Smt. Seema Devi Bansal, New Delhi V. ACIT, New Delhi

ITA 342/DEL/2012

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 1226 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 1 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-02-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: G
• Next Hearing Date: 07-01-2013
• Assessment Year: 2006-2007
• Appeal Filed On: 23-01-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAMESH CHAND
• Assessee Lawyers: RANU JA IN
• Keywords: Unexplained investment; Sale consideration of property below Jantri Value; Value adopted by valuation officer; Search and seizure; Document seized; Question of law; Fair market value; Valuation report; Onus to prove; Reassessment proceedings
• Section: 50C; 153A; 234B; 69; 132

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: G : NEW DELHI BEFORE SHRI I. C. SUDHIR, JUDICIAL MEMBER AND SHRI SHAMIM YAHYA, ACCOU NTANT MEMBER ITA NO. 342/DEL/2012 ASSESSMENT YEAR: 2006-07 SMT. SEEMA DEVI BANSAL, VS . ACIT, SHOP NO. 2, SARBATI BUILDING CENTRAL CIRCLE-13, JAWALA HERI MARKET, NEW DELHI. PASCHIM VIHAR, NEW DELHI 110 063. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI VED JAIN & SMT. RANU JAIN, ADVOCATE RESPONDENT BY : SHRI RAMESH CHAND CIT DR ORDER PER I.C. SUDHIR, JUDICIAL MEMBER THE ASSESSEE HAS QUESTIONED FIRST APPELL ATE ORDER ON SEVERAL GROUNDS RAISING THE FOLLOWING ISSUES:- I) AS TO WHETHER THE LD. CIT(A) WAS JUSTIFIED IN REJEC TING THE CONTENTION OF THE ASSESSEE THAT THE NOTICE ISSUED U /S 153A BY THE AO IS IN VIOLATION OF THE PROVISIONS OF THE ACT AND AS SUCH THE ASSESSMENT FRAMED IN CONSEQUENCE THEREOF IS BAD AND LIABLE TO BE QUASHED ? II) AS TO WHETHER THE LD. CIT(A) WAS JUSTIFIED IN REJEC TING THE CONTENTION OF THE ASSESSEE THAT THE REFERENCE TO VA LUATION OFFICER U/S 142A IS BAD IN LAW III) AS TO WHETHER THE LD. CIT(A) HAS ERRED IN CONFIRMIN G THE ADDITION OF RS. 1,91,66,900/- AS UNEXPLAINED INVESTMENT IN P URCHASE OF PROPERTY NO. 1/60 PUNJABI BAGH WEST, NEW DELHI. ITA NO. 342/DEL/2012 2 IV) AS TO WHETHER THE LD. CIT(A) WAS JUSTIFIED IN UPHOL DING THE ACTION OF THE AO IN CHARGING INTEREST U/S 234B FROM THE FI RST DAY OF THE ASSESSMENT ORDER AND NOT FROM THE DATE OF REGULAR A SSESSMENT. ISSUE NO. I),II) & III) 2. THE RELEVANT FACTS ARE THAT THE SWASTI K PIPES GROUP WAS SUBJECTED TO SEARCH AND SEIZURE ACTION U/S 132 OF THE ACT WHEREI N ON THE BASIS OF SALE DEED FOUND NOTICES U/S 153A OF THE ACT WAS ISSUED TO THE ASSESSEE. IN RESPONSE THERETO THE ASSESSEE FILED RETURN OF INCOME DECLARI NG INCOME OF RS. 1,75,825/-. IN THE SALE DEED THE PROPERTY NO. 1/60, PUNJABI BAG H WEST, NEW DELHI WAS SHOWN PURCHASED