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2020 (10) TMI 1285 - ITAT AHMEDABADReopening of assessment u/s 147 - notice after the expiry of 4 years from the end of relevant Assessment Year - addition of estimated addition of alleged unaccounted investment - Addition on the basis of Valuation Report of DVO - CIT(A) while deleting the estimated addition recorded that there is no evidence with AO for such estimated additions and he directed the AO to obtain a report of DVO under section 142A - HELD THAT:- The onus was on the AO to bring evidence on record to prove that the assessee has paid more amounts while purchasing these three pieces of land, than what has been recorded in his books of account. The AO has neither recorded such averments in the reasons recorded nor raised any question the assessee during the assessment. The AO directly came on the conclusion on the basis of the report of DVO that assessee made investment which is not recorded in the books of assessee. The AO without discharging his onus directly concluded on unexplained investment. In our view section 142A merely speaks about the estimate of the valuation of investments. Estimate cannot take the place of actual investment. The Hon’ble Rajasthan High Court in Sardar Kehar Singh [1990 (11) TMI 32 - RAJASTHAN HIGH COURT] also held that it is well established that reopening of assessment on the basis of subsequent valuation report is not justified inasmuch as the report is nothing more than a mere opinion. Such a report by itself does not lead to a reasonable belief of concealment of income justifying action under clause (a) of section 147, nor does it constitute 'information' justifying action under clause (a) of the said section and quashed the notice under section 147. We are of the view that once the assessment under section 143(3) was completed and the AO has already made addition on the same issue, and on appeal it was deleted by ld CIT(A), the reopening of the assessment on the same issue on basis of report of DVO in not valid. Therefore, all subsequent action thereto is void-ab initio. Thus, the assessee succeeds on the legal issue. Even on merit we note that Hon’ble Jurisdictional High Court in Gayatri Enterprises [2019 (9) TMI 777 - GUJARAT HIGH COURT] held that unless it was established on record by department that as a matter of fact, consideration as alleged by department did pass to seller from purchaser, it could not be said that department had any right to make any additions. It was further held that as per section 69B, no addition could be made under said section merely on basis of presumption. We have noted that the AO has not brought any material on record that the assessee has paid/invested money in purchase of these three plots, which is not recorded in the books of the assessee. Thus, in view of the above discussions the assessee also succeeds on merit. - Decided in favour of assessee.
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