TMI Blog2015 (10) TMI 2564X X X X Extracts X X X X X X X X Extracts X X X X ..... issible to rely upon the valuation given by the DVO. Where 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 no addition on the basis of report of the DVO could be made. The department has failed to prove understatement or concealment of income vis-a-vis purchase of immovable property. The AO has simply relied on the report of the DVO without applying his mind to the facts of the case and the surroundings circumstances. Addition u/s 69 deleted - Decided against revenue - ITA No.65/LKW/2015 - - - Dated:- 30-10-2015 - SHRI A.K. GARODIA, ACCOUNTANT MEMBER AND SHRI SUDHANSHU SRIVASTAVA, ACCOUNTANT MEMBER For The Appellant : Smt. Alka Singh, DR For The Respondent : None ORDER PER SUDHANSHU SRIVASTAVA, JM. This is Revenue s appeal against order passed by the Ld. CIT(A)-III, Lucknow through order dated 17.10.2014 deleting the addition of ₹ 36,69,000/- made u/s 69 of the Income Tax Act, 1961 (for short the Act ) on account of unexplained investment in immovable property. The grounds of appeal read as under: 1. On the facts and in the cir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s treated as unexplained investment in the hands of the assessee and was added to his income u/s 69 of the Act. 4. Perusal of the assessment order dated 26.03.2013 shows that in para 6.1 the assessee has submitted his objections to the reference to the Valuation Officer which read as under:- 6(1). In response to this query counsel of assessee submitted his objection as under: - With reference to the note sheet entry dated 18.10.2012 requiring us to furnish the bills/ vouchers etc in relation to construction of the above said house property, we would like to bring to your notice that the above stated property was purchased by the assessee in July 2007 from Sri Santosh Kumar Khanna for a total consideration of ₹ 80.00 Lacs (excluding registration other exps). As can be verified from the copy of sale deed being enclosed herewith, this residential property consisted of a land of about 512 Sq Mtrs. with construction on ground floor. Ever since then, the assessee has done no construction/ modification in this property except for the some routine maintenance work. It may also be noted that this property was directly purchased by the assessee in AY 2008-09 an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in detail the source of investment in the purchase of property and after considering the facts he had made a disallowance of ₹ 2,67,004/- being interest payable to Barclays Bank and India Bulls. It was also the finding of the Ld. CIT(A) that in the search also no other incriminating material was found by the Assessing Officer regarding the transaction/investment in property. The Ld. CIT(A) further observed that the DVO s report did not say that there was an extra investment in the property over and above the declared amount. His report was only an estimate of the fair market value and not an estimate of investment. Accordingly, since only unexplained investment could be added back u/s 69 of the Act and not the fair market value, the entire addition of ₹ 36,69,000/- was deleted by the Ld. CIT(A). 7. In the appeal before us, none was present for the assessee. 8. Before us, it was the plea of the Department that the accounts submitted by the assessee were not reliable and although no books of accounts were maintained by the assessee, there was a complete absence of bills/vouchers and therefore the actual cost of construction could not be verified and the matter was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... de can be ascertained by the Assessing Officer by making a reference u/s 142A and thereafter passing an order making addition u/s 69 or 69B as the case may be. As per the records, it is seen that the relevant property was purchased by the assessee for ₹ 80,00,000/- and the amount of the said consideration was paid out of his disclosed sources, mainly borrowings from Bank and financial institution and it was accepted by the AO during the assessment proceedings u/s 143(3) for the relevant assessment year. It is further seen from the records that no incriminating material relating to construction of property was found during the search operation. Ld. CIT(A) has categorically given a finding that no evidence was found during search to suggest payment over and above the consideration as disclosed by the assessee in his return of income In the appeal before us, the Department has not been able to controvert this finding. Thus, in our considered opinion, the Department has failed to discharge the primary burden of proof to prove any understatement or any concealment of income. It is also seen that the learned CIT(A) has given a finding that the AO has not adjudicated the objections ..... X X X X Extracts X X X X X X X X Extracts X X X X
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