AT A TOTAL CONSIDERATION OF RS. 89, 36,318/-. THE AO REFERRED THE MATTER U/S 142A OF THE ACT TO THE DISTRICT VALUATIO N OFFICER OF THE DEPARTMENT (IN SHORT DVO) IN ORDER TO DETERMINE THE TRUE VALUE OF INVESTMENT. THE DVO IN HIS REPORT SHOWN THE VALUE OF THE PROPERTY AT RS. 2,75, 68,900/- EXCLUSIVE OF STAMP DUTY AND OTHER CHARGES. THE ASSESSEE HAD DECLARED T HIS VALUE TO BE RS. 84 LACS. A COPY OF THE SAID VALUATION REPORT WAS SUPPLIED TO THE ASSESSEE FOR HER OBJECTION. THE AO WAS NOT SATISFIED WITH THE OBJECT IONS RAISED BY THE ASSESSEE AND THE DIFFERENCE BETWEEN THE AMOUNT SHOWN BY THE ASSESSEE AND THAT REPORTED BY THE DVO WAS TREATED AS UNEXPLAINED INVE STMENT. IN RESULT RS. 1,91,68,900/- WAS ADDED IN THIS REGARD TO THE TAXAB LE INCOME OF THE ASSESSEE. THE SAME HAS BEEN UPHELD BY THE LD. CIT(A). THE AGG RIEVED ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL. ITA NO. 342/DEL/2012 3 3. THE CONTENTION OF THE LD. AR REMAINED THAT REFERENCE TO VALUATION OFFICER U/S 142A IN ABSENCE OF ANY MATERIAL FOUND WAS BAD I N LAW. HE SUBMITTED THAT IT IS EVIDENT FROM THE ASSESSMENT ORDER THAT NO ANY MA TERIAL WAS AVAILABLE ON RECORD OF THE AO TO DRAW AN INFERENCE THAT AN AMOUN T EXCEEDING THE SAME CONSIDERATION SHOWN IN THE SALE DEED WAS PAID. THUS REFERENCE TO DVO U/S 142A WAS NOT VALID. IN SUPPORT, HE PLACED RELIANCE ON TH E FOLLOWING DECISIONS :- CIT VS. MAHESH KUMAR (2011) 196 TAXMAN 415 (DELHI) CIT VS. SHAKUNTALA DEVI (2009) 316 ITR 46 (DELHI) DCIT VS. ABHINAV KUMAR MITTAL ITA NO. 4460/D/2010 D ATED 29.6.2012 SEEMA GUPTA VS. DCIT ITA NO. 1619/DELHI/2008 DATED 22.4.2009 ANEETA SINGH VS. ITO 141 TTJ 629 (DELHI) ITO VS. RAJESHWAR NATH GUPTA, HUF, ITA NO. 4295/DEL /2005 AND CO NO. 375/DEL/2007 DATED 9.5.2008 CIT VS. DINESH JAIN (HUF) AND LATA JAIN, ITA NO. 16 6/2010 AND ORS DATED 28 TH SEPTEMBER, 2012(DELHI HIGH COURT) 4. THE LD. AR SUBMITTED FURTHER THAT AN ADDITI ON CAN BE MADE U/S 69 B OF THE ACT IN RESPECT OF ACTUAL INVESTMENT NOT DISCLOSED A ND NOT ON THE BASIS OF VALUE OF INVESTMENT. HE SUBMITTED THAT NO MATERIAL WAS BROUG HT ON RECORD BY THE AO IN SUPPORT THAT ASSESSEE HAD ACTUALLY PAID EXCESS AMOU NT THAN THAT SHOWN AS SALE CONSIDERATION IN THE SALE DEED. HE SUBMITTED THAT T HERE WAS NO CROSS VERIFICATION OF THE SELLER NOR ANY STATEMENT WAS RECORDED THAT T HE ASSESSEE HAD MADE EXCESS PAYMENT. HE SUBMITTED FURTHER THAT NO PROCEEDINGS U /S 153C/148 OF THE ACT WAS ITA NO. 342/DEL/2012 4 INITIATED AGAINST THE SELLER. HE CONTENDED THAT IF VALUATION REPORT IS IGNORED THEN THERE IS NO MATERIAL WHATSOEVER WITH THE AO TO MAKE THE ADDITION IN QUESTION. THE PURCHASE AMOUNT MADE BY THE ASSESSEE IS EVIDENT BY