The ACIT-CC1(3), Ahmedabad V. Shri Ramesh S. Kasat, Ahmedabad

ITA 2710/AHD/2009

• Counselvise Citation: [2009] 115 COUNSELVISE.COM (IT) 1782 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-12-2009
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Assessment Year: 2001-2002
• Appeal Filed On: 29-09-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SHELLEY JINDAL
• Assessee Lawyers: M K PATEL
• Keywords: Unexplained investment; Cost of acquisition; Valuation report; Set aside
• Section: 143(3); 153A; 69B; 69A; 69; 6; 132; 10; 2; 11; 15

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH AHMEDABAD (BEFORE S/SHRI N. S. SAINI, AM AND MAHAVIR SINGH, J M) ITA NO. 2710, 2711 AND 2712/AHD/2009 A. Y.: 2001-02, 2005-06 AND 2006-07 A. C. I. T., CENTRAL CIRCLE- 1(3), ROOM NO.304, 3 RD FLOOR, AAYAKAR BHAVAN, ASHRAM ROAD, AHMEDABAD VS SHRI RAMESH S. KASAT, PROP. M/S. MAHESHWARI SALES CORPORATION, 804, AVDESH HOUSE, OPP. GURUDWARA, S. G. ROAD, THALTEJ, AHMEDABAD PA NO. ADCPK 5446 R (APPELLANT) (RESPONDENT) ASSESSEE BY SHRI M. K. PATEL, AR REVENUE BY SHRI SHELLEY JINDAL, CIT, DR DATE OF ORDER RESERVED:12/12/2009 O R D E R PER MAHAVIR SINGH: THESE THREE APPEALS BY THE REVENUE ARE ARISING OUT OF THE DIFFERENT ORDERS OF THE LEARNED CIT(A)-I, AHMEDABAD IN APPEAL NOS. CIT(A)-I/CC.1(1)/364/08-09 DATED 23-6-2 009, CIT(A)- I/CC.1(1)/365/08-09 DATED 19-6-2009 AND CIT(A)-I/C C.1(1)/366/08-09 DATED 19-6-2009. THE ASSESSMENTS WERE FRAMED BY THE DCIT, CENTRAL CIRCLE-1(3), AHMEDABAD U/S 143(3) READ WITH SECTION 153A(1) (B) OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS T HE ACT.) FOR THE ASSESSMENT YEARS 2001-02, 2005-06 AND 2006-07. 2. THE ONLY COMMON ISSUE IN THESE THREE APPEALS OF THE REVENUE IS AS REGARDS TO THE ORDER OF THE CIT(A) DELETING THE ADD ITION MADE BY THE AO U/S 69B OF THE ACT. ITA NOS.2710, 2711 AND 2712/AHD/2009 SHRI RAMESH S. KASAT 2 3. THE FACTS IN EACH YEAR ARE DIFFERENT. HENCE, WE WILL DISCUSS THE FACTS YEAR WISE. 4. FIRST WE WILL TAKE UP ITA NO.2710/AHD/2009 FOR ASSESSMENT YEAR 2001-02. A SEARCH WAS CONDUCTED AT THE RESIDENTIAL AND BUSINESS PREMISES OF THE ASSESSEE U/S 132 OF THE ACT ON 01-1 1-2006. ACCORDINGLY ASSESSMENT PROCEEDINGS U/S 153A OF THE ACT WAS INIT IATED IN THE RELEVANT ASSESSMENT YEAR. DURING THE COURSE OF ASSESSMENT PR OCEEDINGS THE AO NOTICED THAT THE ASSESSEE HAS PURCHASED OFFICE NO.8 04, AVDHESH HOUSE, OPP. GURUDWARA, S G. HIGHWAY, AHMEDABAD AREA AT 92 1 SQ. FT. ON 08- 08-2000 FOR RS.5,34,575/-. THE ASSESSEE HAS SHOWN T HE TOTAL INVESTMENT IN THE PLOT AT RS.5,34,575/- IN THE BALANCE SHEET. ON PERUSAL OF THE RECORDS THE AO FOUND THAT THE VALUE SHOWN BY THE AS SESSEE IS NOT ACCORDING