ACIT, New Delhi V. Sh. Rashmi Chaturvedi, New Delhi

ITA 3760/DEL/2011

• Counselvise Citation: 376020114 RSA 2011
• Duration Of Justice: 2 year(s) 8 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-04-2014
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: F
• Next Hearing Date: 12-02-2014
• Assessment Year: 2003-2004
• Appeal Filed On: 04-08-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: M B REDDY
• Assessee Lawyers: SURESH ANANTHARAMAN
• Keywords: Unexplained investment; Capital asset; Question of law; Cost of acquisition; Fair market value; Corroborative evidences; Valuation report
• Section: 143(3); 153A; 147; 69; 132

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: F NEW DELHI BEFORE SMT DIVA SINGH, JUDICIAL MEMBER AND SHRI T.S.KAPOOR, ACCOUNTANT MEMBER I.T.A .NO.-3760/DEL/2011 (ASSESSMENT YEAR-2003-04) ACIT, CENTRAL CIRCLE-18, ROOM NO-327, ARA CENTRE, E-2, JHANDEWALAN EXTN., NEW DELHI-110055 (APPELLANT) VS RASHMI CHATURVEDI, 305, 3 RD FLOOR, BHANOT CORNER, PAMPOSH ENCLAVE, G.K.-II, NEW DELHI. PAN-AACPC1732D (RESPONDENT) APPELLANT BY: SH.M.B.REDDY, CIT DR RESPONDENT BY: SH. SURESH ANANTHARAMAN, CA. ORDER PER DIVA SINGH, JM THIS IS AN APPEAL FILED BY THE REVENUE AGAINST THE ORDER DATED 13.05.2011 OF CIT(A)-III, NEW DELHI PERTAINING TO 2003-04 ASSESS MENT YEAR ON THE FOLLOWING GROUNDS:- 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE CIT(A) HAS ERRED IN LAW AND ON FACTS IN DELETING THE ADDITION RS.1,60,1 1,000/- MADE BY THE ASSESSING OFFICER U/S 69 OF THE INCOME TAX ACT, 196 1 ON ACCOUNT OF UNEXPLAINED INVESTMENT IN PROPERTY. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE CIT(A) HAS ERRED IN LAW AND ON FACTS IN HOLDING THAT NO ADDITION CAN BE MADE BY THE ASSESSING OFFICER U/S 153A OF THE INCOME TAX ACT, 1961 BY INV OKING THE PROVISIONS OF SECTION 69 IN THE ABSENCE OF INCRIMINATING MATERIAL FOUND DURING SEARCH U/S 132 OF THE INCOME TAX ACT, 1961. 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE CIT(A) HAS ERRED IN LAW AND ON FACTS IN BRUSHING ASIDE EVIDENTIARY VALU E OF THE VALUATION REPORT OF DVO WHICH WAS BASED ON SCIENTIFIC METHOD APPROVE D BY THE GOVT. AND WITHOUT REBUTTING THE FACTS MENTIONED THEREIN. 2 I.T.A .NO.-3760/DEL/2011 4. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE CIT(A) HAS ERRED IN LAW AND ON FACTS IN DELETING THE ADDITION MADE BY T HE AO U/S 69 ON THE GROUND OF ABSENCE OF ANY ACTUAL EVIDENCE ALLEGING O R ESTABLISHING THAT EXTRA INVESTMENT WAS MADE BY THE ASSESSEE, AS IT PLACES A N UNFAIR BURDEN ON THE DEPARTMENT AS AVAILABILITY OF DIRECT EVIDENCE IS IM POSSIBLE IN SUCH TYPE OF CASES AS BOTH PARTIES GAIN BY UNDERSTATING THE REAL CONSIDERATION OF IMMOVABLE PROPERTY WHICH IS TRANSFERRED. 5. THE ORDER OF THE LD. CIT(A) IS ERRONEOUS AND IS NOT TENABLE ON FACTS AND IN LAW. 6. THE APPELLANT CRAVES LEAVE TO ADD, ALTER OR AMEND A NY/ALL OF THE GROUNDS OF APPEAL BEFORE OR DURING THE COURSE OF THE HEARING O F THE APPEAL. 2. THE RELEVANT FACTS OF THE CASE ARE THAT THE SEARCH & SEIZURE OPERATION U/S 132 WAS CONDUCTED ON 23.02.2006 AND AGAIN ON 10.05.2007 IN M/S FLEX/UFLEX GROUP OF CASES. IN RESPONSE TO NOTICE U/S 153A RETURN DECLA RING AN INCOME OF RS.24,27,240/- WAS FILED ON08.02.2008. THE RECORD SHOWS THAT THE ORIGINAL RETURN OF INCOME IN THIS CASE WAS FILED ON 29.09.2003 DECL ARING AN IDENTICAL INCOME. THE CASE WAS TAKEN UP FOR SCRUTINY. THE SOURCE OF INCO ME DECLARED BY THE ASSESSEE WAS FOUND TO SALARY DERIVED FROM M/S FLEX INDUSTRIES LT D. AS A DIRECTOR AND INCOME FROM CAPITAL GAINS (LONG TERM CAPITAL LOSS CARRIED FORWARD) AND INCOME FROM OTHER SOURCES. THE AO IN HIS ORDER PASSED BY SECTI ON 153A R.W.S 143 PROCEEDINGS OBSERVED THAT THE ASSESSEE HAD PURCHASED LAND MEASU RING 4.4583 ACRES SITUATED IN CHHATERPUR, MEHRAULI, NEW DELHI THROUGH 7 SEPARATE SALE DEEDS EXECUTED IN THE MONTH OF JULY 2002. THE PARTICULARS OF THE SELLERS OF THE LAND AND THE AMOUNTS MENTIONED IN THE SALE DEEDS AS PER RECORD WERE AS U NDER :- NAME OF THE SELLERS AMOUNT M/S SETH BROTHERS 18,80,000/- CHAND SETH HUF 13,63,000/- HARISH SETH HUF 13,63,000/- KRISHNA SETH HUF 13,63,000/- AMIT SETH 13,63,000/- ADHAR SETH 13,63,000/- ARJUN SETH 13,63,000/- TOTAL 1,00,58,000/- 3 I.T.A .NO.