Shri Dashratbhai Gopalbhai Patel, Ahmedabad V. The DCIT, Circle-2(2), Ahmedabad

ITA 629/AHD/2019

• Counselvise Citation: [2019] 112 COUNSELVISE.COM (IT) 0119 (ITAT-AHMEDABAD)
• Duration Of Justice: 8 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-12-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 21-11-2019
• Assessment Year: 2013-2014
• Appeal Filed On: 12-04-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: O P SHARMA; L P JAIN
• Keywords: Rejection of books of accounts; Sale consideration of property below Jantri Value; Value adopted by valuation officer; Capital asset; Income from undisclosed sources; Opportunity of being heard; Principle of natural justice; Cost of acquisition; Date of conversion; Fair market value; Valuation report; Set aside; Capital Gains; CHAPTER IV
• Section: 143(3); 69B; 143(2); 69A; 55A; 48; 13; 69

Judgement Text

, C IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, AHMEDABAD BEFORE SHRI PRADIP KUMAR KEDIA, ACCOUNTANT MEMBER & SHRI MAHAVIR PRASAD, JUDICIAL MEMBER ./ I.T.A. NO. 629/AHD/2019 ( ASSESSMENT YEAR : 2013-14) DASHRATHBHAI G. PATEL C/O KETAN H. SHAH, ADVOCATE 512, TIMES SQUARE I, OPP. RAM BAUG BUNGALOW, THALTEJ SHILAJ ROAD, THALTEJ, AHMEDABAD / VS. DY.CIT CIRCLE- 2(2)(1), AHMEDABAD ./ ./ PAN/GIR NO. : ASXPP5053B ( APPELLANT ) .. ( / RESPONDENT ) & ./ I.T.A. NO. 2453/AHD/2017 ( ASSESSMENT YEAR : 2013-14) PREHLADBHAI G PATEL AMBICA VAS, P. O. KHORAJ, GANDHINAGAR - 382421 / VS. DY.CIT GANDHINAGAR CIRCLE 4 TH FLOOR, BLOCK NO.14, UDYOG BHAVAN, SECTOR- 11, GANDHINAGAR ./ ./ PAN/GIR NO. : BLEPP1285L ( APPELLANT ) .. ( / RESPONDENT ) & ./ I.T.A. NO. 2452/AHD/2017 ( ASSESSMENT YEAR : 2013-14) MAHENDRABHAI K PATEL GOLDEN PARK, P. O. / VS. DY.CIT GANDHINAGAR CIRCLE ITA NO. 629/AHD/19 & 2 ORS. [DASHRATHBHAI G. PATEL& 2 ORS.] - 2 - KHORAJ, GANDHINAGAR 4 TH FLOOR, BLOCK NO.14, UDYOG BHAVAN, SECTOR- 11, GANDHINAGAR ./ ./ PAN/GIR NO. : BKHPP9460M ( APPELLANT ) .. ( / RESPONDENT ) / APPELLANT BY : SHRI KETAN SHAH WITH SHRI AMAN SHAH, A.RS. / RESPONDENT BY : SHRI O. P. SHARMA, CIT.DR. & SHRI L. P. JAIN, SR.D.R. DATE OF HEARING 21/11/2019 !'# / DATE OF PRONOUNCEMENT 31/12/2019 / O R D E R PER PRADIP KUMAR KEDIA - AM: THE CAPTIONED APPEALS DIRECTED AT THE INSTANCE OF T HREE DIFFERENT ASSESSEES ARISE FROM THE RESPECTIVE ORDERS OF THE C OMMISSIONER OF INCOME TAX (APPEALS) (CIT(A)) AGAINST DIFFERENT A SSESSMENT YEARS AS TABULATED BELOW: ITA NOS. NAME OF ASSESSEE AY CIT(A)S ORDER DATED AOS ORDER DATED AOS ORDER UNDER SECTION 629/AHD/19 DASHRATHBHAI G. PATEL 2013-14 18.03.2019 28.03.2016 143(3) R.W.S. 147 OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT) 2453/AHD/17 PREHLADBHAI G. PATEL 2013-14 01.09.2017 23.03.2016 143(3) OF THE ACT 2452/AHD/17 MAHENDRABHAI K. PATEL 2013-14 01.09.2017 23.03.2016 143(3) OF THE ACT 2. AT THE BEGINNING OF THE HEARING, IT WAS STATED O N BEHALF OF THE ASSESSEE THAT ALL THE THREE MATTERS CAPTIONED ABOVE ARE INTER-CONNECTED ITA NO. 629/AHD/19 & 2 ORS. [DASHRATHBHAI G. PATEL& 2 ORS.] - 3 - AND INVOLVES COMMON ISSUE. ACCORDINGLY, ALL THE THR EE MATTERS WERE HEARD TOGETHER FOR ADJUDICATION PURPOSES. 3. WE SHALL TAKE ASSESSEES APPEAL IN ITA NO. 629/A HD/2019 PERTAINING TO DASHRATHBHAI G. PATEL CONCERNING AY 2 013-14 AS A LEAD CASE FOR ADJUDICATION. ITA NO. 629/AHD/2019 - AY- 2013-14 (IN CASE OF DASH RATHBHAI G. PATEL 4. THE GROUND OF APPEAL RAISED BY ASSESSEE READS AS UN DER: 1. THE LD. CIT(A) HAS ERRED IN NOT APPRECIATING T HE SUBMISSION AS ABSTRACTED BY HIM IN HIS APPEAL ORDER PAGE 2 TO 16 PARA 3 AND THEREFORE, INTER ALIA ERRED IN CONFIRMING THE A DDITION AS PER PAGE 16, PARA 4 OF THE APPEAL ORDER AND THEREFO RE, THE ADDITION CONFIRMED MAY PLEASE BE DELETED. 2. THAT, LD. CIT(A) HAS ALSO ERRED IN NOT APPREC IATING THE FACT THAT THE WHOLE PROCEEDINGS STARTED BY AO INCLUDING ISSUANCE OF NOTICE U/S 143(2) IS ITSELF BAD IN LAW AND VOID AND LIABLE TO BE QUASHED. 3. LD. CIT(A) HAS ERRED IN FACTS AND / OR IN LAW IN NOT APPRECIATING THE FACTS THAT, THE APPELLANT HAS TAKE N THE PURCHASED COST AS ON 01-04-1981 AT RS. 4,14,01,347/ - BASED ON REGISTERED VALUER REPORT AND THEREFORE, WITHOUT POI NTING OUT ANY SPECIFIC DEFAULT BY AO, REFERENCE TO DVO IS ITS ELF BAD IN LAW, VOID, AB INITIO AND ILLEGAL AND LIABLE TO BE Q UASHED. 4. LD. CIT(A) HAS ALSO ERRED IN NOT APPRECIATING T HE FACTS, THE REFERENCE DATED 27-11-2015 MADE BY AO U/S 142A, HOW EVER, THE ORDER OF DVO DATED 17-03-2016 U/S. 55A AND THER EFORE, THE WHOLE PROCEEDING OF REFERENCE AND ORDER PASSED BY D VO ARE ILLEGAL AND LIABLE TO BE QUASHED. 5. LD. CIT(A) HAS ALSO ERRED ON FACTS AS WELL AS L AW THAT, THE ADDITION BASED ON THE DVO REPORT U/S 55A IS ITSELF BAD IN LAW, VOID, AB INITIO AS STATED BEFORE HIM AND EVEN OTHER WISE, THE PROVISION OF 55A IS NOT APPLICABLE AND THEREFORE, T HE ADDITION MADE MAY PLEASE BE DELETED. 