TMI Blog2017 (6) TMI 177X X X X Extracts X X X X X X X X Extracts X X X X ..... n the Assesse’s own case. We found nothing material to deviate the finding of the CIT(A) on this issue therefore, in the said circumstances we are of the view, that the CIT(A) has passed the order judiciously and correctly which is not required to interfere with at this appellate stage. Accordingly, this issue is being decided in favour of the Assessee. - I.T.A. No.424/Mum/2014 - - - Dated:- 31-5-2017 - SHRI RAJENDRA, AM, AND SHRI AMARJIT SINGH, JM For The Assessee : Shri Vishwas Mundhe (DR) For The Revenue : None ORDER PER AMARJIT SINGH, JM: The Revenue has filed the present appeal against the order dated 25.11.2013 passed by the Commissioner of Income Tax (Appeals)-34, Mumbai [hereinafter referred to as the C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order dated 16.06.2011 of CIT.24, Mumbai. Thereafter, notice u/s 142(1) of the Act dated 30.06.2011 was issued and served upon the Assessee. During the year under Assessment, the Assessee was engaged in the business of constructing and developing of properties through a development agreement with M/s. K. Raheja Universal Pvt. Ltd. wherein the Assessee and his two brothers(co-parceners) were owners of the land. The Assessee as Karta of HUF was 1/4th owner in plot of land bearing CTS No.480 480/1 having area of 298479.26 sq.ft situated at Rani Sati Marg. Malad (E). The Assessee and other co-owners had entered into development agreement on 14.10.2003 with K. Raheja Universal Pvt. Ltd. (referred as developer hereafter) 1st floor, Construction ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the closing stock as per the provisions of Section 45(2) of the I.T. Act, 1961. In the ratio of FSI of land sold during the year under consideration, the Assessee filed detailed working of long term capital vide letter 18.10.2011. The Assessee showed the value of the said property as on 01.04.1981 at ₹ 190 per sq.ft and the fair market value at ₹ 5,67,11,059/- and accordingly index cost for purchase has been shown at ₹ 1,11,76,629/- thereby showing long term capital loss at ₹ 11,82,153. The AO observed that the valuation of the property at on 01.04.1981 had got done on higher value hence reference was made to the District Valuation Officer (DVO). DVO vide his letter dated 21.12.2010 assessed valuation of the prop ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dingly the finding of the CIT(A) is liable to be set aside. However, on the other hand, no one is present. Before going further, It is necessary to advert the finding of the CIT(A) on record:- 3.3 I have carefully considered the submissions made by the appellant and impugned assessment order on this issue This issue had come up in, appeal in the appellant's own case for the A Y 2008-09 before my predecessor and the CIT(A) vide order No CIT(A)-34/JT 327/2010-11 dated 28 01 2010 has allowed the appeal of the appellant on this issue and the Assessing Officer was directed to recompute the capital gains by accepting the disclosed valuation of the property as on 1.41981 by observing and holding as under:- I have gone through the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i.e. I crore in this case. As such,invoking jurisdiction u1s.263 on the above basis is illegal. 3.2. In view' of the above, the appeal is allowed on this issue-' and the Assessing Officer is directed to recompute the capital gains by accepting the disclosed valuation of the property as on 1.4.1981. 3.4. The Department had preferred an appeal against the above order of the' C.IT(A) before the ITAT, E' Bench, Mumbai and the Hon. ITAT had dismissed the Revenue's appeal by observing 1as under:- It is clear from the aforesaid decision that Section 55A could be invoked only if the Ld.AO is of the opinion that he value declared by the assessee is less than the fair market value of the asset. In the assesse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reason to forward the matter to the DVO then forwarding the matter does not itself justifiable. The CIT(A) has passed the order on the basis of the finding of the ITAT in the Assesse s own case in ITA No.4586/Mum/2011 dated 10.05.2013 (E) Bench. We found nothing material to deviate the finding of the CIT(A) on this issue therefore, in the said circumstances we are of the view, that the CIT(A) has passed the order judiciously and incorrectly which is not required to interfere with at this appellate stage. Accordingly, this issue is being decided in favour of the Assessee. ISSUE NO.2:- 7. This issue nowhere raised any controversy however, the same is formal in nature and nowhere required any adjudication. 8. In the result, the ap ..... X X X X Extracts X X X X X X X X Extracts X X X X
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