-3760/DEL/2011 2.1. A PERUSAL OF THE RECORD SHOWS THAT THE ASSESS EE WAS FOUND TO HAVE CONSTRUCTED A FARM HOUSE ON THIS LAND WHICH WAS STA RTED IN THE YEAR RELEVANT TO ASSESSMENT YEAR 2005-06. REFERENCE WAS MADE U/S 14 2A TO THE VALUATION WING OF THE DEPARTMENT FOR ASSESSING THE VALUE OF INVESTMEN T IN THIS PROPERTY. REPORT OF THE DVO DATED 30.09.2009 WAS RECEIVED. AS PER THE SAID RETURN INVESTMENT ON LAND WAS WORKED OUT AT RS.260.110 LACS AS AGAINST INVEST MENT OF RS.100.580 LAKHS DECLARED BY THE ASSESSEE. THE AO OBSERVED THAT AS PER THE REPORT OF THE DVO, THE FAIR MARKET VALUE OF THE SUBJECT LAND WAS BASED ON COMPARATIVE SALE INSTANCE OF AGRICULTURAL LAND IN VILLAGE-SATBARI, MEHRAULI. TH E SALE INSTANCE OF THE PROPERTY HAD BEEN CLEARED BY THE APPROPRIATE AUTHORITY, INCO ME TAX DEPARTMENT, NEW DELHI. COPY OF THE SAID REPORT WAS FORWARDED TO TH E ASSESSEE FOR ITS OBJECTION AND AS PER RECORD THE FOLLOWING OBJECTIONS WERE SUMMED UP BY THE AO. THE SAME ARE EXTRACTED FROM PAGE 3 OF THE AO HEREUNDER:- I. THAT THE PAYMENTS TO VENDORS HAVE BEEN MADE BY WAY OF PAY ORDERS AND THE TOTAL AMOUNT AS PER THESE PAY ORDERS IS AS DECA LRED BY THE ASSESSEE. II. THAT AS PER SALE DEEDS ALSO, THE TOTAL COST OF LAND IS RS.100.580 LACS. III. THAT THE DVO INSTEAD OF INDEPENDENTLY MAKING A FAIR MARKET VALUE OF LAND WAS RELIED ON THE VALUED PROPERTY BY THE APPRO PRIATE AUTHORITY PRESUMABLY UNDER CHAPTER-XX-C OF THE ACT. IV. THAT THE COMPARATIVE INSTANCE PROPERTY WAS APPR OVED BY THE AUTHORITY ON 3.4.2002 WHEREAS THE ASSESSEE ACQUIRED THE CHHAT ARPUR PROPERTY ON 14.7.2002. V. THAT CHAPTER-XX-C OF THE ACT BECAME INAPPLICABLE W.E.F 1.7.2002. VI. THAT THE AREA OF THE INSTANCE PROPERTY HAS SEEN MUCH MORE RESIDENTIAL AND COMMERCIAL DEVELOPMENT ACTIVITIES THAN THE AREA IN WHICH PROPERTY OF ASSESSEE IS LOCATED. VII. THAT THE NOTIFIED CIRCLE RATE FOR AGRICULTURAL LAND AS PER GOVERNMENT RECORDS WAS MUCH LOWER THAN THE RATE AT WHICH THE A SSESSEE HAS PURCHASED THE LAND. VIII. THE ASSESSEE HAS ALSO FURNISHED INSTANCES OF TWO REGISTERED SALE DEEDS IN RESPECT OF PROPERTY LOCATED AT CHHATARPUR IN SUPPOR T OF HER CONTENTIONS. 2.2. THE RECORD SHOWS THAT THE AO REJECTED THESE O BJECTIONS ON ACCOUNT OF THE FOLLOWING REASONING:- 4 I.T.A .NO.-3760/DEL/2011 6. I HAVE CAREFULLY CONSIDERED THE CONTENTIONS PUT FORTH ON BEHALF OF THE ASSESSEE. HOWEVER, I DO NOT AGREE WITH THESE CONTE NTIONS ON THE FOLLOWING GROUNDS:- I. PAYMENTS MADE TO VENDORS BY WAY OF PAY ORDERS AT SO ME POINT OF TIME DOES NOT RULE OUT THE POSSIBILITY OF MAKING ADDITIO NAL SEPARATE PAYMENTS EITHER AT THAT TIME OR BEFORE OR AFTER SUCH TIME TO WARDS PURCHASE OF THE IMPUGNED LAND. II. IT IS COMMON KNOWLEDGE THAT IN THE TRANSACTIONS INV OLVING PURCHASE OF IMMOVABLE PROPERTY BETWEEN PRIVATE PARTIES, THE ACT UAL CONSIDERATION IS MUCH MORE THAN THE CONSIDERATION REFLECTED IN THE S ALE DEEDS THE ACTUAL. III. FOR ASSESSING THE COST OF LAND, THE DVO HAD OBVIOUS LY TO RELY UPON A COMPARABLE INSTANCE. FURTHER, THE CASE NGERS WHEN ANOTHER AUTHORITY I.E APPROPRIATE AUTHORITY HAS ALSO AGREED TO AND AP PROVED THE COMPARABLE INSTANCE. IV. THE LAND PURCHASED BY THE ASSESSEE IS SUBSEQUENT TO THE TRANSACTIONS INVOLVED IN THE COMPARABLE INSTANCE. THEREFORE, TH E VALUE OF LAND SHOULD BE MORE IN THE CASE OF THE ASSESSEE AND IT C ANNOT BE LESS EXCEPT WHEN ANY EXTRA ORDINARY ADVERSE CIRCUMSTANCES COULD BE PRESENT. NO SUCH EXTRA ORDINARY ADVERSE CIRCUMSTANCES HAVE BEEN POINTED OUT. V. THE MERE FACT THAT CHAPTER-XX-C OF THE INCOME TAX A CT BECAME IN APPLICABLE W.E.F A CERTAIN DATE DOES NOT IMPLY THAT THE OPINION OF THE APPROPRIATE AUTHORITY ON THE COMPARABLE SALE INSTAN CE COULD NOT ACCEPTED. VI. IT IS COMMON KNOWLEDGE THAT THE AREA IN WHICH THE L AND OF THE ASSESSEE IS SITUATED IS A VERY POST AREA AND THE VALUE OF PR OPERTY IN THIS AREA IS NOT LESS THAN THE AREA OF THE INSTANCE PROPERTY. VII. AS ADMITTED ON BEHALF OF THE ASSESSEE, THERE IS DEF INITELY A DIFFERENCE BETWEEN THE RATES OF LAND AS PER GOVERNMENT RECORDS AND THE ACTUAL CONSIDERATION FOR LAND TRANSACTIONS. VIII. THE INSTANCES OF SALE DEEDS QUOTED BY THE ASSESSEE ARE NOT COMPARABLE WITH THE LAND TRANSACTIONS ENTERED INTO BY THE ASSE SSEE BECAUSE OF DIFFERENCE IN THE AREA AND LOCATION OF THE INSTANCE PROPERTIES. 