ACIT, New Delhi V. M/s. Shagun Buildwell Ltd., New Delhi

ITA 3591/DEL/2008

• Counselvise Citation: [2009] 115 COUNSELVISE.COM (IT) 2158 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-12-2009
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: G
• Next Hearing Date: 10-11-2009
• Assessment Year: 2003-2004
• Appeal Filed On: 05-12-2008
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Reopening of assessment; Sale consideration of property below Jantri Value; Value adopted by valuation officer; Retrospective amendment; Fair market value; Difference of opinion; Valuation report; Reason to believe; Change of opinion; Reassessment proceedings; Set aside; Capital Gains
• Section: 143(3); 142(1); 69B; 69A; 147; 69; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH G : NEW DELHI BEFORE SHRI K.D.RANJAN AND SHRI GEORGE MATHAN ITA NO.3514/DEL/2008 ASSESSMENT YEAR : 2003-04 SHAGUN BUILDWELL LTD. G-35, GREEN PARK, 6 TH FLOOR, MAHINDRA TOWER, BHIKAJI CAMA PLACE, NEW DELHI. PAN AAAC9734J VS. DCIT, CENTRAL CIRCLE-8, NEW DELHI. (APPELLANT) (RESPONDENT) ITA NO.3591/DEL/2008 ASSESSMENT YEAR : 2003-04 DCIT, CENTRAL CIRCLE-8, NEW DELHI. VS. SHAGUN BUILDWELL LTD. G-35, GREEN PARK, 6 TH FLOOR, MAHINDRA TOWER, BHIKAJI CAMA PLACE, NEW DELHI. PAN AAAC9734J (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI K.R.MANJHANI, ADVOCATE RESPONDNT BY : SHRI KISHORE B. SR . D.R. ORDER PER RANJAN, AM : THESE CROSS-APPEALS BY THE ASSESSEE AND THE REVENUE FOR ASSESSMENT YEAR 2003-04 ARISE OUT OF ORDER OF LD. CIT(A)-II, N EW DELHI. THESE APPEALS WERE HEARD TOGETHER AND FOR THE SAKE OF CONVENIENCE ARE DISPOSED OF BY THIS CONSOLIDATED ORDER. 2 2. THE GROUNDS OF APPEAL RAISED IN ASSESSEES APPEA L ARE REPRODUCED AS UNDER: 1. THAT THE LD.CIT(APPEAL) HAS ERRED IN LAW AND ON FACTS IN HOLDING THAT THE PROCEEDINGS U/S 148 WERE VALIDLY INITIATED . 2. THAT THE LD. CIT(APPEAL) HAS ERRED IN NOT APPREC IATING THE FACT THAT THE PROPERTY IS STOCK IN TRADE AND NO UNEXPLAINED I NVESTMTN HAS ESCAPED ASSESSMENT U/S 69. 3. THAT THE LD. CIT(APPEAL) HAS ERRED IN UPHOLDING THE ADDITIONS MADE BY INVOKING THE PROVISIONS OF SEC. 142A DESPIT E THE FACT THAT THE PROPERTY WAS DULY RECORDED IN REGULAR BOOKS OF ACCOUNTS. 4. THAT THE LD. CIT(APPEAL) HAS ERRED ON FACTS AND IN LAW IN COMPARING THE INSTANCE OF REMOTE AREAS AND NOT CONS IDERING THE INSTANCES OF SAME LOCALITY DULY PLACED ON RECORD. 5. THAT THE LD. CIT(APPEAL) HAS ERRED ON FACTS AND CIRCUMSTANCES OF THE CASE IN SUSTAINING AN ADDITION CALCULATED IN AN ARBITRARY MANNER. 6. THAT THE IMPUGNED APPELLATE ORDER IS ARBITRARY, ILLEGAL, BAD IN LAW AND IN VIOLATION OF RUDIMENTARY PRINCIPLES OF CONTE MPORARY JURISDICTION. 3. THE ONLY ISSUE FOR CONSIDERATION RELATES TO CONF IRMING THE ADDITION U/S 69 ON THE BASIS OF VALUATION DONE BY THE DEPARTMENT AL VALUER U/S 142A OF THE ACT. FACTS OF THE CASE, STATED IN BRIEF, ARE TH AT ASSESSMENT U/S 143(3) WAS COMPLETED ON 29/3/2006 AT AN INCOME OF RS.18,054/-. DURING THE YEAR UNDER CONSIDERATION, THE ASSESSEE PURCHASED FIRST FLOOR A LONGWITH 40% OF OWNERSHIP RIGHTS IN PROPERTY NO.A-2/43 RAJOURI GARD EN, NEW DELHI FOR A SUM OF RS.25,50,000/-. THE ASSESSING OFFICER IN ORD ER TO VERIFY THE GENUINENESS OF QUANTUM OF INVESTMENT MADE BY THE AS SESSEE COMPANY IN PURCHASE OF SAID PROPERTY MADE A REFERENCE. DURING THE COURSE OF ASSESSMENT PROCEEDINGS U/S 143(3) TO DISTRICT VALUATION OFFICE R U/S 142A OF THE ACT. HOWEVER, BEFORE THE LIMITATION OF COMPLETION OF REG ULAR ASSESSMENT U/S 3 143(3), THE DVO HAD NOT SENT THE VALUATION REPORT T O THE ASSESSING OFFICER. THE ASSESSING OFFICER COMPLETED THE ASSESSMENT ON T HE BASIS OF MATERIAL AVAILABLE ON RECORD. SUBSEQUENTLY, THE DVO SENT A R EPORT ON 21/12/2006 VALUING THE PROPERTY AT RS.58,19,100/-. THUS, THERE WAS A DIFFERENCE BETWEEN THE PURCHASE CONSIDERATION SHOWN BY THE ASSESSEE AN D FAIR MARKET VALUE AS ON DATE OF PURCHASE AMOUNTING TO RS.32,69,100/-. TH E ASSESSING OFFICER INITIATED RE-ASSESSMENT PROCEEDINGS AND THE ASSESSE E WAS ASKED TO FURNISH RETURN OF INCOME BY ISSUE OF NOTICE U/S 148. THE AS SESSEE VIDE LETTER DATED 17/10/2007 STATED THAT RETURN ALREADY FILED MAY BE TREATED AS RETURN FILED IN RESPONSE TO THE NOTICE U/S.148. THE ASSESSING OFFIC ER PROVIDED COPY OF REASONS FOR REOPENING OF ASSESSMENT VIDE LETTER DAT ED 15/11/2007. 