CLASSIC ELECTRICALS LTD, MUMBAI V. ACIT CEN CIR-27, MUMBAI

ITA 1600/MUM/2010

• Counselvise Citation: 160019914 RSA 2010
• Duration Of Justice: 3 year(s) 9 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-12-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 24-12-2012
• Assessment Year: 1991-1992
• Appeal Filed On: 02-03-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ASHOK SURI
• Assessee Lawyers: P J PARDIWALLA
• Keywords: Unexplained investment; Fair market value; Valuation report; Onus to prove

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH C , MUMBAI BEFORE SHRI P.M. JAGTAP, ACCOUNTANT MEMBER AND SHRI SANJAY GARG , JUDICIAL MEMBER ITA NO. 1600/M/2010 ASSESSMENT YEAR: 1991 - 92 M/S. CLASSIC ELECTRICALS LTD. 33, HUGES, 3 RD FLOOR, OPP. PREMPUR I ASHARAM, GRANT ROAD (WEST), MUMBAI 400 007 PAN: AAACC5735F VS. THE ASSTT. C.I.T., CENTRAL CIRCLE 41, AAYAKAR BHAVAN, M.K. ROAD, MUMBAI - 400020 (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI P .J. PARDIWALLA & MS. AARTI SATHE REVENUE BY : SHRI ASHOK SURI, D.R. DATE OF HEARING : 02.12.13 DATE OF PRONOUNCEMENT : 06.12.13 O R D E R PER SANJAY GARG, JUDICIAL MEMBER: THE PRESENT APPEAL HAS BEEN FILED BY THE ASSESSEE AGAINST THE ORDER OF T HE CIT(A) DATED 09.11.09 RELEVANT TO ASSESSMENT YEAR 1991 - 92. 2. THE ASSESSEE THROUGH ITS GROUNDS OF APPEAL HAS AGITATED THE CONFIRMATION OF THE ADDITION OF RS. 1,06,18,870/ - AS UNEXPLAINED INVESTMENT IN ACQUISITION OF THE PROPERTY ( FLAT S IN KRISHNA CHA MBERS BUILDING) UNDER SECTION 69B OF THE INCOME TAX ACT. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE DURING THE FINANCIAL YEAR UNDER CONSIDERATION PURCHASED CERTAIN FLATS AS DETAILED IN THE ASSESSMENT ORDER FOR A TOTAL CONSIDERATION OF RS.64 ,73,130 / - . THE A SSESSING O FFICER (HEREIN FURTHER REFERRED TO AS AO) MADE A REFERENCE TO THE VALUATION OFFICER TO FIND OUT THE FAIR ITA NO. 1600/M/2010 M/S. CLASSIC ELECTRICALS LTD. 2 MARKET VALUE OF THE PROPERTY AS ON THE DATE OF PURCHASE. THE VALUATION OFFICER ESTIMATED THE FAIR MARKET VALUE OF THE SAID PROPERTY @ RS.170.92 LAKHS . AFTER CONSIDERING THE ASSESSEES SUBMISSIONS , THE AO CAME TO THE CONCLUSION THAT THE ASSESSEE HAD PAID UNDISCLOSED CONSIDERATION OF RS. RS.1,06,18,870/ - FOR PURCHASE OF THE PROPERTY IN QUESTION AND ACCORDINGLY HE ADDED THE SAME TO THE IN COME OF THE ASSESSEE BEING UNEXPLAINED INVESTMENT. IN APPEAL, THE LD. CIT(A) VIDE ORDER DATED 30.12.94 HELD THAT THE ADDITION CANNOT BE MADE MERELY ON THE BASIS OF VALUATION OFFICERS