2.3. ON ACCOUNT OF THE ABOVE FACTS, THE AO MADE AN ADDITION OF RS.1,60,11,000/-. THE SPECIFIC REASONING SET OUT IN PARA 7 OF THE AO READS AS UNDER:- 7. IN VIEW OF THE FOREGOING DISCUSSION, IT IS CRYS TAL CLEAR THAT THE CONTENTIONS PUT FORTH BY THE ASSESSEE ARE NOT SATIS FACTORY. ON THE OTHER HAND, THE VALUE OF LAND CALCULATED BY THE DVO IS BASED UP ON MORE RELIABLE AND SCIENTIFIC FACTS PARTICULARLY WHEN ANOTHER EXPERT A UTHORITY HAS ALSO AGREED TO AND APPROVED THE INSTANCE PROPERTY FOR THE PURPOSE OF WORKING OUT THE COST OF LAND PURCHASED BY THE ASSESSEE. THEREFORE, COST OF LAND INCURRED BY THE ASSESSEE TOWARDS PURCHASE OF LAND (EXCLUSIVE OF STA MP CHARGES AND MISC. EXPENSES) IS ASSESSED AT RS. 260.110 LACS AS AGAINS T RS.100.580 LACS DECLARED BY THE ASSESSEE. THE VALUATION REPORT CLEARLY ESTA BLISHES THAT THE VALUE OF THE 5 I.T.A .NO.-3760/DEL/2011 LAND WAS MUCH MORE THAN THE VALUE SHOWN BY THE ASSE SSEE. THE SELLERS ARE IN NO WAY RELATED TO THE ASSESSEE SO THAT THEY WOULD H AVE GIVEN AWAY THEIR LAND AT THROWAWAY PRICE OUT OF NATURAL LOVE AND AFFECTION. THESE HAVE BEEN TRANSACTIONS BETWEEN INDEPENDENT PRUDENT PERSONS DO ING IT AT ARMS LENGTH. IN SUCH A SITUATION, THE ONLY INFERENCE WHICH IS TO BE DRAWN OUT OF THE FACTS OF THE CASE IS THAT THE ASSESSEE HAS PAID THE BALANCE AMOU NT AT UNACCOUNTED CASH PAYMENT IN ORDER TO AVOID STAMP DUTY, AND TO AVOID HIGHER INVESTMENT OF ACCOUNTED CAPITAL. THE DIFFERENCE HAS BEEN PAID OU T OF UNDISCLOSED SOURCES. ACCORDINGLY AN ADDITION OF RS.1,60,11,000/- IS MADE TO THE TOTAL INCOME DECLARED BY THE ASSESSEE AS UNEXPLAINED INVESTMENT U/S 69 OF THE INCOME TAX ACT, 1961. 3. AGGRIEVED BY THIS THE ASSESSEE CAME IN APPEAL BE FORE THE CIT(A) RAISING THE FOLLOWING GROUNDS :- 2. THE LD. AO IS WRONG ON FACTS AS WELL AS IN LAW TO ADD A SUM OF RS.1,60,11,000/- ON ACCOUNT OF UNEXPLAINED INVESTME NT U/S 69 OF THE INCOME TAX ACT, 1961 ON THE BASIS OF VALUATION REPORT OF D ISTRICT VALUATION OFFICER. 3. THE ADDITION MADE BY LD. AO IN THE ASSESSMENT U/ S 153A IS NOT QUA SEARCH MATERIAL, THEREFORE, LD. AO HAD NO JURISDICT ION TO MAKE ADDITION WITHOUT ANY INDISCRIMINATING DOCUMENTS/MATERIAL FOUND DURIN G THE SEARCH U/S 132. 3.1. THE OBJECTIONS OF THE ASSESSEE BEFORE THE FIR ST APPELLATE AUTHORITY, ASSAILING THE REPORT OF THE DVO ARE RECORDED IN PA RA 3.1 THE SAME IS EXTRACTED HEREUNDER FOR READY-REFERENCE:- 3.1. DURING THE APPELLANT PROCEEDINGS, THE APPELLA NT VIDE DETAILED SUBMISSIONS FILED ON 11.05.2011 INTER-ALIA SUBMITTE D AS FOLLOWS:- THE DVO, WHILE DETERMINING THE MARKET VALUE OF THE LAND AS 31 ST JULY 2002, WITHOUT APPLYING HIS MIND TO THE LOCATION, SIZE ETC . OF THE LAND, HAS MECHANICALLY ADOPTED THE VALUE CLEARED BY THE APPROPRIATE AUTHOR ITY UNDER CHAPTER XX-C OF THE ACT IN SOME OTHER INSTANCES. THE DVO AT PAGE 9 (RELEVANT PAGE NO.50 OF PAPER BOOK) OF THE VALUATION REPORT NOTES AS UNDER: - .. THE SUBJECT PROPERTY IS BUILT ON AGRICULTURAL LAND ADMEASURING 21 BIGHAS 8 BISWAS (4.458 ACRES) TO WORK OUT THE FAIR MARKET VALUE OF THE LAND OF THE SUBJECT PROPERTY, THE SALE INSTANCE OF COMPARATIVE LOCATION VIZ AN AGRICULTURAL LAND IN VILLAGE SATBARI, MEHRAU LI, NEW DELHI. THE SALE INSTANCE HAS BEEN CLEARED BY THE APPROPRIATE A UTHORITY, [T. DEPARTMENT, NEW DELHI, VIDE REGISTRATION NO. R-7099 DATED 3 RD APRIL 2002. ' IN THE SAME VALUATION REPORT DATED 8.09.2010, THE DVO DETER MINES THE VALUE OF THE LAND AT RS.61,73,913/- PER ACRE AND AFTER MAKING SOME ADJUSTMENTS DETERMINES THE FAIR MARKET VALUE OF LAND AT RS.2.60 CRORES. THAT THE DVO HAS COMPARE D THE APPELLANT'S PROPERTY LOCATED CHHATARPUR WITH ANOTHER PROPERTY AT VILLAGE SATBA RI. THE TRANSACTION OF SATBARI PROPERTY TOOK PLACE ON 3 RD APRIL 2002. THE APPELLANT'S TRANSACTION TOOK PLACE IN JUL Y 6 I.T.A .NO.