Smt. Bhudevei Krishnarao Gorantyal, Jalna V. Income-tax Officer,

ITA 1036/PUN/2015

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 2453 (ITAT-PUNE)
• Duration Of Justice: 3 year(s) 7 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-03-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 20-02-2019
• Assessment Year: 2008-2009
• Appeal Filed On: 17-07-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ASHOK BABU
• Keywords: Sale consideration of property below Jantri Value; Gift; Retrospective amendment; Question of law; Cost of acquisition; Fair market value; Valuation report
• Section: 131; 148; 143(3); 50C; 234B; 133(6)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH A , PUNE , , . , BEFORE MS. SUSHMA CHOWLA, JM AND SHRI D. KARUNAKARA RAO , AM . / ITA NO. 1 036 /P U N/201 5 / ASSESSMENT YEAR : 20 08 - 09 SMT. BHUDEVI KISHANRAO GORANTYAL C/O MAJOOR CHAAP BEEDI, NEHRU ROAD, JALNA . / APPELLANT PAN: BIRPG4921Q VS. THE INCOME TAX OFFICER, WARD 1(3), JALNA . / RESPONDENT / APPELLANT BY : SHRI S.N. PURANIK / RESPONDENT BY : SHRI ASHOK BABU / DATE OF HEARING : 20 . 02 .201 9 / DATE OF PRONOUNCEMENT: 12 . 0 3 .201 9 / OR DER PER SUSHMA CHOWLA, J M : THE APPEAL FILED BY ASSESSEE IS AGAINST ORDER OF CIT (A) - 1 , AURANGABAD , DATED 20 . 03 .20 1 5 RELATING TO ASSESSMENT YEAR 20 08 - 09 AGAINST ORDER PASSED UNDER SECTION 143(3) R.W.S. 147 OF THE INCOME - TAX ACT , 1961 (IN SHORT THE ACT) . 2. THE PRESENT APPEAL HAS BEEN FILED AFTER DELAY OF 49 DAYS. THE ASSESSEE HAS FILED AN AFFIDAVIT EXPLAINING THE REASONS FOR FILING THE APPEAL LATE. IN THE ITA NO. 1036 /P U N/20 1 5 SMT. BHUDEVI KISHANRAO GORANTYAL 2 TOTALITY OF THE ABOVE SAID FACTS AND CIRCUMSTANCES, WE FIND MERIT IN THE SUBMISSIONS MADE BY ASSES SEE AND THE DELAY OF 49 DAYS IN FILING THE APPEAL LATE BEFORE THE TRIBUNAL IS CONDONED. 3. THE ASSESSEE HAS FILED MODIFIED GROUNDS OF APPEAL , WHICH READ AS UNDER : - 1) COMMISSIONER (APPEALS) HAS ERRED IN HOLDING THAT PROCEEDING U/S 148 ARE VALID, APPELLANT PRAYS TO HOLD THAT PROCEEDING U/S 148 ARE BAD IN LAW, INVALID AND WITHOUT JURISDICTION. 2) COMMISSIONER (APPEALS) HAS ERRED IN HOLDING THAT ASSESSMENT ORDER PASSED U/S 143(3) R.W.S. 147/148 IS VALID. 3) COMMISSIONER (APPEALS) HAS ERRED IN RESTRICTING TH E RELIEF TO ONLY RS.14,87,380/ - SUBSTITUTING HIS OWN ESTIMATE OF VALUATION AS OF 01 - 04 - 1981 AGAINST THE CLAIM OF THE APPELLANT AND WITHOUT CONSIDERING THE FACT THAT APPELLANT IS ONLY CO OWNER FOR 1/9 TH SHARE. APPELLANT PRAYS FOR DELETION OF WHOLE ADDITION . 4) WITHOUT PREJUDICE TO GROUND NO.1 TO 3 ABOVE, CIT(A) HAS ERRED IN NOT GRANTING JUST AND EQUITABLE RELIEF CONSIDERING THE FACT THAT APPELLANT IS NOT FULL OWNER OF THE LAND BUT THERE ARE 9 CO OWNERS AND APPELLANT SHARE IS DULY 1/9 TH . 