TMI Blog2019 (12) TMI 208X X X X Extracts X X X X X X X X Extracts X X X X ..... ng period. The Tribunal had not accepted the DVO s report in the first round. The Commissioner was of the view that the Assessing Officer has failed to correctly determine the fair market value as on 01.04.1981. Whether the value has been correctly determined or not, we may refer to the decision of Hon ble Bombay High Court in CIT vs Puja Prints [ 2014 (1) TMI 764 - BOMBAY HIGH COURT] wherein it has been laid down that the provisions of section 55A(a) of the Act cannot be applied and no reference is possible to be made to the DVO for determining the market value of the property at a figure less than that shown by the assessee. Accordingly, AO had no authority to make any such reference to the DVO to determine the value of the property i.e. cost of acquisition as on 01.04.1981, at any price less than the price shown by the assessee. AO has to accept the valuation shown by the assessee as on 01.04.1981. The said valuation is supported by a report of the Registered Valuer and other sales instance during the period. In such facts and circumstances, we find no merit in the exercise of the jurisdiction by the Commissioner u/s 263 - Decided in favour of assessee - ITA No.506/Del/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ginal assessment was completed u/s 143(3) of the Act vide order dated 28.03.2013 and total income of ₹ 7.72 crores was assessed as against returned income of ₹ 4.74 crores. In the facts of the case, the assessee had declared long term capital gains from sale of property at B-59, Mayfair Garden, New Delhi which was held by him to the extent of 50% share. The said property was sold for a total consideration of ₹ 15,80,00,000/- vide registered Sale Deed on 05.05.2009. The assessee worked out the cost of acquisition of the property at ₹ 1,01,00,000/- and after taking the indexation at ₹ 6,38,32,000/-. The said valuation was on the basis of valuation report of Govt. Approved Valuer as on 01.04.1981. The Assessing Officer, however, made a reference to the District Valuation Officer (in short DVO ) u/s 55A of the Act for valuing the property as on 01.04.1981. The DVO estimated the fair market value of the said property at ₹ 6,70,000/- as on 01.04.1981. The assessee was accordingly, issued show cause notice in the first round of proceedings. The Assessing Officer however, did not accept the submissions of the assessee and re-calculated the long term cap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... He was of the view that the Assessing Officer should have made the inquiries to find the value of any comparable incident in 1981. Further, the Assessing Officer had accepted the cost of acquisition adopted by the assessee as such, without making any inquiries in this regard, hence, the show cause notice issued to the assessee. The assessee objected to the proposal raised by the Commissioner u/s 263 of the Act. However, the Commissioner was of the view that the valuation report of the valuer could not be accepted on the simplicitor reason that the property in question was a superior property having better litigation etc. The Commissioner was of the view that the Assessing Officer should have tried to find out if there was any comparable instance in 1981, instead of adopting of comparable of year 1985 and indexing it backwards. He was of the view that the acceptance of the higher value on the ground that the property was a superior property and had better location, without carrying out any investigation could not be accepted. The second objection was on the size of the plot and the size of the property whose particulars were adopted for comparison. The Commissioner also objected to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ircumstances, the Commissioner had the power to exercise his jurisdiction u/s 263 of the Act. In the absence of making any inquiry, the Ld. DR for the Revenue stressed that the order suffers from infirmities and ITA No.506/Del/2019 Assessment Year-2010-11 open to exercise of jurisdiction u/s 263 of the Act. He placed reliance on the ratio laid down by the Hon ble Supreme Court in Malabar Industrial Ltd. [2000] 243 ITR 83 (SC). He also referred to the amendment to section 263 of the Act which has been inserted by the Finance Act, 2015 w.e.f. 01.06.2015. 9. The Ld. AR for the assessee in re-joinder pointed that the Commissioner has just remitted the matter back to the file of Assessing Officer and in case he was of the view that no inquiries were made by him then he ought to have made inquiries. In this regard, reliance was placed on the decision of Hon ble Delhi High Court in Director of Income Tax vs Jyoti Foundation 357 ITR 388 (Delhi). He also pointed out that the amendment to section 263 of the Act is prospective in nature and cannot be applied. 10. We have heard the rival contentions and perused the record. The issue arising in the present appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase. The dispute was with regard to computation of long term capital gains vis-a-vis the cost of acquisition as on 01.04.1981. The assessee in the initial assessment proceedings had filed a valuer report of Registered Valuer in support of the fair market value as on 01.04.1981. In the second round of litigation, the assessee again filed a valuer report of Registered Valuer and had placed reliance on sale instance of another property in 1985 in the adjacent area and also instance of acquisition proceedings by the Income tax Department in another case. The Registered Valuer on the basis of the same had adopted the value of the property at ₹ 95,28,000/- i.e. by backward calculation from 1985 to 1981. On the other hand, the DVO had made backward calculation of the valuation of the property from the date of sale and had not relied on any sale instance during the corresponding period. The Tribunal had not accepted the DVO s report in the first round. The Commissioner was of the view that the Assessing Officer has failed to correctly determine the fair market value as on 01.04.1981. 12. Before going into the merits whether the value has been correctly determined or ..... X X X X Extracts X X X X X X X X Extracts X X X X
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