REPORT WHICH INDICATES ONLY PROBABLE FAIR MARKET VALUE ON THE RELEVAN T DATE , BUT THAT ITSELF DOES NOT ESTABLISH THAT ANY UNEXPLAINED INVESTMENT HAS BEEN MADE BY THE ASSESSEE. HE THEREFORE RESTORED THE ISSUE BACK TO THE AO WITH A DIRECTION TO CONDUCT FURTHER ENQUIRIES AND TAKE APPROPRIATE DECISION AFTER GIVING OPPORTUNITY O F BEING HEARD TO THE ASSESSEE. THE REVENUE WENT IN APPEAL AGAINST THE ORDER OF THE LD. CIT(A). THE TRIBUNAL , VIDE ORDER DATED 04.10.02 PASSED IN ITA NO.2766/BOM./95 , UPHELD THE ORDER OF THE LD. CIT(A). IN THE SECOND ROUND OF ASSESSMENT PROCEEDINGS , T HE AO CONDUCTED CERTAIN ENQUIRIES TO FIND OUT THE PREVAILING MARKET PRICE OF THE PROPERTY IN THE VICINITY OF KRISHNA CHAMBERS. TAKING CUE FROM THE SALE INSTANCES AS MENTIONED IN P ARA 3 OF THE ASSESSMENT ORDER , HE OBSERVED THAT THE FAIR MARKET VALUE OF THE PROPERTY IN THE AREA WAS APPROXIMATELY @ 4,000/ - PER SQ . F T . AND CALLED FOR THE EXPLANATION OF THE ASSESSEE IN THIS RESPECT. THE ASSESSEE VIDE ITS LETTER DATED 31.12.96 EXPLAINED TO THE AO THAT THE SALE INSTANCES QUOTED BY THE AO WERE RELAT ING TO COMMERC IAL PREMISES , WHEREAS THE PREMISES PURCHASED BY THE ASSESSEE WERE RESIDENTIAL IN NATURE AND M OREOVER, THE SAID INSTANCES WERE NOT RELATING TO THE FLATS OF KRISHNA CHAMBERS RATHER TO OTHER PROPERTIES WHICH WERE ITA NO. 1600/M/2010 M/S. CLASSIC ELECTRICALS LTD. 3 NO MATCH TO THE FLATS PURCHASED BY THE ASSESSE E. EVEN THE BUILT UP AREA OF THE FLATS WAS NOT CORRECTLY MENTIONED BY THE VALUATION OFFICER IN HIS VALUATION REPORT. HOWEVER, THE AO WAS NOT SATISFIED WITH THE EXPLANATION GIVEN BY THE ASSESSEE AND HENCE HE ADDED BACK THE AMOUNT IN QUESTION INTO THE INCO ME OF THE ASSESSEE AS UNEXPLAINED INVESTMENTS UNDER SECTION 69B OF THE ACT. IN APPEAL, THE LD. CIT(A) OBSERVED THAT THE ASSESSEE IN A VERY SHORT SPAN OF TIME HAD PURCHASED SEVEN FLATS THROUGH DIFFERENT TRANSACTIONS. IF THE ASSESSEE WOULD HAVE MADE THE A FORESAID PURCHASES THROUGH TWO TRANSACTIONS (SELLERS BEING TWO) THEN IT WOULD HAVE COME WITHIN THE PROVISIONS OF PRE - EMPTIVE PURCHASE OF PROPERTY UNDER CHAPTER XXC OF THE INCOME TAX ACT. HE FURTHER OBSERVED THAT THE ASSESSEE HAD VIOLATED THE PROVISIONS OF SECTION 269UC IN RESPECT OF FLAT NO.305 AS THE PURCHASE CONSIDERATION OF THE SAME HAD EXCEED ED RS.10 LAKHS. RELYING UPON THE JUDGMENT OF THE HONBLE RAJASTAN HIGH COURT IN THE CASE OF SMT. AMAR KUMAR I SURANA VS. CIT 226 ITR 344 (1997) , WHEREIN THE ACTI ON OF THE AO IN MAKING THE ADDITION ON ACCOUNT OF UNEXPLAINED INVESTMENT