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TMI Blog2012 (11) TMI 790X X X X Extracts X X X X X X X X Extracts X X X X ..... sment was completed at an income of Rs.83,71,170/- including the addition on capital gain of Rs.83,70,958/- and disallowance of deduction of Rs.1,00,000/- being 1/4th of Rs.4,00,000/- on account of expenditure on transfer of capital asset, vide order dated 31.12.2009 passed u/s 143(3) of the Income Tax Act, 1961 (in short the Act). On appeal, the ld. CIT(A) allowed the relief to the assessee on both the issues. 3. Being aggrieved by the order of the ld. CIT(A) the Revenue is in appeal before us. 4. Ground No.1 reads as under : "1.(i) On the facts and in the circumstances of the case and in law, the Ld. CTT(A) erred in holding that the provisions of section 55A(b)(ii) of the IT Act invoked by the assessee is invalid as per Law. In doing s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nti lal Shah V/s ITO (310 ITR 31)(Gui.), (b) Ms. Rubab M. Kazerani V/s JCIT (97 TTJ (Mumbai) (TM)698), (c) ITO V/s Smt. Lalitaben B. Kapadia (115 TTJ (Mum) 938), (d) Smt. Krishnabai Tingre V/s ITO (101 ITD 317)(Mum), (e) Saj jankumar Harlalka V/s JCIT (284 ITR 156)(AT) and (f) Urmila Bawa V/s ACIT (11 SOT 661)(Del) held that the reference made u/s 55A is invalid and accordingly directed the AO to adopt the sale consideration value as shown by the appellant and take the Fair Market Value as on 1.4.1981 at Rs.16,26,121/- for the value given by the DVO. 6. At the time of hearing, the ld. DR while relying on the order of the AO submits that in view of the decisions of the Co-ordinate Benches of the Tribunal in the case of Vijaykumar N.Shah V/s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y in the order. Consequently, the order passed by the Commissioner (Appeals) is upheld. Revenue fails on this ground." 9. In both cases relied on by the ld. DR, the Tribunal held that the AO is empowered to make reference under sub-clause (ii) of section 55A(b), even in cases where FMV claimed by the assessee is higher than actual fair market value, if conditions specified in said sub-clause (ii) relating to having regard to asset and other relevant circumstances is met. 10. Whereas in the case before us in the case of co-owner of the property Ms. Pushpalata R. Kaware(supra), the Tribunal has upheld the order of the ld. CIT(A) following the decisions of the coordinate benches of the Tribunal and by the Hon'ble Jurisdictional High Court. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 17 (Pune) (TM) wherein it has been held that reference to DVO can only be made in cases where the value of capital asset shown by the assessee is less than its fair market value of land as on 1st April, 1981 shown by the assessee on the basis of approved valuers's report being more than its fair market value, reference under S. 35A was not valid. Respectfully following the propositions laid down these two cases by the coordinate benches we uphold the contention of the assessee and hold that the reference made by the Assessing Officer to the DVO u/s. 55A in the peculiar facts and circumstances of the case is bad in law. Thus, on the sole grounds of appeal of the assessee has to be allowed. 6. Before passing, we have to mention that the ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ictional High Court so as to avoid its binding effect." 14. Respectfully following the decisions of the Coordinate Benches of the Tribunal including the decision of the Tribunal in assessee's co-owner's case in respect of the same property and the decision of the Hon'ble Jurisdictional High Court which is binding on the Tribunal we are inclined to uphold the findings of the ld. CIT(A) in directing the AO to adopt the sale consideration value as shown by the assessee as on 1.4.1981 amounting to Rs.16,26,121/- for the value given by the DVO. The grounds taken by the Revenue are, therefore, rejected. 15. Ground No. 1(i i) and 2 read as under: "ii) On the facts and in the circumstances of the case and in law, the Ld. CIT(A) has erred in dire ..... X X X X Extracts X X X X X X X X Extracts X X X X
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