HUSSEIN ISMAIL DAWOODANI, MUMBAI V. ASST CIT 15(2), MUMBAI

ITA 2499/MUM/2013

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 83687 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 5 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-09-2014
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: H
• Next Hearing Date: 27-08-2014
• Assessment Year: 2007-2008
• Appeal Filed On: 02-04-2013
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: PITAMBER DAS
• Assessee Lawyers: CHETAN KARIA
• Keywords: Capital asset; Cost of acquisition; Fair market value; Valuation report

Judgement Text

, , , , , IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES H, MUMBAI .., ! , ' , # BEFORE SHRI I.P.BANSAL, JM AND SHRI RAJENDRA, AM ITA NO.2499/MUM/2013 (A.Y. 2007-08) SHRI HUSSAIN ISMAIL DAWOODANI 161, BARA IMAM ROAD, NULL BAZAR, MUMBAI 400003 . PAN: AAHPD 7242E THE ASSTT. COMMISSIONER OF INCOME TAX 15(2), MATRU MANDIR, TARDEO, MUMBAI 400034 MUMBAI. ( $% / // / APPELLANT) ' ' ' ' / VS. ( ()$%/ RESPONDENT) $% * + * + * + * + /APPELLANT BY : SHRI CHETAN KARIA ()$% * + * + * + * + /RESPONDENT BY : SHRI PITAMBER DAS ' * ,-' / / / / DATE OF HEARING : 27.8.2014 ./0 * ,-' / DATE OF PRONOUNCEMENT : 03/09/2014 1 1 1 1 / / / / O R D E R PER I.P.BANSAL (JM) : THIS IS AN APPEAL FILED BY THE ASSESSEE. IT IS DIRECTED AGAINST ORDER PASSED BY LD. CIT(A)-26 MUMBAI DATED 18/1/2013 FOR ASSESSMENT YEAR 2007-08. AS GROUNDS OF APPEAL FILED BY THE ASSESSEE ALONGWITH FORM NO. 36 WERE LENGTHY AND ARGUMENTATIVE THE ASSESSEE HAS FILED CONCISE GROUND S WHICH READ AS UNDER: 1. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN UPHOLDING THE ACTION OF THE LEARNED ASSESSING OFFICER IN REOPENING ASSESSME NT U/S.147 AND THE SAME IS WITHOUT JURISDICTION AND BAD IN LAW. 2. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN CONFIRMING ACTION OF THE LEARNED ASSESSING OFFICER IN ASSESSING CAPITAL GAIN S FROM ALLEGED TRANSFER OF LAND IN THE IMPUGNED ASSESSMENT YEAR AND IN HOLDING THAT TRANSF ER OF LAND HAD OCCURRED IN THE IMPUGNED YEAR. 3. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) ERRED CONFIRMING ADOPTION OF SALE CONSIDERATION AT RS.9,33,36,352/-. 4. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN CONFIRMING ACTION OF THE ASSESSING OFFICER IN DENYING BENEFIT OF DEDUCTION U /S. 801B(1O). 5. