TMI Blog2015 (2) TMI 1364X X X X Extracts X X X X X X X X Extracts X X X X ..... purpose of making addition of unexplained investment u/s. 69 or 69B of the Act. In the absence of the same, the CIT(A) has rightly deleted the addition. We confirm the same. This issue of revenue s appeal is dismissed. Low drawing for household expenses - CIT(A) directed the AO to delete the addition on account of low withdrawals since the AO made the addition on suspicion without considering the submission that apart from his drawings that there are drawings by his wife as well as drawings from HUF of which assessee is the Karta - HELD THAT:- The household drawing has merely been estimated by the AO without pointing out any specific expenditure being incurred by the assessee. We have gone through the provisions of section 69C of the Act and we noted that there must be evidence on record which may prove that the assessee had incurred expenses much more than what has been shown by the family members. In case the Revenue got shifted to the assessee to offer explanation about the source of such expenses to the satisfaction of the AO. Apparent is real onus is on the person who alleges apparent is not real. Our aforesaid view is duly supported by the decision of Daulat Ram Rawatma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... between the parties after the signing of this MOU. Out of the total agreed sale consideration, the Allottee has paid unto the Developer upon and/or prior to the execution of this MOU and amount of ₹ 54,33,075/- ( Rupees fifty four lacs thirty three thousand seventy five only) has been paid by the allottee the receipt whereof the Developer hereby admits and acknowledges. That M/s. Home Solutions Retail (India) Ltd. has issued a LOI/signed a MOU with Developer to take an lease the said premises for its use at a fixed monthly rent of ₹ 45/- per Sq. ft. (Rupees forty five per Sq. Ft) on super Built up area. The total purchase consideration in the above stated property is amounting to ₹ 60,36,750/- and out of the total purchase consideration, in the relevant FY 2007-08 relevant to this AY 2008-09, the assessee invested a sum of ₹ 54,33,075/-. The property was referred to DVO for valuation u/s. 142A of the Act and DVO valued the property on rental method basis at ₹ 1.16 cr. The AO issued show cause notice to explain the difference and assessee explained that he has booked this property with a builder/developer namely College Estate Pvt. Ltd. for a sum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... total consideration of ₹ 60,36,750/-. The property is under construction in the relevant year and no possession is handed over to the assessee. There is no other evidence with the AO in respect to unexplained investment made in the property by the assessee except the DVO s report obtained u/s. 142A of the Act, who valued the property on rental method basis at ₹ 1.16 cr. We find from records that the property is under construction and full and final payment has not been made by assessee. The builder/developer has not handed over the physical possession of the property to the assessee. In such circumstances, whether the DVO can estimate the fair market value of the property on the basis of rent adoption method in term of reference u/s. 142A of the Act. In our view, once the property is under construction and no physical possession is possible to the assessee, how the property in the hands of the assessee can be referred to valuation u/s. 142A of the Act. According to us, it is not possible. Even otherwise, the AO wanted to find out the unexplained investment made by the assessee in the property purchased from builder/developer on the basis of valuation report obtained fr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed sources as accepted even by the Assessing Officer in the reassessment. A perusal of the assessment order, however, shows that there was no reference whatsoever made by the Assessing Officer to any material/evidence/ information on the basis of which it could be said that the said consideration shown by the assessee was understated and that anything above what was disclosed by the assessee had actually been paid as consideration. The condition precedent for making a reference to the DVO by invoking the provisions of section 142A thus was not satisfied in the present case and neither the said reference nor the addition made on the basis of report obtained from the DVO in response to the said reference, in our opinion, was sustainable in law as rightly held by the learned Commissioner of Income-tax (Appeals). In the case of Subhash Chand Chopra v. Asst. CIT [2005] 92 TT) 1087, this Bench of the Tribunal has held that no material or evidence having been recovered during the course of search showing investment in construction, the Assessing Officer was not competent to make a reference to the DVO under section 142A and to make addition on that basis. In the case of K.P. Varghese ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... : 2. That, the Ld. CIT(A), Asansol has erred in law and on facts by allowing the relief of ₹ 1,00,000/- disallowed by the Assessing Officer on account of low drawing for household expenses. 9. We have heard rival submissions and gone through facts and circumstances of the case. We find that the CIT(A) directed the AO to delete the addition on account of low withdrawals since the AO made the addition on suspicion without considering the submission that apart from his drawings that there are drawings by his wife as well as drawings from HUF of which assessee is the Karta. The CIT(A) while deleting the addition has observed as under: In this ground the appellant is disputing the AO s addition on account of what the AO has suspected to be low drawings. The appellant s submission is that apart from his drawings there are drawings by the wife as well as drawings from the HUF of which he is the Karta. I do not find the AO having considered these aspects while making this addition. In my opinion, the AO has not brought on record any evidence to justify his belief that the drawings shown by the appellant are too low. Under the circumstances the addition made is directed to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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