ACIT, New Delhi V. Smt. Veer Bala Rastogi, New Delhi

ITA 285/DEL/2011

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 3636 (ITAT-DELHI)
• Duration Of Justice: 5 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-06-2011
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: H
• Next Hearing Date: 23-06-2011
• Assessment Year: 2007-2008
• Appeal Filed On: 17-01-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MONA MOHANTY

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL [ DELHI BENCH H DELHI ] BEFORE SHRI A. D. JAIN, JM AND SHRI SHAMIM YAHYA, AM I. T. APPEAL NO. 285 (DEL) OF 2011 ASSESSMENT YEAR : 2007-08. ASSTT. COMMISSIONER OF INCOME-TAX, SMT. VEER BALA RASTOGI, C I R C L E : 31 (1), VS. FLAT NO. 915, 9 TH FLOOR, N E W D E L H I. INDRA PRAKASH BUIL DING, N E W D E L H I 110 001. P A N / G I R NO. AAG PR 6152 A. ( APPELLANT ) ( RESPO NDENT ) ASSESSEE BY : SHRI VIPIN JAIN, C. A.; DEPARTMENT BY : MS. MONA MOHANTY, SR. D. R. ; O R D E R. PER SHAMIM YAHYA, AM : THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST THE ORDER OF THE LD. CIT (APPEALS) DATED 28 TH OCTOBER, 2010 AND PERTAINS TO ASSESSMENT YEAR 2007 -08. 2.1 THE ISSUE RAISED IS THAT THE LD. CIT (APPEALS) ERRED IN DELETING THE ADDITION OF RS.14,64,000/- MADE UNDER SECTION 69-B ON THE UNDIS CLOSED INVESTMENT MADE BY THE ASSESSEE. 2 I. T. APPEAL NO. 285 (DEL) OF 2011 2.2 IN THIS CASE IN THE RETURN FILED FOR THE ASSESS MENT YEAR 2007-08, THE ASSESSEE HAS SHOWN INVESTMENT OF RS.32,00,000/- IN A FLAT AT VAI BHAV KHAND, INDIRAPURAM, GHAZIABAD. AT THE TIME OF REGISTERING THE PROPERTY SHE PAID STAMP DUTY OF RS.4,46,500/- AS FIXED BY THE SUB-REGISTRAR-IV, G.T. ROAD, TEHSIL COMPOUND, GHAZI ABAD WHO HAD FIXED THE VALUE OF THE PROPERTY AT RS.46,64,000/- FOR THE PURPOSES OF STAM P DUTY VALUATION. IN THE COURSE OF SCRUTINY PROCEEDINGS, THE ASSESSING OFFICER CONFRONTED THE A SSESSEE WITH THE VALUE OF THE PROPERTY ON THE DATE OF PURCHASE BEING RS.46,64,000/-. THE ASSESSING OFFICER ALSO REFERRED THE MATTER TO THE D.V.O. FOR DETERMINATION OF THE MARKET VALUE OF THE PROPERTY. HOWEVER, AS THE DVOS REPORT WAS NOT RECEIVED BEFORE FINALIZATION O F ASSESSMENT, THE ASSESSING OFFICER ADDED THE SUM OF RS.14,64,000/- AS ASSESSEES UNDISCLOSED INVESTMENT IN THE PROPERTY UNDER SECTION 69-B OF THE I. T. ACT. 3.1 THE ASSESSEE IS IN APPEAL. THE LD. CIT (APPEAL S) ELABORATELY CONSIDERED THE ISSUE AND HELD AS UNDER :- IT IS THUS, SEEN THAT THE ADDITION OF RS.14,64,0 00/- HAS BEEN MADE SOLELY ON THE BASIS OF THE VALUE OF THE PROPERTY AS DETERMINE D BY THE SUB-REGISTRAR, MEERUT FOR THE PURPOSES OF LEVY OF STAMP DUTY. OTHER THAN THIS INFORMATION / EVIDENCE THERE IS NO OTHER INFORMATION / EVIDENCE IN THE POS SESSION OF THE ASSESSING OFFICER TO PROVE THAT THE PURCHASE PRICE PAID BY THE TRANSF ERORS IS MORE THAN THE DECLARED AMOUNT. THERE IS MERIT IN THE CONTENTION OF THE LD . COUNSEL THAT SECTION 50-C IS APPLICABLE IN THE CASE OF DETERMINATION