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN DIRECTING ADOPTION OF VALUE DETERMINED BY DVO AS COST OF ACQUISITION. ITA NO.2499/MUM/2013 (A.Y. 2007-08) 2 2. LD. AR DID NOT PRESS GROUND NO.1,2 & 4 AND CONSE QUENTIAL RELIEF RELATING TO THOSE GROUNDS, THEREFORE, GROUND NO.1,2 & 4 ARE DIS MISSED BEING NOT PRESSED. 3. APROPOS GROUND NO.3, THE RELEVANT FACTS ARE THAT THE ASSESSEE WAS OWNER OF A PIECE OF LAND AT KAVSAR VILLAGE, THANE BEARING SURV EY NO.199/4 AND ENTERED INTO A DEVELOPMENT AGREEMENT OF THE SAID LAND ON 14/11/200 6 WITH M/S. LALANI BUILDERS AND DEVELOPERS. ACCORDING TO DEVELOPMENT AGREEMENT THE ASSESSEE BEING OWNER OF THE LAND WAS BENEFICIARY OF 35% OF THE DEVELOPED CA RPET AREA AND DEVELOPER BEING BENEFICIARY OF 65% OF THE CARPET AREA OF THE DEVEL OPED LAND. ACCORDING TO THE CALCULATION MADE BY THE AO THE ASSESSEE WAS BENEFIC IARY OF 38,457.50 SQ.FTS TO WHICH CALCULATION THE ASSESSEE HAS NO GRIEVANCE. H OWEVER, THE GRIEVANCE OF THE ASSESSEE IS WITH REGARD TO VALUATION ADOPTED BY TH E AO OF THE SAID AREA WHICH HAS BEEN COMPUTED @ RS.2,427/- PER SQ. FT. AND THE SAL E CONSIDERATION HAS BEEN DETERMINED AT RS.9,33,36,352/-. THE BASIS OF RATE TAKEN BY THE AO AT RS.2427/- PER SQ.FT. IS BASED UPON CLAUSE 3(G) OF THE DEVELO PMENT AGREEMENT WHICH READ AS UNDER: (G) AGAINST THE AFORESAID REFUNDABLE DEPOSIT, THE DEVELOPER SHALL BE ENTITLED TO HOLD THE APPROXIMATE AREA OF 2060 SQ.FT. CARPET AREA I.E. 3 FLATS OF 2 BHK ADMEASURING APPROX. 689 SQ.FT. EACH ( WHICH IS EQUIVALENT TO THE ESTIMA TED SALE PRICE ANTICIPATED AS PER TODAYS CALCULATIONS I.E. @ RS.2427/- PER SQ.FT. ON CARPET AREA) FROM THE SHARE OF THE OWNER FROM THE PROPOSED NEW BUILDING/ OR BUILDINGS TO BE CONSTRUCTED AS AN ASSURANCE OF THE REFUND, TILL THE TIME THE OWNER REFUNDS OF T HE AFORESAID DEPOSIT OF A SUM OF RS.50,00,000/- (RUPEES FIFTY LAKHS ONLY). IF FOR A NY REASON THE OWNER FAILED OR NEGLECTED OR INTIMATED TO ADJUST THE DEPOSIT TOWARD S THE SALE OF THE SAID PORTION AND AS SHALL NOT BE IN POSITION TO REFUND THE AFORESAID SECURITY DEPOSIT WITHIN A PERIOD PRESCRIBED IN THE CLAUSE [3(F)] HEREINABOVE THEN, I N THAT EVENT, THE DEVELOPER SHALL BE ENTITLED TO RECOVER THE AFORESAID AMOUNT OF SECURIT Y DEPOSIT BY WAY OF DISPOSING /SELLING THE AFORESAID APPROXIMATE AREA OF 2060 SQ.FT. CARPE T AREA I.E. 3 FLATS OF 2 BHK ADMEASURING APPROX. 689 SQ.FT. EACH FROM THE SHARE OF THE OWNER IN THE PROPOSED NEW BUILDING/OR BUILDING TO BE CONSTRUCTED TO ANY ONE IN THE MANNER AS THE DEVELOPERS MAY DEEM FIT, AND THE OWNER SHALL HAVE NO CLAIM OF WHAT SOEVER NATURE IN RESPECT OF SUCH AREA OR ANY PART THEREOF ONLY IN THE ABOVE MENTIONE D EVENTUALITY. 