THE SALE DEED DULY REGISTERED WITH THE SUB REGISTRAR A GOVERNMENT OFF ICER HAVING STATUTORY POWER. IT IS IMPORTANT EVIDENCE AND IN ABSENCE OF SOME POS ITIVE EVIDENCE THE SAME CANNOT BE IGNORED . IN SUPPORT HE PLACED RELIANCE O N THE FOLLOWING DECISIONS K.P. VARGHESE VS. ITO (1981) 131 ITR 597 (SC) CIT VS. SMT. NILOFER SINGH IN 309 ITR 233 (DELHI) DEV KUMAR JAIN VS. ITO 309 ITR 240 (DELHI) CIT VS. GULSHAN KUMAR 257 ITR 703 (DELHI) CIT VS. JAIPUR GOLDEN TRANSPORT COMPANY ITA NO. 138 7/2010 DATED 9.9.2010 (DELHI HIGH COURT) CIT VS. SURAJ DEVI 328 ITR 604 (DELHI) CIT VS. BAJARANG LAL BANSAL 335 ITR 572 (DELHI) CIT VS. PUNEET SABHARWAL 338 ITR 485 (DELHI) 5. LD. AR ALSO REFERRED PAGE NO. 24 TO 26 OF THE PAPER BOOK I.E COPY OF QUESTIONNAIRE DATED 30.8.2010 ISSUED TO THE ASSESSE E WHEREIN VIDE QUESTION NO. 17 THE AO HAD ASKED TO EXPLAIN THE DOCUMENT SEIZED FROM THE PREMISES AND COMPLETE DETAILS OF INVESTMENT IN THE PROPERTY ALON GWITH THE SOURCE. THE SAME WAS REPLIED BY THE ASSESSEE EXPLAINING THE SOURCE O F INVESTMENT, A COPY THEREOF HAS BEEN MADE AVAILABLE AT PAGE NOS. 29 TO 42 OF TH E PAPER BOOK. THE AO ITA NO. 342/DEL/2012 5 HOWEVER PREFERRED TO MAKE ADDITION OF THE AMOUNT IN DIFFERENCE BETWEEN THE SALE CONSIDERATION SHOWN IN THE SALE DEED SEIZED AN D THAT ESTIMATED BY THE DVO. THE LD. AR SUBMITTED FURTHER THAT THE LD. CIT(A) HA S ALSO CONVENIENTLY IGNORED THE AMENDMENT MADE IN SECTION 50C OF THE ACT WHICH IS TO BE USED FOR COMPUTING CAPITAL GAIN IN THE HANDS OF THE SELLER O N THE BASIS OF CIRCLE RATE AND THIS PROVISION EVEN AT PRESENT DOES NOT ALLOW TO US E THAT RATE FOR THE PURPOSE OF COMPUTING INVESTMENT BY THE PURCHASER. IN THIS REGA RD, RELIANCE ON THE DECISION OF AHMADABAD BENCH OF THE TRIBUNAL IN THE CASE OF I TO VS. HARLEY STREET PHARMACEUTICALS LTD. 38 SOT 486 (AHD) AND ON THE DE CISION OF DELHI BENCH OF TRIBUNAL IN THE CASE OF ANILESH ENTERPRISE (P) LTD. VS. ITO IT NO. 2044/D/2010 DATED 9.7.2010. 6. THE LD. DR ON THE OTHER HAND TRIED TO JUS TIFY THE ORDERS OF THE AUTHORITIES BELOW ON THE ISSUE. HE SUBMITTED THAT THE ASSESSEE DID NOT MAINTAIN ACCOUNT, HENCE CITED DECISIONS BY THE LD. AR ARE NOT APPLICA BLE IN THE CASE OF ASSESSEE. HE POINTED OUT FURTHER THAT DURING THE COURSE OF AS SESSMENT PROCEEDINGS DESPITE SPECIFIC QUESTION RAISED LIKE QUESTION NO. 6,7 & 17 BY THE AO EXPLAINING THE SOURCE OF INVESTMENT, THE ASSESSEE HAD FURNISHED A VAGUE REPLY. HE SUBMITTED THAT INVESTMENT IN RENOVATION MIGHT HAVE BEEN ALSO MADE AFTER PURCHASING THE PROPERTY LONG BACK. HE SUBMITTED THAT SALE DEED FOU ND DURING THE COURSE OF SEARCH WAS AN INCRIMINATING DOCUMENT AND THE ASSESS EE WAS SUPPOSED TO EXPLAIN THE