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TMI Blog2016 (1) TMI 29X X X X Extracts X X X X X X X X Extracts X X X X ..... that the ld.CIT(A) has erred in confirming the addition of Rs. 13,91,699/-, which was added by the AO on account of unexplained investment under section 69B of the Act. 3. In response to the notice of hearing, the assessee has filed written submissions, wherein, he has withdrawn ground no.1, meaning thereby, the assessee has not pressed ground no.1. Thus, reopening of the assessment is upheld. 4. So far as ground no.2 is concerned, the ld.counsel for the assessee in the written submission has submitted that the issue in dispute is squarely covered by the order of the ITAT passed in the case of Shri Sureshchandra S. Agarwal, bearing ITA No.2571/A/2001. He placed on record copy of the Tribuna's orderl dated 17.7.2015. It has also been plea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Asstt.Year 2008-09 read as under: "7. Before we embark upon inquiry about the quality of evidence possessed by the AO for concluding that the assessees have made unexplained investment which deserves to be added in the total income under section 69B of the Act, we deem it pertinent to take note of section 69B of the Act. It reads as under: "Amount of investments, etc., not fully disclosed in books of account - Where in any financial year the assessee had made investments or is found to be the owner of any bullion, jewellery, or other valuable article, and the A.O. finds that the amount expended on making such investments or in acquiring such bullion, jewellery or other valuable article exceeds the amount recorded in this behalf in the b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ctual position. It is to be proved with the help of evidence available on record. According to the assessee, they have made investment in purchase of plots equivalent to the one disclosed in the sale deed. It is the AO who is disputing and harbouring a belief that the assessees have made investments, over and above, the amount so disclosed in the sale deed. His belief is based on the basis of stamp duty valuation which authorizes the valuation authorities to charge stamp duty on registering the transfer of plots. This type of evidence possessed by the AO is of not such a nature, which empowers him to invoke section 69B of the Act. Stamps duty paid by the assessee on purchase of land is a small portion of the total consideration, say, 8% or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an the amount recorded in the books. The A.O. has failed to bring on record any material to support his estimated price. 12. Section 50C is a deeming provision where under the stamp duty rate is treated as full value of consideration for the purpose of computing capital gain under section 48. It is applicable in the case of a seller of property and therefore cannot be invoked in case of purchaser of property for the purpose of section 69B. CIT (A) has given a finding that the A.O. has not made any independent enquiry or collected corroborative evidence to justify the addition. 13. In the case of CIT v. Naresh Khattar (HUF) [2003] 261 ITR 664/ 130 Taxman 15 (Delhi) the Hon'ble Delhi High Court has held that to invoke the provisions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al facts dismissed the appeal of the Revenue. 17. In view of the aforesaid facts in view of the fact that the A.O. has failed to bring on record any material to support the rates estimated by him and relying on the decisions of the Hon'ble High Courts and of the co-ordinate Bench, we are of the view that for the reasons stated hereinabove, no addition can be made in the present case and therefore no interference is called for to the order of CIT(A). We thus, uphold the order of CIT(A). In the result the appeal of the Revenue is dismissed. 18. In the result, appeal of the Revenue is dismissed." 9. Similarly, the Hon'ble Gujarat High Court in the case of Berry Plastics P. Ltd., 35 taxmann.com 296 and Jayendra N. Shah, 27 taxmann.c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... during the search proceedings. The addition was made merely on the basis of the DVO's report without there being any other material. Moreover, the DVO had also substantially relied on jantri rates and had made other references for arriving at the valuation." 10. In the above three decisions, it has been unanimously held that valuation made for the purpose of stamp duty is an estimated opinion. It can be a corroborative evidence for the help of the AO, but, it cannot be conclusive piece of evidence demonstrating the unexplained investment made by the assessee for purchase of land. Solely on the basis of such estimated opinion, the addition cannot be made. From perusal of record, we find that, apart from this estimated opinion, the AO ..... X X X X Extracts X X X X X X X X Extracts X X X X
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