3.1 THE ASSESSEE RECEIVED A SUM OF RS.50.00 LACS FR OM DEVELOPER WHICH WAS TREATED AS REFUNDABLE INTEREST FREE SECURITY DEPOS IT AS PER PARA 3(E) OF THE DEVELOPMENT AGREEMENT AND IN LIEU OF THE SAID AMOUN T OF RS.50.00 LACS THE ASSESSEE WAS REQUIRED TO GIVE APPROXIMATE AREA OF 2060 SQ.FT . OF THREE FLATS OF TWO BHK IN CASE THE SAID AMOUNT OF RS.50.00 LACS IS NOT REFUNDED BY THE ASSESSEE. TAKING CLUE FROM ITA NO.2499/MUM/2013 (A.Y. 2007-08) 3 THE AFOREMENTIONED CLAUSE 3(G) OF THE DEVELOPMENT A GREEMENT THE AO HAS VALUED THE AREA TO BE RECEIVED BY THE ASSESSEE OF 38457.50 SQ. FTS. AT RS.9,33,36,352/-. 3.2 AFTER TAKING THE SAID VALUE THE AO HAS REDUCED THE COST OF ACQUISITION BY TAKING THE VALUE OF LAND SHOWN IN THE BALANCE SHEET OF THE ASSESSEE AT RS.2,67,096/- AND REDUCING THE SAID AMOUNT FROM RS.9,33,36,352/- NET LONG TERM CAPITAL GAIN ASSESSABLE AT 20% WAS COMPUTED AT RS.9,30,69,256/-. 3.3 THE TAXABILITY OF AFOREMENTIONED AMOUNT AS CAPI TAL GAIN WAS AGITATED IN THE APPEAL FILED BEFORE LD. CIT(A) ALONGWITH OTHER GROU NDS. THE ASSESSEE CONTESTED THE TAXABILITY OF CAPITAL GAIN IN THE YEAR UNDER CONSID ERATION AND ALSO THE VALUE TAKEN BY THE AO AT RS.9,33,36,352/- ON THE GROUND THAT THE S AID VALUE TAKEN WAS WRONG. IT WAS SUBMITTED THAT INSTEAD OF THE SAID VALUE THE VA LUE SHOULD HAVE BEEN TAKEN AT RS.3,45,87,500/- WHICH WAS THE VALUE DETERMINED BY STAMP VALUATION AUTHORITY IN THE DEVELOPMENT AGREEMENT. THIS IS EVIDENT FROM GR OUND NO.4 TAKEN BY THE ASSESSEE BEFORE LD. CIT(A). THE GROUND WHICH IS RE PRODUCED AT PAGE-2 OF THE ORDER OF LD. CIT(A) STATES AS UNDER: IV. WITHOUT PREJUDICE TO THE ABOVE GROUNDS, ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE AO HAS ERRED IN DETERMINING THE IMPU GNED CAPITAL GAIN AS RS.9,66,35,052/- AS AGAINST RS.3,45,87,500/- DETERM INED BY THE STAMP VALUATION AUTHORITY. 3.4 FURTHER, THE ASSESSEE HAD PRODUCED ADDITIONAL E VIDENCE BEFORE LD. CIT(A) WITH A REQUEST TO ADMIT THE SAME UNDER RULE 46A. EVIDEN CE WAS IN THE SHAPE OF VALUATION REPORT OF THE PROPERTY BY THE REGISTERED VALUER SHO WING THE VALUE OF THE PROPERTY AS ON 1/4/1981 AT RS.50,08,320/-. LD. CIT(A) REFERRED THE SAME OF THE VALUATION OFFICER WHO VALUED THE PROPERTY AT RS. 21,89,000 AS ON 1/04/1981. THE LD. CIT(A) HAS UPHELD THE ACTION OF THE AO IN ASSESSING THE CA PITAL GAIN VALUE BY TAKING CONSIDERATION AT RS.9,33,36,352/- AND HE HAS GIVEN DIRECTION TO AO TO COMPUTE THE INDEXED COST ON THE BASIS OF VALUE DETERMINED BY DI STRICT VALUATION OFFICER(DVO) WHICH WAS A SUM OF RS.21,89,000/-. 