SOURCE OF INVESTMENT MADE IN THE PURCHASE OF TH E SAID PROPERTY. HE ITA NO. 342/DEL/2012 6 SUBMITTED FURTHER THAT IN THE SEARCH HUGE UNDISCLOS ED INCOME WAS DECLARED BY THE GROUP INCLUDING ASSESSEE. HE POINTED OUT FURTHE R THAT THE DECISION OF HONBLE DELHI HIGH COURT IN THE CASE OF CIT VS. DINESH JAIN (SUPRA) RELIED UPON BY THE LD. AR IS RELATING TO THE REFERENCE MADE IN A CASE IN T HE PROVISIONS OF WEALTH TAX ACT HENCE THE SAME IS NOT APPLICABLE IN THE PRESENT CAS E. LD. DR PLACED RELIANCE ON THE DECISIONS FOLLOWED BY THE LD. CIT(A) WHICH ARE AS UNDER :- SMT. KIRAN LATA VS. ITAT 177 TAXMAN 318 ITR 34 UTT RAKHAND HIGH COURT ITO VS. BALRAM JHANWAR 123 TTJ (JD) 1717 DCIT VS. SHUBBAM INDUSTRIES 104 ITD 126 CIT VS. OM PRAKASH BAGRIA 155 TAXMAN 427 (MP) MALIK BROS. PVT. LTD. VS. CIT 162 TAXMAN 43 CHARDAM SUKHANI VS. CIT 152 TAXMAN 87 (RAJ.) 7. IN THE REJOINDER THE LD AR ASSERTED THAT T HE AMOUNT DECLARED IN SALE DEED WAS NOT ADDED BY THE AO ON ACCOUNT OF UNEXPLAINED / UNDISCLOSED INCOME BUT ADDITION HAS BEEN MADE U/S 69B OF THE ACT ON THE AM OUNT IN DIFFERENCE BETWEEN THE SALE CONSIDERATION SHOWN IN THE SALE DEED AND T HAT REPORTED BY THE DVO. 8. HAVING GONE THROUGH THE ORDERS OF THE AUTHO RITIES BELOW, MATERIAL AVAILABLE ON RECORD AND THE DECISIONS RELIED UPON, WE FIND TH AT THERE IS NO DISPUTE THAT ADDITION ON ACCOUNT OF INVESTMENT IN THE PROPERTY N O. 1/60, PUNJABI BAGH WEST, ITA NO. 342/DEL/2012 7 NEW DELHI WAS MADE ON THE AMOUNT IN DIFFERENCE BETW EEN THAT SHOWN IN THE SALE DEED AND THAT ESTIMATED BY THE DVO. 9. AGAIN UNDISPUTEDLY THERE IS NO MATERIAL O N RECORD EXCEPT THE DVO REPORT THAT ASSESSEE HAD PAID HIGHER AMOUNT OVER AND ABOVE THE SALE CONSIDERATION SHOWN IN THE SALE DEED SEIZED DURING THE COURSE OF SEARCH. WE FIND THAT AN IDENTICAL ISSUE HAS BEEN DECIDED BY THE HONBLE DEL HI HIGH COURT IN FAVOUR OF THE ASSESSEE IN THE CASE OF CIT VS. DINESH JAIN HUF AND ANOTHER (SUPRA) WHEREIN ALSO AN ADDITION U/S 69B OF THE ACT AT RS. 1,38,26, 450/- WAS MADE. THE ASSESSEE QUESTIONED THE ADDITION MADE U/S 69B OF THE ACT. TH E MATTER WAS ULTIMATELY TRAVELED TO THE HONBLE JURISDICTIONAL HIGH COURT O N THE ISSUE AS TO WHETHER THE TRIBUNAL HAD ERRED IN DELETING THE ADDITION MADE BY THE AO ON ACCOUNT OF UNEXPLAINED INVESTMENT IN RENT YIELDING PROPERTY BY APPLYING THE PROVISION OF RULE 3 OF PAST B OF 3 RD SCHEDULE TO THE WEALTH TAX ACT ? IT WAS ALSO A CA SE OF SEARCH U/S 132 OF THE ACT WHEREIN INVESTMENT IN VAR IOUS PROPERTIES BY THE ASSESSEE ON THE BASIS OF SEIZED MATERIAL WAS REVEAL ED. THE AO WAS OF THE VIEW THAT THE ASSESSEE MUST HAVE INVESTED MORE THAN WHAT WAS DISCLOSED IN THE SALE DOCUMENT WHICH ATTRACTED