TO THE PREVAILING MARKET RATES DURING THE RELEVANT POINT OF TIME, WHICH SEEMS TO BE VERY LOWER. THEREFORE, A RE FERENCE U/S 142A OF THE ACT WAS MADE TO THE DISTRICT VALUATION OFFICER, VALUATION CELL, INCOME-TAX DEPARTMENT, AHMEDABAD VIDE LETTER DATED 18-08-2008, REGARDING DETERMINATION OF COST OF INVESTMENT IN LA ND IN QUESTION. ACCORDINGLY, THE AO ISSUED SHOW CAUSE NOTICE ON 05- 12-2008 TO THE ASSESSEE ASKING FOR HIS OBJECTIONS IN RESPECT OF VA LUATION DONE BY THE VALUATION OFFICER. 5. IN RESPONSE TO THE SHOW CAUSE NOTICE THE ASSESSE E REPLIED THAT THE OFFICE AT 804, AVADESH HOUSE, F. P. 406, TPS 1/B, B ODAKDEV, AREA 921 SQ. FT., WAS PURCHASED ON 08-08-2000 AT RS.5,34,575 /-, THE DETAILS OF PURCHASES OF THE OFFICE WERE FURNISHED TO THE AO IN ASSESSMENT PROCEEDINGS OF AY 2001-02. THE OFFICE WAS PURCHASED @ RS.580/- PER SQ. FT. COPY OF THE MOU FOR ALLOTMENT OF OFFICE, ACCOUN T COPY FOR PAYMENTS ETC. WERE ALSO FURNISHED. DURING THE SEARCH PROCEEDINGS, TO THE SEARCH PARTY, ITA NOS.2710, 2711 AND 2712/AHD/2009 SHRI RAMESH S. KASAT 3 NOT A SINGLE LOOSE PAPER, NOTINGS ETC. WERE FOUND W HICH SHOWS THAT THE ASSESSEE HAS MADE UNEXPLAINED INVESTMENT IN THE SAI D OFFICE PURCHASED ON 08-08-2000 IN FY 2000-01. THE DVO HAS VALUED COS T OF INVESTMENT IN OFFICE PREMISES LOCATED AT 804, AVADHESH HOUSE, F. P. 406, TPS 1/B, BODAKDEV AT RS.11,05,2000/- AGAINST THE DOCUMENT VA LUE OF RS.5,34,575/-. THE DVO HAS TAKEN INSTANCES OF GNFC TOWER (A SEMI GOVERNMENT UNDERTAKING) SITUATED AT FP NO.363/TPS 1B OF VASTRAPUR, HAVING PER SQ. MT. RATE OF RS.1192/-, DOCUMENT DATE D 14-07-1999 AT RS.15,32,18,759/-- HAVING AREA OF 1,27,765/- SQ. FT . CONSISTING 3 RD FLOOR TO 8 TH FLOOR AND ESTIMATED THE COST OF INVESTMENT AT RS.1 200/- PER SQ. FT. THE DVO HAS NOT CONSIDERED THE FOLLOWING FACTORS AT THE TIME OF CHOOSING COMPARABLE SALE INSTANCES. THE ASSESSEE MENTIONED T HE FOLLOWING DEFECTS IN THE DVOS REPORT, FOR ESTIMATION OF INVESTMENT I N LAND, WHICH ARE MORE MATERIAL THEN THE PARAMETERS CONSIDERED BY THE DVO FOR ARRIVING/COMPUTING THE FAIR AND REASONABLE LAND RAT E. FURTHER, THE DVO HAS NOT TAKEN INSTANCES FROM THE SAME TOWER/OFFICE COMPLEX, WHERE THE ASSESSEE HAS PURCHASED OFFICE AT 8 TH FLOOR IN AVADHESH HOUSE. THE COMPARISON CAN BE TAKEN FROM THE SAME AREA; IN THIS REGARD THE ASSESSEE FURNISHED 4 PURCHASE DEED/ MEMORANDUM OF ALLOTMENT OF SALE OF OFFICES IN AVADHESH HOUSE, THE DETAILS OF WHICH ARE AS UNDE R: SN PROPERTY SITUATED AT AREA(SQ.FT) COST OF DOCMENT COST PER SQ. FT. 1 OFFICE PREMISES LOCATED AT 801, AVADESH HOUSE, F. P. 406, TPS 1/B, BODAKDEV (PURCHASED ON 11-04- 2000) 3303 1909225 578 2 OFFICE PREMISES LOCATED AT 802, AVADHESH