TMI Blog2015 (1) TMI 195X X X X Extracts X X X X X X X X Extracts X X X X ..... O's books of accounts was not justified - there was no material, what to say an incriminating material, in the possession of the Revenue Department - while making the reference to the Valuation Officer, the AO has not recorded any defect in the books of account nor has he rejected the same - except for the difference in the estimated cost determined by the Valuation Officer and the actual cost as shown by the assessee, the AO has not brought any material on record to establish that the assessee had made any unaccounted investment in the construction of the building and that the books of account do not reflect the correct cost of construction – thus, the report made by the Valuation Officer pursuant to such an invalid reference could not hav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . In our view, the substantial question of law raised in this matter would no longer survive and it is already answered by this Court in its earlier decision in the case of Commissioner of Income Tax v. Vijaykumar D. Gupta reported in [2014] 365 ITR 470 (Gujarat), wherein it was observed as under: 3. From the record it emerges that the Assessing Officer after making a reference to DVO for ascertaining assessee s investment in house property on the basis of such return added a sum of ₹ 10,77,724/under section 69B of the Act being assessee s unexplained investment. 4. The assessee carried the matter in appeal. The CIT (Appeals) on facts analysed the case of the assessee again and retained part of the addition, bu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... another case law relied upon was Sargam Cinema, 197 Taxman 203 [328 ITR 513 (SC)]. Our attention has again been drawn on few case laws which was referred before learned CIT(A), viz. Bajranglal Bansal, 241 ITR 64 (Del.), Ushakant N. Patel Vs. CIT 282 ITR 553 (Guj). In the light of these case laws and considering the totality of the facts and circumstances of the case, we are of the considered opinion that learned CIT(A) has not considered the fundamental questions as pointed out by the assessee that there was no material, what to say an incriminating material, in the possession of the Revenue Department, therefore, the entire addition being merely based upon the estimation of DVO was baseless; hence, deserves to be deleted. We hold accordin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the cost of construction or that he was not satisfied regarding the correctness or completeness of the books of account. Before making the reference to the Valuation Officer for ascertaining the fair price of construction, the Assessing Officer does not appear to have ascertained the correctness or otherwise of the cost of construction shown by the assessee in its books of account. Thus, prior to making the reference to the Valuation Officer, the Assessing Officer has not ascertained as to what was the defect in the cost of construction disclosed by the assessee in its returns of income. Moreover, it is apparent that the only reason for making the addition under section 69 of the Act is that there is a difference in the cost of constructio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e is squarely covered by the observations of this Court in the aforesaid decision. In view of above, we are in complete agreement with the view taken by the tribunal and the question raised in these appeals is answered against the department and in favour of the assessee. Accordingly, all these appeals are dismissed. 3. There is no dispute amongst both the learned counsels that the aforesaid decision will apply in the facts of this case also, as the facts and the question of law raised, are identical and therefore, we are not giving elaborate reasons. 4. Accordingly, the question, Whether on facts the Tribunal is right in interpreting Section 69C and cognate provisions for upholding the addition towards cost of construction on the b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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