THE PROVISION OF SECTION 6 9B OF THE ACT. HE CALLED UPON THE ASSESSEE TO EXPLAIN THE POSITION. THE ASSE SSEE DENIED INVESTING ANYTHING OVER AND ABOVE THE AMOUNT DECLARED IN THE DOCUMENT. THE AO HOWEVER CONCLUDED THAT THE FAIR MARKET VALUE OF THE PROPERT Y SHOULD BE ESTIMATED IN ACCORDANCE WITH THE RULE 3 OF SCHEDULE III TO THE WEALTH TAX ACT 1957. THE AO ITA NO. 342/DEL/2012 8 ESTIMATED THE VALUE OF THE PROPERTY AT RS. 82,87,50 0/- AND HELD THAT THAT IS THE VALUATION OF THE AMOUNT WHICH THE ASSESSEE MUST HAV E PAID. THE DIFFERENCE BETWEEN THE VALUE OF THE PROPERTY CALCULATED IN ACC ORDANCE WITH THE RULE AND THE AMOUNT SHOWN IN THE SALE DOCUMENT CAME TO RS. 6 5,32,500/- WHICH WAS ASSESSED AS UNEXPLAINED INVESTMENT U/S 69B . SIMILA R ADDITION WAS MADE IN RESPECT OF ANOTHER PROPERTY BY THE ASSESSEE AND TOT AL ADDITION WAS MADE U/S 69B AT RS. 1,38,26,450/-. AFTER DETAILED DISCUSSION AND CONSIDERATION OF THE PROVISIONS U/S 69B OF THE ACT AND THE DECISIONS CITED, THE HON BLE HIGH COURT HAS DECIDED THE ISSUE IN FAVOUR OF THE ASSESSEE. THE RELEVANT C ONCLUDING PARA NO. 15 OF THE DECISION OF HONBLE HIGH COURT IN THE SAID CASE IS BEING REPRODUCED HEREUNDER :- 15. SINCE THE ENTIRE CASE HAS PROCEEDED ON THE ASSU MPTION THAT THERE WAS UNDER STATEMENT OF THE INVESTMENT, WITHOU T A FINDING THAT THE ASSESSEE INVESTED MORE THAN WHAT WAS RECOR DED IN THE BOOKS OF ACCOUNTS, WE ARE UNABLE TO APPROVE OFF THE DECISION OF THE INCOME TAX AUTHORITIES. SECTION 69B WAS WRONGLY INV OKED. THE ORDER OF THE TRIBUNAL IS APPROVED , THE SUBSTANTIAL QUESTION OF LAW IS ANSWERED IN THE NEGATIVE, IN FAVOUR OF THE ASSES SEE AND AGAINST CIT. 10. IN PRECEDING PARA NO. 14 OF THE DECISIO N, THE HONBLE HIGH COURT HAS ALSO TAKEN THE KIND NOTE OF THE DECISION OF THE HON BLE SUPREME COURT IN THE CASE OF LAL CHAND BHAGAT AMBICA RAM VS. CIT (1959) 37 IT R 288 (SC) WHEREIN THE HONBLE SUPREME COURT HAS BEEN PLEASED TO DISAPPROV E THE PRACTICE OF MAKING ADDITIONS IN THE ASSESSMENTS ON MERE SUSPICION AND SURMISE OR BY TAKING NOTE OF THE NOTORIOUS PRACATICES PREVAILING IN THE TRADE CI RCLES. ITA NO. 342/DEL/2012 9 11. AGAIN IN THE CASE OF CIT VS. JAIPUR GOLDE N TRANSPORT COMPANY APPEAL NO. 1387/2010 DATED 9 TH SEPTEMBER, 2010, RELIED BY THE LD. AR THE HONBLE DELHI HIGH COURT WHILE APPROVING THE ORDER OF THE TRIBUNA L HAS BEEN PLEASED TO HOLD THAT IT IS A SETTLED LAW THAT IN THE ABSENCE OF ANY INCRIMINATING EVIDENCE THAT ANYTHING HAS BEEN PAID OVER AND ABOVE THE STATED AM OUNT, THE PRIMARY BURDEN OF PROOF IS ON THE REVENUE TO SHOW THAT THERE HAS B EEN AN UNDER STATEMENT OR CONCEALMENT OF INCOME. IT HAS BEEN HELD FURTHER THA T IT IS ONLY WHEN SUCH BURDEN