TaxTMI 
TaxTMI 
TaxTMI 
2021 (6) TMI 535
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....devbhai T. Patel have been taken into consideration for deciding these appeals en masse. 3. The grounds of appeals raised by the assessee in lead case in ITA No.1686/AHD/2017, for AY.2012-13 are as follows: "(1) That on facts and in law, the learned CIT (A) ought to have held that the AO has erroneously invoked the provisions of section 50C of the Act while making the addition to capital gains. (2) That on facts, and in law, the learned CIT (A) ought to have held that the appellant was not provided the material gathered and relied by AO to make addition to Capital Gains, and thereby not providing reasonable and sufficient opportunity to rebut the same. (3) That on facts and in law, it ought to have been held that the cost of acquisition and FMV as on 01/04/1981, could not have been varied by simply relying on case of another assessee. (4) That on facts and in law, the learned CIT (A) has grievously erred in confirming the addition to Capital Gains by directing the AO to adopt the FMV as on 1/4/1981 @ Rs. 71.60 per sq. mt. adopted by the DVO in case of another assessee, as against Rs. 1,400/- per sq.mt. adopted by the appellant on the basis of Approved Valuer's Report. (5....
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.... July, 2012, which is applicable for assessment year 2013-14, whereas the assessee's case under consideration relates to assessment year 2012-13, hence amended provisions are not applicable to the assessee under consideration. 5. Therefore, in the light of the above facts, the Learned Counsel for the assessee invited our attention to the order dated 27.11.2020, passed by the Division Bench of this Tribunal in the case of Jagrutiben V. Patel in ITA Nos. 650 & 651/AHD/2017, for AY 2012-13, whereby the issue of fair market value in the context of the provisions of section 55A of the Act have been discussed and adjudicated in favour of assessee. Learned Counsel for the assessee submitted that these five appeals are squarely covered by the aforesaid order of the Tribunal, a copy of which is also placed before the Bench. 6. The Learned Senior Departmental Representative (in short "the ld. Sr. DR") for the Revenue relied on the order of the Assessing Officer. 7. We see no reason to take any other view of the matter then the view so taken by the Division Bench of this Tribunal in the case of Jagrutiben (supra) vide order dated 27.11.2020. In this order the Tribunal has interalia observe....
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....fair market value". We note that none of the condition got fulfilled, hence Ld. AO is not legally competent to make reference to the DVO. As explained above the amended provision of Sec. 55A is not applicable to all those documents which got registered before 01.07.2012, therefore, we note that the AO has (with its fair market value) misinterpreted the provision and erroneously applied it retrospectively. We note that with effect from July 1, 2012, the expression now used in clause (a) of Section 55A is 'at variance' the situation may, therefore, be different after July1, 2012 which is applicable for assessment year 2013-14 whereas the assessee`s case under consideration relates to assessment year 2012-13 hence amended 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 ....
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....st April, 1981 shown by the assessee on the basis of approved Valuer's report being more than its fair market value, reference under s.55A was not valid. Respectfully following the propositions laid down these two cases by the coordinate benches we uphold. the contention of the assessee and hold. that the reference made by the Assessing Officer to the DVO u/s 55A in the peculiar facts and circumstances of the case in bad in law. Thus, on the sole grounds of appeal of the assessee has to be allowed. 10. Further, where the fair market value of properly is shown more than the Fair Market Value, the AO1 cannot refer the same to valuation relating to assessment year failing before the date 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 w....
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....ect. This submission is in face of the fact that the 2012 amendment was made effective only from July 1, 2012. 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 dearly reference could be made to Departmental DVO only if the value declared by the assesses is in the opinion of AO less than its fair market value. 12. Thus, the contention of the Learned Departmental Representative that reference was made after 01.07.2012 is not tenable in law as the amendment made in section is substantive 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 i....