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TMI Blog2022 (9) TMI 704X X X X Extracts X X X X X X X X Extracts X X X X ..... n u/s 54B - As in our view the facts necessary for consideration of additional claim was available on record. Considering the fact that the assessee has raised this ground first time before the ld. CIT(A), therefore, we find merit in the submissions of ld AR for the assessee that the appellate authorities have jurisdiction to admit the additional grounds/ claim, thus, we admit the additional grounds of appeal. Our view gets support from the decision of Hon ble Apex Court in Goetz India Ltd [ 2006 (3) TMI 75 - SUPREME COURT] Prithivi Brokers Share Holders (P) Ltd. [ 2012 (7) TMI 158 - BOMBAY HIGH COURT] also held that Tribunal have jurisdiction to consider the additional claim and discretion to permit additional ground by way of additional claims. Such claims need not to be those which became available on account of change of circumstances of law but which was even available when return was filed - we admit the additional ground of appeal of the assessee for just decision of the case under section 54B and direct the assessing officer to examine the fact and grant the benefit to the assessee under section 54B, as per law. Ground of appeal is allowed for statistical purpose. X X X X Extracts X X X X X X X X Extracts X X X X ..... roperty, therefore, he received consideration of Rs. 40.00 lacs. On further perusal of computation of income and working of long term capital gain, the Assessing officer noted that the assessee has claimed that the said land as ancestral land and fair market value of land as on 01/4/1981 was estimated at Rs. 15.00 lacs on the basis of registered valuer report for the purpose of calculating long term capital gain. The cost of acquisition for assessee's share was estimated at Rs. 5.00 lacs and after indexation, long term capital gain of Rs. 75,000 was offered by assessee in the return of income. The Assessing officer on perusal of valuation report, was of the view that the registered valuer has shown the value at the higher side as on 01/4/1981. The Assessing Officer made reference to district valuation officer (DVO) under Section 55A of the Income Tax Act, 1961 (in short the Act) vide reference dated 26/03/2015. The DVO valued the fair market value of land at Rs. 46,350/- as on 01/4/1981. The assessee being 1/3rd owner of land, so the cost of land of assessee's share comes to Rs. 15,450/- and on applying the indexation cost, the Assessing officer was of the view that the assessee ea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the fair market value of asset exists the value of asset by more than Rs. 25,000/- or 15% of value claimed by assessee whichever is less. As per provisions of Section 55A(b)(i) r.w.Rule 111AA and where the Assessing Officer is of the opinion that having regard to the nature of asset and relevant circumstances it is necessary to make reference to valuation officer. In other words, the Assessing Officer was entitled to make reference to valuation officer only if the Assessing Officer was of the opinion that the value of asset claimed by assessee is less than the fair market value. The assessee claimed value of property as per the registered value's report, therefore, clause (a) of Section 55A could not be made applicable and clause (b) of Section 55A can be invoked only in any other case, namely when value of asset is not supported by estimate made by registered valuer. The assessee further stated that the amendment made in Section 55A is effected from 01/7/2012 and is not retrospective in nature. Hence, for the period prior to 01/07/2012, the law is existed during the assessment year to be taken into consideration. The assessee also relied on the case law of Hon'ble Bombay High ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pital asset as on 01/4/1981, for the cost of asset and if so, the Assessing Officer was of the view that such fair market value declared by assessee was more, he cannot make a reference to valuation officer. The amended provision is applicable from 01/7/2012 meaning thereby the Assessing Officer can make reference to the valuation officer in respect of any assessment pending after 01/7/2012, thus the contention of assessee that reference to DVO is erroneous and misplaced. The reference was rightly made by Assessing Officer as per amended provisions to Section 55A of the Act. On the value suggested/adopted by the government valuer, the ld. CIT(A) held that the valuation officer in his report has mentioned that the report of registered valuer is not reliable. As he has adopted rate @ Rs. 100 per Square meter as on 01/4/1981 without substantial proof and no comparable instances were referred. The assessee has not filed any objection against the proposed addition by the assessing officer. 