6. LD. CIT(A) HAS ALSO ERRED IN NOT APPRECIATING THE FACTS THAT WITHOUT PREJUDICE, NO OPPORTUNITY OF HEARING GIVEN IN A ITA NO. 629/AHD/19 & 2 ORS. [DASHRATHBHAI G. PATEL& 2 ORS.] - 4 - REASONABLE MANNER FORM THE SIDE OF THE AO OR DVO AN D THEREFORE, THE ADDITION MADE IS REQUIRED TO BE DELE TED. 7. THAT, LD. CIT(A) HAS ALSO ERRED ON FACTS AND / O R LAW THAT, SINCE NO SPECIFIC DEFECT HAS BEEN POINTED OUT TO TH E PAPERS SUBMITTED BEFORE AO AND THEREFORE, REFERENCE TO DIS TRICT VALUATION OFFICER IS ARBITRARILY ACTION AND NOT IN CONSONANCE WITH THE PROVISION OF SEC. 142A / 55A AND THEREFORE , THE WHOLE PROCEEDING IS LIABLE TO BE QUASHED. 8. THAT, EVEN OTHERWISE, CIT(A) HAS ERRED ON MERITS IN SUSTAINING ADDITION MADE OF RS.4,09,82,163/- AS MADE BY AO IN AN ORDER DATED 28-03-2016 AND THEREFORE, THE ADDITION IS REQ UIRED TO BE DELETED. 5. THE ASSESSEE FILED RETURN OF INCOME FOR THE AY 2013-14 IN QUESTION WHICH WAS SUBJECTED TO SCRUTINY ASSESSMENT . IN THE COURSE OF THE ASSESSMENT, THE AO NOTICED THAT DURING THE FY 2 012-13 RELEVANT TO AY 2013-14 IN QUESTION, THE ASSESSEE, ALONGWITH OTH ER CO-OWNERS, HAD SOLD AN IMMOVABLE PROPERTY BEING NON-AGRICULTURAL L AND SITUATED AT SURVEY NOS. 530 & 531 AT VILLAGE KHORAJ, DISTRICT G ANDHINAGAR ON 28.03.2013 FOR A SALE CONSIDERATION OF RS.28 CRORES . IT WAS CLAIMED THAT THE SAID PROPERTY WAS AN ANCESTRAL PROPERTY DEVOLVE D AND JOINTLY OWNED WITH OTHER CO-OWNERS. THE ASSESSEE DECLARED SALE C ONSIDERATION OF RS.6 CRORE ATTRIBUTABLE TO HIS SHARE OF CO-OWNERSHIP IN THE PROPERTY FOR THE PURPOSES OF CAPITAL GAIN TAX LIABILITY. AS THE CAP ITAL ASSET BEING IMMOVABLE PROPERTY BECAME THE PROPERTY OF THE PREVI OUS OWNER AND/OR THE ASSESSEE BEFORE 1 ST APRIL, 1981, THE ASSESSEE ADOPTED THE FAIR MARKET VALUE (FMV) OF THE IMMOVABLE PROPERTY AS ON 01.04.1 981 AND SUBSTITUTED THE SAME AS COST OF ACQUISITION. THE COST ACQUISIT ION WAS THUS SUBSTITUTED AT RS.48,59,313/- (1/4 TH OF 1,94,37,250/-) AS ON 01.04.1981 AS SUPPORTED BY THE VALUATION CERTIFICATE DATED 16.07. 2013 FROM THE REGISTERED VALUER (RV). THE FMV AS ON 01.04.1981 B EING COST OF ACQUISITION WAS INCREASED BY APPLYING COST INFLATI ON INDEX IN TERMS OF SECTION 48 OF THE ACT. THE INDEXATION OF RS.48,59, 313/- WAS WORKED OUT TO RS.4,14,01,347/-. THE ASSESSEE ACCORDINGLY CLAI MED THE ADJUSTED COST OF ACQUISITION AT RS.4,14,01,347/- BASED ON THE FM V OF RS.48,59,313/- (TOWARDS HIS 1/4 TH SHARE) AS ON 01.04.1981 DETERMINED AS PER THE ITA NO. 629/AHD/19 & 2 ORS. [DASHRATHBHAI G. PATEL& 2 ORS.] - 5 - VALUATION CARRIED BY THE RV NAMELY DR. ALPESH C. PA TEL. THE AO DISPUTED THE FMV ADOPTED BY ASSESSEE AS ON 01.04.19 81 AT RS.48,59,313/- (BEING 1/4 TH OF THE TOTAL VALUATION AT RS.1,94,37,250/-) AND INVOKED THE PROVISIONS OF SECTION 142A OF THE A CT AND MADE REFERENCE TO THE DISTRICT VALUATION OFFICER (DVO), INCOME TAX DEPARTMENT, AHMEDABAD VIDE REFERENCE PERFORMA DATED 27.11.2015 AUTHORIZING THE VALUATION OFFICER TO INSPECT THE PR OPERTY AND DETERMINE THE TRUE AND CORRECT VALUE OF INVESTMENT OF THE SAI D PROPERTY. IN PURSUANCE OF SUCH AUTHORIZATION, THE DVO ISSUED NOT ICE DATED 10.12.2015 UPON THE ASSESSEE, HOWEVER BY INVOKING SECTION 55A OF THE ACT. THE ASSESSEE RESPONDED VIDE LETTER DATED 06.01.2016 AND FILED THE REQUISITE DOCUMENTS PERTAINING TO THE PROPERTIES AS WELL AS T HE VALUATION REPORT OF THE RV. THE ASSESSEE ALSO FILED OBJECTION FOR VALU ATION REFERENCE IN RESPECT OF ASSESSEE VIDE LETTER DATED 19.03.2016. THE DVO PASSED A DRAFT ORDER DATED 08.03.2016 BUT HOWEVER INEXPLICAB LY UNDER S.50C OF THE ACT PROPOSING ESTIMATED FMV TO BE RS.1,96,800/- AS ON 01.04.1981. THE ASSESSEE, IN TURN, RESPONDED TO THE DVO VIDE LE TTER DATED 14 TH MARCH, 2016 STRONGLY OBJECTING TO THE CONTENTS OF T HE DRAFT ORDER. THE VALUATION OFFICER THEREAFTER ISSUED ANOTHER DRAFT O RDER TO THE ASSESSEE DATED 09.03.2016, BUT THIS TIME UNDER S.55A OF THE ACT RETAINING THE SAME ESTIMATION OF FMV AT RS.1,96,800/-. THE ASSES SEE ONCE AGAIN PLACED STRONG OBJECTION TO THE AFORESAID CORRIGENDU M ORDER UNDER S.55A OF THE ACT DATED 09.03.2016 VIDE ITS REPLY DATED 21 .03.2016. THE AO EVENTUALLY ADOPTED THE FMV AS ON 01.04.1981 OF THE LAND AT RS.1,96,800/- AS DETERMINED BY DVO. THE INDEXED COS T OF ACQUISITION WAS ACCORDINGLY REDUCED IN SAME PROPORTION AND ASSE SSED AT RS.4,19,184/- AS AGAINST RS.1,94,37,250/- ADOPTED B Y THE ASSESSEE. THE CAPITAL GAINS AND CONSEQUENT ASSESSED INCOME WAS AC CORDINGLY RE- COMPUTED IN THE LIGHT OF THE REDUCTION IN THE FMV O F COST OF ACQUISITION. 