Itxa/2336/2009 Of The Commissioner Of Income -Tax-22,Mumbai v. Shri Hiren L. Shsh, Mumbai

IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION INCOME TAX APPEAL NO.2336 OF 2009 The Commissioner of Income Tax ..Appellant. V/s. Shri Hiren L. Shah ..Respondent. Mr.Suresh Kumar for appellant. Mr. M. Subramian i/b. V.S. Hadade for respondent. CORAM : DR. D.Y.CHANDRACHUD AND J.P.DEVADHAR, JJ. DATED : 5TH JANUARY, 2010 P.C. :- 1.The following questions of law have been framed in the appeal of the revenue against the judgment of the Income Tax Appellate Tribunal dated 11[th] December, 2008:- a)Whether on the facts and circumstances of the case the Tribunal was correct in law in upholding the order of the Ld. CIT(A) and deleting the addition of Rs.73,28,287/- made by the AO being difference in LTCG determined by the AO based on FMV as on 01-04-1981 as per DVO's preliminary report and LTCG disclosed by the assessee ?correct in law in upholding the order of the Ld. CIT(A) and deleting the addition of Rs.73,28,287/- made by the AO being difference in LTCG determined by the AO based on FMV as on 01-04-1981 as per DVO's preliminary report and LTCG disclosed by the assessee ? b)Whether on the facts and circumstances of the case the Tribunal was correct in law in quashing the valuation proceeding by the DVO and thereby preventing the AO to utilize an experts opinion ?correct in law in quashing the valuation proceeding by the DVO and thereby preventing the AO to utilize an experts opinion ? c)Whether on the facts and circumstances of the case the Tribunal was correct in law in law holding that the opinion of the AO as per provision of section 55A is absent in the instant case ?correct in law in law holding that the opinion of the AO as per provision of section 55A is absent in the instant case ? 2.The issue pertains to the assessment year 2003-04. 3.The Tribunal while dismissing the appeal filed by the revenue against the decision of the Commissioner of Income Tax (A) held that firstly, the opinion of the assessing officer which is an essential prerequisite for making a reference for valuation u/s.55A of the Income Tax Act was absent in the present case and secondly, the final report of the valuation has been received on 23rd August, 2006 after the assessment was completed on 21st March, 2006. The view taken by the Tribunal on these aspects cannot be faulted. The specific finding of the Tribunal as well as of the Commissioner of Income Tax (A) is that the assessing officer failed to record his opinion as required under section 55A of the Income Act to the effect that the value of the assets claimed by the assessee was less than the fair market value. Secondly, the valuation relied upon by the assessee cannot be assailed on the basis of a report which was received after the assessment order was passed. In these circumstances, the appeal does not raise any substantial question of law and the same is dismissed with no order as to costs. (J.P.DEVADHAR, J.) (DR. D.Y.CHANDRACHUD, J.)