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Asstt. CIT, Central Circle II, Lucknow Versus Shri Ramu Gupta

Unexplained investment in immovable property - addition u/s 69 - reference made by the Assessing Officer to the DVO - Held that:- Assessing Officer has noted that “assessee has not maintained complete books of accounts as regard to the construction account of the subjected properties. So I do not have any other option other than taking view of expert of this field. So estimate made by assessee is here by rejected in absence of any documentary bills /vouchers”, which clearly spells out that the A .....

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nt in the property, should have rejected the books of account of the assessee, that too after satisfying the conditions precedent as envisaged under section 145(3) of the Act and without doing so, as found by us, vitiates the reference made by the Assessing Officer to the DVO. In the case of Sargam Cinema vs. CIT (2009 (10) TMI 569 - Supreme Court of India ) wherein held that the reference made to the Valuation Officer under section 142A of the Act without rejecting the books of account for asce .....

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L, ACCOUNTANT MEMBER AND SHRI ABY T VARKEY, JUDICIAL MEMBER For The Appellant by: Shri A. K. Singh, CIT(DR) For The Respondent by: Shri J. J. Mehrotra, C.A. ORDER PER ABY T VARKEY, J.M: This is an appeal preferred by the Revenue against the order of the ld. CIT(A)-III, Lucknow dated 30.9.2014 for the assessment year 2007-08. 2. The sole ground raised by the Revenue is against the order of the ld. CIT(A) in deleting the addition of ₹ 58,23,238/- made under section 69 of the Income-tax Act, .....

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and retail trader of bakery items. The assessee has filed the return declaring a total income of ₹ 1,65,595/- plus agricultural income of ₹ 1,89,400/-. The assessment was completed on a total income of ₹ 60,83,530/- + ₹ 94,700/-. A search and seizure operation under section 132 of the Act was conducted on 14.9.2010 at the commercial and residential premises of Shyam Swaad Misthan and Mr Brown Bakery group based at Lucknow. Simultaneously survey proceedings under section .....

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sked to explain vide letter dated 13.7.2012, the assessee has furnished detailed reply relating to the investments made in purchase and construction of properties. However, the Assessing Officer was of the opinion that since the assessee could not furnish any supportive bills & vouchers for cost of construction and could not produce valuation report of any approved valuer, according to the Assessing Officer, the assessee could not be giving correct and complete picture of total investment. H .....

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e difference amounting to ₹ 16,50,800/- to the income of the assessee as unexplained investment. The DVO also estimated the cost of property situated at B-35, Sector P, Aliganj at ₹ 57,97,229/- as against the declared cost in construction/investment by the assessee at ₹ 16,24,791/-. The Assessing Officer accordingly added the difference amount of ₹ 41,72,438/- to the income of the assessee as unexplained investment, thus totaling addition of ₹ 58,23,238/-. 6. Aggrie .....

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203 is not applicable to the present case and the ld. CIT(A) erred in relying on the said decision of the Hon'ble Supreme Court to give relief to the assessee. He accordingly submitted that the order of the ld. CIT(A) may be set aside and that of the Assessing Officer may be restored. 8. The ld. A.R. of the assessee, on the other hand, placed reliance upon the order of the ld. CIT(A). The ld. A.R. of the assessee contended that a perusal of the order of the Assessing Officer will reveal tha .....

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rfere in the order of the ld. CIT(A). 9. We have heard both the parties and perused the record. The contention of the ld. D.R. was that the books of account have been rejected by the Assessing Officer and in support of his submission the ld. D.R. has filed the reasons recorded by the Assessing Officer for rejecting the books of account as Annexure A , which is reproduced as under to see whether the ld. D.R. s contention is correct or not:- M/s Shyam Bakers and Namkeen shop at Pandey Tola-P Aliga .....

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termined. Looking to the quality of construction which is of high quality the investment in shop and residential property appears to be much higher. In absence of the detail as asked the specific deficiencies in the accounts could not be investigated/commented. Hence the account submitted by assessee are not be reliance worthy and it can considered that assessee has not maintained complete books of accounts as regard to the construction account of the subjected properties. So I do not have any o .....

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uction account of the subjected properties. So I do not have any other option other than taking view of expert of this field. So estimate made by assessee is here by rejected in absence of any documentary bills /vouchers , which clearly spells out that the Assessing Officer is not satisfied with that part of the books maintained by the assessee in respect to the construction account of the subjected property whereas in our considered opinion, this partial satisfaction does not fulfill the condit .....

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rence made by the Assessing Officer to the DVO. In the case of Sargam Cinema vs. CIT (2011) 197, Taxman 203 (SC), the Hon'ble Supreme Court has held that the reference made to the Valuation Officer under section 142A of the Act without rejecting the books of account for ascertaining the cost of investment is invalid and bad in law. Therefore, we are of the view that the Assessing Officer was not justified to make reference to the DVO for ascertaining the cost of investment without rejecting .....

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