6. AGGRIEVED BY THE REDUCTION IN FMV OF PROPERTY AS ON 01.04.1981 BY THE AO RESULTING IN ENHANCED CAPITAL GAINS ON SA LE OF LAND, THE ASSESSEE PREFERRED APPEAL BEFORE THE CIT(A). ITA NO. 629/AHD/19 & 2 ORS. [DASHRATHBHAI G. PATEL& 2 ORS.] - 6 - 7. BEFORE THE CIT(A), THE ASSESSEE REITERATED THE S UBMISSIONS MADE BEFORE THE AO AND INTER ALIA QUESTIONED AS TO WHETHER IT WAS PERMISSIBLE FOR AO TO REPLACE THE FMV DETERMINED BY DVO WITH TH E RV REPORT OBTAINED BY ASSESSEE IN THE FACTS AND CIRCUMSTANCES . A LEGAL CONTENTION WAS ALSO RAISED THAT IN THE ABSENCE OF ANY REFERENC E MADE BY AO UNDER S.55A OF THE ACT FOR ESTIMATION OF THE FMV OF THE L AND TO DVO, SUCH FMV DETERMINED UNDER S.55A OF THE ACT BY DVO COULD NOT HAVE BEEN ADOPTED BY THE AO WHILE MAKING THE ASSESSMENT UNDER S. 143(3) OF THE ACT. IT WAS POINTED OUT THAT THE REFERENCE WAS MAD E UNDER S.142A OF THE ACT WHEREAS THE DVO HAS FURNISHED REPORT IN TERMS O F SECTION 55A OF THE ACT WHICH IS NOT PERMISSIBLE IN LAW. 8. THE CIT(A) RECORDED VARIOUS SUBMISSIONS MADE ON BEHALF OF THE ASSESSEE IN PARA 3.1 AND 3.3 OF ITS ORDER BUT, HOWE VER, DID NOT FIND MERIT IN THE PLEA OF THE ASSESSEE. THE ACTION OF THE AO WAS THUS CONFIRMED VIDE REASONING AS NOTED HEREUNDER: I HAVE CAREFULLY CONSIDERED THE ASSESSMENT ORDER, GROUNDS OF APPEAL RAISED AND SUBMISSIONS OF THE APPELLANT. THE APPELLANT HAS FILED TWO ADDITIONAL GROUNDS WHICH ARE DECIDED TO B E ACCEPTED ARE DECISION. THE APPELLANT HAS TAKEN TWO ORIGINAL GROU NDS SAYING THAT THE REFERENCE TO DVO WAS NOT PROPER AND THE DVO HAS NOT FORMED HIS OPINION ON THE BASIS OF CORRECT FACTS. BOTH THE GRO UNDS ARE TAKEN TOGETHER FOR ADJUDICATION. THE AO HAS NOT ACCEPTED THE VALUATION AS ON 1/04/1981 AND REFERRED THE MATTER TO THE DVO ON 27/11/2015. THE DVO HAS SENT REPORT ON 17/03/2016. THE DVO, A'BAD A FTER CONSIDERING THE EVIDENCE PRODUCED BY THE ASSESSEE A ND AFTER TAKING IN TO ACCOUNT ALL THE MATERIAL GATHERED BY HIM HAD ESTIMATED THE FAIR MARKET VALUE OF THE ALLEGED PROPERTY AT RS. 1,96,80 0/- AS ON 01/04/1981. DETAILED SHOW CAUSE NOTICE WAS ISSUED B Y AO AFTER RECEIVING THE REPORT FROM DVO. THE APPELLANT WAS RE QUIRED TO RAISE OBJECTION TO THE VALUATION RATE BEFORE THE DVO BY F ILING COGENT REASONS SUCH AS DISADVANTAGES OF LAND PARCEL ETC., IF ANY. THE ARGUMENT OF THE APPELLANT AT APPELLANT LEVEL IS CON TAINED IN PARA 4 OF ASSESSMENT ORDER AND THE SAME IS REPRODUCED AS UNDE R:- 'THE REPLY OF THE ASSESSEE HAD BEEN EXAMINED BUT IT IS NOT FOUND TO BE SUSTAINABLE THE DVO HAD PASSED ORDER U/ D. 55A OF THE IT. ACT AFTER GIVING OPPORTUNITY TO THE ASSESSEE. H E HAS ALSO CONSIDERED THE REPLY OF THE ASSESSEE, EVIDENCES PRO DUCED BY HIM AND AFTER TAKING INTO ACCOUNT ALL THE RELEVANT MATERIAL S GATHERED BY DVO, THE ORDER U/S. 55A OF THE I.T. ACT HAS BEEN PASSED ESTIMATING THE FAIR MARKET VALUE AT RS. 1,96,800/- AS IN 01/04/1981. TH E ASSESSES HAD ITA NO. 629/AHD/19 & 2 ORS. [DASHRATHBHAI G. PATEL& 2 ORS.] - 7 - FAILED TO PRODUCE ANYTHING CONTRARY TO THE ESTIMATI ON MADE BY THE DVO, A'BAD. THEREFORE THERE SEEMS NO FORCE IN THE A SSESSE'S ARGUMENT THAT THE ORDER U/S 55A OF THE I.T. ACT IS BAD-IN LAW AND WITHOUT JURISDICTION. THE ASSESSE'S ARGUMENT THAT T HE LAND SOLD WAS A N.A. AND IS NOT COMPARABLE WITH AGRICULTURE LAND IS ALSO NOT FOUND TO BE SATISFACTORY AND HENCE NOT ACCEPTABLE FOR THE RE ASON THAT AS ON 01/04/1981, THE SAID LAND WAS AGRICULTURAL LAND. IT WAS CONVERTED INTO N.A. MUCH LATER IN 2011. THE FAIR MARKET VALUE HAS TO BE ON THE DATE OF ACQUISITION AND NOT THE DATE OF CONVERSION TO N.A. IN VIEW OF THE ABOVE DISCUSSION, THE REPLY OF THE ASSESSEE IS NOT FOUND TO BE SATISFACTORY, CONVINCING AND HENCE THE DAME IS NOT ACCEPTED.' THE APPELLANT HAD RELIED ON FOLLOWING CASE LAWS:- - SAMPATMAL GADHIYA V/S INCOME TAX OFFICER ITAT KO LKATA TRIBUNAL 39 CCH 69. - NITIN JAYANTILAL SHAH V/S ITO ITAT AHMEDABAD IN COME TAX ACT NO 1988/AHD/2009 48 SOT 16 DEVIDAYAL ROLLING AND REFINERIES V/S ITO ITAT MUMBAI D BENCH I NCOME TAX ACT NO 3390/MUM/2013 - SHIV DASS SAWHNEY V/S. VALUATION OFFICER 109 TA XMAN 349 (J&K) OMPRAKASH BAMBA V/S. VALUATION OFFICER 122 TAXMAN.COM (J&K) - ITO V/S PREM HOTEL 109 TAXMAN 357 (K&K) - SURESH KOSHY GEORGE V. UNIVERSITY OF KERALA : [1969)1 SCR317 - M/S. PRINTERS HOUSE PVT. LTD. VS. WIST SAIYADAN (DECEASED),(1994) 2 SCO 133 - PFIZER LTD. V/S DCIT MUMBAI TRIBUNAL 56 TAXMAN .COM 260 - SMT. MINA DEOGUN ITAT KOLKATTA 19 SOT 183 - CIT V/S ASHVEN DATLA 37 TAXMAN.COM 261 (AP) I HAVE GONE THROUGH THE CASE LAW RELIED BY THE APPE LLANT. THE APPELLANT HAS RAISED TECHNICAL OBJECTIONS ON MANY C OUNTS BUT THE MATTER OF SUBSTANCE IS GETTING IGNORED IN HIS CONTE NTIONS. THE AO HAS NO DISCRETION AFTER A REPORT FROM DVO AND ALL OBJEC TIONS OF APPELLANT HAVE BEEN FAIRLY HANDLED BY THE AO, HENCE THE DECIS ION TAKEN BY AO IS LOGICAL AND AS PER I.T. PROCEDURE. IN SUCH CIRCU MSTANCES, CASE LAWS RELIED BY THE APPELLANT ARE DISTINGUISHABLE. T HE ORIGINAL GROUND NO. 1 & 2 ARE DISMISSED . 9. FURTHER AGGRIEVED BY THE DENIAL OF RELIEF BY THE CIT(A), THE ASSESSEE PREFERRED APPEAL BEFORE THE TRIBUNAL TO IM PUGN THE ACTION OF REVENUE AUTHORITIES. 