HAS BEEN DISCHARGED, IT WOULD BE PERMISSIBLE TO REL Y UPON THE VALUATION GIVEN BY THE DVO. IN THIS DECISION A REFERENCE OF ITS EARLIE R DECISION BY THE HONBLE HIGH COURT IN THE CASE OF CIT VS. SURAJ DEVI , (SUPRA) H AS BEEN MADE EXPRESSING THE SIMILAR VIEW. IN THAT CASE ALSO NO EVIDENCE MUCH L ESS INCRIMINATING EVIDENCE WAS FOUND AS A RESULT OF THE SEARCH TO SUGGEST THAT THE ASSESSEE HAD MADE ANY PAYMENT OVER AND ABOVE THE CONSIDERATION MENTIONED IN THE REGISTERED PURCHASE DEED. SIMILAR FACTS WERE THERE IN THE CASE OF CIT V S. BAJRANG LAL BANSAL (SUPRA) RELIED UPON BY THE LD. AR. IN THAT CASE ALSO NO EVI DENCE MUCH LESS INCRIMINATING EVIDENCE WAS FOUND AS A RESULT OF THE SEARCH TO SUG GEST THAT THE ASSESSEE HAD MADE ANY PAYMENT OVER AND ABOVE THE CONSIDERATION M ENTIONED IN THE RETURN OF THE ASSESSEE. THE HONBLE DELHI HIGH COURT WAS PLEA SED TO HOLD THAT IT IS SETTLED LAW THAT THE PRIMARY BURDEN OF PROOF TO PROVE UNDER STATEMENT OR CONCEALMENT OF INCOME IS ON THE REVENUE AND IT IS ONLY WHEN SUCH B URDEN IS DISCHARGED THAT WOULD BE PERMISSIBLE TO RELY UPON THE VALUATION GIV EN BY THE DVO. SIMILARLY IN ITA NO. 342/DEL/2012 10 THE CASE OF CIT VS. PUNEET SABHARWAL (SUPRA) THE AO SOLELY RELYING UPON THE REPORT OF THE DVO HAD MADE ADDITION. THERE WAS ADMI TTEDLY NO EVIDENCE OR MATERIAL IN THE POSSESSION OF THE AO TO COME TO THE CONCLUSION THAT ASSESSEE HAD PAID EXTRA CONSIDERATION OVER AND ABOVE WHAT WAS ST ATED IN THE SALE DEED. THE HONBLE HIGH COURT WAS PLEASED TO HOLD THAT THE PRI MARY BURDEN OF PROOF TO PROVE UNDERSTATEMENT OR CONCEALMENT OF INCOME IS ON THE REVENUE AND IT IS ONLY WHEN SUCH BURDEN THE DISCHARGED THAT IT WOULD BE PE RMISSIBLE TO RELY UPON THE VALUATION GIVEN BY THE DVO. IT WAS FURTHER HELD THA T THE OPINION OF THE VALUATION OFFICER, PER SE, WAS AN OPINION AND COULD NOT BE R ELIED UPON WITHOUT THE BOOKS OF ACCOUNTS BEING REJECTED. THE DELHI BENCH OF THE TRIBUNAL IN THE CASE OF DCIT VS. ABHINAV KUMAR MITTAL (SUPRA) WHERE NOTHING TO S UGGEST THAT ANY INCRIMINATING DOCUMENT WAS FOUND AND SEIZED DURING THE COURSE OF SEARCH OR SURVEY IN THE PREMISES OF THE GROUP ON THE BASIS OF WHICH IT COULD BE SAID THAT THE COST OF CONSTRUCTION SHOWN BY THE ASSESSEE WAS UNDERSTATEMENT AND THE AO HAD MADE REFERENCE U/S 142A TO THE DVO AND ADDED THE AMOUNT IN DIFFERENCE, IT WAS HELD THAT A REFERENCE U/S 142A O F THE ACT IS INVALID IN THE ABSENCE OF MATERIAL FOUND DURING THE COURSE OF SEAR CH. ALMOST SIMILAR ARE THE FACTS OF THE PRESENT CASE BEFORE US. WE THUS RESPE CTFULLY FOLLOWING THE ABOVE DECISIONS ON AN IDENTICAL ISSUES DECIDE THE ISSUES DECIDE IN FAVOUR OF THE ASSESSEE WITH THIS FINDING THAT THE AO WAS