TMI Blog2018 (9) TMI 1174X X X X Extracts X X X X X X X X Extracts X X X X ..... 15/Ahd/2016 - - - Dated:- 18-9-2018 - SHRI RAJPAL YADAV, JUDICIAL MEMBER AND SHRI WASEEM AHMED, ACCOUNTANT MEMBER For The Assessee : Shri P.F. Jain, AR For The Revenue : Shri S.K. Dev, Sr.DR ORDER PER RAJPAL YADAV, JUDICIAL MEMBER : Assessee is in appeal before the Tribunal against order of the ld.CIT(A)-7, Ahmedabad dated 11.12.2015 passed for the assessment year 2010-11. 2. The assessee has taken ten grounds of appeal, which are argumentative and descriptive in nature. In brief, his grievance revolves around a single issue whereby he has disputed computation of long term capital gain assessable in his hands in re-opened assessment under sections 147/148 of the Income Tax Act, 1961. 3. At the time of hearing, the ld.counsel for the assessee did not advance arguments on the issue of reopening, therefore, we do not devote our energy to examine the issue whether reopening is justified or not. 4. The next issue relates to computation of capital gain assessable in his hand. 5. Brief facts of the case are that the assessee has filed his return of income on 19.7.2010 declaring taxable income at ₹ 1,74,530/-. This return was accepted u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hence reference to DVO itself is bad. In support of his contention, he relied upon judgment of Hon ble Gujarat High Court in the case of CIT Vs. Gauranginiben S. Shodhan, 45 taxmann.com 356 (Guj). 7. In the next fold of contention, he submitted that Shri Dasrathbhai S. Prajapati is one of the co-owners. In his case, the AO has given effect to the order of ld.CIT(A) on 12.4.2018. The ld.AO has accepted the value of the property as on 1.4.1981 at ₹ 39,36,290/- on the basis of Shri B.H.Patel, Registered valuer s report. There could not be any discrimination qua other co-owners on similar transaction. He placed on record copy of the order passed by the AO under section 154 r.w.s. 250 of the Act. On the other hand, the ld.DR relied upon the order of the ld.CIT(A). 8. We have duly considered rival contentions and gone through the record carefully. As far as first fold of grievance is concerned, the ld.CIT(A) has taken into consideration the report obtained by the AO in the case of other co-sharer. This report was obtained on remand from the ld.CIT(A) in the case of Shri Dashrathbhai Sombhai Prajapati. According this latest report, distance of 8kms. was measured form municip ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the AO. Hon ble Court has held that such reference is not permissible according to the scheme of Act prior to 1.7.2012. The discussion made by the Hon ble High Court reads as under: 15. Coming to the question of reference to DVO for ascertaining the fair market value as on 1.4.1981 also, we find that such reference was not competent. We have noticed that prior to the amendment in section 55A with effect from 1.7.2012 in a case, the value of the asset claimed by the assessee is in accordance with the estimate made by the Registered Valuer, if the Assessing Officer was of the opinion that the value so claimed was less than its fair market value as on 1.4.1981. It would not be the case of the Assessing Officer that the value of the asset shown as on 1.4.1981 was less than the fair market value. Such clause, therefore, as it stood at the relevant time, had no application to the valuation as on 1.4.1981. We are conscious that with effect from 1.7.2012, the expression now used in clause (a) of section 55A is is at variance with its fair market value . The situation may, therefore, be different after 1.7.2012. We are, however, concerned with the period prior thereto. Clause (b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... seen to have confirmed the reasonings adopted by the Tribunal in the impugned judgment. Tax Appeal is dismissed. 10. Similarly, Hon ble High Court has considered this aspect in the case of CIT Vs. Manulaben M. Unadkat, 55 taxmannc.om 62 (Guj). The discussion made by the Hon ble High Court reads as under: 5. We have heard learned advocates for both the parties and perused the material on record. While deciding the Appeal, the Tribunal in paragraph No.6 of its order observed as under:- 6. We have duly considered the rival contentions. A reference to the Valuation Officer is to be made under section 55A of the Act. Clause(A) of Section 55A has a bearing on making such a reference. It reads as under: 55.A. With a view to ascertaining the fair market value of a capital asset for the purposes of this Chapter, the Assessing Officer may refer the Valuation of capital asset to a Valuation Officer: ( a) in a case where the value of the asset as claimed by the assessee is in accordance with the estimate made by a registered valuer, if the Assessing Officer is of opinion that the value so claimed is less than its fair market value; The provision spe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in question was capital asset which lull within the 8 kms of municipal limit the assessee's request for indexation can hp considered. The assessee has furnished Valuation Report dated 03.11.2012 obtained from B.H. Patel. Registered Valuer. As per his report the value of the property in question as on 01.04.1981 is at ₹ 39,36,290/-. Accordingly, capital gain chargeable to tax is worked as under: Sale consideration of the property Rs.2,49,99,993/- Assessee's share- l/3 rd ₹ 83,33,331/- (A) Indexed cost of the property 3936290x632+100 Rs.2,48,77,353/- Assessee's share on indexed cost ₹ 82,92,451/- (B) Taxable Capital Gain [A)-(B) ₹ 40.880/- Considering the above working of the capital gain the total income of the assessee is re-computed as under: Total Income as per order giving appeal effect dated 02/09/2014 Rs.84,78,290/- Assessee's share- 1/3 of inde ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