4. IN RESPONSE TO NOTICE ISSUED U/S 143(2), THE ASS ESSEE OBJECTED TO REOPENING OF ASSESSMENT U/S 148 ON THE BASIS OF REP ORT OF DVO AFTER COMPLETION OF ASSESSMENT. THIS CONTENTION OF ASSESS EE WAS REJECTED ON THE GROUND THAT AFTER INCORPORATION OF SECTION 142A, TH E ASSESSING OFFICER WAS EMPOWERED TO DO RE-ASSESSMENT ON THE BASIS OF ESTIM ATE MADE BY THE DVO. HE PLACED RELIANCE ON THE DECISION OF HONBLE SUPRE ME COURT IN THE CASE OF RAYMOND WOOLEN MILLS LTD. V. ITO AND ANOTHER 236 IT R 34 WHEREIN IT HAS BEEN HELD THAT WHAT WAS REQUIRED TO BE SEEN IN SUCH CASES WAS WHETHER PRIMA FACIE THERE WAS MATERIAL BEFORE THE ASSESSING OFFIC ER ON THE BASIS OF WHICH HE COULD REOPEN THE CASE OF ASSESSEE. THE SUFFICIEN CY AND CORRECTNESS OF MATERIAL WAS NOT TO BE CONSIDERED BECAUSE IT WAS OP EN TO THE ASSESSEE TO PROVE THE FACTS ASSUMED BY THE ASSESSING OFFICER IN THE NOTICES WERE ERRONEOUS. THE ASSESSING OFFICER ALSO NOTED THAT TH E VALUATION REPORT OF THE VALUATION OFFICER IS SCIENTIFICALLY DESIGNED AND BA SED ON REAL SALE INSTANCES OF NEARBY LOCATIONS. THE PROPERTY WAS CENTRALLY LOC ATED AND, THEREFORE, COULD NOT BE PURCHASED AT SUCH A LOW RATE. IT WAS ALSO CO NTENDED BY THE ASSESSEE 4 THAT THE PROPERTY REFERRED TO VALUATION OFFICER WAS PART OF STOCK IN TRADE OF THE ASSESSEE AND, THEREFORE, DID NOT REPRESENT ANY INVESTMENT. THE PROVISIONS OF SEC. 142A DO NOT GIVE ANY POWER TO TH E ASSESSING OFFICER TO REFER THE MATTER FOR VALUATION OF ANY EXPENDITURE I NCURRED BY THE ASSESSEE AS ASSESSEE HAS INCURRED EXPENDITURE IN PURCHASE OF TH E PROPERTY AND NOT AS INVESTMENT. THIS CONTENTION OF THE ASSESSEE WAS REJ ECTED BY THE ASSESSING OFFICER BY OBSERVING THAT THE SUBMISSION MADE BY TH E ASSESSEE WAS TOTALLY MISLEADING AND RESTRICTING THE POWER OF ASSESSING O FFICER BECAUSE SECTION 142A WAS VERY WIDE AND ASSESSING OFFICER COULD REFE R THE MATTER TO VALUATION OFFICER FOR ESTIMATE OF VALUE OF ANY INVE STMENT REFERRED IN SEC. 69 OR 69B OR VALUE OF ANY JEWELLERY AND OTHER VALUABLE ARTICLES REFERRED TO IN SEC. 69 OR 69B. HE WAS OF THE OPINION THAT ASSESSIN G OFFICER COULD REFER THE MATTER TO THE VALUATION OFFICER FOR DETERMINING THE UNDISCLOSED CONSIDERATION PAID FOR ACQUIRING THE SAME. ACCORDIN GLY, THE ASSESSING OFFICER ADDED THE DIFFERENCE IN THE VALUATION AT RS .32,69,100/-. 5. ON APPEAL BEFORE THE LD. CIT(A), THE ASSESSEE OB JECTED TO ADDITION MADE ON THE GROUND OF REOPENING OF ASSESSMENT AND O N MERITS ALSO. IT WAS SUBMITTED THAT RESPONSIBILITY OF THE ASSESSEE WAS L IMITED TO THE DISCLOSURE OF ALL PRIMARY FACTS AND NOTHING BEYOND. THE ASSESSEE HAS DISCLOSED ALL THE PRIMARY FACTS THAT WAS UNDER HIS DUTY. IT WAS THEN FOR THE ASSESSING OFFICER TO DRAW THE PROPER CONCLUSION FROM THOSE FACTS. IF THE CONCLUSION DRAWN BY THE ASSESSING OFFICER FROM THE PRIMARY FACTS DISCLO SED BY THE ASSESSEE WERE ERRONEOUS, THE ASSESSING OFFICER COULD NOT REOPEN T HE ASSESSMENT MERELY ON THE BASIS OF CHANGE OF OPINION. HE PLACED RELIANCE ON THE DECISION OF HONBLE ALLAHABAD HIGH COURT IN THE CASE OF J.P.BAJ PAI (HUF) V. CIT, 269 ITR 40 AND DECISION OF HONBLE DELHI HIGH COURT IN THE CASE OF TRANSWORLD INTERNATIONAL INC V. JT. CIT 273 ITR 242. IT WAS AL SO SUBMITTED THAT THE 5 ASSESSING OFFICER COULD NOT ISSUE NOTICE U/S 148 AF TER THE ASSESSMENT HAS BEEN MADE UNLESS THERE WAS DELIBERATE CONCEALMENT B Y THE ASSESSEE OR THERE WAS INFORMATION THAT INCOME HAS ESCAPED ASSESSMENT. THE ASSESSING OFFICER HAD MADE ENQUIRIES REGARDING THE VALUE OF PROPERTY FROM THE OFFICE OF SUB- REGISTRAR AND HAD COMPLETED ASSESSMENT AFTER SATISF YING HIMSELF ABOUT THE VALUE OF PROPERTIES. THE ASSESSEE HAD SUBMITTED ALL THE NECESSARY INFORMATION INCLUDING THE COPIES OF REGISTERED SALE AGREEMENTS IN RESPECT OF THE PROPERTIES. THEREFORE, NO ACTION COULD BE TAKEN ON THE BASIS OF INFORMATION WHICH IS WHOLLY VAGUE, INDEFINITE, FAR FETCHED AND REMOTE. THEREFORE, THE BELIEF OF THE ASSESSING OFFICER WAS BASED ON MERE S USPICION, GOSSIP OR RUMOUR. 