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2022 (11) TMI 410
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....sion of Hon'ble Gujarat High Court on similar facts and further erred in refusing to rectify the error under section 154 of the Income tax Act. All the above grounds of appeal are independent from one other and without prejudice to one other. We further crave to add new grounds of appeal during the course of hearing before your Honor." 3. As is evident from the ground raised, the challenge before us is against the order passed by the ld.CIT(A) dismissing the rectification application filed by the assessee u/s 154 of the Act. Without going into facts of the case itself, the ld.counsel for the assessee stated that the order passed by the ld.CIT(A) dismissing the assesseee's rectification application itself shows that he had admitted to the mistake in the order of the ld.CIT(A) but had refused to rectify the same for the reason that it would change the decision. He drew our attention to the very brief and cryptic order passed by the ld.CIT(A) u/s 154 of the Act dismissing assesses application for rectification of the order of the Ld.CIT(A) passed in quantum proceedings holding as under: "To, Shri Jitendra S. Patel, 2, Ajubhai Park, O....
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....ancestral property as Karta of his HUF. The share; of the HUF was only 25%. It was claimed that since the property belonged to H UF.ino capital gain was disclosed by the appellant. As against this, it is observed by the AO in para-3.5 of the assessment order that the land in question was received by the appellant by succession and not by total/partial partition of HUF of his father. No return was filed by HUF and there was no PAN in the name of HUF. From this, it was clear that relevant capital gain was not disclosed either in the hands of HUF or appellant. In view of above facts. AO taxed the capital gain in the hands of appellant. This decision of AO has not been challenged by the appellant as clear from the grounds of appeal. The only issue challenged by the appellant is computation of capital gain. 5.2 . The appellant has, during assessment proceedings, computed capital gain by taking the fair market value of land as on 01.04.1981 at Rs. 22,66,500/- at the rate of Rs. 300/square metre. The valuation was based on the report of the government approved valuer Amit B. Rami. The AO noted that in Annexure-A of the report, there was reference to 3 sale instances as comparable....
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....A) in this regard placed at PB Page No.2 to 5 as under: "2. - The copy of Order of Assessment, Grounds of Appeal and Appellant Order passed by Honble C1T (A) - 4 Ahmedabad is enclosed as annexure 1 - 3, herewith for your immediate reference arid perusal. 3. It is evident that the order of assessment was challenged on one ground that the reference under section 55A of the Act to DVO, by the learned AO was invalid. The appellant was before your office stating that reference to DVO under section 55A was unlawful and therefore order was not tenable in eyes of law. The appellant has placed reliance on the jurisdictional Gujarat High Court on the same point of law as represented in written submissions dated 09/02/2015, as re-produced here-under 23. We wish to place reliance on judgments of Hon'ble jurisdictional Gujarat High Court in case of Hitaben Jayantilal Shah vs ITO (2009) 310 ITR 31 (Gujarat High Court). The said judgment directly and fully applied to the facts of the present case. (Copy of decision enclosed as Annexure 4) 24. Further decision of Hon'ble ITAT Ahmedabad Bench C in case of ITO vs Nitin Jayantilal Shah ITA....
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.....Counsel for the assessee, itself are self-speaking and loud and clear that the ld.CIT(A) was aware that the decision of the jurisdictional High Court cited by the assessee was applicable in the facts of the case before him. In his order passed in quantum proceedings, we find, he dismisses assessee's contention of the reference made to DVO by the AO being bad in law relying on a decision of the Hon'ble Delhi High Court, this despite the fact that the assessee cited decision of the jurisdictional High Court in favour of the assessee. The Ld.CIT(A) did so without distinguishing the decision of the jurisdictional High Court cited by the assessee. In fact, he on the contrary implicitly accepted the applicability of the said decision to the facts of the case when he dismissed assesses plea stating in his order "with due respect to the order of the jurisdictional high court". This shows that he was aware that the decision of the jurisdictional High court applied to the issue before him Further, even when the assessee filed a rectification application before him for not following the jurisdictional High Court decision, the Ld.CIT(A) did not distinguish the said decision while dismis....