IN THE ABSENCE OF ANY EXPLANATION ON THE PART OF ASSESSEE REGARDING THE LESS PURCHASE VALUE OF THE PLOT WAS UPHELD , THE CIT(A) UPHELD THE ORDER OF THE AO MAKING ADDITION IN CASE OF TH E ASSESSEE UNDER SECTION 69B OF THE ACT. THE ASSESSEE IS THUS IN APPEAL BEFORE US. 3. LD. A.R. OF THE ASSESSEE HAS CONTENDED THAT THE ONUS TO PROVE THAT SOME EXTRA CONSIDERATION HAD CHANGED HANDS AT THE TIME OF SALE - PURCHASE TRANSACTIONS WAS ON THE REV ENUE AND THE REVENUE HAS FAILED TO PROVE THE SAME. HE HAS FURTHER CONTENDED THAT MERELY BECAUSE THE FAIR MARKET VALUE OF THE PROPERTY HAS BEEN ESTIMATED AT A HIGHER RATE BY THE GOVERNMENT VALUATION OFFICER IS NOT SUFFICIENT TO INVOKE THE PROVISIONS OF SEC TION 69B OF THE ACT. HE HAS FURTHER RELIED UPON THE AGREEMENT OF SALE IN RESPECT OF FLAT NO.303 PLACED AT PAGE 1 OF THE PAPER BOOK TO STRESS THAT THE PROPERTY IN QUESTION IS A RESIDENTIAL PROPERTY ONLY. THE CONSTRUCTION OF THE BUILDING WAS STARTED IN THE YEAR 1981 AND AFTER ITA NO. 1600/M/2010 M/S. CLASSIC ELECTRICALS LTD. 4 COMPLETION OF THE SAME , THE CERTIFICATE OF OCCUPATION WAS ISSUED BY THE BOMBAY MUNICIPAL CORPORATION ON 04.04.1987. HE HAS FURTHER RELIED UPON THE VARIOUS TERMS OF THE AGREEMENT TO SAY THAT THE ASSESSEE HAD PURCHASED THE RESIDENTIAL F LATS AND THE CHANGE OF THEIR USER SINCE DATE HAS NOT BEEN ALLOWED BY THE GOVERNMENT. EVEN THE APPLICATIONS MOVED IN THIS RESPECT HAVE BEEN DISMISSED BY THE COMPETENT AUTHORITIES. EVEN THE BOMBAY MUNICIPAL CORPORATION HAD INITIATED ACTION UNDER SECTION 52 OF MRTP ACT AGAINST ALL THE OCCUPANTS OF BUILDING FOR ILLEGAL POSSESSION. IN VIEW OF ABOVE CIRCUMSTANCES, THE SAID BUILDING BECAME ILL REPUTED. AT THE TIME OF PURCHASE OF FLATS IN THE SAID BUILDING FROM M/S. ELLORA CONSTRUCTION CO., THE MORAL OF BUILDER S WAS DOWN AND THE BUILDING HAD REMAINED VACANT SINCE 1987. THOUGH IT HAS NOT BEEN DENIED THAT PRESENTLY THE BUILDING IS USED FOR COMMERCIAL PURPOSE BUT THE CHANGE OF USER OF LAND TILL DATE HAS NOT BEEN GRANTED. THE LD. A.R. HAS FURTHER STRESSED THAT AT THE TIME OF PURCHASE , THE BUILDING IN QUESTION WAS RESIDENTIAL IN NATURE AND ITS SUBSEQUENT USE AS A COMMERCIAL PROPERTY CANNOT BE A GROUND TO PRESUME THAT THE ACTUAL SALE CONSIDERATION OF THE PROPERTY WAS EQUAL TO THAT OF OTHER COMMERCIAL PROPERTIES IN TH E VICINITY. IN FACT THE ASSESSEE TOOK A RISK IN PURCHASING THE SAID PROPERTY AT THAT TIME AS THE GRANT OF CHANGE OF USER OR ITS CHANCES OF BEING USED AS COMMERCIAL PROPERTY WERE VERY REMOTE. HE HAS FURTHER STATED THAT THERE