6. IT WAS ALSO SUBMITTED THAT PROPERTIES REFERRED F OR VALUATION WERE PART OF STOCK IN TRADE OF THE ASSESSEE AND DID NOT REP RESENT ANY INVESTMENT. THE COST OF PROPERTY HAS BEEN CLAIMED AS AN EXPENDITURE BY THE ASSESSEE AND NOT AS AN INVESTMENT. SECTION 142A DOES NOT GIVE ANY PO WER TO THE ASSESSING OFFICER TO REFER TO VALUATION OFFICER OF ANY EXPEND ITURE INCURRED BY THE ASSESSEE. THEREFORE, VALUATION OF PROPERTY U/S 142A WAS INVALID AND REPORT OBTAINED ON SUCH REFERENCE COULD NOT BE TAKEN INTO CONSIDERATION. THE ASSESSEE PLACED RELIANCE ON SEVERAL DECISIONS IN SU PPORT OF THIS CONTENTION. THEREFORE, IT WAS PLEADED THAT ASSUMPTION OF JURISD ICTION WAS DEFECTIVE WHICH COULD NOT BE CURED. 7. IT WAS ALSO SUBMITTED THAT THE ASSESSEE HAD SUBM ITTED THAT AS PER REGISTERED VALUER THE FAIR MARKET VALUE OF THE PROP ERTY WAS AT RS.24,50,000/-. FURTHER, THE PROVISIONS OF SEC. 69 AND SEC. 142(1) CLEARLY INDICATE THAT THE PROVISIONS OF SEC. 142A CAN BE INVOKED ONLY WHEN IN VESTMENTS ARE NOT RECORDED IN THE BOOKS OF ACCOUNT MAINTAINED BY THE ASSESSEE. IN THIS CASE, THE 6 PROPER BOOKS OF ACCOUNT WERE MAINTAINED AND INVESTM ENTS IN THE PROPERTY WAS DULY RECORDED IN THE BOOKS OF ACCOUNT, THEREFOR E, PROVISIONS OF SEC. 142(1) WERE NOT APPLICABLE. 8. LD. CIT(A) CONSIDERED THE SUBMISSIONS MADE BY TH E ASSESSEE. LD. CIT(A) WAS OF THE OPINION THAT FOR INITIATING R E-ASSESSMENT PROCEEDINGS THERE COULD BE SOME INFORMATION IN POSSESSION OF TH E ASSESSING OFFICER IN ORDER TO COME TO PRIMA FACIE BELIEF THAT THERE WAS ESCAPEMENT OF INCOME. SUFFICIENCY OF SUCH MATERIAL/INFORMATION COULD NOT BE CALLED UPON TO QUESTION IN APPEAL PROCEEDINGS. AT THE TIME OF INIT IATION OF RE-ASSESSMENT PROCEEDINGS, THE ASSESSING OFFICER NEED NOT ESTABLI SH THE ESCAPEMENT OF INCOME. IN THE CASE OF THE ASSESSEE, THE REFERENCE WAS MADE TO DVO DURING THE COURSE OF ORIGINAL ASSESSMENT PROCEEDINGS TO AS CERTAIN TRUE AND CORRECT AMOUNT. BUT, THE REPORT COULD NOT BE RECEIVED BY TH E ASSESSING OFFICER BEFORE COMPLETION OF ORIGINAL ASSESSMENT. HENCE, TH E ASSESSMENT WAS COMPLETED WITHOUT CONSIDERING THE REPORT OF DVO. WH EN SUCH REPORT WAS RECEIVED, THE ASSESSING OFFICER UTILIZED THE SAME F OR INVOKING THE PROVISIONS OF SEC. 147. THEREFORE, THE REPORT OF DVO ESTIMATIN G THE VALUE OF THE PROPERTY AT HIGHER AMOUNT WAS INFORMATION IN POSSES SION OF ASSESSING OFFICER FOR REOPENING OF ASSESSMNT U/S 147. ANOTHER ASPECT CONSIDERED RELATED TO DISCREPANCY IN BUILT UP AREA. THEREFORE, THERE EXISTED SUFFICIENT AND VALID INFORMATION RECEIVED BY THE ASSESSING OFFICER AFTER COMPLETION OF ASSESSMENT. THEREFORE, THERE WAS NO ILLEGALITY IN I NVOKING THE PROVISIONS OF SEC. 147. AS REGARDS THE CONTENTION OF ASSESSEE THA T THERE WAS NO EVIDENCE IN POSSESSION OF ASSESSING OFFICER TO DIFFERENTIATE TH E VALUE OF INVESTMENT DECLARED BY IT, LD. CIT(A) OBSERVED THAT THE VALUE DECLARED BY THE ASSESSEE DID NOT MAKE SACROSANCT IN RESPECT OF INVESTED VALU E IN ANY PROPERTY. BY UNDERSTATING THE REAL VALUE BOTH THE PARTIES TAKE BENEFIT IN THE FORM OF 7 AVOIDING INCOME TAX ON CAPITAL GAINS BY SELLER AND STAMP DUTY BY BUYER. DIRECT EVIDENCES CANNOT BE OBTAINED IN IMMOVABLE PR OPERTIES. HE PLACED RELIANCE ON THE DECISION OF I.T.A.T. DELHI BENCH IN THE CASE OF HANEMP PROPERTIES PVT. LTD. 101 ITD 19 FOR THE PROPOSITION THAT REFERENCE MADE BY ASSESSING OFFICER TO DVO COULD NOT BE HELD TO BE BA D IN LAW IN VIEW OF THE PROVISIONS OF SEC. 142A OF THE ACT INSERTED BY THE FINANCE (NO.2) ACT, 2004 WITH RETROSPECTIVE