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2016 (12) TMI 1280 - GUJARAT HIGH COURTRevision u/s 263 - computing the petitioner’s capital gain - stamp duty valuation - Held that:- No illegality in the order of the Commissioner. Commissioner substantially accepted the grievances of the petitioner. The petitioner’s case that the income did not arise during the Assessment Year 2006–2007 but 2005-06 was accepted. As a natural corollary, the income as contended by the petitioner himself had to be accounted in the year 2005–2006. The petitioner had also contended that there could be no nil cost of acquisition, a contention which the Commissioner accepted. It is only on the background of such facts, the Commissioner also provided that the Assessing Officer would obtain a report from the DVO and adopt the valuation in such report for the purpose of computing the petitioner’s capital gain. What is prejudicial to the assessee must be examined in the background of the facts of the case. Therefore when the Commissioner accepted the assessee’s contention that the income did not pertain to the Assessment Year 2006-2007 but pertained to Assessment Year 2005-2006, he merely accepted the petitioner’s ground. His direction, therefore, not to tax the income for the Assessment Year 2006-2007 but could be tax only for the year 2005-2006, therefore, must be seen in light of the petitioner’s own contention. The direction to adopt a correct cost of acquisition of the property was also in favour of the petitioner by accepting his contention. The further direction for obtaining DVO’s report, in any case, was a passing remark, and as noted, flowed from the provisions contained in Section 50C of the Act. We, therefore, propose no interference in such revisional order. Coming to the validity of the valuation by the DVO, the same obviously cannot be examined in a writ petition jettisoning the appeal provisions contained in the Act. Before deciding to relegate the petitioner to such appellate remedy, we had a cursory glance at such report. Contrary to what the counsel for the petitioner contended before us, the factors of the property being under litigation, there being encumbrances and tenancy was not lost sight of by the DVO. The report elaborately refers to these factors before coming to the final assessment of the valuation. Whether such assessment is correct or not, cannot be a subject matter of a writ petition. We would leave it open to the assessee to avail the appellate remedy. We would, therefore, relegate the petitioner to avail the appellate remedy in which the validity of the report of the DVO would also be the subject matter.
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