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Nirmala Ravikant Wayale Versus Income Tax Officer ward-3 (4) , Mumbai

2017 (9) TMI 464 - ITAT MUMBAI

Validity of reference made by the AO to the DVO - Long term capital gain for transfer of share in development rights of land - rights already been transferred on 11-11-1999 and valuation of DVO adopting fair market value as on 01-04-1981 - Held that:- As in assessee’s own case for AY 2004-05 [2017 (1) TMI 730 - ITAT MUMBAI] wherein identical issue was considered following case of CIT vs. Puja Prints (2014 (1) TMI 764 - BOMBAY HIGH COURT) wherein the facts are exactly similar and reference so mad .....

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ar falling prior to introduction of amendment brought in Section 55A(a) by Finance Act 2012 w.e.f. 1/7/2012. - Decided in favour of assessee. - ITA No. 300/Mum/2014 - Dated:- 1-9-2017 - SRI MAHAVIR SINGH, JM AND SRI RAJESH KUMAR, AM For The Assessee : Shri Subodh Ratnaparkhi, AR For The Revenue : Shri Suman Kumar, DR ORDER PER MAHAVIR SINGH, JM: This appeal by the assessee is arising out of the order of CIT(A)-I, Mumbai, in appeal No. 545/12-11 dated 18-07-2013. The Assessment was framed by ITO .....

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ised following grounds: - 1A. The Hon. CIT (A) erred in confirming addition of Rs. 20,35,090/- as long term capital gains from transfer of share in development rights of land admeasuring 1110 sq...mtrs at survey no. 54(P) village Gandhare, Taluka Kalyan, Dist. Thane in there under appeal, not appreciating that such "transfer" had actually taken place by way of registered agreement dt. 11.11.1999 falling in asst. yr. 2000-01 and accordingly the long term capital gains arose in asst. yr. .....

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ing of capital gains by adopting the F.M.V. of land as on 01.04.1981 at Z 6,000/- (0.50 paise per sq. feet) on the basis of tentative valuation report of Department Valuation Officer (DVO), Thane in place of 6,69,088/- claimed by the assessee (56/- per sq. feet). 3. The Hon. CIT (A) erred in relying upon the tentative valuation report of DVO, Thane for determining the F.M.V. as on 01.04.1981 not appreciating that the reference to the DVO by the Id AO was not justified as per 55A of the I.T. Act .....

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ance of the assesses in all the appeals pertains to addition made by the AO by disregarding the valuation made by the assessee on the basis of government approved valuer s report as on 1-4-1981. 4. Rival contentions have been heard and record perused. Facts in brief are that all the above assesses are co-owners of land situated at Village Gandhara Taluka Kalyan. The above co-owners under development agreement dt. 19.03.2004 have transferred their respective rights in 3 parcels of land at village .....

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@ Rs.5/- per sq. mtr. In appellate proceedings, the CIT (A) upheld the reference to the DVO made u/s 55A but allowed FMV of Rs. 30/- per sq. mtr on the basis of certain non-comparable sale instances. 5. Against the above order of CIT(A), the assesses are in further appeal before us. It was contended by ld. AR that the assessment year in question is A.Y. 2004-05. The Id. AO prior to 01.07.2012 could not make a reference to the DVO u/s 55A when the value adopted by the assessee based on report of .....

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ilal Shah -Vs- ITA & Anr. 310 ITR 31 (Guj) (2009) 6. The Finance Bill 2012, Bill No. 11 of2012. 7. On the other hand, ld. DR relied on the order of lower authorities and contended that the CIT(A) has relied on the sale instances of village Chikanghar, Kalyan, the land of the assessee was located at village Gandhare, Kalyan and the location and other factors were comparable. 8. I have considered rival contentions and carefully gone through the orders of authorities below. The issue under cons .....

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The revenue has not been able to point out how the aforesaid decision is inapplicable to the present facts nor has the revenue pointed out that the decision in Daulal Mohta HUF (supra) has not been accepted by the revenue. On the aforesaid ground alone, this appeal need not be entertained. However, as submissions were made on merits, we have independently examined the same. 7. We find that Section 55A(a) of the Act very clearly at the relevant time provided that a reference could be made to the .....

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n of the property as on 1981 as made by the respondentassessee was higher than the fair market value. In the aforesaid circumstances, the invocation of Section 55A (a) of the Act is not justified. 8. The contention of the revenue that in view of the amendment to Section 55A(a) of the Act in 2012 by which the words "is less than the fair market value" is substituted by the words" "is at variance with its fair market value" is clarificatory and should be given retrospectiv .....

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ng Officer less than its fair market value. 9. The contention of the revenue that the reference to the Departmental Valuation Officer by the Assessing Officer is sustainable in view of Section 55A(a) (ii) of the Act is not acceptable. This is for the reason that Section. 55A(b)of the Act very clearly states that it would apply in any other case i.e. a case not covered by Section 55A(a) of the Act. In this case, it is an undisputable position that the issue is covered by Section 55A(a) of the Act .....

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