TMI Blog2020 (11) TMI 991X X X X Extracts X X X X X X X X Extracts X X X X ..... value) misinterpreted the provision and erroneously applied it retrospectively. With effect from July 1, 2012, the expression now used in clause (a) of Section 55A is 'at variance the situation may, therefore, be different after July1, 2012 which is applicable for assessment year 2013-14 whereas the assessee`s case under consideration relates to assessment year 2012-13 hence amended provisions are not applicable to the assessee. Taking into account, the facts narrated above we note that the issue under consideration is fully covered in favour of the assessee by the judgement of the Divisional Bench of ITAT, Surat in the case of Shri Mahdevbhai Mohanbhai Naik [ 2018 (7) TMI 2029 - ITAT SURAT ] - Decided in favour of assessee. - ITA No. 650 & 651/AHD/2017 - - - Dated:- 27-11-2020 - SHRI PAWAN SINGH, JM AND DR. A. L. SAINI, AM For the Assessee : Shri Mehul Patel - AR For the Respondent : Ms Anupama Singla Sr. DR ORDER PER DR. A. L. SAINI, ACCOUNTANT MEMBER: These captioned two appeals filed by the different assessees, pertaining to Assessment Year 2012-13, are directed against the common order passed by the ld. Commissioner of Income Tax ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Share of assessee in total sales consideration (20%) 69,35,220 Less: Cost of Acquisition. Fair Market Value as per Registered / Approved Valuer's Report as on 01-04-1981 (₹ 100/sq mtr) 38,57,900 Assessee's Share of Cost as on 01-04-1981 7,71,580 (20%) Index cost of Acquisition as on 01-04-1981 (771580/100*785) 60,56,903 Long Term Capital Gain 8,78,317 Less: Investment eligible u/s 54EC 7,50,000 Net Long Term Capital Gain 1,28,317 During the scrutiny proceedings, the assessee has submitted various justifications for Fair market value adopted by Government Approved Valuer. However, the Assessing Officer rejected the contention o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Act, the assessee has shown chargeable long term capital gain (LTCG) at ₹ 1,28,317/-. The only dispute which has survived between the assessee and the Department is relating to determination of Fair market Value (FMV) as on 01.04.1981 of the impugned land admeasuring 38579 sq. meter, which the assessee has valued at ₹ 100/- per sq. meter as against value estimated by the DVO @₹ 19/- per sq. meter. We note that the valuation adopted by the assessee is supported by report from Govt. Approved Valuer, whereas the Ld. AO has based his estimation on value determined by the DVO. The assessee has adopted the FMV as on 01.04.1981 at ₹ 38,57,900/- @₹ 100/-per sq. meter as against ₹ 7,32,050/- estimated by the DVO @Rs.l9/- per sq. meter for entire land. This is the precise issue of dispute between the assessee and the Department, as noted by ld. CIT(A). 7. Regarding the validity of reference to the DVO u/s.55A of the Act, first of all, it is to be noted that amendment in section 55A of the Act is effective from 01.07.2012, that is, applicable for assessment year 2013-14 and assessee`s case under consideration is for assessment year 2012-13, therefor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on report is not submitted by assessee. Thus, reference made by Assessing Officer u/s.55A(b)(ii) was not correct. We find that Hon'ble Bombay High Court in case of CIT vs. Daulal Mohta (HUF) [2014] 3601TR 680 (Bom.) the Hon'ble Bombay High Court wherein respondent had adopted fair market value of property as on 01.04.1981 at ₹ 2,13,31,000/- based on the valuation report of Government approved Valuer and Assessing Officer determined the fair market value as on 1st April 1981 at ₹ 1,35,40,000/- based on Valuation report of DVO. Hon'ble Bombay High Court upheld. the order of Tribunal by observing as under: 3. We have perused the judgment of the Tribunal. It is explicitly-dear that thequestions sought to be raised are with regard to the quantum of valuation which is only a finding of fact and there is absolutely no question of law involved in the above appeal. 4. The Tribunal in 'its order dated 23rd July, 2008 has categorically observed thus: 5. The first issue that arises for our consideration is whether the reference made by the Assessing Officer to the DVO u/s 55A is bad- in- law under the facts and circumstances of the case. This issue, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... value as on 1st April, 1981. It would. not be the case of the AO that the value of the asset shown as on 1st April, 1981 was less than the fair market value. Such clause, therefore, as it stood at the relevant time, had no application to the valuation as on 1st April, 1981. Therefore, respectfully following the same the reference made by the AO to DVO is not justified hence, findings recorded by the CIT(A) are not proper. Similarly, the Pune Tribunal in the case of ACIT V. Bhima Daca Kharate I.T.A.No. 1582/PUN/2015 dated 31.10.2017, observed in para 10 as follows: 10. Now, coming to the facts of the present case, the year under reference is assessment year 2009-10 and since the amendment was made effective from 01.07.2012 and the Hon'ble High Court has held. that law which is to be applied in such cases is as existing during assessment year 2009-tOf then the pre- amended provisions of section 55A(a) of the Ant are to 0e applied. In such scenario, there is no merit in the order of Assessing Officer in adopting the cost of acquisition as on 01.04.1981 at the value less than the value shown by the assesses which .in- turn, .is based on, the report of the approved Valuer. , Theref ..... X X X X Extracts X X X X X X X X Extracts X X X X
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