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2023 (12) TMI 923 - AT - Income TaxValidity of notice issued u/s 143(2) - validity of the assessment order in absence of any effective order passed u/s 127 - HELD THAT:- We notice that the present issues are covered against the assessee in view of the Hon’ble Supreme Court judgment in the case of Kalinga Institute of Industrial Technology [2023 (6) TMI 1076 - SC ORDER] wherein as held that when assessee had participated pursuance to the notice issued u/s 142(1) and had not questioned the jurisdiction of the assessing officer as per section 124(3)(a) of the I.T. Act precludes the assessee from questioning the jurisdiction of the assessing officer. While going through the present facts of the case and issue involved, we find that assessee has never raised any question before the AO challenging the jurisdiction of AO within 30 days of receipt of notice u/s 142(1) of the Act as well as transfer of jurisdiction u/s 127 of the Act. In such circumstances both the grounds taken by the assessee has no merit, therefore, the grounds taken by the assessee are hereby dismissed. Applicability of section 43CA - valuation of impugned sold out units as determined by the AO in terms of value determined by the stamp duty authority - whether agreement of sale was entered prior to applicability of the provision itself by the Finance Act, 2013 w.e.f. A.Y. 2014-15? - HELD THAT:- When the impugned order was passed by the ld. CIT(A) did not consider the DVO’s report as available with him while passing the impugned order, we feel it necessary to remand back the instant issue to the file of AO with the direction to reconsider the valuation report furnished by DVO by applying proposition of law as laid down in the case of Maria Fernandes Cheryl vs ITO [2021 (1) TMI 620 - ITAT MUMBAI] and also considering the documents as well as necessary submission made by the assessee before him and it is also directed that while doing so the ld. AO should give opportunity of being heard to the assessee. In terms of above, the instant issue is hereby allowed for statistical purposes. DVO’s report in the case of assessee was furnished beyond the limitation period as prescribed under the law, therefore, the DVO’s report cannot be considered for the purpose of assessing the income of the assessee - While going through the impugned order, we notice that DVO’s report was never taking into consideration for the purpose of assessing the income of the assessee by the authority below and while going to the facts and circumstances of the case, we find that present issue involved in this appeal is similar to the decision [supra] would apply mutantis mutandis. Accordingly, we set aside the matter to the file of AO with a direction to decide the issue afresh. Both the appeals of the assessee are hereby allowed for statistical purposes.
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