EFFECT FROM 15/11/1972. HE ALSO PLACED RELIANCE ON THE DECISION OF HONBLE SUPREME COURT IN THE CASE OF SU MATHI DAYAL AND DURGA PRASAD MORE WHEREIN MORE EMPHASIS WAS GIVEN ON SURR OUNDING EVIDENCES TO DECIDE AN ISSUE. HE, THEREFORE, UPHELD THE REFERENC E MADE TO DVO U/S 142A OF THE ACT. 9. LD.CIT(A) FURTHER NOTED THAT SEC. 142A COULD BE INVOKED WHETHER UNDERSTATEMENT WAS FOR INVESTMENT PURPOSE OR FOR STOCK IN TRADE. THERE WAS NO DIFFERENTIATION MADE IN THE ACT ABOUT REFER ENCE TO DVO. THE ONLY REQUIREMENT WAS THE EXISTENCE OF ANY VALUABLE ARTIC LE OR THING WHICH EITHER UNDISCLOSED OR PARTIALLY DISCLOSED IN THE BOOKS OF ACCOUNT. IN THE CASE OF ASSESSEE THERE WAS NO DISPUTE ABOUT THE EXISTENCE O F PROPERTY AND SAME WAS NOT DISCLOSED FULLY WHICH WAS EVIDENT FROM THE FACT S OF UNDERSTATEMENT OF BUILT UP AREA OF CONSTRUCTION. WHILE WORKING OUT TH E FAIR MARKET VALUE OF THE PROPERTY ACQUIRED BY THE ASSESSEE, THE DVO HAD ADOP TED COMPARATIVE SALE INSTANCE METHOD. IN RESPECT OF COMPARATIVE SALE INS TANCE OF PROPERTY, THE DVO HAS TAKEN SALE INSTANCE OF PROPERTY LOCATED IN NEARBY AREA AND ADJUSTED THE VALUE BASED ON ADVANTAGES AND DISADVANTAGES ATT ACHED TO THE PROPERTY. THE SALE INSTANCE OF THE PROPERTY TAKEN UP FOR COMP ARISON WAS APPROVED BY INCOME TAX DEPARTMENT (APPROPRIATE AUTHORITY ) AS T HE SAID PROPERTY WAS SOLD ON 16/8/1999 FOR A CONSIDERATION OF RS. 1,90,0 0,000/-. IT WAS A PLOT OF 1105.54 SQ. METER LOCATED IN PUNJABI BAG. THE LAND RATE CAME TO RS.17186/- 8 PER SQ. METER. THE DVO HAD DETERMINED THE FAIR MARK ET VALUE OF THE PROPERTY OF THE ASSESSEE BY MAKING APPROPRIATE ADJUSTMENTS T OWARDS FACTORS LIKE LOCATION, ADVANTAGE OF CORNER PLOT AND MAIN ROAD/NE AR ROAD ETC. APART FROM ASCERTAINING LAND VALUED, THE DVO HAD ALSO WORKED O UT COST OF BUILT UP AREA FOR FIRST FLOOR. IN DOING SO, HE HAD GIVEN SOME REL IEF TOWARDS NON-PROVISION OF FLOORING, DOORS, VENTILATORS, PAINTING AND OTHER SERVICES. THUS, THE VALUATION OFFICER HAD ARRIVED AT THE VALUE AT RS.58 ,19,100/- FOR THE FIRST FLOOR AS AGAINST THE CONSIDERATION DECLARED BY THE ASSESS EE AT RS.25,50,000/-. 10. LD. CIT(A) AFTER CONSIDERING THE VALUATION REPO RT CAME TO THE CONCLUSION THAT THERE WAS NO ILLEGALITY IN ADOPTING COMPARATIVE SALE INSTANCES SPECIALLY WHEN THE SAID PROPERTY WAS APPR OVED BY THE INCOME-TAX AUTHORITIES UNDER THE LAW. HE FURTHER NOTED THAT DU RING THE PERIOD UNDER APPEAL, NO BASIC NORMS WERE FIXED TOWARDS PROPERTY VALUES FOR REGISTRATION PURPOSES. SALE DEEDS IRRESPECTIVE OF VALUATION DONE WERE INVARIABLY REGISTERED WITHOUT ANY RESTRICTIONS. REVIEW OF THES E RATES, EVEN IF UNDERTAKEN, WAS NOT DONE REGULARLY KEEPING PACE WI TH THE MARKET CONDITIONS. HENCE, SUCH VALUE DID NOT REPRESENT TRU E NATURE OF MARKET CONDITIONS OF THESE PROPERTIES. HE FURTHER OBSERVED THAT THE OBJECTION OF THE ASSESSEE IN COMPARING THE PROPERTY SITUATED IN PUNJ ABI BAGH WITH RAJAOURI GARDEN DID NOT MERIT MUCH DISCUSSION SINCE BOTH THE LOCALITIES WERE MORE OR LESS SIMILAR WITH MINOR DIFFERENCES. WHILE UPHOLDIN G VALUATION IN PRINCIPLE LD.CIT(A) ALLOWED SOME ADJUSTMENTS IN RESPECT OF L AND VALUATION AS WELL AS IN CONSTRUCTION VALUE. A VACANT PLOT OF LAND IS SOL D FOR MORE VALUE THAN SUBJECT PROPERTY BEING SEMI-FINISHED BUILDING. FURT HER, IT WAS A CORNER PLOT AND HENCE, DUE CREDIT WAS TO BE GIVEN TO THESE CHAR ACTERISTICS WHICH PLAYED A CRUCIAL ROLE IN VALUATION OF PROPERTY. THE LD. CIT( A) AFTER CONSIDERING THE FACTORS HAD TAKEN THE RATE OF THE LAND @RS.15,000 P ER SQ. METER. THE 9 ASSESSEE HAD OWNED 40% OWNERSHIP IN THE LAND MEASUR ING 587.79 SQ. METER. HE ESTIMATED THE VALUE OF THE LAND AT RS.35,26,650/ - AS AGAINST THE AMOUNT OF RS.48,68,187/- ARRIVED AT BY DVO. AS REGARDS THE VA LUATION OF BUILDING, THE DVO ESTIMATED THE VALUE OF FIRST FLOOR AT RS.9,50,9 12/-. THE LD. CIT(A) CONSIDERING THE NATURE OF CONSTRUCTION, THE FACILIT IES PROVIDED, SUBSEQUENT VALUE ADDITION AND AGE OF BUILDING ALLOWED FURTHER DISCOUNT OF 20% ON THE VALUE DETERMINED BY DVO. HE ACCORDINGLY REWORKED OU T THE VALUE OF FIRST FLOOR AT RS.7,60,730/-. LD. CIT(A) FURTHER ALLOWED 5% DISCOUNT ON ACCOUNT OF CO-OWNERSHIP. ACCORDINGLY, THE VALUE OF LAND AND BUILDING WAS DETERMINED AT RS.40,73,011/- AS AGAINST RS.58,19,10 0/- DETERMINED BY THE DVO. THIS RESULTED IN AN ADDITION OF RS.15,23,011/- . THE LD. CIT(A) ACCORDINGLY UPHELD THE ADDITION OF RS.15,23,011/-. 