3.5 UPON AFOREMENTIONED FACTS, IN GROUND NO.3 THE A SSESSEE IS AGITATING TO THE ACTION OF LD. CIT(A) IN UPHOLDING THE VALUE OF SAL E CONSIDERATION BEING TAKEN AT RS.9,33,36,352/- AND IN GROUND NO.5 THE ASSESSEE I S CHALLENGING THE FINDINGS OF LD. CIT(A) THAT VALUE AS ON 1/4/1981 SHOULD BE TAKEN AS DETERMINED BY DVO. ITA NO.2499/MUM/2013 (A.Y. 2007-08) 4 4. IT WAS SUBMITTED BY LD. AR THAT A BARE READING O F CLAUSE 3(G) OF THE DEVELOPMENT AGREEMENT WILL NOT SUGGEST THAT SALE CO NSIDERATION BY THE ASSESSEE COULD BE DETERMINED BY TAKING THE RATE OF CARPET A REA BEING GIVEN TO THE ASSESSEE AT RS.2427/- PER SQ.FT. HE SUBMITTED THAT THE VALUE O F THE WHOLE LAND SUBJECT TO DEVELOPMENT AGREEMENT WAS DETERMINED BY THE STAMP V ALUATION AUTHORITY AT A SUM OF RS.3,45,87,500/-. IT WAS SUBMITTED BY LD. AR T HAT THE SALE CONSIDERATION UPON WHICH CAPITAL GAIN COULD BE COMPUTED CANNOT EXCEED THE AMOUNT DETERMINED BY STAMP VALUATION AUTHORITY. HE SUBMITTED THAT IT IS NOT THE INTENT OF CLAUSE 3(G) OF THE AGREEMENT TO DETERMINE VALUE OF SALE CONSIDERA TION AS BY THAT CLAUSE THE DEVELOPER HAD ASSURED THAT EITHER INTEREST FREE MON EY GIVEN TO THE ASSESSEE IS REFUNDED BACK OR IN CASE THE INTEREST FREE SECURI TY OF RS.50.00 LACS IS NOT REFUNDED BY THE ASSESSEE TO THE DEVELOPER THEN THE DEVELOPER WOULD BE ENTITLED TO GET 2060 SQ.FTS. CARPET AREA. THUS IT WAS PLEADED BY LD. AR THAT THE CAPITAL GAIN SHOULD BE COMPUTED ON A SUM OF RS.3,45,87,500/- IN PLACE OF C ONSIDERATION TAKEN BY THE AO AT RS.9,33,36,352/-. 4.1 ARGUING FOR GROUND NO.5, IT WAS SUBMITTED BY L D. AR THAT AS PER DECISION OF HONBLE BOMBAY HIGH COURT IN THE CASE OF CIT VS. PU JA PRINTS, 360 ITR 697 (BOM) REFERENCE UNDER SECTION 55A COULD BE MADE TO THE DV O ONLY WHEN THE VALUE ADOPTED BY THE ASSESSEE WAS LESS THAN FAIR MARKET VALUE. I T WAS FURTHER HELD THAT AMENDMENT TO SECTION 55A(A) WAS NOT RETROSPECTIVELY APPLICABLE AS THE AMENDMENT WAS MADE EFFECTIVE ONLY FROM 1/7/2012. THUS, IT W AS SUBMITTED THAT REFERENCE TO BY THE CIT(A) TO VALUATION OFFICER WAS BAD IN LAW. IT WAS PLEADED BY LD.AR THAT THE VALUATION ADOPTED BY THE ASSESSEE WAS NOT LESS THAN THE FAIR MARKET VALUE, THEREFORE, REFERENCE UNDER SECTION 55A COULD NOT BE MADE BY LD . CIT(A) TO THE DVO. 5. ON THE OTHER HAND, IT WAS SUBMITTED BY LD. DR TH AT THE VALUE OF SALE CONSIDERATION HAS RIGHTLY BEEN ADOPTED BY AO BY TAK ING CLUE FROM CLAUSE 3(G) OF THE DEVELOPMENT AGREEMENT. HE SUBMITTED THAT LD. CIT(A ) HAS RIGHTLY CONFIRMED THE ACTION OF AO. THUS HE PLEADED THAT THE ORDER BY LD . CIT(A) SHOULD BE UPHELD. 