5) LIABILITY INTER EST CHARGED BY ASSESSING OFFICER U/S 234A & 234B IS DENIED BY APP ELLANT SAME MAY PLEASE BE DELETED. 4 . THE ASSESSEE HAS ALSO FILED ADDITIONAL GROUNDS OF APPEAL WHICH READ AS UNDER: - 1. WITHOUT PREJUDICE TO EARLIER GROUNDS CIT(A) HAS ERRED IN NOT CONSIDERI NG THE FACTS OF THE CASE, LEGAL POSITION AND AVERMENTS IS SALE DEED ENTRIES ON REVENUE RECORD ETC. AND RESTRICTING THE CAPITAL GAIN OF ANY TO THE EXTENT OF ASSESSEE APPELLANTS SHARE IN THE PROPERTY AS A LEGAL HEIR. APPELLANT PRAYS TO RESTRICT 1/9 TH SHAR E OF THE CAPITAL GAIN FINALLY COMPUTED IN THE HANDS OF THE APPELLANT. 2. CIT(A) HAS ERRED IN NOT GRANTING DEDUCTION FOR COST OF TRANSFER I.E. STAMP DUTY, REGISTRATION, LEGAL FEE, ETC. BEING OBLIGATION OF VENDORS, AS PER SALE DEED. APPELLANT PRAYS TO CON SIDER THE SAME. 5. THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE AT THE OUTSET POINTED OUT THAT IN CASE GROUNDS OF APPEAL NO.3 AND 4 ARE DECIDED, THEN THE GROUNDS OF APPEAL 1 AND 2 AND ADDITIONAL GROUNDS OF APPEAL NO.1 AND 2 WOULD ITA NO. 1036 /P U N/20 1 5 SMT. BHUDEVI KISHANRAO GORANTYAL 3 BECOME ACADEMI C IN NATURE. SO, WE PROCEED FIRST TO ADDRESS THE ISSUE RAISED VIDE GROUNDS OF APPEAL NO.3 AND 4. 6. BRIEFLY, IN THE FACTS OF THE CASE, THE ASSESSEE DURING THE YEAR UNDER CONSIDERATION HAD SOLD LAND AT JALNA, WHICH WAS PURCHASED BY HER HUSBAND, WHO EXPIRE D ON 14.12.1999. THE CASE OF ASSESSEE WAS REOPENED FOR ASSESSMENT AS THE ASSESSEE HAD NOT DISCLOSED THE SAID TRANSACTION IN ITS RETURN OF INCOME. WITHOUT GOING INTO THE MERITS OF REOPENING THE ASSESSMENT OR ASSESSMENT OF INCOME IN THE HANDS OF ASSESSEE, THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE BEFORE US HAS POINTED OUT THAT THE ASSESSEE HAD SHOWN COST OF ACQUISITION OF THE SAID PROPERTY AS ON 01.04.1981. HOWEVER, THE ASSESSING OFFICER DID NOT ACCEPT THE SAME ALLEGING THAT THE VALUATION SO D ECLARED WAS EXCESSIVE AND REFERRED THE VALUATION TO DVO UNDER SECTION 55A OF THE ACT. THE ASSESSING OFFICER THEREAFTER, COMPLETED ASSESSMENT ON THE LOWER VALUATION DECLARED BY THE DVO AND COMPUTED CAPITAL GAINS AT 78,97,730/ - . THE STAND OF ASSESSEE WAS APPROVED BY THE CIT(A) AND VIDE PARA 8.2, HE H E LD THAT THE ASSESSING OFFICER WAS NOT JUSTIFIED IN REFERRING THE IMPUGNED PROPERTY FOR VALUATION BY THE DVO AS ON 01.04.1981. HOWEVER, HE GOES ON TO ESTIMATE THE VALU E OF PROPERTY AS ON 01.04.1981 AND RE - COMPUTES THE INCOME FROM CAPITAL GAINS IN THE HANDS OF ASSESSEE. THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE BEFORE US HAS