Sh. Abhishek Gupta, New Delhi V. ITO, New Delhi

ITA 2972/DEL/2014

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 9258 (ITAT-DELHI)
• Duration Of Justice: 5 year(s) 7 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-01-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 25-05-2017
• Assessment Year: 2007-2008
• Appeal Filed On: 13-05-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: VED PRAKASH MISHRA
• Assessee Lawyers: MANU K GIRI
• Keywords: Unexplained investment; Cost of acquisition; Valuation report; Reassessment proceedings
• Section: 153A; 69B; 13; 69; 148; 132

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL, DELHI A BEN CH, NEW DELHI BEFORE SHRI BHAVNESH SAINI, JUDICIAL MEMBER, AND SHRI N.K. BILLAIYA, ACCOUNTANT MEMBER ITA NO. 2972/DEL/2014 [ASSESSMENT YEAR: 2007-08] SHRI ABHISHEK GUPTA VS. THE I.T.O 35, RAIPUR ROAD, CIVIL LINES WARD 20(2) DELHI NEW DELHI PAN: AGRPG 9415 E [APPELLANT] [RESPONDENT] DATE OF HEARING : 07.01.2020 DATE OF PRONOUNCEMENT : 08.01.2020 ASSESSEE BY : SHRI MANU K. GIRI, ADV REVENUE BY : SHRI VED PRAKASH MISHRA, SR. DR ORDER PER N.K. BILLAIYA, ACCOUNTANT MEMBER, THIS APPEAL BY THE ASSESSEE IS PREFERRED AGAINST TH E ORDER OF THE COMMISSIONER OF INCOME TAX [APPEALS] - XXII, NEW DE LHI DATED 25.02.2014 PERTAINING TO ASSESSMENT YEAR 2007-08. 2 2. THE SUM AND SUBSTANCE OF THE GRIEVANCE OF THE AS SESSEE IS THAT THE CIT(A) ERRED IN CONFIRMING THE ACTION O F THE ASSESSING OFFICER IN INITIATING PROCEEDINGS U/S 148 OF THE INCOME TAX ACT, 1961 [HEREINAFTER REFERRED TO AS 'T HE ACT' FOR SHORT] THEREBY CONFIRMING THE ADDITION OF RS. 1.61 CRORES U/S 69B OF THE ACT ON THE BASIS OF VALUATION REPORT OF THE VALUATION OFFICER I, DELHI 3. BRIEFLY STATED, THE FACTS OF THE CASE ARE THAT T HE ASSESSEE HAD PURCHASED A PLOT AT CIVIL LINES, DELHI . THE COST OF ACQUISITION OF THE PLOT WAS DECLARED AT RS. 34 L AKHS. THE ASSESSING OFFICER FOUND THAT PART OF THE PLOT WAS P URCHASED BY SMT. SADHANA GUPTA, IN WHOSE CASE THE MATTER WAS REFERRED TO THE VALUATION OFFICER AND ON THE BASIS OF THE REPORT OF THE VALUATION OFFICER, VALUE OF THE SAID PROPERTY WAS TAKEN AT RS. 48,762/- PER SQ YARD. TAKING A LE AF OUT OF THE PROCEEDINGS IN THE CASE OF SMT. SADHANA GUPTA, ASSESSMENT WAS REOPENED. 3 4. DURING THE COURSE OF REASSESSMENT PROCEEDINGS, C OPY OF THE VALUATION REPORT WAS CONFRONTED TO THE ASSESSEE AND THE ASSESSEE WAS ASKED TO EXPLAIN AS TO WHY THE COST OF ACQUISITION OF THE PLOT MAY NOT BE TAKEN AT RS. 1.9 5 CRORES INSTEAD OF RS. 34 LAKHS. 5. ON RECEIVING NO PLAUSIBLE REPLY, THE ASSESSING OFFICER MADE ADDITION OF RS. 1.61 CRORES. 6. THE ASSESSEE CARRIED THE MATTER BEFORE THE LD. C IT(A) BUT WITHOUT ANY SUCCESS. 