TMI Blog2020 (2) TMI 28X X X X Extracts X X X X X X X X Extracts X X X X ..... ation passed between the parties concerned. As in the case of Anand Banwarilal Adhukia v. Deputy Commissioner of Income-tax [ 2016 (11) TMI 294 - GUJARAT HIGH COURT] wherein held that where the Assessing Officer has no cogent material available not to satisfy himself about the requirement of section 69 of the I.T.Act, and therefore, in the absence of it the reference could not have been made u/s 142A Applying those ratio,in the present case, there is no need to refer the matter to the DVO for valuation, as there is no material in the hands of the Assessing Officer to consider the additional consideration passed between the parties, as such the addition cannot be made in this case. Appeal filed by the assessee is allowed. - ITA No.2139/Bang/2019 - - - Dated:- 30-1-2020 - Shri Chandra Poojari, Accountant Member For the Appellant : Sri.Sreehari Kutsa, CA For the Respondent : Sri.Ganesh R.Ghale, Standing Council for DR ORDER This appeal filed by the assessee is directed against the order of the CIT(A), dated 19.09.2019. The relevant assessment year is 2010-2011. 2. The assessee has raised the following grounds:- 1. The order of the lea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... learned AR submitted that the guidance value fixed for registration by the State Government authorities is much more than the market value of the impugned immovable property and according to him, the assessee sold the property situated at Madurai for a consideration of ₹ 50,00,000 only and the guidance value of the said property was ₹ 60,72,000. The learned AR submitted that vide letter dated 19.10.2012 the assessee explained the extenuating circumstances which led to the property fetching lesser price than normal. The Assessing Officer also furnished a certificate from Government Approved Valuer wherein the circumstances surrounding the property were recorded and property was valued at ₹ 45 lakh, though its guidance value was higher than that. The learned AR submitted that the assessee explained that in the wake of the low value being quoted for the property, when the new buyer proposed ₹ 50 lakh for the property, the same was readily accepted and property was sold. Though the assessee objected the application of section 50C of the Act, the assessment was completed treating the sale consideration of ₹ 60,72,000 and brought to tax the additional ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ee stated that there was a Law College opposite to the impugned property which creates nuisance and there is a large wedding hall and cars are parked in the road outside it which causes inconvenience. The fact that there is a Law college and a large wedding hall next to the impugned property will only help to enhance the market value of the property and not to reduce it as claimed by the assessee before the A.O. during assessment proceedings and before the CIT(A). The learned DR, therefore, submitted that the A.O. is justified in not referring the matter to the DVO, and the CIT(A) is rightly upheld the decision of the A.O. 6. I have heard the rival submissions and perused the material on record. In this case the value adopted for registration before the Sub-Registrar was at ₹ 60,72,000, however, the value received by the assessee for sale of the impugned property at ₹ 50,00,000. Thus, there was a difference of ₹ 10.72 lakh. The A.O. brought the same as unexplained investment and treated as capital gain u/s 50C of the Act. The assessee got this amount only on account of the difference between the value adopted by the registration purposes and the value shown i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... High Court held as under:- 10. The other relevant statutory provision which is required to be considered is Section 69 of the Act. Section 69 of the Act pertains to unexplained investment, whereas Section 69A pertains to unexplained money etc. and likewise, Section 69B pertains to amount of investment etc. not fully disclosed in books of accounts and therefore, these statutory provisions are related to a case where assessee had made certain investment or expenditure or is found to be the owner of any bullion, jewellery etc. and the same are not properly recorded in the books of account. This Court in a decision in case of Me and Mummy Hospital (Supra), while referring to these statutory provisions read with Section 142A of the Act, has held that unless there is prima facie application of Section 69 of the Act, reference to the valuer under Section 142A of the Act is simply not permissible. It is only when there is some material before the Assessing Officer to hold that in case of an assessee falls under Section 69, as the case may be, that he can, to estimate the value of such unexplained investment or expenditure in bullion, jewellery, etc. and can call for the report of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to in sections 69, 69A and 69B of the Act. It would only amount to fishing inquiry and not investigation under section 142A of the Act. In our opinion. the scheme of the provisions when read harmoniously would lead to a situation where in case the Assessing Officer, during the pendency of assessment or reassessment, is of the opinion that sections 69, 69A and 69B of the Act can be invoked; in order to estimate such unexplained investment or expenditure in acquisition of bullion, jewellery or valuable article, he can resort to valuation by the Valuation Officer in terms of sub-section (1) of section 142A of the Act. In the present case, no such material emerges from the record. To the contrary, neither from the order of reference nor from any other material, the respondent could point out that the Assessing Officer had invoked the provisions of sections 69,69A or 69B of the Act and in the process desired to obtain the estimate of unexplained investment or expenditure and for which purpose DVO's report was called. He simply gave no reasons in the order. No independent reasons, either flowing from the file or even in the form of an affidavit assuming the same would be permissible ..... X X X X Extracts X X X X X X X X Extracts X X X X
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