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The Income-tax Officer, Ward-2 (2) , Nagpur Versus Smt. Samukta Ashwin Sabnani Nee Samykta Shivjeet Moray, Nagpur

2017 (1) TMI 851 - ITAT NAGPUR

Reopening of assessment - Computation of capital gain on Long Term Capital Gain arising on sale of two properties - assessee held undivided shares of 1.56% and 6.25% respectively along with other co-owners - valuation of the property by the Government approved Valuer - refernce to DVO challenged - AO issued a notice u/s 148 relying upon the report of the DVO in the case of another co-owner of the same properties - Held that:- We find that assessment in this case had been completed u/s 143(3) of .....

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celled. We uphold the order of learned CIT(Appeals) in this regard. - As regards the merits of the issue as we have already upheld the order of learned CIT(Appeals) quashing the assessment on jurisdiction itself. In such circumstances, in our considered opinion, adjudicating upon the merits of the case is only of academic interest. Hence we are not engaging into the same. - Decided in favour of assessee - I.T.A. No. 38/Nag/2016 - Dated:- 9-1-2017 - Shri Shamim Yahya, Accountant Member And Sh .....

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facts, whereas the original assessment was made on the basis of value as on 01.04.1981 determined by assessee s valuer and reopening was made on the basis of value as on 01.04.1981 determined by the DVO and hence the reopening was not made on same set of facts. 2. Whether on the facts and in the circumstances of the case, the ld. CIT(A) was correct in holding that the A.O. has no power to make reference to DVO u/s 55A of the Act, since the consideration on 01.04.1981 shown by assessee was more t .....

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upon the Fair Market Value of the property as on 01-04- 1981. 3. The AO, however, issued a notice u/s 148 relying upon the report of the DVO in the case of another co-owner of the same properties. The assessee objected to the said reference u/s 55A of the I.T. Act to the DVO stating that such a reference to the DVO can be made only in a case where value of the asset as claimed by the assessee is in accordance with the estimate made by the Registered Valuer if the AO is of the opinion that the v .....

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The various case laws relied upon are directly applicable to the facts of the case under consideration. Also the above issue was a matter of appeal before the CIT(A)-I in the case of another co-owner by the name of Kumari Radhika Amrut Dhanwatey wherein the CIT(A)-I, vide his order No. CIT(A)- 1/48/2014-15, dated 05-10-2015 has decided the matter in favour of the appellant on merit as well as on the legality of assuming of jurisdiction u/s 148. The only difference was that the said case had bee .....

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s of the OVO report relating to the third party does not amount an information in the case of the appellant in as much as that firstly the appellant was not a party to the valuation proceedings before the DVO, secondly, that the appellant had not been granted an opportunity for rebuttal of the facts available before the DVO during the valuation proceedings. The appellant in this regard has relied on the decision of the Hon'ble Supreme Court in the case of ACIT vs Dhariya Construction Company .....

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l appeal. The Department was not entitled to reopen the assessment. Civil Appeal is, accordingly, dismissed. No order as to costs. Hence the AO has no basis for his belief and the notice issued u/s 148 is illegal and without jurisdiction." 8.1 The ratio of the decision of the Hon'ble Apex Court is squarely applicable to the facts of the case of the appellant. Therefore, the addition made by the AO is directed to be deleted both on merits and legality ... " 3.3 I am in agreement wit .....

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