TaxTMI 
TaxTMI 
2013 (10) TMI 521
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....et value as on 1.4.1981 has been taken by assessee at Rs. 7,61,475/- on the basis of report of registered valuer. The assessee computed the long term capital gain at Rs. 99,13,154/- and, thereafter, after claiming deduction under section 54 of the IT Act, the taxable long term capital gain was declared at Rs. 6,37,172/-. The AO during the assessment proceedings had referred the valuation of property as on 1.4.1981 to the District Valuation Officer (DVO). As per AO, the DVO had valued the property at Rs. 2,72,447/- as on 1.4.1981. The AO, therefore, computed the long term capital gain adopting the cost of acquisition as on 1.4.1981 of Rs. 2,72,447/- at Rs. 1,24,51,210/-. Thereafter, after allowing deduction under section 54 of the IT Act, the taxable long term capital gain was computed by AO at Rs.. 47,94,019/- 2.1 The assessee disputed the decision of AO and submitted before CIT (A), that both AO and DVO had not given adequate opportunity of hearing to assessee. It was pointed out that assessee had been prevented by the sufficient cause to file objections against the valuation report. The assessee also submitted that the report of the DVO valuing the property as on 1.4.1981 had no....
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....191) Reliance was also placed on the decision of Mumbai bench of Tribunal in case of Smt. Sarla N. Sakraney v. Income Tax Officer (130 ITD 167). The learned AR also referred to the judgment of Hon'ble High Court of Mumbai in case of CIT v. Daulal Mohta HUF [ITA no. 1031 of 2008] dated 22nd September 2008], in which the same view had been taken by the Hon'ble High Court. 3.1 It was also submitted that the assessee had also not been given proper opportunity of hearing by the DVO. It was pointed out that the DVO had prepared the draft report on 18.12.2009 and vide notice dated 18.12.2009, the hearing had been fixed on 28.12.2009. It was also pointed out that the notice had been received by the assessee on 26.12.2009 which was Saturday followed by two public holidays i.e. Sunday on 27.12.2009 and Muharram on 28.12.2009. The hearing thus had been fixed on a public holiday. The DVO without giving any further opportunity of hearing had passed the order on 30.12.2009. The learned AR for the assessee further pointed out that the DVO in the report a copy of which has been placed in the paper book, has himself written that on the date of inspection building had been demolished and the new bu....
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....ards. 4.1 As regards the additional ground raised by assessee, the learned DR submitted that full facts relating to the additional ground have not been placed on record and, therefore, the additional ground could not be raised at the level of Tribunal. 5. We have perused the records and considered the rival contentions carefully. The dispute raised in this appeal is regarding assessment of long term capital gain in respect of sale of plot of land. The dispute is limited to determination of cost of acquisition of the plot. The plot had been acquired prior to 1.4.1981 about which there is no dispute and, therefore, in such a case market value of the plot of the land as on 1.4.1981 will be the cost of acquisition. The assessee had taken the market value as on 1.4.1981 at Rs.. 7,61,475/- on the basis of report of registered valuer. The AO had, however, has made reference to the DVO regarding the market value as on 1.4.1981 and DVO has determined the market value at Rs.. 2,72,447. The registered valuer had valued the land at the rate of Rs. 706 per sq. ft. whereas the DVO has adopted the rate at Rs.. 310 sq. ft. after considering comparable cases. The Learned AR for assessee has raise....
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....whether reference could be made u/s 55A was thus not decided by the High Court. Therefore, the said judgment of the High Court cannot be considered as precedent. We also find that the issue whether reference to DVO can be made by AO under clause (b) of section 55A even if the report of the registered valuer has been filed by assessee has been decided by the Hon'ble High Court of Gujarat in case of ACC Ltd. (supra), in which it was held that even if the registered valuer report has been filed, the AO can make a reference u/s 55A (b) (ii). We also note that there is nothing in the section 55A which debars AO from making reference under clause (b) even when registered valuer report has been filed. In cases where registered valuer report has been filed reference under clause (a) of section 55A can be made if the AO finds the valuation lower than the market value. In any other case, clause (b) is applicable. Therefore, it is clear that clause (b) applies in situations where either no registered valuer report has been filed or if the registered valuer report has been filed but the valued determined is higher than the market value. Thus in case the AO is of the opinion that the value as p....