TMI Blog2015 (3) TMI 156X X X X Extracts X X X X X X X X Extracts X X X X ..... law that in the absence of any incriminating evidence that anything has been paid over and above than the stated amount, the primary burden of proof is on the Revenue to show that there has been an understatement or concealment of income. It is only when such burden has been discharged, would it be permissible to rely upon the valuation given by the DVO. As apparent from the factual narrative, the materials collected in the search operations impelled the AO to complete the block assessment in this case. Conspicuously, however, there was no material in the course of the search or collected during the proceedings post search, pointing to under valuation of the assessees’ properties which were ultimately held to have been the subject of un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and only modest amounts were disclosed in the ITRs. After issuing notice, the AO taking into consideration the materials brought on the record referred the properties for valuation to the District Valuation Officer under Section 142A of the Income Tax Act. Based upon the report received which was considered after hearing counsel for the assessee, the AO made additions. The AO concluded that a comparison between declared value and the value determined (by the DVO) disclosed serious discrepancy. He, therefore, added the difference and brought them to tax in the block assessment orders. These orders were carried in appeal to the ITAT being IT (SS) Appeal Nos.75-80/(Del)/1997, pertaining to the block assessment years 1986-87 to 1995-96. 3. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... should be any evidence or material with the Department to suspect any transaction. Only on the basis of the presumption the suspicion is not tenable. The Assessing Officer in these cases made enhancement on the basis of only valuation report. Except this evidence there was no material or basis with the Assessing Officer; neither any material was available on the date of search nor there was any information with the department. Therefore, in view of these facts and circumstances we are of the view that the action of the Assessing Officer was out of purview of section 158BC, under Chapter XIV-B of the Income Tax Act. Accordingly we hold that the additions made on account of revaluation of these properties were invalid. Accordingly, we quash ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... city of a particular property transaction, the question of not referring it for proper valuation should not ordinarily arise. Learned counsel highlighted that requiring the Revenue to link the material found post search or during the course of the proceedings would not necessarily be fair and if the AO in the given facts of the case had strong and good reasons to suspect undervaluation, he can as well refer the properties for valuation and, depending upon the report received, adopt the same, of course, after giving due notice and hearing the submissions of the assessee. 5. Counsel for the assessee, on the other hand, urged that the question of law as framed in the context of the present case does not arise for consideration and has since ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ITR 597 (SC) and held as follows: - 9. We do not find merit in the submission made by Ms. Suruchi Aggarwal that the concealed income was detected during the course of search or any evidence was found which would indicate such concealment. The seized material containing the sale deeds of the properties, which have been relied upon to make reference to the DVO, had already been declared to the Revenue by the respondent-assessee under the VDIS. We are also in agreement with the submission made by Mr. Piyush Kaushik that it is settled law that in the absence of any incriminating evidence that anything has been paid over and above than the stated amount, the primary burden of proof is on the Revenue to show that there has been an understate ..... X X X X Extracts X X X X X X X X Extracts X X X X
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