Dinesh Jain (HUF), New Delhi V. DCIT CC-21, New Delhi

ITA 3258/DEL/2008

• Counselvise Citation: [2011] 135 COUNSELVISE.COM (IT) 0040 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 4 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-03-2011
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: B
• Next Hearing Date: 08-03-2011
• Assessment Year: 2001-2002
• Appeal Filed On: 31-10-2008
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: STEPHEN GEORGE
• Keywords: Unexplained investment; Gift; Business income; Income from undisclosed sources; Search and seizure; Principle of natural justice; Retrospective amendment; Fair market value; Valuation report; Validity of assessment; Onus to prove
• Section: 153A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL [ DELHI BENCH B DELHI ] BEFORE SHRI R. P. TOLANI, JM AND SHRI K. D. RANJAN, AM I. T. APPEAL NOS. 3257 & 3258 (DEL) OF 2008 ASSESSMENT YEARS : 2000-01 & 2001-02. DINESH JAIN [HUF], THROUGH DY. COMMISSIONER OF INCO ME-TAX, SHRI DINESH JAIN, VS. CENTRAL CIRC LE : 21, 201 SURYA KIRAN BUILDING, N E W D E L H I. 19KASTURBA GANDHI MARG, NEW DELHI. P A N / G I R NO. AAC HD 8125 M. A N D I. T. APPEAL NO. 3575 (DEL) OF 2008 ASSESSMENT YEAR : 2001-02. DY. COMMISSIONER OF INCOME-TAX DINESH JAIN [HUF], THROUGH CENTRAL CIRCLE : 21, VS. SHRI DINESH JAIN, N E W D E L H I. 201 SURYA KIRAN BUILDING, 19KASTURBA GANDHI MARG, NEW DELHI. P A N / G I R NO. AAC HD 8125 M. ( APPELLANTS ) ( RESPONDENTS ) ASSESSEE BY : SHRI RAJESH JAIN, C. A.; DEPARTMENT BY : SHRI STEPHEN GEORGE [CIT ] D.R.; O R D E R. PER K. D. RANJAN, AM : THESE CROSS APPEALS BY THE ASSESSEE AND THE REVENUE FOR ASSESSMENT YEARS 2000-01 AND 2001-02 ARISE OUT OF TWO SEPARATE ORDERS OF THE LD. CIT (APPEALS)II, NEW DELHI. THESE APPEALS 2 I. T. A. NOS. 3257, 3258 & 3575 (DEL) OF 2008 WERE HEARD TOGETHER AND FOR THE SAKE OF CONVENIENCE ARE DISPOSED OF, BY THIS CONSOLIDATED ORDER. 2.1 THE FIRST ISSUE, WHICH IS COMMON IN BOTH THE AP PEALS RELATES TO UPHOLDING THE LEGALITY OF ASSESSMENT PROCEEDINGS UNDER SECTION 153-A OF TH E ACT. THE RELEVANT GROUNDS OF APPEAL ARE REPRODUCED AS UNDER :- 1. THAT THE LD. CIT (APPEALS) ERRED IN UPHOL DING THE LEGALITY OF THE ASSESSMENT PROCE4EDING U/S. 153-A OF THE ACT IN SPI TE OF THE FACT THAT THE SEARCH PROCEEDINGS U/S. 132 OF THE ACT WERE ITSELF ILLEGAL , VOID AB-INITIO, BEING INITIATED ON THE BASIS OF THE SEARCH WARRANT ISSUED BY ADDL. DIRECTOR OF INCOME TAX (INVESTIGATION) WHO WAS NOT AUTHORIZED PERSON TO IS SUE SEARCH WARRANT AS PER THE RATIO OF JUDGEMENT OF THE JURISDICTIONAL HIGH COURT IN THE CASE OF (DR.) NALINI MAHAJAN 257 ITR 383; 2. THAT OTHERWISE ALSO THE SEARCH WARRANT ISSUED IN THE NAME OF THE APPELLANT FOR THE PREMISES LOCATED IN KANPUR, HAVIN G NO RELATION WITH THE APPELLANT IN ANY MANNER IS ITSELF ILLEGAL AND PROCE EDINGS INITIATED UNDER SECTION 153-A OF THE ACT CONSEQUENT TO ILLEGAL SEARCH ARE V OID AB-INITIO AND LIABLE TO BE QUASHED. 2.2 THESE APPEALS WERE DISPOSED OF BY ITAT, DELHI B ENCH B VIDE ORDER DATED 30 TH JUNE, 2009 IN ITA. NOS. 3257, 3258 AND 3575 (DEL) OF 2008 FOR ASSESSMENT YEARS 2000-01 AND 2001-02. IN THIS CASE A SEARCH WARRANT UNDER SECTION 132(1) OF THE ACT WAS SIGNED BY THE ADDL. DIRECTOR OF INVESTIGATION. DURING THE COURSE OF HEARING BEFORE THIS TRIBUNAL THE ASSESSEE TOOK A PLEA THAT PROCEEDINGS INITIATED UNDER SECTION 132(1) WERE ILL EGAL AND LIABLE TO BE QUASHED AS THE SEARCH WARRANT AUTHORIZING THE SEARCH UNDER SECTION 132(1) OF THE ACT WAS SIGNED BY THE ADDL. DIRECTOR OF INVESTIGATION, WHO WAS NOT COMPETENT TO AUTHORIZ E THE SEARCH. ITAT VIDE ORDER DATED 30 TH JUNE, 2009 IN VIEW OF DECISION OF HONBLE DELHI HIG H COURT IN THE CASE OF DR. NALINI MAHAJAN 257 ITR 123 (DEL.) ACCEPTED THE CONTENTION OF THE A SSESSEE AND ALLOWED THE APPEAL FILED BY THE ASSESSEE. DEPARTMENTAL APPEAL IN ITA. NO. 3575 ( DEL) OF 2008 WAS ALSO DISMISSED FOR THE SAME REASON. 