HOUSE, F. P. 406, TPS 1/B, BODAKDEV (PURCHASED ON 23- 05-2000) 830 477250 575 3 OFFICE PREMISES LOCATED AT 805, AVADHESH HOUSE, F. P. 406, TPS 1/B, BODAKDEV (PURCHASED ON 30- 12-2000) 3102 1793650 578 4 OFFICE PREMISES LOCATED AT 604, AVADHESH HOUSE, F. P. 406, TPS 825 582500 706 ITA NOS.2710, 2711 AND 2712/AHD/2009 SHRI RAMESH S. KASAT 4 1/B, BODAKDEV (PURCHASED ON 24- 03-2005) PROPERTY UNDER CONSIDERATION (PUC) 5 OFFICE PREMISES LOCATED AT 804, AVADHESH HOUSE, F. P. 406, TPS 1/B, BODAKDEV (PURCHASED ON 08- 08-2000) 921 535475 580 6. THE AO PRIMARILY IN VIEW OF THE DVOS REPORT MAD E ADDITION ON ACCOUNT OF UNACCOUNTED INVESTMENT U/S 69 OF THE ACT BY GIVING FOLLOWING FINDINGS IN PARA 6.8: 6.8 IN VIEW OF THE ABOVE FACTS AND DECISION CITED AS ABOVE, IT IS CLEAR THAT THE VALUE ADOPTED BY THE DVO IS FA IR AND REASONABLE WHICH IS SUPPORTED BY THE ABOVE DECISION ; AS NO MISTAKE/LACUNA IN ASCERTAINING THE VALUE OF THE PRO PERTY BY THE VALUER HAS BEEN POINTED BY THE ASSESSEE, EXCEPT FEW COMPARABLE SALE INSTANCES OF THE SURROUNDINGS. HENC E, CONSIDERING THE ENTIRE FACTS AND CIRCUMSTANCES AND PREVAILING MARKET PRACTICES OF SUPPRESSING THE ACTUAL PURCHASE COST OF PROPERTIES, I AM FULLY SATISFIED THAT THE COST OF I NVESTMENT DETERMINED BY THE DVO IS ACTUAL COST OF INVESTMENT IN THE SAID PROPERTY. THEREFORE, I HEREBY TREAT THE DIFFERENCE BETWEEN THE VALUATION ADOPTED BY THE DVO AND SHOWN BY THE ASSES SEE AS UNACCOUNTED INVESTMENT U/S 69 B OF THE I. T. ACT, 1 961 AND ADD RS.5,70,625 (RS.11,05,200 RS. 5,34,575) TO TH E TOTAL INCOME OF THE ASSESSEE. PENALTY PROCEEDINGS U/S 271 (1) ( C ) ARE INITIATED FOR FURNISHING INACCURATE PARTICULARS OF INCOME. 7. AGGRIEVED, THE ASSESSEE PREFERRED APPEAL BEFORE THE CIT(A). THE CIT(A) DELETED THE ADDITION BY CONSIDERING THE SUBM ISSIONS OF THE ASSESSEE THAT THERE IS NO SEIZED MATERIAL WHICH IS THE BASIS OF DVOS REPORT OR NO MATERIAL FOUND WHICH PROVES UNACCOUNTE D INVESTMENTS. HE ALSO NOTED THAT THE COMPARABLE INSTANCES ARE TAKEN OF THE PROPERTIES WHICH ARE LOCATED IN AN ALTOGETHER DIFFERENT AREA/L OCALITY. INSTANCES OF SALE FROM THE SAME OFFICE BUILDING ARE NOT TAKEN, W HICH ARE READILY AVAILABLE WITH REGISTRAR OFFICE/ FROM THE OCCUPANTS OF THE SAME BUILDING WHICH IS THE FIRST AND FOREMOST DUTY OF THE DVO. TH E ASSESSEE HAS ALSO ITA NOS.2710, 2711 AND 2712/AHD/2009 SHRI RAMESH S. KASAT 5 POINTED OUT TO THE DECISIONS OF THE JURISDICTIONAL ITAT IN ITA NO.839/AHD/2007 DATED 17-8-2007 FOR AY 2004-05 IN CASE OF SMT. ILABEN BHARAT SHAH IN WHICH ON SIMILAR FACTS THE AD DITIONS MADE ON ACCOUNT OF DIFFERENCE IN VALUATION ALONE, WERE DELE TED. ACCORDINGLY, RELYING ON THE DECISION OF THE JURISDICTIONAL TRIBU NAL IN THE CASE OF SMT. ILABEN BHARAT SHAH IN IT(SS)A NO. 839/AHD/2007 DATE D 17-8-2007 FOR AY 2004-05 AND IN THE CASE OF SUGAMCHAND C. SHAH IN ITA NOS. 199 & 226/AHD/2003 THE CIT(A) DELETED THE ADDITION. 