WAS NO DIRECT OR INDIRECT EVID ENCES TO SHOW THAT ANY CONSIDERATION OTHER THAN THE SALE VALUE AS SHOWN IN THE SALE AGREEMENT HA D CHANGED HANDS . FURTHER THAT IN THE ABSENCE OF ANY EVIDENCE AND MERELY RELYING UPON THE REPORT OF VALUATION OFFICER OR THE SALE INSTANCES WHICH ARE NOT IN RELA TION TO ANY FLAT OF THE BUILDING IN QUESTION RATHER ARE RELATING TO OTHER COMMERCIAL PROPERTIES , IT CAN NOT BE HELD THAT THE ASSESSEE HA D MADE UNEXPLAINED INVESTMENT FOR THE PURCHASE OF PROPERTY IN QUESTION. EVEN THE VALUATION OFFICER CALCULATED THE VALUE OF THE PROPERTY TAKING THE AREA WHICH IS MORE THAN THE AREA THAT HAS BEEN MENTIONED IN THE SALE AGREEMENT . THE ITA NO. 1600/M/2010 M/S. CLASSIC ELECTRICALS LTD. 5 VALUATION OFFICER INCLUDED THE AREA OF BALCONIES WHICH IN FACT WAS NOT SEPARATELY CALCULATED WHILE MAKING THE SALE TRANSACTION , BUT AS PER THE P REVALENT THE MARKET PRACTICE THE COST OF THE AREA OF THE BALCONY WAS INCLUSIVE IN THE SALE CONSIDERATION ITSELF. HE HAS FURTHER RELIED UPON THE LETTER OF THE ASSESSEE DATED 29.03.1994 MOVED TO THE AO IN THIS RESPECT. ON THE OTHER HAND THE LD. D.R. HAS CONTENDED THAT THE ASSESSMENT ORDER WAS PASSED ON 20.01.1997 AND THE AO CANNOT BE SUPPOSED TO HAVE ANY DIRECT EVIDENCE AS TO ANY CASH TRANSACTION OTHER THAN THE SALE CONSIDERATION RELATING TO THE PROPERTY WHICH WAS PURCHASED BY THE ASSESSEE IN THE YEAR 199 1. THE AO AT THE MOST COULD HAVE GATHERED CIRCUMSTANTIAL EVIDENCES IN THE SHAPE OF VALUATION REPORT, INSTANCES OF OTHER TRANSACTIONS OF SALE OF PROPERTY IN THE VICINITY AND A PERUSAL OF THE INSTANCES GIVEN BY THE AO SHOWS THAT THE ACTUAL MARKET VALUE OF T HE PROPERTY IN QUESTION AT THAT TIME WAS MUCH MORE. THE AO HA D CALCULATED THE FAIR MARKET VALUE BY TAKING/ADDING 40% OF THE MARKET VALUE OF COMMERCIAL PROPERTIES TAKING INTO CONSIDERATION THAT THE PROPERTY IN QUESTION WAS REGISTERED AS RESIDENTIAL PROPERT Y BUT WAS EXPLOITED AS COMMERCIAL PROPERTY BY THE ASSESSEE. 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS MADE BY THE LD. REPRESENTATIVES OF THE PARTIES. AS HELD BY THE TRIBUNAL IN THE FIRST ROUND OF LITIGATION, THE ONUS IS ON THE REVENUE TO PROVE THAT SOM E EXTRA CONSIDERATION HAS CHANGED HANDS IN THE TRANSACTION IN ORDER TO MAKE ADDITIONS IN THE HANDS OF THE ASSESSEE. MERELY BECAUSE THE FAIR MARKET VALUE OF THE PROPERTY HAS BEEN ESTIMATED AT A HIGHER FIGURE BY THE GOVERNMENT VALUATION OFFICER ITSELF IS NO T SUFFICIENT TO INVOKE THE PROVISIONS OF SECTION 69B OF THE ACT. THOUGH THERE IS FORCE IN THE CONTENTION