POINTED OUT THAT THE ISSUE RAISED IN THE PRESENT APPEAL STANDS SQUARELY COVERED BY THE ORDER OF TRIBUNAL IN THE CASE OF SHRI RAJENDRA KANHIYALAL BHARTIYA VS. ITO & ANR. IN ITA NOS.1424 & 1425/PUN/2017, RELATING TO ASSESSMENT YEAR 2010 - 11, ORDER DATED 28.08.2018 , WHEREIN APPLYING THE RATIO LAID DOWN BY THE HONBLE BOMBAY HIGH COURT IN CIT VS. PUJA PRINTS (2014) 360 ITR 697 (BOM), THE TRIBUNAL HELD THAT THE ASSESSING OFFICER CANNOT ADOPT THE FAIR MARKET VALUE AT LOWER FIGURE . ITA NO. 1036 /P U N/20 1 5 SMT. BHUDEVI KISHANRAO GORANTYAL 4 7. THE LEARNED DEPARTMENTAL REPRESENTATIVE FOR THE REVENUE PLACED RELIANCE ON THE ORDERS OF AUTHORITIES BELOW. 8. W E HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE RECORD. THE LIMITED ISSUE WHICH ARISES IN THE PRESENT APPEAL IS WITH REGARD TO COMPUTATION OF LONG TERM CAPITAL GAINS IN THE HANDS OF ASSESSEE. THE ASSESSEE IS AGGRIEVED BY THE ORDERS OF AUTHORITIES BELO W IN NOT ACCEPTING THE VALUATION DECLARED BY THE ASSESSEE BEING THE COST OF ACQUISITION AS ON 01.04.1981, WHICH WAS BASED ON THE VALUATION REPORT OF REGISTERED VALUER AND ADOPTING THE FIGURE LESSER THAN THE VALUE DECLARED BY ASSESSEE. THE ASSESSING OFFICE R HAD REFERRED THE MATTER TO THE DVO, WHO HAD VALUED THE SAID PROPERTY AS ON 01.04.1981 AT A LESSER FIGURE. THE CIT(A) THOUGH DECIDES THE ISSUE OF REFERENCE TO THE DVO IN FAVOUR OF ASSESSEE, BUT IN THE FINAL ANALYSIS, ADOPTS / WORKS OUT THE COST OF ACQUIS ITION AS ON 01.04.1981 ON HIS OWN. WE FIND NO MERIT IN THE STAND OF AUTHORITIES BELOW. THE ASSESSING OFFICER OR CIT(A) IS PRECLUDED FROM ADOPTING THE FAIR MARKET VALUE AS ON 01.04.1981 AT A VALUE LESSER THAN THE VALUE DECLARED BY THE ASSESSEE, WHILE COMP UTING THE LONG TERM CAPITAL GAINS, IN VIEW OF THE RATIO LAID DOWN BY THE HONBLE BOMBAY HIGH COURT IN CIT VS. PUJA PRINTS (SUPRA). THE SAID PROPOSITION HAS BEEN APPLIED BY PUNE BENCH OF TRIBUNAL IN THE CASE OF SHRI RAJENDRA KANHIYALAL BHARTIYA VS. ITO (SU PRA) AND IT HAS BEEN HELD AS UNDER: - 9. ON PERUSAL OF RECORD AND AFTER HEARING THE LEARNED DEPARTMENTAL REPRESENTATIVE FOR THE REVENUE, IT TRANSPIRES THAT THE ISSUE OF ADOPTION OF FAIR MARKET VALUE AS ON 01.04.1981 AND WHETHER THE SAME CAN BE ADOPTED AT V ALUE LESSER THAN THE VALUE DECLARED BY THE ASSESSEE, WHILE COMPUTING INCOME FROM CAPITAL GAINS, HAS BEEN DELIBERATED UPON BY THE HONBLE BOMBAY HIGH COURT IN CIT VS. PUJA PRINTS (2014) 360 ITR 697 (BOM) AND IT HAS BEEN HELD AS UNDER: - 6 . WE HAVE CONSIDE RED THE RIVAL SUBMISSIONS. WE FIND THAT THE IMPUGNED ORDER DATED 18 FEBRUARY, 2011 ALLOWING THE RESPONDENT ASSESSEE'S APPEAL HOLDING THAT NO REFERENCE TO THE DEPARTMENTAL VALUATION