TMI Blog2017 (1) TMI 1263X X X X Extracts X X X X X X X X Extracts X X X X ..... ion that the said re-investment of sale consideration/long term capital gains in question is to be made only in the names of vendor assessees. Both the parties are very fair in forming the bench that the hon’ble jurisdictional high court has not adjudicated the impugned issue. We thus quote decisions of CIT vs. Kamal Wahal [2013 (1) TMI 401 - DELHI HIGH COURT ] and CIT vs. Ravinder Kumar Arora (2011 (9) TMI 343 - DELHI HIGH COURT) to conclude that the above deduction provision neither provides for purchase of new residential house either in the concerned assessee’s own name or exclusively in his name. The latter two assessees’ deduction claim u/s.54F of the Act is accordingly held allowable. Their corresponding substantive ground stands accepted. - ITA No.113/Ahd/2016, ITA No.114/Ahd/2016, ITA No.115/Ahd/2016 - - - Dated:- 23-1-2017 - SHRI S. S. GODARA, JUDICIAL MEMBER AND SHRI MANISH BORAD, ACCOUNTANT MEMBER For The Assessee : Shri S. N. Divatia, A.R. For The Revenue : Shri P. S. Chaudhary, Sr. D.R. ORDER PER S. S. GODARA, JUDICIAL MEMBER These three appeals in case of as many assessees for assessment year 2011-12 arise against CIT(A)-10, Ahmedabad s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... these three cases on 10.02.2014 making long term capital gain each of ₹ 11,03,830/-. The CIT(A) confirms the same in the lower appellate s order under challenge. 4. Heard both sides. Learned counsel Shri Divetia at the outset files before us a copy CIT(A)-V, Ahmedabad s order dated 01.05.2015 in case of yet another co-owner Shri Yagnesh Ashwinkumar Pandya reversing Assessing Officer s action in referring valuation issue of the very capital asset in question as not sustainable u/s.55A of the Act reading as under: 4.3. I have considered the facts of the case and submission made by the appellant. In this case, the AO has increased the long term capital gain amount by reducing the cost of acquisition of the appellant as on 1.4.1981. It has been, seen that the appellant along with 11 co-owners had sold the land admeasuring 3946 sqr. Mtrs. for the total sale consideration at Rs,2,56,50,000/-. The cost of acquisition as on 1,4,1981 was taken at ₹ 32,95,077/- @, R.s.501/- per sqr. Mtr. on the basis of the valuation report of the Government Approved Registered valuer namely Shri Champaklal D. Shah. The AO found it very high find therefore a reference was made to the AVO ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w of the Hon'ble Bombay High Court judgment in the case of CIT Vs. Pooja Prints 98 DTR 177 and CIT Vs. Dauial Mohta HUF 360 ITR 680 and mentioned that the long term capital gain determined by considering the valuation report of the DVO, and ignoring the valuation made by the registered valuer is not legal and additions made on the basis of such illegal report needs to be deleted. Further argued that the conditions laid down u/s.55A are not fulfilled as such reference to the PYO was not legal and valid in law. So no cognigence can be taken on the said invalid valuation report. 'Further it was also objected that the reference to the valuation officer lias been made without pointing out any defects/mistakes or establishing that the valuation made by the registered valuer was not proper and did not show the fair market value. 4.6. In the similar circumstances, the Hon'ble Bombay High Court in the ease of CIT Vs. Daulal Mohta HUF 360 ITR 680 has held as under:- CAPITAL GAINS - COMPUTATION - COST OF ACQUISITON - FAIR MARKET VALUE AS ON 1-4-1981 - REFERENCE TO DEPARTMENTAL VALUAT10N OFFICER - ONLY VALUE OF CAPITAL ASSET SHOWN BY ASSESSEE LESS THAN ITS FIAR MARKET ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n, the reference to the DVO is not found correct and legal and such reliance upon the AVOs report and further increasing the long term capital gain-is not justified. 4.10. It is worth here to mention that the amendment in the aforesaid provisions has only be made with effect from 1.7.2012 by the Finance Act, 2012 whereby the reference can be made when there is variance with its fair market value. Otherwise as per the amendment it is clear that the legal position was different before pre-amendment period and this amendment could not be said to be clarificatory or retrospective in nature. 4.11. In view, of the aforesaid discussion, the AO's action for taking the cost of land as on 1.4,1981 as per the valuation report of-the DVO is found not correct as per the provisions of I.T. Act and the appellant is allowed to take the cost of acquisition as shown in the report of the registered valuer which has been considered by the appellant while arriving, at the long term capital gain amount. Thus, the stand of the AO is rejected and addition on this account is deleted. 5. Learned Departmental Representative fails to indicate any distinction on facts. His only plea is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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