3 I. T. A. NOS. 3257, 3258 & 3575 (DEL) OF 2008 3. AGGRIEVED BY THE ORDER OF THE ITAT, REVENUE PREF ERRED APPEAL BEFORE THE HONBLE DELHI HIGH COURT AGAINST THE ORDER DATED 30 TH JUNE, 2009 IN RESPECT OF ALL THE THREE APPEALS I.E . TWO BY THE ASSESSEE AND ONE BY THE REVENUE. HONBLE DELHI HIGH COURT VIDE ORDER DATED 12 TH AUGUST, 2010 SET ASIDE THE MATTER TO THE FILE OF THE TRIBUN AL ON THE GROUND THAT AMENDMENT TO THE ACT WAS MADE WITH RETROSPECTIVE EFFECT AUTHORIZING THE ADDL . DIRECTOR OF INVESTIGATION TO ISSUE SEARCH WARRANT UNDER SECTION 132(1) OF THE ACT. HONBLE D ELHI HIGH COURT HAS DIRECTED VIDE THEIR ORDER DATED 12 TH AUGUST, 2010 TO DECIDE THE APPEALS ON MERITS. THER EFORE, THE GROUNDS RELATING TO ISSUE OF SEARCH WARRANT U/S 132 BY ADDITIONAL DIT(INV.) B ECOMES INFRUCTUOUS AND DISMISSED AS SUCH. 4. AS DIRECTED BY HONBLE DELHI HIGH COURT, IN ORDE R TO DECIDE THE ISSUES ON MERITS THE APPEALS WERE FIXED FOR HEARING. THE FIRST ISSUE FO R CONSIDERATION IN ASSESSMENT YEAR 2000-01 RELATES TO CONFIRMING THE ADDITION OF RS.35,00,000/ - ON ACCOUNT OF GIFTS RECEIVED BY THE ASSESSEE . THE RELEVANT GROUND OF APPEAL IS REPRODUCED AS UNDE R :- 2.2 THAT LD. CIT (APPEALS) FAILED TO APPRECIATE THAT THE ADDITION MADE BY THE AO ON ACCOUNT OF GIFTS RECEIVED BY THE APPEL LANT AMOUNTING TO RS.35 LAKHS IS ENTIRELY BASED ON PRESUMPTION AND IN UTTER VIOLATION OF RULES OF NATURAL JUSTICE AS HE DID NOT PROVIDE PROPER OPPORT UNITY TO THE ASSESSEE BEFORE MAKING THE ADDITION; 5. THE FACTS OF THE CASE STATED IN BRIEF ARE THAT A SEARCH AND SEIZURE OPERATION UNDER SECTION 132(1) WAS CONDUCTED ON 9/12/2003 IN THE RE SIDENTIAL/BUSINESS PREMISES AND THE RELATED PERSONS/CONCERNS OF BEGUM GUTKA GROUP OF CASES. DU RING THE YEAR UNDER CONSIDERATION THE ASSESSEE HUF RECEIVED GIFTS OF RS.10 LAKHS FROM S HRI MOHINDER KUMAR JALAN AND RS.25,000/- FROM SHRI B. K. AGGARWAL. THE FACT OF GIFTS IN THE NAMES OF VARIOUS FAMILY MEMBERS WAS NOTICED BY THE SEARCH PARTIES. THIS COMPELLED THE ASSESSIN G OFFICER TO CARRY ON DETAILED INVESTIGATIONS IN THE MATTER. THE ASSESSING OFFICER ISSUED QUESTIONN AIRE AND STATEMENTS OF SOME OF DONORS WERE RECORDED ON VARIOUS DATES. SOME OF THE DONORS COUL D BE IDENTIFIED AND SOME COULD NOT BE. IN THE COURSE OF INVESTIGATIONS THE AO CAME TO THE CONCLUS ION THAT SHRI MOHINDER KUMAR JALAN WAS NOT 4 I. T. A. NOS. 3257, 3258 & 3575 (DEL) OF 2008 RELATED OF THE ASSESSEE, BUT ONLY A NEIGHBOR AND FO UND NO OCCASION TO GIFT AND NO RECIPROCATION WAS EVIDENCED. SIMILARLY IN THE CASE OF SHRI B. K. AGGARWAL ALSO NO RELATIONSHIP, NO OCCASION ETC. EXISTED TO WARRANT GIVING GIFTS. MOREOVER NON E OF THEM APPEARED WITH ANY CONFIRMATION THAT THEY HAD GIFTED THESE AMOUNTS TO THE ASSESSEE. TH E AO, THEREFORE, AFTER GIVING DETAILED REASONS, ADDED THE AMOUNT OF RS.35,00,000/- AS UNEXPLAINED A MOUNTS. 6. ON APPEAL IT WAS SUBMITTED THAT THE AO HAD MADE ADDITION OF RS.35 LAKHS ON ACCOUNT OF GIFTS RECEIVED BY HUF WITHOUT EXAMINING LOGICALLY T HE REPLIES GIVEN BY VARIOUS DONORS DURING THE COURSE OF STATEMENTS RECORDED BY THE AO AND BUN CH OF DOCUMENTS IN SUPPORT OF FINANCIAL CAPACITY OF THE DONORS FILED BY THEM BEFORE THE ASS ESSING OFFICER. THE ADDITION WAS MADE BY THE ASSESSING OFFICER BASED ON SURMISES AND CONJECTURES . IT WAS ALSO SUBMITTED THAT DURING THE YEAR THE ASSESSEE HAD RECEIVED TWO GIFTS OF RS.10 LAKHS AND RS.25 LAKHS FROM SHRI MOHINDER KUMAR JALAN AND SHRI BRIJINDER KUMAR AGGARWAL RESPECTIVE LY. THE COPY OF GIFT DEEDS AND OTHER DOCUMENTS RELATED TO GIFTS WERE SEIZED BY THE AUTHO RISED OFFICER DURING THE COURSE OF SEARCH PROCEEDINGS. IT WAS ALSO SUBMITTED THAT THE DONORS HAD FURNISHED THEIR BANK STATEMENTS, FINANCIAL STATEMENTS LIKE BALANCE SHEET OF THEIR FIRMS, COPY OF INCOME-TAX RETURNS FOR DEMONSTRATING THE CAPACITY OF MAKING THE GIFTS. IT WAS ALSO SUBMITTE D THAT THE DOCUMENTS FILED WERE NEVER CONFRONTED TO THE ASSESSEE BY THE AO THOUGH A SPECI AL REQUEST WAS MADE TO HIM IN RESPONSE TO SHOW CAUSE NOTICE ISSUED BY HIM. THE ASSESSEE PLAC ED RELIANCE ON THE DECISION OF ITAT IN THE CASE OF SUNITA MACHANI 184 ITR 121 AND DECISION OF THE ITAT, DELHI BENCH IN THE CASE OF MAYAWATI VS. DY. COMMISSIONER OF INCOME-TAX. 7. THE LD. CIT (APPEALS) EXAMINED THE CONTENTION O