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TMI Blog2015 (8) TMI 770X X X X Extracts X X X X X X X X Extracts X X X X ..... ed Properties and Investment Private Limited, represented by its Director, Sri Sameer A Khan. The property to be developed was comprising of a total area of 35,887 sq.ft., out of which, 12,377 sq.ft. was the share of assessee, Sri Sharooq Ali Khan; 14,538 sq.ft. was the share of Sri Sameer A Khan (which was gifted to him by the assessee, Sri Sharooq Ali Khan); and 8,972 sq.ft. belonged to M/s Ashed Properties and Investment Private Limited. For the assessment year 2004-05, the assesee declared capital gain of Rs. 6,95,446/- after taking into account the consideration in the form of three flats falling in his share, as per the JDA and also the corresponding undivided interest in the property. The Assessing Officer, after obtaining the valua ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the Assessing Officer before calling for the valuation report, the same could not have been relied upon. The Tribunal further found that the assessee had transferred only 8,434 sq.ft. of undivided interest in exchange of three flats measuring 9,747 sq.ft. along with 527 sq.ft. of undivided interest of the adjoining land and thus allowed the appeal of the assessee and accepted the return of income filed by the assessee. Challenging the said order, this appeal has been filed by the Revenue, which has been admitted on following questions of law: 1. Whether the Tribunal was correct in holding that the Assessing Officer has to form an opinion that the property is under valued before sending it to the valuation officer which had not been done ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ict Valuation Officer cannot be justified in law. In our opinion, what is to be primarily considered is that whether the valuation report was required in the facts of the present case or not. Admittedly, there was no valuation report of a registered Valuer submitted by the assessee with regard to the valuation of the three flats in question. It is correct that the Assessing Officer had wrongly sought the report under section 142-A of the Act, whereas it ought to have been called under section 55-A of the Act which provides for the Assessing Officer to be first of the opinion that the fair market value of the asset exceeds by more than 15% of the value of the asset as claimed by the assessee, for which reasons ought to have been recorded by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ngs recorded by the Assessing Officer as well as the appellate Commissioner in this regard have not been properly appreciated by the Tribunal. As such, we answer the second question in favour of the Revenue and against the assessee. However, keeping in view the totality of circumstances, the entire matter is referred back to the Assessing Officer for fresh computation, in accordance with law, after considering the matter relating to obtaining of valuation report with regard to the asset in question under section 55-A of the Act as well as valuation of the property transferred in favour of the assessee including the three flats and also the corresponding undivided interest in the property. Appeal stands disposed of in terms as mentioned af ..... X X X X Extracts X X X X X X X X Extracts X X X X
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