TMI Blog2014 (2) TMI 1286X X X X Extracts X X X X X X X X Extracts X X X X ..... arging of interest u/s. 234A and 234B - Held that:- We find that assessee had taken specific ground about charging of interest of ₹ 1.54 and 2.54 lacs respectively u/s. 234A and 234B of the Act. We find that while deciding the appeal, FAA has not decided the issue, therefore, in the interest of justice we restore back the issue to the file of the FAA for fresh adjudication. - Decided in favour of the assessee in part. - ITA No. 1470/Mum/2012 - - - Dated:- 19-2-2014 - B. R. Mittal (Judicial Member) And Rajendra (Accountant Member) For the Assessee : Neel Kanth Khandelwal For the Revenue : Pitambar Das ORDER Rajendra (Accountant Member) Challenging the order dated 17/1/2012 of CIT(A)-28, Mumbai, assessee has f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsufficient. 5.He has further erred in not considering the ground with regard to charge of interest u/s.234A 234B though specifically taken in grounds of appeal filed before him. No reasons have been assigned for not considering of the same. 6.Order passed is bad in law and contrary to the provision of the Act. 7.The appellant craves leave to add, alter and or modify the grounds of appeal. Assessee, an individual, filed his return of income on 30/3/2010 declaring total income of ₹ 3.77 lakhs. Assessing officer(AO)finalised the assessment on 29/12/2010 determining the total income of the assessee at ₹ 35.25 lakhs. First four grounds of appeal are about valuation of property and reference made by the AO to the Valuat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... value estimated by the VO of the i.e.at ₹ 4.59 lakhs in place of cost of acquisition worked out by the assessee at ₹ 7,31,000/-. 2. 1. Aggrieved by the order of the AO, assessee filed an appeal before the First Appellate Authority (FAA).After considering the judgment of the Hon ble Bombay High Court in the case of Manjula J Shah he held that the plea of the assessee in respect of indexation from 01.04.1981 had to be accepted, that the previous owner had acquired the impugned asset on 02.07.1965 and therefore, u/s.49(1) of the Act, assessee was entitled to take cost of acquisition as on 01.04. 1981.He directed the AO to allow the relief accordingly. As regards assessee s objection for adopting the reduced value for cost of acq ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted value as on 01.04.1981. 2.2. Before us, Authorised Representative(AR)submitted that reference to the VO itself was not proper and was invalid as the assessee had shown higher cost of acquisition as on 01.04.1981 than adopted by the valuation officer and AO could not have come to conclusion that Fair Market Value of the property was being suppressed, that the FAA was not justified in holding that reference to the VO was a technical mistake, that value adopted by the FAA was against the provisions of the law. He relied upon the decision of Puja Printers (360ITR 697) delivered by the Hon ble Bombay High Court. Departmental Representative (DR) supported the order of the FA 2.3. We have heard the rival submissions and perused the material ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ious partnership deeds entered into by the partners of the assessee. To determine the issue of the date of first acquisition of the property by the firm, the issue was restored to the Assessing Officer. In case the Assessing Officer concluded that the assessee was holding the property with effect from April 2, 1981, the Assessing Officer was to accept the valuation given by the assessee and work out its capital gains. On appeal: Held: dismissing the appeal, (i)that there was no dispute that the value adopted by the assessee of the property at ₹ 35.99 lakhs was much more than the fair market value of ₹ 6.68 lakhs even as determined by the Departmental Valuation Officer. In fact, the Assessing Officer referred the issue of valuati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reference to the VO can be made only when value adopted by the assessee is less than the Fair Market Value. We find that FAA had held that reference by the AO to the VO was against the provisions of law. If he was of the opinion that reference made by the AO was contrary to the provisions of Act, he should not have referred to the Valuation Report of the VO and should not have adopted Fair Market Value as indicated by the VO. We are not able to endorse his views, therefore, ground no. 1 to 4 are decided in favour of the assessee. Ground No.5 is about charging of interest u/s. 234 and 234B of the Act, we find that assessee had taken specific ground about charging of interest of ₹ 1.54 and 2.54 lacs respectively u/s. 234A and 234B o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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