11. AGGRIEVED BY THE ORDER OF LD. CIT(A), THE ASSES SEE IS IN APPEAL BEFORE US IN RESPECT OF SUSTENANCE OF ADDITION OF RS.15,23 ,011/- AND THE REVENUE IS IN APPEAL RESTRICTING THE ADDITION TO RS.15,23,011/ - AS AGAINST RS.32,69,100/-. 12. BEFORE US, LD. A.R. OF THE ASSESSEE SUBMITTED T HAT THERE WAS NO MATERIAL ON RECORD BEFORE THE ASSESSING OFFICER FOR MAKING REFERENCE U/S 142A AND, THEREFORE, REFERENCE MADE BY ASSESSING OF FICER WAS NOT VALID. THE REFERENCE TO VALUATION OFFICER HAS BEEN MADE ON THE BASIS OF SURMISES AND CONJECTURES. IT HAS ALSO BEEN SUBMITTED THAT TH E BOOKS OF ACCOUNT OF THE ASSESSEE HAVE BEEN ACCEPTED AND NO DEFECT HAD BEEN POINTED OUT. THE VALUATION REPORT OF DVO CANNOT BE TREATED AS INFORM ATION IN POSSESSION OF ASSESSING OFFICER FOR THE PURPOSE OF REOPENING OF A SSESSMENT. HE PLACED RELIANCE ON THE FOLLOWING DECISIONS: (1) CIT V. SMT. PREM KUMARI SURANA(RAJ.) 206 ITR 71 5 (2) CIT V. V.T.RAJENDRAN 288 ITR 312 10 (3) CIT V. DARSHAN SINGH (P&H) 272 ITR 650 (4) TEJ PRATAP SINGH V. ACIT (DELHI) 307 ITR(AT) 24 4 13. IT HAS ALSO BEEN SUBMITTED THAT THE VALUATION OFFICER HAS RELIED ON THE COMPARABLE CASE OF PUNJABJI BAGH IN RESPECT OF PROP ERTY LOCATED AT RAJOURI GARDEN AND, THEREFORE, THE COMPARISON MADE BY THE V ALUATION OFFICER IS NOT CORRECT. MOREOVER, AS PER PROVISIONS OF SEC. 50C, T HE MARKET VALUE OF THE PROPERTY IS TO BE TAKEN AS DETERMINED BY STAMP VALU ATION AUTHORITIES. IT HAS FURTHER BEEN SUBMITTED THAT THE ASSESSEE HAD CLAIME D 30% DEDUCTION ON ACCOUNT OF BUILDING BECAUSE OF VARIOUS FACTORS BUT THE LD. CIT(A) HAS RESTRICTED IT TO 20%. THEREFORE, THE VALUE OF BUILD ING HAS BEEN VALUED ON HIGHER FIGURE. 14. ON THE OTHER HAND, LD. SR. D.R. SUBMITTED THAT A REFERENCE TO DVO WAS MADE DURING THE PENDENCY OF ORIGINAL ASSESSMENT PRO CEEDINGS. THE VALUATION OFFICER HAD GIVEN THE VALUATION SUBSEQUEN T TO COMPLETION OF ASSESSMENT U/S 143(3). SINCE THERE WAS DIFFERENCE I N THE VALUE, IT CONSTITUTED A SUFFICIENT INFORMATION IN POSSESSION OF ASSESSING OFFICER FOR REOPENING OF ASSESSMENT. IT HAS ALSO BEEN SUBMITTED THAT FACTS O F THE CASE RELIED UPON BY THE ASSESSEE ARE ENTIRELY DIFFERENT FROM THE FACTS OF THE CASE BEFORE US. THEREFORE, ASSESSEES CASE IS NOT COVERED BY THE DE CISIONS RELIED UPON BY HIM. HE FURTHER SUBMITTED THAT PLAIN READING OF SEC . 142A IT IS CLEAR THAT REFERENCE CAN BE MADE TO DVO FOR THE PURPOSE OF ASC ERTAINING THE CORRECT VALUE OF THE PROPERTIES WHETHER HELD AS STOCK IN T RADE OR AS AN INVESTMENT. AS REGARDS THE APPEAL FILED BY THE REVENUE, IT HAS BEEN SUBMITTED THAT REDUCTION IN VALUE OF BUILDING HAS BEEN GIVEN BY LD . CIT(A) ARBITRARILY. HE HAS ALLOWED REDUCTION OF 20% WITHOUT ANY REASONS. H E HAS ALSO ALLOWED REDUCTION OF 5% OF VALUE OF CO-OWNERSHIP. NO REASON S HAVE BEEN MENTIONED 11 FOR GIVING A REDUCTION OF 20% AND 5%. IT HAS ALSO B EEN SUBMITTED THAT THERE IS NOT MUCH DIFFERENCE IN THE AREA OF PUNJABI BAGH AND RAJOURI GARDEN AND, THEREFORE, THE SALE INSTANCES OF PUNJABI BAGH COULD BE TAKEN AS COMPARABLE CASE FOR RAJOURI GARDEN PROPERTIES. ACCORDINGLY THE VALUATION OFFICER WAS JUSTIFIED IN DETERMINING THE VALUE OF THE PROPERTY AT RS.58,19,100/- AS AGAINST RS.25,50,000/- DECLARED BY THE ASSESSEE. 