Sh. Kamal Kant Sharma, New Delhi V. JCIT, New Delhi

ITA 3888/DEL/2011

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 65765 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 2 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-11-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Next Hearing Date: 18-10-2012
• Assessment Year: 2005-2006
• Appeal Filed On: 18-08-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: PRISCILLA SINGSIT
• Assessee Lawyers: V K TULSIAN
• Keywords: Unexplained investment; Sale consideration of property below Jantri Value; Business income; Source of fund; Fair market value; Avoidance of tax; Capital receipt
• Section: 50C; 142(1); 69; 148; 6

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI D BENC H BEFORE SHRI R.P. YADAV, JM & SHRI A.N. PAHUJA, A M ITA NO.3888/DEL/2011 ASSESSMENT YEAR:2005-06 SHRI KAMAL KANT SHARMA, PROP., REVATI INDUSTRIES, 3481, BAZAR SIRKIWALAN, DELHI-110006 V/S . JOINT. CIT, RANGE -28, NEW DELHI [PAN : AHYPS 7370 N] (APPELLANT) (RESPONDENT) ASSESSEE BY SHRI V.K. TULSIAN, AR REVENUE BY MS. PRISCILLA SINGSIT, DR DATE OF HEARING 18-10-2012 DATE OF PRONOUNCEMENT 09-11-2012 O R D E R A.N.PAHUJA:- THIS APPEAL FILED ON 18.08.2011 BY THE ASSESSEE AGA INST AN ORDER DATED 28.06.2011 OF THE LEARNED CIT(A)-XXV, NEW DEL HI, RAISES THE FOLLOWING GROUNDS:- 1. THAT THE LEARNED CIT(A) HAS ERRED IN CONFIRMING AN ADDITION OF ` ` 7,71,333/- AS UNDISCLOSED INVESTMENT IN 1/3 RD SHARE OF HOUSE PROPERTY PURCHASED BY THE APPELLANT. THIS ADD ITION IS AGAINST FACTS, BAD IN LAW AND MAY KINDLY BE ORDERED TO BE DELETED. 2. THAT THE APPELLANT RESERVES THE RIGHTS TO ADD, A MEND OR DELETE, THE GROUNDS OF APPEAL AT THE TIME OF HEARIN G. 2. FACTS IN BRIEF, AS PER RELEVANT ORDERS ARE THAT AN AIR INFORMATION WAS RECEIVED BY THE ASSESSING OFFICER[AO IN SHORT] FROM CIT(CIB) ON 9 TH OCTOBER, 2007 REVEALING THAT THE ASSESSEE, TRADING IN ASBEST OS & HARDWARE GOODS, PURCHASED A PROPERTY J-181, SECTOR-41, NOIDA (U.P.) FOR AN AMOUNT OF ITA N O.3888 /DEL./2011 2 ` ` 33,16,000/- ON 23.06.2004. ACCORDINGLY, THE AO ISS UED A NOTICE U/S 142(1) OF THE INCOME-TAX ACT, 1961 (HEREINAFTER REFERRED TO A S THE ACT), ON A NUMBER OF OCCASIONS ON 18 TH SEPTEMBER, 2007, 5 TH SEPTEMBER, 2009, 20 TH NOVEMBER, 2009 AND 17.12.2009. HOWEVER, NONE RESPONDED. IN THESE CIRCUMSTANCES, THE AO ISSUED A NOTICE U/S 148 OF THE ACT ON 31 ST DECEMBER, 2009, WHICH WAS RETURNED BY THE POSTAL AUTHORITIES ON 5 TH JANUARY, 2010 WITH THE REMARKS REFUSED. HOWEVER, ON 18 TH JANUARY, 2010, THE ASSESSEE ATTENDED AND SUBMITTED A COPY OF RETURN FILED ON 8.7.2005 WITH ITO-WARD-28(4), NEW D ELHI, DECLARING INCOME OF ` 1,27,360/-. DURING THE COURSE OF ASSESSMENT PROCEE DINGS, THE AO NOTICED THAT THE ASSESSEE RECEIVED RENTAL INCOME OF ` ` 76,000/- FROM BASEMENT, GROUND FLOOR, FIRST FLOOR AND TOP FLOOR OF PROPERTY NO.181, J-BLO CK, NOIDA. TO A QUERY BY THE AO, THE ASSESSEE STATED VIDE LETTER DATED 4.10.2010 THA T HE HAD 1/3 RD SHARE IN THE PROPERTY, THE OTHER TWO CO-OWNERS BEING SMT. MADHU SHARMA, WIFE AND SHRI HARI RAM SHARMA, BROTHER OF THE ASSESSEE. IT WAS CLAIME D THAT TOTAL INVESTMENT OF ` ` 33,76,759/- HAD BEEN MADE BY THE THREE CO-OWNERS WI TH A LOAN OF ` `24 LACS FROM HDFC BANK LTD. WHILE THE BALANCE WAS INVESTE D ON SELLING A PLOT NO.62, SECTOR-50, NOIDA ON 12 TH MAY, 2004 FOR ` ` 15 LACS WHICH WAS PURCHASED IN FEBRUARY, 2000 FOR ` 2 LACS BY THE TWO BROTHERS. IN THE PURCHASE DEED D ATED 23 RD JUNE, 2004 FOR THE PROPERTY CONSTRUCTED AT J-181, SECTOR-41,NOIDA , BUILT UP AREA WAS SHOWN 123.188 SQ. MTRS. ON THE GROUND FLOOR AN D 83.080 SQ. MTS. ON FIRST FLOOR, TOTALING 206.268 MTRS. VIDE ORDERSHEET ENT RY DATED 14.9.2010, THE AO ASKED THE ASSESSEE TO FURNISH ANNUAL LETTING VALUE OF THE PROPERTY, RENT RECEIVED FOR EACH PORTION BESIDES DETAILS OF TENANTS AS ALS O BREAK UP OF RENT OF ` 76,000/- MENTIONED