OFFICER CAN BE MADE UNDER SECTION 55A OF THE ACT, ONLY FOLLOWS THE DECISION OF THIS COURT IN THE MATTER OF DAULAL MOHTA HUF (SUPRA). THE REVENUE HAS NOT BEEN ABLE TO POINT OUT HOW THE AFORESAID DECISION IS INAPPLICABLE TO THE PRESENT FACTS NOR HAS THE REVENUE POINTED OUT THAT THE DECISION IN DAULAL MOHTA HUF (SUPRA) HAS NOT BEEN ITA NO. 1036 /P U N/20 1 5 SMT. BHUDEVI KISHANRAO GORANTYAL 5 ACCEPTED BY THE REVENUE. ON THE AFORESAID GROUND ALONE, THIS APPEAL NEED NOT BE ENTERTAINED. HOWEVER, AS SUBMISSIONS WERE MADE ON MERITS, WE HAVE INDEPENDENTLY EXAMINED THE SAME. 7 . WE FIND THAT SECTION 55A(A) OF THE ACT VERY CLEARLY AT THE RELEVANT TIME PROVIDED THAT A REFERENCE COULD BE MADE TO THE DEPARTMENTAL VALUATION OFFICER ONLY WHEN THE VALUE ADOPTED BY THE ASSESSEE WAS LESS THAN THE FAIR MARKET VA LUE. IN THE PRESENT CASE, IT IS AN UNDISPUTED POSITION THAT THE VALUE ADOPTED BY THE RESPONDENT - ASSESSEE OF THE PROPERTY AT RS.35.99 LAKHS WAS MUCH MORE THAN THE FAIR MARKET VALUE OF RS.6.68 LAKHS EVEN AS DETERMINED BY THE DEPARTMENTAL VALUATION OFFICER. I N FACT, THE ASSESSING OFFICER REFERRED THE ISSUE OF VALUATION TO THE DEPARTMENTAL VALUATION OFFICER ONLY BECAUSE IN HIS VIEW THE VALUATION OF THE PROPERTY AS ON 1981 AS MADE BY THE RESPONDENT - ASSESSEE WAS HIGHER THAN THE FAIR MARKET VALUE. IN THE AFORESAID CIRCUMSTANCES, THE INVOCATION OF SECTION 55A(A) OF THE ACT IS NOT JUSTIFIED. 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 TH AT 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 LE SS THAN ITS FAIR MARKET VALUE. 9. THE CONTENTION OF THE REVENUE THAT THE REFERENCE TO THE DEPARTMENTAL VALUATION OFFICER BY THE ASSESSING OFFICER IS SUSTAINABLE IN VIEW OF SECTION 55A(A) (II) OF THE ACT I S NOT ACCEPTABLE. THIS IS FOR THE REASON THAT SECTION 55A(B) OF THE ACT VERY CLEARLY STATES THAT IT WOULD APPLY IN ANY OTHER CASE I.E. A CASE NOT COVERED BY SECTION 55A(A) OF THE ACT. IN THIS CASE, IT IS AN UNDISPUTABLE POSITION THAT THE ISSUE IS COVERED BY SECTION 55A(A) OF THE ACT. THEREFORE, RESORT CANNOT BE HAD TO THE RESIDUARY CLAUSE PROVIDED IN SECTION 55A(B)(II) OF THE ACT. IN VIEW OF THE ABOVE, THE CBDT CIRCULAR DATED 25 NOVEMBER 1972 CAN HAVE NO APPLICATION IN THE FACE OF THE CLEAR POSITION IN LAW. THIS IS SO AS THE UNDERSTANDING OF THE STATUTORY PRO VISIONS BY THE REVENUE AS FOUND IN CIRCULAR ISSUED BY THE CBDT IS NOT BINDING UPON THE ASSESSEE AND IT IS OPEN TO AN ASSESSEE TO CONTEND TO THE CONTRARY. 