TMI Blog2011 (3) TMI 1673X X X X Extracts X X X X X X X X Extracts X X X X ..... eclared by the assessee is more than the fair market value. Thus, the condition of clause (a) of section 55A is not satisfied. Respectfully following the decision of the Tribunal referred to above we uphold the order of the CIT(A) and dismiss the appeal by the revenue. - ITA NO.1142/MUM/2010 - - - Dated:- 9-3-2011 - SHRI N.V.VASUDEVAN(J.M) SHRI RAJENDRA SINGH (A.M) For the Appellant : Shri Narender Singh For the Respondent : Shri V.G.Ginde ORDER PER N.V.VASUDEVAN, J.M, This is an appeal by the revenue against the order dated 12/11/2009 of CIT(A) 32 Mumbai relating to assessment year 2006-07. The grounds of appeal raised by the revenue read as follows: 1(i) On the facts and in the circumstances of the ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t and the DVO estimated the FMV of the property as on1/4/1981 at ₹ 12,87,000/-. 3. The issue before the CIT(A) was as to whether reference made by the AO to the DVO under section 55A of the for determining the FMV as on 1/4/1981 was legally valid. On this issue the CIT(A) held as follows: 18. The issue for my consideration is whether the reference made by the ld. Assessing Officer u/s. 55A to the VO to determine the fair market value of the property as at 1/4/1981 is legally valid or not. I have carefully considered the arguments advanced by the ld. Authorised Representative and also gone through various decisions cited before me. If find that in Patel India (P) Ltd. vs. DCIT (63 TTJ (Mumbi) 19,it was held that since valuation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s case (supra) it was held that where the value claimed by the assessee is supported by a report of a registered valuer, clause (b) of section 55A has no application. In the appellant s case, it is on record that the value claimed by him is supported by such a valuation report, and hence clause (b) would not have any application in his case as per the Gujarat High Court s decision. Besides, in a number of subsequent decisions Tribunal has taken the view that reference u/s. 55A was invalid. 20. In view of the above discussion, I direct the ld. Assessing Officer to substitute the fair market value of the property as at 1/4/1981 of ₹ 23,00,221/- as per the appellant s Regd. Valuer s valuation report as the cost of acquisition and furt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i Bench of the Tribunal had taken a view that the Assessing Officer 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 and that a reference can be made even where conditions specified in sub-clause (ii) relating to having regard to asset and other relevant circumstances is met. It may mentioned here that the aforesaid decision does not consider decision of Hon'ble Bombay High Court as well as decision of Hon'ble Gujarat High Court and to that extent, we are of the view that the said decision is not binding. The Hon'ble Bombay High Court in the case of Daulal Mohata HUF (supra) dealt with following substantial question o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 the assessee, we refrain from undertaking this academic exercise of disposing this case on merits. 5. In view therefore is no merit in the appeal. Appeal stands dismissed. 13. The Hon'ble Gujarat High Court in the case of Hiaben Jayantilal shah(supra) has held on this issue as follows :- Under cl. (a) of s. 55A the AO is entitled to make the reference to the Valuati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 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 by the DVO. Since determination of the FMV as on 1.4.1981 was based on the report of the DVO, the same is held to be invalid. Consequently, estimation of the FMV of the property as on 1.4.1981 as made by the assessee is directed to be accepted. Ground No. 1 of the assessees is allowed. 5. It is thus clear from the aforesaid decision that Section 55A could ..... X X X X Extracts X X X X X X X X Extracts X X X X
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