IN LETTER DATED 4.8.2010.IT WAS ALSO POIN TED OUT TO THE ASSESSEE THAT PURCHASE DEED MENTIONED CONSTRUCTED AREA OF 206.86 SQ. MTS. AND TWO BED ROOMS ON GROUND FLOOR WHILE LEASE DEED WITH THE TEN ANTS REFLECTED THREE BED ROOMS .BESIDES IN PURCHASE DEED ,THERE WAS NO MENTI ON OF BASEMENT AND SECOND FLOOR. WHILE SEEKING DETAILS OF RENOVATION AND OTHER EXPENSES, THE ASSESSEE WAS ALSO REQUIRED TO FURNISH BASIS OF CLAI M OF INTEREST BESIDES THE BASIS FOR THE CLAIM THAT THE WIFE OF THE ASSESSEE W AS OWNER OF 1/3 RD SHARE IN THE PROPERTY. THE ASSESSEE DID NOT REPLY TO ANY OF THE QUERIES. ACCORDINGLY, THE AO ITA N O.3888 /DEL./2011 3 OBSERVED THAT WIFE OF THE ASSESSEE DID NOT HAVE IND EPENDENT SOURCES OF INCOME WHILE HER HUSBAND MADE INVESTMENTS IN HER NAME BY G IVING A LOAN. SUBSEQUENTLY, IN LETTER DATED 01.10.2010 THE ASSESS EE EXPLAINED THAT AREA MENTIONED IN THE PURCHASE DEED WAS NOT CORRECT DUE TO CLERICAL MISTAKES AND ACCORDINGLY, THE ASSESSEE GOT THE PURCHASE DEED REC TIFIED AND SUBMITTED A COPY OF ANOTHER DEED EXECUTED ON 18 TH SEPTEMBER, 2010 BESIDES THE LAY OUT PLAN, WHERE IN COVERED AREA WAS SHOWN TO BE 350.79 SQ. MT S. WHILE PURCHASE CONSIDERATION REMAINED THE SAME AS WAS REFLECTED IN THE DEED EXECUTED ON 23RD JUNE, 2004. HOWEVER, THE ASSESSEE PAID ADDITIONAL STAMP DUTY OF ` 58,000 ON COST OF OF ` 11,57,000/- TOWARDS ADDITIONAL BUILT UP AREA OF 144 .522SQ.MTS..SINCE THE LAY OUT PLAN REFLECTED BASEMENT, BARSATI FLOOR BESIDES GROUND AND FIRST FLOOR, THE AO DEPUTED INSPECTOR FOR VERIFICATION OF CONSTR UCTION. THE INSPECTOR REPORTED ON 4.10.2010 THAT PROPERTY WAS 8 YEARS OLD AND GOT BASEMENT, GROUND, FIRST AND ONE ROOM SET ON SECOND FLOOR. ACCORDINGLY, THE AO A CCEPTED THE ASSERTION OF THE ASSESSEE THAT HE PURCHASED THE PROPERTY ALONG WITH BASEMENT AND SECOND FLOOR, INADVERTENTLY OMITTED IN THE PURCHASE DEED EXECUTED ON 23.6.2004. HOWEVER, SINCE FOR EXECUTING THE FRESH DEED ,REFLECTING MOR E AREA, THE ASSESSEE PAID AN AMOUNT OF ` ` 58,000/- BY WAY OF STAMP DUTY CORRESPONDING TO ADDI TIONAL VALUE OF ` 11,57,000/- DETERMINED BY STAMP VALUATION AUTHORITY , OVER AND ABOVE THE AMOUNT OF ` ` 30,00,000/- MENTIONED IN DEED EXECUTED ON 23.6.2004 AND THE ASSESSEE HAVING 2/3 RD SHARE IN THE PROPERTY, THE AO ADDED AN AMOUNT OF ` `7,58,000/- IN RELATION TO 2/3 RD SHARE HELD BY THE ASSESSEE IN HIS NAME AND IN HIS WIFES NAME, IN TERMS OF PROVISION OF SECTION 69B O F THE ACT. FOR THE BALANCE 1/3 RD , AO OF THE CO-OWNER WAS INFORMED FOR NECESSARY ACTIO N. 3. ON APPEAL, THE LD. CIT(A) UPHELD THE FINDINGS O F THE AO IN THE FOLLOWING TERMS:- 5. I HAVE CONSIDERED THE ORDER OF THE AO AND THE SUBMISSION OF THE ASSESSEE AND I DO NOT FIND ANY ME RIT IN THE SUBMISSION OF THE ASSESSEE. IT IS SEEN THAT THE ORI GINAL DEED DATED 12/07/2000 HAS NO DESCRIPTION OF THE PROPERTY AND T HE COVERED AREA ITA N O.3888 /DEL./2011 4 IS SHOWN AS 2,300 SQ. FEET ONLY. IN THE SALE DEED D ATED 23/06/2004 OF THE ASSESSEE ALSO THERE IS NO DESCRIPTION OF THE PROPERTY AND THE COVERED AREA HAS BEEN MENTIONED AT 206.268 SQ. MTRS . ONLY. IT IS ONLY WHEN THE AO STARTED THE INQUIRY REGARDING THE RENTAL INCOME THAT IT WAS FOUND THAT THE COVERED BUILT UP AREA OF THE PROPERTY IS ACTUALLY 350.79 SQ. MTRS. AND AS SUCH THERE WAS FRE SH CONSTRUCTION OF 144.522 SQ. MTRS. COMPRISING OF BASEMENT, GROUND FLOOR, FIRST FLOOR AND ALSO THE SECOND FLOOR. SO, IT IS APPARENT THAT THE ASSESSEE HAS MADE THE FRESH INVESTMENT IN THE PROPERTY WHICH HAS NOT BEEN DECLARED AND AS SUCH THE AO IS JUSTIFIED TO MAKE TH E ADDITION U/S 69B FOR THE UNEXPLAINED INVESTMENT. THE AO HAS MADE THE ADDITION U/S 69B ON THE GROUND OF UN-EXPLAINED INVESTMENT IN THE PROPERTY AND AS SUCH THERE IS NO IMPLICATION OF SECTION 50C BEING MENTIONED IN THE ORDER. IT IS ALSO APPARENT THAT THE ASSESSEE HAS MADE THE ALLEGED CORRECTION DEED DATED 18/09/2010 DURING THE COURSE OF