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TMI Blog2019 (3) TMI 1752X X X X Extracts X X X X X X X X Extracts X X X X ..... als relating to the same assessee were heard together and are being disposed of by this consolidated order for the sake of convenience. 3. First, we shall take up the appeal of assessee in assessment year 2004-05. The ground of appeal raised by assessee is as under:- 1. Addition of Rs. 10,50,000/- by alleging unexplained investment by Individual. The learned Assessing Officer is not justified in making addition of Rs. 10,50,000/- by alleging that the assessee has made unexplained investment in Land. On appeal before the learned CIT(A) has also not accepted the sources of investment made in the capacity of Karta of HUF and alleged that the evidences produced by the appellant are fabricated or did not discuss the same in the appeal ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9 of the Act of Rs. 10,50,000/-. 6. Before the CIT(A), the contention of assessee was that the land did not belong to him but it was acquired by Shivratan Motilal Rathi (HUF) and Jugalkishore Kundanmal Rathi (HUF), though in the joint names of Shivratan Motilal Rathi and Shri Deepak Kundanmal Rathi, who were Karta and beneficiary co-parcener of HUF, respectively. It was also explained that expenses for stamp duty and registration at Rs. 2,91,440/- were also made and copy of sale deed was also furnished vis-à-vis source of investment. It was explained that the same were out of sale proceeds of flats and past savings of both HUFs and agreement / sale deeds of flats were also furnished. The assessee also explained that investment of Rs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 14 flats. The said 14 flats were sold to various buyers and agreement for sale was registered in the capacity of respective HUF, even in the document, PAN number of HUF was mentioned. He also stated that after completion of project, Shivratan Motilal Rathi (HUF) had offered tax on property income i.e. on sale of 50% of sale consideration of said 14 flats. However, the Assessing Officer issued notice under section 148 of the Act and made addition in the hands of assessee for 50% share in investments. The learned Authorized Representative for the assessee drew our attention to various documents, which clearly states that owners of land in question were two HUFs and not the assessee in his individual capacity. The learned Authorized Represen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eration by the Assessing Officer. Accordingly, we remit this issue back to the file of Assessing Officer, who shall decide the issue after affording reasonable opportunity of hearing to the assessee. Even the assessee is directed to co-operate and furnish the complete information before the Assessing Officer with supporting evidence in order to establish its case. The Assessing Officer shall decide the issue in accordance with law. Hence, the grounds of appeal raised by assessee are allowed for statistical purposes. 10. Now, coming to the appeals relating to assessment years 2008-09, 2009-10 and 2011-12. The assessee in all the years has raised additional ground of appeal that re-assessment made under section 147/148 of the Act is not vali ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ished copy of valuation report computing total investment in construction on the aforesaid land for the financial years 2006-07 to 2009-10. In the background of said information and on verification of records, the Assessing Officer noted that the aforesaid construction activities of assessee were found undisclosed in the returns of income. Therefore, in order to determine unexplained investment in the cost of construction, reference was made under section 142A of the Act to the DVO, Nagpur. Accordingly, valuation officer, Nagpur submitted his report, which formed part of the assessment order. On verification of DVO report, it was noted that various information was called for from the assessee including year-wise expenditure on the construct ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of DVO report vis-à-vis unexplained investment into construction of apartment building and hospital building by the assessee, can the reopening be sustained. The answer to the said is 'No'. 17. The Hon'ble Supreme Court in ACIT Vs. Dhariya Construction Company (2010) 328 ITR 515 (SC) has laid down the proposition that where the Department had sought reopening of assessment based on the opinion given by the DVO; the opinion of DVO perse was not information for the purpose of reopening the assessment under section 147 of the Act. The Hon'ble Apex Court further held that the Assessing Officer had to apply his mind to the information, if any, collected and must form a belief thereon. The Hon'ble Supreme Court thus, held that t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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