10. BEFORE THE TRIBUNAL, THE LEARNED AR FOR THE ASS ESSEE SUBMITTED AT THE OUTSET THAT THE ACTION OF THE AO FOR SUBSTITUTI ON OF FMV OF CAPITAL ASSET ESTIMATED AS ON 01.04.1981 WAS PRIMA FACIE BAD IN LAW AS THE REFERENCE WAS MADE TO THE DVO BY THE AO FOR DETERMI NATION OF FMV ITA NO. 629/AHD/19 & 2 ORS. [DASHRATHBHAI G. PATEL& 2 ORS.] - 8 - UNDER S.142A OF THE ACT WHEREAS IN CONTRADICTION TO SUCH CONFERMENT OF JURISDICTION UNDER S.142A OF THE ACT, THE NOTICE WA S INITIALLY ISSUED BY THE DVO TO THE ASSESSEE UNDER S.50C OF THE ACT AND THEREAFTER BY WAY OF CORRIGENDUM, THE ORDER WAS FRAMED BY DVO UNDER S.55 A OF THE ACT. IT WAS THUS CONTENDED THAT THE DVO HAS TRAVELLED BEYON D THE SCOPE OF REFERENCE SO MADE TO HIM BY AO AND TOOK RECOURSE TO SECTION 55A OF THE ACT WITHOUT ANY AUTHORITY IN THIS REGARD. THE VALU ATION ESTIMATED BY THE DVO IN THE AFORESAID ORDER UNDER S.55A OF THE ACT W AS ADOPTED BY THE AO COMPLETELY DISREGARDING THE METHODOLOGY ADOPTED BY THE RV. 10.1 IN SUPPORT OF ITS OBJECTION, THE LEARNED AR FI RSTLY CONTENDED THAT THE SCOPE AND AMBIT OF SECTION 142A OF THE ACT IS V ASTLY DIFFERENT FROM THAT OF SECTION 55A OF THE ACT. IT WAS CONTENDED T HAT THE AO COULD NOT HAVE RESORTED TO THE PROVISIONS OF SECTION 142A OF THE ACT FOR THE PURPOSES OF VALUATION OF THE PROPERTY, THE ACQUISIT ION OF WHICH WAS MADE LONG BACK AND NO ACQUIRED IN THE ASSESSMENT YEAR IN QUESTION AND SECONDLY, THE DVO COULD NOT HAVE TAKEN RECOURSE TO A WHOLLY DIFFERENT PROVISION I.E. SECTION 55A OF THE ACT WHEN THE MAND ATE GIVEN TO HIM BY THE AO WAS FOR CARRYING OUT VALUATION IN TERMS OF S .142A OF THE ACT. THE LEARNED AR CONTENDED THAT THE DVO HAS NO INDEPE NDENT AUTHORITY IN THE MATTER BUT DERIVES ITS POWER ON THE BASIS OF TH E DELEGATIONS MADE BY THE AO IN THIS REGARD. THEREFORE, THE VALUATION RE PORT FRAMED BY DVO UNDER S.55A OF THE ACT WITHOUT ANY REFERENCE OBTAIN ED THEREIN FROM AO IS VOID AB INITIO AND BAD IN LAW AT THE THRESHOLD. 10.2 THE LEARNED AR NEXT ADVERTED TO THE VALUATION REPORT PREPARED BY THE DVO AND SUBMITTED THAT DETERMINATION OF FMV OF PROPERTY IN QUESTION AS ON 01.04.1981 HAS BEEN MADE ALLEGEDLY O N COMPARABLE SALE INSTANCE METHOD FOR LAND. HOWEVER, AS POINTED OUT VIDE LETTER DATED 19.06.2017, THE DVO HAS NEITHER GIVEN ANY OPPORTUNI TY TO THE ASSESSEE WHILE ADOPTING SO CALLED COMPARABLE METHOD NOR THE COMPARABLES ADOPTED BY THE DVO ARE COMPARABLE AT ALL. MAKING R EFERENCE TO LETTER DATED 19 TH JUNE, 2017, IT WAS POINTED OUT THAT ALL COMPARABLE CASES ITA NO. 629/AHD/19 & 2 ORS. [DASHRATHBHAI G. PATEL& 2 ORS.] - 9 - ADOPTED BY THE DVO ARE NOT OF OLD TENURE AGRICULTUR E TILLING LAND AT ALL. THE CASES ADOPTED BY THE DVO ARE NOT RELEVANT ON FA CTS AS THEY ARE MATERIALLY DIFFERENT IN CHARACTER AS EXPLAINED IN T HE AFORESAID LETTER APPEARING AT PAGE NOS. 70 TO 71 OF THE PAPER BOOK. 10.3 IT WAS THEREAFTER SUBMITTED THAT THE BASIS ADO PTED BY THE RV THAT OF REVERSE CALCULATION OF INDEXATION IS APPROVED BY KO LKATA BENCH IN SMT. MINA DEOGUN VS. ITO 117 TTJ 121 (KOL.) AND PFIZER LTD. VS. DY.CIT 153 ITD 433 (MUM.) AND CIT VS. ASHVEN DATLA 37 TAXMANN.COM 261 (AP). THE LEARNED AR FURTHER ADDED THAT THE LAND BELONGIN G TO ASSESSEE IN QUESTION WAS A NONAGRICULTURAL LAND AND THUS NOT CO MPARABLE WITH THE INSTANCES QUOTED ON BEHALF OF THE REVENUE. 10.4 THE LEARNED AR REFERRED TO THE DECISION OF THE DELHI TRIBUNAL IN SUMIT KHURANA VS. ACIT ITA NO.1877/DEL/2011 ORDER DATED 15 TH JULY, 2011 FOR THE PROPOSITION THAT NO REFERENCE CAN BE M ADE UNDER S.142A OF THE ACT TO THE VALUATION OFFICER FOR ESTIMATING THE FULL VALUE OF CONSIDERATION OF THE PROPERTY FOR THE PURPOSE OF CO MPUTATION OF CAPITAL GAINS UNDER S.48 OF THE ACT. IT WAS ALSO CONTENDED THAT REFERENCE TO VALUATION OFFICER UNDER S.142A OF THE ACT COULD BE MADE FOR THE PURPOSES OF ESTIMATING THE VALUE OF ANY INVESTMENT REFERRED TO IN SECTION 69, 69A OR 69B OF THE ACT. SECTION 48 OF THE ACT W HICH PROVIDES FOR MODE OF COMPUTATION OF INCOME CHARGEABLE UNDER THE HEAD CAPITAL GAINS PROVIDES FOR REFERENCE TO VALUATION OF CAPITAL ASSE T ONLY UNDER S.55A OF THE ACT FOR THE PURPOSES OF DETERMINATION OF FMV OF CAPITAL ASSET FOR WHICH CIRCUMSTANCES ARE NOT SHOWN TO BE EXISTING IN THE INSTANT CASE. THE LEARNED AR FURTHER REFERRED TO THE DECISION OF AHMEDABAD TRIBUNAL IN ITO VS. CHANDRAKANT & ORS. IN ITA NO. 3139/AHD/2009 & ORS. ORDER DATED 08.04.2011 FOR THE PROPOSITION THAT SECTION 1 42A OF THE ACT IS LIMITED IN ITS SCOPE AND CONFINED TO THE PROVISIONS OF SECTION 69 ETC. AND CONSEQUENTLY, SECTION 142A OF THE ACT COULD NOT BE PRESSED INTO SERVICE BY AO TO DETERMINE FMV AS ON 01.04.1981 FOR THE PUR POSES OF COMPUTATION OF CAPITAL GAINS UNDER S.48 OF THE AC T. THE LEARNED AR FOR ITA NO. 629/AHD/19 & 2 ORS. [DASHRATHBHAI G. PATEL& 