8. SIMILAR ARE THE FACTS IN ITA NOS. 2711 AND 2712/AHD/2009 FOR AY 2005-06 AND 2006-07 I.E. IN AY 2005-06 THE AO NO TICED THAT THE ASSESSEE HAS PURCHASED A PLOT OF LAND SITUATED AT S URVEY NO.403, SUB PLOT NO.163, AREA AT 495.81 SQ. MT. AT SUNRISE PARK , DRIVE IN ROAD, AHMEDABAD ON 16-7-2004 FOR RS.32,02,630/- PLUS RS. 3,25,710/- IN THE PREVIOUS YEAR. THE ASSESSEE HAS SHOWN THE TOTAL INV ESTMENT IN THE PLOT AT RS.35,28,340/- IN THE BOOKS. ON PERUSAL OF THE RECO RDS AVAILABLE, IT IS FOUND THAT THE RELEVANT POINT OF TIME, WHICH SEEMS TO BE VERY LOWER. THEREFORE, A REFERENCE U/S. 142A WAS MADE TO THE DI STRICT VALUATION OFFICER, VALUATION CELL, INCOME-TAX DEPARTMENT, AHM EDABAD VIDE LETTER DATED 18-08-2008, REGARDING DETERMINATION OF COST O F INVESTMENT IN LAND IN QUESTION. THE DISTRICT VALUATION OFFICER OF THE INCOME TAX DEPARTMENT HAS SUBMITTED HIS VALUATION REPORT VIDE LETTER NO.2 (22)/DVO/08-09/572 DATED 05-12-2008, DETERMINING THE COST OF THE ABOVE REFERRED PLOT AT RS. 42,14,366/-. 9. SIMILAR BEING THE FACTS AS IN THE EARLIER YEAR W E WILL DELIBERATE AS REGARDS TO FINDINGS AFTER DISCUSSING THE FACTS OF A SSESSMENT YEAR 2006-07 IN ITA NO.2712/AHD/2009 . THE FACTS IN AY 2006-07 ARE THAT THE ASSESSEE HAS PURCHASED TWO PLOTS OF LAND SITUATED A T BLOCK NO.55 AND ITA NOS.2710, 2711 AND 2712/AHD/2009 SHRI RAMESH S. KASAT 6 153 , AREA AT 19444 SQ. MT. AT SHELA ON 17-10-2005 FOR RS.48,60,750/-. ON PERUSAL OF THE RECORDS AVAILABLE, IT IS FOUND TH AT THE VALUE SHOWN BY THE ASSESSEE IS NOT ACCORDING TO THE PREVAILING MAR KET RATES DURING THE RELEVANT POINT OF TIME, WHICH SEEMS TO BE VERY LOWE R. THEREFORE, A REFERENCE U/S. 142A OF THE ACT WAS MADE TO THE DIST RICT VALUATION OFFICER , VALUATION CELL, INCOME TAX DEPARTMENT, AHMEDABAD VIDE LETTER DATED 18-08-2008, REGARDING DETERMINATION OF COST OF INVE STMENT IN LAND IN QUESTION. THE DISTRICT VALUATION OFFICER OF THE IN COME TAX DEPARTMENT HAS SUBMITTED HIS VALUATION REPORT VIDE LETTER NO.2 (22)DVO/08-09/572 DATED 05-12-2008, DETERMINING THE COST OF THE SAID LAND AT RS.1,36,10,800/-. 10. AT THE OUTSET, THE LEARNED COUNSEL FOR THE ASSE SSEE STATED THAT THIS ISSUE IS SQUARELY COVERED BY THE DECISION OF THE AH MEDABAD B BENCH DATED 17-08-2007 IN THE CASE OF ACIT VS SMT. ILABEN BHARAT SHAH IN ITA NO.839/AHD/2007 AND IN THE CASE OF SUGAMCHAND C. SHAH VS. ACIT IN IT(SS) A NO.199/AHD/2003 DATED 17-03-2005 WHEREIN THE TRIBUNAL IN PARA 6,7 AND 8 HAS HELD AS UNDER: 6. WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSIONS AND, PERUSED THE MATERIAL ON RECORD. WE HAVE ALSO GONE THROUGH THE ORDER OF THE TAX AUTHORITIES BELOW AS WELL AS THE CASE LAW CITED BEFORE US. IT IS NOT DISPUTED THAT THERE HAD BEEN SEARCH IN THE CASE OF THE ASSESSEE ON 18-01-2006 I. E. AFTER 31 ST MAY, 2003. IN VIEW OF THE AMENDED PROVISIONS AND THE FACT THAT THE SEARCH HAD TAKEN PLACE AFTER 31 ST MAY, 2003, THE ASSESSMENT IN THE CASE OF THE ASSESSEE HAS TO BE MADE IN ACCORDANCE WITH THE PROVISIONS OF SECTION 153A READ WITH SECTI ON 143(3) OF THE ACT. THIS HAS NOT BEEN DISPUTED BY EITHER OF THE PARTIES. THE PROVISIONS OF SECTION 15 3A LAY DOWN AS UNDER:- 153A. ITA NOS.2710, 2711 AND 2712/AHD/2009 SHRI RAMESH S. KASAT 7 [1] NOTWITHSTANDING ANYTHING CONTAINED IN SECTION 1 39, SECTION 147, SECTION 148, SECTION 149, SECTION 151 AND SECT ION 153, IN THE CASE OF A PERSON WHERE A SEARCH IS INITIATED UNDER SECTION 132 OR BOOKS OF ACCOUNT, OTHER DOCUMENTS OR ANY ASSETS ARE REQUISITIONED UNDER SECTION 132A AFTER THE 31 ST DAY OF MAY, 2003, THE ASSESSING OFFICER SHALL (A) ISSUE NOTICE TO SUCH PERSON REQUIRING HIM TO FURNIS H WITHIN SUCH PERIOD, AS MAY BE SPECIFIED IN THE NOTICE, THE RETURN OF INCOME IN RESPECT OF EACH ASSESSMENT YEAR FALLING W ITHIN SIX ASSESSMENT YEARS REFERRED TO IN CLAUSE (B), IN THE PRESCRIBED FORM AND VERIFIED IN THE PRESCRIBED MANNER AND SETT ING FORTH SUCH OTHER PARTICULARS AS MAY BE PRESCRIBED AND THE PROVISIONS OF THIS ACT SHALL, SO FAR AS MAY BE, APP LY ACCORDINGLY AS IF SUCH RETURN WERE A RETURN REQUIRE D TO BE FURNISHED UNDER SECTION 139; (B) ASSESS OR REASSESS THE TOTAL INCOME OF SIX ASSESSME NT YEARS IMMEDIATELY PRECEDING THE ASSESSMENT YEAR RELEVANT TO THE PREVIOUS YEAR IN WHICH SUCH SEARCH IS CONDUCTED OR REQUISITION IS MADE: PROVIDED THAT THE ASSESSING OFFICER SHALL ASSESS OR REASSESS THE TOTAL INCOME IN RESPECT OF EACH ASSESSMENT YEAR FAL LING WITHIN SUCH SIX ASSESSMENT YEARS: PROVIDED FURTHER THAT ASSESSMENT OR REASSESSMENT, I F ANY, RELATING TO ANY ASSESSMENT YEAR FALLING WITHIN THE PERIOD OF SI X ASSESSMENT YEARS REFERRED TO IN THIS [SUB-SECTION] PENDING ON THE DATE OF INITIATION OF THE SEARCH UNDER SECTION 132 OR MAKIN G OF REQUISITION UNDER SECTION 132A, AS THE CASE MAY BE, SHALL ABATE . [(2)] IF ANY PROCEEDING INITIATED OR ANY ORDER OF A SSESSMENT OR REASSESSMENT MADE UNDER SUB-SECTION (1) HAS BEEN AN NULLED IN APPEAL OR ANY OTHER LEGAL PROCEEDING, THEN, NOTWITH STANDING ANYTHING CONTAINED IN SUB-SECTION (1) OR SECTION 15 3, THE ASSESSMENT OR REASSESSMENT RELATING TO ANY ASSESSMENT YEAR WHI CH HAS ABATED UNDER THE SECOND PROVISO TO SUB-SECTION (1), SHALL STAND REVIVED WITH EFFECT FROM THE DATE