F THE ASSESSEE. HE OBSERVED THAT TWO DONORS WERE ONLY NEIGHBOURS WITHOUT ANY RELATIONSHI P WITH THE FAMILY OF THE ASSESSEE. THEREFORE, IT WAS UNIMAGINABLE TO THINK THAT NEIGHB OURS/UN-RELATED PERSONS COULD GIVE LAKH OF RUPEES TO UNKNOWN PERSONS WITHOUT ANY CONSIDERATION . FURTHER THE GIFT FLOW FROM BLOOD RELATION AND CHILDHOOD FRIENDS AND THAT TOO ONLY ON IMPORTAN T OCCASIONS. SUCH GIFTS ARE RECIPROCAL IN NATURE. MOST OF THE GIFTS ARE CASH GIFTS ONLY IN S MALL SUMS. SELDOM HUGE SUMS OF LAKHS OF RUPEES ARE GIVEN AS GIFTS ESPECIALLY TO A JOINT FAMILY. I T WAS CLARIFIED BY THE ASSESSEE THAT THE ASSESSEE 5 I. T. A. NOS. 3257, 3258 & 3575 (DEL) OF 2008 HAD NOT GIVEN GIFTS TO ANYONE. THEREFORE, CONCEPT OF RECIPROCATION WAS TOTALLY LACKING IN THE CASE OF THE ASSESSEE. HE FURTHER NOTED THAT THE AO HAD CATEGORICALLY STATED THAT NO CONFIRMATIONS WERE RECEIVED FROM THESE TWO DONORS AND, THEREFORE, QUES TION OF ESTABLISHING THEIR CREDITWORTHINESS DID NOT ARISE AT ALL. IT WAS ALSO NOTED THAT DURING TH E COURSE OF SEARCH LARGE NUMBER OF DOCUMENTS WERE FOUND EVIDENCING THE GIFTS RECEIVED BY FAMILY MEMBERS AMOUNTING TO RS.3.78 CRORES WHICH WAS A CLEAR PLANNING OF ASSESSEE GROUP TO DECLARE T HEIR UNACCOUNTED INCOME IN THE FORM OF GIFTS FROM UNKNOWN PERSONS. THE FINANCIAL CAPACITY TO GI VE LAKHS OF RUPEES WAS ALSO LACKING IN THIS CASE. HE FURTHER NOTED MERELY BECAUSE THE AMOUNTS WERE ROUTED THROUGH BANK WOULD NOT IPSO FACTO PROVE THE CREDIBILITY OF THE DONORS BEYOND DO UBT. TO GIVE LAKHS OF RUPEES AS GIFTS TO NEIGHBOURS THE PERSON SHOULD HAVE WORTH CRORES OF R UPEES HAVING SUBSTANTIAL INCOME. NO SUCH CONFIRMATIONS WERE FILED TO PROVE THE FINANCIAL SOU NDNESS OF THE DONORS. HE FURTHER NOTED THAT THE GIFTS WERE UTILIZED IN ACQUIRING IMMOVABLE PROP ERTIES AND GIFTS WERE ARRANGED FOR THAT PURPOSE. THE LD. CIT (APPEALS) FURTHER NOTED THAT EXISTENCE OF GIFT DEED WOULD NOT PROVE THE GENUINENESS OF THE TRANSACTION. IT WAS SEEN FROM T HE BANK ACCOUNTS OF THESE DONORS THAT HUGE CREDITS WERE APPEARING IN THE BANK ACCOUNTS IN ORDE R TO ISSUE CHEQUES FOR THE ASSESSEE AND HIS FAMILY MEMBERS. THE CLOSING BALANCE AFTER ISSUE OF CHEQUE IN ONE DONORS ACCOUNT WAS RS.8,275.27 AFTER GIVING GIFT OF RS.25,00,000/- AND IN OTHER ACCOUNT THE AMOUNT LEFT WAS RS.27,523.61 AFTER GIVING CHEQUE OF RS.10 LAKHS. S HRI BRIJINDER KUMAR AGGARWAL, WHO HAD GIVEN GIFT OF RS.25 LAKHS HAD DECLARED TOTAL INCOME OF RS.1,05,018/- WHICH INCLUDED BUSINESS INCOME OF RS.70,545/- AND SALARY OF RS.40,000/- FOR ASSESSMENT YEAR 1998-99 AND FOR AY 1999- 2000 THE TOTAL INCOME IS LOSS OF RS.69,22,766/-. I N CASE OF MOHINDER KUMAR JALAN THE TOTAL INCOME FOR AY 1998-99 WAS OF RS.68,820/-. INCIDENT ALLY SHRI MOHINDER KUMAR JALAN HAD ALSO GIFTED RS.25 LAKHS TO SHRI DINESH JAIN, INDIVIDUAL FOR ASSESSMENT YEAR 2001-02. 8. IN VIEW OF THESE FACTS THE LD. CIT (A) APPLIED T HE THEORY OF HUMAN PROBABILITY TO THE FACTS OF THE CASE. THESE PERSONS WERE HAVING MEAGER CASH BALANCES IN THEIR BANK ACCOUNTS AND SUCH LOW INCOME PERSONS COULD NOT GIVE LAKHS OF RUPEES A S GIFTS TO UNKNOWN PERSONS. THERE WAS NO RELATIONSHIP BETWEEN THE DONORS AND DONEES. THE LD . CIT (APPEALS), THEREFORE, CAME TO THE CONCLUSION THAT THE GIFTS WERE NOT GENUINE. THESE GIFTS WERE NOTHING, BUT ASSESSEES OWN MONEY RECEIVED BACK UNDER THE GUISE OF GIFTS FROM UN-KNOW N PERSONS. HE PLACED RELIANCE ON SEVERAL 6 I. T. A. NOS. 3257, 3258 & 3575 (DEL) OF 2008 DECISIONS INCLUDING THE DECISIONS OF HONBLE DELHI HIGH COURT IN THE CASE OF ANIL KUMAR 292 ITR 552 (DEL.) AND RAJIV TANDON VS. ACIT 294 ITR 48 8; CHAINSUKH RATHI 270 ITR 368; P. MOHAN KALA 291 ITR 278 (SC). HE ACCORDINGLY CON FIRMED THE ADDITION OF RS.35 LAKHS. 9. BEFORE US THE LD. AR OF THE ASSESSEE REITERATED THE SIMILAR ARGUMENTS AS WERE MADE BEFORE THE LD. CIT (A). ON THE OTHER HAND, THE LD. CIT(DR ) SUPPORTED THE ORDER OF THE LD. CIT (A). 