2 ORS.] - 10 - THE ASSESSEE ALSO RELIED UPON THE DECISION OF THE H ONBLE GUJARAT HIGH COURT IN THE CASE OF CIT VS. MANJULABEN M. UNADKAT (2015) 55 TAXMANN.COM 62 (GUJ) AND U. J. MATAIN (1994) 209 ITR 568 (GUJ) TO SUBMIT THAT IT WAS INCUMBENT UPON THE AO TO BRING S OMETHING ON RECORD INDICATING THAT THE ASSESSEE HAS DECLARED INCORRECT FMV TO ENABLE HIM TO INVOKE SECTION 55A OF THE ACT. IT WAS THUS SUBMITT ED THAT IN THE ABSENCE OF ANY MATERIAL IN THIS REGARD A REFERENCE COULD NO T HAVE BEEN MADE UNDER S.55A OF THE ACT EITHER. TO THIS EXTENT, THE AO WAS RIGHT IN NOT TAKING SHELTER OF SECTION 55A OF THE ACT. THE LEAR NED AR FURTHER RELIED UPON THE DECISION OF THE TRIBUNAL IN VIVEK BOSE VS. ITO (2015) 152 ITD 745(KOLKATA-TRIB.) WHEREIN SAME VIEW HAS BEEN ECHOED. THE LEARNED AR FURTHER REFERRED TO THE DECISION IN THE CASE OF PREM HOTEL VS. ITO (1997) 93 TAXMAN 237 (J&K) FOR THE PLEA THAT REFERENCE TO VALUATION OFFICER UNDER S.55A OF THE ACT IS NOT PERMISSIBLE WITHOUT G IVING THE ASSESSEE AN OPPORTUNITY OF BEING HEARD AND WITHOUT DISCLOSING R EASON FOR SUCH REFERENCE. THE LEARNED AR ACCORDINGLY SUBMITTED THA T WHILE THE AO HAS, RIGHTLY, NOT MADE ANY REFERENCE UNDER S.55A OF THE ACT, HE COULD NOT HAVE DONE SO EITHER. THE LEARNED AR REITERATED THA T REFERENCE HAS BEEN MADE UNDER S.142A OF THE ACT WHICH IS CLEARLY WITHO UT JURISDICTION. 10.5 THE LEARNED AR ACCORDINGLY SUBMITTED THAT THE CIT(A) HAS MISDIRECTED HIMSELF IN LAW AND ON FACTS IN ENDORSIN G THE ACTION OF THE AO WITH A VERY CRYPTIC ORDER DISREGARDING THE WELL SET TLED LAW IN THE MATTER OF VALUATION. THE CIT(A) HAS NOT GIVEN ANY FINDING ON PLETHORA OF DECISIONS REFERRED TO AND RELIED UPON IN THE COURSE OF APPELLATE PROCEEDINGS. THE FACTS TOWARDS THE IMPUGNED LAND B EING NONAGRICULTURAL LAND AND THUS NOT COMPARABLE HAS ALSO BEEN CURSORIL Y BRUSHED ASIDE IN DEROGATION OF THE LEGITIMATE EXPECTATIONS. THE LEA RNED AR ACCORDINGLY URGED THAT ACTION OF THE LOWER AUTHORITIES BE REVER SED AND CLAIM OF THE ASSESSEE BE RESTORED. 11. THE LEARNED DR FOR THE REVENUE, ON THE OTHER HA ND, RELIED UPON THE ORDER OF THE AO AS WELL AS THE CIT(A). IN FURTH ERANCE, IT WAS POINTED ITA NO. 629/AHD/19 & 2 ORS. [DASHRATHBHAI G. PATEL& 2 ORS.] - 11 - OUT THAT THE ISSUANCE OF NOTICE UNDER S.142A OF THE ACT IS NOT A LEGAL IMPEDIMENT FOR APPLYING THE FMV AS DETERMINED BY TH E DVO. IT WAS SUBMITTED THAT THE DVO HAS DEMONSTRATED OVER VALUAT ION OF FMV AS ON 01.04.1981 IN A RATIONAL MANNER WHICH DOES NOT CALL FOR ANY INTERFERENCE. 12. WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSI ONS. THE MOOT CONTROVERSY IN THE INSTANT CASE REVOLVES AROUND COR RECTNESS OF THE ACTION OF THE REVENUE IN SUBSTITUTING FMV OF CAPITAL ASSET AS ON 01.04.1981 DETERMINED BY THE REGISTERED VALUER APPOINTED BY TH E ASSESSEE WITH THE FMV DETERMINED BY THE DVO ON A REFERENCE MADE BY AO CONCERNING LAND SOLD DURING THE YEAR. 12.1 TO BEGIN WITH, WE NOTE THAT THE PROVISIONS OF SECTION 55 OF THE ACT, AT THE RELEVANT TIME, PROVIDED THAT FOR COMPUT ATION OF CAPITAL GAINS, AN ASSESSEE WAS ENTITLED TO AN OPTION TO ADOPT FMV VALUE OF ASSET AS ON 01.04.1981. THE ASSESSEE IS ALSO ENTITLED TO CLAIM DEDUCTION FOR COST OF IMPROVEMENT INCURRED AFTER 01.04.1981, IF ANY. SEC TION 48 OF THE ACT CORRESPONDINGLY PROVIDED FOR APPLICABILITY OF COST OF INFLATION INDEX ON SUCH FMV FOR CLAIMING ENHANCED DEDUCTION TOWARDS CO ST OF ACQUISITION ALSO. 12.2 THE ASSESSEE IN THE INSTANT CASE SOLD CERTAIN PARCELS OF CO- OWNERSHIP ANCESTRAL LAND (ACQUIRED PRIOR TO 01.04.1 981) SITUATED AT VILLAGE KHORAJ, GANDHINAGAR, GUJARAT, THE SALE CONS IDERATION WHEREOF AS ATTRIBUTABLE TO THE ASSESSEE ON ACCOUNT OF CO-OWNER SHIP UNDISPUTEDLY STANDS AT RS.6 CRORE. THE ASSESSEE ADOPTED THE FMV (OF THE CO- OWNERSHIP PROPERLY SO JOINTLY HELD LAND) AS ON 01.0 4.1981 AS PER OPTION AVAILABLE TO HIM. THE FMV AS ON 01.04.1981 WAS DET ERMINED AT RS.4,14,01,347/- BASED ON RV REPORT. THE COST OF A CQUISITION ATTRIBUTABLE TO ASSESSEE BASED ON THE RV REPORT WAS COMPUTED AT RS.48,59,313/- IN PROPORTION TO ITS CO-OWNERSHIP RI GHT. THE ASSESSEE CLAIMED INDEXED COST ACQUISITION AT RS.4,14,01,347/ - IN TERMS OF SECTION 48 R.W.S. 55 OF THE ACT. THE ASSESSEE ACCORDINGLY OFFERED SURPLUS ITA NO. 629/AHD/19 & 2 ORS. [DASHRATHBHAI G. PATEL& 2 ORS.] - 12 - TOWARDS TAXATION UNDER CAPITAL GAINS HAVING REGARD TO THE INDEX COST OF ACQUISITION OF LAND WITH REFERENCE TO THE VALUATION MADE BY THE RV AS ON 01.04.1981. 12.3 THE AO HAS DISPUTED THE FMV OF COST OF ACQUISI TION ADOPTED BY THE ASSESSEE AS ON 01.04.1981 I.E. RS.48,59,313/- A ND CONSEQUENTIAL INDEXED COST OF RS.4,14,01,347/- DETERMINED ON THE BASIS OF FMV AS PER RV REPORT. THE AO ELECTED TO INVOKE PROVISIONS OF S.142A OF THE ACT AND PROCEEDED TO MAKE REFERENCE TO THE DVO. THE GR OUND FOR REFERENCE UNDER S.142A OF THE ACT APPEARS TO BE THAT THE MATT ER WAS REFERRED TO DETERMINE CORRECT VALUATION OF THE LAND HAVING REGA RD TO THE FACT THAT THE PROPERTY IS AN ANCESTRAL PROPERTY ACQUIRED PRIOR TO 01.04.1981 BY THE PREVIOUS OWNER AS NO PURCHASE DOCUMENTS ARE AVAILAB LE AND THE ASSESSEE HAS ADOPTED THE COST OF LAND TO BE FMV AS ON 01.04. 