TMI Blog2017 (5) TMI 1600X X X X Extracts X X X X X X X X Extracts X X X X ..... DELHI HIGH COURT] and case of CIT Vs. Smt. Suraj Devi [2010 (8) TMI 217 - DELHI HIGH COURT] have held that in absence of any incriminating material, the actual consideration asper agreement has to be accepted and no addition can be made in the case of buyer because of difference between stamp duty valuation of the property and actual consideration as per the agreement. Primary burden of proof to prove understatement or concealment of income is on the revenue and it is only when such burden is discharged, it would be permissible to rely upon the valuation given by the Valuation Officer. - Decided in favour of assessee - D.B. Income Tax Appeal No. 33/2013, 34/2013 - - - Dated:- 19-5-2017 - Mr. K.S. Jhaveri And Mr. Inderjeet Singh JJ. For the Appellant(s) : Mr. Anil Mehta For the Respondent(s) : Mr. Sanjay Jhanwar JUDGMENT 1. Since identical question of law and fact are involved in both these appeals, they are decided by this common judgment. 2. By way of these appeals, the appellant has assailed the judgment and order of the Tribunal whereby Tribunal has party allowed the appeal of the assessee and dismissed the appeal of the department. 3. This court whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the onus shift on the assessee to prove that there is no unexplained expenditure/investment. The Hon ble Delhi High Court in the cases of CIT Vs. Naveen Gera 328 ITR 516 and in the case of CIT Vs. Smt. Suraj Devi 328 ITR 607 have held that in absence of any incriminating material, the actual consideration asper agreement has to be accepted and no addition can be made in the case of buyer because of difference between stamp duty valuation of the property and actual consideration as per the agreement. Primary burden of proof to prove understatement or concealment of income is on the revenue and it is only when such burden is discharged, it would be permissible to rely upon the valuation given by the Valuation Officer. We are of the considered view that the above decisions of the Hon ble Delhi High Court squarely apply to the caseof the assessee before us. 6. He has also relied upon the following decisions:- In Sargam Cinema vs. CIT reported in (2010) 328 ITR 513 (SC) wherein Supreme Court held as under:- In the present case, we find that the Tribunal decided the matter rightly in favour of the Assessee inasmuch as the Tribunal came to the conclusion that the assessing autho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at High Court held as under:- At the outset it is required to be noted that the AO directed to make addition of ₹ 10,23,545/- being the difference of value of land and the cost of construction with respect to the building 'Ravi Darshan' on the basis of the report of the District Valuation Officer, which admittedly was obtained during the course of block assessment proceedings. It is required to be noted that as such it is not the case on behalf of the Revenue that on the basis of any material collected during the course of the search and/or during the inquiry at the time of search, the aforesaid undervaluation was found. Therefore, the short question which is posed for consideration of this Court is whether on the basis of the material collected subsequently and that too during the course of the block assessment proceedings u/s 158BC of the Act, such addition could have been made? As such the aforesaid question is squarely covered by the decision of the Division Bench of this Court in the case of Kantilal B. Kansara (HUF) (supra). In the aforesaid decision of the Division Bench of this Court has specifically observed and held that addition u/s 158BD of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Assessing Officer on account of difference of the cost of construction which was solely based upon the DVO's report. 6.4 In CIT vs. Sadhna Gupta (2013) 352 ITR 595 (Guj.) wherein it has been held as under:- The law seems to be well settled that unless and until there is some other evidence to indicate that extra consideration had flowed in the transaction of purchase of property, the report of the DVO cannot form the basis of any addition on the part of the revenue. In the present case there is no evidence other than the report of the DVO and, therefore, the same cannot be relied upon for making an addition. In these circumstances, the question which has been framed is decided in favour of the assessee and against the revenue. The appeal is dismissed. 6.5 In CIT vs. Agile Properties Pvt. Ltd. (2014) 107 DTR 201 (Del.) wherein Delhi High Court held as under:- In the matter CIT v. Dinesh Jain (supra), this Court also relied upon the ruling in Lalchand Bhagat Ambica Ram v. Commissioner of Income Tax, Bihar Orissa, MANU/SC/0081/1959 : (1959) 37 ITR 288 (SC) which held that mere suspicion cannot take the place of proof. The Court was of the opinion that mere relianc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so a director. It is also noted by him that the purchase was made by M/s. Sam Aviation (P) Ltd. and in the case of company, there is no action taken for extra payment. It is also noted by him that there is no evidence that action has been taken in the hands of the seller for extra receipts. It is also submitted that there was no material found during the search that any extra payment was made by the Assessee to the seller company or by the seller company to the original seller. On this basis, this addition and now, the revenue is in further appeal before us. x x x We have heard the rival submissions and have gone through the material available on record and the Tribunal decision cited by Ld. AR of the Assessee. We find that this is undisputed factual position that no evidence whatsoever was found in the course of the search indicating any undisclosed investment in agricultural land. The factum of purchase of land was disclosed by the Assessee before the department in VDIS, 1997 and in the absence of any adverse material found in the course of search, the addition made by the assessing officer in the present case, on the basis of valuat ..... X X X X Extracts X X X X X X X X Extracts X X X X
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