10. THE CONTENTION OF THE REVENUE THAT THE ASSESSING OFFICER IS ENTITLED TO REFER THE ISSUE OF VAL UATION OF THE PROPERTY TO THE DEPARTMENTAL VALUATION OFFICER IN EXERCISE OF ITS POWER UNDER SECTIONS 131 , 133(6) AND 142(2) OF THE ACT IS ENTIRELY BASED UPON THE DECISION OF THE GUWAHATI HIGH COURT IN SMT. AMIYA BALA PAUL (SUPRA). HOWEVER, THE APEX COURT IN SMT. AMIYA BALA PAUL (SUPRA) HAS REVERSED THE DECISION OF THE GUWAHATI HIGH COURT AND HELD THAT IF THE POWER TO REFER ANY DISPUTE WITH REGARD TO THE VALUATION OF THE PROPERTY WAS ALREADY AVAILABLE UNDER SECTIONS 131(1) , 136(6) AND 142(2) OF THE ACT, THERE WAS NO NEED TO SPECIFICALLY EMPOWER THE ASSESSING OFFICER TO DO SO IN CIRCUMSTANCES SPECIFIED UNDER SECTION 55A OF THE ACT. IT FURTHER HELD THAT WHEN A SPECIFIC PROVISION UNDER WHICH THE REFERENCE CAN BE MADE ITA NO. 1036 /P U N/20 1 5 SMT. BHUDEVI KISHANRAO GORANTYAL 6 TO THE DEPARTMENTAL VALUATION OFFICER IS AVAILABLE, THERE IS NO OCCASION FOR THE ASSESSING OFFICER TO INVOKE THE GENERAL POWERS OF ENQUIRY. IN VIEW OF THE ABOVE AND PARTICULARLY IN VIEW OF CLEAR PROVISIONS OF LAW AS EXISTING DURING THE PERIOD RELEVANT TO ASSESSMENT YEAR 2006 - 07, WE ARE OF THE VIEW THAT QUESTIONS (A) AND (B) DO NOT RAISE ANY SUBSTANTIAL QUESTION OF LAW. REGARDING QUESTION (C): - 11 . THE TRIBUNAL BY ITS IMPUGNED ORDER HAS MERELY R EMANDED THE ISSUE TO THE ASSESSING OFFICER TO DETERMINE THE DATE ON WHICH THE RESPONDENT - ASSESSEE ACQUIRED THE PROPERTY FOR THE PURPOSE OF WORKING OUT THE COST OF ACQUISITION. NO SPECIFIC SUBMISSIONS IN REGARD TO THIS ISSUE WAS MADE BY THE REVENUE DURING T HE ORAL SUBMISSIONS. IN ANY EVENT, AN ORDER OF REMAND IN THESE FACTS DOES NOT GIVE RISE TO ANY SUBSTANTIAL QUESTION OF LAW. 12. ACCORDINGLY, WE SEE NO REASON TO ENTERTAIN QUESTIONS (A), (B) AND (C) AS FORMULATED BY THE REVENUE AS THEY DO NOT RAISE ANY SU BSTANTIAL QUESTIONS OF LAW. ACCORDINGLY, APPEAL IS DISMISSED WITH NO ORDER AS TO COSTS. 10. THE TRIBUNAL APPLYING THE RATIO LAID DOWN BY THE HONBLE BOMBAY HIGH COURT IN CIT VS. PUJA PRINTS (SUPRA) IN SERIES OF CASES WITH SPECIAL MENTION IN ITA NO.587/PU N/2014, RELATING TO ASSESSMENT YEAR 2009 - 10, IN THE CASE OF SMT. RATNAKANTA B. AGRAWAL VS. ITO VIDE ORDER DATED 24.07.2017 HAD HELD AS UNDER: - 10. ON PERUSAL OF RECORD AND AFTER HEARING BOTH THE LEARNED AUTHORIZED REPRESENTATIVES, THE PRELIMINARY ISSUE W HICH IS RAISED BY WAY OF ADDITIONAL GROUND OF APPEAL IS A PURELY LEGAL GROUND OF APPEAL, WHICH CHALLENGES THE JURISDICTION OF THE ASSESSING OFFICER IN COMPLETING ASSESSMENT BOTH UNDER SECTIONS 50C AND 55A OF THE ACT. IN THE FACTS OF THE CASE, THE ASSESSEE HAD SOLD PROPERTY AT AMRAVATI ADMEASURING 0 H 38R. THE ASSESSEE HAD RECEIVED HER SHARE IN THE SAID PROPERTY AS GIFT FROM HER FATHER AND HAD SOLD ONE PORTION OF THE PROPERTY MUCH EARLIER. DURING THE YEAR UNDER