1981 WITH REFERENCE TO THE VALUATION REPORT OF THE RV. WHEN READ IN VERBATIM, THE REFERENCE WAS MADE UNDER S.142A OF THE ACT TO ELUCIDATE THE C ORRECTNESS OF COST OF INVESTMENT AS ON 01.04.1981 CLAIMED BY THE ASSESSEE . IN PURSUANCE OF SUCH REFERENCE UNDER S.142A OF THE ACT, THE DVO FUR NISHED A VALUATION REPORT DATED 17.03.2016 TO AO ALBEIT UNDER S.55A OF THE ACT WHEREBY THE FMV OF THE PROPERTY AS ON 01.04.1981 WAS DETERMINED AT RS.1,96,800/-. THE AO ADOPTED THE FMV AS ON 01.04.1981 DETERMINED BY THE DVO AND ENHANCED THE TAXABLE CAPITAL GAIN BY SCALING DOWN O F THE COST OF ACQUISITION I.E. FMV AS ON 01.04.1981 AS DETERMINED BY THE DVO VIS-A- VIS THE RV. 13. ON THESE FACTS, THE ASSESSEE HAS RAISED MULTIPL E OBJECTIONS WHICH WE SHALL DEAL WITH HEREUNDER: 13.1 THE FIRST AND FOREMOST LEGAL OBJECTION RAISED BY THE ASSESSEE IS THAT WHILE THE REFERENCE FOR VALUATION HAS BEEN MADE BY AO UNDER S.142A OF THE ACT, THE DVO HAS PASSED THE ORDER UNDER S.55A O F THE ACT WHICH IS PRIMA FACIE UNSUSTAINABLE AND BAD IN LAW. HAVING REGARD TO TH E LEGAL OBJECTION, WE TAKE NOTICE OF THE PROVISIONS OF SECT ION 142A OF THE ACT WHICH HAS BEEN INVOKED FOR DETERMINATION OF FMV IN TERMS OF SECTION ITA NO. 629/AHD/19 & 2 ORS. [DASHRATHBHAI G. PATEL& 2 ORS.] - 13 - 142A OF THE ACT AS APPLICABLE TO THE RELEVANT ASSES SMENT YEAR IN QUESTION. WE OBSERVE THAT POWER TO MAKE REFERENCE UNDER S.142A OF THE ACT IS NOT GENERAL BUT IS RESTRICTED TO THE MATTERS CONCERNING SECTION 69, 69A OR 69B OF THE ACT. WE ALSO PAUSE TO TAKE NOTE OF CIRCULAR NO. 1/2015 DATED 21.01.2015 EXPLAINING AMENDMENTS CARRIED OUT BY FINANCE (NO.2) ACT, 2014 WHEREBY PROVISIONS OF SECTION 142A OF THE ACT WAS SUBSTITUTED W.E.F. 01.10.2014. IN THE AFORESAID CIRCULAR ALSO, BOARD DID NOT EXPRESS ANY MATERIAL DEPARTURE FROM THE ERSTWHILE PROVISION EXCEPT THAT ERSTWHILE PROVISIONS OF SECTION 142A OF THE ACT DID NOT ENVIS AGE REJECTION OF BOOKS OF ACCOUNTS AS A PRE-CONDITION PER SE BEFORE MAKING REFERENCE TO VALUATION OFFICER. THE TIME LIMIT FOR FURNISHING RE PORT BY THE VALUATION REPORT WAS ALSO FOUND ABSENT BY THE BOARD. THUS, T HE SCOPE OF ERSTWHILE PROVISIONS OF SECTION 142A OF THE ACT AS WELL AS TH E SUBSTITUTED PROVISION CONTINUE TO ENVISAGE ESTIMATION OF THE VA LUE OF ANY INVESTMENT REFERRED TO IN SECTION 69, 69A OR 69B OF THE ACT AS ITS OBJECT. AS A NECESSARY CONCOMITANT, THE SCOPE OF INQUIRY TOWARDS FMV OF PROPERTY OR INVESTMENT WOULD BE GOVERNED BY THE CORRESPONDING S COPE AVAILABLE UNDER S. 69, 69A OR 69B OF THE ACT. AS A COROLLARY , THE ALLEGED OVERVALUATION, IN THE VALUE OF INVESTMENT COULD NOT BE VERIFIED UNDER THE AMBIT OF SECTION 142A OF THE ACT WHERE THE SUBJECT MATTER OF EXAMINATION UNDER S. 69, 69A OR 69B OF THE ACT IS U NDERSTATEMENT IN VALUE OF INVESTMENTS ACQUIRED DURING THE YEAR. NOT ABLY, THE AO HEREIN SEEKS TO IMPUGN THE OVER VALUATION (IN CONTRAST TO UNDERVALUATION) IN THE COST OF PROPERTY ACQUIRED. SUCH ACT OF CHALLENGING ALLEGED OVERVALUATION IS APPARENTLY OUTSIDE THE CONFINES OF SECTION 69, 6 9A OR 69B OF THE ACT. THUS, THE REFERENCE UNDER S.142A OF THE ACT COULD N OT HAVE BEEN MADE FOR FINDING OUT THE EXTENT OF ALLEGED OVERSTATEMENT IN THE VALUE OF INVESTMENT. THE REFERENCE UNDER S.142A OF THE ACT TO THE DVO REQUIRES TO BE QUASHED ON THIS GROUND ALONE. WE HOWEVER ALS O SIMULTANEOUSLY TAKE NOTE OF THE FACT THAT SECTION 69 OF THE ACT ET C. WOULD GOVERN THE INVESTMENT MADE IN THE RELEVANT FINANCIAL YEAR IN Q UESTION ALONE. A PROPERTY ACQUIRED OR INVESTMENT MADE IN THE EARLIER FINANCIAL YEARS ARE OUTSIDE THE SCOPE OF ADDITIONS UNDER S.69 OF THE AC T ETC. FOR THE PURPOSES ITA NO. 629/AHD/19 & 2 ORS. [DASHRATHBHAI G. PATEL& 2 ORS.] - 14 - OF ASSESSMENT OF THE UNDISCLOSED INCOME OF A GIVEN ASSESSMENT YEAR. IN THE PRESENT CASE, SECTION 142A OF THE ACT HAS BEEN INVOKED TO ASCERTAIN THE CORRECTNESS OF THE COST OF ACQUISITION OF LAND ACQUIRED PRIOR TO 01.04.1981 I.E. AN INVESTMENT WHICH WAS NOT MADE IN FY 2012-13 RELEVANT TO AY 2013-14 IN QUESTION. SUCH REFERENCE UNDER S.142A OF THE ACT IS THUS NOT TENABLE ON THIS SCORE TOO. THE REF ERENCE UNDER S.142A OF THE ACT THUS DEFIES THE BASIC STRUCTURE OF MANDATE AVAILABLE IN LAW AND HENCE CANNOT BE COUNTENANCED. 