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TMI Blog2018 (1) TMI 1523X X X X Extracts X X X X X X X X Extracts X X X X ..... 71,93,380/-. Aggrieved by the order of AO, assessee carried the matter before Ld. CIT(A), who vide order dt.29.01.2017 (in appeal No.PN/CIT(A)-V/ITO Wd.8(4)/343/2014-15) dismissed the appeal of the assessee. Aggrieved by the order of Ld.CIT(A), assessee is now in appeal before us and has raised the following grounds : "1. On the facts and in the circumstances of the case and in law the appellant- assessee had 1/4th share in the property/asset along with three brothers having capital gain (long term) in equal proportion. In the case of other three brothers the Ld. CIT(A)-9, Akurdi, Pune asserted the plea of those three brothers in their respective appeals the reference to DVO by the A.O. was not valid. The reference u/s 55A can be made to DVO only when value adopted is less than FMV. The Ld. CIT(A) accepted the argument of the assessee and allowed the appeal of those assessee. The Ld. CIT(A) ought to have allowed the appeal of the assessee. On similar facts and circumstances the appeal of the assessee be allowed holding reference to DVO was not valid. 2. On the facts and in the circumstances of the case and in law the assessee in those appeals relied upon the judgment of the Hon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gain at Rs. 69,47,370/-. Aggrieved by the order of AO, assessee carried the matter before Ld.CIT(A), who upheld the order of AO by holding as under : "4.1 Ground No.1: In this ground the appellant challenged the reference to the District Valuation Officer by the AO on the ground that the value of the assets taken by the assessee was more than the FMV determined by the Valuation Officer. The appellant relied on the decision of the Hon'ble Jurisdictional High Court in the case of CIT Vs. Puja Prints [2014] 360 ITR 697 (Mum). "4.1.1. As per sec.55A, with a view to ascertaining the FMV of a capital asset [for the purpose of this chapter i.e. computation of total income], the AO may refer the valuation of a capital asset to the Valuation Officer in a case where the value of asset as claimed by the assessee is in accordance with the estimate made by a registered valuer, if the AO is of opinion that the value so claimed is at variance with its FMV. The underlined bold portion of the section was substituted by Finance Act 2012 w.e.f.1/7/2012, for 'is less than its FMV'. The appellant claims that the assessment year in question being AY. 10-11, the amended portion is not ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hree co-owners, on identical issue of capital gains arising out of the same land, the Ld.CIT(A) in the case of co-owners, after relying the decision of Puja Prints (supra), has decided the issue in favour of the assessee. He placed on record the copy of the decision of Ld.CIT(A) in the cases of co-owners in the Paper Book from Pages 77 to 98. He submitted that against the decision of Ld.CIT(A) in case of co-owners, the Revenue has not preferred any appeal. He therefore submitted that when the facts in the present case are identical to that of co-owners' case, a different view in the case of assessee is not called for. Ld.A.R. also relied on the decision of Co-ordinate Bench of the Tribunal in the case of Arjun Dada Kharate and Parvatabai Dada Kharate in ITA No.185/PN/2016 and ITA No.186/PN/2016 dt. 19.08.2016. Ld.D.R. on the other hand, supported the order of AO and Ld.CIT(A) and further submitted that the amendment made to Sec.55A is a date specific amendment and the reference in the present case was made after the amendment and in such a situation, the AO was fully justified in making a reference u/s 55A of the Act. He further submitted that AO is entitled to call for a repor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s right in directing the AO to accept the valuation given by the respondent as the Fair Market Value on the basis of the registered valuer's report and workout capital gain? .......... Regarding Questions (a) and (b) 6. We have considered the rival submissions. We find that the impugned order dated 18 February, 2011 allowing the respondent- assessee's appeal holding that no reference to the Departmental Valuation Officer can be made under Section 55A of the Act, only follows the decision of this Court in the matter of Daulal Mohta HUF (supra). 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 Departmental Valuation Officer only when the value adopted by the assessee was less then the fair market value. In the present case, it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rty to the Departmental Valuation Officer in exercise of its power under Sections 131, 133(6)and 142(2) of the Act is entirely based upon the decision of the Guwahati High Court in Smt. Amiya Bala Paul (supra). However, the Apex Court in Smt. Amiya Bala Paul (supra) has reversed the decision of the Guwahati High Court and held that if the power to refer any dispute with regard to the valuation of the property was already available under Sections 131(1), 136(6) and 142(2) of the Act, there was no need to specifically empower the Assessing Officer to do so in circumstances specified under Section 55A of the Act. It further held that when a specific provision under which the reference can be made to the Departmental Valuation Officer is available, there is no occasion for the Assessing Officer to invoke the general powers of enquiry. In view of the above and particularly in view of clear provisions of law as existing during the period relevant to Assessment Year 2006- 07, we are of the view that questions (a) and (b) do not raise any substantial question of law." We thus find that Hon'ble jurisdictional High Court has held that amendment to Proviso of Sec.55A(a) is applicable onl ..... X X X X Extracts X X X X X X X X Extracts X X X X
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