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case law of Daulat Mota HUF

Started by taxqueries, April 05, 2011, 12:58:58 PM

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Can somebody help me in getting the unreported decision of Bombay High Court in the case of Daulat Mota HUF ITA NO 1031 OF 2008 DT 22-9-2008 (Unreported). Its very useful in my client's case...

ashutosh majumdar

Sure, Here you are (a pdf copy is also annexed as an attachment to this post - download after loggin in):

Income Tax Appeal No. 1031 of 2008
The Commissioner of Income Tax-14 ..Appellant
Daulal Mohta HUF ..Respondent
Mr.D.K.Kamwal for appellant.
Dr.K.Shivram i/b Mr.A.R.Singh for respondent
22nd September,2008
1. Heard the learned Counsel for the appellant and the
learned Counsel for the respondent.
2. In the above appeal two questions are sought to be
A) Whether on the facts and in the circumstances of
the case, the Hon'ble ITAT was right in law in
reversing the decision of the CIT(A) on valuation
of Laxmi Niwas property at Rs.1,35,40,000/- made by
the DVO as against the valuation done by the
Government approved valuer which was at
B) Whether on the facts and in the circumstances of
the case the Hon'ble Tribunal was right in law to
observe that the A.O. was not justified in making
a reference under sec.55A of the Act to the DVO for
determination of the fair market value of the
3. We have perused the judgment of the Tribunal. It is
explicitly clear that the questions sought to be raised
are with regard to the quantum of valuation which is only
a finding of fact and there is absolutely no question of
law involved in the above appeal.
4. The Tribunal in its order dated 23rd July, 2004 has
categorically observed thus:
"5. The first issue that arises for our
consideration is whether the reference made by the
Assessing Officer to the DVO u/s 55A is bad in law
under the facts and circumstances of the case.
This issue, in our considered opinion, is covered
in favour of the assessee and against the Revenue
by the judgment in the case of Rubab M.Kazerani
reported in 91 ITD 429 (Mum(TM). Further the
assessee also covered by the Third Member decision
of the Pune Bench of the Tribunal, the case of
Krishnabhai Tingore Vs.ITO reported in 101 ITD 317
(Pune) (TM) wherein it has been held that reference
to DVO can only be made in cases where the value of
capital asset shown by the assessee is less than
its fair market value of land as on 1st April, 1981
shown by the assessee on the basis of approved
valuer's report being more than its fair market
value, reference under S.35A was not valid.
Respectfully following the propositions laid down
these two cases by the coordinate benches we uphold
the contention of the assessee and hold that the
reference made by the Assessing Officer to the DVO
u/s 55A in the peculiar facts and circumstances of
the case is bad in law. Thus, on the sole grounds
of appeal of the assessee has to be allowed.
6. Before passing, we have to mention that the
assessee has submitted the arguments. As on the
basis of the legal aspects itself we have decided
the issue in favour of the assessee, we refrain
from undertaking this academic exercise of
disposing this case on merits."
5. In view thereof there is no merit in the appeal.
Appeal stands dismissed.