CONSIDERATION, THE ASSESSEE RECEIVED TOTAL C ONSIDERATION OF RS.87,21,000/ - ON SALE OF BALANCE SHARE IN THE PROPERTY. ON THE OTHER HAND, THE STAMP DUTY AUTHORITIES HAD ADOPTED THE VALUATION OF SAID PLOT OF LAND UNDER SECTION 50C OF THE ACT AT RS.1,07,31,000/ - . THE ASSESSING OFFICER DURING THE COURS E OF ASSESSMENT PROCEEDINGS HAD MADE REFERENCE TO THE VALUATION OFFICER UNDER SECTION 50C OF THE ACT AS THE ASSESSEE HAD OBJECTED TO THE VALUATION MADE BY THE STAMP VALUATION AUTHORITIES. THE ASSESSING OFFICER ALSO REFERRED TO THE VALUATION OFFICER THE CO ST OF ACQUISITION OF LAND AS PER SECTION 55A OF THE ACT. THE FIRST OBJECTION RAISED BY THE ASSESSEE IS AGAINST INVOKING THE PROVISIONS OF SECTION 55A OF THE ACT, UNDER WHICH, COST OF ACQUISITION DECLARED BY THE ASSESSEE HAS BEEN ADOPTED AT A FIGURE LESSER THAN THE VALUE DECLARED BY THE ASSESSEE. IN THIS REGARD, I FIND THAT THE ISSUE IS SQUARELY COVERED IN FAVOUR OF ASSESSEE BY THE ORDER OF THE HONBLE BOMBAY HIGH COURT IN CIT VS. PUJA PRINTS (SUPRA), WHEREIN THE HONBLE HIGH COURT HELD AS UNDER: - 6 . WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. WE FIND THAT THE IMPUGNED ORDER DATED 18 FEBRUARY, 2011 ALLOWING THE RESPONDENT ASSESSEE'S APPEAL HOLDING THAT NO REFERENCE TO THE DEPARTMENTAL VALUATION OFFICER CAN BE MADE UNDER SECTION ITA NO. 1036 /P U N/20 1 5 SMT. BHUDEVI KISHANRAO GORANTYAL 7 55A OF THE ACT, ONLY FOLLOWS THE DECISION OF THIS COURT IN THE MATTER OF DAULAL MOHTA HUF (SUPRA). THE REVENUE HAS NOT BEEN ABLE TO POINT OUT HOW THE AFORESAID DECISION IS INAPPLICABLE TO THE PRESENT FACTS NOR HAS THE REVENUE POINTED OUT THAT THE DECISION IN DAULAL MOHTA HUF (SUPRA) HAS NOT BEEN ACCEPTED BY THE REVENUE. ON THE AFORESAID GROUND ALONE, THIS APPEAL NEED NOT BE ENTERTAINED. HOWEVER, AS SUBMISSIONS WERE MADE ON MERITS, WE HAVE INDEPENDENTLY EXAMINED THE SAME. 7 . WE FIND THAT SECTION 55A(A) OF THE ACT VERY CLEARLY AT THE RELEVANT TIME PROVIDED THAT A REFERENCE COULD BE MADE TO THE DEPARTMENTAL VALUATION OFFICER ONLY WHEN THE VALUE ADOPTED BY THE ASSESSEE WAS LESS THAN THE F AIR MARKET VALUE. IN THE PRESENT CASE, IT IS AN UNDISPUTED POSITION THAT THE VALUE ADOPTED BY THE RESPONDENT - ASSESSEE OF THE PROPERTY AT RS.35.99 LAKHS WAS MUCH MORE THAN THE FAIR MARKET VALUE OF RS.6.68 LAKHS EVEN AS DETERMINED BY THE DEPARTMENTAL VALUATI ON OFFICER. IN FACT, THE ASSESSING OFFICER REFERRED THE ISSUE OF VALUATION TO THE DEPARTMENTAL VALUATION OFFICER ONLY BECAUSE IN HIS VIEW THE VALUATION OF THE PROPERTY AS ON 1981 AS MADE BY THE RESPONDENT - ASSESSEE WAS HIGHER THAN THE FAIR MARKET VALUE. IN THE AFORESAID CIRCUMSTANCES, THE INVOCATION OF SECTION 55A(A) OF THE ACT IS NOT JUSTIFIED. 