TMI Blog2016 (5) TMI 528X X X X Extracts X X X X X X X X Extracts X X X X ..... account of unexplained investment u/s 69 of the I.T. Act. 2. The appellant craves the right to add, alter or amend any ground of appeal. 2. Brief facts of the case are as under: The appellant filed return of income for the relevant A.Y. 2009-10, on 31.03.2010, declaring income of ₹ 6,36,980/-. The case was selected for scrutiny under CASS and notice u/s 143(2) was issued on 18.08.2010 which was duly served upon the appellant. As per the AIR information, the assessee had purchased a land for the value of ₹ 55,30,000/-, at Road No. 1A, Jaidev Park, Punjabi Bagh, Delhi, measuring 300 sq. yds. During the course of assessment, the assessee was asked to explain the aforesaid transaction. In reply, the assessee submitted before the Assessing Officer that the said property was purchased by her in pursuance to an agreement to sell dated 23.10.2001 for ₹ 2,80,000/- and the said agreement was registered during the relevant assessment year on 27.10.2008 and at the time of registration of the aforesaid property, stamp duty of ₹ 2,21,200/- was paid on the basis of value of property as per prevailing circle rate. However, no payment of ₹ 55,30,000/- wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndee on 23.10.2001 for ₹ 2,80,000/-. However, the property was registered during the year under consideration on 27.10.2008 for the consideration of ₹ 2,80,000/- only, but for the stamp duty purposes, the value of the property was taken at ₹ 55,30,000/- and the stamp duty was computed on this value at ₹ 2,21,2001-. It is further observed that the Assessing Officer has added the amount of ₹ 55,30,000/- as income of the assessee for the relevant assessment year u/s 69 of the Income Tax Act, after considering the value of the property at ₹ 55,30,0001- instead of the declared value of the property at ₹ 2,80,000/-. It is the contention of the assessee that she did not pay anything more than that stated in the purchase/sale deed. It is observed that indeed there is no evidence to the effect that the assessee has paid more than what was stated in the deed of conveyance. The Assessing Officer has not brought any material on record to show that the assessee had paid more than what is recorded in the books of account. It is also observed that the A.O. has made the addition u/s 69 of the Act, 1961 without conducting any enquiry with the parties ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h is deeming is always rebuttable. The use of the words 'if any' in the section indicates that it is not compulsory that the assessee must have maintained the books of accounts. He can prove the genuineness of the investments by some other evidence which proves investment out of disclosed source. The word 'explanation' indicates that the opportunity of being heard must be given to the assessee to prove the nature and source of investments. The use of word 'may' and absence of the word 'shall' in the section indicates that the Assessing Officer has discretion to treat the particular investment as the income of the investor-assessee depending of the facts and circumstances of each case at a particular situation of time. It may be noted that the AO is under obligation to give reasons for not accepting the explanations offered by the assessee. In the present case there is no supporting evidence or cogent material in possession of the Assessing Officer to demonstrate that the assessee has actually expended the amount towards purchase of land more than what was documented. Hence, in my opinion, the impugned addition cannot be sustained. Reliance in this re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and should not be extended beyond that legitimate field. In the present case, it appears the Assessing Officer has applied this provision of section 50C for the computation of unexplained investment under section 69 of the Act and which is not permissible under the Act. However, even if it is presumed that the Assessing Officer has made the addition in view of section 50C of the Income Tax Act, the same cannot be sustained as section 50C is inapplicable in the case of purchaser of a property. Apart from the stamp duty valuation, there is nothing on record which suggests that the AO has proved that the assessee has paid over and above, what has been recorded as purchase consideration of the land in the instrument, i.e., the sale deed. Accordingly, I hold that the addition made by the Assessing Officer is purely on notional basis, not supported by either facts or a legal basis but only on presumption. In that view of the matter, the addition made under section 69 is directed to be deleted. 3. Aggrieved by the order of the Ld.CIT(A), the revenue is in appeal before us now. 3.1. The Ld.DR submitted that the property in question is located in a prime ADR of Delhi and by ..... X X X X Extracts X X X X X X X X Extracts X X X X
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