5.1 SO FAR AS IT RELATES TO GROUND NO.5, LD. DR SU BMITTED THAT THE VALUE HAS BEEN DETERMINED BY DVO AND LD. CIT(A) HAS GIVEN THE RE ASON FOR UPHOLDING THE VALUE DETERMINED BY THE DVO. HE SUBMITTED THAT THE VALU ATION DONE BY DVO HAS BEEN ITA NO.2499/MUM/2013 (A.Y. 2007-08) 5 GIVEN PREFERENCE BY LD. CIT(A) ON THE GROUND THAT IT WAS BASED ON COMPARABLE CASES. HE SUBMITTED THAT AS AGAINST THAT IN THE VA LUATION SUBMITTED BY THE ASSESSEE NO COMPARABLES WERE TAKEN INTO CONSIDERATION. 6. WE HAVE HEARD BOTH THE PARTIES AND THEIR CONTENT IONS HAVE CAREFULLY BEEN CONSIDERED. WE HAVE ALSO CAREFULLY GONE THROUGH T HE CLAUSE 3(G) OF THE DEVELOPMENT AGREEMENT RELYING UPON WHICH AO HAS DETERMINED THE SALE CONSIDERATION @ RS.2427/- PER SFT. OF THE CARPET AREA WHICH WAS TO BE ALLOTTED TO THE ASSESSEE ON COMPLETION OF THE DEVELOPED PROJECT AND CLAUSE 3(G) HAS ALREADY BEEN REPRODUCED IN THE ABOVE PART OF THIS ORDER. IT DESCRIBES THAT AG AINST REFUNDABLE DEPOSIT OF RS.50.00 LACS THE DEVELOPER WILL BE ENTITLED TO HOLD APPROXI MATE AREA OF 2060 SQ.FT. CARPET AREA I.E. THREE FLATS OF 2 BHK ADMEASURING APPROXIMATEL Y 689 SQ.FTS. IT HAS SPECIFICALLY BEEN WRITTEN THAT THIS IS EQUIVALENT TO THE ESTIMA TED SALE PRICE ANTICIPATED AS PER TODAYS CALCULATION I.E. @ RS.2427 PER SQ.FT. ON CA RPET AREA FROM THE SHARE OF THE OWNER FROM THE PROPOSED NEW BUILDING/BUILDINGS TO BE CONSTRUCTED AS AN ASSURANCE OF THE REFUND TILL THE TIME OWNER REFUND THE AFOREM ENTIONED DEPOSIT OF A SUM OF RS.50.00 LACS. IT HAS FURTHER MENTIONED THAT IF FO R ANY REASON THE OWNER FAILED OR NEGLECTED OR INTIMATED ADJUST THE DEPOSIT TOWARDS SALE OF THE SAID PORTION AND OR SHALL NOT BE IN A POSITION TO REFUND THE AFORESAID SECURITY DEPOSIT WITHIN A PERIOD PRESCRIBED IN THE CLAUSE 3(F) WHICH DESCRIBE THE PE RIOD OF COMPLETION OF THE INTENTED DEVELOPMENT THEN IN THAT EVENT THE DEVELOPER SHALL BE ENTITLED TO RECOVER THE AFORESAID AMOUNT BY WAY OF DISPOSING/SELLING THE AF OREMENTIONED AREA OF 2060 SQ.FT. THUS, VIRTUALLY THIS CLAUSE HAS ENSURED THE RIGHT O F THE DEVELOPER TO RECEIVE THE REFUND OF INTEREST FREE SECURITY AND ITS PURPOS E AND INTENT IS NOT TO RECEIVE EQUIVALENT CONSTRUCTED CARPET AREA IN LIEU OF A SUM OF RS.50.00 LACS. THUS, SUCH