ASSESSMENT PROCEEDINGS ONLY WHEN THE AO FOUND OUT T HE DISCREPANCY DURING THE COURSE OF ASSESSMENT PROCEED INGS. 5.1. THE ADDITIONAL INVESTMENT IS OF RS.11,57,000 /- AND 1/3RD SHARE OF THE ASSESSEE WOULD HAVE BEEN OF RS.3 ,85,666/- AND THE 2/3RD SHARE WOULD HAVE BEEN OF RS7,71,333/- (RS .3,85,666/- (+) RS.3,85,666/-) WHEREAS THE AO HAS MADE THE WRONG AD DITION OF RS. 7,58,000/- ONLY AFTER TAKING THE WRONG VALUATION OF THE PROPERTY WRONGLY AT RS.11,37,000/- AS AGAINST THE CORRECT VA LUATION OF RS.11,57,000/-. ACCORDINGLY, THE A IS DIRECTED TO E XAMINE THE FACTS AND FIGURES AND TAKE THE CORRECT FIGURE FOR THE ADD ITION. 5.2. SO FAR AS THE CLAIM OF THE ASSESSEE REGARDING THE ADDITION OF 1/3RD SHARE OF MRS MADHU SHARMA, THE WIFE OF THAT A SSESSEE IS CONCERNED, IT IS SEEN THAT SHE HAS NO INDEPENDENT SOURCE OF INCOME AND HAS BEEN BUILDING UP THE CAPITAL OVER TH E YEARS IN A PRE-PLANNED MANNER TO AVOID THE TAX AND THE DETAILS OF WHICH ARE AS UNDER:- SL AY RETURN INCOME UNDER THE HEAD TAX PAYMENT NO. 1 2002-03 78,6001- COACHING INCOME NIL 2 2003-04 89,4001- COACHING INCOME NIL 3 2004-05 84,950/- COACHING INCOME 990/- 4 2005-06 1, 07,060/- RENTAL INCOME NIL 5 2006-07 1,34,550/- RENTAL INCOME & NIL BUSINESS INCOME U/S 44AF 6 2007-08 1,23,990/- RENTAL INCOME & NIL BUSINESS INCOME U/S 44AF ITA N O.3888 /DEL./2011 5 5.3. THE ASSESSEE HAS SUBMITTED THE BALANCE SHEET OF MRS MADHU SHARMA, WIFE OF THE ASSESSEE FOR THE AY 2005- 06 IN WHICH THE SHE HAS CLAIMED THE PROFIT ON SALE OF JEWELLERY OF 97,470 AND LOAN OF RS.2,36,580/- FROM HER HUSBAND AND HDFC HOU SING LOAN OF RS.7,88,529/-. IT HAS ALSO BEEN CLAIMED IN THE BA LANCE SHEET THAT SHE HAS THE OPENING BALANCE OF RS.4,53,049/-. IT IS APPARENT FROM THE DETAILS SUBMITTED BY THE ASSESSEE REGARDING THE DETAILS OF INCOME OF MRS MADHU SHARMA THAT IT IS PURELY A CAPI TAL BUILD UP CASE AND SHE HAS NO INDEPENDENT INCOME OF HER OWN. IT IS ALSO APPARENT THAT THE INCOME OF THE ASSESSEE HAS BEEN D IVERTED IN A PLANNED AND SYSTEMATIC MANNER IN THE NAME OF THE WI FE OF THE ASSESSEE TO AVOID THE TAX AS SHE HAS NO INDEPENDENT SOURCE OF INCOME AND HAS BEEN JUST FILING THE RETURN FOR THE SAKE OF BUILDING UP THE CAPITAL TO AVOID THE TAX. 5.4. PERUSAL OF THE BALANCE SHEET OF THE ASSESSEE IN THE PROPRIETARY CONCERN M/S REVATI INDUSTRIES FOR THE A Y 2005-06 SHOWS THAT THERE IS ADDITION OF RS.2,78,000/- IN TH E CAPITAL ACCOUNT OF THE ASSESSEE. THE ASSESSEE HAS TRIED TO EXPLAIN THE SOURCE AS TRANSFERS OF MONEY FROM THE SAVING BANK ACCOUNTS OF THE ASSESSEE WITH BOB VIDE ALC NO. 33961. PERUSAL OF THE BANK ST ATEMENT SHOWS THAT THERE HAS BEEN CASH DEPOSIT OF RS.4,29,000/- O N THE VARIOUS DATES WHICH THE ASSESSEE TRIED TO EXPLAIN AS EMANAT ING FROM THE CHEQUE DEPOSIT OF RS.7,00,000/- ON 27/05/2004 FROM THE SALE OF PROPERTY. THE COMPUTATION OF INCOME OF THE ASSESSEE SHOWS THAT THERE IS NO DETAIL OF ANY SALE OF PROPERTY DURING T HE A Y 2005-06. 5.5. IT IS SUBMITTED BY THE ASSESSEE THAT THE ASS ESSEE HAD SUBMITTED THE DETAILS TO THE AO VIDE THE LETTER DAT ED 04/08/2010 TO THE AO. IT IS SUBMITTED THAT THE ASSESSEE HAD SOLD A JOINT PROPERTY ON 26/05/2004 FOR RS.15,00,000/- AND THE ASSESSEE H AD A 50% SHARE IN THIS PROPERTY. THE COST OF THE PROPERTY WA S OF RS.4,48,700/- AND AS SUCH THERE WAS PROFIT OF RS.10,51,300/- AND THE 50% SHARE OF THE PROFIT OF THE ASSESSEE IS RS.5,25,650/- BUT THE SAME WAS NOT REFLECTED IN THE COMPUTATION AS THERE WAS NO TAXABL E CAPITAL GAIN. IT IS APPARENT THAT THE ASSESSEE HAS NOT BEEN HONEST A ND TRANSPARENT IN HIS FINANCIAL MATTERS. IF THE 50% SHARE OF THE P ROFIT IN THE PROPERTY IS RS. 5,25,650/-, IT IS NOT CLEAR HOW THE CHEQUE O F RS. 7,00,000/- WAS DEPOSITED IN THE SAVING BANK ACCOUNT OF THE ASS ESSEE. IN ANY CASE, THE FACT OF SALE OF PROPERTY AND THE COMPUTAT ION OF CAPITAL GAIN SHOULD HAVE BEEN REFLECTED IN THE ACCOUNTS OF THE ASSESSEE AND ALSO IN THE