10. WE HAVE HEARD BOTH THE PARTIES AND GONE THROUGH THE MATERIAL AVAILABLE ON RECORD. FROM THE FACTS STATED ABOVE, IT IS CLEAR THAT THE ASSESS EE-HUF HAS ALLEGED TO HAVE RECEIVED GIFTS FROM SHRI MOHINDER KUMAR JALAN AND SHRI B. K. AGGARWAL O F RS.10 LAKHS AND RS.25 LAKHS RESPECTIVELY. SHRI MOHINDER KUMAR JALAN AND SHRI V . K. AGGARWAL ARE NEIGHBOURS OF THE ASSESSEE HAVING NO RELATIONSHIP. THE ASSESSEE HUF A ND ITS FAMILY MEMBER HAVE RECEIVED GIFTS OF RS.3,78,00,000/- IN AY 1998-99 TO AY 2004-05. THE AMOUNTS OF ALLEGED GIFTS HAVE BEEN UTILIZED FOR PURCHASE OF PROPERTY. THE AO HAS RECORDED HIS FINDING OF FACT THAT THE ASSESSEE HAS NOT FILED ANY CONFIRMATIONS FROM THESE PARTIES. IN THE BANK ACCOUNTS THE MONEY WAS TRANSFERRED AND AFTER ISSUE OF CHEQUES A SMALL AMOUNT WERE LEFT. THE FINA NCIAL POSITION OF THE DONORS IS NOT SOUND. FURTHER THE DONORS BELONG TO LOW STRATA INCOME THAN THE DONEE. MERELY FILING OF AFFIDAVITS OR COPY OF BANK ACCOUNTS WILL NOT BE SUFFICIENT TO PRO VE THAT GIFTS ARE GENUINE. HONBLE SUPREME COURT IN THE CASE OF CIT VS. P. MOHAN KALA (SUPRA) HAS HELD THAT THE BURDEN IS ON THE ASSESSEE TO TAKE THE PLEA THAT EVEN IF THE EXPLANATION IS NOT A CCEPTED THE MATERIAL AND ATTENDING CIRCUMSTANCES AVAILABLE ON RECORD DO NOT JUSTIFY THE SUM FOUND CR EDITED IN THE BOOKS BEING TREATED AS RECEIPT OF INCOME NATURE. HONBLE DELHI HIGH COURT IN THE CAS E OF RAJIV TANDON VS. ACIT (SUPRA) HAS HELD THAT WHERE DONORS HAVE ABSOLUTELY NO CONNECTIO N WITH THE ASSESSEE AND THEY HAD MADE GIFTS TO THE ASSESSEE ONLY BECAUSE HE NEEDED MONEY TO BUY A HOUSE AND THEY WANTED TO HELP HIM. THIS WAS NOT ONLY QUITE UNUSUAL, BUT ALSO QUITE UNNATURA L. IT WAS INCREDIBLE THAT A COMPLETE STRANGER WOULD GIFT LAKHS OF RUPEES TO A PERSON ONLY BECAUSE THAT PERSON WANTED THE AMOUNT FOR PURCHASE OF A HOUSE. IN VIEW OF THESE FACTS HONBLE DELHI H IGH COURT HAS HELD THAT TAXING AUTHORITIES WERE ENTITLED TO LOOKING TO THE SURROUNDING CIRCUMSTANCE S WHICH THEY DID AND CAME TO THE CONCLUSION THAT GIFTS COULD NOT BE SAID TO BE GENUINE. THE RE ASON OFFERED BY THE ASSESSEE DID NOT APPEAR TO 7 I. T. A. NOS. 3257, 3258 & 3575 (DEL) OF 2008 BE REASONABLE MUCH LESS ACCEPTABLE. THERE WAS NO E RROR IN THE VIEW TAKEN BY THE TRIBUNAL. HONBLE DELHI HIGH COURT IN THE CASE OF CIT VS. ANI L KUMAR HAS HELD THAT THERE WAS NOTHING ON RECORD TO SHOW AS TO WHAT WAS THE FINANCIAL CAPACIT Y OF THE DONOR, WHAT WAS THE CREDITWORTHINESS OF THE DONORS, WHAT KIND OF RELATIONSHIP THE DONOR S HAD WITH THE ASSESSEE, WHAT WERE THE SOURCES OF FUNDS GIFTED TO THE ASSESSEE AND WHETHER THEY HA D CAPACITY OF GIVING LARGE AMOUNT OF GIFTS TO THE ASSESSEE. FURTHER THE ASSESSEE WAS ASKED TO AP PEAR IN PERSON BEFORE THE AO, BUT NEVER APPEARED. THE ADDITION MADE BY THE AO WAS JUSTIFIE D. SIMILARLY, HONBLE PUNJAB & HARYANA HIGH COURT IN THE CASE OF GURBACHAN SINGH JAGGI VS. CIT 165 TAXMAN 505 (P & H) HAS HELD THAT THE GIFTS RECEIVED BY ASSESSEES DAUGHTER FROM NON-RESIDENT WITH WHOM SHE HAD NO RELATION AND THE INCOME OF THE NON-RESIDENT DID NOT COMMENSU RATE WITH THE GIFT MADE AND THAT GIFT WAS MADE WITHOUT ANY SPECIFIC REASON. THE ADDITION MAD E ON THE GROUND THAT THE GIFT WAS BOGUS WAS UPHELD BY HONBLE PUNJAB & HARYANA HIGH COURT. 11. IF THE FACTS OF THE CASE ARE EXAMINED IN THE LI GHT OF DECISIONS OF HONBLE DELHI HIGH COURT AND ALSO OTHER HIGH COURTS, IT IS CLEAR THAT THE GI FTS HAVE FLOWN FROM LOW STRATA INCOME DONORS TO HIGH STRATA INCOME DONE. THERE IS NO RELATIONSHIP BETWEEN THE DONORS AND DONEE. THE GENUINENESS OF THE TRANSACTION AND CREDITWORTHINESS OF THE DONORS HAVE NOT BEEN PROVED. THE AO AS WELL AS THE LD. CIT (A) HAVE RIGHTLY APPLIED THE THEORY OF HUMAN PROBABILITIES TO THE FACTS OF THE ASSESSEES CASE. THERE WAS NO OCCASION IN THE FAMILY. EVEN ON MARRIAGES ETC. A SMALL GIFTS ARE EXCHANGED. THE ASSESSEE HAD NOT GIFTED ANY AMO UNT TO THE DONORS PRIOR TO OR AFTER THE ALLEGED DATE OF GIFTS. THEREFORE, IT IS A CASE OF A BOGUS GIFT THROUGH WHICH THE ASSESSEE HAD ROUTED HIS UNACCOUNTED MONEY AND HAS RECEIVED BACK UNDER THE G UISE OF GIFTS FROM UNKNOWN PERSONS. THEREFORE, IN OUR CONSIDERED OPINION THE LD. CIT (A ) IS JUSTIFIED IN CONFIRMING THE ADDITION. WE UPHOLD THE ORDER OF LD CIT(A). 