OF RECEIPT OF THE ORDER OF SUC H ANNULMENT BY THE COMMISSIONER. PROVIDED THAT SUCH REVIVAL SHALL CEASE TO HAVE EFFE CT, IF SUCH ORDER OF ANNULMENT IS SET ASIDE.] EXPLANATION FOR THE REMOVAL OF DOUBTS, IT IS HERE BY DECLARED THAT, - ITA NOS.2710, 2711 AND 2712/AHD/2009 SHRI RAMESH S. KASAT 8 (I) SAVE AS OTHERWISE PROVIDED IN THIS SECTION, SECTION 153B AND SECTION 153C, ALL OTHER PROVISIONS OF THIS ACT SHALL APPLY TO THE ASSESSMENT MADE UNDER THIS SECTION; (II) IN AN ASSESSMENT OR REASSESSMENT MADE IN RESPECT OF AN ASSESSMENT YEAR UNDER THIS SECTION, THE TAX SHALL B E CHARGEABLE AT THE RATE OR RATES AS APPLICABLE TO SU CH ASSESSMENT YEAR. FROM THE PERUSAL OF THE SAID PROVISION IT IS APPARENTLY CLEAR THAT THE AO IN THE CASE OF THE ASS ESSEE CAN ASSESS OR REASSESS THE TOTAL INCOME IN RESPECT OF SIX ASSESSMENT YEARS IMMEDIATELY PRECEDING THE ASSESSME NT YEAR RELEVANT TO THE PREVIOUS YEAR 2005-06 (AY 2007 -08) AS THE SEARCH HAS TAKEN PLACE IN THE CASE OF THE AS SESSEE ON 18-01-2006. THE AO HAS TO ASSESS OR REASSESS THE TOTAL INCOME IN RESPECT OF EACH OF THE ASSESSMENT YEAR FA LLING WITHIN SIX ASSESSMENT YEARS. THE IMPUGNED ASSESSMEN T YEARS UNDER DISPUTE RELATE TO THOSE SIX ASSESSMENT YEARS. EXPLANATION TO SECTION 153A CLEARLY PROVIDES THAT S AVE AS OTHERWISE PROVIDED IN THIS SECTION, ALL OTHER PROVI SIONS OF THIS ACT SHALL APPLY TO THE ASSESSMENT AND THE TAX SHALL BE CHARGEABLE AT THE RATE OR RATES AS APPLICABLE TO SU CH ASSESSMENT YEAR. SECTION 142A WHICH WAS INSERTED BY THE FINANCE ACT, 2004 WITH EFFECT FROM 15-11-1972 EMPOW ERS THE AO FOR THE PURPOSE OF MAKING AN ASSESSMENT OR REASSESSMENT UNDER THE I.T. ACT, WHERE AN ESTIMATE OF THE VALUE OF ANY INVESTMENT REFERRED TO IN SECTION 69 O R SECTION 69B OR THE VALUE OF ANY BULLION, JEWELLERY OR OTHER VALUABLE ARTICLE REFERRED TO IN SECTION 69A OR SECT ION 69B IS REQUIRED TO BE MADE, THE AO MAY REQUIRE THE VALU ATION OFFICER TO MAKE AN ESTIMATE OF SUCH VALUE AND REPOR T THE SAME TO HIM. IN VIEW OF THIS AMENDED PROVISION, WE ARE OF THE VIEW THAT A REFERENCE U/S 142A COULD BE MADE BY THE AO TO THE VALUATION OFFICER IF AN ESTIMATE OF THE V ALUE OF ANY INVESTMENT IS REQUIRED TO BE MADE UNDER THE PRO VISION OF SECTION 69 OR SECTION 69B. 7. SECTION 69 DEALS WITH THE CASES WHERE IN THE FINANCIAL YEAR IMMEDIATELY PRECEDING THE ASSESSMENT YEAR THE ASSESSEE HAS MADE INVESTMENTS WHICH ARE NOT RECORDED IN THE BOOKS OF ACCOUNT, IF ANY, MAINTAINE D BY HIM FOR ANY SOURCE OF INCOME, AND THE ASSESSEE OFFE RS NO EXPLANATION ABOUT THE NATURE AND SOURCE OF THE ITA NOS.2710, 2711 AND 2712/AHD/2009 SHRI RAMESH S. KASAT 9 INVESTMENTS. APPARENTLY THE CASE OF THE ASSESSEE DO ES NOT FALL U/S 69 AS IN THE CASE OF THE ASSESSEE THERE IS NO ALLEGATION (NOT EVEN THE WHISPER) THAT THE INVESTME NTS MADE BY THE ASSESSEE DURING THE RESPECTIVE ASSESSME NT YEAR WERE NOT RECORDED IN THE BOOKS OF ACCOUNTS MAINTAINED BY THE ASSESSEE. 