13.2 THE REFERENCE MADE UNDER S.142A OF THE ACT, AS NOTICED ABOVE, IS ALSO UNSUSTAINABLE FOR YET ANOTHER REASON THAT IS, THE AO MERELY SEEKS ELUCIDATION OF THE VALUATION CARRIED OUT BY THE RV WITHOUT REFERENCE TO ANY ADVERSE MATERIAL AGAINST SUCH VALUATION OF RV. THE RV AND DVO, BOTH PERFORMS THE SAME TASK OF VALUE ESTIMATION NOT WITHSTANDING THAT A RV WORK IN PRIVATE CAPACITY BUT HOWEVER ARE ALSO RE COGNIZED BY THE INCOME TAX DEPARTMENT UNDER A LICENSE ISSUED BY THE BOARD. THEREFORE, A REPORT FRAMED BY THE RV CANNOT BE SUMMARILY DEMEA NED AS A SPURIOUS DOCUMENT OR SOMETHING FROM ANYBODY FROM THE STREET. HENCE, THERE MUST BE SOME JUSTIFIABLE REASON TO TRIGGER A CAUTION IN THE MIND OF A QUASI JUDICIAL AUTHORITY BEFORE EMBARKING UPON REFERENCE TO ANOTHER VALUER. 13.3 IT MAY BE PERTINENT TO OBSERVE HERE THAT SUCH VALUATION NEED NOT BE CONSERVATIVE OR FOR THE ADVANTAGE OF THE REVENUE BU T IT NEEDS TO BE FAIR. THE EXERCISE OF VALUATION IS TECHNICAL AND COMPLEX ISSUE WHICH SHOULD BE APPROPRIATELY LEFT TO THE WISDOM OF THE EXPERTS, HA VING REGARD TO MANY IMPONDERABLES WHICH ENTER THE PROCESS OF VALUATION. A VALUATION CARRIED OUT BY THE EXPERT CANNOT BE ASSAILED UNLESS THERE I S SOME MATERIAL TO SHOW A TANGIBLE REASON WHICH DEMONSTRATES FUNDAMENT AL WRONG APPROACH OR A FUNDAMENTAL ERROR GOING TO THE ROOT OF THE MAT TER. IT IS SO BECAUSE VALUATION IS AN ART, BESIDES BEING A SCIENCE AND IS SUBJECTIVE AND THUS CANNOT BE EXPECTED TO BE ABSOLUTE. THERE IS ALWAYS AN ELEMENT OF SUBJECTIVITY INVOLVED IN THE EXERCISE OF VALUATION AND SOME AMOUNT OF GUESSWORK IS TYPICALLY INVOLVED IN SUCH EXERCISE. ITA NO. 629/AHD/19 & 2 ORS. [DASHRATHBHAI G. PATEL& 2 ORS.] - 15 - 13.4 THE RV IN THE INSTANT CASE HAS ADOPTED REVERSE CALCULATION OF INDEXATION WHICH METHOD HAS BEEN APPROVED BY THE CO -ORDINATE BENCH IN PFIZER LTD. (SUPRA), SMT. MINA DEOGUN (SUPRA) AND ASHVEN DATLA (SUPRA). THEREFORE, THE METHOD ADOPTED BY THE RV CANNOT BE B RUSHED ASIDE IN A LIGHT HEARTED MANNER IN THE ABSENCE OF ANY COMPELLI NG REASONS. AS NOTED EARLIER, THE AO WHILE MAKING REFERENCE TO DVO HAS N OT PROVIDED ANY REASONS FOR DOING SO EXCEPT TO OBTAIN ELUCIDATION O N CORRECT VALUE. SUCH REASONS CITED FOR ISSUANCE OF REFERENCE UNDER S.142 A OF THE ACT FOR INVESTMENT MADE IN EARLIER YEAR IS CLEARLY NONDESCR IPT AND UNSPECIFIC. THE PROVISION OF SECTION 142A OF THE ACT CANNOT BE INVOKED WITHOUT ASSIGNING SOME TANGIBLE BASIS GIVING RISE TO DOUBT ON THE FMV ADOPTED BY THE ASSESSEE. THE SECTION DOES NOT CONFER ANY U NFETTERED DISCRETION ON THE AO TO MAKE SUCH A REFERENCE FOR THE SOLE REA SON THAT FMV HAS BEEN SUBSTITUTED FOR THE ACTUAL COST WHICH ACT WAS DONE AS PER THE STATUTORY MANDATE OF SECTION 55 OF THE ACT. IT IS A FUNDAMENTAL PRINCIPLE OF LAW THAT MERELY BECAUSE THERE EXISTS CERTAIN ENA BLING PROVISION IN THE STATUTE, A QUASI JUDICIAL AUTHORITY CANNOT EXERCISE THE POWER IN ALL CASES AND IN ALL CIRCUMSTANCES WITHOUT APPLICATION OF MIN D. OBJECTIVITY AND FAIRNESS IN REACHING ANY SUCH DECISION FOR EXERCISE OF POWER IS PRE- CONDITION EVEN WHERE THE LAW DOES NOT EXPLICITLY PR OVIDE FOR SUCH STIPULATION. AT THIS JUNCTURE, WE ARE ALSO REQUIRE D TO TAKE NOTE OF THE ALLEGATION MADE BY THE AO THAT NO EVIDENCE IN CONNE CTION WITH THE CLAIM OF INDEXED COST OF ACQUISITION WAS FURNISHED NOR AN Y VALUATION REPORT IN RESPECT OF ALLEGED PROPERTY WAS MADE AVAILABLE BY T HE ASSESSEE. WE HOWEVER FIND SUBSTANCE IN THE PLEA OF THE ASSESSEE IN REBUTTAL THERETO THAT THE VALUATION REPORT WAS DULY PROVIDED TO THE AO AS WELL AS TO THE DVO AT THE THRESHOLD. THE CORRESPONDENCES MADE BY THE ASSESSEE CLEARLY SHOW THAT THE AO WAS MADE PRIVY TO THE VALUATION REPORT. THIS ASPECT IS ALSO RE-ENFORCED BY THE REFERENCE MADE UNDER S.142A OF T HE ACT ITSELF WHERE THE AO HIMSELF HAS CLAIMED THE ESTIMATED COST OF IN VESTMENT AS PER THE ASSESSEE TO BE RS.48,59,393/- AS ON 01.04.1981 WHIC H SQUARES WITH THE VALUATION REPORT OF THE RV OF THE ASSESSEE. THE OT HER OBJECTION OF AO TOWARDS ABSENCE OF DOCUMENTS ON ACTUAL COST OF ACQU ISITION OF PROPERTY ITA NO. 629/AHD/19 & 2 ORS. [DASHRATHBHAI G. PATEL& 2 ORS.] - 16 - SOLD IS ALSO IRRELEVANT. THE ACTUAL COST OF ACQUIS ITION WAS NOT MATERIAL SINCE THE PROPERTY WAS ACQUIRED BEFORE 01.04.1981 A ND CONSEQUENTLY FMV AS ON 01.04.1981 COULD BE ADOPTED TO BE THE COS T OF ACQUISITION FOR THE PURPOSES OF SUBSEQUENT INDEXATION AND DETERMINA TION OF CAPITAL GAINS CHARGEABLE TO TAX. THUS, THE REFERENCE MADE UNDE R S.142A OF THE ACT FOR TWIN REASONS NOTED ABOVE IS NOT SUSTAINABLE IN THE FACTS OF THE CASE. THE REFERENCE UNDER S.142A OF THE ACT IS ALSO UNCAL LED FOR AS THE UNACCOUNTED INCOME, IF ANY, IN RELATION TO ASSETS A CQUIRED IN EARLIER YEARS COULD NOT BE BROUGHT TO AMBIT OF TAXATION UNDER S.6 9, 69B ETC. OF THE ACT IN THE IMPUGNED ASSESSMENT YEAR. 13.5 IT WILL ALSO BE PERTINENT TO NOTE THAT SECTION 55A OF THE ACT IS A COMPREHENSIVE SECTION FOR MAKING A REFERENCE TO DVO FOR THE PURPOSE OF CAPITAL GAINS UNDER CHAPTER IV-E OF THE ACT CONCERN ING TAXABILITY OF CAPITAL GAINS ON TRANSFER OF CAPITAL ASSET. THE FMV OF CAPITAL ASSET AS ON 01.04.1981 IS SQUARELY GOVERNED BY SECTION 55A OF T HE ACT. THE AO THUS COULD MAKE APPROPRIATE REFERENCE UNDER S.55A O F THE ACT SUBJECT TO THE FULFILLMENT OF THE PRE-REQUISITES OF SECTION 55 A OF THE ACT. NEEDLESS TO SAY, A SPECIFIC PROVISION WOULD OVERRIDE GENERAL PROVISION. 