TMI Blog2019 (7) TMI 88X X X X Extracts X X X X X X X X Extracts X X X X ..... imla Singh [ 2008 (10) TMI 62 - PATNA HIGH COURT] the Court found that if the difference between the value given by the assessee and that of the DVO was less than 15%, it can be assumed to be a bonafide difference. In the case before us, the difference is less than 4%. The construction of the house commenced in October, 1997 and even on the day of the inspection by the Department valuer i.e., on 12.08.1999, the construction was in progress. Therefore, we would be well justified in holding that this difference of less than 4% has to be held as a bonafide difference. Assessee is entitled to succeed and the substantial question of law is required to be answered in favour of the assessee. - T.C.A.No.1451 of 2008 - - - Dated:- 4-6-2019 - Mr. Justice T.S. Sivagnanam And Mrs. Justice V. Bhavani Subbaroyan For the Appellant : Mrs.Shree Lakshmi Valli, for N.Muthukumar For the Respondent : Mr.T.R.Senthil Kumar, Senior Standing Counsel, assisted by Mrs.K.G.Usha Rani JUDGEMENT MR.T.S.SIVAGNANAM., J. This Tax Case Appeal filed by the assessee under Section 260-A of the Income Tax Act, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6. Mr.T.R.Senthil Kumar, learned Senior Standing Counsel appearing for the Revenue objected to the arguments advanced by learned counsel for the assessee contending that there was no incriminating material found during the search with reference to the valuation of the property, such contention was never raised before the Commissioner of Income Tax (Appeals) or before the Tribunal and the assessee should not be permitted to canvas the said contention. It is the further submission of Mr.T.R.Senthil Kumar, learned Senior Standing Counsel that before the CIT(A), the assessee had produced the cash flow statements and certain reconciliation was done and partial relief was granted to the assessee by the CIT(A). Therefore, it would be too late for the assessee now to contend that there was no incriminating material found during the search with regard to valuation of the property and this point cannot be canvassed for the first time in this appeal. 7. We have heard learned counsel for the assessee on the above submissions. 8. On a perusal of the grounds of appeal filed before the CIT(A), we find that apart from raising various grounds on each of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ime, has canvassed such a point. Furthermore, we have noted that the said point is a question of law and even assuming that the said point was not raised by the assessee at an earlier point of time, the assessee cannot be foreclosed from doing so when the assessee is able to convince the Court that it is a pure question of law. 12. Therefore, we reject the preliminary objection raised by the Revenue. Thus, we first proceed to consider as to whether the assessee could be charged of undisclosed expenditure in the absence of any incriminating material recovered during search. 13. The Revenue does not and cannot dispute the fact that there was no incriminating material recovered from the assessee during the course of search conducted on 13.01.2000. The first search was done in the premises of the father-in-law of the assessee on 12.08.1999 and in the course of the search, the said property was also noticed and after the search, valuation report was called for from the assessee. After they had submitted the same, the Department appointed a valuer who had submitted his report in December, 1999, pursuant to the inspection conducted on 12. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on record the material to show that on evidence found as a result of search there is an undisclosed income representation by credits appearing in the books of accounts. 18. In the case of Bimla Singh Vs. Commissioner of Income Tax reported in (2009) 308 ITR 0071, the High Court of Patna considered the case pertaining to a difference in the valuation of the property i.e., as stated by the assessee and that of the DVO. In the said decision, the Court had pointed out the determination of value of the house property by a valuer is generally a matter of estimate based to some extent on guess and despite utmost bonafide and the estimate of the value of the house is bound to vary. In the said case, the difference in value was less than 15% and the Court found the same to be meagre and stated that it can be assumed to be a bonafide difference. 19. In the case of Commissioner of Income Tax Vs. Puneet Sabharwal, reported in (2011) 338 ITR 0485, the High Court of Delhi found that there was no material with the Assessing Officer to come to the conclusion that the assessee has paid extra consideration for purchase of properties over and above what has been ..... X X X X Extracts X X X X X X X X Extracts X X X X
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