12. THE NEXT ISSUE FOR CONSIDERATION WHICH COMMON I N ALL APPEALS RELATES TO CHARGING OF INTEREST UNDER SECTION 234-B OF THE ACT. LD. CIT ( A) HAS DIRECTED THE AO TO RE-WORK THE INTEREST AS PER PROVISIONS OF SECTION 234-B(3) ON AMOUNT OF TAX DETERMINED ON TOTAL INCOME U/S 153A EXCEEDS THE TAX DETERMINED U/S 143(1) FOR THE PERIO D FROM DATE OF INTIMATION UNDER SECTION 8 I. T. A. NOS. 3257, 3258 & 3575 (DEL) OF 2008 143(1) OF THE ACT TILL THE DATE OF ORDER UNDER SECT ION 153-A OF THE ACT. THE DIRECTION GIVEN BEING AS PER PROVISIONS OF SECTION 234B(3), WE DO NOT FIN D ANY INFIRMITY IN THE ORDER OF CIT(A) AND WE UPHOLD THE SAME. 13. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE FOR ASSESSMENT YEAR 2000-01 IS DISMISSED. 14. NOW COMING TO THE CROSS APPEALS FILED BY THE AS SESSEE AND THE REVENUE FOR ASSESSMENT YEAR 2001-02 THE RELEVANT GROUNDS OF APPEAL ARE REP RODUCED AS UNDER :- ASSESSEES APPEAL [ASSESSMENT YEAR : 2001-02] : 3.3 THAT THE LD. CIT (APPEALS) ERRED IN UPHOLDI NG ADDITION OF RS.52,90,000/- AS UNEXPLAINED INVESTMENT ON ACCOUNT OF PURCHASE OF PROPERTY I.E. FLAT NO. 3 & 9 (GROUND FLOOR) PALM CO URT, SUKHRALI CHOWK, GURGAON OUT OF TOTAL ADDITION MADE BY THE AO OF RS. 1,84,36,910/-, RS.42,90,000/- AS UNEXPLAINED INVESTMENT ON ACCOUNT OF PURCHASE OF PROPERTY I.E. FLAT NO. 303 AND 309 (THIRD FLOOR), P ALM COURT, SUKHRALI CHOWK, GURGAON OUT OF TOTAL ADDITION MADE BY THE AO OF RS.1,65,83,500/- AND RS.70,20,000/- AS UNEXPLAINED INVESTMENT ON ACC OUNT OF PURCHASE OF PROPERTY NO. M-64, GREATER KAILASH-II, NEW DELHI, O UT OF TOTAL ADDITION MADE BY THE AO OF RS.96,25,000/- IN SPITE OF THE CA TEGORICAL FINDING THAT THE FAIR MARKET VALUE AS PER INCOME TAX ACT CANNO T BE FIXED BY THE % OF YIELD ON INVESTMENT; 3.4 THAT THE LD. CIT (APPEALS) FAILED TO APP RECIATE THAT ADDITION UNDER SECTION 69-B OF THE ACT CANNOT BE MADE ON PRESUMPTI ONS AND CONJECTURES UNLESS AND UNTIL THERE IS CONCLUSIVE MATERIAL TO SU PPORT THE FINDING OF THE AO THAT THE APPELLANT HAS MADE INVESTMENT MORE THAN THE INVESTMENT STATED IN THE SALE DEED. REVENUES APPEAL [ASSESSMENT YEAR : 2001-02] : ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E, THE LD. CIT (APPEALS) HAS ERRED IN :- I) TO COMPUTE THE VALUE OF UNEXPLAINED INVESTMENT IN P ROPERTY AT FLAT NO.3 & 9, PALM COURT, GURGAON @ 2375/- PER SQ. FT. @ RS. 2,000/- PER SQ. FT. FOR THE FLAT NO. 303 & 309 PALM COURT, GURGAON, @ 4,000 /- PER SQ. FT. IN RESPECT OF PROPERTY NO. M-64, G.K.-II, NEW DELHI IN STEAD OF PROVISIONS OF RULE 3 OF PART B OF THE 3 RD SCHEDULE TO THE WEALTH TAX ACT; 9 I. T. A. NOS. 3257, 3258 & 3575 (DEL) OF 2008 15. THE FACTS OF THE CASE STATED IN BRIEF ARE THAT DURING THE COURSE OF ASSESSMENT PROCEEDINGS THE ASSESSING OFFICER NOTED THAT THE ASSESSEE HAD P URCHASED FLAT NOS. 3 AND 9, PALM COURT, SUKHRALI CHOWK, GURGAON. THIS PROPERTY WAS PURCHAS ED FOR RS.38,49,000/-. THE AO FURTHER NOTED THAT EVEN BEFORE THE DATE OF PURCHASE THE PRO PERTY WAS YIELDING HEFTY RETURNS IN THE FORM OF RENT. THE ANNUAL RENT YIELDED BY THIS PROPERTY WAS RS.15,61,714/- WHICH WORKS OUT TO 40.6 PER CENT. THE ASSESSING OFFICER, THEREFORE, ASKED THE ASSESSEE TO EXPLAIN AS TO WHY THE MARKET VALUE OF THE PROPERTY SHOULD NOT BE DETERMINED AS PER 3 RD SCHEDULE OF THE WEALTH-TAX ACT. THE ASSESSEE IN RESPONSE TO THE QUERY RAISED SUBMITTED THAT THE ASSESSEE HAD NOT PAID ANYTHING OVER AND ABOVE THE DOCUMENTED CONSIDERATION. THEREFORE, THE ASSES SEE HAD NOT GIVEN ANY REPLY AS TO WHY THE VALUATION SHOULD NOT BE TAKEN BY APPLYING PROVISION S OF RULE 3 OF PART B OF 3 RD SCHEDULE TO THE WEALTH-TAX ACT. THE AO ALSO REFERRED THE MATTER TO THE DVO. SINCE THE REPORT OF THE DVO DID NOT COME, THE ASSESSING OFFICER BY APPLYING RULE 3 OF PART B OF 3 RD SCHEDULE OF THE W.T. ACT ESTIMATED THE VALUE OF THE PROPERTIES AT RS.1,84,36 ,910/- BY MULTIPLYING 12.5 TO THE ANNUALIZED RENT OF RS.14,74,952/-. THE AO, THEREFORE, ADDED A MOUNT OF RS.1,45,87,912/- BEING DIFFERENCE BETWEEN RS.1,84,36,910 AND RS.38,49,000/-. SIMILARL Y DURING THE YEAR THE ASSESSEE ACQUIRED FLAT NO. 303 AND 309, PALM COURT, SUKHRALI CHOWK, GURGAO N FOR A SUM OR RS.34,10,000/-. THE AO BY APPLYING THE WEALTH-TAX RULES DETERMINED THE VAL UE OF THE PROPERTY AT RS.1,65,83,500/- AND ADDED THE AMOUNT OF RS.1,30,73,50/- BEING THE DIFFE RENCE BETWEEN THE PRICE PAID AND THE VALUE OF PROPERTY DETERMINED AS PER RENT CAPITALIZATION METH OD. LIKEWISE, THE ASSESSEE ALSO PURCHASED PROPERTY NO. M-64, GREATER KAILASH-II, NEW DELHI, F OR CONSIDERATION OF RS.10 LAKH. THE AO APPLIED RENT CAPITALIZATION METHOD AND ESTIMATED TH E VALUE OF THE PROPERTY AT RS.1,06,25,000/- WHICH RESULTED IN AN ADDITION OF RS.96,25,000/-. 