9911796707
TMI Blog2020 (8) TMI 189X X X X Extracts X X X X X X X X Extracts X X X X ..... and in law, the Ld. CIT(A) erred in deleting addition made by the AO under the head Long Term Capital Gain on sale of land on the basis of the report received from DVO incorrectly holding that AO did not have mandate to refer the matter to DVO for Fair Market Value whereas the reference made to DVO by AO is covered in sub clause (ii) of clause (b) to Section 55A of IT Act, 1961 and therefore, AO was justified in referring the matter to DVO for valuation of capital asset as on 01.04.1981 and adopting cost of acquisition as per the report of the DVO. 2. For this and such other reasons as may be urged at the time of hearing the order of the Ld. CIT(A) may be vacated and that of the Assessing Officer be restored. 3. The appellant craves leave to add, amend alter or delete any of the above grounds of appeal during the course of appellate proceedings before the Hon'ble Tribunal." For the sake of convenience, first we would take ITA No.1941/PUN/2019 for assessment year 2009-10 as lead case for adjudication. ITA No.1941/PUN/2019 A.Y.2009-10 4. The brief facts of the case are that the assessee filed its return of income on 31.08.2009 with an income of Rs. 3,17,80,200/- and assessment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellant and the material on record have been considered. The Ground of Appeal Nos.2, 3, 4 & 5 are taken up together. While deciding the appeal of the appellant against the order u/s 154 of the Act it has been mentioned in the order of this office dated 24.09.2019 therein that, "Since the appeal of the appellant against the order u/s 143(3) of the Act dated 30.12.2011, which was sought to be rectified vide this order, is also in appeal; thus, this issue of determining Long term capital gains on receipt of the report of the DVO, 'will be adjudicated in the appeal of the appellant against the order u/s 143(3) of the Act- dated 30.12.2011." Hence, this issue is being adjudicated in this appeal. 7.3.1 In the instant case, the appellant along with other co-owners, had sold their property in the F.Y.2008-09. In the assessment order, the AO assessed the Long term capital gains of the appellant at Rs. 14,82,08,800/-. During the assessment proceedings, the AO referred the property to the DVO u/s 55A of the Act, vide his letter dated 26.09.2011, for (a) valuation of FMV as on the date of sale i.e. 4.09.2008 and also (b) to verify the correctness of the cost of acquisition as on 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the amendment in Section 55A of the Act had taken place w.e.f. 1.07.2012 and the same was held to be prospective by the Hon'ble Bombay High Court in the cases of Daulal Mohta (HUF) 360 ITR 680, Puja Prints 360 ITR 697 and decision of the Hon'ble Pune ITAT in the cases of Arjun Dada Kharaie in ITA No. 185/PN/2016, Bhudevi Gorantyal in ITA No.1036/PUN/2015 and Mrs. Anjali Bharat Kabra 75 Taxmann.com 5, Pune. 7.3.3.1 In this regard, it is observed that the DVO while determining the PMV of the property as on 1.04.1981, has duly considered the objections raised therein by the appellant in Part 8 of his report, and after giving the appellant due opportunity to be heard, prepared his valuation report. With regard to the appellant's objection regarding the applicability of the decision of the Hon'ble Bombay High Court in the case of Daulal Mohta (HUF), the following' comments have been given: "5. Objection : Valuation as at 01.04.1981 We have submitted a letter dated 21.05.2015 (Copy enclosed) acknowledged by Your Office, wherein Bombay High Court decisions are quoted. It is learnt that decision in the case of Doulal Mohta HUF 360 ITR 561 is accepted by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 85/PN/2016, Bhudevi Corantual in ITA No.1036/Pun/2015 and Mrs. Arzjali Bharai Kabra 75 Taxmann.com 5 (Pune) have clearly held that where the value as determined by DVO as on 1.04.1981 was lesser than the value as declared by appellant as on 1.04.1981, reference to DVO u/s 55A of the Act was not warranted. Hence, in light of the above facts and respectfully following the decisions of the higher judicial authorities, the FMV as on 1.04.1981 valued at Rs. 50,91,000/- by the Approved Valuer, in his report dated 17.08.2009 in the case of the appellant, is adopted. In light of the above facts, the Long term capital gains in the case of the appellant is recomputed as under: Sale consideration of 16693 sq. mtrs 8,02,37,742/- ( As per DVO valuation @ Rs. 4806.67 per Sq. Mtrs. Less : Indexed Cost of Acquisition 3,15,74,810/- ( As per Approved Valuer's report @ Rs. 352 per Sq. mtrs.) Long Term Capital Gains 4,86,62,932/- 7.3.5 Hence, in light of the above, the Long term capital gains is restricted to Rs. 4,86,62,932/- accordingly. Therefore, Ground of Appeal Nos. 2, 3, 4 & 5, filed by the appellant, are accordingly PARTLY ALLOWED." From the above, it is evident ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
