-1- IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION Income Tax Appeal No. 1031 of 2008 The Commissioner of Income Tax-14 ..Appellant vs. Daulal Mohta HUF ..Respondent Mr.D.K.Kamwal for appellant. Dr.K.Shivram i/b Mr.A.R.Singh for respondent CORAM: Dr.S.RADHAKRISHNAN & CORAM: Dr.S.RADHAKRISHNAN & CORAM: Dr.S.RADHAKRISHNAN & S.J.KATHAWALLA JJ. S.J.KATHAWALLA JJ. S.J.KATHAWALLA JJ. 22nd September,2008 22nd September,2008 22nd September,2008 P.C. P.C. P.C. 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 raised. 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 Rs.2,13,31,000/-? 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 -2- property? 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 -3- 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. (S.J.KATHAWALLA J.) (Dr.S.RADHAKRISHNAN J.) (S.J.KATHAWALLA J.) (Dr.S.RADHAKRISHNAN J.) (S.J.KATHAWALLA J.) (Dr.S.RADHAKRISHNAN J.)