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 O F 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 SECTIO N 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 ASSESSI NG OFFICER LESS THAN ITS FAIR MARKET VALUE. 9. THE CONTENTION OF THE REVENUE THAT THE REFERENCE TO THE DEPARTMENTAL VALUATION OFFICER BY THE ASSESSING OFFICER IS SUSTAINABLE IN VIEW OF SECTION 55A(A) (II) OF THE ACT IS NOT ACCEPTABLE. THIS IS FOR THE REASON THAT SECTION 55A(B) OF THE ACT VERY CLEARLY STATES THAT IT WOULD APPLY IN ANY OTHER CASE I.E. A CASE NOT COVERED BY SECTION 55A(A) OF THE ACT. IN THIS CASE, IT IS AN UNDISPUTABLE POSITION THAT THE ISSUE IS COVERED BY SECTION 55A(A) OF THE ACT. THEREFORE, RESORT CANNOT BE HAD TO THE RESIDUARY CLAUSE PROVIDE D IN SECTION 55A(B)(II) OF THE ACT. IN VIEW OF THE ABOVE, THE CBDT CIRCULAR DATED 25 NOVEMBER 1972 CAN HAVE NO APPLICATION IN THE FACE OF THE CLEAR POSITION IN LAW. THIS IS SO AS THE UNDERSTANDING OF THE STATUTORY PROVISIONS BY THE REVENUE AS FOUND IN CIRCULAR ISSUED BY THE CBDT IS NOT BINDING UPON THE ASSESSEE AND IT IS OPEN TO AN ASSESSEE TO CONTEND TO THE CONTRARY. 10. THE CONTENTION OF THE REVENUE THAT THE ASSESSING OFFICER IS ENTITLED TO REFER THE ISSUE OF VALUATION OF THE PROPERTY TO THE DEPARTMENTAL VALUATION OFFICER IN EXERCISE OF ITS POWER ITA NO. 1036 /P U N/20 1 5 SMT. BHUDEVI KISHANRAO GORANTYAL 8 UNDER SECTIONS 131 , 133(6) AND 142(2) OF THE ACT IS ENTIRELY BASED UPON THE DECISION OF THE GUWAHATI HIGH COURT IN SMT. AMIYA BALA PAUL (SUPRA). HOWEVER, THE APEX COURT IN SMT. AMIYA BALA PAUL (SUPRA) HAS REVERSED THE DECISION OF THE GUWAHATI HIGH COURT AND HELD THAT IF THE POWER TO REFER ANY DISPUTE WITH REGARD TO THE VALUATION OF THE PROPERTY WAS ALREADY AVAILABLE UNDER SECTIONS 131(1) , 136(6) AND 142(2) OF THE ACT, THERE WAS NO NEED TO SPECIFICALLY EMPOWER THE ASSESSING OFFICER TO DO SO IN CIRCUMSTANCES SPECIFIED UNDER SECTION 55A OF THE ACT. IT FURTHER H ELD THAT WHEN A SPECIFIC PROVISION UNDER WHICH THE REFERENCE CAN BE MADE TO THE DEPARTMENTAL VALUATION OFFICER IS AVAILABLE, THERE IS NO OCCASION FOR THE ASSESSING OFFICER TO INVOKE THE GENERAL POWERS OF ENQUIRY. IN VIEW OF THE ABOVE AND PARTICULARLY IN V IEW OF CLEAR PROVISIONS OF LAW AS EXISTING DURING THE PERIOD RELEVANT TO ASSESSMENT YEAR 2006 - 07, WE ARE OF THE VIEW THAT QUESTIONS (A) AND (B) DO NOT RAISE ANY SUBSTANTIAL QUESTION OF LAW. REGARDING QUESTION (C): - 11 . THE TRIBUNAL BY ITS IMPUGNED ORDER HAS MERELY REMANDED THE ISSUE TO THE ASSESSING OFFICER TO DETERMINE THE DATE ON WHICH THE RESPONDENT - ASSESSEE ACQUIRED THE PROPERTY FOR THE PURPOSE OF WORKING