TMI Blog2012 (7) TMI 280X X X X Extracts X X X X X X X X Extracts X X X X ..... isfied in the instant case - the primary burden of proof to prove the understatement 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 valuation given by the DVO - in favour of assessee. - ITA No.4460/Del/2010 - - - Dated:- 29-6-2012 - SHRI U.B.S.BEDI, SHRI A.N. PAHUJA, JJ. Assessee by Ms. Rano Jain Shri Venkatesh Mohan ARs Revenue by Shri D.K. Mishra, DR O R D E R A.N.Pahuja:- This appeal filed on 6th Oct. 2010 by the Revenue against an order dated 30th July, 2010 of the Ld. CIT(A)-1,New Delhi, raises the following grounds: 1. The order of the Ld. CIT(A) is not correct in law and facts. 2. On the facts and in the circumstances of the case, the Ld. CIT(A) has erred in law and facts in deleting the addition of Rs. 59,78,938/- on account of difference in the investment as shown by the assessee and as ascertained by DVO on valid and legal reference made by AO u/s 142A of Income Tax Act, 1961 which has no requirement for AO to bring record any material to justify understatement of purchase consideration. 3. On the facts and in the circumstances of the case, the order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ,000 24,21,300 iii Commercial Property Chowranghee, Kolkata 43,19,800 32,11,680 11,08,120 2.2 To a query by the AO, seeking to add the aforesaid difference in terms of provisions of sec. 69 of the Act, the assessee replied that the comparative instances adopted by the DVO in respect of Ahmedabad properties pertained to the period 1999, 2000 and 2002 where as the assessee purchased the property on 16th Feb. 2006 .Moreover, no evidence was found during the search that the assessee paid more than the cost reflected in purchase deed. Inter alia, the assessee furnished a copy of report of registered valuer, determining fair market the property at Rs. 34,89,930/- in respect of two properties at Ahmedabad. As regards property at Kolkatta, the assessee pleaded that the valuation was based on estimates and no document was found during the search, suggesting that the assessee paid more than what is reflected in the document. However, the AO did not accept the submissions of the assessee on the ground that comparable sale instances in respect of Ahmedbad properties were appropriate and cost of property in 2006 was more than the cost in 1999. Acc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Assessing Officer may, after giving the assessee an opportunity of being heard take into account such report in making such assessment or reassessment: Provided that nothing contained in this section shall apply in respect of an assessment made on or before the 30th day of September 2004 and where such assessment become final and conclusive on or before that date, except in cases where a reassessment is required to be made in accordance with the provisions of section 153A. Explanation - In this section, "Valuation Officer" has the same meaning as in clause of Section 2 of the Wealth Tax Act 1957 (27 of 1957.)" A perusal of the aforesaid provisions shows that Section 142A is attracted, inter alia, where the assessee is found to have made investment outside the books of accounts or where any such investment made by him is not fully disclosed in the books of account. The condition precedent for making the reference by invoking the provisions of Section 142A thus is that there should be something on record to show that the assessee in first place has made such investment outside the books or the investment so made by him is not fully disclosed in the books of account ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndition precedent for making a reference to the DVO is not satisfied in the instant case. In view of above facts and circumstances the contention of the A.R. that the reference made by the Assessing Officer to the DVO itself is wholly wrong, is accepted and upheld. I also agree with the A.R. that for invoking provisions of section 69 of the Act burden is on the Revenue to prove that the real investment exceeds the investment shown in the books of accounts of the assessee and in this case such burden has not been discharged. It is seen that there is no positive evidence to show that the assessee has paid any amount over and above the declared consideration. No such material was found even during the course of search and the A.O. has also failed to bring on record any such material which could have enabled him to invoke the provisions of section 69 and then to make a reference u/s 142A of the Act. In my considered view the consideration declared by the assessee is ve'rifiable from the registered sale documents and in the absence of any contrary material, the Assessing Officer has erred in making the impugned additions u/s 69 of the Act. I have also gone through the valuation report s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 415(Delhi);. CIT Vs. Smt. Shakuntala Devi,316 ITR 46(Delhi); Shri Devinder Kumar Vs. DCIT, in ITA no.1141 1142/Del./2008; ITO vs. M/s Rajeshwar Nath Gupta, HUFin ITA no.4295/del./2005; Smt. Seema Gupta Vs. DCIT, in ITA no. 1619/Del./2008;DCIT Vs. Smt. Baleshwari Devi in ITA nos. 1618 1775/Del./2008; DCIT Vs. Shri Mahesh Kumar in ITA nos. 1042 1785/Del./2008 ; CIT Vs. Rajendra Seclease Ltd. in ITA no.791/2009 dated 25.11.2011. 