DETERMINATION BETWEEN ASSESSEE AND DEVELOPER CANNOT BE TAKEN AS A VALID FACTOR TO DETERMINE THE FAIR MARKET VALUE AS ON THE DATE ON WHICH THE ASSESSEE HAD ENTERED INTO AN AGREEMENT WITH THE DEVELOPER FOR TRANSFERRI NG HIS OWNERSHIP RIGHT IN LAND. IN ABSENCE OF ANY OTHER RELEVANT FACTOR BROUGHT ON RECORD BY THE AO, IT WILL BE INCORRECT AND UNJUSTIFIED TO DETERMINE THE VALUE O F SALE CONSIDERATION SIMPLY ON THE BASIS OF CLAUSE 3(G). IT IS ALSO RELEVANT TO MENT ION HERE THAT THOUGH THE VALUE DETERMINED BY STAMP VALUATION AUTHORITY WOULD BE HE LPFUL INDICATOR TO DETERMINE THE FAIR MARKET VALUE AS ON THE DATE OF DEVELOPMENT BUT THE SAME ALSO CANNOT BE TAKEN AS WHAT WAS TO BE RECEIVED BY THE ASSESSEE WAS SPECIFIC QUANTITY OF AREA OF ITA NO.2499/MUM/2013 (A.Y. 2007-08) 6 DEVELOPED PROPERTY, THE VALUE OF WHICH WILL BE DIFF ERENT FROM THE VALUE OF VACANT LAND. AS PER CLAUSE 18(A) THE PERIOD OF COMPLETION OF PROJECT IS MENTIONED AS 48 MONTHS FROM THE DATE OF RECEIPT OF COMMENCEMENT CE RTIFICATE. THE CONSTRUCTED AREA TO BE RECEIVED BY THE ASSESSEE IS IN AN UNDEVELOPE D PROJECT WHICH IS YET TO COMMENCE. THEREFORE, THE VALUE WHICH CAN BE ASSESS ED AS SALE CONSIDERATION IN THE HANDS OF THE ASSESSEE SHOULD BE AKIN TO THE VALUE O F SIMILAR PROPERTY IN AN UNDER- DEVELOPED PROJECT WHICH WAS YET TO COMMENCE AND TO BE COMPLETED IN 4 YEARS FROM THE DATE OF COMMENCEMENT OF THE PROJECT AS MENTIO NED IN THE DEVELOPMENT AGREEMENT SIGNED BY THE ASSESSEE. THIS FACTOR WAS B ROUGHT TO THE NOTICE OF BOTH THE PARTIES DURING THE COURSE OF HEARING OF THE APPEAL AND BOTH OF THEM HAVE AGREED THAT TO DETERMINE THE FAIR MARKET VALUE FOR THE PURPOSE OF DETERMINING THE SALE CONSIDERATION ASSESSABLE AS CAPITAL GAIN IN THE ABO VE MANNER, THE MATTER MAY BE RESTORED BACK TO THE FILE OF AO. THEREFORE, WE RES TORE THE ISSUE RAISED BY THE ASSESSEE IN GROUND NO.3 TO THE FILE OF AO WITH A DI RECTION TO DETERMINE THE CONSIDERATION ON WHICH THE ASSESSEE IS LIABLE TO PA Y CAPITAL GAIN AS DESCRIBED IN THE MANNER AFORESAID AFTER GIVING THE ASSESSEE A REASO NABLE OPPORTUNITY OF HEARING AND PLACING ALL RELEVANT MATERIAL ON RECORD. AFTER GIV ING SUCH OPPORTUNITY THE AO WILL RE- DETERMINE THE CONSIDERATION UPON WHICH CAPITAL GAI N COULD BE COMPUTED AS PER PROVISIONS OF LAW. WE DIRECT ACCORDINGLY AND GROUN D NO.3 IS CONSIDERED TO BE ALLOWED FOR STATISTICAL PURPOSES IN THE MANNER AFOR ESAID. 