15. WE HAVE HEARD BOTH THE PARTIES AND GONE THROUGH THE MATERIAL AVAILABLE ON RECORD. THERE IS NO DISPUTE THAT THE A SSESSING OFFICER MADE REFERENCE U/S 142A OF THE ACT FOR THE PURPOSE OF ES TIMATION OF INVESTMENT IN THE PROPERTY DURING THE COURSE OF ORIGINAL ASSESSME NT PROCEEDINGS. HOWEVER, THE VALUATION OFFICER COULD NOT FURNISH HIS REPORT TO ASSESSING OFFICER BEFORE 31/3/2006. SUBSEQUENTLY, THE REPORT OF DVO W AS RECEIVED ON 21/12/2006. THE CONTENTION OF THE ASSESSEE IS THAT THE ASSESSING OFFICER PASSED ORDER U/S 143(3) AFTER CONSIDERING THE ENTIR E MATERIAL ON RECORD AND, THEREFORE, REOPENING OF ASSESSMENT AMOUNTS TO CHANG E OF OPINION AS THERE WAS NO INFORMATION IN POSSESSION OF THE ASSESSING O FFICER. AS PER THE DVOS REPORT, THE VALUE OF PROPERTY HAS BEEN ESTIMA TED AT RS.58,19,100/- AS AGAINST ADMITTED BY THE ASSESSEE AT RS.25,50,000/-. THEREFORE, THE ASSESSING OFFICER WAS IN RECEIPT OF INFORMATION IN THE FORM O F DVOS REPORT. CONSEQUENTLY, THE REOPENING OF ASSESSMENT CANNOT BE TREATED BASED ON CHANGE OF OPINION. THE ASSESSMENT HAS BEEN REOPENED WITHIN FOUR YEARS FROM THE END OF THE ASSESSMENT YEAR 2003-04. THEREF ORE, THE ASSESSEES CASE FALLS UNDER THE MAIN PROVISIONS OF SEC. 147 ACCORDI NG TO WHICH IF THE ASSESSING OFFICER HAS REASON TO BELIEVE THAT ANY IN COME FOR ANY ASSESSMENT YEAR HAS ESCAPED ASSESSMENT, HE MAY SUBJECT TO PROV ISIONS OF SEC. 148 TO SEC. 153 ASSESS OR RE-ASSESS SUCH INCOME. NO DOUBT, THERE ARE CERTAIN DECISIONS TO THE EFFECT THAT ASSESSING OFFICER CANN OT REOPEN THE ASSESSMENT 12 MERELY ON CHANGE OF OPINION. THE REPORT OF THE DVO WAS RECEIVED SUBSEQUENTLY AND, THEREFORE, REOPENING OF ASSESSMEN T CANNOT BE TREATED AS CHANGE OF OPINION. HONBLE SUPREME COURT IN THE CAS E OF ACIT V. RAJESH JHAVERI STOCK BROKERS P. LTD. 291 ITR 500 HAS HELD THAT THE EXPRESSION REASON TO BELIEVE IN SEC. 147 WOULD MEAN CAUSE OR JUSTIFICATION. IF THE ASSESSING OFFICER HAS CAUSE OR JUSTIFICATION TO KNO W OR SUPPOSE THAT INCOME HAS ESCAPED ASSESSMENT, HE CAN BE SAID TO HAVE REAS ON TO BELIEVE THAT INCOME HAD ESCAPED ASSESSMENT. THE EXPRESSION CANNOT BE RE AD TO MEAN THAT THE ASSESSING OFFICER SHOULD HAVE FINALLY ASCERTAINED T HE FACT BY LEGAL EVIDENCE OR CONCLUSION. WHAT IS REQUIRED IS REASON TO BELIE VE BUT NOT THE ESTABLISHED FACT OF ESCAPEMENT OF INCOME. AT THE STAGE OF ISSUE OF NOTICE, THE ONLY QUESTION IS WHETHER THERE WAS RELEVANT MATERIAL ON WHICH A REASONABLE PERSON COULD HAVE FORMED THE REQUISITE BELIEF. WHET HER MATERIAL WOULD CONSTITUTE CONCLUSIVELY PROVE ESCAPEMENT OF INCOME IS NOT THE CONCERN AT THAT STAGE. THIS IS SO BECAUSE THE FORMATION OF BEL IEF IS WITHIN THE REALM OF THE SATISFACTION OF THE ASSESSING OFFICER. FROM THE DECISION OF HONBLE SUPREME COURT, IT IS CLEAR THAT AT THE TIME OF REOP ENING OF ASSESSMENT, THE ASSESSING OFFICER HAD TO SEE WHETHER THERE WAS ANY MATERIAL ON THE BASIS OF WHICH A REASONABLE PERSON COULD HAVE FORMED THE REQ UISITE BELIEF. IN THE INSTANT CASE, DVOS REPORT CONSTITUTES THE RELEVANT MATERIAL IN ORDER TO ENABLE THE ASSESSING OFFICER TO FORM AN OPINION THA T INCOME HAS ESCAPED ASSESSMENT. ACCORDINGLY, IN OUR CONSIDERED OPINION, IT IS NOT A CASE OF CHANGE OF OPINION AND, THEREFORE, THIS GROUND OF AP PEAL RAISED BY THE ASSESSEE IS DISMISSED. 16. THE NEXT CONTENTION RAISED BY THE ASSESSEE IS T HAT THE PROPERTY WAS HELD AS STOCK-IN-TRADE AND HENCE NO UNEXPLAINED I NVESTMENT WAS MADE. THE ASSESSEE HAD ONLY INCURRED EXPENDITURE IN ACQUI RING THE PROPERTY, 13 THEREFORE, THE ASSESSEES CASE DOES NOT FALL U/S 69 AND CONSEQUENTLY REFERENCE COULD NOT BE MADE U/S 142A OF THE ACT. TO SUPPORT H IS CONTENTION, IT HAS BEEN STATED THAT PROPERTY WAS DULY RECORDED IN THE BOOKS OF ACCOUNT. LD. CIT(A) WHILE DEALING WITH THIS ARGUMENT OF THE ASSE SSEE, HAS OBSERVED THAT PROVISIONS OF SEC. 142A CAN BE INVOKED WHETHER IT I S FOR THE INVESTMENT PURPOSE OR STOCK-IN-TRADE. THERE IS NO DIFFERENTIAT ION MADE IN THE ACT ABOUT THE REFERENCE TO DVO. THE ONLY REQUIREMENT IS EXIS TENCE OF ANY VALUABLE ARTICLE OR THING WHICH EITHER UNDISCLOSED OR PARTLY DISCLOSED IN THE BOOK OF ACCOUNT. SINCE THE EXISTENCE OF PROPERTY WAS NOT IN DISPUTE BUT THE PURCHASE AMOUNT WAS NOT FULLY