COMPUTATION OF INCOME WHICH HAS BEE N DELIBERATELY KEPT OUT BY THE ASSESSEE. ITA N O.3888 /DEL./2011 6 5.6. IT IS APPARENT THAT IT IS A PART OF THE MANI PULATION AND SYSTEMATIC TAX AVOIDANCE THAT SOMETIMES THE INCOME IS SHOWN UNDER THE HEAD COACHING INCOME AND SOMETIMES INCOME IS SHOWN UNDER THE HEAD BUSINESS INCOME U/S 44AF AS IT IS EV IDENT FROM THE CHART AS DISCUSSED IN PARA-5.2 IN THE NAME OF THE W IFE OF THE ASSESSEE. IT IS VERY MUCH APPARENT THAT THE UNEXPLA INED INVESTMENT IN THE PROPERTY BELONGS TO THE ASSESSEE AND THE AO IS JUSTIFIED TO MAKE THE ADDITION IN THE HANDS OF THE ASSESSEE. THE ACTION OF THE AO IS ALSO COVERED BY THE CASE OF CIT VS MEENAKSHI MILL LTD, 63 ITR 609 (SC) [1967] IN WHICH THERE WAS AVOIDANCE OF TAX UNDER AN ARRANGEMENT AND A SCHEME BY THE ASSESSEE. 5.7. THE HON'BLE SUPREME COURT IN THE CASE OF MCD OWELL & CO LTD VS CTO, 154 ITR 148 (SC) [1985] ALSO HELD THAT COLOURABLE DEVICES CANNOT BE USED AS PART OF THE TA X PLANNING AND THE OBSERVATION OF THE HON'BLE COURT IS WORTH READI NG AGAINST THE TAX EVADERS WHICH READS AS UNDER: - 'TAX PLANNING MAY BE LEGITIMATE PROVIDED IT IS WITH IN THE FRAMEWORK OF THE LAW. COLOURABLE DEVICES CANNOT BE PART OF TA X PLANNING AND IT IS WRONG TO ENCOURAGE OR ENTERTAIN THE BELIEF THAT IT IS HONOURABLE TO AVOID THE PAYMENT OF TAX BY DUBIOUS METHODS. IT IS THE OBLIGATION OF EVERY CITIZEN TO PAY THE TAXES HONESTLY WITHOUT RES ORTING TO SUBTERFUGES. THERE IS BEHIND TAXATION LAWS AS MUCH MORAL SANCTION AS IS BEHIND ANY OTHER WELFARE LEGISLATION AND IT I S A PRETENCE TO SAY THAT AVOIDANCE OF TAXATION IS NOT UNETHICAL AND THA T IT STANDS ON NO LESS A MORAL PLANE THAN HONEST PAYMENT OF TAXATION. THE PROPER WAY TO CONSTRUE A TAXING STATUTE, WHILE CONSIDERING A DEVICE TO AVOID TAX, IS NOT TO ASK WHETHER THE PROVISIONS SHO ULD BE CONSTRUED LITERALLY OR LIBERALLY NOR WHETHER THE TRANSACTION IS NOT UNREAL AND NOT PROHIBITED BY THE STATUTE, BUT WHETHER THE TRANSACT ION IS A DEVICE TO AVOID TAX AND WHETHER THE TRANSACTION IS SUCH THAT THE JUDICIAL PROCESS MAY ACCORD ITS APPROVAL TO IT. IT IS NEITHE R FAIR NOR DESIRABLE TO EXPECT THE LEGISLATURE TO INTERVENE AND TAKE CAR E OF EVERY DEVICE AND SCHEME TO AVOID TAXATION. IT IS UP TO THE COURT TO TAKE STOCK TO DETERMINE THE NATURE OF THE NEW AND SOPHISTICATED L EGAL DEVICES TO AVOID TAX AND TO EXPOSE THE DEVICES FOR WHAT THEY R EALLY ARE AND TO REFUSE TO GIVE JUDICIAL BENEDICTION. BY THE COURT: 'THE EVIL CONSEQUENCES OF TAX AVOIDAN CE ARE MANIFOLD. FIRST, THERE IS SUBSTANTIAL LOSS OF MUCH NEEDED PUBLIC REVENUE, PARTICULARLY IN A WELFARE STATE LIKE OURS. NEXT, THERE IS THE SERIOUS DISTURBANCE CAUSED TO THE ECONOMY OF THE CO UNTRY BY THE PILING UP OF MOUNTAINS OF BLACK MONEY, DIRECTLY CAU SING INFLATION. THEN THERE IS 'THE LARGE HIDDEN LOSS' TO THE COMMUN ITY BY SOME OF THE BEST BRAINS IN THE COUNTRY BEING INVOLVED IN TH E PERPETUAL WAR ITA N O.3888 /DEL./2011 7 WAGED BETWEEN THE TAX AVOIDER AND HIS EXPERT TEAM O F ADVISERS, LAWYERS AND ACCOUNTANTS ON ONE SIDE AND THE TAX GAT HERER AND HIS, PERHAPS NOT SO SKILFUL, ADVISERS, ON THE OTHER SIDE . THEN AGAIN THERE IS THE 'SENSE OF INJUSTICE AND INEQUALITY WHICH TAX AVOIDANCE AROUSES IN T BREASTS OF THOSE WHO ARE UNWILLING OR UNABLE TO PROFIT BY IT'. LAST, BUT NOT THE LEAST, IS THE ETHICS OF TRAN SFERRING THE BURDEN OF TAX LIABILITY TO THE SHOULDERS OF THE GUIDELESS, GO OD CITIZENS FROM THOSE OF THE 'ARTFUL DODGERS'.' 5.8. AFTER CONSIDERING ALL THE FACTS AND CIRCUMSTAN CES OF THE CASE, I AM OF THE VIEW THAT THE BOOKS OF ACCOUNTS OF THE AS SESSEE ARE NOT FULL AND TRUE AND THEY DO NOT REFLECT THE REAL PICT URE OF THE INCOME OF THE ASSESSEE AND AS SUCH THERE IS NO TRANSPARENCY I N THE FINANCIAL MATTERS OF THE ASSESSEE. IT IS APPARENT THAT THE AS SESSEE HAS TRIED TO MANIPULATE ALL THE FINANCIAL AFFAIRS TO CHEAT TH E REVENUE AND ACCORDINGLY, I DO NOT FIND ANY MERIT IN THE SUBMISS ION OF THE ASSESSEE AND THE ASSESSEE HAS DELIBERATELY DIVERTED HIS OWN INCOME IN A PLANNED AND SYSTEMATIC MANNER TO AVOID THE TAX AND THE AO HAS RIGHTLY MADE THE ADDITION AND ACCORDINGL Y, THE SAME IS CONFIRMED. 