2015 (10) TMI 1865

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....der section 55A to the DVO was without jurisdiction, thereby deleting the addition of Rs. 70,16,582/- on account of long term capital gain from the sale of plot. 2. The facts of the case are that the assessee's father-in-law had purchased the property in question sometime in 1975, and by his Will dated 1982 left the property equally to his son and daughterin- law. On his demise in 1995, the property devolved on the assessee and her husband. Since the property would be considered as acquired prior to 1981, the assessee opted to value the same as on 1.4.1981 to arrive at the cost of acquisition. It was also noted that though the half share of the assessee was sold for a net consideration of Rs. 2,11,11,550, the property was not reflected i....

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....ated by the appellant for the purpose of taking out LTCG._____ 6. it is seen that honourable Gujarat High Court decision in the case of Hiraben J. Shah versus ITO 310 ITR 31 is applicable in the case of appellant wherein it was held - The estimated value proposed by the DVO is at Rs. 397000 which is less than the fair market value shown by the assessee as on 1.04.1981. Therefore, clause (a) of section 55A cannot be made applicable. Clause (b) of section 55A can be invoked only in any other case namely when the value of asset claimed by the assessee is not supported by an estimate made by registered valuer. In the conclusion honourable High Court stated as under :- "Reference made by the AO under section 55A to DVO on 26 April 19....

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.... on 1.04.1981 made by the assessing officer is not confirmed. The addition is therefore deleted.'' The Revenue is in appeal before us. 3. The ld. DR supported the order of Assessing Officer and submitted that the ld. CIT(A) has wrongly deleted the addition. His order may be set aside and that of the AO be restored. On the other hand, the ld. AR relied on the order of ld. CIT(A) and submitted that the ld. first appellate authority has rightly deleted the addition. He also submitted that the issue is covered in favour of the assessee by the decision of the Tribunal vide order dated 20.03.2015 in ITANo.284/Ahd/2011 for AY 2007-08 in the case o DCIT vs. Shri Dipakbhai Shankarlal Contractor. 4. We have considered the rival submission....