DISCLOSED, THE ASSESSING OFFIC ER WAS JUSTIFIED IN MAKING THE REFERENCE TO DVO. 16.1 UNDER SEC. 142(1) FOR THE PURPOSES OF MAKING A N ASSESSMENT OR REASSESSMENT UNDER THE INCOME-TAX AT, 1961, WHERE A N ESTIMATE OF VALUE OF ANY INVESTMENT REFERRED TO IN SEC. 69 OR 69B OR VAL UE OF ANY BULLION, JEWELLERY OR OTHER VALUABLE ARTICLES REFERRED TO IN SEC. 69A OR 69B IS REQUIRED TO BE MADE, THE ASSESSING OFFICER MAY REQUIRE THE V ALUATION OFFICER TO MAKE AN ESTIMATE OF SUCH VALUE AND REPORT THE SAME TO HI M. FROM THE LANGUAGE OF SEC. 142A(1), IT IS CLEAR THAT REFERENCE UNDER THIS SECTION CAN BE MADE BY THE ASSESSING OFFICER FOR THE PURPOSE OF ESTIMATION OF INVESTMENT U/S 69 OR SEC. 69A OR 69B. IN THE INSTANT CASE, THE PURCHASE PRICE HAS NOT BEEN FULLY DISCLOSED IN THE BOOKS OF THE ASSESSEE AND, THEREFO RE, ASSESSEES CASE WILL BE COVERED BY PROVISIONS OF SEC. 69B OF THE ACT. SECTI ON 69B DEALS WITH THE CASES WHERE ASSESSEE HAS MADE INVESTMENTS AND ALSO THE CASES WHERE ASSESSEE IS FOUND TO BE OWNER OF ANY BULLION, JEWEL LERY OR OTHER VALUABLE ARTICLES AND WHERE THE ASSESSING OFFICER FINDS THAT AMOUNT EXPENDED ON MAKING SUCH INVESTMENTS OR IN ACQUIRING SUCH BULLIO N, JEWELLERY OR OTHER VALUABLE ARTICLE EXCEEDS THE AMOUNT RECORDED IN THE BOOKS OF ACCOUNT 14 MAINTAINED BY THE ASSESSEE FOR ANY SOURCE OF INCOME AND THE ASSESSEE DOES NOT OFFER EXPLANATION, THE EXCESS AMOUNT SHALL BE D EEMED TO BE THE INCOME OF THE ASSESSEE. THE SECTION DOES NOT SPECIFICALLY EXCLUDES THAT THE STOCK-IN- TRADE WOULD NOT FALL IN DEFINITION OF VALUABLE ART ICLE. THEREFORE, THE AMOUNT EXPENDED ON ACQUISITION OF BUILDING WHETHER IT IS S TOCK-IN-TRADE OR AS INVESTMENT, IT WOULD BE COVERED BY THE PROVISIONS O F SEC. 69 AND 69B OF THE ACT. SINCE THE VALUE OF PROPERTY HAS NOT BEEN DISCL OSED FULLY BY ASSESSEE IN THE BOOKS OF ACCOUNT, IT IS COVERED BY THE PROVISIO NS OF SEC. 69B AND CONSEQUENTLY, THE ASSESSING OFFICER WAS JUSTIFIED I N MAKING REFERENCE U/S 142A OF THE ACT. ACCORDINGLY, WE DO NOT FIND ANY IN FIRMITY IN THE ORDER OF LD. CIT(A) CONFIRMING THE ACTION OF ASSESSING OFFIC ER FOR MAKING REFERENCE U/S 142A OF THE ACT. 17. THE NEXT CONTENTION OF THE ASSESSEE IS THAT THE DVO HAS TAKEN THE SALE INSTANCES OF REMOTE AREA AND NOT CONSIDERED THE INS TANCES OF THE SAME LOCALITY DULY PLACED ON RECORD. THE DVO HAS TAKEN T HE SALE INSTANCE OF PUNJABI BAGH WHICH WAS APPROVED BY THE APPROPRIATE AUTHORITY OF THE INCOME-TAX DEPARTMENT. THE PROPERTY WAS SOLD ON 16/ 8/1999 @RS.17,186/- PER SQMTRS. THE DVO HAS APPLIED THE SAME RATE TO TH E PROPERTY LOCATED AT RAJOURI GARDEN. BOTH LOCALITIES ARE NOT ADJACENT BU T ARE VERY NEAR AND ARE LOCATED NEAR INNER RING ROAD. IT IS ALSO A FACT THA T RATE OF THE PROPERTY IN ASSESSMENT YEAR 2003-04 WERE HIGHER THAN THE RATES IN 1999. THE ASSESSEE HAD PLACED RELIANCE ON THE LAND RATES FOR THE PURPO SE OF CONVERSION OF LEASE- HOLD LAND TO FREE-HOLD. AS PER ANNEXURE-D OF THE BR OCHURE ISSUED BY MIN. OF URBAN DEVELOPMENT AND POVERTY ALLEVIATION, LAND AND DEVELOPMENT OFFICE IN JUNE, 2003, THE AREA OF RAJOURI GARDEN AS WELL AS THAT OF PUNJABI BAGH HAVE NOT BEEN SPECIFIED. NO OTHER MATERIAL HAS BEE N BROUGHT ON RECORD TO PROVE THAT THE MARKET RATE OF THE PROPERTY WAS LOWE R THAN ADOPTED BY THE 15 DISTRICT VALUATION OFFICER. SINCE THE PUNJABI BAGH AND RAJOURI GARDEN ARE AT A DISTANCE OF 2-3 KMS AND LOCATED NEAR THE RING ROA D, THE LAND PRICE OF THE AREA WOULD BE IDENTICAL. SINCE THE DVO HAS RELIED O N THE PRICE OF LAND SOLD IN 1999 SUBJECT TO CERTAIN MODIFICATION @ RS.17,186 /-, IN OUR CONSIDERED OPINION, IN THE ABSENCE OF NEGATIVE POINTS, THE PRI CE ADOPTED BY DVO HAS TO BE UPHELD. HOWEVER, THE LD. CIT(A) HAD ADOPTED THE RATE OF LAND @RS.15,000/- PER SQ. MTRS. WITHOUT GIVING ANY REASO NS. HE HAS DISCUSSED THE GENERAL PRINCIPLES ON THE BASIS OF WHICH THE VALUE OF PROPERTY MAY BE DETERMINED. IN THE ABSENCE OF ANY SUCH NEGATIVE POI NT, IN OUR CONSIDERED OPINION, LD. CIT(A) WAS NOT JUSTIFIED IN REDUCING T HE COST OF LAND @RS.15,000 PER SQ.MTR. THE LD. CIT(A) HAS AGAIN ALL OWED DEDUCTION OF 20% IN RESPECT OF BUILDING ON DVOS REPORT WITHOUT GIVI NG THE DETAILS. THE ASSESSEE HAD NOT GIVEN ANY MATERIAL TO PROVE THAT D ISCOUNT ALLOWED ON THE BUILDING @20% WAS JUSTIFIED. HE HAD SIMPLY SUBMITTE D THAT ALLOWANCE SHOULD HAVE BEEN MORE THAN 20%. SINCE THE LD. CIT(A ) HAS NOT GIVEN ANY REASONS FOR REDUCTION IN THE VALUE OF THE LAND AS W ELL AS THE BUILDING, IN OUR CONSIDERED OPINION, THE REDUCTION ALLOWED BY THE LD . CIT(A) IS NOT JUSTIFIED. 