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2019 (7) TMI 1948 - ITAT AHMEDABADReopening of assessment u/s 147 - undisclosed capital gain - DIT(Investigation) received an information that the assessee had sold a land - revised capital gain filed in response to 148 notice - HELD THAT:- AO has not referred any information which has goad him to form a belief that the income has escaped the assessment. He has just narrated details of transaction and thereafter observed that the assessee shown a capital gain which in his assumption far less on such transaction. In order to eliminate his apprehension or suspicion, he reopened the assessment. But he is not authorized to reopen on such assumption. He has to form his concrete opinion demonstrating the escapement of income. Had he visualized the return filed by the assessee, probably he would not have formed the opinion. Therefore, reopening of the assessment is not in accordance with law, and we quash the reassessment. Capital gain computation - FMV determination - 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. In the case of CIT Vs. Gauranginiben S. Shodhan, Indl [2014 (2) TMI 78 - GUJARAT HIGH COURT] has observed that if value declared by an assessee as on 1.4.1981 is more than the fair market value assumed by the AO for making a reference to the DVO, then he cannot make a reference under section 55A. In the present case, with help of DVO’s report, the ld.AO wants to reduce the cost of acquisition which he cannot do. The second aspect which probably may arise is that section 55A has been amended w.e.f. 1.7.2012 and the assessment proceedings was in seisin when this amendment came. Report of the DVO was of July 17, 2016. Therefore, its cognizance can be taken, but this aspect has also been considered in the case of Shri Babulal S. Solanki [2019 (6) TMI 1680 - ITAT AHMEDABAD] wherein by relying upon the judgment of Hon’ble Bombay High Court [2014 (1) TMI 764 - BOMBAY HIGH COURT], it has been held that this aspect is applicable on the transaction which has taken place after 1.7.2012. In the present case, the assessee has transferred his land on 8.7.2011. 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. Appeal of the assessee is allowed.
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