TMI Blog2021 (2) TMI 348X X X X Extracts X X X X X X X X Extracts X X X X ..... y the erstwhile provisions of section 55A(a) of the Act. It was also held that in order to refer the matter to the valuation officer as per under erstwhile provisions of section 55A(a) of the Act would be applicable - value so claimed by assessee is less than its Fair Market Value in the opinion of Assessing Officer, matter can be referred to valuation officer. In a scenario, where the value so claimed by the assessee is more than its fair market value, the matter could not be referred to the valuation officer. It was ultimately held that the Assessing Officer was not empowered to refer the matter to the valuation officer, even as per the erstwhile provisions of section 55A(a) prior to amendment by the Finance Act, 2012. Also see M/S. PUJA PRINTS [ 2014 (1) TMI 764 - BOMBAY HIGH COURT] Thus we hold that reference made to the DVO by Assessing Officer for determination of Fair Market Value was not valid. Therefore, respectfully following the same, we accept the legal submissions of the ld. AR of the assessee and held the reference to the DVO for determination of fair market value is not valid. No contrary facts or law is brought to our notice to take other view. Penalty u/s 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sing officer noted that during the period relevant to the assessment year under consideration, the assessee along with other her co-owner have sold agriculture land of admeasuring 17098, 50% of 34196 Square meter situated in Khajod Choryasi Surat, on 20.07.2011. The assessee has 1/3 shares in the said land i.e. 5699 Sq meter. The assessee received consideration of ₹ 1.22 Crore. The assessee calculated long term capital gain (LTCG) and adopted cost of land as on 01.04.1981 @ ₹ 110/- per Sq mtr. The assessee adopted value of land on the basis of report of Government Approved Valuer. The assessee also claimed exemption under section 54F. The assessing officer made investigation form the Sub- Registrar Surat about the value of land in the area in 1981. The assessing officer recorded that as per the sale instances in Vesu area of Surat in 1981, was around ₹ 6.45/- per Sq mtr. The assessing officer accordingly computed the LTCG at the rate of ₹ 6.45/- per Sq Mtre and made addition of ₹ 22,61,009/-, while passing the assessment order. 3. On appeal before learned Commissioner (Appeals), the assessee made submission that the assessing officer assumed the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Mahadevi Mohanbhai Naik Vs ITO ( ITA No.82/Ahd/2016) and Sonali Roy Vs PCIT (ITA 1329/Kol/2017). 5. The learned AR for the assessee submits that in view of the decision of jurisdictional High Court in CIT Versus Gauranginiben S Shodhan (supra), the issue of validity of reference under section 55A(a) may kindly be addressed first as not in accordance with the law and in case it is held that reference to the DVO is not in accordance with law, the additions based on such reference be deleted in such event the other contention raised before the lower authorities would become academic. 6. On the other hand the learned Senior department representative for the revenue strongly supported the order of learned Commissioner (Appeals). The learned Senior DR for the revenue submits that reference to DVO was made by learned Commissioner (Appeals) as the assessee raised objections against the value adopted by the assessing officer. Now, the assessee cannot take argue that reference to the DVO is not valid. 7. We have considered the rival contention of the parties and have gone through the orders of authorities below. In the return of income the assessee claimed LTCG on sale of a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ess than its Fair Market Value (FMV). Only in such a scenario, the value so claimed by assessee is less than its Fair Market Value in the opinion of Assessing Officer, matter can be referred to valuation officer. In a scenario, where the value so claimed by the assessee is more than its fair market value, the matter could not be referred to the valuation officer. It was ultimately held that the Assessing Officer was not empowered to refer the matter to the valuation officer, even as per the erstwhile provisions of section 55A(a) prior to amendment by the Finance Act, 2012. 10. Considering the decision of Co-ordinate Bench on similar set of facts, which is based on the ratio of decision of Hon'ble Gujarat High Court in CIT Vs. Gauranginiben S. Shodhan Ind.(supra) and Hon'ble Bombay High Court in CIT Vs. Puja Prints (supra). Respectfully following the same, we hold that reference made to the DVO by Assessing Officer for determination of Fair Market Value was not valid. Therefore, respectfully following the same, we accept the legal submissions of the ld. AR of the assessee and held the reference to the DVO for determination of fair market value is not valid. No contrary fa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... see has good case on merit and is likely to succeed, if the assessee is given opportunity of hearing on merit. The learned Commissioner (Appeals) has not considered the merit of the grounds of appeal raised by the assessee. 15. The ld. AR for the assessee further submits that the assessee vide her application dated 08.01.2021 has raised additional grounds of appeal. The additional ground of appeal is purely legal in nature. No new facts are required to be brought on record. The ld. AR for the assessee submits that the appeal of the assessee may be adjudicated by the Tribunal instead of remanding the matter to learned Commissioner (Appeals). In support of his submissions the ld AR for the assessee relied on the decision of Hon ble Supreme Court in Dilip N. Shroff Vs JCIT [2007] 161 Taxman 218 (SC), Gujarat High Court in PCIT Vs J Upendra Corporation P Ltd (2015) 59 taxman.com 144 (Guj) and Rajpal H Chhabra Vs ITO (ITA No.5517/Mum/2012). 16. On the other hand the ld DR for the revenue submits that the assessee was given sufficient opportunity of hearing. The assessee despite availing the opportunity not responded to the notice of hearing thus, the learned Commissioner (Appeals) ..... X X X X Extracts X X X X X X X X Extracts X X X X
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