7. BEFORE US, THE LD. COUNSEL FOR THE ASSESSEE VEHE MENTLY STATED THAT THE ENTIRE ASSESSMENT WAS AROUND THE VALUATION REPORT GATHERED BY THE ASSESSING OFFICER IN THE CASE OF SMT. SADHAN A GUPTA. THE LD. COUNSEL FOR THE ASSESSEE POINTED OUT THAT THE A DDITIONS MADE IN THE HANDS OF SMT. SADHANA GUPTA WERE DELETE D BY THE TRIBUNAL IN ITA NO. 5266/DEL/2010 WHICH ORDER H AS BEEN AFFIRMED BY THE HON'BLE HIGH COURT OF DELHI IN ITA NO. 434/2012 VIDE ORDER DATED 06.03.2013. 4 8. PER CONTRA, THE LD. DR COULD NOT BRING ANY DISTI NGUISHING DECISION IN FAVOUR OF THE REVENUE. 9. WE HAVE GIVEN THOUGHTFUL CONSIDERATION TO THE OR DERS OF THE AUTHORITIES BELOW. WE FIND FORCE IN THE CONTENT IONS OF THE LD. COUNSEL FOR THE ASSESSEE. THE CO-ORDINATE BENCH IN THE CASE OF SMT. SADHANA GUPTA [SUPRA] VIDE ORDER D ATED 30.11.2011, HAS DECIDED A SIMILAR ISSUE IN FAVOUR O F THE ASSESSEE AND AGAINST THE REVENUE. THE RELEVANT FIN DINGS OF THE CO-ORDINATE BENCH READ AS UNDER: WE HAVE CONSIDERED THE FACTS OF THE CASE AND SUBMIS SIONS MADE BEFORE US. THE FACTS ARE THAT THE ASSESSEE HAD SHOWN PURCHASE CONSIDERATION OF A PROPERTY AT RS. 59.50 L AKH. A REFERENCE WAS MADE TO THE DVO AS THE PURCHASE CONSIDERATION APPEARED TO BE TOO LOW. THE DVO VALUE D THE PDROPERTY AT RS. 3,41,35,000/-. THE DIFFERENCE IN THE TWO AMOUNTS OF RS. 2,81,'83,000/- HAS BEEN ADDED TO TH E INCOME OF THE ASSESSEE BY RELYING ON THE PROVISION CONTAIN ED IN SECTION 69B. ALTHOUGH A NUMBER OF CASES HAVE BEEN C ITED BEFORE US, WE FIND THAT THE FACTS OF THIS CASE ARE SIMILAR TO THE FACTS IN ITA NOS. 689/TO 703/2010 DATED 18,08.2 011, A 5 COPY OF WHICH HAS BEEN PLACED BEFORE US. THE JUDGME NT READS AS UNDER:- PRESENT: MS. SURUCHI AGGARWAL, STF. STANDING COUNS EL FOR THE REVENUE MR. PIYUSH KAUSHI, ADVOCATE FOR THE RESPONDENT/ASSE SSEE IT 689/2010 ITA 690/2010 ITA702/2010 ITA703/2010 (COMMON ORDERS) IN ALL THESE CASES, ASSESSMENT WAS CARRIED OUT UNDE R SECTION 153A OF THE INCOME-TAX ACT PURSUANT TO SEARCH AT TH E PREMISES OF THE ASSESSEES CARRIED OUT BY THE DEPART MENT UNDER SECTION 132 OF THE ACT. WHILE CARRYING OUT TH E ASSESSMENT, THE ASSESSING OFFICER FOUND THAT ONE OF THE PROPERTIES, I.E., 101, GROUND FLOOR, BANGALA SAHIB ROAD, NEW DELHI, WAS ACQUIRED BY SHRI BHAGIRATH AGRAWAL AND S URAJ DEVI AT A COST OF RS. 62,50,000/-. THIS PROPERTY WAS REN TED TO INDIAN OVERSEAS BANK. THE SAID PROPERTY WAS PURCHAS ED IN THE JOINT NAMES WITH DIFFERENT SHARES GIVEN TO DIFFEREN T ASSESSEES. THE MATTER WAS REFERRED TO THE VALUATION CELL OF THE DEPARTMENT UNDER SECTION 142(1 A) .OF THE ACT. THE VALUER VALUED THE PROPERTY AT MUCH HIGHER RATE THAN THE CONSIDERATION SHOWN IN THE SALE DEED AND ON THE BAS IS 6 ADDITIONS WERE MADE IN THE HANDS OF THE ASSESSEE, U NDER SECTION 69 OF THE ACT AS UNEXPLAINED INVESTMENT. THESE ADDITIONS WERE DELETED BY THE CIT(A) AND THE ORDER OF THE CIT(A) HAS BEEN AFFIRMED BY THE ITAT. VIDE IMPUGNED ORDER THE ITAT DECIDED THE CASES OF A LL JOINT OWNERS WHO PURCHASED