OUT THE COST OF ACQUISITION. NO SPECIFIC SUBMISSIONS IN REGARD TO THIS ISSUE WAS MADE BY THE REV ENUE DURING THE ORAL SUBMISSIONS. IN ANY EVENT, AN ORDER OF REMAND IN THESE FACTS DOES NOT GIVE RISE TO ANY SUBSTANTIAL QUESTION OF LAW. 12. ACCORDINGLY, WE SEE NO REASON TO ENTERTAIN QUESTIONS (A), (B) AND (C) AS FORMULATED BY THE REVENUE AS THEY DO NOT RAISE ANY SUBSTANTIAL QUESTIONS OF LAW. ACCORDINGLY, APPEAL IS DISMISSED WITH NO ORDER AS TO COSTS. 11. THE HONBLE BOMBAY HIGH COURT IN THE CASE OF CIT VS. DAULAL MOHTA (HUF) REPORTED IN 360 ITR 680 HAS HELD THAT REFERENCE TO DVO CAN ONLY BE MADE IN A CASE WHERE VALUE OF ASSET SHOWN BY THE ASSESSEE IS LESS THAN ITS FAIR MARKET VALUE OF THE LAND. 12. FOLLOWING THE SAME PARITY OF REASONING, I HOLD THAT NO REFERENCE CAN BE MADE UNDER SECTION 55A OF THE ACT IN ORDER TO VALUE THE COST OF ACQUISITION OF PROP ERTY AS ON 01.04.1981 AT A FIGURE LESSER THAN THE VALUE DECLARED BY THE ASSESSEE. ACCORDINGLY, THE ORDER OF CIT(A) IS REVERSED IN THIS REGARD. 11. THE YEAR UNDER APPEAL BEFORE THE TRIBUNAL IS ASSESSMENT YEAR 2010 - 11 AND IN CASE THE SAME SIMILE IS APPLIE D TO THE FACTS OF THE PRESENT CASE, THE ASSESSING OFFICER IS NOT EMPOWERED TO ADOPT THE FAIR MARKET VALUE OF THE SAID PROPERTY AT 10,000/ - PER ACRE. ACCORDINGLY, WE REVERSE THE ORDER OF CIT(A) IN THIS REGARD AND DIRECT HIM TO ADOPT THE FAIR MARKET VALUE AS ON 01.04.1981 AS DECLARED BY THE ASSESSEE. 9. THE ISSUE ARISING IN THE PRESENT APPEAL IS SIMILAR TO THE ISSUE BEFORE THE TRI BUNAL AND APPLYING THE SAID RATIO TO THE FACTS OF PRESENT APPEAL, WE DIRECT THE ASSESSING OFFICER TO ADOPT THE FAIR MARKET VALUE DECLARED BY ASSESSEE AS ON ITA NO. 1036 /P U N/20 1 5 SMT. BHUDEVI KISHANRAO GORANTYAL 9 01.04.1981 IN ORDER TO COMPUTE THE INCOME FROM LONG TERM CAPITAL GAINS IN THE HANDS OF ASSESSEE. SI NCE, WE ARE ALLOWING GROUNDS OF APPEAL NO.3 AND 4 RAISED BY ASSESSEE AND IN VIEW OF THE CONCESSION MADE BY THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE DURING THE COURSE OF HEARING, GROUNDS OF APPEAL NO.1 AND 2 AND ADDITIONAL GROUNDS OF APPEAL NO.1 AND 2 ARE DISMISSED BEING ACADEMIC IN NATURE. 1 0 . IN THE RESULT, THE APPEAL OF ASSESSEE IS ALLOWED. ORDER PRONOUNCED ON THIS 12 TH DAY OF MARCH , 201 9 . SD/ - SD/ - ( D.KARUNAKARA RAO ) (SUSHMA CHOWLA ) / ACCOUNTANT MEMBER / JUDICIAL MEMBER / PUNE ; DATED : 12 TH MARCH , 201 9 . GCVSR / COPY OF THE ORDER IS FORWARDED TO : 1. / THE APPELLANT ; 2. / THE RESPONDENT; 3. ( ) / THE CIT(A) - I , AURANGABAD ; 4. THE PR. CI T - 1 , AURANGABAD ; 5. 6. , , / DR A , ITAT, PUNE ; / GUARD FILE . / BY ORDER , // TRUE COPY // / SR. PRIVATE SECRETARY , / ITAT, PUNE