-3760/DEL/2011 2002. ATTENTION IS ALSO INVITED TO SECTION 269-UP FALLING UNDER CHAPTER XX-C OF THE ACT. THE SAID SECTION READS AS UNDER: 'CHAPTER NOT TO APPLY WHERE TRANSFER OF IMMOVABLE P ROPERTY EFFECTED AFTER CERTAIN DATE 269 UP. THE PROVISIONS OF THIS CHAPTER SHALL NOT APPLY TO, OR IN RELATION TO, THE TRANSFER OF ANY IMMOVABLE PROPERTY EFFECTED ON OR AFTER THE I' DAY OF JULY, 2002. ' AS STATED ABOVE, THE IMPUGNED LAND WAS ACQUIRED BY THE AP PELLANT IN JULY 2002, DURING WHICH THE PROVISIONS RELATING TO CHAPTER XX-C WERE SCRAPPED FROM THE ACT. IT IS THUS SUBMITTED THAT THE RELIANCE OF THE DVO ON AN ORDER PASSED BY THE APPROPRIATE AUTHORITY IN APRIL 2002 IS ENTIRELY ERRONEOUS AND HAS NO LEGS TO STAND ON. THAT CHAPTER XX-C APPLIES ON PURCHASE OF IMMOVABLE PROPERTIES BY CENTRAL GOVERNMENT IN CERTAIN CASES OF TRANSFER. THAT THIS CHAPTER GIVES PRE-EMPTIVE RIGHT TO CENTRAL GOVERNM ENT TO PURCHASE IMMOVABLE PROPERTIES IN CERTAIN CASES OF TRANSFER. INFACT UNDER THI S CHAPTER, IF THE CONSIDERATION OF TRANSFER OF PROPERTIES BETWEEN TWO PARTIES ARE INADEQUATE THAN CENTRAL GOVERNMENT HAS THE PREEMPTIVE POWER T O PURCHASE THE PROPERTY AT AN AGREED PRICE BETWEEN THE PARTIES. THUS, THE ORDER UNDER THIS CHAPTER BY AN APPROPRIATE AUTHORITY DOES NOT DETERMINE THE FAIR MARKET VALU E BUT DETERMINED WHETHER THE VALUE ADOPTED BETWEEN SELLER AND BUYER OF THE PROPERTY IS ADEQUA TE OR NOT. THIS PRICE NEED NOT NECESSARILY BE A MARKET PRICE. HENCE, ADOPTING A PRICE WHICH IN THE OPINION OF APPROPRIATE AUTHORITY IS NOT INADEQUATE CANNOT BE C ALLED AS A FAIR MARKET RATE. IT WAS ALSO SUBMITTED BY THE APPELLANT THAT DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE ASSESSEE HAD FURNISHED TO THE AO C OPIES OF TWO SALE DEEDS IN RESPECT OF PROPERTY LOCATED AT CHHATARPUR. THESE SALE TRANS ACTIONS WERE BETWEEN INDEPENDENT PARTIES (OTHER THAN ASSESSEE). THESE TWO SALE DEEDS WERE EXECUTED ON 11 TH FEBRUARY 2002. THESE TWO SALE DEEDS AT PLACED AT PAGES 167 TO 213 OF THE PAPER BOOK. AS PER THE FIRST SALE DEED DATED 11 TH FEBRUARY,2002 (PAGES 167 TO 189 OF THE PAPER BOOK ), THE SALE PRICE PER BIGHA AMOUNTS TO RS.3,33,3801-.A S PER THE SECOND SALE DEED DATED 11 TH FEBRUARY, 2002 (PAGES 190 TO 213 OF THE PAPER BOO K),THE SALE CONSIDERATION AMOUNTS TO RS.3,33,742/- PER BIGHA. THE AMOUNT OF R S.1.13 CRORE AS ADMITTED BY THE APPELLANT ULTIMATELY TRANSLATES INTO RS 4.70 LAKHS PER BIGHA. IN NUTSHELL, IT IS SUBMITTED THAT TWO COMPARABLE SALE INSTANCES OF PROPERTY LOCA TED AT CHHATARPUR ITSELF WHEREIN THE APPELLANT'S PROPERTY IS ALSO LOCATED, THE SALE CONSIDERATION AMOUNTS TO RS.3.33 LAKHS PER BIGHA. THESE COMPARABLE SALE INSTANCES TO OK PLACE IN FEBRUARY 2002. THE APPELLANT'S COST OF ACQUISITION IS RS4.70 LAKHS PER BIGHA. THE APPELLANT REFERRED TO THE COPY OF NOTIFICATION DATED 2 ND AUGUST, 2001 ISSUED OF LT. GOVERNOR OF DELHI IN WHICH THE MINIMUM RATES OF AGR ICULTURAL LAND IN THE NATIONAL CAPITAL TERRITORY OF DELHI W.E.F. AUGUST, 2001 HAS BEEN FIXED AT RS.15,70,000/- PER ACRE WHICH TRANSLATES INTO A VALUE OF RS.3,27,083/- PER BIGHA. IT WAS CONTENDED BY THE APPELLANT THAT THE CONSIDERATION PAID BY THE ASSESSEE BEING RS4.70 LAKHS PER BIGHA IS THUS MORE THAN THE VALUE OF COMPARABLE PROPERTIES LOCATED AT CHHATARPUR (AS AGAINST A PROP ERTY LOCATED AT SATBARI VILLAGE BY THE DVO) AND THE MINIMUM CIRCLE RATE AS NOTIFIED BY THE LT. GOVERNOR OF DELHI. IT WAS FURTHER SUBMITTED BY THE AR OF THE APPELLANT THAT THE APPELLANT WAS SUBJECTED TO TWO SEARCH OPERATIONS U/S 132 AND THAT NO INCRIMINATING MATERIAL WAS FOUND TO INDICATE THAT THERE COULD BE A HIGHER INVESTMENT IN THE PURCHASE OF LAND THAN THE VALUE DECLARED BY THE APPELLANT. IT IS ALSO THE ARGUMENT OF THE APPELLANT THAT SECTI ON 142A OF THE ACT HAS BEEN INTRODUCED BY THE FINANCE (NO.2) ACT, 2004 WITH RET ROSPECTIVE EFFECT FROM15TH NOVEMBER 1972. SUB-SECTION (1) PROVIDES THAT FOR THE PURPOSES OF MAKING THE ASSESSMENT OR RE-ASSESSMENT, THE ASSESSING OFFICER 7 I.T.A .NO.