7. On the additional ground of deduction under Section 54B of the Act, the ld. CIT(A) held that this ground of appeal does not arise from the assessment order. The grounds of appeal can be raised onl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... contention of assessee has clearly held that the Assessing Officer could make reference to the valuation officer in respect of any assessment pending before him after 01/7/2012. 10. We have considered the rival submissions of both the parties and perused the material placed on record. We find that there is no dispute that the assessee has transferred the impugned land prior to 01/7/2012. The assessee while computing the capital gain adopted the fair market value then the value adopted by Assessing Officer. We find that on similar ground of appeal, the Coordinate Bench of Ahmedabad Tribunal in Kantilal Manilal Patel Vs ITO (supra) almost all similar fact while following the decision of Hon'ble Gujarat High Court in CIT Vs Gauranginiben S. Shodhan, Indl. (supra) passed the following order: "10. As far as merit of the addition is concerned, we find that the assessee has calculated long term capital by taking cost of acquisition as on 1.4.1981 on the basis of registered valuer's report. Hon'ble Gujarat High Court in the case of CIT Vs. Gauranginiben S. Shodhan, Indl., 45 taxmann.com 356 (Guj) has observed that if value declared by an assessee as on 1.4.1981 is more than the fair ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (a) of section 55A of the Act and the Assessing Officer could not have resorted to clause (b) thereof as held by the Division Bench of this Court in the case of Hiaben Jayantilal Shah v. 1TO [20091 310 ITR31/181 Taxman 191 (Guj.) In the said decision, it was held and observed as under:- "10. Under clause(a) of sec. 55A of the Act under the Assessing Officer is entitled to make the reference to the Valuation Officer in a case where the value of the asset as claimed by the assessee is in accordance with the estimate made by the Registered Valuer, if the Assessing Officer is of the opinion that the value so claimed is less than the fair market value. In any other case, as provided under clause(b) of Sec. 55 A of the Act, the Assessing Officer has to record an opinion that (i) the fair market value of the asset exceeds the value of the asset as claimed by the assessee by more than such percentage or by more than such an amount as may be prescribed; or (ii) having regard to the nature of the asset and other relevant circumstances, it is necessary to make such a reference." 17. In the result, we see no reason to interfere. However, we have given our independent reasons and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 1.4.1981 is far more than fair market value. The ld.AO is therefore directed to recompute capital by adopting fair market value adopted by the assessee as on 1.4.1981 on the basis of registered valuer's report. This ground of appeal is allowed." 12. Since the assessee has transferred his land prior to 1.7.2012, even the amended proviso is not applicable on merit also. Addition by reducing the cost of acquisition on the basis of DVO's report cannot be made. In view of the above discussion, we allow the appeal of the assessee and quash the re-assessment order." 11. Considering the aforesaid factual and legal discussion and by respectfully following the decision of Hon'ble Gujarat High Court in CIT Vs Gauranginiben S. Shodhan (supra) and the decision of Coordinate Bench of Ahmedabad Tribunal in Kantilal Manilal Patel Vs ITO (supra), we hold that the assessee has transferred his land prior to 01/7/2012 and the amended provision of Section 55A is not applicable on the facts of assessee, thus, the reduction in the cost of acquisition on the basis of report of DVO cannot be made applicable on the assessee. Thus, the assessing officer is directed to delete the additions of long term ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d merit in the submissions of ld AR for the assessee that the appellate authorities have jurisdiction to admit the additional grounds/ claim, thus, we admit the additional grounds of appeal. Our view gets support from the decision of Hon'ble Apex Court in Goetz India Ltd. (284 ITR 323 SC). 15. Further, the Hon'ble Jurisdictional High Court in CIT Vs Mitesh Impex (2014) 367 ITR 85 (Guj)/ 46 taxmann.com 30 (Guj) and Hon'ble Bombay High Court in CIT Vs. Prithivi Brokers & Share Holders (P) Ltd. 349 ITR 336/208 Taxman 498 (Bom) also held that Tribunal have jurisdiction to consider the additional claim and discretion to permit additional ground by way of additional claims. Such claims need not to be those which became available on account of change of circumstances of law but which was even available when return was filed. (Emphasis added by us). Considering the aforesaid facts and the legal position, we admit the additional ground of appeal of the assessee for just decision of the case under section 54B and direct the assessing officer to examine the fact and grant the benefit to the assessee under section 54B, as per law. Needless to direct that before passing the order the assessing ..... X X X X Extracts X X X X X X X X Extracts X X X X
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