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PER PAWAN SINGH, JUDICIAL MEMBER; 1. These two appeals by assessee are directed against separate orders of learned Commissioner of Income Tax (Appeals)-2 [Commissioner (Appeals)], Surat dated 25.07.2017 & 28.06.2018 both for assessment year 2011-12. In appeal in the assessee has challenged the order on quantum assessment, however, in appeal in ITA 589/Srt/2018, the assessee has assailed the penalty levied under ITA No. 61/Srt/ 2017 & 589/Srt/2018 Kamlaben N Ahir section 271(1)(c). In the assessee has raised following grounds of appeal; (1) The Commissioner (Appeals) has erred in law and on facts confirming the addition to the tune of Rs. 12,96,927/- on the ground of earning additional long term capital gain earned on sale of agriculture land. (2) It is therefore prayed that, the above addition of Rs. 12,96,927/- be deleted.
2. Brief facts of the case are that assessee file his return of income for assessment year 2012-13 declaring total income of ₹ 48570/-. The case was selected for a scrutiny. The assessment was completed under section 143(3) on 25th March 2015. During the assessment the assessing officer noted that during the period relevant to the assessment year under consideration, the assessee along with other her co-owner have sold agriculture land of admeasuring 17098, 50% of 34196 Square meter situated in Khajod Choryasi Surat, on 20.07.2011. The assessee has 1/3 shares in the said land i.e. 5699 Sq meter. The assessee received consideration of Rs. 1.22 Crore. The assessee calculated long term capital gain (LTCG) and adopted cost of land as on 01.04.1981 @ Rs.110/- per Sq mtr. The assessee adopted value of land on the basis of report of Government Approved Valuer. The assessee also claimed exemption under section 54F. The assessing officer made investigation form the Sub- Registrar Surat ITA No. 61/Srt/ 2017 & 589/Srt/2018 Kamlaben N Ahir about the value of land in the area in 1981. The assessing officer recorded that as per the sale instances in Vesu area of Surat in 1981, was around Rs. 6.45/- per Sq mtr. The assessing officer accordingly computed the LTCG at the rate of Rs. 6.45/- per Sq Mtre and made addition of Rs. 22,61,009/-, while passing the assessment order.
3. On appeal before learned Commissioner (Appeals), the assessee made submission that the assessing officer assumed the role of District Valuation Officer (DVO) and made determination of fair market value (FMV). The assessing officer brushed aside the valuation furnished by the assessee by Government approved valuer. The assessing officer is not the technical person and has no skill and experience to evaluate the asset. It was also contended that the amended provisions of section 55A(a), wherein the words “ is at variance with its fair market value” was amended with effect from (wef) 01.07.2012, is not applicable on the case of assessee as the assessee has sold her asset in financial year 2011. During the hearing before learned Commissioner (Appeal), a reference was made to the DVO to determine the fair market value. The DVO vide his report dated 30.12.2016 suggested the market value of land in 1981 @ Rs. 28 per Sq Mtrs. The learned Commissioner (Appeal) on the basis of report of DVO directed the assessing officer to re-calculate the LTCG. The learned Commissioner (Appeal) thus, granted part relief to the 3 ITA No. 61/Srt/ 2017 & 589/Srt/2018 Kamlaben N Ahir assessee. Further aggrieved the assessee has filed present appeal before this Tribunal.
We have heard the submission of learned authorised representative (AR) of assessee and the learned Departmental representative (DR) for revenue. We have also gone through the orders of lower authorities carefully. The learned AR of the assessee submits that before making reference under section 55A(a), the learned Commissioner (Appeal) has to form an opinion that fair market value as on 1st April 1981, claimed in the computation of income is less than fair market value. In the present case the assessee has shown the value of asset at a higher rate than the fair market value and the amendment to the section 55A( a) i.e. substitution of the words “is at variance with the fair market value” were inserted with effect from 1st July 2012 and the same is not applicable retrospectively. The learned AR of the assessee would submit that the ratio of decision of Hon’ble was rather High Court in case of CIT Versus Gauranginiben S Shodhan Ind. reported in (367 ITR 238) is squarely applicable on the facts of the present case. The learned AR of the assessee also relied on the following case laws. JigneshKumar S Modi (HUF) and 6 others Vs ITO (ITA No. 544 to 550/Srt/2018, CIT Vs Gaurangiben S. Shodhan [2014] 224 Taxman 253 (Guj), 4 2017 & 589/Srt/2018 Kamlaben N Ahir CIT Vs Pooja Prints (2014) 224 Taxman 22 (Bombay), Mahadevi Mohanbhai Naik Vs ITO ( ITA No.82/Ahd/2016) and Sonali Roy Vs PCIT (ITA 1329/Kol/2017).