OF CAPIT AL GAINS ON SALE OF THE PROPERTY AND NOT AT THE TIME OF THE INVESTMENT. THUS SECTIO N 50-C WILL BE APPLICABLE ON THOSE ASSESSEES WHO ARE SELLING THE PROPERTY AT A S UM LESS THAN THE CIRCLE RATE. THIS DEEMING PROVISION WILL NOT APPLY IN THE CASE O F THE PURCHASE. AS THE APPELLANT IS THE PURCHASER SHE IS OUTSIDE THE PURVI EW OF SECTION 50-C. FOR HOLDING THAT SECTION 50-C IS NOT APPLICABLE IN THE CASE OF APPELLANT I RELY UPON THE FOLLOWING JUDGEMENTS :- 1. CIT VS. CHANDNI BHOCHAR (2010) 323 ITR 510 (P & H); 3 I. T. APPEAL NO. 285 (DEL) OF 2011 2. ITO VS. FITWELL LOGIC SYSTEM PVT. LTD. 1 ITR (TRIB.) 286 (DEL.); 3. THE ITAT, AHMADABAD IN THE CASE OF KAUSHIK SURESH B HAI VS. ITO [ITA. NOS. 3374 3380 / AHMADABAD / 2009 (DATED 23 /04/2010); & 4. THE RULINGS RELIED UPON BY THE LD. COUNSEL IN THE C ASE OF HANKY STREET PHARMACEUTICALS LTD. ALSO LAYS DOWN THE SAME RATIO. 3.2 CONSIDERING THE ABOVE THE LD. CIT (APPEALS) HEL D THAT IN THE ABSENCE OF ANY OTHER INFORMATION / EVIDENCE IN POSSESSION OF THE ASSESSI NG OFFICER TO SHOW THAT THE ASSESSEE HAS INVESTED THE ADDITIONAL SUM OF RS.14,64,000/- OVER AND ABOVE DISCLOSED BY HER, THERE WAS NO BASIS FOR MAKING THE ADDITION OF RS.14,64,000/- UND ER SECTION 69-B OF THE ACT. 3.3 AGAINST THE ABOVE ORDER, THE REVENUE IS IN APPE AL BEFORE US. 4. WE HAVE HEARD THE RIVAL CONTENTIONS IN THE LIGHT OF MATERIAL PRODUCED AND EVIDENCE RELIED UPON. WE FIND THAT THE ASSESSING OFFICER HA S MADE THE ADDITION SOLELY ON THE BASIS OF VALUE OF THE PROPERTY AS DETERMINED BY THE SUB REGI STRAR FOR THE PURPOSES OF STAMP DUTY. SECTION 50-C OF THE ACT IS APPLICABLE IN THE CASE OF DETERM INATION OF CAPITAL GAINS ON SALE OF PROPERTY AND NOT AT THE TIME OF INVESTMENT. IN THIS CASE WE NOTE THAT THERE IS NO OTHER EVIDENCE THAT THE ASSESSEE HAS INVESTED ANY SUM OVER AND ABOVE RS .32,00,000/- AS DISCLOSED BY HER. WE FIND THAT THE HONBLE APEX COURT IN THE CASE OF K. P. VE RGHESE VS. ITO 131 ITR 597 (SC) HAS HELD THAT WHEN THERE IS ALLEGATION OF UNDER TRANSAC TION AND THE BURDEN OF PROVING ACTUAL CONSIDERATION IS THAT OF THE REVENUE. IN THE PRESE NT CASE, WE FIND THAT THE REVENUE HAS NOT DISCHARGED THE BURDEN OF PROVING THAT MONEYS OVER A ND ABOVE DISCLOSED BY THE ASSESSEE HAVE BEEN PAID FOR THE POSSESSION OF THE PROPERTY. IN T HE BACKGROUND OF ABOVE DISCUSSION AND PRECEDENT, WE DO NOT FIND ANY INFIRMITY OR ILLEGALI TY IN THE ORDER OF THE LD. CIT (APPEALS). ACCORDINGLY, WE UPHOLD THE SAME. 4 I. T. APPEAL NO. 285 (DEL) OF 2011 5. IN THE RESULT, THIS APPEAL FILED BY THE REVENUE STANDS DISMISSED. THE ORDER PRONOUNCED IN THE OPEN COURT ON : 23 RD JUNE, 2011. SD/- SD/- [ A. D. JAIN ] [ S HAMIM YAHYA ] JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 23 RD JUNE, 2011. *MEHTA * COPY OF THE ORDER FORWARDED TO : - 1. APPELLANT. 2. RESPONDENT. 3. CIT, 4. CIT (APPEALS), 5. DR, ITAT, NEW DELHI. TRUE COPY. BY ORDER. ASSISTANT REGISTRAR, ITAT. 5 I. T. APPEAL NO. 285 (DEL) OF 2011