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2022 (4) TMI 869 - AT - Income TaxAddition u/s 69C - reference to DVO u/s 142A for the purpose of Section 69C - DVO estimated the value of the land less than 10% of the value adopted by the Stamp Valuation Authority, therefore, AO proceeded to treat the difference as unexplained expenditure u/s 69C - objection of the assessee regarding erroneous reference to the DVO, it was submitted that the Assessing Officer was not empowered to refer the matter to DVO, where the assessment was being made u/s 69C - HELD THAT:- Revenue has not brought on record that mentioning of Section 69C was on account of any typographical error. It is also clear from the assessment order that the Assessing Officer had referred the issue of market value of the property in question u/s 142A - as per Section 142A such reference can be made to ascertain the value of any investment referred to in Section 69 or Section 69B or the value of any bullion, jewellery or any other valuable article referred to in section 69A or Section 69B of the Act. There is conspicuous exclusion of Section 69C. In the present case, reference u/s 142A was not made regarding ascertaining the correct market value of the investment in property. But, it was in fact for the purpose of ascertaining expenditure which the assessee made on the purchases. We find merit into the contention of the assessee that the reference to DVO u/s 142A for the purpose of Section 69C is not valid. Action of the CIT(Appeals) to treat the reference u/s 142 for the purpose of Section 69B - Hon’ble Delhi high Court, rendered in the case of CIT Vs. Aar Pee Apartments (P) Ltd.[2009 (8) TMI 256 - DELHI HIGH COURT] has held that from the reading of sub-section (1) of Section 142A, it is clear that legislature referred to the provisions of Section 69, 69A and 69B but specifically excluded 69C. The principle of casus omissus becomes applicable in a situation like this. What is not included by legislature and rather specifically excluded, cannot be interpreted by the Court through the process of interpretation. The only remedy is to amend the provision. It is not the function of the Court to legislate or to plug the loopholes in the law. In the light of the above binding precedent the action of the learned CIT(Appeals) in treating the addition made by the Assessing Officer u/s 69C as have been made u/s 69B is contrary to the law laid down by the Hon’ble Jurisdictional High Court. Therefore, the impugned order is therefore set aside. The addition made u/s 69C on the basis of the report of the DVO by the Assessing Officer deserves to be deleted. Hence, impugned addition is hereby deleted. Grounds of appeal taken by the assessee are allowed accordingly.
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