4. THE ASSESSEE IS NOW IN APPEAL BEFORE US AGAINST THE AFORESAID FINDINGS OF THE LD. CIT(A). THE LD AR ON BEHALF OF THE ASSESSEE WHILE CARRYING US THROUGH THE LAYOUT PLAN AND PURCHASE DEEDS PLACED I N THE PAPER BOOK REITERATED THEIR SUBMISSIONS BEFORE THE LD. CIT(A) WHILE THE L D. DR SUPPORTED THE FINDINGS OF THE LD. CIT(A). 5. WE HAVE HEARD BOTH THE PARTIES AND GONE THROUG H THE FACTS OF THE CASE. INDISPUTABLY THE ASSESSEE CLAIMED THAT HE ALONG WITH HIS WIFE & BROTHER PURCHASED THE PROPERTY AT J-181, SECTOR-41, NOIDA ( U.P.) FOR A CONSIDERATION OF ` `33,76,759/-[30,00,000+2,65,350(STAMP DUTY)+1,06,30 9(LEASE RENT)+5,100(LEGAL CHARGES)] ON 23 RD JUNE, 2004 FROM SMT. SANTOSH GAUTAM W/O SHRI R.K. GAUTAM & SHRI RAJ KUMAR GAUTAM S/O SHRI J.S. GAUTAM. THIS COST HAS NOT BEEN DISPUTED BY THE AO .THE STAMP VALUATION AUTHORITY A DOPTED PURCHASE CONSIDERATION AS PER CIRCLE RATES AT ` 33,16,250 AND ACCORDINGLY, DETERMINED STAMP DUTY OF ` 2,65,350/- IN THE DEED EXECUTED ON 23.6.2004,WHEREI N BUILT UP AREA ON THE PLOT WAS STATED TO BE 206.86 MTRS. ,CO MPRISING GROUND FLOOR-123.188 SQ. MTS. MTRS AND FIRST FLOOR-83.068 SQ. MTRS.. SU BSEQUENTLY, TO A QUERY RAISED BY ITA N O.3888 /DEL./2011 8 THE AO, THE ASSESSEE PLEADED THAT BUILT AREA WAS IN CORRECTLY SHOWN IN THE PURCHASE DEED AND THEREFORE, SUBMITTED A RECTIFIED DEED EXECUTED ON 18 TH SEPTEMBER, 2010 ,WHEREIN BUILT UP AREA WAS SHOWN AT 350.79 SQ. MTRS. AS PER THIS DEED, THE ASSESSEE PAID ADDITIONAL STAMP DUTY OF ` 58,000/- ON AN AMOUNT OF ` ` 11,57,000/- TOWARDS VALUE DETERMINED BY STAMP VALUA TION AUTHORITY FOR THE ADDITIONAL BUILT UP AREA OF 144.522 SQ. MTRS. THE AO DID NOT DISPUTE THAT BESIDE GROUND FLOOR AND FIRST FLOOR, BASEMENT AND TOP BARS ATI FLOOR WERE ALREADY CONSTRUCTED AT THE TIME PURCHASE DEED WAS EXECUTED ON 23.6.2004 BUT STILL ADDED AN AMOUNT OF 7,58,000/-[2/3 RD OF THE VALUE DETERMINED BY THE STAMP VALUATION AUTHORITY FOR ADDITIONAL STAMP DUTY OF ` 58,000/-PAID AT THE TIME OF EXECUTION OF DEED ON 18.9.2010] ON ACCOUNT OF UNEXP LAINED INVESTMENT IN TERMS OF PROVISION OF SECTION 69B OF THE ACT. THE LD. CIT (A),HOWEVER, ON THE SAME FACTS, HELD THAT THERE WAS FRESH CONSTRUCTION OF 144.522 SQ. MTS AND CONSEQUENTLY FRESH INVESTMENT, BUT HE DID NOT REFER TO ANY MATE RIAL ,SUGGESTING THAT THE SAID FRESH INVESTMENT WAS MADE BY THE ASSESSEE ALONE IN THE YEAR UNDER CONSIDERATION, IGNORING THE FINDINGS OF THE AO THAT ENTIRE BASEMENT, GROUND FLOOR ,FIRST FLOOR & BARSATI FLOOR WERE ALREADY CONSTRUCT ED AT THE TIME OF EXECUTION OF PURCHASE DEED ON 23.6.2004.THE AO MADE ADDITION OF 2/3D OF THE VALUE DETERMINED BY THE STAMP VALUATION AUTHORITY FOR THE PURPOSE OF STAMP DUTY OF ` 58,000 PAID AT THE TIME OF EXECUTION OF DEED ON 18. 9.2010 TOWARDS ADDITIONAL BUILT UP AREA OF 144.522SQ. MTS., INADVERTENTLY NOT SHOWN IN THE PURCHASE DEED EXECUTED ON 23.6.2004. . IN THE FACE OF FINDINGS OF THE AO, ACCEPTING ENTIRE CONSTRUCTION, HAVING ALREADY BEEN MADE AT TH E TIME OF EXECUTION OF DEED ON 23.6.2004 AND THERE IS NOT EVE N A WHISPER IN THE ASSESSMENT ORDER NOR ANY SUCH ADDITION, ATTRIBU TED TO THE ADDITIONAL CONSTRUCTION HAVING BEEN MADE BY THE AO, THE LD. CIT(A) WITHOUT BRINGING ANY MATERIAL ON RECORD ,WAS NOT JU STIFIED IN UPHOLDING THE ADDITION ON THE GROUND OF FRESH INVES TMENT IN TERMS OF PROVISIONS OF SEC.69B OF THE ACT. MOREOVER, PROVISI ONS OF SEC. 50C OF THE ACT, CANNOT BE APPLIED IN THE CASE OF PURCHA SER. THE AO MADE THE ADDITION ONLY ON THE BASIS OF VALUATION OF THE PROPERTY MADE BY ITA N O.3888 /DEL./2011 9 THE STAMP VALUATION AUTHORITIES, WITHOUT BRINGING ANY MATERIAL ON RECORD THAT THE VALUE DETERMINED