13.6 NOTWITHSTANDING THE FACT THAT NO REFERENCE WAS MADE BY AO UNDER S.55A OF THE ACT, THE REFERENCE FOR VALUATION OF CA PITAL ASSET IS ALSO TESTED ON THE TOUCHSTONE OF SPECIFIC ENACTMENT CODI FIED IN SECTION 55A OF THE ACT. SECTION 55A OF THE ACT DEFINES THE SCOPE OF ITS APPLICABILITY FOR REFERENCE TO VALUATION OFFICER IN CIRCUMSTANCES AS SPELT OUT IN SUB- SECTION (A) & (B) THERETO. SECTION 55A(A) IS NOT A PPLICABLE ON FACTS AS THE AO DID NOT DEMONSTRATE ANY COGENT REASON TO ENA BLE HIM TO FORM AN OPINION TOWARDS VARIANCE/OVER VALUATION IN THE FMV OF LAND IN QUESTION. SECTION 55A(B)(I) OF THE ACT CONCERNS A SITUATION W HERE THE FMV OF THE ASSETS EXCEEDS THE VALUE OF ASSET CLAIMED BY THE AS SESSEE. IN THE INSTANT CASE, THE FMV IS SOUGHT TO BE LOWERED BY AO THAN WH AT IS CLAIMED BY THE ASSESSEE. THEREFORE, SECTION 55A(B)(I) OF THE ACT IS NOT RELEVANT IN THE FACTS OF THE CASE. WE NOW ADVERT TO SECTION 55 A(B)(II) OF THE ACT ITA NO. 629/AHD/19 & 2 ORS. [DASHRATHBHAI G. PATEL& 2 ORS.] - 17 - WHICH ENABLES THE AO TO TAKE RECOURSE TO SECTION 55 A OF THE ACT ONLY ON FULFILLMENT OF PRESCRIBED PARAMETER THEREIN I.E. NA TURE OF ASSET AND OTHER RELEVANT CIRCUMSTANCES. THE AO HAS NOT POINTED OUT EXISTENCE OF ANY SUCH VALID CIRCUMSTANCE WHICH COULD EMPOWER HIM UND ER S.55A OF THE ACT. THE AO HAS MERELY ISSUED REFERENCE TO DVO UND ER S.142A OF THE ACT WITHOUT ANY BACKGROUND OR REASONS AND THE VALUA TION OFFICER, IN TURN, HAS ACTED IN A PERFUNCTORY MANNER AND TRAVELL ED BEYOND THE JURISDICTION MANDATE CONFERRED WITHIN THE SWEEP OF SECTION 142A OF THE ACT AND HAS PASSED AN ORDER UNDER S.55A OF THE ACT WITHOUT ANY REFERENCE THEREIN. 13.7 IT DOES NOT REQUIRE TO UNDERSCORE THAT A DVO D ERIVES ITS AUTHORITY IN LAW WHICH FLOWS FROM THE MANDATE AS DELEGATED BY THE AO. THE VALUATION OFFICER CANNOT EXERCISE THE POWER OF VALU ATION INDEPENDENT OF SUCH MANDATE. WHERE AN EXPRESS MANDATE WAS GIVEN U NDER S.142A OF THE ACT, THE VALUATION OFFICER COULD NOT HAVE TRAVELLED IN THE ARENA OF SECTION 55A OF THE ACT TO DETERMINE THE FMV. HOWEV ER, AS NOTED EARLIER, THE AO HIMSELF HAS NOT CHOSEN TO EXERCISE POWERS UNDER S.55A OF THE ACT AND THEREFORE, WE DO NOT REQUIRE TO DELINEA TE ANY FURTHER ON THIS ASPECT. AS FURTHER NOTED, THE AO COULD NOT INVOKE P OWERS VESTED UNDER S.142A OF THE ACT EITHER IN THE GIVEN FACTS OF THE CASE. THE RV HAS ADOPTED REVERSE CALCULATION OF INDEXATION WHICH MET HOD HAS BEEN APPROVED BY THE CO-ORDINATE BENCH IN SOME CASES AS NOTED ABOVE. THE AO HAS FAILED TO BRING ON RECORD ANY ADVERSITIES IN APPLICABILITY OF SUCH METHOD BUT HAS SIMPLY ADOPTED THE FMV DETERMINED BY THE VALUATION OFFICER ON THE STRENGTH OF SOME COMPARABLE INSTANCE S UNDER A DIFFERENT PROVISION WITHOUT ANY MANDATE. ON FACTS TOO, THE A SSESSEE HAS CLAIMED THAT THE CASE OF THE ASSESSEE IS NOT COMPARABLE WIT H SUCH INSTANCES HAVING REGARD TO THE DIFFERENT NATURE OF LAND AND D IFFERENT COMPLEXITIES. THE AO HAS ALSO FAILED TO OBSERVE THE PRINCIPLES OF NATURAL JUSTICE WHILE CONFRONTING THE FINDINGS OF THE DVO IN AS MUCH AS T HE COPY OF ORDER OF THE DVO WAS ALSO NOT PROVIDED AT THE TIME OF HEARIN G. ITA NO. 629/AHD/19 & 2 ORS. [DASHRATHBHAI G. PATEL& 2 ORS.] - 18 - 13.8. IN TOTALITY, THE ACTION OF THE REVENUE IS SER IOUSLY MARRED BY MULTIPLE AND INTRINSIC LEGAL INFIRMITIES AND VIOLAT ION OF PRINCIPLES OF NATURAL JUSTICE. THE ASSESSEE, ON THE OTHER HAND, HAS DISCHARGED ITS PRIMARY ONUS TO SUPPORT THE FMV AS ON 01.04.1981. THUS, IN OUR VIEW, THE JURISDICTIONAL DEFECT IN ISSUING FIRSTLY UNLAWF UL REFERENCE UNDER S.142A OF THE ACT AND SECONDLY, ADOPTING FMV AS PER THE VALUATION ORDER PASSED UNDER A WHOLLY DIFFERENT SECTION I.E. 55A OF THE ACT IN GROSS CONTRADICTION OF MANDATE IS PRIMA FACIE NOT CURABLE. COUPLED WITH THIS, THE VALUATION REPORT OF RV COULD NOT BE SUCCESSFULL Y DEMONSTRATED TO BE UNWORTHY OF ACCEPTANCE. WE THUS SET ASIDE THE ORDE R OF THE CIT(A) AND DIRECT THE AO TO RESTORE THE CLAIM OF THE ASSESSEE. 14. IN THE RESULT, THE APPEAL OF THE ASSESSEE IN IT A NO.629/AHD/2019 (DASHRATHBHAI G. PATEL) IS ALLOWED AND ALL OTHER CA PTIONED APPEALS ARE ALSO ALLOWED FOR SIMILARITY OF FACTS AND CIRCUMSTAN CES. SD/- SD/- (MAHAVIR PRASAD) (PRADIP KUMAR K EDIA) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD: DATED 31/12/2019 TRUE COPY S. K. SINHA !'#' / COPY OF ORDER FORWARDED TO:- &. / REVENUE 2. / ASSESSEE (. )*+ , / CONCERNED CIT 4. ,- / CIT (A) /. 012 33*+4 *+#4 56) / DR, ITAT, AHMEDABAD 7. 289 / GUARD FILE. BY ORDER / 4 /5 *+#4 56) THIS ORDER PRONOUNCED IN OPEN COURT ON 31/12/201 9