The learned AR for the assessee submits that in view of the decision of jurisdictional High Court in CIT Versus Gauranginiben S Shodhan (supra), the issue of validity of reference under section 55A(a) may kindly be addressed first as not in accordance with the law and in case it is held that reference to the DVO is not in accordance with law, the additions based on such reference be deleted in such event the other contention raised before the lower authorities would become academic.
On the other hand the learned Senior department representative for the revenue strongly supported the order of learned Commissioner (Appeals). The learned Senior DR for the revenue submits that reference to DVO was made by learned Commissioner (Appeals) as the assessee raised objections against the value adopted by the assessing officer. Now, the assessee cannot take argue that reference to the DVO is not valid.
We have considered the rival contention of the parties and have gone through the orders of authorities below. In the return of income the assessee claimed LTCG on sale of agriculture land. The assessee adopted cost of land as on 01.04.1981 @ Rs.110/- per Sq mtr on the ITA No. 61/Srt/ 2017 & 589/Srt/2018 Kamlaben N Ahir basis of report of Government Approved Valuer, which is higher to the alleged fair market value suggested by DVO. The assessee also claimed exemption under section 54F. The assessing officer disregarded the working of the assessee and computed LTCG, on the basis of information gathered from the officer of Sub- Registrar Surat about the value of land in the area in 1981 in Vesu area of Surat, at Rs. 6.45/- per Sq mtr. The assessing officer made addition LTCG of Rs. 22,61,009/-, in the assessment order. During first appeal the learned Commissioner (Appeals) made reference to the DVO. The DVO suggested the rate of nearby land at Rs. 28/- per sqr mtrs.
The narrow controversy in the present appeal whether the Assessing Officer was empowered to make reference to the DVO when he was of the view that the value adopted by assessee for computing LTCG “is at variance with its fair market value”. The words “is at variance with its fair market value” was substituted in section 55A (a) by Finance Act, 2012 w.e.f. 01.07.2012. The Ld. AR for the assessee vehemently submitted that the assessing officer was not empowered to make reference to the DVO as the transaction of transfer of land occurred prior to 01.07. 2012. The strength his submissions he relied on the decision of Gujarat High Court in CIT Vs Gaurangiben S shodhan( supra), Bombay High Court in CIT Vs Pooja Prints (supra) and 2017 & 589/Srt/2018 Kamlaben N Ahir various decisions of Tribunal, copies of all the referred decisions are placed on record.
We have seen that coordinate bench of Surat Tribunal in Jignesh Kumar N Modi HUF (supra),while considering the decisions of Gujarat High Court in CIT Vs Gaurangiben S Shodhan (supra), Bombay High Court in CIT Vs Pooja Prints (supra) and various decisions of Tribunal held that when the transaction of the land taken place during the financial year 2011-12 relevant the assessment year 2012-13, the amended provisions of section 55A(a) would not be applicable and one shall be guided by the erstwhile provisions of section 55A(a) of the Act. It was also held that in order to refer the matter to the valuation officer as per under erstwhile provisions of section 55A(a) of the Act would be applicable. Further, the Assessing Officer should form an opinion that value so claimed by assessee is less than its Fair Market Value (FMV). Only in such a scenario, the value so claimed by assessee is less than its Fair Market Value in the opinion of Assessing Officer, matter can be referred to valuation officer. In a scenario, where the value so claimed by the assessee is more than its fair market value, the matter could not be referred to the valuation officer. It was ultimately held that the Assessing Officer was not empowered to refer the matter to the valuation officer, even as per the ITA No. 61/Srt/ 2017 & 589/Srt/2018 Kamlaben N Ahir erstwhile provisions of section 55A(a) prior to amendment by the Finance Act, 2012.
Considering the decision of Co-ordinate Bench on similar set of facts, which is based on the ratio of decision of Hon'ble Gujarat High Court in CIT Vs. Gauranginiben S. Shodhan Ind.(supra) and Hon'ble Bombay High Court in CIT Vs. Puja Prints (supra). Respectfully following the same, we hold that reference made to the DVO by Assessing Officer for determination of Fair Market Value was not valid. Therefore, respectfully following the same, we accept the legal submissions of the ld. AR of the assessee and held the reference to the DVO for determination of fair market value is not valid. No contrary facts or law is brought to our notice to take other view.