8. NOW, COMING TO THE PROVISIONS OF SECTION 69B, TH IS SECTION READS AS UNDER:- 69B WHERE IN ANY FINANCIAL YEAR THE ASSESSEE HAS M ADE INVESTMENTS OR IS FOUND TO BE THE OWNER OF ANY BULL ION, JEWELLERY OR OTHER VALUABLE ARTICLE, AND THE [ASSES SING] OFFICER FINDS THAT THE AMOUNT EXPENDED ON MAKING SUCH INVES TMENTS OR IN ACQUIRING SUCH BULLION, JEWELLERY OR OTHER VA LUABLE ARTICLE EXCEEDS THE AMOUNT RECORDED IN THIS BEHALF IN THE B OOKS OF ACCOUNT MAINTAINED BY THE ASSESSEE FOR ANY SOURCE OF INCOME, AND THE ASSESSEE OFFERS NO EXPLANATION ABOUT SUCH E XCESS AMOUNT OR THE EXPLANATION OFFERED BY HIM IS NOT, IN THE OPINION OF THE [ASSESSING] OFFICER, SATISFACTORY, THE EXCES S AMOUNT MAY BE DEEMED TO BE THE INCOME OF THE ASSESSEE FOR SUCH FINANCIAL YEAR. THIS SECTION IS APPLICABLE WHERE THE ASSESSEE HAS MADE INVESTMENTS OR IS FOUND TO BE THE OWNER OF ANY BULLION, JEWELLERY OR OTHER VALUABLE ARTICLE AND TH E AO FINDS THAT THE AMOUNT EXPENDED ON MAKING SUCH INVESTMENTS OR IN ACQUIRING SUCH BULLION, JEWELLERY OR OTHER VALUABLE ARTICLE, EXCEEDED THE AMOUNT RECORDED IN T HE BOOKS MAINTAINED BY THE ASSESSEE AND THE ASSESSEE F AILS TO EXPLAIN THE SOURCE OF SUCH EXCESS INVESTMENTS OR THE EXPLANATION OFFERED BY THE ASSESSEE IS NOT, IN THE OPINION OF THE AO, SATISFACTORY, THE EXCESS AMOUNT SO FOUND MAY BE DEEMED TO BE THE INCOME OF THE ASSESSEE FOR SUCH FINANCIAL YEAR. THERE IS NO DISPUTE ABOUT THE FACT THAT THE ASSESSE E HAD MADE THE INVESTMENTS IN THE PURCHASE OF THE LAN D DURING THE ASSESSMENT YEAR. SECTION DOES NOT ONLY R EQUIRE THAT THE ASSESSEE HAD MADE THE INVESTMENTS BUT U/S 69B IT IS ESSENTIAL THAT THE AO MUST FIND THAT THE ASSE SSEE HAD MADE THE INVESTMENTS MUCH MORE THAN WHAT HAD BEEN ITA NOS.2710, 2711 AND 2712/AHD/2009 SHRI RAMESH S. KASAT 10 RECORDED IN THE BOOKS OF ACCOUNTS MAINTAINED BY THE ASSESSEE. ONCE THE AO COMES TO THIS FINDING THAT TH E ASSESSEE HAD MADE THE INVESTMENTS MORE THAN WHAT HA S BEEN RECORDED IN THE BOOKS, THE ASSESSEE MUST BE AS KED FOR THE EXPLANATION. NOW THE QUESTION ARISES THAT WHAT IS THE EVIDENCE WITH THE AO FOR RECORDING A FINDING THAT THE ASSESS EE HAD INVESTED THE FUNDS MORE THAN WHAT HAS BEEN RECORDED IN THE BOOKS OF ACCOUNTS. WE HAVE GONE THROUGH THE ASSESSMENT ORDER. WE DO NOT FIND ANY MATERIAL OR EV IDENCE BEING FOUND DURING THE COURSE OF SEARCH OR BEING BR OUGHT ON RECORD BY THE AO WHICH MAY PROVE THAT THE ASSESS EE HAD ACTUALLY INVESTED THE FUNDS MUCH MORE THAN