TaxTMI 
TaxTMI 
2022 (9) TMI 657
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....herefore, deserves to be quashed and set aside in the interest of justice. 3. The learned assessing officer and the learned Commissioner of Income Tax (Appeals)-3 have erred in appreciating the factual matrix of the case and legal position as decided by the Hon'ble Income Tax Appellate Tribunal, Ahmedabad in the case of Dasrath Patel Vs DCIT (2020) 116 taxmann.com 229 and therefore, the assessment order and demand raised and subsequently confirmed deserves to be quashed and set aside in the interest of justice. 4. The learned first appellate authority has misdirected itself in appreciating the submission made by the appellant and has not appreciated the factual matrix of the case and applicable legal position and therefore the order passed by the learned assessing officer and learned Commissioner of Income Tax (Appeals)-3 deserves to be quashed and set aside in the interest of justice. 5. The appellant craves for leave to add or amend or alter or modify any of the grounds of appeal in the interest of justice." 2. Brief facts of the case are that the assessee is a Cooperative Society, filed its return of income for the assessment year (AY) -2016-17, declaring NIL income. ....
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....er Section 142A of the Income Tax Act, 1961 (in short, the Act) as well as report of valuer furnished in terms of Section 55A of the Act by DVO. On the reference under Section 142A, the assessee submitted that prior to insertion of Section 142A, there was no specific provision for reference to DVO for estimating the cost of construction of a property/investment, the Assessing Officer were exercising power of summon under Section 131, survey under Section 133 or power of enquiry under Section 142(1) of the Act. Use of these powers by the Assessing Officer for reference to DVO were questioned before the various judicial forums and High Courts. Various conflicting views were taken for legitimacy of use of such power. Ultimately, the Hon'ble Supreme Court in the case of Amiya Bala Paul Vs CIT (2003) 262 ITR 407 has concluded that there is no power to Assessing officer for making such reference to DVO for valuation of investment for assessment purpose. Thereafter, vide Finance Act, 2004, a new Section 142A was inserted with retrospective effect from November, 1972 to neutralize the decision passed in Amiya Bala Paul Vs CIT (supra). As per Section 142A introduced by the Finance Act, 2004....
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....de under Section 142A and the DVO has furnished his report under Section 55A of the Act. Once, reference itself is bad and nonest because the asset is a capital asset and not hit by Section 69 and 69B or Section 56(2) of the Act, the report of DVO is not valid. The Assessing Officer has not brought anything on record to suggest the valuation adopted by assessee is at variance with fair market value prevailing at that point of time i.e. on 01/4/1981, therefore, no reference at all as required even under Section 55A can be made. Reliance was made on the decision of Hon'ble Gujarat High Court in the case of CIT Vs Manjulaben M Unadkat (2015) 55 taxmann.com 62 (Guj). 5. The ld. CIT(A) after considering the contents of assessment order and submission of assessee, not accepted the submission of assessee and upheld the order of Assessing officer by taking a view that the decisions relied by the assessee are prior to the amendment in section 142A. After the amendment in section 142A, the assessing officer may, for the purpose of making assessment or re-assessment require the valuation officer to the estimate of the value of any investment in any bullion, jewellery or fair market of value ....
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....fore making reference to DVO was also rejected by holding that objections of the assessee was considered by the DVO before furnishing his report. Further aggrieved the assessee has filed present appeal before this Tribunal. 7. We have considered the submissions of the learned authorised representative (AR) of the assessee and the learned senior departmental representative (Sr DR) for the revenue. The ld AR for the assessee submits that the reference made by assessing officer under Section 142A was not valid. Once the reference under Section 142A was not valid the report filed by DVO itself not valid. The ld AR for the assessee submitted that power to make reference by assessing officer is restricted to the matters related to section 69, 69A or 69B and the subject matter in the present case is understatement in the value of investment acquired during the year, reference under section 142A was not valid. The ld AR for the assessee also retreated all the submissions as made in writing before ld CIT(A). To support his submissions, the ld AR for the assessee also relied on the decision of Tribunal in Dasrathbhai Patel Vs DCIT (2022) 116 taxmann.com 229 (Ahd-Trib)/ 182 ITD 327 (Ahd-Trib....