Since we have accepted the legal submissions of the ld. AR of the assessee, therefore, adjudication on other grounds of appeal
before us has become academic.
12. In the result appeal of the assessee is allowed. 271(1)(c)]
13. The assessing officer while passing the assessment order made addition of Rs. 22,61,009/- on account of LTCG and initiated penalty under section 271(1)(c) of the Act. The assessing officer noted that as per the order of learned Commissioner (Appeals) quantum assessment the addition of LTCG was restricted to Rs. 13,45, 497/-. 8 2017 & 589/Srt/2018 Kamlaben N Ahir The assessing officer after receipt of the order of Commissioner (Appeals) in quantum assessment issued show cause notice dated 28.07.2017 under section 274 read with section 271(1)(c) of the Act for levying penalty. The assessee filed her detailed reply as recorded by assessing officer in para -3 of his order. In sum and substance, in reply the assessee contended that additions in the assessment order of LTCG, is based on the report of DVO, the report DVI is based on estimation and no penalty is leviable on such estimation and / or no concealment penalty is leviable. The reply of the assessee was not accepted by the assessing officer. The assessing officer levied penalty of Rs. 2,77,173/- being 100% of tax sought to be evaded, vide its order dated 30.08.2017. On appeal before learned Commissioner (Appeals) the action of assessing officer in levying penalty was upheld. The learned Commissioner (Appeals) upheld the penalty order in ex- parte order. Thus, further aggrieved the assessee has filed present appeal before this Tribunal.
14. We have heard the submission of learned AR of assessee and the learned DR for revenue. We have also gone through the orders of lower authorities carefully. The learned AR of the assessee submits that the assessee during the pendency of appeal before first appellate authority was out of India. The assessee in Form-35 i.e. in appeal form before learned Commissioner (Appeals) provided the address of 9 ITA No. 61/Srt/ 2017 & 589/Srt/2018 Kamlaben N Ahir his AR. No notice on the address provided in Form-35, was sent to the assessee. The assessee has not received notice of hearing. Only two notices were allegedly sent by ld. Commissioner (Appeals). The ld AR for the assessee submits that the assessee has good case on merit and is likely to succeed, if the assessee is given opportunity of hearing on merit. The learned Commissioner (Appeals) has not considered the merit of the grounds of appeal raised by the assessee.
15. The ld. AR for the assessee further submits that the assessee vide her application dated 08.01.2021 has raised additional grounds of appeal. The additional ground of appeal is purely legal in nature. No new facts are required to be brought on record. The ld. AR for the assessee submits that the appeal of the assessee may be adjudicated by the Tribunal instead of remanding the matter to learned Commissioner (Appeals). In support of his submissions the ld AR for the assessee relied on the decision of Hon’ble Supreme Court in Dilip N. Shroff Vs JCIT [2007] 161 Taxman 218 (SC), Gujarat High Court in PCIT Vs J Upendra Corporation P Ltd (2015) 59 taxman.com 144 (Guj) and Rajpal H Chhabra Vs ITO (ITA No.5517/Mum/2012).
16. On the other hand the ld DR for the revenue submits that the assessee was given sufficient opportunity of hearing. The assessee despite availing the opportunity not responded to the notice of hearing thus, the learned Commissioner (Appeals) has no option 10 2017 & 589/Srt/2018 Kamlaben N Ahir except to decide the appeal of the assessee. In alternative submissions the ld. DR for the revenue submits that in case the bench comes to the conclusion that the assessee was prevented by sufficient cause for non-appearance before learned Commissioner (Appeals), the appeal may be restored back to learned Commissioner (Appeals) for adjudication afresh.
17. We have considered the rival submissions of the parties and perused the order of the authorities below. The assessing officer levied penalty of Rs. 2,77,173/- being 100% of tax sought to be evaded on the addition of LTCG of Rs. 13,45, 497/-. The learned Commissioner (Appeals) dismissed the appeal of assessee by taking view that despite grating opportunity, the assessee is not interest in perusing her appeal. Before us, the learned AR for the assessee vehemently argued that assessee in Form-35 provided the address of his AR. No notice on the address provided by assessee was sent to the assessee and that the assessee has good case on merit and is likely to succeed, if the assessee is given opportunity of hearing on merit. We find merit in the submissions of the ld. AR for the assessee that the assessee was prevented by sufficient cause in non-appearance before ld. Commissioner (Appeals). Moreover, the ld. Commissioner (Appeals) has not passed order as per the mandate of section 250(6) of Income Tax Act. Therefore, we restore the appeal to the file of ld. 11