Maruti G.Thopte, Pune V. Income-tax Officer, Pune

ITA 863/PUN/2017

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 9534 (ITAT-PUNE)
• Duration Of Justice: 8 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-01-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2010-2011
• Appeal Filed On: 10-04-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: VIVEK AGGARWAL
• Keywords: Capital asset; Retrospective amendment; Question of law; Cost of acquisition; Fair market value; Valuation report; Revised return
• Section: 143(3); 54F; 133(6); 148

Judgement Text

] IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B, PUNE BEFORE MS. SUSHMA CHOWLA, JM AND SHRI ANIL CHATURVEDI, AM . / ITA NO.863/PUN/2017 / ASSESSMENT YEAR : 2010-11 SHRI MARUTI G. THOPTE, S.NO.39, RAMNAGAR, THOPTE WASTI, RAHATI, KALEWADI, PUNE 41108. PAN : AEHPT2978M. . / APPELLANT V/S INCOME TAX OFFICER, WARD 8(4), PUNE. . / RESPONDENT ASSESSEE BY : SHRI M.K. KULKARNI. REVENUE BY : SHRI VIVEK AGGARWAL. / ORDER PER ANIL CHATURVEDI, AM : 1. THIS APPEAL FILED BY THE ASSESSEE U/S 253 OF THE INCO ME TAX ACT, 1961 IS EMANATING OUT OF THE ORDER OF COMMISSIONER OF INCOME TAX (A) 6, PUNE, DT.29.01.2017 FOR THE ASSESSMENT YEAR 2010-11. 2. THE RELEVANT FACTS AS CULLED OUT FROM THE MATERIAL ON R ECORD ARE AS UNDER :- ASSESSEE IS AN INDIVIDUAL HAVING INCOME FROM BUSINESS, CAPITAL GAINS AND OTHER SOURCES. ASSESSEE FILED HIS RETURN OF INCOME FOR AY. 2010-11 ON 30.03.2012 DECLARING TOTAL TAXABLE INCOM E OF / DATE OF HEARING : 28.12.2017 / DATE OF PRONOUNCEMENT: 05.01.2018 2 RS.59,019/-. THEREAFTER, NOTICE U/S 148 OF THE ACT WAS IS SUED ON 25.03.2013 AND SERVED ON THE ASSESSEE. IN RESPONSE TO THE NOTICE, ASSESSEE FILED REVISED RETURN OF INCOME ON 12.03.2014 DECLAR ING TOTAL INCOME OF RS. 1,87,987/-. THEREAFTER, THE ASSESSMENT WA S FRAMED U/S 143(3) OF THE ACT VIDE ORDER DT.28.03.2014 AND THE TOT AL INCOME WAS DETERMINED AT RS.71,93,380/-. AGGRIEVED BY THE ORD ER OF AO, ASSESSEE CARRIED THE MATTER BEFORE LD. CIT(A), WHO VIDE O RDER DT.29.01.2017 (IN APPEAL NO.PN/CIT(A)-V/ITO WD.8(4)/343/2014 - 15) DISMISSED THE APPEAL OF THE ASSESSEE. AGGRIEVED BY TH E ORDER OF LD.CIT(A), ASSESSEE IS NOW IN APPEAL BEFORE US AND HAS RAIS ED THE FOLLOWING GROUNDS : 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AND IN LAW THE APPELLANT- ASSESSEE HAD 1/4TH SHARE IN THE PROPERTY /ASSET ALONG WITH THREE BROTHERS HAVING CAPITAL GAIN (LONG TERM) IN EQUAL PROPORTION. IN THE CASE OF OTHER THREE BROTHERS THE LD. CIT(A)- 9, AKURDI, PUNE ASSERTED THE PLEA OF THOSE THREE BROTHERS IN THEIR RESPECTIVE APPEALS THE REFERENCE TO DVO BY THE A.O. WAS NOT VALID. THE REFERENCE U/S 55A CAN BE MADE TO DVO ONLY WHEN VALUE ADOPTED IS L ESS THAN FMV. THE LD. CIT(A) ACCEPTED THE ARGUMENT OF THE ASSESSE E AND ALLOWED THE APPEAL OF THOSE ASSESSEE. THE LD. CIT(A) OUGHT TO HAVE ALLOWED THE APPEAL OF THE ASSESSEE. ON SIMILAR FACTS AND CI RCUMSTANCES THE APPEAL OF THE ASSESSEE BE ALLOWED HOLDING REFERENCE TO DVO WAS NOT VALID. