from these decisions of Hon'ble Bombay and Hon'ble Gujarat High Court that the amendment brought in by the Finance Act, 2012 in section 55A(a) has to be read prospectively and not retrospectively. Secondly, such amendment shall apply to transactions (subject matter of determination of capital gains) which are effected during the period starting on or after 1.07.2012. No contrary High Court decision has been cited before us and in any case, the decision of the Hon'ble Gujarat High Court, being the jurisdictional High Court is binding on us. 24. Further, we find that the Coordinate Benches are also of the consistent view and having been following the legal proposition so laid down by the Hon'ble Bombay and Gujarat High Court. The Coordinate Bench in case of Sonali Roy (supra) drawing support from the decision of the Hon'ble Supreme Court in case of Karimtharuvi Tea Estate (supra) has further clarifie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under the head "long term capital gains" so far as it relates to cost of acquisition as substituted by fair market value as on 1.4.1981 is directed to be deleted. In the result, the appeal of the assessee is allowed." 10. Considering the decision of co-ordinate bench of Tribunal on almost similar set of fact while considering the similar contention of assessee in the said held that when the transaction of sale of land was taken during the financial year 2011-12 relevant to the assessment year 2012 -13, the amended provision of section 55A(a) would not be applicable and one shall be guided by the wrest while provision of unamended section 55 A(a) of the Act. Therefore, respectfully following the same, we allow the ground No. 1 raised by the assessee. No contrary facts or law is brought to our notice to take other view." 17. We further find, similar order was passed in Nanubhai Ahir Vs ITO (ITA No. 2289/AHD/2016. Thus, considering the aforesaid factual and legal discussion and keeping in view the binding decision of jurisdictional High Court in Gauranginiben S. Sodhan (supra) and Hon'ble Bombay High Court in CIT vs Pooja Prints (supra) and decision of this combination as referred ..... X X X X Extracts X X X X X X X X Extracts X X X X
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