OF THE LD. D.R. THAT THE AO IS NOT EXPECTED TO HAVE A DIRECT EVIDENCE TO PROVE THE FACT THAT CERTAIN EXTRA CONSIDERATION HAS BEEN PASSED DURING THE SA LE TRANSACTION AS THE SAME IS A FACT WHICH THE PARTIES TO THE ITA NO. 1600/M/2010 M/S. CLASSIC ELECTRICALS LTD. 6 SALE TRANSACTION MAY BE ONLY AWARE OF AND THE AO COULD NOT HAVE ANY MEANS TO GET THE EVIDENCE OF THE SAME. HOWEVER, THE OTHER EVIDENCES SUCH AS THE EVIDENCES OF HIGHER SALE CONSIDERATIONS RELAT ING TO OTHER PROPERTIES WHICH ARE IN THE NEIGHBORHOOD AND SIMILARLY LOCATED ARE RELEVANT IN SUCH CASES. SUCH INSTANCES IF, CORROBORATED WITH THE REPORT OF VALUATION OFFICER AS WELL AS OTHER EVIDENCES RELATING TO FAIR MARKET VALUE OF THE PROPERTY AT THE TI ME OF TRANSACTION OF SALE AND FURTHER WITHOUT ANY REASONABLE EXPLANATION FROM THE ASSESSEE AS TO WHY IN HIS CASE THE SALE CONSIDERATION IS LESS, CAN BE A VALID GROUND FOR THE AO WHILE HOLDING THAT THE SALE CONSIDERATION SHOWN BY THE ASSESSEE IS NOT THE REA L SALE CONSIDERATION AND THE ASSESSEE HAS MADE CERTAIN UNEXPLAINED INVESTMENTS. HOWEVER, IN A CASE WHERE NOT ONLY THE EVIDENCES COLLECTED BY THE AO ARE WE A K BUT ALSO THE ASSESSEE HAS GIVEN A PLAUSIBLE EXPLANATION OF HIS CASE THEN THE AO MERELY RELYING U PON THOSE W EAK EVIDENCES CANNOT HELD TO BE JUSTIFIED IN MAKING THE ADDITION UNDER SECTION 69B OF THE ACT. IN THE CASE IN HAND, THE AO HAS NOT GIVEN ANY INSTANCE OF ANY HIGHER SALE CONSIDERATION IN THE SAME BUILDING I.E. KRISHNA CHAMBERS. IT IS THE CASE O F THE ASSESSEE THAT THE INSTANCES GIVEN BY THE AO ARE RELATING TO OTHER COMMERCIAL PROPERTIES WHICH ARE NO MATCH TO THE PROPERTY PURCHASED BY THE ASSESSEE. THE ASSESSEE HAS ALSO GIVEN THE EXPLANATION THAT THE PROPERTY IN QUESTION WAS ILL REPUTED BECAUSE O F CERTAIN ACTIONS CARRIED OUT BY THE MUNICIPAL CORPORATION AGAINST THE OCCUPANTS OF THE BUILDING AND IT REMAINED VACANT SINCE 1987 HENCE THE FALL DOWN IN THE PRICE OF THE FLAT WAS THE VERY MUCH LIKELY AT THAT JUNCTURE. MOREOVER, THE CHANGE OF USER WAS NOT GRANTED TO THE BUILDING AND THE ASSESSEE TOOK A CH ANCE IN PURCHASING THE PROPERTY AND FURTHER EXPLOITING AND CONVERTING IT FOR COMMERCIAL USE. MERELY BECAUSE THE ASSESSEE AFTER THE PURCHASE OF PROPERTY PUT IT TO COMMERCIAL USE CANNOT EQUATE ITS POSITION WITH THE OTHER COMMERCIAL PROPERTIES IN THE AREA. THOUGH THE AO HAS ADDED 40% OF THE FAIR MARKET VALUE ITA NO. 1600/M/2010 M/S. CLASSIC ELECTRICALS LTD. 7 OF THE OTHER COMMERCIAL PROPERTY WHILE ASSESSING THE VALUE OF THE PROPERTY IN QUESTION, IN OUR