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW THE ASSESSEE IN THOSE APPEALS RELIED UPON THE JUDGMENT OF THE HON'BLE BOMBAY HIGH COURT IN THE CASE OF CIT VS. PUJA PRINT S REPORTED AS (2014) 360 ITR 697 (MUM). THE LD. CIT(A) IN THOSE A PPEALS ACCEPTED THE PLEA OF THE ASSESSEE MADE AFTER RELIANCE UPON T HE HON'BLE BOMBAY HIGH COURT JUDGMENT (SUPRA). IN VIEW OF THE IDENTICAL FACTS AND CIRCUMSTANCES IN THOSE APPEALS THE LD. CIT(A) W AS NOT JUSTIFIED IN NOT FOLLOWING THE HON'BLE BOMBAY HIGH COURT JUDGMEN T (SUPRA) WHICH IS IN FAVOUR OF THE ASSESSEE. THE COMPUTATION OF CA PITAL GAIN AND OTHER BENEFITS BE ALLOWED TO THE ASSESSEE AS PER LA W. 3. BEFORE US, THE LD.A.R. SUBMITTED THAT THE SOLE CONTROVE RSY IS WITH RESPECT TO THE REFERENCE MADE TO THE DISTRICT VALUA TION OFFICER (DVO) U/S 55A OF THE ACT. 4. DURING THE COURSE OF ASSESSMENT PROCEEDINGS AO NOTICE D THAT ASSESSEE HAD SOLD ANCESTRAL IMMOVABLE PROPERTIES ALONG WIT H HIS 3 THREE BROTHERS FOR A TOTAL CONSIDERATION OF RS.12,56,00,000/ - AND ASSESSEES SHARE BEING 1/4 TH IN THE PROPERTY. ON THE BASIS OF VALUATION REPORT DT.29.03.2012 OF SHRI S.P. TAYAWADE PATIL, THE GOVERNMENT APPROVED VALUER, SANGLI, THE ASSESSEE WHILE CAL CULATING THE LONG TERM CAPITAL GAIN HAD ADOPTED THE COST OF ACQUIS ITION OF THE IMMOVABLE PROPERTY AT RS.1,15,99,280/- AS ON 01.04.1981. TH E AO WAS OF THE VIEW THAT THE COST OF ACQUISITION ADOPTED BY T HE ASSESSEE WAS EXCESSIVE AND HENCE NOT ACCEPTABLE. HE REFERRED T HE MATTER TO THE DISTRICT VALUATION OFFICER (DVO) FOR THE VALUATION OF THE PR OPERTY. THE DVO VIDE ORDER DT.07.02.2014 PASSED U/S 55A R.W.S. 16 A(5) OF THE WEALTH TAX ACT, 1957 DETERMINED THE FAIR MARKET VALU E OF THE PROPERTY AT RS.51,000/- AND ACCORDINGLY, THE ASSESSEES SHARE WAS WORKED OUT AT RS.12,750/- (1/4 TH OF RS.51,000/-). AO ON THE BASIS OF REPORT OF DVO CONSIDERED THE COST OF ACQUISITION OF THE PROPERTY AT RS.12,750/-. AO ALSO NOTICED THAT ASSESSEE HAD CLAIMED D EDUCTION U/S 54F FOR CONSTRUCTION OF THREE HOUSE PROPERTIES. (RS.9 4,50,000/- FOR PROPERTY AT RAHATANI, TAL. HAVELI, RS.22,71,500/- FOR PRO PERTY AT PATAS, TAL. DAUND AND RS.43,52,750/- FOR PROPERTY AT NANE , TAL. MAVAL) AO WAS OF THE VIEW THAT U/S 54F DEDUCTION IS ALLOW ABLE ONLY IN CASE OF ONE HOUSE PROPERTY. HE ACCORDINGLY GRANTED DEDUCTION FOR HOUSE PROPERTY CONSTRUCTED AT RAHATANI OF RS.23,62,50 0/- (BEING ASSESSEES 1/4 TH SHARE OUT OF RS.94,50,000/-) WHICH WAS THE HIGHER AMOUNT OF THE THREE HOUSE PROPERTIES. HE ACCORDINGLY WORKED OUT THE LONG TERM CAPITAL GAIN AT RS.69,47,370/-. AGGRIEVED BY THE ORDER OF AO, ASSESSEE CARRIED THE MATTER BEFORE LD.CIT(A), WHO UP HELD THE ORDER OF AO BY HOLDING AS UNDER : 4.1 GROUND NO.1: IN THIS GROUND THE APPELLANT CHALLENGED THE REFERENCE TO THE DISTRICT VALUATION OFFICER BY THE AO ON THE GROUND THAT THE VALUE OF THE ASSETS TAKEN BY THE ASSESSEE WAS MORE THAN THE 4 FMV DETERMINED BY THE VALUATION OFFICER. THE APPELL ANT RELIED ON THE DECISION OF THE HON'BLE JURISDICTIONAL HIGH COURT I N THE CASE OF CIT VS. PUJA PRINTS [2014] 360 ITR 697 (MUM). 