16. AGGRIEVED BY THE ORDER OF THE AO, THE ASSESSEE PREFERRED APPEAL BEFORE THE LD. CIT (A). IT WAS SUBMITTED THAT THE AO HAD MADE ADDITION PURE LY ON SURMISES AND CONJECTURES AND THE SAME IS NOT BASED ON ANY COGENT MATERIAL. ACCORDING TO HIM THE DEPARTMENT HAS SEARCHED ALL THE PREMISES OF THE ASSESSEE AND THEIR GROUP CONCERNS A ND THERE WAS NO MATERIAL FOUND IN CONSEQUENCE TO SEARCH, WHICH SUGGESTED THAT THE ASS ESSEE HAD INVESTED UNACCOUNTED MONEY FOR PURCHASING THE SAID PROPERTIES. ACCORDING TO HIM T HE PROVISIONS OF SECTION 69-B OF THE ACT ARE 10 I. T. A. NOS. 3257, 3258 & 3575 (DEL) OF 2008 ATTRACTED ONLY WHEN CONDITION ENUMERATED IN SECTION 69-B DO FACTUALLY EXISTED. THE ONUS TO PROVE THE EXISTENCE OF THE CIRCUMSTANCES WAS SQUARE LY ON THE DEPARTMENT. THERE WAS NO ROOM FOR MAKING PRESUMPTION FOR ESTIMATING HYPOTHETICAL VALUE OF THE PROPERTY. THE AO WAS DUTY BOUND TO ESTABLISH BY CONCRETE EVIDENCE THAT REAL I NVESTMENT MADE WAS MORE THAN WHAT WAS SHOWN IN THE REGISTERED SALE DEEDS. THE AO HAD RES ORTED TO METHOD OF ASCERTAINING FAIR MARKET VALUE AS CONTAINED IN SCHEDULE 3 OF W. T. ACT FOR M AKING ADDITION ON ACCOUNT OF UNACCOUNTED INVESTMENT WITHOUT BRINGING ANY EVIDENCE ON RECORD. THE AO HAD NOT MADE ANY ENQUIRIES FROM THE SELLER IN SPITE OF REQUEST MADE BY THE ASSESSEE IN RESPONSE TO SHOW-CAUSE NOTICE ISSUED TO HIM. PROVISIONS OF SECTION 69-B DO NOT ALLOW THE AO FOR ADOPTION OF FAIR MARKET VALUE IN SUBSTITUTION OF ACTUAL SALE CONSIDERATION REGISTERED IN SALE DOC UMENTS. IT WAS FURTHER SUBMITTED THAT THE PROPERTY WAS PURCHASED BY THE ASSESSEE BY REGISTERE D SALE DEED AND THE VALUATION OF THE PROPERTIES HAVE BEEN DULY ACCEPTED BY THE SUB REGIS TRAR KEEPING IN VIEW THE CIRCLE RATE DECLARED BY THE STATE GOVT. THEREFORE, NO ADVERSE VIEW COUL D BE DRAWN IN THE CASE OF THE ASSESSEE. WITHOUT PREJUDICE TO THIS CONTENTION, THE ASSESSEE FURTHER OBJECTED TO THE MANNER THAT GROSS MAINTAINABLE RENT WAS CALCULATED BY THE AO DUE TO T HE SIMPLE FACT THAT LIABILITY ON ACCOUNT OF REPAIRS OF SAID FLATS HAD BEEN PRESUMED ON TENANT I N THE CONTRADICTION OF THE FACT THAT THE SAME WAS BORNE BY THE ASSESSEE. IN VIEW OF THESE SUBMIS SIONS IT WAS SUBMITTED THAT THE AO HAD WRONGLY APPLIED THE PROVISIONS OF THE W. T. ACT IN ORDER TO DETERMINE THE SALE CONSIDERATION. 17. ON MERITS IT WAS ALSO SUBMITTED THAT THE ASSESS EE HAD ACQUIRED PROPERTIES FROM BUILDER ON GROUND FLOOR AT THE RATE OF RS.1,000/- PER SQ. FT. AND ON THIRD FLOOR AT THE RATE OF RS.900/- PER SQ. FT. IT WAS ALSO SUBMITTED THAT THE OTHER FAMILY MEMBERS HAVE ALSO ACQUIRED PROPERTIES IN THE SAME COMPLEX AT THE RATE OF RS.900/- TO RS.1,000/- PER S Q. FT. THE AUTHORIZED REPRESENTATIVE ALSO RELIED ON THE ORDER PASSED BY THE LD. CIT (A) IN ITA. NO. 17/07-08 IN THE CASE OF P. C. JAIN, HUF ON 13 TH MARCH, 2008 WHEREIN THE VALUE OF THE PROPERTY WAS ESTIMATED IN RESPECT OF FLAT SITUATED ON GROUND FLOOR AT RS.2,375/- PER SQ. FT. IN PALM COUR T COMPLEX, GURGAON, WITHOUT PREJUDICE TO THE MAIN CONTENTION THAT THERE COULD NOT BE ANY ADDITIO N ON ANY PRESUMPTION UNDER SECTION 69-B OF THE ACT. SIMILARLY, RELIANCE WAS PLACED ON THE CAS E OF CIT VS. SMT. LATA JAIN FOR AY 2002-03 IN APPEAL NO. 113/07-08 DATED 23 RD JULY, 2008 WHEREIN THE RATE FOR FLAT SITUATED IN T HIRD FLOOR WAS 11 I. T. A. NOS. 3257, 3258 & 3575 (DEL) OF 2008 ADOPTED AT RS.2,000/- PER SQ. FT., WITHOUT PREJUDIC E TO THE MAIN SUBMISSION. SIMILAR ARGUMENTS WERE ADVANCED IN RESPECT OF PROPERTY SITUATED IN G. K.