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TMI Blog2020 (11) TMI 991X X X X Extracts X X X X X X X X Extracts X X X X ..... /2017 for the AY.2012-13 is taken as the lead case. 3.The grounds of appeal raised by the assessee in its lead case read as follows:- "(1) That on facts and in law, the learned CIT (A) has grievously erred in holding that the reference made to DVO u/s.55A of the Act to determine the fair market value of land as on 01/04/1981 is valid. (2) That on facts, and in law the learned CIT (A) has grievously erred in confirming the addition of Rs. 49,07,585/- ade towards long term capital gains by rejecting the fair market value as on 01/04/1981 adopted by assessee. (3) The assessee craves leave to add, alter, amend any ground of appeal." 4. Facts of the case which can be stated quite shortly are as follows: The assessee is small agriculturist and has filed return of income on 04-12-2013 declaring total income of Rs. 1,51,800/-. She has also income from long term capital gain and shown in computation of income filed by her. The assessees with other four co-owners have sold. one agriculture land situated at Block No 31, R S No 22+23, Village Karadva Tal Choryasi, Dist. Surat. Total area of agriculture land was 38579 square meters. The land was sold fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce LTCG for taxation purpose Rs. 49,07,585/- Since, the assessee has offered Long Term Capital Gain at Rs. 1,28,317/-, therefore Assessing Officer made addition of Rs. 49,07,585/- (Rs. 50,35,902 - Rs. 1,28,317). 5. Aggrieved by the order of the Assessing Officer, the assessee carried the matter in appeal before ld. CIT(A), who has confirmed the addition made by the Assessing Officer. Aggrieved, the assessee is in appeal before us. 6. We heard both the parties and carefully gone through the submission put forth on behalf of the assessee along with the documents furnished and the case laws relied upon, and perused the fact of the case including the findings of the ld. CIT(A) and other materials brought on record. We note that the impugned piece of land bearing Block No.31, R.S. No.22+23 situated at Village: Karadva, Tal. Choryasi, Dist. Surat, was sold, which was jointly held by her with other co-owners and assessee is holding 1/5th share therein which works out to Rs. 69,35,220/- as her share in sale consideration. In the return of income filed by the assessee after claiming deduction for Indexed Cost of Acquisition and deduction u/s.54E ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 in ITA No.820/AHD/2016 for AY.2010-11 dated 11.07.2018 wherein it was held. as follows:- "9. Thus reference to DVO can be made in two situations; first, the value is adopted based on report of resisted valuer and second, in any other case. In assessee's case, fair market value adopted as on 01.04.1981 is based on valuation report of registered Valuer. Therefore, Assessing Officer should. have applied the provisions of 55A(a) and according to said provision, fair market value claimed by assessee can be rejected only if fair market value is less than fair market value as per Assessing Officer. As fair market value claimed by assessee as on 1st April, 1981 is higher than that estimated by Assessing Officer provisions of 55A should. not be invoked. The provisions of Section 55A(b)(ii) as resorted by Assessing Officer for referring the matter to DVO can be invoiced only in case the valuation report is not s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te of 01.07.2012. Since the assessment made is for the assessment year 2010-11, the AO cannot make reference to DVO for the valuation of property, where value of property is not less than the value of "fair market value. This view is supported with decision of Hon'ble Bombay High Court in the case of CIT vs. Puja Prints [2014] 360 ITR 697 (Bom.) wherein it was held. that Assessing Officer referred the issue of valuation to the Departmental Valuation Officer only as on 1981 as made by the assesses was higher than the fair market value. Therefore, invocation of section 55A (a) was not justified. 11. We find that the Hon'ble Jurisdictional High Court of Gujarat in the case of CIT v. Gauragiben S Shodhan [2014] 108 DTR 442 (Gujarat) wherein it was observed "Coming to the question of reference to DVO for ascertaining the fair market value as on 1st April, 1981 also, such reference was not competent. Prior to the amendment in section 55A with effect from 1st July, 2012 in a case, the value of the asset claimed by the assessee is in accordance with the estimate made by the registered valuer, if the AO was of the opinion that the value so claimed was less than its fair mar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tantive in nature which is relevant to assessment year commencing after the date of amendment i.e. F.Y. 2012-13 relevant to A.Y. 2013-14, hence, it is not applicable for the assessment year 2010-11, as the assessment involved is prior to period of 01.07.2012, In view of these facts and circumstances, we are of the considered opinion that the law has been settled by the decision of Hon'ble Bombay High Court, Hon'ble Gujarat High Court, Mumbai Tribunal and Pune Tribunal. Therefore, the AO was not justified in referring to DVO or adopting valuation based on valuation report. The amendment in section 55A was qua prior period to 01.07.2012 and not qua proceeding prior to 01.07.2012. Hence, respectfully the following the ratio laid down in above judgments of Hon'ble High. Courts and Tribunal as referred above, hence, Ground No.1(1) to (5) of the appeal are allowed." 8. As the issue is squarely covered in favour of the assessee by the decision of the Coordinate Bench, of ITAT Surat in the case of Shri Mahdevbhai Mohanbhai Naik (supra) and there is no change in facts and law and the Revenue is unable to produce any material to controvert the aforesaid findings of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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