4.1.1. AS PER SEC.55A, WITH A VIEW TO ASCERTAININ G THE FMV OF A CAPITAL ASSET [FOR THE PURPOSE OF THIS CHAPTER I. E. COMPUTATION OF TOTAL INCOME], THE AO MAY REFER THE VALUATION OF A CAPITA L ASSET TO THE VALUATION OFFICER IN A CASE WHERE THE VALUE OF ASSE T AS CLAIMED BY THE ASSESSEE IS IN ACCORDANCE WITH THE ESTIMATE MADE BY A REGISTERED VALUER, IF THE AO IS OF OPINION THAT THE VALUE SO C LAIMED IS AT VARIANCE WITH ITS FMV . THE UNDERLINED BOLD PORTION OF THE SECTION WAS SUBSTITUTED BY FINANCE ACT 2012 W.E.F.1/7/2012, FOR 'IS LESS THAN ITS FMV' . THE APPELLANT CLAIMS THAT THE ASSESSMENT YEAR IN QUESTION BEING AY. 10-11, THE AMENDED PORTION IS NO T APPLICABLE TO THE FACTS OF THE CASE. AS THE FMV OF THE PROPERTY A S ON 1/4/81 IS LESS THAN THE VALUE OF THE ASSET CLAIMED AND ADOPTED BY THE APPELLANT FOR THE COMPUTATION OF CAPITAL GAINS, THE AO HAS NO POW ER TO REFER IT TO THE VALUATION OFFICER. THE APPELLANT RELIED ON THE DECI SION OF THE BOMBAY HIGH COURT IN THE CASE OF PUJA PRINTS CITED SUPRA F OR THIS PROPOSITION. 4.1.2. THE PERUSAL F THE DECISION OF THE BOMBAY HI GH COURT IN THE CASE OF PUJA PRINTS SHOWS THAT IT RELATES TO THE AY .06-07 . THE ITAT HAD PASSED THE ORDER IN THAT CASE ON 18/2/2011 AGAI NST WHICH THE APPEAL WAS FILED BEFORE THE HIGH COURT. THIS SHOWS THAT THE REFERENCE TO THE VALUATION OFFICER WAS WELL BEFORE THE AMENDM ENT HAS BEEN INTRODUCED IN SEC . 55A. THE ARGUMENT THAT THE AMENDMENT HAS A RETROSPECTIVE EFFECT DID NOT FIND FAVOUR WITH THE H IGH COURT AND IT HELD THAT IT IS MADE EFFECTIVE ONLY FROM 1/6/2012. IN T HE PRESENT CASE, THE AO HAD REFERRED THE MATTER TO THE DVO ON 25/11/2013 AND ON WHICH DATE THE AMENDED LAW IS APPLICABLE. FURTHER, SEC.5 5A IS A PROCEDURAL SECTION AND ANY AMENDMENT TO THE PROCEDURAL SECTION IS APPLICABLE FROM THE DATE OF AMENDMENT . IT HAS NO RELEVANCE TO THE ASSESSMENT YEAR . THE AMENDMENT WOULD BE APPLICABLE TO ALL THE PENDIN G ASSESSMENTS AS ON THAT DATE OF AMENDMENT. THEREFO RE THE DECISION OF THE BOMBAY HIGH COURT IS NOT APPLICABLE TO THE F ACTS OF THIS CASE. THE AO HAS CORRECTLY REFERRED THE MATTER TO THE DVO FOR ASCERTAINING THE MARKET VALUE AS THE VALUE ADOPTED BY THE ASSESS EE IS AT VARIANCE WITH THE FMV. THEREFORE THIS GROUND OF THE APPELLA NT IS DISMISSED. THE ACTION OF THE AO IN REFERRING THE MATTER TO DVO IS UPHELD. AGGRIEVED BY THE ORDER OF LD.CIT(A), ASSESSEE IS NOW IN APP EAL BEFORE US. 5. BEFORE US, LD.A.R. REITERATED THE SUBMISSIONS MADE BEFORE THE AO AND LD.CIT(A) AND FURTHER SUBMITTED THAT THE FAIR MARKE T VALUE DECLARED BY THE ASSESSEE ON 01.04.1981 WAS HIGHER THAN THE FAIR