-II. 18. THE LD. CIT (A) CONSIDERED THE SUBMISSIONS MADE BY THE ASSESSEE. HE ESTIMATED THE FLAT ON GROUND FLOOR AND THIRD FLOOR ON THE BASIS OF THE VALUATION ADOPTED IN THE CASE OF P. C. JAIN, HUF AND SMT. LATA JAIN AS THE PROPERTIES WERE ACQUI RED IN THE SAME COMPLEX AND DURING THE SAME PERIOD. THE LD. CIT (A) APPLIED THE RATE OF RS.2,375/- PER SQ. FT. IN RESPECT OF FLAT NOS. 3 AND 9 SITUATED ON GROUND FLOOR OF PALM COURT COMPLE X, GURGAON. AS REGARDS FLAT SITUATED ON THE THIRD FLOOR I.E. FLAT NOS. 303 AND 309, HE APPLIED THE RATE OF RS.2,000/- PER SQ. FT. THE LD. CIT (A) DIRECTED THE AO TO ESTIMATE THE INVESTMENT OF THESE PROPERTIES AT RS.91,39,000/- AND AT RS.78,00,000/- INSTEAD OF RS.1,84,36,910/- AND RS.1 ,65,83,500/- ADOPTED BY HIM. HE, THEREFORE, CONFIRMED THE ADDITION ON ACCOUNT OF UNEXPLAINED IN VESTMENT AT RS.52,90,000/- IN RESPECT OF FLAT NOS. 003 AND 009 AND RS.42,90,000/- IN RESPECT OF F LAT NOS. 303 AND 309. AS REGARDS PROPERTY BEARING NO. M-64, G.K.-II, THE LD. CIT (A) APPLIED THE RATE OF RS.4,000/- PER SQ. FT. AS AGAINST DECLARED RATE OF RS.498.57 PER SQ. FT. HE, THEREFO RE, ESTIMATED THE VALUE OF THE PROPERTY AT RS.80,20,000/- AS AGAINST RS.10,00,000/- ADMITTED B Y THE ASSESSEE AND RS.1,06,25,000/- ADOPTED BY THE AO. THE LD. CIT (A) THEREFORE, CONFIRMED TH E ADDITION OF RS.70,20,000/- IN PLACE OF RS.96,25,000/- MADE BY THE AO. 19. AGGRIEVED BY THE ORDER OF THE LD. CIT (A) THE A SSESSEE AS WELL AS THE REVENUE IS IN APPEAL BEFORE US. THE ASSESSEE IS IN APPEAL AGAINST THE S USTENANCE OF THE ADDITION MADE BY THE LD. CIT (A) AND THE REVENUE IS IN APPEAL AGAINST DELETION O F ADDITION. 20. DURING THE COURSE OF HEARING THE LD. AR OF THE ASSESSEE SUBMITTED THAT THE LD. CIT (A) HAS SUBSTITUTED THE SALE CONSIDERATION AS MENTIONED IN THE SALE DEEDS BY MARKET PRICE, RELYING ON HIS DECISION IN THE CASE OF SHRI DINESH JAIN. IT WAS S UBMITTED THAT THE ITAT, DELHI BENCH B IN THE CASE OF SHRI DINESH JAIN HAS DELETED THE ADDITION O N THE GROUND THAT ONUS RESTED ON THE REVENUE TO PROVE THAT UNDER-HAND MONEY HAS BEEN PASSED ON B Y THE ASSESSEE AND IN THE ABSENCE OF THAT 12 I. T. A. NOS. 3257, 3258 & 3575 (DEL) OF 2008 BURDEN HAVING BEEN DISCHARGED, IT WOULD BE LEGALLY IMPERMISSIBLE TO MAKE ANY INFERENCES AGAINST THE ASSESSEE. IT HAS FURTHER BEEN SUBMITTED THAT T HE AO HAD MADE REFERENCE TO THE VALUATION CELL AND THE LD. COMMISSIONER OF INCOME-TAX, CENTRAL-II VIDE HIS LETTER DATED 2/01/2009 AS DIRECTED THE ASSESSING OFFICER FOR WITHDRAWAL OF REFERENCE M ADE TO THE VALUATION OFFICER. ON THE OTHER HAND, THE LD. CIT DR SUBMITTED THAT THE LD. CIT H AS NO JURISDICTION TO WITHDRAW THE REFERENCE MADE TO THE VALUATION OFFICER. HE SUPPORTED THE OR DER OF THE LD. ASSESSING OFFICER. 21. WE HAVE HEARD BOTH THE PARTIES AND GONE THROUGH THE MATERIAL AVAILABLE ON RECORD. IN THE INSTANT APPEALS THE AO HAS ESTIMATED THE VALUE OF I NVESTMENTS IN THE IMPUGNED PROPERTIES BY APPLYING PROVISIONS OF SCHEDULE 3 OF WEALTH-TAX ACT . THE LD. CIT (A), HOWEVER, FOLLOWING HIS DECISION IN THE CASE OF SHRI DINESH JAIN AND IN THE CASE OF SMT. LATA JAIN HAD ESTIMATED THE VALUE OF THE PROPERTY. THE AO HAD NOT BROUGHT ON R ECORD ANY MATERIAL TO SUGGEST THAT THE VALUE SHOWN IN THE CONVEYANCE DEEDS WAS LOWER THAN THE AM OUNT PASSED ON BY THE ASSESSEE TO THE SELLERS. ITAT, DELHI BENCH B IN THE CASE OF SHRI DINESH JAIN AND SMT. LATA JAIN IN CONSOLIDATED ORDER DATED 30 TH SEPTEMBER, 2009 IN ITA. NO. 3422 (DEL) OF 2008 ETC . HAS DELETED THE SIMILAR ADDITIONS BY OBSERVING, AS UNDER :- 5. WE HAVE CONSIDERED THE RIVAL CONTENTIONS AND CAREFULLY GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW. FROM THE RECORD, WE FOUND THAT ON THE BASIS OF SALE DEED FOUND DURING THE COURSE OF SEARCH IN RESP ECT OF PURCHASE OF VARIOUS PROPERTIES, THE AO FOUND THAT ASSESSEE WAS IN RECEI PT OF RENTAL INCOME IN RESPECT OF THESE PROPERTIES. AS PER AO, THE DISPROPORTION ATE YIELD OF INCOME FROM THESE PROPERTIES INDICATES THAT THE AMOUNT INVESTED HAS B EEN SUPPRESSED. ACCORDINGLY, HE APPLIED PROVISIONS OF RULE 3 OF PART (B) OF THE 3 RD SCHEDULE TO THE WEALTH TAX RULES FOR THE PURPOSE OF DETERMINING THE FAIR MARKE T VALUE