TMI Blog2015 (8) TMI 770X X X X Extracts X X X X X X X X Extracts X X X X ..... essee 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 the Assessing Officer. Assessing Officer has the power to call for a valuation report when he is of the opinion that the valuation of the asset given by the assessee is undervalued and technically such opinion has not been recorded by the Assessing Officer in the present ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eal No. 425 / 2009 - - - Dated:- 10-8-2015 - Vineet Saran And B. Manohar, JJ. For the Appellant : Sri K V Aravind, Adv For the Respondent : Sri G Sarangan, Sr. Adv. a/w Balaram R Rao, Adv. JUDGMENT This is an appeal filed by the Revenue challenging the order of the Tribunal. Brief facts relevant for the purpose of this case are: A joint development agreement (JDA) was entered into between the assessee, Sri Sharooq Ali Khan; his brother, Sri Sameer A Khan; and M/s Ashed 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te Commissioner directed the Assessing Officer to rework the capital gains taking the fair market value based on the report of the Valuation Officer and the indexed cost of acquisition based on 12,377 sq.ft. of undivided interest. Challenging the said order, the assessee filed further appeal before the Tribunal, which has been allowed after holding that the valuation report was obtained under section 142-A of the Act, whereas it ought to have been called for under section 55-A of the Act, and since there was no opinion recorded by 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 exch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tially the intention was to get the correct valuation of the three flats, as the Assessing Officer did not agree with the valuation submitted by the assessee. Learned counsel for respondent assessee has, however, submitted that under section 55-A of the Act, the Assessing Officer was to first form an opinion that such valuation report was required and then only a report in this regard could have been called for. It is contended that in not having recorded his reasons for forming an opinion, calling of the valuation report from the District 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... standing between the parties. The agreement and the memorandum of understanding, as had been entered into between the parties, was for 12,377 sq.ft. being the share of contribution of the assessee in the total land given for development to the developer. The Tribunal, without assigning any cogent reason in this regard, has come to the conclusion that the assessee had transferred only 8,434 sq.ft. of undivided interested in exchange of three flats measuring 9,747 sq.ft. along with 527 sq. ft. of undivided interest in the adjoining land. The findings 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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