TMI Blog2015 (2) TMI 772X X X X Extracts X X X X X X X X Extracts X X X X ..... ent to prove that there was understatement or concealment of income has not been discharged and, therefore, the Assessing Officer is not empowered to refer the matter to the Departmental Valuation Officer or rely on such report. - Decided in favour of the assessee - T. C. (A). No. 1117 of 2006 - - - Dated:- 10-2-2015 - R. Sudhakar And R. Karuppiah,JJ. For the Appellant : Mrs. Lakshmi Sriram For the Respondent : Mr. M. Swaminathan Standing Counsel ORDER (Delivered by R. Sudhakar, J.) The assessee has filed this appeal assailing the order of the Income Tax Appellate Tribunal 'C' Bench, Chennai, dated 30.9.2005 made in I.T.A.No.905/Mds/2003 for the the assessment year 1996-1997 and the same was admitted on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ss by the Assessing Officer, in upholding the estimated cost, as unexplained investment under Section 69B? (vi)Whether the provisions of Section 69B are invocable in the light of the factual finding of the Tribunal that Assessing Officer could not find out any payment made over and above the payment made to the contractor as cost of construction as per the bills raised by them that the appellant had accounted for the entire amount paid to the contractor and that the Assessing Officer could not find out any defect in respect of cost accounted for in the books of account? 2.1. The facts in a nutshell are as under: The appellant/assessee constructed a multi-storeyed residential-cum-commercial complex at Karaikudi during the assessment ye ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -1995 and 1995-1996, and directed the entire unexplained investment to be assessed as income for the assessment year 1996-1997. 2.3. Calling in question the said order, the assessee as well as the Revenue filed appeals before the Tribunal. The Tribunal dismissed the appeals filed by the assessee as well as the Revenue and confirmed the order passed by the Commissioner of Income Tax (Appeals). The operative portion of the said order reads as under: 3. We have heard both sides and considered the issue. It is an admitted fact the Assessing Officer could not find out anything over and above the payments made to the contractor as cost of construction as per the bills raised by them. The Assessee has accounted for the entire amount paid to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... main plea taken by the learned counsel for the assessee is that the onus probandi lies on the Assessing Officer to establish that the assessee has understated or concealed the actual cost of construction and without discharging the onus, the Assessing Officer is not empowered to rely upon the valuation given by the Departmental Valuation Officer, when the books of account were never rejected. 6. The learned Standing Counsel for the Revenue is not disputing the fact that the books of account furnished by the assessee were never rejected by the Department. 7. In the case on hand, it is beyond any cavil that the books of account furnished by the assessee were never rejected. No explanation was called for from the assessee stating that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation given by the District Valuation Officer. The opinion of the District Valuation Officer, per se, was not an information and could not be relied upon without the books of account being rejected which had not been done in the assessee's case. Moreover, there was no evidence found as a result of the search to suggest that the assessee had made any payment over and above the consideration mentioned in the return of the assessee. (emphasis supplied) (iii) In K.K.Seshaiyer v. Commissioner of Income Tax, (2000) 246 ITR 351, a Division Bench of this Court held as under: When the actual cost of construction was duly recorded by the assessee and that cost also was set out in the agreement with the contractor, specifying the rates, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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