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TMI Blog2012 (11) TMI 790X X X X Extracts X X X X X X X X Extracts X X X X ..... disallowed the claim of the assessee for the deduction of Lawyer fees of Rs.4,00,000/-, the assessee’s share being Rs.1,00,000/- from the sale proceeds of the property – matter remanded to AO - ITA No.5601/Mum/2010 - - - Dated:- 11-1-2012 - SHRI D.K.AGARWAL AND PRAMOD KUMAR, JJ. Appellant by : Shri C.G.K.Nair Respondent by : Shri Vishwas V.Mehendale ORDER PER D.K.AGARWAL (JM) This appeal preferred by the Revenue is directed against the order dated 8.4.2010 passed by the ld. CIT(A) for the Assessment Year 2007-08. 2. Briefly stated facts of the case are that the assessee an individual derives income from capital gain and other sources, fi led return declaring total income at Rs.2,40,320/- including long term ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ict Valuation Officer u/s 55A((b)(i). Such value was to be determined on the date of sale on 17.3.2007 and also on 1.4.1981. The District Valuation Officer vide his report dated 29.12.2009 has arrived at the following valuations: (i) Value as on 17.3.2007 for Rs.3,64,48,403/- (ii) Value as on 1.4.1981 for Rs.5,71,208/- After giving the opportunity to the assessee in this regard wherein the assessee has objected to the valuations adopted by the DVO and has noted various reasons for the same, the AO computed the assessee s share of capital gains amounting to Rs.83,70,958/- by taking the sale consideration at Rs.3,64,48,403/- and cost of acquisition being Fair Market Value as on 1.4.1981 at Rs.5,71,208/-. On appeal, the ld. CIT(A) afte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wherein the Tribunal has upheld the order of the ld. CIT(A) in holding that the reference made u/s 55A was invalid. He, therefore, submits that the order passed by the ld. CIT(A) be upheld. 8. We have carefully considered the submissions of the rival parties and perused the material available on record. We find that the facts are not in dispute inasmuch as it is also not in dispute that the Tribunal in the case of one of the co-owners of the property namely Ms. Pushpalata R. Kaware(supra) has upheld the order of the ld. CIT(A) vide findings recorded in paragraph 3 of its order which are reproduced below : 3. Since the Commissioner (Appeals) has followed the decision of Jurisdictional Tribunal, which proposition was also upheld by the H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the A.O was not justified in making a reference under sec. 55A of the Act to the DVO for determination of the fair market value of the property? have observed and held as under:- 4. The Tribunal in its order dated 23rd July, 2004 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 the assessee and against the Revenue by the judgment in the case of Rubab M. Kazerani reported in 91 ITD 429 (Mum) . Further the assessee also covered by the Third Member decision of the Pune Bench of the Tribunal, the case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... extile Corporation Ltd. (M.P.) V/s CIT (2011) 338 ITR 371 (MP) it has been observed and held (page 371): Held accordingly, that the Tribunal had no jurisdiction to comment upon the decision of the jurisdictional High Court and in particular the manner in which it was rendered nor had jurisdiction to ignore the decision. It was for the reason that, firstly, it was a decision rendered by the jurisdictional High Court. Secondly, the Tribunal was functioning in the same State and subordinate to the High Court. Thirdly, the Tribunal had no jurisdiction to hold that the decision of the High Court was per incuriam. Though the Tribunal did not say so in so many words in effect it amounted to such a declaration. Fourthly, the Tribunal had also ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppeal, the ld. CIT(A) while accepting the claim of the assessee as genuine directed the AO to al low the claim of the assessee of Rs.1,00,000/-. 17. At the time of hearing, on the issue of deduction of lawyer fees, both the parties have agreed that in view of the order of the Tribunal in the case of the Pushpalata R. Kaware(supra), the issue may be set aside to the fi le of the AO to examine the same afresh. 18. After carefully hearing the parties, we find that the Tribunal in the case of the co-owner of the property has restored back the issue to the file of the AO for allowability of deduction of Lawyer s fees of Rs.1,00,000/- incurred by the assessee. Following the same view, we set aside the order passed by the Revenue authorities o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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