6.1 NOW COMING TO GROUND NO.5, WE HAVE CAREFULLY G ONE THROUGH THE DECISION OF HONBLE BOMBAY HIGH COURT IN THE CASE OF CIT VS. P UJA PRINTS (SUPRA). IN THE SAID CASE IN RESPECT OF ASSESSMENT YEAR 2006-07 THE ASSE SSEE HAD SOLD HIS PROPERTY FOR A CONSIDERATION OF RS.2.00 CRORES. THE INDEXED COST WAS COMPUTED AT RS.1.78 CRORES ON THE BASIS OF VALUE OF PROPERTY TAKEN AT RS.35.99 LACS AS ON 1/4/1981. THE VALUE WAS TAKEN BY THE ASSESSEE ON THE BASIS OF VALUATION REPORT OBTAINED FROM REGISTERED VALUER. THE AO REFERRED THE ISSUE OF VALUATION TO DVO WHO VALUED THE PROPERTY AT RS.6.68 LACS AS ON 1/4/1981 AND INDEXED COST AT RS. 33.20 LACS. CONSEQUENTLY, THE AO ENHANCED THE CAPITAL GAIN OF THE ASSESSEE FROM RS.11.20 LACS TORS.1.61 CRORES. THE ORDER OF AO WAS CONFIRMED BY LD. CIT(A). THE T RIBUNAL HELD THAT IN VIEW OF SECTION 55A(A) IT WAS NOT PERMISSIBLE FOR THE AO TO MAKE A REFERENCE TO DVO FOR THE PURPOSE OF VALUATION AS THE VALUE OF PROPERTY DECLA RED BY THE ASSESSEE WAS MORE THAN ITS FAIR MARKET VALUE. THUS, THE TRIBUNAL ACC EPTED THE CONTENTION OF THE ITA NO.2499/MUM/2013 (A.Y. 2007-08) 7 ASSESSEE THAT INDEXED COST SHOULD BE TAKEN AS PER V ALUE DETERMINED BY A REGISTERED VALUER OF THE ASSESSEE. SUCH ORDER OF TRIBUNAL WAS CONFIRMED BY THEIR LORDSHIPS. THEIR LORDSHIPS ALSO REJECTED THE CONTENTION OF THE DEPARTMENT THAT IN VIEW OF AMENDMENT TO SECTION 55A(A) THE AO WAS AUTHORIZED T O REFER THE MATTER TO THE VALUATION OFFICER. RESPECTFULLY FOLLOWING THE AFOR EMENTIONED DECISION OF HONBLE BOMBAY HIGH COURT IN THE CASE OF CIT VS. PUJA PRINT S (SUPRA) WE DECIDE THIS ISSUE IN FAVOUR OF ASSESSEE AND WE HOLD THAT THE INDEXED COS T SHOULD BE COMPUTED ON THE BASIS OF VALUATION DONE BY THE REGISTERED VALUER OF THE ASSESSEE I.E. BY TAKING THE COST OF THE PROPERTY AS ON 1/4/1981 AT A SUM OF RS. 50,08,320/-. GROUND NO.5 OF THE ASSESSEE IS ALLOWED. 7. IN THE RESULT, APPEAL FILED BY THE ASSESSEE IS P ARTLY ALLOWED IN THE MANNER AFORESAID. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 3RD SEP T. 2014. 1 * ./0 2'3 03.09.2014 / * : (RAJENDRA) (I.P.BANSAL) ' ' ' ' / ACCOUNTANT MEMBER / JUDICIAL MEMBER MUMBAI; 2' DATED : 03.SEPT. 2014. VM. 1 * (,; < ;0, 1 * (,; < ;0, 1 * (,; < ;0, 1 * (,; < ;0,/ COPY OF THE ORDER FORWARDED TO : 1. $% / THE APPELLANT 2. ()$% / THE RESPONDENT. 3. =() / THE CIT, MUMBAI. 4. = / CIT(A)-13, MUMBAI 5. ;@: (,' , , / DR, ITAT, MUMBAI 6. :A B / GUARD FILE. 1' 1' 1' 1' / BY ORDER, );, (, //TRUE COPY// C CC C/ // /D D D D (DY./ASSTT. REGISTRAR) , , , , / ITAT, MUMBAI