FOR THE PURPOSE S OF STAMP DUTY WAS THE ACTUAL CONSIDERATION PASSED B ETWEEN THE PARTIES TO THE SALE OR THE ASSESSEE MADE ADDITIO NAL INVESTMENT AFTER 23.6.2004 IN THE YEAR UNDER CONSIDERATION. WE FIND THAT A CO- ORDINATE BENCH OF THE ITAT IN A DECISION DATED 29.0 8.2008 IN THE CASE OF BHARATKUMAR N PATEL VS ACIT, CIRCLE-.3, SUR AT IN ITA NO.1749/AHD/2008 WHILE ADJUDICATING A SIMILAR ISS UE HELD IN THE FOLLOWING TERMS: 10. AFTER CAREFUL CONSIDERATION OF THE RIVAL SUBMIS SIONS, FACTS AND CIRCUMSTANCES OF THE CASE, PROVISIONS OF LAW AS WEL L AS DECISION(S) OF HONBLE SUPREME COURT AND VARIOUS BENCHES RELIED UPON BY THE PARTIES, WE ARE OF THE OPINION THAT THE CIT(A) WAS NOT JUSTIFIED IN CONFIRMING THE ADDITION BY DRAWING THE ANALOGICAL P ROVISIONS OF SECTION 50-C OF THE ACT. THE CIT(APPEALS) CONFIRME D THE ADDITION BY OBSERVING THAT IF THIS PROPOSITION TO BE ACCEPTED, THEN THE DEEMING PROVISIONS OF SECTION 50-C OF THE ACT WILL BECOME I NOPERABLE. HE, FURTHER HELD THAT SECTION 50-C OF THE ACT IS APPLIC ABLE TO THE SELLER AND PROVIDES THAT THE VALUATION MADE BY THE STAMP V ALUATION AUTHORITY IS TO BE DEEMED AS THE CONSIDERATION RECE IVED BY THE SELLER. HAVING SAID SO, THE CIT (APPEALS) FURTHER HELD THAT THE CONVERSE WILL ALSO HAVE TO BE ACCEPTED AS TRUE, I.E . THE VALUATION OF STAMP VALUATION AUTHORITY WILL HAVE TO BE DEEMED AS THE CONSIDERATION PAID BY THE PURCHASER OF THE PROPERTY AS WELL. 10.1 WE ARE UNABLE TO AGREE WITH THE AFORESAID ANAL OGY DRAWN BY THE CIT(APPEALS) BECAUSE HAD THE LEGISLATURE INTEND ED SO, IT COULD HAVE EASILY SPECIFIED SUCH A PROPOSITION IN THE PRO VISION ITSELF. 11. IN VIEW OF THE SETTLED PROPOSITION OF LAW THAT THE APPELLATE AUTHORITY HAS NO RIGHT EITHER TO ADD OR TO DELETE A NY WORD FROM THE PROVISIONS OF LAW UNLESS AND UNTIL THE SAME ARE FOU ND TO BE HAVING SOME AMBIGUITY, WE ARE UNABLE TO SUSTAIN THE STAND OF THE CIT(APPEALS), THERE BEING NO AMBIGUITY IN THE SECTI ON 50-C OF THE ACT, WE ARE OF THE OPINION THAT THESE PROVISIONS AR E NOT APPLICABLE TO BE PURCHASER. 5.1 ANOTHER CO-ORDINATE BENCH OF THE ITAT IN T HEIR DECISION DATED 24.7.2009 IN THE CASE OF JALARAM AND CO. IN ITA ITA N O.3888 /DEL./2011 10 NO.3964/AHD/2008 WHILE ADJUDICATING A SIMILAR ISSUE , CONCLUDED AS UNDER: 6. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIALS ON RECORD. THE ONLY ISSUE INVOLVED IS WHE THER DIFFERENCE BETWEEN APPARENT CONSIDERATION RECORDED IN THE TRAN SFER DEED AND VALUATION DONE BY THE STAMP VALUATION AUTHORITIES F OR LEVYING STAMP DUTY CAN BE TREATED AS UNDISCLOSED INVESTMENT TO BE TAXED U/S 69. IN OUR CONSIDERED VIEW, THIS PRESUMPTION RAISED BY THE ASSESSING OFFICER AND CIT(A) CANNOT BE LEGALLY SUSTAINED. SEC TION 50C CREATES A LEGAL FICTION THEREBY APPARENT CONSIDERATION IS S UBSTITUTED BY VALUATION DONE BY STAMP VALUATION AUTHORITI ES AND CAPITAL GAINS ARE CALCULATED ACCORDINGLY. LEGAL FICTION CAN NOT BE EXTENDED ANY FURTHER AND HAS TO BE LIMITED TO THE AREA FOR W HICH IT IS CREATED. HON'BLE ANDHRA PRADESH HIGH COURT IN ADDL. CIT V. D URGAMMA P. (1987) 167 1TR 776 (AP) HELD THAT IT IS NOT POSSIBL E TO EXTEND THE FICTION BEYOND THE FIELD LEGITIMATELY INTENDED BY T HE STATUTE. THE HON'BLE COURT WAS DEALING WITH THE PROVISIONS OF SEC. 171(1) OF THE I.T.ACT IN THE CONTEXT OF WHICH IT WAS HELD THAT JO INT FAMILY SHALL BE DEEMED TO CONTINUE FOR THE LIMITED PURPOSE OF ASSE SSING CASES OF JOINT FAMILIES WHICH HAVE BEEN HITHERTO ASSESSED AS SUCH. IT IS NOT POSSIBLE TO EXTEND THAT FICTION TO OTHER CASES. SIM ILAR VIEW WAS TAKEN BY THE HON'BLE KERLA HIGH COURT IN CIT V. KAR VALVE S LTD. (1987) 168 ITR 416 (KER.) WHEREIN IT IS HELD THAT LEGAL FI CTION IS LIMITED TO THE PURPOSE FOR WHICH THEY ARE CREATED AND COULD NO T BE EXTENDED BEYOND THAT LEGITIMATE FRAME, HON'BLE KERALA HIGH C OURT WAS DEALING WITH THE CASE WHERE ASSESSEE SOUGHT TO TAKE ADVANT AGE OF SEC.41(2) BY