NOT JUST IFIED IN MAKING REFERENCE U/S 142A OF THE ACT TO THE DVO TO DETERMINE THE VALUATI ON OF INVESTMENT MADE IN THE ITA NO. 342/DEL/2012 11 PROPERTY IN QUESTION IN ABSENCE OF ANY MATERIAL FOU ND DURING THE COURSE OF SEARCH SHOWING THAT THE ASSESEE HAD INVESTED OVER A ND ABOVE THE AMOUNT WHAT WAS SHOWN IN THE SALE DEED AND SECONDLY IN MAKING T HE ADDITION ON THE AMOUNT IN DIFFERENCE FOUND BETWEEN THAT SHOWN IN THE SALE DEED AND THAT DETERMINED BY THE DVO AS UNDISCLOSED INCOME U/S 69 B OF THE ACT I N THE ASSESSMENT U/S 153 A OF THE ACT. 12. SO FAR THE DECISIONS RELIED UPON BY THE LD. DR ARE CONCERNED THESE ARE NOT HELPFUL TO THE REVENUE AS THEY ARE HAVING DISTI NGUISHABLE FACTS. IN THE CASE OF SMT. KIRAN LATA VS ITAT (SUPRA) THERE WAS AN ADMISS ION BY THE ASSESSEE THAT THE AMOUNTS ARE NOT COMPLETE AND MORE AMOUNT COULD HAVE BEEN SPENT IN THE CONSTRUCTION OF THE BUILDING. IN THE CASE OF ITO VS . BALRAM JHANWAR (SUPRA) AT THE TIME OF SURVEY BOOKS OF ACCOUNTS WERE NOT COMPL ETE AND IN THE RETURN ALSO IT WAS NOT INDICATED AS TO WHETHER THE BOOKS WERE MAIN TAINED, THEREFORE REFERENCE U/S 142A WAS HELD TO BE RIGHT. IN THE CASE OF DCIT VS. SHUBHAM INDUSTRIES THE ISSUE WAS RECALLING OF THE ORDER BY THE TRIBUNAL IN VIEW OF THE AMENDMENT MADE TO THE ACT BY EXCEPTION OF SECTION 142A OF THE ACT. IN THE CASE OF CIT VS. OM PRAKASH BAGRIA (SUPRA) THE ISSUE WAS REGARDING APPL ICATION OF AMENDED SECTION 142A IN RESPECT OF ASSESSMENT MADE ON OR BEFORE 30. 9.2004. AGAIN IN THE CASE OF MALIK BROTHERS PVT. LTD. VS. CIT (SUPRA) THERE WAS NO ISSUE OF VIOLATION U/S 142A OF THE ACT. THE RELATED GROUNDS INVOLVING THE ISSUES ARE THUS ALLOWED. IN ITA NO. 342/DEL/2012 12 THE RESULT THE AO IS DIRECTED TO DELETE THE ADDITIO N MADE U/S 169B OF THE ACT AT RS. 1,91,68,000/- ON ACCOUNT OF UNDISCLOSED INCOME. ISSUE NO. 4 13. THE ISSUE IS REGARDING CHARGING OF INTERE ST U/S 234B OF THE ACT. THE CONTENTION OF THE ASSESSEE REMAINED THAT IN THE CAS E OF A REASSESSMENT PROCEEDINGS U/S 153 A THE INTEREST U/S 234B IN VIE W OF THE PROVISIONS OF SUB SECTION (3) OF SECTION 234B IS LEVIABLE FROM THE DA TE OF THE REGULAR ASSESSMENT AND NOT FROM THE FIRST DAY OF THE ASSESSMENT ORDER. SINCE THE ISSUE RAISED IS CONSEQUENTIAL IN NATURE IT DOES NOT NEED INDEPENDEN T ADJUDICATION IN VIEW OF THE ABOVE FINDING ON ISSUES NOS. 1 TO 3. 14. CONSEQUENTLY APPEAL IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 28 TH FEBRUARY, 2013. SD/- SD/- (SHAMIM YAHYA) ( I.C. SUDHIR ) ACCOUNTANT MEMBER JUDICIAL MEMBER DATE 28 TH FEBRUARY, 2013 *VEENA COPY OF ORDER FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT(A) 4. CIT 5. DR BY ORDER DEPUTY REGISTRAR, ITAT