TaxTMI 
TaxTMI 
2022 (9) TMI 704
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....he appellant with regard to the impugned addition. 2.1 The Ld. CIT(A) has grievously erred in law and on facts in confirming that the reference of Valuation Officer u/s 55A was valid, his valuation as on 01/4/ 1981 at Rs. 46,350/- was fair and correct. 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 that the reference to Valuation Officer u/s 55A was valid; his valuation as on 01/4/1981 at Rs. 46,350/- was fair and correct, thereby rejecting the registered valuer's report and objections raised by the appellant to the valuation of VO. 3.1 The Ld. CIT(A) has erred in law and on facts in rejecting the additional ground of appeal raised by the appellant relating to exemption u/s 54B. It is, therefore, prayed that the LTCG of Rs. 38,03,718/- upheld by the CIT(A) may kindly be deleted." 2. Brief facts of the case are that the assessee is an individual filed his return of income on 29/03/2014 declaring total income of Rs. 1,97,710/-. The case of assessee was selected for scrutiny. During the assessment, the Assessing Officer noted that the assessee along with his two coowners has sold a p....
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....arket value of the land ascertained by Valuation officer as on 01/04/1981 Rs. 46,350/- (iv) Cost of acquisition for share of Assessee Rs. 15,450/- (v) Indexed cost = 15,450 x 785/100 Rs. 1,21,282/- (vi) Total Long Term Capital gain = (40,00,000 - 1,21,282) Rs. 38,78,718/- On the basis of above working, the Assessing Officer made addition of Rs. 38,03,718/- while passing the assessment order on 30/3/2015. 4. Aggrieved by the additions of long-term capital gain of Rs. 38,78,718/- in the assessment, the assessee filed appeal before the ld. CIT(A). Before the ld. CIT(A), the assessee filed detailed written submissions. Part of the written submissions is extracted in para 5 of order of ld. CIT(A). In the written submission, the assessee stated that the Assessing Officer ought not to have made reference to Departmental Valuation Officer (DVO) under Section 55A of the Act for determining value of land as on 01/4/1981. Reference so made is illegal and against the principle of natural justice. The assessee submitted that reference so made on the ground that the law existing at relevant time did not permit the Assessing Officer to make reference to DVO. Th....
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....nished his remand report dated 29/11/2016. In the remand report, the Assessing Officer objected against the claim of deduction under Section 54B on the ground that at the time selling of original asset, the permission was granted for non-agriculture purpose and that the assessee has not claimed such deduction while filing return of income. On the reference to the DVO, the Assessing officer submitted that the assessee has not filed any objection either during the assessment or before the valuation officer. The ld. CIT(A) provided the copy of remand report to the assessee. The assessee filed his reply on 17/03/2017 as recorded in para 6.1.4 of order of ld. CIT(A). the assessee objected to the remand report furnished by the Assessing Officer and contended that the Assessing Officer has reported the stand taken by her while framing the assessment order. 6. The ld. CIT(A) after considering the submission of assesse and remand report furnished by Assessing Officer, upheld the addition of long term capital gain by taking a view that the Assessing Officer can make a reference to the valuation officer to ascertain the fair market value of capital asset under Section 55A. This section was....
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....nd along with his co-owner vide registered sale deed executed on 03/8/2011 which was registered with Sub- Registrar, Olpad on 09/11/2011. The assessee adopted the fair market value @ Rs. 100 per square meter as on 01.041981, on the basis of report of registered valuer. During the assessment, the Assessing Officer made reference to the DVO. The DVO suggested the rate of land as on 01/4/1981 at Rs. 3.09 per square meter. The ld. AR submits that the Assessing Officer was not entitled to make the reference to the DVO for ascertaining fair market value of the asset as the amended provision of Section 55A is not applicable on the transaction of assessee, as the assessee has sold his asset in 2011 and the amended provision of Section 55A is applicable from 01/7/2012. The ld. AR of the assessee submits that the grounds of appeal raised by assessee is covered by the series of decisions including the decision of Ahmedabad bench in the case of Kantilal Manilal Patel Vs ITO in ITA No. 2536/Ahd/2017 (A.Y. 2012-13) dated 08/07/2019 wherein the Tribunal by relying on the decision of Hon'ble Gujarat High Court in CIT Vs Gauranginiben S. Shodhan 45 taxmann.com 356 (Guj) held that if the value decla....
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.... Such clause, 'therefore, as it stood at the relevant time, had no application to the valuation as on 1.4.1981. We are conscious that with effect from 1.7.2012, the expression now used in clause (a) of section 55A is "is at variance with its fair market value". The situation may, therefore, be different after 1.7.2012. We are, however, concerned with the period prior thereto. Clause (b) of section 55A is in two parts and permits a reference to DVO if the Assessing Officer is of the opinion that (i) the fair market value of the asset exceeds the value of the asset so claimed by the assessee by more than such percentage of the value of the asset so claimed or by more than such amount as may be prescribed in this behalf; or (ii) that having regard to the nature of the asset and other relevant circumstances, it is necessary so to do. Sub-clause(i) of clause (b) also for the same reasons recorded above, would have no bearing on the fair market value as on 1.4.1981. The Assessing Officer had not resorted to sub-clause(ii) of clause (b). In any case, clause (b) would apply where clause(a) does not apply since it starts with the expression "in any other case". In other words if assesse....
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....essee has transferred his land on 8.7.2011. The discussion made by the ITAT in this connection reads as under: "10. We have considered this decision in ITA No.2027/Ahd/2015 in the case of Shri Devendra Rasiklal Shah Vs. DCIT (supra) wherein para-8 of the Bombay High Court decision has been reproduced, which reads asunder: "8. The contention of the revenue that in view of the amendment to Section 55A(a) of the Act in 2012 by which the words "is less then the fair market value" is substituted by the words " "is at 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." 11. Therefore, respectful....
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....thority. Though, the Assessing Officer has no jurisdiction/authority to admit the additional ground of appeal or fresh claim in absence of revised return of income, however, this power of first appellate authority or Tribunal is not restricted to admit additional claim or additional ground of appeal. 13. On the other hand, the ld. Sr. DR for the revenue has supported the order of ld. CIT(A) and submitted that no such claim was raised before the Assessing officer nor revised return of income was filed by the assessee. 14. We have considered the rival submissions of both the parties and find that the assessee has raised additional ground of appeal for the first time before the ld. CIT(A) on the ground that the assessee has purchased another agricultural land within two years from the sale of agricultural land and that land sold by the assessee soon before transfer was used for agriculture propose. We find that the assessee has raised additional ground of appeal for seeking deduction under section 54B for the first time before ld CIT(A) by taking plea that such claim was neither made at the time of filing return of income or even at the time of filing appeal. However, the assess....