VIEW SUCH TYPE OF FORMULA MERELY ON PRESUMPTION BASIS IS NOT PERMISSIBLE UNDER LAW. THE AO HAS NOT PUT ANY INSTANCE WHERE THE VALUE OF THE RESIDENTIAL PROPERTY OF THE AREA WAS MORE THAN THE SALE CONSIDERATION OF THE PROPERTY IN QUESTION. THE ASSESSEE HAS GIVEN SUFFICIENT EXPLANATION REGARDING THE JUSTIFICATION OF THE SALE CONSIDERATION. THE FACT THAT CANNOT BE LOST OF SIGHT IS THAT EVEN THE VALUATION OFFICER HAS CALCULATED THE AREA OF THE PROPERTY BY INCLUDING THE BALCONY AREA , THE VALUE OF WHICH WAS INCLUSIVE IN THE SALE AGREEMENT AND THE SAID AREA WAS NOT I NCLUDED IN THE SALE AGREEMENT . THE VALUATION OFFICER ARRIVED AT A HIGHER VALUE BY WAY OF CALCULATING THE AREA OF THE BALCONY SEPARATELY WHICH IN OUR VIEW IS NOT SUPPORTED WITH ANY OTHER INSTANCE OF SUCH A NATURE. IT IS NOT THE CASE OF THE REVENUE THAT T HE ASSESSEE HA D PURCHASE D MORE AREA THAN THAT IS WRITTEN IN THE SALE AGREEMENT. UNDER SUCH CIRCUMSTANCES THE HIGHER VALUE ARRIVED BY THE VALUATION OFFICER BY CALCULATING THE SAME INCLUDING THE BALCONY AREA CANNOT BE HELD TO BE RELIABLE. SO FAR THE JUDGM ENT OF THE HONBLE RAJASTAN HIGH COURT IN THE CASE OF SMT. AMAR KUMAR I SURANA (SUPRA) STRONGLY RELIED UPON BY THE LD. D.R. IS CONCERNED , WE FIND THAT THE FACTS OF THE CASE OF THE ASSESSEE ARE QUITE DISTINGUISHABLE FROM THAT OF THE CASE BEFORE THE HONBLE RAJASTAN HIGH COURT. FOR THE SAKE OF CONVENIENCE THE CONCLUDING PART OF THE JUDGMENT OF THE HONBLE RAJASTAN HIGH COURT IS REPRODUCED AS UNDER: 21. IT IS TRUE THAT THE BURDEN IS ON THE DEPARTMENT TO ESTABLISH THE FACT THAT THE PROPERTY HAS BEEN S OLD FOR A LESSER CONSIDERATION THAN THE MARKET VALUE. IT IS ALSO TO BE ESTABLISHED THAT THE ACTUAL CONSIDERATION IS MORE THAN THE CONSIDERATION SHOWN IN THE ACCOUNT BOOKS/SALE DEED. IN THE CASE OF K.P. VARGHESE, [1981] 131 ITR 597 (SC), THEIR LORDSHIPS HAV E OBSERVED THAT BEFORE INVOKING THE POWERS UNDER SUB - SECTION (2) OF SECTION 52 OF THE INCOME - TAX ACT, 1961, THE BURDEN IS ON THE REVENUE TO PROVE THAT THE ACTUAL CONSIDERATION WAS MORE THAN DISCLOSED BY THE ASSESSEE. BUT THEIR LORDSHIPS HAVE FURTHER OBSERV ED THAT THIS BURDEN MAY BE DISCHARGED BY ESTABLISHING THE FACTS AND CIRCUMSTANCES FROM WHICH A ITA NO. 1600/M/2010 M/S. CLASSIC ELECTRICALS LTD. 8 REASONABLE INFERENCE CAN BE DRAWN THAT THE ASSESSEE HAS NOT CORRECTLY DECLARED OR DISCLOSED THE CONSIDERATION RECEIVED OR PAID BY HIM. AS STATED ABOVE IN THE LOC ALITY OF C - SCHEME, JAIPUR, THE ADJOINING PLOTS WERE SOLD AT THE RATE OF RS. 60 OR RS. 75 PER