TMI Blog2019 (3) TMI 1630X X X X Extracts X X X X X X X X Extracts X X X X ..... decided in favour of assessee. - ITA No.1036/PUN/2015 Assessment Year : 2008-09 - - - Dated:- 12-3-2019 - Ms. Sushma Chowla, JM And Shri D. Karunakara Rao, AM Appellant by : Shri S.N. Puranik Respondent by : Shri Ashok Babu ORDER Sushma Chowla, The appeal filed by assessee is against order of CIT(A)-1, Aurangabad, dated 20.03.2015 relating to assessment year 2008-09 against order passed under section 143(3) r.w.s. 147 of the Income-tax Act, 1961 (in short the Act ). 2. The present appeal has been filed after delay of 49 days. The assessee has filed an affidavit explaining the reasons for filing the appeal late. In the totality of the above said facts and circumstances, we find merit in the submissions made by assessee and the delay of 49 days in filing the appeal late before the Tribunal is condoned. 3. The assessee has filed modified grounds of appeal, which read as under:- 1) Commissioner (Appeals) has erred in holding that proceeding u/s 148 are valid, Appellant prays to hold that proceeding u/s 148 are bad in law, invalid and without jurisdiction. 2) Commissione ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had shown cost of acquisition of the said property as on 01.04.1981. However, the Assessing Officer did not accept the same alleging that the valuation so declared was excessive and referred the valuation to DVO under section 55A of the Act. The Assessing Officer thereafter, completed assessment on the lower valuation declared by the DVO and computed capital gains at ₹ 78,97,730/-. The stand of assessee was approved by the CIT(A) and vide para 8.2, he held that the Assessing Officer was not justified in referring the impugned property for valuation by the DVO as on 01.04.1981. However, he goes on to estimate the value of property as on 01.04.1981 and re-computes the income from capital gains in the hands of assessee. The learned Authorized Representative for the assessee before us has pointed out that the issue raised in the present appeal stands squarely covered by the order of Tribunal in the case of Shri Rajendra Kanhiyalal Bhartiya Vs. ITO Anr. in ITA Nos.1424 1425/PUN/2017, relating to assessment year 2010-11, order dated 28.08.2018, wherein applying the ratio laid down by the Hon ble Bombay High Court in CIT Vs. Puja Prints (2014) 360 ITR 697 (Bom), the Tribuna ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 than the fair market value. In the present case, it is an undisputed position that the value adopted by the respondentassessee of the property at ₹ 35.99 lakhs was much more than the fair market value of ₹ 6.68 lakhs even as determined by the Departmental Valuation Officer. In fact, the Assessing Officer referred the issue of valuation to the Departmental Valuation Officer only because in his view the valuation 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rcumstances 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. Regarding Question (c):- 11 . The Tribunal by its impugned order has merely remanded the issue to the Assessing Officer to determine the date on which the respondent-assessee acquired the property for the purpose of working out the cost of acquisition. No specific submissions in regard to this issue was made by the revenue during the oral submissions. In any event, an order of remand in these facts does not give rise to any substantial question of law. 12. Accordingly, we see no reason to entertain questions (a), (b) and (c) as formulated by the revenue as they do not raise any substantial questions of law. Accordingly, appeal is dismisse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut 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 than the fair market value. In the present case, it is an undisputed position that the value adopted by the respondent-assessee of the property at ₹ 35.99 lakhs was much more than the fair market value of ₹ 6.68 lakhs even as determined by the Departmental Valuation Officer. In fact, the Assessing Officer referred the issue of valuation to the Departmental Valuation Officer only because in his view the valuation of the property as on 1981 as made by the respondent-assessee 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 con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o 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. Regarding Question (c):- 11 . The Tribunal by its impugned order has merely remanded the issue to the Assessing Officer to determine the date on which the respondent-assessee acquired the property for the purpose of working out the cost of acquisition. No specific submissions in regard to this issue was made by the revenue during the oral submissions. In any event, an order of remand in these facts does not give rise to any substantial question of law. 12. Accordingly, we see no reason to entertain questions (a), (b) and (c) as formulated by the revenue as they do not raise any substantial questions of law. Accordingly, appeal is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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