OF THESE PROPERTIES. THE ASSESSING OFFICER ALSO MAKE A REFERENCE TO THE DVO, AS THE REFERENCE WAS MADE ONE DAY PRIOR TO THE FRAMING OF ASSESSMENT, HE WAS NOT IN RECEIPT OF ANY DVOS REPORT. IT IS UNDISPUTED FACT THAT DEPARTMEN T HAS NOT REFERRED ANY INCRIMINATING MATERIAL HAVING BEEN FOUND DURING THE COURSE OF SEARCH AND INVESTIGATION MADE THEREAFTER WHICH INDICATE THAT A SSESSEE HAD PAID ANYTHING MORE THAN WHAT HAS BEEN STATED IN THE SALE DEEDS. IT WAS ALSO NOT THE ALLEGATION OF THE DEPARTMENT THAT THERE WAS ANY DIFFERENCE IN THE VALUE OF THE PROPERTY AS ACCEPTED BY THE SUB REGISTRAR FOR THE PURPOSE OF ST AMP DUTY VALUATION. IN VIEW OF 13 I. T. A. NOS. 3257, 3258 & 3575 (DEL) OF 2008 THE FACT THAT NO MATERIAL WAS FOUND INDICATING ANYT HING PAID OVER AND ABOVE THE REGISTERED SALE PRICE OF THE PROPERTY SO ACQUIRED, KEEPING IN VIEW OF THE DECISION OF HONBLE SUPREME COURT IN THE CELEBRATED JUDGMENT OF K.P.VERGHESE (SUPRA) WHEREIN IT WAS HELD THAT ONUS LIES ON THE DEPARTMEN T TO PROVE THAT SOME CONSIDERATION OVER AND ABOVE THE CONSIDERATION STAT ED IN THE SALE DEED HAVE BEEN INVESTED, NO ADDITION CAN BE MADE ON PRESUMPTIONS A ND SUSPICIONS. IN THE LATEST CASE OF CU VS. SHAKUNTALA DEVI (ITA NO.345/2007), H ONBLE DELHI HIGH COURT HELD IT MAY BE RELEVANT TO NOTE THAT A DIVISION BE NCH OF THE COURT COMPRISING DR.ARIJIT PRASAYATH AND JUSTICE D.K.JAIN, AS THEIR LORDSHIPS THEN WERE RETREATED THAT THERE MUST BE A FINDING OF THE REVENUE THAT TH E ASSESSEE HAD RECEIVED AMOUNTS OVER AND ABOVE THE CONSIDERATION STATED IN THE SAJE DEED, FOLLOWING THE RATIO OF K.P.VERGHESE (SUPRA). K.P.VERGHESE (SUPRA) HAS ALSO BEEN FOLLOWED AND APPLIED BY THE SUPREME COURT IN CIT VS. GODAVARI CO RPORATION LIMITED 200 ITR 567. THE DIVISION BENCH OF HONBLE DELHI HIGH COURT IN CIT VS. ASHOK KHETRAPAL 294 ITR 143 OBSERVED THAT BY REFERRING TO THE REPOR T OF VALUATION OFFICER IN THE ABSENCE OF AIIY INCRIMINATING DOCUMENTS FOUND IN TH E COURSE OF A SEARCH NO ADDITION COULD BE MADE BY TREATING INVESTMENT AS UN DISCLOSED ON THE BASIS OF ANY DYCS REPORT. THE DECISION IN CIT VS. MAR JAM 287 I TR 285 IS ALSO TO THE SAME EFFECT. IN CIT VS. SHIVAKAMI COMPANY (P) LTD. 151 I TR 79(SC), THEIR LORDSHIPS HAVE ONCE AGAIN REITERATED THAT ONUS WHETHER THE AS SESSEE HAD RECEIVED MORE CONSIDERATION THAN WHAT WAS STATED IN THE DOCUMENTS OF TRANSFER, RESTED ON THE REVENUE AND IN THE ABSENCE OF THAT BURDEN HAVING BE EN BEING DISCHARGED, IT WOULD BE LEGALLY IMPERMISSIBLE TO MAKE ANY INFERENC ES AGAINST THE ASSESSEE. 22. SINCE THE ISSUE IS COVERED BY THE DECISION OF T HE ITAT IN THE CASE OF SHRI DINESH JAIN (SUPRA) AND THE FACTS OF THE CASE ARE IDENTICAL TO THE FACTS OF SHRI DINESH JAIN, RESPECTFULLY FOLLOWING THE PRECEDENT, IT IS HELD THAT THE LD. CI T (A) WAS NOT JUSTIFIED IN ESTIMATING THE VALUE OF THE INVESTMENTS IN THE PROPERTIES CONTRARY TO THE A MOUNT MENTIONED IN THE CONVEYANCE DEEDS. ACCORDINGLY, WE SET ASIDE THE ORDER OF THE LD. CIT (APPEALS) AND DIRECT THE AO TO ACCEPT THE VALUE OF THE PROPERTIES AS DECLARED IN SALE DEEDS. 23. AS REGARDS THE ARGUMENTS OF THE LD. AR OF THE A SSESSEE THAT THE LD. CIT, CENTRAL-II HAS WITHDRAWN THE REFERENCE MADE TO VALUATION OFFICER U NDER SECTION 142A OF THE ACT, HAS NO RELEVANCE TO THE ISSUE BEFORE US, AS THE ADDITION H AS NOT BEEN ON THE BASIS OF THE VALUATION REPORT, 14 I. T. A. NOS. 3257, 3258 & 3575 (DEL) OF 2008 BUT HAS BEEN MADE ON THE BASIS OF WEALTH-TAX RULES. THEREFORE, NO COGNIZANCE OF WITHDRAWAL OF REFERENCE MADE UNDER SECTION 142A TO THE VALUATION OFFICER CAN BE TAKEN IN THE INSTANT CASE. 24. IN THE RESULT, THE APPEAL FILED BY THE ASSESSE E FOR ASSESSMENT YEAR 2001-02 IS PARTLY ALLOWED AND THE APPEAL FILED BY THE REVENUE IS DISM ISSED. THE ORDER PRONOUNCED IN THE OPEN COURT ON : 25 TH MARCH, 2011. SD/- SD/- [ R. P. TOLANI ] [ K. D. RANJAN ] JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : _25 TH MARCH, 2011 . *MEHTA * COPY OF THE ORDER FORWARDED TO : - 1. APPELLANTS. 2. RESPONDENTS. 3. CIT, 4. CIT (APPEALS), 5. DR, ITAT, NEW DELHI. TRUE COPY. BY ORDER. ASSISTANT REGISTRAR, ITAT.