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TMI Blog2023 (12) TMI 352X X X X Extracts X X X X X X X X Extracts X X X X ..... or short, "the Tribunal") in ITA No.03/SRT/2017 for the Assessment Year 2010-11: "(i) Whether the Appellate Tribunal has erred in law and on facts in holding that there was no incriminating material without appreciating that the addition was based on the Valuation Report which in itself is an incriminating material? (ii) Whether the Appellate Tribunal has erred in law and on facts in deleting the addition of Rs.5,55,25,000/- made on account of unaccounted capital gain from sale of immovable property without appreciating that the addition was made on the basis of valuation report prepared by Shri Pankaj Mistry, Valuer which was accepted and never objected to by the assessee?" [2] The brief facts of the case emerging from the record ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onse to Question No.10, Mr. Mistry has also stated that the party had agreed to the said valuation and had no objections to the valuation made by Shri Mistry. Also, in response to Question No.14, Mr. Pankaj Mistry has stated that the prevailing market rates for the Devka Beach area for FY 2009-10 (period of sale) was 17,500/- per sq. meter. Therefore, the fair value of consideration for the sale of the said immovable properties works out at Rs.6,21,25,000/-. Hence, the Assessing Officer held that the assessee has suppressed capital gains therefore made addition for difference amount at Rs.5,55,25,000/- (Rs.6,21,25,000 - Rs.66,00,000). [4] Being aggrieved by the addition made by the Assessing Officer, the assessee preferred an appeal before ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fer. I have also noted that the valuer in the statement taken by the DOIT has said that he has taken average rate between high and low rate properties of that area. However, neither the valuer nor the AO has given any comparative instances of land being sold for such rates. In these circumstances, the valuation given by the valuer is not subject to any objective scrutiny or verification I agree with the appellant that in these circumstances, without proving any out of books/undisclosed payments the actual consideration shown cannot be replaced on the basis of an estimate of fair market value that too obtained after more than two years of actual transfer, for the purposes of taking a loan from a bank by the purchaser. I have also ta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of Income Tax in Appeal No. ITA 506/Del/2012 (A.Y. 2005-06) vide its order dated 30.09.2015 has deleted and held an addition based on similar facts, in the case of purchaser of land based un valuation got done by it for bank loan, unjustified. Reliance is also placed on the decision of Hon'ble ITAT Delhi, 'A' Branch in the case of ACIT vs. Reeta Aggarwal (2013) 36 CCH 0519. The addition is held unjustified on facts and also in the spirit of the scheme of the Act, and therefore, directed to be deleted. The relevant grounds of appeals are allowed. The additional ground (discussed in para 5.4 of this order) on technical jurisdiction, which has been allowed in law is not being considered on facts and is not being finally decide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... search team did not find any incriminating material, therefore, our above findings are applicable for assessment year 2010-11 also. 41. We note that property has been got valued by the bank for the purposes of loan applied by the purchaser. The valuation is for fair market value as on 21.05.2012 ie, more than two years after the date of transfer. The Id. CIT(A) observed that in these circumstances, without proving any out of books/undisclosed payments the actual consideration shown cannot be replaced on the basis of an estimate of fair market value that too obtained after more than two years of actual transfer, for the purposes of taking a loan from a bank by the purchaser. The ld. CIT(A) further observed that no incriminating document s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... respondent - assessee has not disputed the valuation report found during the course of survey and therefore, the Assessing Officer was justified in making addition of such valuation report. It was further submitted that it is not in dispute that the assessee has also accepted during the course of survey that he had received own money on the basis of statement of the valuer under Section 131 of the Act. [7] It was, therefore, submitted that the CIT(A) and the Tribunal have committed a grave error by reversing the finding arrived at by the Assessing Officer on the basis of material on record found during the course of survey. [8] It was further submitted that reasoning given by the Tribunal that the provisions under Section 153A of the Act ..... X X X X Extracts X X X X X X X X Extracts X X X X
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