-3760/DEL/2011 MAY REQUIRE THE DVO TO MAKE AN ESTIMATE OF THE FAIR MARKET VALUE OF ANY PROPERTY REFERRED TO IN SECTION 69 OF THE ACT. IT IS THUS SU BMITTED THAT THE DVO'S REPORT IS ONLY FOR THE PURPOSE OF MAKING AN ASSESSMENT OR RE- ASSESSMENT, THAT THE AO, IN ADDITION TO THE VALUATION REPORT, HAS TO BRING ON RECORD COGENT AND CORROBORATIVE EVIDENCE T O BE SATISFIED THAT THE ASSESSEE HAS INCURRED FURTHER SUMS OF MONEY IN ADDI TION TO THE AMOUNT ADMITTED AS INCURRED FOR ACQUISITION OF THE PROPERTY. THAT IN THE CASE OF THE APPELLANT, IT CAN BE SEEN T HAT THE DVO HAS MECHANICALLY RELIED ON THE VALUE APPROVED BY THE APPROPRIATE AUT HORITY FOR A PROPERTY LOCATED AT SATBARI VILLAGE, WHEREAS THE APPELLANT'S PROPERTY IS LOCATED AT VILLAGE CHHATARPUR. THAT THE DVO HAS NOT, WHILE VALUING THE IMPUGNED PROPERTY, INDEPENDENTLY APPLIED HIS MIND T O DETERMINE THE FAIR MARKET VALUE OF IMPUGNED LAND. THE AO ALSO HAD MECHANICALL Y APPLIED HIS MIND TO DETERMINE THE FAIR MARKET VALUE AND HAS TOTALLY ABD ICATED HIS RESPONSIBILITY IN GIVING CONCRETE FINDINGS AS REQUIRED BY SECTION 69 OF THE ACT. IT IS TRITE LAW THAT THE APPELLANT CANNOT PROVE AN INACTIVE FACT. 3.2. THE ASSESSEE FURTHER ASSAILED THE APPLICATIO N OF SECTION 69 ON FACTS. RELIANCE WAS ALSO PLACED UPON THE JUDGEMENT OF THE APEX COUR T IN THE CASE OF K.P.VARGHESE VS ITO 131 ITR 597 (SC) FOR THE PROPOSITION THAT CORROBORATIVE EVIDENCES NEEDS TO BE BROUGHT ON RECORD TO INDICATE THAT A LARGER A MOUNT HAS BEEN SPEND ON THE ACQUISITION OF THE PROPERTY. IT WAS SUBMITTED THAT ALTHOUGH THE SAID JUDGEMENT WAS IN THE CONTEXT OF CAPITAL GAINS HOWEVER IT WOULD AP PLY IN EQUAL FORCE TO THE PROVISIONS OF SECTION 69 AS THE PRINCIPLE WAS THAT WHAT IN FACT NEVER ACCRUED OR WAS NEVER RECEIVED CANNOT BE COMPUTED AS CAPITAL GA IN. 3.3. RELIANCE WAS ALSO PLACED UPON CIT VS MAHES H KUMAR 2010-TIOL-606-HC- DEL-IT AND IN THE CASE OF SMT. SURAJ DEVI 2010-TIOL -596-DEL-IT. 4. CONSIDERING THESE ARGUMENTS THE CIT(A) QU A GROUND NO-2 RAISED BEFORE HIM DIRECTED THE AO TO DELETE THE SAID ADDITION VID E PARA 4. QUA GROUND NO.-3 BEFORE HIM HE FURTHER CONFIRMED HIS VIEW VIDE PARA 5 AND DECIDED THE ISSUE IN ASSESSEES FAVOUR. 4.1. AGGRIEVED BY THIS THE REVENUE IS IN APPEAL BEFORE US. 5. LD. CIT DR, MR.M.B.REDDY INVITING ATTENTION TO THE ASSESSMENT ORDER SUBMITTED THAT IT IS A MATTER OF RECORD THAT THE AS SESSEE WAS SUBJECTED TO SEARCH AND 8 I.T.A .NO.-3760/DEL/2011 SEIZURE OPERATIONS U/S 132 TWICE ON 23.02.2006 AND 10.05.2007. IT WAS ALSO HIS SUBMISSION THAT THE ADDITION HAS BEEN BASED ON THE DVOS REPORT AND NO DOUBT IT IS A FACT THAT NOTHING INCRIMINATING WAS FOUND IN T HE COURSE OF THE SEARCH. HOWEVER IT WAS HIS STAND THAT REFERENCE TO THE DVO WAS MADE AS A RESULT OF THIS SEARCH AND BASED ON THE DVOS REPORT DULY CONFRONTED TO THE AS SESSEE, THE ADDITION HAS BEEN MADE WHEREIN THE COMPARISON OF ASSESSEES PURCHASE WAS MADE WITH THE SALE PRICE OF IDENTICAL SITUATED AGRICULTURAL LAND. IT WAS SU BMITTED THAT QUA THE MATERIAL USED THE OBJECTIONS OF THE ASSESSEE HAD BEEN INVITED WHI CH HAVE BEEN CONSIDERED ACCORDINGLY HE WOULD BE PLACING RELIANCE UPON THE A SSESSMENT ORDER. 6. LD. AR ON THE OTHER HAND PLACED HEAVY RELIANCE U PON THE IMPUGNED ORDER. IT WAS HIS SUBMISSION THAT THE POINT AT ISSUE IS FULLY COVERED IN ASSESSEES FAVOUR BY VIRTUE OF THE JUDGEMENT OF THE JURISDICTIONAL HIGH COURT IN THE CASE OF SMT. SURAJ DEVI, COPY OF WHICH IS PLACED AT PAGE 29 TO 31 RELI ED UPON BY THE CIT(A) AND JUDGEMENT OF THE DELHI HIGH COURT IN THE CASE OF CI T VS MAHESH KUMAR, COPY PLACED AT PAGES-23-25 IN THE PAPER BOOK. IT WAS HIS SUBMISSION THAT FACTS REMAINED IDENTICAL. APART FROM THAT ATTENTION WAS ALSO INVI TED TO THE LATEST DECISIONS OF DELHI HIGH COURT IN THE CASE OF 335 ITR 572 AND 328 ITR 5 16 AND ORDER DATED 28.06.2013 IN THE CASE OF MGF AUTOMOBILES VS ACIT I N ITA NO-4212 & 4213/DEL/2011, COPY PLACED AT PAGES 122-142 IN THE PAPER BOOK. IT WAS SUBMITTED THAT THIS ORDER HAS BEEN RENDERED BY THE DELHI BENCHES AND HAS BEEN AUTHORED BY ONE OF US (LD. AM). 7. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. THE JUDGEMENTS CITED IN THE ORDERS AND REL IED UPON BEFORE US HAVE ALSO BEEN CONSIDERED. ON A CONSIDERATION OF THE ENTIRE F ACTUAL AND LEGAL ASPECT OF THE CASE, WE FIND OURSELVES UNABLE TO COME TO A CONTRAR Y FINDING IN THE ABSENCE OF ANY ARGUMENT ASSAILING THE ACTION OF THE CIT(A). IT IS SEEN THAT CONSIDERING GROUND 9 I.T.A .NO.