TaxTMI 
TaxTMI 
2016 (7) TMI 1321
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.... M/s. Hotel Sachhidanand at Shirdi. The sale consideration which was shown at Rs. 1,30,00,000/- was below the value determined by the stamp valuation authorities at Rs. 2,65,75,000/-. The AO further noted that as per the valuation report dated 20-09-2004 the Government Valuer has determined cost of acquisition at Rs. 1,46,77,000/- in the A.Y. 2003-04 when he acquired the property by inheritance and the long term capital loss has been determined at Rs. 20,34,263/-. Further, the assessee is one of the partners of the firm M/s. Hotel Sai Sachhidanand. Since the full value of consideration received or accruing on transfer of capital asset is less than the value adopted by the stamp valuation authority, the AO referred the matter to the DVO for ....
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....in appeal before us with the following grounds : The following grounds are taken without prejudice to each other - On facts and in law, 1. The learned CIT(A) erred in confirming the addition of Rs. 11,91,040/- made by the A.O. in respect of long term capital gains on sale of hotel land and building made on 16.01.2010. 2. The learned CIT(A) erred in adopting the fair market value of hotel property as on 01.04.1981 at Rs.41,400/- as determined by the DVO as against the fair market value of Rs. 13,34,300/- determined by the Registered Valuer for the purposes of computing long term capital gains and thereby making the addition of Rs. 11 ,91,040/- in the hands of the assessee. 3. The learned CIT(A) failed to appreciate that the fair ma....
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....inserting the words " is at variance with its fair market value" has been inserted by the Finance Act, 2012 w.e.f. 01-07-2012, therefore, the same is not applicable in the instant assessment year which is 2010-11. 6. The Ld. Departmental Representative on the other hand heavily relied on the orders of the AO and the CIT(A). He submitted that since the value adopted by the assessee is more than the fair market value, therefore, in view of the amendment to the provisions of section 55A the AO can make a reference to the valuation officer and the amendment to the provisions of section 55A(a) should be treated as retrospective being clarificatory in nature. 7. I have considered the rival arguments made by both the sides, perused the orders of....
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....sidering the provisions of section 55A as well as the amendment to the said section by the Finance Act, 2012 w.e.f. 01-07-2012 has held that reference u/s.55A can be made to the DVO only when the value adopted by the assessee is less than the fair market value. Where the value adopted by the assessee is much more than the fair market value, no reference can be made to the valuation officer under the provisions of section 55A. The relevant observation of the Hon'ble High Court at page 701 to 703 read as under : "6. We have considered the rival submissions. We find that the impugned order dated 18 February, 2011 allowing the respondent assessee's appeal holding that no reference to the Departmental Valuation Officer can be made under Se....
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....variance with its fair market value" is clarifactory and should be given retrospective effect. This submission is in face of the fact that the 2012 amendment was made effective only from 1 July 2012. The Parliament has not given retrospective effect to the amendment. Therefore, the law to be applied in the present case is Section 55A(a) of the Act as existing during the period relevant to the Assessment Year 2006-07. At the relevant time, very clearly reference could be made to Departmental Valuation Officer only if the value declared by the assessee is in the opinion of Assessing Officer less than its fair market value. 9. The contention of the revenue that the reference to the Departmental Valuation Officer by the Assessing Officer is s....
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.... the Act. It further held that when a specific provision under which the reference can be made to the Departmental Valuation Officer is available, there is no occasion for the Assessing Officer to invoke the general powers of enquiry. In view of the above and particularly in view of clear provisions of law as existing during the period relevant to Assessment Year 2006- 07, we are of the view that questions (a) and (b) do not raise any substantial question of law. Regarding Question (c):- 11. The Tribunal by its impugned order has merely remanded the issue to the Assessing Officer to determine the date on which the respondent-assessee acquired the property for the purpose of working out the cost of acquisition. No specific submissions in r....