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2005 (6) TMI 274 - ITAT PUNE-AApplicability of section 55A - Capital Gains - transfer of land - valuation to the DVO - fair market value - HELD THAT:- The reference relied upon by the DR was section 142A which was incorporated with retrospective effect from 15-11-1972. This section inserted for the purpose of making an assessment or reassessment where an estimate of the value of any investment referred to in section 69 or section 69B or the value of any bullion, jewellery or other valuable article referred to in section 69A or 69B is required to be made. So the section is altogether in respect of ascertaining the unexplained investment, unexplained money or the amount in unexplained investment or any expenditure, etc. For that purpose only section 142A is inserted and the Assessing Officer has been given power to refer the matter for the purpose of valuation to the valuation officer. On the other hand, the context for reference to the valuation officer in the present appeal was determination of long-term capital gain, hence, the aforesaid section of Income-tax Act has also been wrongly cited by the learned DR. There is one more argument of learned DR that the reference to the DVO can be made by the Assessing Officer in any other case as prescribed u/s 55A(b) having regard to the nature of the asset and other relevant circumstances if it is necessary so to do. On careful perusal of the Third Member decision, we have noticed that this objection of learned DR was also in that appeal and which was duly answered by the Co-ordinate Bench by holding that neither the Assessing Officer nor the CIT(A) can assume power to give such a direction where the value of the property disclosed by the assessee based upon the approved valuer's report. In our humble opinion, it was rightly held by the ITAT because the wordings of clause (b) are such that "in any other case" if the Assessing Officer is of the opinion that having regard to the nature of the asset it is necessary so to do. So, the cases other than the case whether there is no valuer's report given by the assessee, the Assessing Officer is empowered to make reference under clause (b) of section 55A and not otherwise. With these remarks, we hereby conclude that the issue is directly covered by the decision of Ms. Rubab M. Kazerani's case [2004 (7) TMI 649 - ITAT MUMBAI]. Therefore, we hereby allow the main ground i.e., Ground No. 1 in favour of the assessee quashing the reference made by the Assessing Officer to the DVO. The findings of the authorities below are hereby reversed. In the result, the appeal of the assessee is allowed.
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