-3760/DEL/2011 NO-2 BEFORE HIM THE CIT(A) GAVE A DETAILED FINDING IN PARA 4 OF HIS ORDER WHICH HAS NOT BEEN ASSAILED ON FACTS NOR ANY CONTRARY JUD GEMENT HAS BEEN BROUGHT TO OUR NOTICE SO AS TO PERSUADE AS TO UPSET THE FINDING. I T MAY NOT BE OUT OF PLACE TO REPRODUCE GROUND NO-2 BEFORE THE CIT(A) AND HIS FIN DING THEREON FOR A PROPER APPRECIATION OF THE VIEW BEING TAKEN :- 2. THE LD. AO IS WRONG ON FACTS AS WELL AS IN LAW TO ADD A SUM OF RS.1,60,11,000/- ON ACCOUNT OF UNEXPLAINED INVESTME NT U/S 69 OF THE INCOME TAX ACT, 1961 ON THE BASIS OF VALUATION REPO RT OF DISTRICT VALUATION OFFICER. 4. FINDING ON GROUND NO.-2 I HAVE CAREFULLY CONSIDERED THE OBSERVATION OF THE AO, SUBMISSIONS MADE AND JUDICIAL PRONOUNCEMENTS RELIED UPON BY THE APPELLANT. IT IS A FACT ON RECORD THAT THE APPELLANT WAS SUBJECTED TO TWO C ONSECUTIVE SEARCHES U/S 132 AND THE PRESENT ASSESSMENT ORDER PASSED U/S 153 A READ WITH SECTION 143(3) HAS BEEN A RESULT OF THESE SEARCHES. THE OBS ERVATION OF THE AO DOES NOT REFER TO ANY INCRIMINATING EVIDENCE FOUND DURING TH E SEARCH OR EVEN OTHERWISE INDICATING THAT ANY ADDITIONAL/UNRECORDED PAYMENT O THER THAN WHAT IS PAID AND DISCLOSED IN THE SALE DEED EXECUTED BETWEEN THE APPELLANT AND SELLERS HAS PASSED HANDS. THE TWO INDEPENDENT INSTANCES OF SALES IN THE SAME VICINITY IN WHICH THE LAND PURCHASED BY THE APPELLANT IS SITUATED HAVE ALSO BE EN PERUSED FROM WHICH IT IS APPARENT THAT THE PRICE PAID BY THE APPELLANT IS MO RE THAN THE CONSIDERATION IN THE TWO SALES INSTANCES IN THE PROPERTY LOCATED IN CHHATARPUR ITSELF, ON WHICH RELIANCE HAS BEEN PLACED BY THE APPELLANT. FURTHER THE CIRCLE RATE AS NOTIFIED BY THE LT. GOVE RNOR OF DELHI VIDE NOTIFICATION DATED 2 ND AUGUST, 2001 IS ALSO LESS THAN THE CONSIDERATION P AID BY THE APPELLANT. MOREOVER, THE INSTANCE ADOPTED BY THE DVO & RELIED UPON BY. AO, THOUGH CLEARED AND APPROVED BY THE APPROPRIATE AUTHORITY C AN ALSO BE NOT ADOPTED AS SUCH AS THE FAIR MARKET VALUE, BECAUSE AS PER CH APTER - XX-C, THE POWER HAS BEEN GIVEN TO APPROPRIATE AUTHORITY TO BUY THE PROPERTY IN CASE THE CONSIDERATION BETWEEN BUYER AND SELLER IS INADEQUAT E. HENCE, THE INSTANCE CITED BY THE DVO IS NOT AN ABSOLUTE INDICATOR THAT THE PRICE MENTIONED IN THIS CASE IS ALSO THE FAIR MARKET VALUE. RATHER, IT IS Q UITE POSSIBLE THAT EVEN IN A CASE OF LESSER CONSIDERATION THAN IN THE INSTANCE RELIED UPON, IN THE SAME AREA AND DURING THE SAME P ERIOD, THE APPROPRIATE AUTHORITY COULD STILL HAVE TAKEN A VIEW FOR NOT MAK ING PRE-EMPTIVE PURCHASE OF SUCH PROPERTY. IN SUCH A SITUATION AS THIS IT CANNO T BE HELD WITH CERTAINTY THAT THE PRICE IS ALSO THE FAIR MARKET VALUE. TO FURTHER ELABORATE THE ARGUMENT, IT IS ONLY IF THE SALE CONSIDERATION IN APPELLANT'S CASE WAS FOUND TO BE LESS THAN THAT OF A SIMILAR PROPERTY, IN WHICH THE PRE-EMPTIVE PUR CHASE HAS BEEN MADE BY THE 10 I.T.A .NO.-3760/DEL/2011 APPROPRIATE AUTHORITY, THEN ONLY THE DEPARTMENT COU LD HAVE A PRIMA -FACIE CASE TO HOLD THE VIEW THAT THE PURCHASE CONSIDERATI ON IS UNDERSTATED . HOWEVER, IN SUCH A SITUATION TOO, IT WAS INCUMBENT UPON THE DVO TO HAVE REASONABLY AND INDEP ENDENTLY ESTIMATED THE F.M.V. MOREOVER, DESPITE TWO SEARCHES ON THE ASSESSEE, NOT HING WAS FOUND INDICATING ANY SUCH UNACCOUNTED PAYMENT MADE TO THE SELLER FOR THE SUBJECT LAND. ACCORDINGLY ,THE PRINCIPLE LAID DOWN BY HON'BLE SUP REME COURT IN THE CASE OF K.P. VARGHESE VS. ITO IN THE CONTEXT OF SEC. 52(2) APPLICABLE TO CAPITAL GAINS, CLEARLY APPLIES IN THE CASE OF THE APPELLANT AND ACCORDINGLY, THE ONUS IS ON THE AO TO SHOW THAT NOT ONLY THE FAIR MARKET VAL UE OF THE CAPITAL ASSETS AS ON THE DATE OF TRANSFER EXCEEDS THE FULL VALUE OF C ONSIDERATION DECLARED BY THE ASSESSEE, BUT ALSO THAT THE CONSIDERATION IS UNDERS TATED AND THE ASSESSEE HAS ACTUALLY PAID MORE THAN WHAT IS DECLARED BY HIM. THAT THESE ARE THE TWIN CONDITIONS, WHICH HAVE TO B E SATISFIED WHILE INVOKING SEC. 142A AND SEC. 69 OF THE ACT. THE AO EXCEPT ADO PTING THE VALUE ESTIMATED BY DVO HAS DONE NOTHING MORE TO DISCHARGE HIS ONUS IN ORDER TO SATISFY THESE TWO CONDITIONS. THE RELIANCE PLACED BY THE APPELLANT ON THE JUDGMEN TS IN THE TWO CASES OF THE JURISDICTIONAL HIGH COURT VIZ. CIT VS. MUKESH KUMAR REPORTED IN 201O-TIOL- 606-HC-DEL-IT & CIT VS. SMT. SURAJ DEVI 2010-TIOL-596-DEL-IT HAVE ALSO BEEN EXAMINED. IN MAHESH KUMAR'S CASE, SEARCH OPERATIONS WERE CONDUCTED U/S 132 OF THE ACT, REFERENCE WAS MADE U/ S 142A AND SECTION 69 WAS APPLIED FOR DETERMINING THE INCOME AND THE HIGH COURT AFTER NOTICING THE JUDGMENT IN THE CASE OF K.P. VARGHESE VS. ITO, 131 ITR 597 HELD AS UNDER: '8. IT IS SETTLED LAW THAT THE PRIMARY BURDEN OF PR OOF TO PROVE UNDERSTATEMENT OR CONCEALMENT OF INCOME IS ON THE R EVENUE AND IT IS ONLY WHEN SUCH BURDEN IS DISCHARGED THAT IT WOULD BE PERMISSIBLE TO RELY UPON THE VALUATION GIVEN BY THE DVO. (SEE K.P. VARGHESE VS. ITO, 131 ITR 597, CIT VS. SHAKUNT ALA DEVI, (2009) 316 ITR 46 AND ITA NO. 482/2010 DECIDED BY T HIS COURT ON 5 TH MAY, 2010). 