MARKET VALUE ADMITTED BY THE DVO AND THEREFORE THERE W AS NO LEGAL NECESSITY TO REFER THE MATTER OF VALUATION OF FAIR MARKET V ALUE AS ON 01.04.1981 TO THE DVO. HE FURTHER SUBMITTED THAT THE AM ENDMENT TO SEC.55A WAS MADE EFFECTIVE FROM 01.07.2012 AND THEREFO RE NOT 5 APPLICABLE TO THE FACTS OF THE CASE UNDER APPEAL. HE ALSO PLACED RELIANCE ON THE DECISION OF THE BOMBAY HIGH COURT IN THE C ASE OF CIT VS. PUJA PRINTS REPORTED IN [2014] 360 ITR 697 (BOM). HE FURTHER SUBMITTED THAT IN THE CASE OF THREE CO-OWNERS, ON IDENTI CAL ISSUE OF CAPITAL GAINS ARISING OUT OF THE SAME LAND, THE LD.CIT(A) IN THE CASE OF CO-OWNERS, AFTER RELYING THE DECISION OF PUJA PRINTS (SU PRA), HAS DECIDED THE ISSUE IN FAVOUR OF THE ASSESSEE. HE PLACED ON RECORD THE COPY OF THE DECISION OF LD.CIT(A) IN THE CASES OF CO-OWNERS IN THE PAPER BOOK FROM PAGES 77 TO 98. HE SUBMITTED THAT AG AINST THE DECISION OF LD.CIT(A) IN CASE OF CO-OWNERS, THE REVENUE HA S NOT PREFERRED ANY APPEAL. HE THEREFORE SUBMITTED THAT WHEN THE FACTS IN THE PRESENT CASE ARE IDENTICAL TO THAT OF CO-OWNERS CA SE, A DIFFERENT VIEW IN THE CASE OF ASSESSEE IS NOT CALLED FOR. LD.A.R. ALSO RE LIED ON THE DECISION OF CO-ORDINATE BENCH OF THE TRIBUNAL IN THE CA SE OF ARJUN DADA KHARATE AND PARVATABAI DADA KHARATE IN I TA NO.185/PN/2016 AND ITA NO.186/PN/2016 DT. 19.08.2016. LD.D.R. ON THE OTHER HAND, SUPPORTED THE ORDER OF AO AND LD.CIT(A) AND FURTHER SUBMITTED THAT THE AMENDMENT MADE TO SEC. 55A IS A DATE SPECIFIC AMENDMENT AND THE REFERENCE IN THE PRESENT CASE WAS MADE AFTER THE AMENDMENT AND IN SUCH A SITUATION, THE AO WAS FULLY JUSTIFIED IN MAKING A REFERENCE U/S 55A OF THE ACT. HE FURT HER SUBMITTED THAT AO IS ENTITLED TO CALL FOR A REPORT FROM DVO TO DETERMINE THE FAIR MARKET VALUE OF A PROPERTY IN EXERCISE OF ITS POWER U/S 131, 133(6) AND 142(2) EVEN WITHOUT INVOKING THE PROV ISIONS U/S 55A OF THE ACT. HE THUS SUPPORTED THE ORDER OF LOW ER AUTHORITIES. 6. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. THE ISSUE IN THE PRESENT CASE IS WITH RESPE CT TO REFERENCE 6 MADE TO THE DVO IS U/S 55A OF THE ACT. IT IS AN UNDISP UTED FACT THAT FOR THE PURPOSE OF VALUATION OF THE PROPERTY ASSESS EE HAD GOT THE VALUATION FROM GOVERNMENT REGISTERED VALUER, WHO DET ERMINED THE VALUE OF THE PROPERTY AS ON 01.04.1981 AT RS.1,51,99 ,280/-. THE AO DID NOT ACCEPT THE VALUATION MADE BY THE REGISTE RED VALUER AND REFERRED THE MATTER TO THE DVO, WHO DETERMINED TH E VALUE OF THE IMMOVABLE PROPERTY AS ON 01.04.1981 AT RS.51,000/-. IT IS THUS SEEN THAT THE VALUE OF PROPERTY DETERMINED BY THE VALUE R APPOINTED BY THE ASSESSEE WAS HIGHER THAN THE VALUE DETERMINED B Y THE DVO. WE FIND THAT THE ISSUE OF REFERENCE U/S 55A WAS BEFORE TH E HONBLE BOMBAY HIGH COURT IN THE CASE OF CIT VS. PUJA PRINTS (SU PRA). BEFORE THE HONBLE HIGH COURT REVENUE HAD ARGUED THAT THE AMENDMENT MADE TO SEC.55A(A) WAS RETROSPECTIVE