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....value of a capital asset for the purpose of Chapter IV of the Act, which includes the provisions relating to capital gains. Sections 45 to 55 fall under the chapter, under the sub head "E - Capital Gains". Section 55 (2) (b)(i) gives the assessee the option to substitute the fair market value of the property as on 01.04.1981 in the place of the cost of acquisition thereof, if the property had been acquired by the assessee before 01.04.1981. The option given to the petitioner was exercised by the petitioner by filing the letter dated 18.11.2010 before the Assessing Officer under which the original computation of the capital gains was sought to be substituted by a revised computation in which the cost of the property was taken at the fair market value as on 01.04.1981 at Rs. 21,72,95,000/- on the basis of the registered valuer's report. This letter was filed about 1½ months before the date on which the assessment would have become barred by time. The Assessing Officer while examining the computation of the capital gains was of opinion that the figure of Rs. 21,72,95,000/- shown as the fair market value of the property as on 01.04.1981 was on the ....
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....berty to strain every nerve in opposing and challenging any action sought to be taken by the Assessing Officer or any other departmental authority under the Act, if and when such an action is taken. We say nothing about the validity of any such action that may be taken under the Act. If the petitioner raises any objections to any such action that is taken under the Act, it would be the duty of the income tax authorities to examine and deal with them in accordance with law. Non-acceptance of the contentions of the petitioner in the present writ petition shall not be put against the petitioner in any proceedings that may be taken against it pursuant to the reference made to the DVO under Section 55A. 15. With the above observations the writ petition is dismissed. All interim orders stand vacated. There shall be no order as to costs" 7.2 The appellant has relied on few judicial pronouncements. Recently, Honourable ITAT Mumbai, 'F' Bench, in its order dated 21.06.2013 in ITA No. 261/Mum/2011 (A.Y.2007-08), has discussed all the relevant pronouncements on this issue and has held as below: "5. We have perused the records and considered the rival ....
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.... market value of the land as on 01.04.1981 was Rs. 21,72,95,000/-. It was on this basis that the Assessing Officer took the view that the valuer's report filed by the petitioner showed the figure on higher side and came to the conclusion that the matter should be referred to the DVO for valuation. The Assessing Officer obviously had the registered valuer's report filed by the petitioner before him. It cannot, therefore, be 'said that he had no basis or material to form the opinion that a reference ought to be made to the DVO. The reference was made before the assessment order was passed and during the pendency of the assessment proceedings. The contention of the petitioner to the contrary is therefore rejected. The main contention based on the judgment of the Calcutta High Court (supra) that once the assessment was completed, the pending reference to the DVO became invalid and of no effect need not be examined in the present proceedings for the simple reason that the petitioner can be said to be effectively prejudiced only when action is taken by the income tax authorities on the basis of the report submitted by the DVO. Even otherwise there is no p....
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....ction 147 of the Act on the basis of the report of the DVO is bad in law. A deeper study of the judgment of the Supreme Court discloses that what has been held therein is that "the opinion of the DVO per se is not an information for the purpose of reopening assessment under Section 147 of the Income-tax Act, 1961" and that "the Assessing Officer has to apply his mind to the information, if any, collected and must form a belief thereon". It may be possible to contend that the judgment of the Supreme Court interdict only a mechanical or robot-like reliance on the report of the DVO for the purpose of reopening the assessment under Section 147 and that if the reopening is based on an independent application of the mind of the Assessing Officer to the report obtained from the DVO and an independent formation of a belief on that basis, then the reopening would be valid. We are not to be understood as expressing any opinion on the applicability of the judgment to the action, if any, that may be taken on the basis of the report of the DVO. The judgment of the Supreme Court has been adverted to by the Division Bench of this Court in CIT v. Smt. Suraj Devi....
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....ik Page 10 of 13 valuer report has been filed, the AO can make a reference u/s 55A (b) (ii). We also note that there is nothing in the section 55A which debars AO, from making reference under clause (b) even when registered valuer report has been filed. In cases where registered valuer report has been filed reference under clause (a) of section 55A can be made if the AO finds the valuation lower than the market value. In any other case, clause (b) is applicable. Therefore, it is clear that clause (b) applies in situations where either no registered valuer report has been filed or if the registered valuer report has been filed but the valued determined is higher than the market value. Thus in case the AO is of the opinion that the value as per the registered valuer was higher than the market value, he could make reference u/s 55A (b) (ii). Therefore, following the judgment of Hon'ble High Court of Gujarat in case of ACC Ltd. Vs. DVO (Supra) we hold that the reference made by AO to DVO on the facts of the case is justified and order of CIT (A) on this point is therefore upheld. 7. We may also point out here that even if the reference made by the AO....