9. FURTHER THE SUPREME COURT IN ITS ORDER DATED 16 TH FEBRUARY, 2010 IN CIVIL APPEAL NO. 9468/2003 HAS HELD AS UNDE R: 'HAVING EXAMINED THE RECORD, WE FIND THAT IN THIS CASE, THE DEPARTMENT SOUGHT REOPENING OF THE ASSESSMENT BASED ON THE OPINION GIVEN BY THE DISTRICT VALUATION OFFICER (DV O). OPINION OF THE DVO PER SE IS NOT AN INFORMATION FOR THE PURPOSES OF REOPENING ASSESSMENT UNDER SECTION 147 OF THE INCOME TAX ACT, 1961. THE AO HAS TO APPLY HIS MIND TO THE INFORMATION, IF ANY, COLLECTED AND MUST FORM A BELIEF THEREON. IN THE CIRCUMSTANCES, THERE IS NO MERIT IN THE CIVI L APPEAL. THE DEPARTMENT WAS NOT ENTITLED TO REOPEN THE ASSESSMEN T. CIVIL APPEAL IS, ACCORDINGLY, DISMISSED. NO ORDER AS TO C OSTS. 10. MOREOVER, IN THE PRESENT CASE, NO EVIDENCE MUCH LESS 11 I.T.A .NO.-3760/DEL/2011 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 SALE DEEDS. IN ANY EVENT, THE FINAL FACT FINDING AUTHORI TY, NAMELY, THE TRIBUNAL HAS ARRIVED AT A FINDING THAT THE INST ANCES OF THE SALE TAKEN INTO ACCOUNT BY THE VALUATION OFFICER WE RE NOT COMPARABLE AS THEY WERE SITUATED FAR AWAY FROM THE LOCATION OF THE PLOTS PURCHASED BY THE RESPONDENT-ASSESSEE. CONSEQUENTLY, WE .FIND THAT NO SUBSTANTIAL QUESTION OF LAW ARISES IN THESE TWO APPEALS WHICH, BEREFT OF MERIT, ARE DISMISSED IN LIMINE. ' IN SURAJ DEVI'S CASE ALSO, SECTIONS 69, 132 AND 142A W ERE SOUGHT TO BE APPLIED. THE DELHI HIGH COURT HELD AS UNDER: '4. IT IS SETTLED LAW THAT THE PRIMARY BURDEN OF PR OOF TO PROVE UNDERSTATEMENT OR CONCEALMENT OF INCOME IS ON THE R EVENUE AND IT IS ONLY WHEN SUCH BURDEN IS DISCHARGED THAT IT WOULD BE PERMISSIBLE TO RELY UPON THE VALUATION GIVEN BY THE D VA. (SEE K.P. VARGHESE VS. ITO, 131 ITR 597 = (2002-TIOL-128-SC- IT), CIT VS. SHAKUNTALA DEVI, (2009) 316 ITR 46 = ( 2009- TIOL-341-HC-DEL-IT) AND ITA NO.-482/2010 DECIDED BY THIS COURT ON 5 TH MAY, 2010. IT IS THUS CLEAR FROM THE ABOVE TWO JUDGEMENT OF TH E JURISDICTIONAL HIGH COURT THAT APART FROM THE VALUATION REPORT, MUCH MORE INF ORMATION, EVIDENCES AND MATERIAL WAS REQUIRED TO BE BROUGHT ON RECORD BY TH E AO TO MAKE AN ADDITION U/S 69 OF THE ACT. THEREFORE, RESPECTFULLY FOLLOWI NG THE JUDGEMENTS OF HONBLE DELHI HIGH COURT IN THE ABOVE TWO CASES, AND IN VIE W OF THE ABOVE DISCUSSION THE AO IS DIRECTED TO DELETE THE ADDITION OF RS.1,6 0,11,000/- AND ACCORDINGLY GROUND OF APPEAL NO.2 IS ALLOWED IN FAVOUR OF THE A SSESSEE. 8. A PERUSAL OF THE ABOVE FINDING SHOWS THAT THE IM PUGNED ORDER HAS BEEN PASSED ON THE REASONING THAT DESPITE BEING SUBJECTE D TO TWO CONSECUTIVE SEARCHES NOTHING HAS BEEN FOUND AND THE ASSESSMENT U/S 153A READ WITH SECTION 143(3) THE DEPARTMENT EVEN BEFORE US HAS FAILED TO REFER TO AN Y INCRIMINATING EVIDENCE FOUND DURING THE SEARCH INDICATING ANY UNRECORDED PAYMENT HAVING BEEN PAID APART FROM THE PAYMENT MADE IN THE DISCLOSED SALE DEED. NO SU CH EFFORT HAS BEEN MADE BEFORE US. SIMILARLY QUA THE TWO INDEPENDENT SALES IN THE SAME VICINITY WHEREIN THE PRICE PAID BY THE ASSESSEE IS MORE THAN THE CONSIDERATION PAID IN THE TWO INSTANCES CITED BY THE ASSESSEE IN CHHATARPUR ITSELF STANDS UNREBUT TED ON RECORD. QUA THE DVOS REPORT THE RELIANCE HAS BEEN PLACED ON THE TRANSACT ION AT SATBARI, MEHRAULI WHEREAS 12 I.T.A .NO.