WHAT HAS BEEN RECORDED IN THE BOOKS OF ACCOUNTS. IN OUR OPIN ION, THE ONUS IS ON THE AO TO PROVE THAT THE ASSESSEE HAD IN VESTED MUCH MORE THAN WHAT HAS BEEN RECORDED IN THE BOOKS OF ACCOUNTS. ONCE THE AO DISCHARGES HIS ONUS, THE QUES TION OF ESTIMATING THE VALUATION BY THE DVO WILL ARISE. IN THIS CASE WE NOTED THAT THE AO HAD NOT PROVED OR DISCHAR GED THAT THE ASSESSEE HAD MADE THE INVESTMENTS MUCH MOR E THAN WHAT HAS BEEN RECORDED IN THE BOOKS OF ACCOUNT S. EVEN NO SUCH MATERIAL IN THE FORM OF AGREEMENT OR T HE ACTUAL CONSIDERATION BEING PAID BY THE ASSESSEE MUC H MORE THAN WHAT HAS BEEN RECORDED IN THE BOOKS WAS F OUND DURING THE COURSE OF SEARCH. THE AO HAS DIRECTLY RE FERRED THE MATTER TO THE DVO AND AFTER GETTING THE REPORT OF THE DVO HE MADE THE ADDITION IN RESPECT OF DIFFERENCE I N THE AMOUNT AS ESTIMATED BY THE DVO AND AS HAS BEEN RECORDED BY THE ASSESSEE IN HIS BOOKS OF ACCOUNTS. IN OUR OPINION, SECTION 69B PLACES HEAVY BURDEN ON THE AO TO PROVE THAT THE ASSESSEE HAS INVESTED MUCH MORE THAN WHAT HAS BEEN RECORDED IN THE BOOKS OF ACCOUNTS. UN TIL AND UNLESS THAT BURDEN IS DISCHARGED BY THE AO, THE QUESTION OF SUBMITTING THE EXPLANATION BY THE ASSES SEE DOES NOT ARISE. THE AO WITHOUT DISCHARGING THE ONUS HAS DIRECTLY TOOK A SHELTER OF SECTION 142A. SECTION 14 2A MERELY TALKS OF THE ESTIMATE OF THE VALUATION OF INVESTMENTS. ESTIMATE IS ALWAYS AN ESTIMATE. IT CAN NOT TAKE A SHAPE OF ACTUAL INVESTMENT MADE BY THE ASSES SEE. IN VIEW OF THESE FACTS, WE ARE OF THE OPINION THAT NO INTERFERENCE IS CALLED FOR IN THE ORDER OF THE CIT( A). THE CIT(A), IN OUR OPINION, HAS RIGHTLY DELETED THE ADD ITION IN EACH OF THE ASSESSMENT YEAR. ITA NOS.2710, 2711 AND 2712/AHD/2009 SHRI RAMESH S. KASAT 11 11. WE HAVE GONE THROUGH THE FACTS AND CIRCUMSTANCE S OF THIS CASE AND ALSO THE CASE LAW REFERRED BEFORE US AND AS REP RODUCED ABOVE, THE FACTS BEING EXACTLY IDENTICAL THAT THE ADDITION WAS MADE ON ACCOUNT OF UNACCOUNTED INVESTMENTS U/S 69B OF THE ACT BY THE A O ON THE BASIS OF DVOS REPORT AND NO SUCH OTHER MATERIAL SUCH AS SEI ZED MATERIAL OR MATERIAL RELATING TO UNACCOUNTED INVESTMENT WAS NOT FOUND DURING THE COURSE OF SEARCH, WE HOLD THAT THE ISSUE IS SQUAREL Y COVERED IN FAVOUR OF THE ASSESSEE AND AGAINST THE REVENUE. 12. IN THE RESULT, REVENUES APPEALS ARE DISMISSED. THE ORDER WAS PRONOUNCED IN THE OPEN COURT ON18/12/ 09 SD/- SD/- (N. S. SAINI) ACCOUNTANT MEMBER (MAHAVIR SINGH) JUDICIAL MEMBER DATE : 18-12-09 LAKSHMIKANT/-*DKP COPY OF THE ORDER FORWARDED TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT CONCERNED 4. THE CIT(A) 5. THE DR, ITAT, AHMEDABAD 6. GUARD FILE BY ORDER /TRUE COPY/ D Y. REGISTRAR, ITAT, AHMEDABAD