AND THAT THE AO HAD POWERS U/S 131, 133(C) AND 142(2) TO REFER THE MATTER FOR VALUATION. THESE ARGUMENTS DID NOT FIND FAVOUR WITH THE H ONBLE HIGH COURT. THE HONBLE BOMBAY HIGH COURT HAS HELD THAT REFERENCE TO DVO CAN ONLY BE MADE WHEN THE VALUE ADO PTED BY THE ASSESSEE WAS LESS THAN THE FAIR MARKET VALUE. THE RELE VANT QUESTION OF LAW FORMULATED IN THE AFORESAID CASE AND THE D ECISION OF THE HONBLE HIGH COURT IS REPRODUCED HEREUNDER. 1. .. THE FOLLOWING QUESTIONS OF LAW HAVE BEEN FORMULATE D BY THE REVENUE FOR CONSIDERATION BY THIS COURT: (A) WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE AND IN LAW, THE ITAT WAS RIGHT IN HOLDING THAT THE REFEREN CE MADE BY THE AO TO THE VALUATION OFFICER PER SE IS BAD IN LAW? FURT HER, WHETHER THE ITAT WAS JUSTIFIED IN OBSERVING THAT THE REFERENCE TO THE DVO U/S. 55A OF THE IT ACT 1961 IS TO BE MADE WHEN THE VALUE OF THE PROPERTY DISCLOSED BY THE ASSESSEE IS LESS THAN THE FAIR VAL UE AND NOT VICE VERSA THEREBY IGNORING THE PROVISIONS OF SECTION 55 A(B)(II) OF THE ACT 1961 AND PARAGRAPH 26 TO 28 OF CIRCUL AR NO.96 DATED 25.11.1972 OF THE CBDT? (B) WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE AND IN LAW, THE ITAT WAS RIGHT IN DIRECTING THE AO TO ACCE PT THE VALUATION 7 GIVEN BY THE RESPONDENT AS THE FAIR MARKET VALUE ON THE BASIS OF THE REGISTERED VALUER'S REPORT AND WORKOUT CAPITAL GAIN ? . REGARDING QUESTIONS (A) AND (B) 6. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. WE FIND T HAT 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 REVENU E HAS NOT BEEN ABLE TO POINT OUT HOW THE AFORESAID DECISION IS INAPPLICABLE TO THE PRESENT F ACTS NOR HAS THE REVENUE POINTED OUT THAT THE DECISION IN DAULAL MOH TA HUF (SUPRA) HAS NOT BEEN ACCEPTED BY THE REVENUE. ON THE AFORES AID 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 THEN THE FAIR MARKET VALUE. IN THE PRESENT CAS E, IT IS AN UNDISPUTED POSITION THAT THE VALUE ADOPTED BY THE R ESPONDENT- ASSESSEE OF THE PROPERTY AT RS.35.99 LAKHS WAS MUCH MORE THAN THE FAIR MARK ET VALUE OF RS.6.68 LAKHS EVEN AS DETERMINED BY THE DEPARTMENTAL VALUATION OFFICER. IN FACT, THE ASSESS ING OFFICER REFERRED THE ISSUE OF VALUATION TO THE DEPARTMENTAL VALUATION OFFICER ONLY BECAUSE IN HIS VIEW THE VALUATION OF THE PROPE RTY AS ON 1981 AS MADE BY THE RESPONDENT- ASSESSEE WAS HIGHER THEN THE FAIR MARKET VALUE. IN THE AFORESAID CIRCUMSTANCES, THE INVOCATI ON OF SECTION 55A(A) OF THE ACT IS NOT JUSTIFIED. 8. THE CONTENTION OF THE REVENUE THAT IN VIEW OF THE A MENDMENT TO SECTION 55A(A) OF THE ACT I N 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 SHO ULD BE GIVEN RETROSPECTIVE EFFECT. THIS SUBMISSION IS IN FACE OF THE FACT THAT THE 2012 AMENDMEN T WAS MADE EFFECTIVE ONLY FROM 1 JULY 2012. THE PARLIAMENT HAS NOT GIVEN RETROSPECTIVE EFFECT TO TH E AMENDMENT. THEREFORE, THE LAW TO BE APPLIED IN THE PRESENT CAS E IS SECTION 55A(A) OF THE ACT AS EXISTING DURING THE PERIOD RELEVANT T O THE ASSESSMENT YEAR 2006- 07. AT THE RELEVANT TIME, VERY CLEARLY REFERENCE CO ULD 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. 