-3760/DEL/2011 THE ASSESSEES TRANSACTION WAS AT CHHATARPUR THE PR OPERTIES CANNOT BE SAID TO BE IDENTICALLY SITUATED IN THE ABSENCE OF ANY FACTUAL ARGUMENTS BY THE REVENUE QUA THEIR SIMILARITY. MOVEROVER THE INSTANCE CITED WAS IN THE CONTEXT OF THE POWER GIVEN TO APPROPRIATE AUTHORITY TO BUY THE PROPERTY UNDER CHAPTER XXC AS SUCH NOT NECESSARY AN EXACT INDICATOR WITH CERTAINLY AS TO T HE FAIR MARKET PRICE. APART FROM THAT THE CIRCLE RATE FOR THE RELEVANT PERIOD HAS AL SO BEEN TAKEN INTO CONSIDERATION BY THE CIT(A) WHICH STAND UNASSAILED. NONE OF THESE R ELEVANT FINDINGS HAVE BEEN ASSAILED NOTHING IS PLACED BEFORE US TO SHOW THAT O N THE DISSIMILARITY IN THE PROPERTY CONSIDERED BY THE DVO AND THE SIMILARITY I N THE 2 INSTANCES CITED BY THE ASSESSEE IN SUPPORT OF ITS CLAIM IS WRONG ON FACTS. IN THE ABOVE CUMULATIVE FACTUAL BACKGROUND THE LEGAL PRINCIPLES RELIED UPON FULLY S UPPORT THE VIEW TAKEN. 8.1. IT IS ALSO SEEN THAT QUA GROUND NO-3 BEFORE TH E CIT(A) THE DETAILED FINDING IN PARA 5 AND 5.1 OF HIS ORDER REMAINS UNASSAILED O N FACTS AND LAW. FOR READY- REFERENCE WE DEEM IT APPROPRIATE TO REPRODUCE THE G ROUND AND THE FINDING THEREON HEREUNDER:- 5. GROUND NO-3 THE GROUND NO.3 OF THE APPELLANT READS AS UNDER : - THE ADDITION MADE BY LD. AO IN THE ASSESSMENT U/S 1 53A IS NOT QUA SEARCH MATERIAL, THEREFORE, LD. AO HAD NO JURISDICTION TO MAKE ADDITION WITHOUT ANY INDISCRIMINATING DOCUMENTS/MATERIAL FOUND DURIN G THE SEARCH U/S 132. IN THIS GROUND OF APPEAL, THE APPELLANT HAS INTER A LIA SUBMITTED THAT THE IMPUGNED TRANSACTION FOR PURCHASE OF LAND FROM THE VENDORS HAS BEEN DULY REFLECTED IN THE BOOKS OF ACCOUNTS AND SHOWN IN THE RETURN OF INCOME FOR AY 03-04 WHICH WAS FILED ON 29.08.03. THIS RETURN WAS PROCESSED U/S 143(1) ON 24.03.04 AND THAT NO NOTICE U/S 143(2) WAS ISSUED W ITHIN THE STATUTORY TIME LIMIT WHICH EXPIRED ON 30.09.2004. THUS THERE WAS NO PENDING ASSESSMENT PROCEEDINGS FOR AY 03-04 IN APPELLANTS CASE. THE APPELLANT HAS FURTHER SUBMITTED THAT AS PER THE RATIO OF DECISIONS IN CAS ES OF SUN CITY ALLOYS P. LTD. 124 TTJ 674 (JODHPUR); LMJ INTERNATIONAL LTD. VS JC IT 22 SOT 315 (ITAT KOLKATA) FOLLOWED BY THE LATEST DECISIONS IN CASES OF ANIL KUMAR BHATIA VS ACIT ITA NO. 2260 TO 2665/DEL/2009 AND THE JUDGEMEN T OF HONBLE ITAT MUMBAI BENCH REPORTED IN 2010 TIOL 177, THE CRUX OF WHICH IS THAT WHERE THE RETURN OF INCOME HAS BEEN PROCESSED U/S 143(1) OR AN ASSESSMENT HAS BEEN COMPLETED U/S 143(3) IT CANNOT BE SAID THAT THE ASS ESSMENTS ARE PENDING AND 13 I.T.A .NO.-3760/DEL/2011 IN SUCH CASES IF NO INCRIMINATING MATERIAL HAS BEEN FOUND DURING THE SEARCH THEN ADDITIONS BASED ON ITEMS WHICH WERE DISCLOSED IN THE RETURN OF INCOME ALREADY FILED CANNOT BE SUBJECTED TO FURTHER SCRUTI NY, LEADING TO ADDITION TO INCOME, IN A PROCEEDING UNDER SECTION 153A/153C OF THE ACT. THE APPELLANT WHILE RELYING ON THE ABOVE DECISIONS HAS SUBMITTED THAT THE ISSUE ON ADDITION OF RS.1,60,11,000/- ON ACCOUNT OF UNEXPLAINED INVESTMENT U/S 698 OF THE IT ACT BASED ON THE VALUATION OF THE LAN D PURCHASED DURING THE RELEVANT ASSESSMENT YEAR CANNOT BE SUBJECTED TO FUR THER ADJUDICATION AND CONSEQUENT ADDITION IN FACE OF THE FACT THAT NO INC RIMINATING DOCUMENT/MATERIAL WITH REFERENCE TO THE SAID PURCHA SES HAVE BEEN FOUND DURING THE COURSE OF THE TWO SEARCHES CONDUCTED ON THE APPELLANT. 5.1. FINDING ON GROUND NO-3 I HAVE CAREFULLY PERUSED THE DECISIONS RELIED UPON BY THE APPELLANT WHICH ARE SQUARELY APPLICABLE TO THE FACTS OF THE APPELLANTS CASE. THEREFORE, WHILE ON MERITS THE ADDITION HAS ALREADY BEEN DIRECTED TO BE DELETED IN GROUND NO.2 IT IS ADDITIONALLY HELD THAT EVEN ON THIS TECHNICAL GR OUND THERE IS NO CASE FOR MAKING AN ADDITION TO INCOME. ACCORDINGLY THE APPEL LANT SUCCEEDS IN GROUND NO.3. 8.2. THUS IN VIEW OF THE FACT WHERE THE FACTUAL POS ITION HAS NOT BEEN DISPUTED BY THE REVENUE THE GROUND RAISED DESERVES TO BE DISMIS SED AS NO INFIRMITY IN THE REASONING HAS BEEN POINTED OUT TO UPSET THE CONCLUS ION. ACCORDINGLY FACTS REMAINING UNASSAILED AND NO CONTRARY DECISION HAVIN G BEEN CITED WE FIND OURSELVES UNABLE TO COME TO A CONTRARY FINDING. 8.3. ACCORDINGLY FOR THE REASONS GIVEN HEREINABOVE THE GROUNDS RAISED BY THE REVENUE ARE REJECTED. 9. IN THE RESULT THE APPEAL OF THE REVENUE IS DISMI SSED. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 11 TH OF APRIL 2014. SD/- SD/- (T.S.KAPOOR) (DIVA SINGH) ACCOUNTANT MEMBER JUDICIAL MEM BER DATED: 11/04/2014 *AMIT KUMAR* 14 I.T.A .NO.-3760/DEL/2011 COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI