TMI Blog2008 (4) TMI 292X X X X Extracts X X X X X X X X Extracts X X X X ..... ant. Manish R. Bhatt for Respondent No.1 JUDGMENT The judgment of the court was delivered by D.A. MEHTA J. - This petition has been preferred challenging the Reference dated 26.4.1996 made by the respondent no. 1, namely, the Assessing Officer to respondent no. 2, namely the District Valuation Officer ("the D.V.O.") under section 55A of the Income Tax Act, 1961 (the Act) in respect of the share of the petitioner in the property bearing Final Plot No. 547, Sub-plot Nos. 7 and 8, Town Planning Scheme No. 3, Moje Kocharab, Taluka: City, in the District and Sub-district of Ahmedabad. 2. The petitioner, was the co-owner of the aforesaid property along with her husband and son. On 29.11.1994, the petitioner entered into an agre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er on 26.4.1996 under section 55A of the Act to the DVO. The DVO, therefore, proposed to estimate the market value of the property as on 1.4.1981 at Rs. 3,97,000/- as against Rs. 6,25,000/- shown by the assessee-petitioner and also estimate the fair market value of the property as on 28.12.1995 (the date of execution of the sale deed, i.e. transfer) at Rs. 8,08,000. 6. The petitioner, after corresponding with the respondents and the superior authority has challenged the aforesaid reference by way of this petition. On behalf of the petitioner, learned senior advocate has contended that on 26.4.1996 when the Reference was made, no assessment was pending and the reference could not have been made by the Assessing Officer because return of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... air market value of the asset exceeds the value of the asset as claimed by the assessee by more than such percentage of the value of the asset as so claimed or by more than such amount as may be prescribed in this behalf; or (ii) that having regard to the nature of the asset and other relevant circumstances, it is necessary so to do, and where any such reference is made, the provisions of sub-section (2),(3),(4),(5) and (6) of section 16A, clauses (ha) and (i) of sub-section 91) and sub-sections (3A) and (4) of section 23, sub-section (5) of section 24, section 34AA, section 35 and section 37 of the Wealth-tax Act, 1957 (27 of 1957), shall with the necessary modifications, apply in relation to such reference as they apply in relation to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 55A of the Act, the Assessing Officer has to record an opinion that (i) the fair market value of the asset exceeds the value of the asset as claimed by the assessee by more than such percentage or by more than such an amount as may be prescribed; or (ii) having regard to the nature of the asset and other relevant circumstances, it is necessary to make such a reference. 11. As can be seen from the communication dated Nil (Annexure D) from respondent No. 2 -DVO to the petitioner in so far as the fair market value of the property as on 1.4.1981 is concerned, the petitioner had claimed the same at a sum of Rs. 6,25,000 as per registered valuer's report. Therefore, the Assessing Officer was required to form an opinion that the value so ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessing Officer. 13. The record of the petition does not indicate as to what was the opinion formed by the Assessing Officer before making reference to the DVO. It is only from the undated communication of the DVO that one gathers that the valuer has undertaken estimation of the fair market value of the property as on 1.4.1981 and 28.12.1995. However, in the affidavit-in-reply the Assessing Officer himself states "to ascertain the fair market value of the property, a reference was made by this office to the Valuation officer on 26.4.1996, since, according to this office, the value declared by the assessee as on the date of execution and registration of the sale deed was lower by more than 25 per cent. The petitioner filed a return on 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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