9. THE CONTENTION OF THE REVENUE THAT T HE REFERENCE TO THE DEPARTMENTAL VALUATION OFFICER BY THE ASSESSING OFF ICER IS SUSTAINABLE IN VIEW OF SECTION 55A(A) (II) OF THE A CT IS NOT ACCEPTABLE. THIS IS FOR THE REASON THAT SECTION 55A(B)OF THE AC T VERY CLEARLY STATES THAT IT WOULD APPLY IN ANY OTHE R CASE I.E. A CASE NOT COVERED BY SECTION 55A(A) OF THE ACT. IN THIS CASE, IT IS AN U NDISPUTABLE POSITION THAT THE ISSUE IS COVERED BY SECTION 55A(A) OF THE ACT. THEREFORE, RESORT CANNOT BE HAD TO THE RESIDUARY CLAUSE PROVID ED 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 O F THE CLEAR POSITION IN LAW. THIS IS SO AS THE UNDERSTANDING OF THE STATUTORY PROVISIONS BY THE REVENUE AS FOUND IN CIRCULAR ISSU ED BY THE CBDT IS NOT BINDING UPON THE ASSESSEE AND IT IS OPEN TO AN ASSE SSEE TO 8 CONTEND TO THE CONTRARY. 10. THE CONTENTION OF THE REVENUE THAT THE ASSESSING OF FICER IS ENTITLED TO REFER THE ISSUE OF VALUATION OF THE PRO PERTY TO THE DEPARTMENTAL VALUATION OFFICER IN EXERCISE O F ITS POWER UNDER SECTIONS 131, 133(6) AND 142(2) OF THE ACT IS ENTIR ELY 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 GUWAH ATI H IGH COURT AND HELD THAT IF THE POWER TO REFER ANY DISPUTE WIT H REGARD TO THE VALUATION OF THE PROPERTY WAS ALREADY AVAILABLE UND ER 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 CI RCUMSTANCES SPECIFIED UNDER SECTION 55A OF THE ACT. IT FURTHER HELD 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 VIEW OF CL EAR PROVISIONS OF LAW AS EXISTING DURING THE PERIOD RELEVANT TO ASSES SMENT YEAR 2006- 07, WE ARE OF THE VIEW THAT QUESTIONS (A) AND (B) D O NOT RAISE ANY SUBSTANTIAL QUESTION OF LAW.' WE THUS FIND THAT HONBLE JURISDICTIONAL HIGH COURT HAS HELD THAT AMENDMENT TO PROVISO OF SEC.55A(A) IS APPLICABLE ONLY W.E.F. 01.07.2012 AND HAS NO RETROSPECTIVE EFFECT. BEFORE US, R EVENUE HAS NOT PLACED ANY CONTRARY BINDING DECISION IN ITS SUPPORT. W E THEREFORE RELYING ON THE AFORESAID DECISION OF HONBLE BOMB AY HIGH COURT IN THE CASE OF PUJA PRINTS (SUPRA) ARE OF THE VIEW THAT IN THE PRESENT CASE, AO WAS NOT JUSTIFIED IN MAKING A REFERENCE T O THE DVO. WE THEREFORE SET ASIDE THE ORDER OF AO AND THUS THE GR OUNDS OF THE ASSESSEE ARE ALLOWED. 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWE D. ORDER PRONOUNCED ON 5 TH DAY OF JANUARY, 2018. SD/- SD/- ( SUSHMA CHOWLA ) ( ANIL CHATURVEDI ) / JUDICIAL MEMBER ! / ACCOUNTANT MEMBER PUNE; DATED : 5 TH JANUARY, 2018. YAMINI 9 '#$%&'&$ / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3 . 4. 5. 6. CIT(A)-6, PUNE. PRL.CIT-5, PUNE. '#$ %%&',) &', / DR, ITAT, B PUNE; $*+,/ GUARD FILE. / BY ORDER , // TRUE COPY // -./%0&1 / SR. PRIVATE SECRETARY ) &', / ITAT, PUNE.