TMI Blog2008 (10) TMI 62X X X X Extracts X X X X X X X X Extracts X X X X ..... Kumar Rastogi with Shilendra Kumar for the appellants. Rishi Raj Sinha with Ms. Archana Shahi for the respondent. JUDGMENT 1. Both the appeals arise out of an identical order dated August 21, 2000, passed by the Patna Bench of the Income-tax Tribunal in I. T. A. (ss) 47/Pat/1997 and I. T. A. (ss) 49/Pat/1997 and as such, they were heard together and are being disposed of by this common judgment. 2. Search and seizure operations under section 132(1) of the Income-tax Act was conducted on August 31, 1996 in the residential premises of Bimla Singh, appellant in M. A. No. 46 of 2002 and the late Bindeshwari Prasad Singh. On his death, M. A. No. 51 of 2002 is being pursued by his son Nawal Kishore Singh. During the search, it wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rgin of 15 per cent. being variation of market value for the purpose of capital gain was made in sub-section (2) of section 52 which was omitted with effect from this assessment year. Similarly section 269C second proviso referred to by the authorised representative as regards the margin of 15 per cent. it can be pointed that section 269C, etc., in Chapter XX-A have been substituted by Chapter XX-C with effect from October 1, 1986. In the new Chapter there is no provision for the margin of 15 per cent." 5. It was further contended before the Tribunal that no incriminating paper having been found during the search, on the basis of the valuer report obtained later on, no concealed income is assessable under section 158BB of the Act. This ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shwari Prasad Singh and by order dated September 13, 2006, it was directed to be heard along with M. A. No. 46 of 2002. In view of aforesaid, we proceed on an assumption that both the appeals have been admitted for hearing on the aforesaid questions of law and we have heard the counsel on that assumption. 8. Mr. Ajay Kumar Rastogi, appearing on behalf of the assessee-appellants as also Mr. Rishi Raj Sinha appearing on behalf of Revenue pray for consideration of the second question of law formulated above at the first instance. 9. We concede to their request. 10. Mr. Rastogi submits that there is a difference of less than 15 per cent. between the amount disclosed by the assessee in construction of the house and the report of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... circumstance, the Assessing Officer rightly added in their hands the undisclosed investment in the house property. He points out that the scope of section 52 of the Act, was under consideration before the Supreme Court and the said provision having been deleted, the judgment of K. P. Varghese's case [1981] 131 ITR 597, is of no assistance. 12. Having appreciated the rival submission, we find substance in the submission of Mr. Rastogi. True it is that the judgment of the Supreme Court in K. P. Varghese [1981] 131 ITR 597 is in relation to capital asset in the light of section 52 of the Act and that provision is deleted. However, we are of the opinion that in valuation of the house property, bona fide difference is bound to occur. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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