SQ. YD. AND IF WE TAKE THE ESTIMATED RATE TAKEN BY THE APPELLATE ASSISTANT COMMISSIONER AND THE TRIBUNAL THE RATE OF PLOT IN QUESTION COMES TO RS. 36 PER SQ. YD., THAT IS, ROUGHLY HALF OF THE PREVALENT MARKET RATE IN THE AREA. ADMITTEDLY, NO REASON HAS BEEN SHOWN BY THE ASSESSEE AS TO WHY THE PLOT OF LAND HAS BEEN SOLD TO HER FOR HALF OF THE MARKET RATE. NOR ANY OTHER REASON HAS BEEN SHOWN TO THE INCOME - TAX OFFICER AT THE TIME OF ASSESSMENT. EVEN, IN SPITE OF SPECIFIC QUERY, THE ASSESSEE FAILED TO POINT OUT ANY MISTAKE/LACUNA IN ASCERTAINING THE VALUE OF THE PLOT OF LAND BY THE VALUER. IN THESE CIRCUMSTANCES, THE ONLY REASONABLE INFERENCE THAT CAN BE DRAWN IS THAT TH E ASSESSEE HAS SHOWN LESS AMOUNT IN THE ACCOUNT BOOKS AND SALE DEED THAN THE ACTUAL CONSIDERATION PAID. CONSIDERING THE COMPARABLE CASES AND THE FACTS OF THE CASE, WE FIND NO GROUND TO INTERFERE IN THE ADDITION MADE UNDER SECTION 69B OF THE ACT, 1961. 22. IN VIEW OF THE ABOVE DISCUSSION, WE FIND NOTHING WRONG IN THE VIEW TAKEN BY THE INCOME - TAX APPELLATE TRIBUNAL. THEREFORE, WE ANSWER THE QUESTIONS IN THE AFFIRMATIVE, THAT IS, IN FAVOUR OF THE REVENUE AND AGAINST THE ASSESSEE. 5. A PERUSAL OF THE ABOVE REP RODUCED OBSERVATIONS MADE BY THE HONBLE HIGH COURT REVEALS THAT IN THE SAID CASE, ASSESSEE DID NOT OFFER ANY EXPLANATION OR REASON AS TO WHY THE PLOT OF LAND HAD BEEN SOLD TO HER FOR HALF OF THE MARKET RATE. IT HAS ALSO BEEN SPECIFICALLY OBSERVED BY THE HONBLE HIGH COURT THAT IN SPITE OF SPECIFIC QUERY, THE ASSESSEE FAILED TO POINT OUT ANY MISTAKE/ LACUNA IN ASCERTAINING THE VALUE OF THE PLOT OF THE LAND BY THE VALUER. IT WAS UNDER THESE CIRCUMSTANCES THAT AN INFERENCE WAS DRAWN THAT THE ASSESSEE HAD SHO WN LESS AMOUNT IN THE SALE DEED THAN THE ACTUAL CONSIDERATION PAID. HOWEVER, THE CASE IN HAND IS NOT A CASE OF NO EXPLANATION RATHER THE ASSESSEE HAS OFFERED A REASONABLE EXPLANATION NOT ONLY AS TO THE LESS CONSIDERATION OF THE PROPERTY IN QUESTION BUT HAS ALSO POINTED OUT DEFECTS IN THE REPORT OF THE VALUER AS OBSERVED ABOVE. IT MAY BE FURTHER OBSERVED THAT IN THE CASE OF SMT. AMAR KUMARI SURANA (SUPRA) , HONBLE RAJASTAN HIGH COURT HAS REITERATED THE PROPOSITION OF ITA NO. 1600/M/2010 M/S. CLASSIC ELECTRICALS LTD. 9 LAW LAID DOWN BY THE HONBLE SUPREM E COURT IN THE CASE OF K.P. VARGHESE (1981) 131 ITR 597 ( S.C ) TO THE EFFECT THAT THE BURDEN IS ON THE REVENUE TO PROVE THAT ACTUAL CONSIDERATION WAS MORE THAN THAT WAS DISCLOSED BY THE ASSESSEE , WHICH IN THIS CASE THE REVENUE HAS FAILED TO DISCHARGE. TH