DCIT, New Delhi V. Smt. Seema Singhal, New Delhi

ITA 3645/DEL/2008

• Counselvise Citation: [2009] 114 COUNSELVISE.COM (IT) 9604 (ITAT-DELHI)
• Duration Of Justice: 9 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-09-2009
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: G
• Next Hearing Date: 30-09-2009
• Assessment Year: 2005-2006
• Appeal Filed On: 11-12-2008
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: GAJANAND MEENA
• Assessee Lawyers: RAVI P MALL
• Keywords: Fair market value
• Section: 69

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH G : NEW DELHI BEFORE SHRI A.D.JAIN, JM AND SHRI R.C.SHARMA, AM ITA NO.3645/DEL/2008 ASSESSMENT YEAR : 2005-06 DY.COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE-14, NEW DELHI. VS. SMT.SEEMA SINGHAL, D-45, HAUZ KHAS, NEW DELHI. PAN NO.AARPS7160E. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI GAJANAND MEENA, CIT-DR. RESPONDENT BY : SHRI RAVI P.MALL, ADVOCATE. ORDER PER R.C.SHARMA, AM : THIS IS AN APPEAL FILED BY THE REVENUE AGAINST THE ORDER OF CIT(A) DATED 4.9.2008 FOR THE AY 2005-06. 2. THE ONLY GRIEVANCE OF THE REVENUE RELATES TO DEL ETION OF ADDITION OF RS.17,28,320/- MADE U/S 69 OF THE IT ACT. 3. FACTS IN BRIEF ARE THAT DURING THE COURSE OF ASS ESSMENT U/S 153A/143(3), THE AO OBSERVED THAT DURING THE YEAR THE ASSESSEE HAS P URCHASED SHARE IN 1 ST FLOOR OF A-49, HAUZ KHAS, NEW DELHI AT RS.15 LAKHS, WHICH HE REFERRED TO THE DVO WHO HAS ESTIMATED SHARE OF INVESTMENT AT RS.40,35,400 /- WHICH WAS REPLIED BY THE ASSESSEE IN GREAT DETAIL AND NARRATED BY THE AO HIM SELF IN HIS ORDER AT PAGE 2. CONTENTION OF ASSESSEE WAS THAT COMPARISON MADE BY DVO WITH THE PROPERTY WAS NOT COMPARABLE WITH THE HOUSE PURCHASED BY ASSESSEE . HOWEVER, BEING NOT AGREEING WITH THE CONTENTION OF THE ASSESSEE, AN AD DITION WAS MADE U/S 69 ON ACCOUNT OF DIFFERENCE IN THE PRICE AT WHICH ASSESSE E ACQUIRED THE PROPERTY VIS--VIS THE DVOS REPORT. ITA-3645/D/2008 2 4. BY THE IMPUGNED ORDER, CIT(A) DELETED THE ADDITI ON BY OBSERVING THAT AO HAS NOT BROUGHT ANY EVIDENCE TO ALLEGE THAT ASSESSE E HAD ACTUALLY MADE EXTRA INVESTMENT IN PURCHASE OF PROPERTY OVER AND ABOVE T HE STATED CONSIDERATION IN THE SALE DEED. HE THEREFORE CONCLUDED THAT IN THE ABSE NCE OF ANY OTHER EVIDENCE, FAIR MARKET VALUE OF THE PROPERTY AS INTIMATED BY THE DV O CANNOT BE MADE A GROUND FOR MAKING ANY ADDITION. THE CIT(A) DISCUSSED VARI OUS DECISIONS OF HON'BLE SUPREME COURT AND HIGH COURT, PAGE 8 TO 10 OF HIS A PPELLATE ORDER AND BY RELYING ON THE RATIOS SO LAID DOWN DELETED THE ADDITION MAD E BY THE AO. 5. WE HAVE CONSIDERED THE RIVAL CONTENTIONS AND FOU ND FROM THE RECORD THAT THERE WAS NO IOTA OF EVIDENCE IN THE HANDS OF THE A O TO SAY THAT ASSESSEE HAS PAID MORE THAN WHAT HAS BEEN STATED IN THE SALE DEED OF THE PROPERTY PURCHASED BY HER. IN VIEW OF THE FACT THAT NO MATERIAL WAS FOUND INDI CATING ANYTHING PAID OVER AND ABOVE THE REGISTERED SALE PRICE OF THE PROPERTY SO ACQUIRED, KEEPING IN VIEW OF THE DECISION OF HON'BLE SUPREME COURT IN THE CELEBRATED JUDGMENT OF K.P.VERGHESE 131 ITR 596 WHEREIN IT WAS HELD THAT ONUS LIES ON T HE DEPARTMENT TO PROVE THAT SOME CONSIDERATION OVER AND ABOVE THE CONSIDERATION STATED IN THE SALE DEED HAVE BEEN INVESTED, NO ADDITION CAN BE MADE ON PRESUMPTI ONS AND SUSPICIONS. IN THE LATEST CASE OF CIT VS. SHAKUNTALA DEVI (ITA NO.345/ 2007), HON'BLE DELHI HIGH COURT HELD IT MAY BE RELEVANT TO NOTE THAT A DIVIS ION BENCH 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 REVEN UE THAT THE ASSESSEE HAD RECEIVED AMOUNTS OVER AND ABOVE THE CONSIDERATION STATED IN THE SALE 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 HON'BLE DELHI HIGH COUR T IN CIT VS. ASHOK KHETRAPAL 294 ITR 143 OBSERVED THAT BY REFERRING TO THE REPOR T OF VALUATION OFFICER IN THE ABSENCE OF ANY INCRIMINATING DOCUMENTS FOUND IN THE COURSE OF A SEARCH NO ADDITION COULD BE MADE BY TREATING INVESTMENT AS UN DISCLOSED ON THE BASIS OF ANY DVOS REPORT. THE DECISION IN CIT VS. MANOJ JAIN 2 87 ITR 285 IS ALSO TO THE ITA-3645/D/2008 3 SAME EFFECT. IN CIT VS. SHIVAKAMI COMPANY (P) LTD. 151 ITR 79(SC), THEIR LORDSHIPS HAVE ONCE AGAIN RETREATED THAT ONUS WHETH ER THE ASSESSEE HAD RECEIVED MORE CONSIDERATION THAN WHAT WAS STATED IN THE DOCU MENTS OF TRANSFER, RESTED ON THE REVENUE AND IN THE ABSENCE OF THAT BURDEN HAVIN G BEEN BEING DISCHARGED, IT WOULD BE LEGALLY IMPERMISSIBLE TO MAKE ANY INFERENC ES AGAINST THE ASSESSEE. IN VIEW OF ABOVE DISCUSSION, WE DO NOT FIND ANY INFIRM ITY IN THE ORDER OF CIT(A). 6. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISM ISSED. DECISION PRONOUNCED IN THE OPEN COURT ON CONCLUSION OF HEARING ON 30 TH SEPTEMBER, 2009. SD/- SD/- (A.D.JAIN) (R.C.SHARMA) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 30.09.2009. VK. COPY FORWARDED TO: - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT DEPUTY REGISTRAR