6. We have heard both the parties and gone through the facts of the case as also the aforesaid decisions relied upon by both sides. The issue before us is as to whether reference made by the AO to DVO u/s 142A of the Act is valid reference and whether the AO was justified in making addition on the basis of report of the DVO. Prior to insertion of Sec. 142A by Finance (No.2) Act, 2004 with retrospective effect from 15th Nov. 1972, a reference to DVO in assessment proceedings other than as permissible under s. 55A was held to be invalid as held by Hon'ble Apex Court in Smt. Amiya Bala Paul vs. CIT, 262 ITR 407 (SC). Under sec. 142A, a reference can be made for assessment or reassessment where an estimate of value of any investment referred to in s. 69 or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a in their decision dated 4.5.2008 in ITA no. 4295/Del./2005, in the context of provisions of sec. 142A of the Act, held as follows: "15. A perusal of the aforesaid provisions shows that section 142A is attracted, inter alia, where the assessee is found to have made investment outside the books of account or where any such investment made by him is not fully disclosed in the books of account. The condition precedent for making the reference by invoking the provisions of section 142A thus is that there should be something on record to show that the assessee in the first place has made such investment outside the books or the investment so made by him is not fully disclosed in the books of account and once this condition is satisfied, the quantum of such investment made can be ascertained by the Assessing Officer by making a reference under section 142A in order to make the addition under section 69 or 69B, whichever is applicable. In the present case, the relevant property was purchased by the assessee during the year under consideration for Rs. 15 lakhs and the amount of the said consideration was paid out of its disclosed sources as accepted even by the Assessing Officer in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act is invalid in the absence of any material found during the course of search. It was held by the Bench as under: 29. In view of the preceding discussion, the ld. CIT(A) has clearly erred in holding that the AO was within his jurisdiction to invoke the provisions of section 142A of the Actiin this case. There is no denying the fact that the AO can seek the help of a specialist to determine the correct value. However, as discussed hereinbefore, the primary condition of section 69B needs to be met first, so as to enable the invocation of section 142A of theAct. To reiterate, the AO can make a reference to the Departmental Valuation Officer, for the purpose of making assessment or reassessment only where the assessee has made investment which are not fully disclosed in the books of account . Sans the fulfillment of this condition of section 69B, section 142A cannot be taken recourse to, particularly when after the phrase for the purpose of making an assessment or reassessment under this Act , it has been enacted that where an estimate of the value of any investment referred to in section 69B .is required to be made . Since section 69B envisages only value of investment not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he respondent assessee. Consequently, we find that no substantial question of law arises in these two appeals which, bereft of merit, are dismissed in limine. 6.3 As regards decisions relied upon by the ld DR, in Om Prakash Bagria,HUF(supra) , the issue was as to whether the Tribunal was justified in holding that the AOhad no jurisdiction to take into account and rely upon the valuation submitted by the Valuation Officer in respect of the house property belonging to the assessee.Hon ble High Court held that the assessment having not become final and conclusive on or before September 30, 2004, particularly when the very issue with regard to valuation of the investment made on construction of Bagria Towers for the purpose of section 69 of the Act and for the purpose of assessment is still pending before the High Court,, the AO had the jurisdiction u/s 142A to make the reference to the Valuation Officer to determine the estimate of the value of the construction of Bagria Towers. In Mrs. Achamma Chacko(supra), Hon ble High Court held that introduction of section 142A with retrospective effect may validate the reference by the AO for valuation, no matter whether the assessment was pe ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