THE SAID PROPERTY WHICH INCLUDES SMT. SURAJ DEVI, SHRI SUSHIL KUMAR AGGARWA L, LATE SHRI SHIV NARAIN AGGARWAL ETC. THE DEPARTMENT HAD FILED APPEAL IN DIE CASE OF SMT. SURAJ DEVI UND ER SECTION; 260-A OF THE ACT TO THIS COURT WHICH WAS REGISTERED AS ITA 811/201Q AND; HAS BEEN DISMISSED BY A DIVISION BENCH OF THIS COURT VIDE ORDERS DATED 13 TH AUGUST, 2010 FOLLOWING THAT ORDER APPEALS OF OTHER CO- OWNERS/ASSESSEES I.E., ITA 155.1/2010, ITA 1370/201 0 AND IT&16&6/2610 WERE ALSO DISMISSED. SIMILAR IS THE DECISION IN THE CASE OF CIT VS. PUNE ET SABHARWAL, DATED 03.12.2010, 2011-TIOL-348-HC-DEL-I T. IT HAS BEEN HELD THAT IN ABSENCE OF ANY EVIDENCE CO MING INTO POSSESSION REGARDING PAYMENT OF EXTRA PURCHASE CONSIDERATION, THE TRIBUNAL WAS RIGHT IN HOLDING TH AT NO ADDITION CAN BE MADE NOTWITHSTANDING THE REPORT OF THE DVO. 7 10. THE ORDER OF THE TRIBUNAL WAS CHALLENGED BY THE REVENUE BEFORE THE HON'BLE HIGH COURT OF DELHI AND THE HON'BLE HIGH COURT, VIDE JUDGMENT DATED 06.03.2013 [SUPRA] DISMISSED THE APPEAL OF THE REVENUE BY HOLDING AS U NDER: 5. THE LAW SEEMS TO BE WELL SETTLED THAT UNLESS AND UNTIL THERE IS SOME OTHER EVIDENCE TO INDICATE THAT EXTRA CONSI DERATION HAD FLOWED IN THE TRANSACTION OF PURCHASE OF PROPERTY, THE REPORT OF THE DVO CANNOT FORM THE BASIS OF ANY ADDITION ON TH E PART OF THE REVENUE. IN THE PRESENT CASE THERE IS NO EVIDEN CE OTHER THAN THE REPORT OF THE DVO AND, THEREFORE, THE SAME CANN OT BE RELIED UPON FOR MAKING AN ADDITION. IN THESE CIRCUM STANCES, THE QUESTION WHICH HAS BEEN FRAMED IS DECIDED IN FAVOUR OF THE ASSESSEE AND AGAINST THE REVENUE. THE APPEAL IS DIS MISSED. 11. AS MENTIONED ELSEWHERE, THE ENTIRE ASSESSMENT R EVOLVES AROUND THE FINDINGS GIVEN IN THE CASE OF SMT. SADHA NA GUPTA. THEREFORE, RESPECTFULLY FOLLOWING THE DECISION OF T HE CO- ORDINATE BENCH AND THE HON'BLE JURISDICTIONAL HIGH COURT OF DELHI [SUPRA], WE DIRECT THE ASSESSING OFFICER TO D ELETE THE IMPUGNED ADDITION. 8 12. IN THE RESULT, THE APPEAL FILED BY THE ASSESS EE IN ITA NO. 2972/DEL/2014 IS ALLOWED. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 08.01 .2020. SD/- SD/- (BHAVNESH SAINI) (N. K. BILLAIYA) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 08 TH JANUARY, 2020. VL/ COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT ASST. REGISTRAR 4. CIT(A) ITAT, NEW DELHI 5. DR 9 DATE OF DICTATION DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE OTHER MEMBER DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.PS /PS DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR.P S/PS DATE ON WHICH THE FINAL ORDER IS UPLOADED ON THE WE BSITE OF ITAT DATE ON WHICH THE FILE GOES TO THE BENCH CLERK DATE ON WHICH THE FILE GOES TO THE HEAD CLERK THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT REGISTRAR FOR SIGNATURE ON THE ORDER DATE OF DISPATCH OF THE ORDER