SUBMITTING THAT IF LIABILITIES ARE NOT LIQUIDATED AND OUTSTANDINGS ARE NOT COLLECTED, THEN BU SINESS COULD BE DEEMED TO CONTINUE. HON'BLE ALLAHABAD HIGH COURT IN CONTROLLER OF ESTATE DUTY V. KRISHNA KUMAR DEVI (19 88) 173 ITR 561 (ALL) HELD THAT IN INTERPRETING THE LEGAL FICTION T HE COURT SHOULD ASCERTAIN THE PURPOSE FOR WHICH IT WAS CREATED AND AFTER DOING SO ASSUME ALL FACTS WHICH ARE LOGICAL TO GIVE EFFECT T O THE FICTION. HON'BLE SUPREME COURT IN CIT V. MOTHER INDIA REFRIG ERATION PVT. LTD. (1985) 155 ITR 711 (SC) HELD THAT LEGAL FICTIONS A RE CREATED ONLY FOR SOME DEFINITE PURPOSE AND THEY MUST BE LIMITED TO T HAT PURPOSE AND SHOULD NOT BE EXTENDED BEYOND THAT LEGITIMATE FIELD. IN CIT V, BHARANI PICTURES (1981) 129 ITR 244 (MAD,) IT IS HE LD THAT LEGAL FICTIONS ARE FOR A DEFINITE PURPOSE AND ARE LIMITED TO THE PURPOSE FOR WHICH THEY ARE CREATED AND SHOULD NOT BE EXTENDED BEYOND ITS LEGITIMATE FIELD. STATUTORY FICTION INTRODUCED IN ONE ENACTMENT CANNOT BE INCORPORATED IN OTHER ACT. THE POINT THAT LEGAL FICTION CANNOT BE EXTENDED TO A NEW FIELD WAS HIGHLIGHTED B Y HON'BLE MADRAS HIGH COURT IN CIT V. RAJAM T.S, (1988) 125 ITR 207(MAD,) WHEREIN IT IS HELD THAT SECTION 41(2) CRE ATES A LEGAL ITA N O.3888 /DEL./2011 11 FICTION UNDER WHICH THE BALANCING CHARGE IS TR EATED AS BUSINESS INCOME CHARGEABLE TO TAX BUT WHEN THIS AMOUNT IS DISTRIBUTED TO SHAREHOLDERS THEN IT WOULD NOT BECOME DEEMED DIVIDE ND AND IT WOULD BE ONLY A CAPITAL RECEIPT AND NOT DISTRIBUTIO N OF ACCUMULATED PROFITS. THUS, A LEGAL FICTION WAS INVOKED IN THE H ANDS OF THE ASSESSEE COMPANY AND WAS NOT EXTENDED IN THE HANDS OF THE SHAREHOLDERS. 7. IN THE PRESENT CASE, SECTION 50C CREATES A LEGAL FICTION FOR TAXING CAPITAL GAINS IN THE HANDS OF THE SELLER AND IT CANNOT BE EXTENDED FOR TAXING THE DIFFERENCE BETWEEN APPARENT CONSIDERATION AND VALUATION DONE BY STAMP VALUATION AUTHORITIES A S UNDISCLOSED INVESTMENT U/S 69. IN FACT, SECTION 69 ITSELF IS A LEGAL FICTION WHEREBY INVESTMENT INTO AN ASSET IS TREATED AS INCOME IF IT IS NOT DISCLOSED IN THE REGULAR BOOKS OF ACCOUNT. NO FURTHER LEGAL FICT ION FROM ELSEWHERE IN THE STATUTE CAN BE BORROWED TO EXTEND THE FIELD OF SECTION 69. IT IS FOR THE LEGISLATURE TO INTRODUCE LEGAL FICTION TO O VERCOME DIFFICULTY IN TAXING CERTAIN RECEIPTS OR EXPENDITURE WHICH OTHERW ISE WAS NOT POSSIBLE UNDER NORMAL PROVISIONS OF THE ACT. IT IS WITH THIS PURPOSE THAT WHEN IT WAS FOUND DIFFICULT TO PREVENT TAX EVA SION BY UNDERSTATING APPARENT SALE CONSIDERATION AS COMPARE D TO THE VALUATION MADE BY STAMP VALUATION AUTHORITIES FOR T HE PURPOSES OF LEVYING STAMP DUTY THEN IT WAS THOUGHT NECESSARY TO INTRODUCE SECTION 50C FOR SUBSTITUTING APPARENT SALE CONSIDER ATION BY VALUATION DONE BY STAMP VALUATION AUTHORITIES. THIS FICTION C ANNOT BE EXTENDED ANY FURTHER AND, THEREFORE, CANNOT BE INVO KED BY ASSESSING OFFICER TO TAX THE DIFFERENCE IN THE HAND S OF THE PURCHASER. 8. HON'BLE MADRAS HIGH COURT IN CGT V, R. DAM ODARAN (2001) 247 ITR 698 HELD THAT STAMP VALUATION AUTHORITIES HAVE THEIR OWN METHOD OF EVALUATING THE PROPERTY. MERELY BECAUSE FOR THE PURPOSE OF STAMP DUTY, PROPERTY IS VALUED AT HIGHER COST, I T CANNOT BE SAID THAT ASSESSES HAS MADE MORE PAYMENT THAN WHAT I S STATED IN THE SALE DEED. HON'BLE ALLAHABAD HIGH COURT IN DINESH KURNAR MITTAL V. ITO (1992) 193 ITR 770 (ALL.) QUASHED THE ORDER OF AUTHORITIES BELOW, WHEREIN HALF OF THE DIF FERENCE BETWEEN THE AMOUNT PAID AND THE VALUE FOR PURPOSES OF STAMP DUT Y WAS ADDED AS INCOME OF THE ASSESSEE BY THE ASSESSING OFFICER. IT IS HELD THAT THERE IS NO RULE OF LAW TO THE EFFECT THAT THE VALU E DETERMINED FOR THE PURPOSES OF STAMP DUTY IS THE ACTUAL CO NSIDERATION PASSED BETWEEN THE PARTIES TO THE SALE, I,TAT, SMC AHMEDABAD IN ITA NO. 4120/AHD/2003 IN NISNABEN AMINBHAI MITH ANI DELETED THE ADDITION MADE U/S 69 ON ACCOUNT OF DIFFERENCE B ETWEEN APPARENT CONSIDERATION AND VALUATION DONE BY STAMP VALUATION AUTHORITIES AFTER FOLLOWING VARIOUS AUTHORITIES AS REFERRED TO AS ABOVE. ITA N O.3888 /DEL./2011 12 AS A RESULT, WE DELETE THE ADDITION AND ALLOW THE A PPEAL OF THE ASSESSEE. 