E ANOTHER JUDGMENT RELIED UPON BY THE LD. D.R. IN THE CASE OF CIT VS. PUNEET SABHARWAL (2011) 16 TAXMANN.COM 320 (DELHI) WHEREIN THE HONBLE DELHI HIGH COURT HAS HELD THAT IN ORDER TO MAKE ADDITION UNDER SECTION 69B , OPINION OF DISTRICT VALUATION OFFICE R ( DVO ) PER SE IS NOT SUFFICIENT AND OTHER CORROBORATED EVIDENCE IS REQUIRED. IN THE SAID CASE THE HONBLE HIGH COURT HAS UPHELD THE DECISION OF THE TRIBUNAL DELETING THE ADDITION MADE BY THE AO UNDER SECTION 69B HOLDING THAT NOTWITHSTANDING THE REPORT OF THE DVO, THE REVENUE HAS TO PROVE THAT THE ASSESSEE HAD IN FACT RECEIVED EXTRA CONSIDERATION OVER AND ABOVE THE DECLARED VALUE OF SALE. THIS JUDGMENT OF THE HONBLE HIGH COURT OF DELHI IN FACT SUPPORTS THE CASE OF THE ASSESSEE AND IS OF NO HELP TO THE RE VENUE. THE OTHER JUDGMENT RELIED UPON BY THE LD. D.R. IS THAT OF THE CHENNAI BENCH OF THE TRIBUNAL IN THE CASE OF ITO VS. SHRI S. GANESAN (ITA NO.71/MDS/2004) DECIDED ON 23.03.12 , WHEREIN THE ASSESSEE HAD IN FACT ADMITTED THAT THE COST OF CONSTRUCTION W AS MORE THAN THAT WAS SHOWN BY HIM IN THE INCOME TAX RETURN. THE DISPUTE BEFORE THE TRIBUNAL WAS ON THE QUESTION THAT AS TO WHETHER THE RATES OF COST OF CONSTRUCTION OF THE PWD DEPARTMENT WERE TO BE ADOPTED OR THAT OF THE DEPARTMENTAL VALUATION OFFICER. THE TRIBUNAL HELD THAT THE COST OF CONSTRUCTION SHOULD BE ASSESSED BY ADOPTING THE STATE PWD RATES. HENCE THE FACTS OF THE ABOVE CASE ARE ALSO QUITE DISTINGUISHABLE WHEN COMPARED WITH THE FACTS OF THE CASE OF THE ASSESSEE. 6. IN VIEW OF OUR OBSERVATION S MADE ABOVE, IT CAN BE SAFELY SAID THAT THE ASSESSEEE HAS OFFERED A REASONABLE AND PLAUSIBLE JUSTIFICATION REGARDING THE ACTUAL CONSIDERATION OF THE SALE PURCHASE TRANSACTIONS RELATING TO THE PROPERTY IN QUESTION AND THE R EVENUE HAS FAILED TO DISCHARGE I TS BURDEN TO PROVE WITH ITA NO. 1600/M/2010 M/S. CLASSIC ELECTRICALS LTD. 10 CONVINCING EVIDENCE THAT ANY EXTRA CONSIDERATION HA D CHANGED HANDS OVER AND ABOVE THE SALE CONSIDERATION PAID BY THE ASSESSEE . T HE APPEAL OF THE ASSESSEE IS THUS HEREBY ALLOWED AND THE ADDITIONS MADE BY THE REVENUE UNDER SECTION 69B OF THE INCOME TAX ACT ARE HEREBY ORDERED TO BE DELETED. ORDER PRONOUNCED IN THE OPEN COURT ON 06.12. 2013. SD/ - SD/ - ( P.M. JAGTAP ) (SANJAY GARG) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATED: 06.12. 2013. * KISHORE COPY TO: THE APPELLANT THE RESPONDENT THE CIT, CONCERNED, MUMBAI THE CIT ( A) CONCERNED, MUMBAI THE DR C BENCH //TRU E COPY// [ BY ORDER DY/ASSTT. REGISTRAR, ITAT, MUMBAI.