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TMI Blog2013 (6) TMI 551X X X X Extracts X X X X X X X X Extracts X X X X ..... e the addition of Rs. 30,03,122, which was based on DVO's report by holding that the Assessing Officer has no jurisdiction to refer the matter to the valuation officer under section 55A ignoring the fact that the fair market value of the property differs by more than 15%. 3. Facts in brief:- The assessee was 1/4th owner of the plot bearing CTS no.480/481/1, having area of 298479.26 sq.ft. situated at Ranisati Market, Malad (East). The assessee and other co-owners had entered into a development agreement dated 14th October 2003, with M/s. K. Raheja Universal Pvt. Ltd. after converting the land into stock-in-trade in the financial year 2003-04 and valued the same at Rs. 7,37,50,000. During the year, the assessee has offered sale proceeds of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r:- "I have gone through the contents of impugned assessment order, grounds of appeal and written submissions and arguments of the appellant's authorised representative on this issue, including the case laws, I find force in the arguments and submissions of the Ld. Authorized Representative on this issue that the Assessing Officer has no jurisdiction u/s 55A(a) of the LT. Act, 1961 to refer the valuation as on 01/04/1 981 to the DVO in case where he is not of the opinion that the FMV disclosed by the appellant is lower than the actual FMV as on 1.4.19811. The appellant has relied on many of the decisions but I find that appellant's case is squarely covered by the decision of Hon'ble Third Member in the case of Ms. Rubab M. Kazerani v/s JCI ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Officer as well as of the learned Commissioner (Appeals). For making a reference to the DVO, the Assessing Officer has to form an opinion that the fair market value of the asset exceeds the value of the asset as claimed by the assessee by more than 15%. The assessee had shown the value as on 1st April 1981, based on the detail working which has not been found to be wrong by the Assessing Officer. The assessee has taken the rate of Rs. 190 per sq.ft. as on 1st April 1981, based on certain evidence. The Assessing Officer, without any material on record, or forming any opinion as to why the value shown by the assessee as on 1st April 1981, was incorrect or was less than fair market value, has made a reference to the DVO. The scope of referenc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 valuer's report being more than its fair market value, reference under section 55A 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. Before passing, we have to mention that the assessee has submitted the arguments. As on the basis of the legal aspects itself we have decided the issue in favour of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as on 1st April, 1981. Therefore, cl. (a) of s. 55A cannot be made applicable. Clause (b) of s. 55A can be invoked only in any other case, namely when the value of the asset claimed by the assessee is not supported by an estimate made by a registered valuer. In the facts of the present case, cl. (b) of s. 55A also cannot be invoked. Therefore there is no question of having recourse to sub-cl. (ii) of cl. (b) of s. 55A of the Act." 14. In view of the aforesaid decisions, we are of the view that reference by the Assessing Officer to the DVO u/s. 55A for valuation of FMV of the property as on 1.4.1981 is not valid for the reasons that FMV declared by the assessee as per Government registered valuer's report was more than the FMV as estimated ..... X X X X Extracts X X X X X X X X Extracts X X X X
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