5.2 SIMILAR VIEW WAS TAKEN IN THEIR DECISIONS IN RICHA NARESH JAIN VS. ITO,ITA NO.3997/ AHD./ 2008 AS ALSO IN THE DECISION DATED 11.12.2009 IN THE CASE OF ITO VS. SMT. KUSUM GILAN I IN ITA NO. 1576/DEL./2008 AND ITO VS. OPTEC DISC MANUFACTURIN G, 11 DTR (CHD)(TRIB) 264. MOREOVER, HON'BLE RAJASTHAN HIGH C OURT IN THEIR DECISION IN THE CASE OF CIT VS. KRISHAN KUMAR & OTH ERS, 315 ITR 204(RAJ), HELD THAT IT BECOMES A PURE QUESTION OF FACT, AS TO WHETHER THE CONSIDERATION SHOWN IN THE DOCUMENT OF CONVEYANCE, IS THE ACTUAL AMOUNT PAID BY WAY OF CONSIDERATION, TO BE TAKEN TO BE UNDISCLOSED INCOME OF THE ASSESSEE, OR IT IS A DEFL ATED FIGURE, AND THEREFORE, ADDITION IS REQUIRED TO BE MADE. IF IT I S TAKEN TO BE DEFLATED FIGURE, THEN IT IS FOR THE DEPARTMENT TO L EAD POSITIVE EVIDENCE, ABOUT THE FAIR MARKET VALUE OF THE PROPER TY, AND FURTHER TO SHOW, THAT THE PROPERTY WAS UNDERVALUED IN THE DOCU MENT OF SALE, BEFORE MAKING ANY ADDITION IN THE INCOME, ON THAT COUNT. 5.3 AS OBSERVED BY THE HONBLE APEX COURT IN CIT V S. MOTHER INDIA REFRIGERATION INDUSTRIES PVT. LTD. ,155 ITR 711(SC) WHILE REFERRING TO THEIR DECISION IN BENGAL IMMUNITY COMPANY LIMITED V . STATE OF BIHAR [1955] 2 SCR 603, 606 ; 6 STC 446, IT IS WELL SETTL ED THAT THE LEGAL FICTIONS ARE CREATED ONLY FOR SOME DEFINITE PURPOSE AND THESE MUST BE LIMITED TO THAT PURPOSE AND SHOULD NOT BE EXTEND ED BEYOND THAT LEGITIMATE FIELD. PROVISIONS OF SEC. 50C FALLING UN DER THE CHAPTER CAPITAL GAINS WERE ENACTED WITH A SPECIFIC PURPO SE OF DETERMINING THE FULL VALUE OF CONSIDERATION IN CASE OF TRANSFER OF IMMOVABLE PROPERTY FOR THE PURPOSE OF SEC. 48 OF THE ACT. IN THE ABSENCE OF ANY EVIDENCE THAT THE ASSESSEE PAID CONSIDERATION HIG HER THAN STATED IN THE PURCHASE DEED , PROVISIONS OF SEC. 50C CAN NOT BE EXTENDED WHILE MAKING ADDITIONS U/S 69B OF THE ACT. ITA N O.3888 /DEL./2011 13 6. IN THE ABSENCE OF ANY EVIDENCE THAT THE A SSESSEE PAID CONSIDERATION HIGHER THAN STATED IN THE PURCHASE DE ED OR THE ASSESSEE UTILIZED HIS UNDISCLOSED INCOME IN THE ADD ITIONAL BUILT UP AREA OF 144.522 SQ.MTS., PROVISIONS OF SEC. 50C CAN NOT BE EXTENDED WHILE MAKING ADDITION U/S 69B OF THE ACT. IT IS FO R THE REVENUE TO LEAD POSITIVE EVIDENCE, ABOUT THE FAIR MARKET VALUE OF THE PROPERTY, AND FURTHER TO SHOW, THAT THE PROPERTY WAS UNDERVAL UED IN THE DOCUMENT OF SALE, BEFORE MAKING ANY ADDITION IN TH E INCOME ON THAT COUNT. ADMITTEDLY, IN THE PRESENT CASE, APART FROM RELYING UPON THE RATES ADOPTED BY STAMP VALUATION AUTHORITY, THERE I S NO OTHER MATERIAL TO SUPPORT THE ADDITION. IN OUR OPINION, R ATES ADOPTED BY STAMP VALUATION AUTHORITY CANNOT BE TAKEN, BY ITSEL F, AS THE PRICE, FOR WHICH THE PROPERTY WAS PURCHASED. IN VIEW THER EOF AND IN THE LIGHT OF AFORESAID DECISIONS OF THE ITAT AND OF THE HONBLE RAJASTHAN HIGH COURT, WE HAVE NO ALTERNATIVE BUT TO VACATE TH E FINDINGS OF THE LD. CIT(A) AND ACCORDINGLY, DELETE THE ADDITION OF ` 7,71,333/- ,PROVISIONS OF SEC. 69B BEING NOT APPLICABLE IN THE FACTS OF THE CASE. THEREFORE, GROUND NO.1 IN THE APPEAL IS ALLOWED. 7. NO ADDITIONAL GROUND HAVING BEEN RAISED BEFORE US IN TERM OF RESIDUARY GROUND NO.2 IN THE APPEAL, ACCORDINGLY, T HIS GROUND IS DISMISSED. 8. NO OTHER PLEA OR ARGUMENT WAS MADE BEFORE US . 9. IN THE RESULT, APPEAL IS ALLOWED. SD/- SD/- (R.P. YADAV) (A.N. PAHUJA) (JUDICIAL MEMBER) (ACCOUNTANT MEMBER) NS ORDER PRONOUNCED IN OPEN COURT ITA N O.3888 /DEL./2011 14 COPY OF THE ORDER FORWARDED TO :- 1. ASSESSEE 2 JOINT. CIT, RANGE -28,NEW DELHI 3. CIT CONCERNED. 4. CIT(A)-XXV, NEW DELHI 5. DR, ITAT,D BENCH, NEW DELHI 6. GUARD FILE. BY ORDER, DEPUTY / ASSTT.REGISTRAR ITAT, DELHI