TMI Blog2010 (8) TMI 217X X X X Extracts X X X X X X X X Extracts X X X X ..... DIPAK MISRA, MANMOHAN JJ JUDGMENT Manmohan J.- The present appeal has been filed under section 260A of the Income-tax Act, 1961 (for brevity "the Act, 1961") challenging the order dated July 8, 2009 passed by the Income-tax Appellate Tribunal (in short "ITAT") in I. T. A. No. 3451/Del/2008, for the assessment year 2005-06. 2. The facts relevant to the present case are that the respondent-assessee had made investment in properties bearing No. 101, Ground Floor, Ban- gala Sahib Road, New Delhi and a flat on the first floor of that property. The respondent-assessee had duly registered the purchase deed with the Sub-Registrar-VI, New Delhi. The said investment was duly declared in the regular return filed b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ounsel vehemently argues that there is no material whatsoever with the Department to come to a conclusion that any on-money was paid by the assessee, correspond- ing addition in the case of the vendor Shri Ashok Deish has not been made. The collateral instances referred to by the DVO are in respect of vacant possession property besides in better locality, therefore, it was claimed that the matter should not have been referred to the valuation cell under section 141A and in any case, the addition is not sustainable on the merits in view of this deficiency . . . 5. We have heard the rival contentions and perused the material on record. Learned Departmental representative could not dispute the argument of the assessee that any inc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roperty. Ms. Bansal also relied upon para 3.4.1. of the Assessing Officer's order to contend that the respondent-assessee had made a statement which suggested undisclosed investment in the aforesaid property. 4. It is settled law that the primary burden of proof to prove understate- ment or concealment of income is on the Revenue and it is only when such burden is discharged that it would be permissible to rely upon the valu- ation given by the DVO. (See K. P. Varghese v. ITO [1981] 131 ITR 597 (SC), CIT v. Shakuntala Devi [2009] 316 ITR 46 (Delhi) and CIT v. Vinod Singhal (I. T. A. No. 482 of 2010 decided by this court on May 5, 2010). 5. In any event, the opinion of the DVO, per se, is not an information and cannot be r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the District Valuation Officer (DVO). The opinion of the DVO per se is not an information for the purposes of reopening assessment under section 147 of the Income-tax Act, 1961. The Assessing Officer has to apply his mind to the information, if any, collected and must form a belief thereon. In the circumstances, there is no merit in the civil appeal. The Department was not entitled to reopen the assess- ment. Civil appeal is, accordingly, dismissed. No order as to costs." 7. Moreover, in the present case, no evidence much less incriminating evi- dence was found as a result of the search to suggest that the assessee had made any payment over and above the consideration mentioned in the registered purchase deed. A reading of para 3. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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