18. THE ASSESSEE HAS PLACED RELIANCE ON THE DECISIO N OF HONBLE RAJASTHAN HIGH COURT IN THE CASE OF CIT V. SMT. PREM KUMARI S URANA (SUPRA) FOR THE PROPOSITION THAT VALUERS REPORT DOES NOT CONSTITUT E THE INFORMATION AND CANNOT FORM BASIS FOR REOPENING AN ASSESSMENT U/S 1 47(B) OF THE ACT. IN THIS CASE, THE REFERENCE WAS MADE U/S 55A AFTER COMPLETI ON OF ASSESSMENT AND THEREAFTER ON RECEIPT OF REPORT, THE CASE WAS REOPE NED U/S 147(B). IN THE CASE OF ASSESSEE A REFERENCE WAS MADE U/S 142A DURING TH E COURSE OF ASSESSMENT PROCEEDINGS AND THE DVO HAD NOT GIVEN THE REPORT B EFORE COMPLETION OF ASSESSMENT. HENCE, THE FACTS OF THE CASE ARE DISTIN GUISHABLE. IN THE CASE OF CIT V. DARSHAN SINGH (SUPRA), IT HAS BEEN HELD THAT DEPARTMENTAL VALUER 16 CANNOT BE CALLED UPON TO GIVE A REPORT TO THE ASSES SING OFFICER UNDER THE ACT EXCEPT A REFERENCE U/S 55A OR SECTION 269L OF THE A CT. THEREFORE, REPORT OF THE DVO WAS HELD TO BE INVALID. THE FACTS OF THE CA SE ARE ALSO DISTINGUISHABLE AS IN THE ASSESSEES CASE THE REFER ENCE HAS BEEN MADE U/S 142A AND NOT U/S 131(1)(D) OF THE ACT. THEREFORE, A SSESSEE DOES NOT GET ANY HELP FROM THIS DECISION. IN THE CASE OF CIT V. V.T. RAJENDRAN (SUPRA), THE ISSUE RELATED TO ESTIMATION OF COST OF CONSTRUCTION AND HENCE, THE FACTS ARE DISTINGUISHABLE IN THIS CASE ALSO. IN THE CASE OF T EJ PRATAP SINGH (SUPRA), THE REFERENCE WAS MADE U/S 131(1)(D) NOT U/S 142A. MORE OVER, IN THIS CASE THE REASSESSMENT PROCEEDINGS WERE INITIATED TO ASSESS T HE CAPITAL GAINS. UNDER THESE CIRCUMSTANCES, REOPENING OF ASSESSMENT WAS HE LD TO BE NOT VALID. HOWEVER, IN THE INSTANT CASE, THE REFERENCE HAS BEE N MADE U/S 142A AND, THEREFORE, FACTS OF THE CASE BEFORE US ARE DISTING UISHABLE BOTH ON FACTS AND LAW. FURTHER, LD. CIT(A) HAS PLACED RELIANCE ON THE DECISION OF I.T.A.T. DELHI BENCH IN THE CASE OF HANEMP PROPERTIES LTD. ( SUPRA) WHEREIN RELIANCE HAS BEEN PLACED ON THE DECISION OF HONBLE SUPREME COURT IN THE CASE OF C.B.GAUTAM WHEREIN IT HAS BEEN MENTIONED THAT WHERE THERE IS SIGNIFICANT UNDERVALUATION OF PROPERTY IN CONSIDERATION AS DISC LOSED IN THE AGREEMENT BETWEEN THE PARTIES AND THERE IS NO PLAUSIBLE EXPLA NATION FOR THAT UNDER VALUATION, THE SAME WOULD LEAD TO THE INFERENCE OF EVASION OF TAX OR UNDERSTATEMENT OF CONSIDERATION ALSO. IN THE CASE O F HANEMP PROPERTIES, IT HAS BEEN HELD THAT REFERENCE MADE BY THE ASSESSING OFFICER TO DEPARTMENTAL VALUATION OFFICER CANNOT BE HELD TO BE BAD IN LAW IN VIEW OF PROVISIONS OF SEC. 142A OF THE ACT INSERTED BY THE FINANCE (NO.2) ACT, 2004 WITH RETROSPECTIVE EFFECT FROM 15/11/1972. THEREFORE, AS SESSEES CASE IS DISTINGUISHING ON FACT AND LAW AND NO HELP CAN BE O BTAINED FROM THE DECISIONS CITED BY HIM. ACCORDINGLY, IN OUR CONSIDE RED OPINION, LD. CIT(A) WAS NOT JUSTIFIED IN REDUCING THE VALUE OF LAND AND BUILDING WITHOUT 17 ASSIGNING ANY REASONS RELATING TO THE IMPUGNED PROP ERTY. ACCORDINGLY, WE SET ASIDE THE ORDER OF LD. CIT(A) AND RESTORE THE O RDER OF ASSESSING OFFICER. 19. IN THE RESULT, APPEAL FILED BY THE ASSESSEE IS DISMISSED AND BY REVENUE IS ALLOWED. DECISION PRONOUNCED IN THE OPEN COURT ON 18TH DECE MBER, 2009. SD/- SD/- (GEORGE MATHAN) (K.D.RANJAN) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 18.12.2009. PSP COPY FORWARDED TO: - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT DEPUTY REGISTRAR