TaxTMI 
TaxTMI 
2022 (9) TMI 240
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....s in confirming the following disallowances/additions: (a) FMV as on 01.04.1981 of Chankheda land (b) FMV as on 01.04.81 of Tribhovan Park Bungalow - (c) Stamp duty value U/S.50C Rs.42,91,837/- (d) Exemption u/s.54F - (e) Unexplained loan and gifts Rs. 12,63, 000/- (f) Unexplained cash deposits in bank Rs. 5,90, 000/ 2.2 That in the facts and circumstances of the case as well as in law, the Ld.CIT(A) ought not to have upheld the above said additions/disallowances. 3.1 The Ld.CIT(A) has grievously erred in law and on facts in confirming the. reference made u/s.55A for valuation as on 01.04.1981 to DVO made by AO as well as the valuation determined by DVO at Rs.183/- per sqm in respect of land at Chandkheda bearing survey No. 621/3. 3.2 That-in the facts, and circumstances of the case as well as in law, the Ld.CIT(A) ought not have confirmed the fair market value as on 01.04.1981 in respect of Chandkheda land at Rs.183/- per sqm. 4.1 The Ld.CIT(A) has grievously erred in law and on facts in confirming the reference made u/s.55A for valuation as on 01.04.1981 to DVO made by AO as well as the valu....
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....d 05/04/10 01/04/81 2509888 292000 2076120 433768 Index of 2010-11: 711 Total -2455068 4.1 The assessee has also furnished the valuation report obtained from the registered valuer in support of the value of the properties declared as on 1 April 1981 who valued the same at Rs. 582 per square meter for the land and the Bungalow at Rs. 6,87,600.00 only. However, the AO was not satisfied with the valuation of both the properties done as on 1 April 1981. As per the AO, it was valued at a very exorbitant value. Thus, the AO made reference under the provisions of section 55A of the Act to the District Valuation Officer who valued the land at Rs. 183 per square meters and the bungalow at Rs. 2,67,805 as on 1 April 1981. 4.2 Besides the above the AO has also obtained valuation of the properties in question from the collector of stamp duty valuation. As per the information received from the collector office, the Jantri Value was applicable in Gujarat from the year 1999 and the value as on 1 January 1999 of the said land was at Rs. 80 per square meters only. Thus the AO o....
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....of Acquisition Rs. 19,04,093/- Indextion Cost Rs.2,67,805X711/100 = Rs.19,04,093/- LONG TERM CAPITAL GAIN Rs. 23,87,744/- 4.4 In view of the above the AO has determined the long-term capital gain from the sale of land and the bungalow at Rs. 24,32,658.00 and 23,87,744.00 respectively aggregating to Rs. 48,20,402.00 and added to the total income of the assessee. 5. Aggrieved assessee preferred an appeal to the learned CIT(A) . 6. The learned CIT(A) after considering the order of the AO and submission of the assessee directed the AO to recalculate capital gain on sale of land after taking value as on 1st April 1981 at Rs. 183 per square meters as valued by the DVO whereas the learned CIT(A) confirmed the working of the capital gain of the AO with regard to sale of bungalow. 7. Being aggrieved by the order of the learned CIT(A) the assessee is in appeal before us. 7.1 The learned AR before us filed a paper book running from pages 1 to 468 and submitted that the assessee has declared the value of the land as on 1-4-1981 based on the valuation report which is higher than the value of the land as worked by the AO. But there was no power t....
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....vant circumstances, it is necessary so to do, 8.1 A plain reading of the above provision reveals that the AO may refer the valuation of capital assets to a valuation officer where he's of the opinion that the value so claimed by the assessee is less than its fair market value. It is an undisputed fact that the assessee did not claim the value of the impugned land as on 1st April 1981 which is less than the fair market value. As such the assessee has claimed higher value than the fair market value as per the AO. Thus in our considered view, the AO has no power to substitute the value of capital assets in the given facts and circumstances. Accordingly, the AO cannot substitute the value declared by the assessee as on 1st April 1981. In this regard, we draw support and guidance from the judgment of Hon'ble Gujarat High Court in the case of CIT Vs. Gauranginiben S. Shodhan Indl (supra) wherein it was held as under: "15. Coming to the question of reference to DVO for ascertaining the fair market value as on 1.4.1981 also, we find that such reference was not competent. We have noticed that prior to the amendment in section 55A with effect from 1.7.2012 in a case, the value of....
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....ssessee is in accordance with the estimate made by the Registered Valuer, if the Assessing Officer is of the opinion that the value so claimed is less than the fair market value. In any other case, as provided under clause(b) of Sec. 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." 17. In the result, we see no reason to interfere. However, we have given our independent reasons and should not be seen to have confirmed the reasoning adopted by the Tribunal in the impugned judgment. Tax Appeal is dismissed." 8.2 Thus there remains no ambiguity that there was no power under the statute to the AO to refer the matter to the DVO or to substitute the value of the impugned land as on 1st April 1981. Therefore we hold that the AO in the given facts and circumstances cannot substitute the value of the impugned land as on 1st April 1981. 8.3 Before parting, we ....
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....xt issue raised by the assessee is that the learned CIT(A) erred in not allowing the claim of exemption under section 54F of the Act made during the assessment proceeding. 10. At the outset we note that we have allowed the main ground of the assessee with regard to value of the property as on 1st April 1981 which will result into long term capital loss in the hand of the assessee. Therefore, the issue of allowance of exemption under section 54F of the Act become redundant. Hence the ground of appeal of the assessee is hereby dismissed being infructuous. 11. The next issue raised by the assessee is that the learned CIT(A) erred in sustaining the addition of Rs. 12,63,000/- made under section 68 of the Act on account of loans or gifts. 12. The AO during the assessment proceeding found that the bank account of the assessee is credited for certain amount received from the following parties: S. No Name of party Amount credited 1. Darshan Patel Rs. 4,96,100/- 2. Diptiben D Patel Rs. 3,76,100/- 3. Arvind D Patel Rs. 16,100/- 4. Arvind P Patel Rs. 2,50,000/- 5. Hasumatiben A Patel Rs. 1,25,000/- Total Rs. 12,63,....
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.... adverse material brought on record. Further, if AO has any reservation with regard to the credit worthiness, the AO should have conducted independent enquiry from the parties or brought contrary materials on record. Thus, in view of the above and after considering the facts in totality, we are of the view that the assessee has discharged primary onus cast under section 68 of the Act and onus shifted on the AO to bring contrary material by making independent inquiries but the AO failed to do so. Hence, we hereby set aside the order of the learned CIT(A) and direct the AO to delete the addition made by him. Hence the ground of appeal of the assessee is hereby allowed. 17. The last issue raised by the assessee is that the learned CIT(A) erred in sustaining the addition made by the AO for Rs.5 lakhs representing the deposit of cash in the bank account. 18. It was found that there cash aggregating to Rs. 5.9 lakh deposited in the bank of the assessee on different dates. The assessee during the assessment proceedings submitted that cash was deposited out of the agriculture income. However, the assessee failed to file the documentary evidence suggesting that the assessee has earned....