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2013 (10) TMI 521 - AT - Income TaxDetermination of Cost of Acquisition of the Plot - Assessment of Long Term Capital Gain - Lack of Adequate Opportunity by the Valuation Officer - Held that:- The DVO had prepared the draft report on 18.12.2009 and vide notice dated 18.12.2009 had fixed the hearing of the case on 28.12.2009 - Assessee had submitted that notice had been received by him on 26.12.2009 which was Saturday followed by two public holidays i.e. Sunday on 27.12.2009 and Muharram on 28.12.2009 - It was thus clear that the DVO had fixed the hearing of the appeal on a public holiday - There was nothing on record to show that assessee had been provided any further opportunity by the DVO as the order had been passed on 30th December 2009 - The DVO had also not considered the value of terrace admeasuring about 600 sq. ft. - The assessee could also provide further material in support of the higher market value if the opportunity had been provided to it which had been done by the DVO - AO had completed the assessment only on the basis of draft valuation report as on the date of order the formal valuation report had not been received by AO - Therefore, in our view the valuation of the property was required to be made a fresh after allowing proper opportunity of hearing to assessee by the DVO - the order of CIT (A) was set aside and the matter was restored to the AO for passing a fresh order after obtaining fresh report from the DVO after hearing assessee. Reference u/s 55A - Whether in the absence of mandatory recording of satisfaction by the AO, there was no justification for making reference u/s 55A - Held that:- There was nothing in the section 55A which debars AO from making reference under clause (b) even when registered valuer report had been filed - In cases where registered valuer report had been filed reference under clause (a) of section 55A can be made if the AO finds the valuation lower than the market value - In any other case, clause (b) was applicable - Therefore, it was clear that clause (b) applies in situations where either no registered valuer report had been filed or if the registered valuer report had been filed but the valued determined was higher than the market value - Thus in case the AO was of the opinion that the value as per the registered valuer was higher than the market value, he could make reference u/s 55A (b) (ii) – Following ACC Ltd. Versus District Valuation Officer [2012 (5) TMI 505 - DELHI HIGH COURT] - the reference made by AO to DVO on the facts of the case was justified and order of CIT (A) on this point was therefore upheld – Decided in favour of Assessee.
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