Income Tax Officer Ward-3, BHILAI(CG) V. SHRI Girish Kumar Jain, Durg

ITA 41/BIL/2011

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 93994 (ITAT-RAIPUR)
• Duration Of Justice: 4 year(s) 4 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-06-2015
• Appeal Filed By: Department
• Order Result: Partly Allowed
• Bench Allotted: DB
• Assessment Year: 2007-2008
• Appeal Filed On: 07-02-2011
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: SHEETAL S VERMA
• Assessee Lawyers: D K DUTTA
• Keywords: Unexplained cash credit; Unexplained investment; Sale consideration of property below Jantri Value; Opportunity of being heard; Rule of consistency; Question of law; Cost of acquisition
• Section: 68; 145; 50C

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL RAIPUR BENCH, RAIPUR BEFORE SHRI MUKUL K. SHRAWAT , JUDICIAL MEMBER AND SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER IT A NO.41 / BLPR./2011 ( ASSESSMENT YEAR : 20 0 7 08 ) INCOME TAX OFFICER - 3 AAYAKAR BHAVAN , BHILAI APPEL LANT V/S SHRI GIRISH KUMAR JAIN PROPRIETOR M/S. J.P. ENTERPRISES MOHAN NAGAR, DURG PAN ACGPJ6045G .... RESPONDENT REVENUE BY : SMT. SHEETAL S. VERMA ASSESSEE BY : SHRI D.K. DUTTA DATE OF HEARING 09 .06.2015 DATE OF ORDE R 12 .06.2015 O R D E R PER SHAMIM YAH YA, A. M. T HIS APPEAL BY THE REVENUE IS DIRECTED AGAINST THE IMPUGNED ORDER DATED 2 2 ND NOVEMBER 2010 , PASSED BY THE LEARNED CIT(A), RAIPUR, FOR THE ASSESSMENT YEAR 20 07 08 . THE GROUNDS RAISED BY THE REVENUE ARE AS UNDER: SHRI GIRISH KUMAR JAIN 2 1. WHETHER IN LAW AND ON FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LEARNED CIT(A) WAS JUSTIFIED IN DELETING THE ADDITION OF ` 34,37,203, MADE BY THE A.O. U/S 68 OF THE ACT. 2. WHETHER IN LAW AND ON FACTS AND IN THE CIRCUMSTANCES OF THE C ASE, THE LEARNED CIT(A) WAS JUSTIFIED IN DELETING THE COMPUTATION MADE BY THE A.O. UNDER THE HEAD LONG TERM CAPITAL GAIN AT ` 3,83,660. 2. THE FACTS, APROPOS GROUND NO.1, ARE THAT DURING THE ASSESSMENT PROCEEDINGS, THE ASSESSING OFFICER VERIFIED THE PURCHAS ES AND SALES EFFECTED BY THE ASSESSEE BY ENQUIRING FROM M/S. GOYAL TRADING CO., AMBIKAPUR AND M/S. GOYAL CONSTRUCTION CO., WITH WHOM THE ASSESSEE HAD SHOWN SALES. THE ASSESSING OFFICER FOUND VARIOUS DISCREPANCIES. WHILE M/S. GOYAL TRADING CO., AMBIKAPUR, C ONFIRMED THE TRANSACTION OF ` 57,85,801. THE BOOKS OF ASSESSEE SHOW ED TRANSACTION AT ` 69,87,104. M/S. GOYAL TRADING CO., STATED THAT ALL PAYMENTS WERE MADE THEN BY CHEQUE AND NO PAYMENT WAS DUE. HOWEVER, THE ASSESSEE HAD SHOWN CASH PAYMENT BELOW ` 20,000, SUCCESSIVELY AGAINST THE SALE BILL TO M/S. GOYAL TRADING CO., AMOUNTING TO ` 12,60,000. M/S. GOYAL EXTRACTION CO ., HAVE DENIED HAVING MADE ANY TRANSACTION WITH THE ASSESSEE. UPON VERIFYING THE ASSESSEES DOCUMENTS IN THIS REGARD, THE ASSESSING OFFICER CON CLUDED AS UNDER: DURING THE COURSE OF ASSESSMENT PROCEEDINGS, ASSESSEE WAS ASKED TO PRODUCE FREIGHT BILLS ISSUED BY THE TRANSPORTER FOR TRANSPORTATION OF THE GOODS SOLD. PERUSAL OF THE FREIGHT BILLS SHRI GIRISH KUMAR JAIN 3 SHOWED THAT FOR ALL THE TRANSACTIONS WHICH APPEARED TO BE GENUINE AND WHICH WERE FOUND RECORDED IN THE BOOKS OF THE PURCHASER I.E., M/S. GOYAL TRADING CO., AMBIKAPUR, FREIGHT BILLS WERE AVAILABLE WITH THE ASSESSEE. IN RESPECT OF THE TRANSACTIONS WHICH WERE NOT FOUND RECORDED IN THE BOOKS OF THE PURCHASER NO F REIGHT BILLS WERE PRODUCED BY THE ASSESSEE IN RESPECT OF SUCH TRANSACTION WHICH CLEARLY SHOWS THAT ACTUALLY NO GOODS HAVE BEEN SOLD TO THE PARTIES AND ONLY BOOK ENTRIES HAVE BEEN MADE BY THE ASSESSEE. THIS IS MORE EVIDENCED BECAUSE IN RESPECT OF SALES SHOW N TO M/S. GOYAL EXTRACTION CO., AMBIKAPUR, ASSESSEE HAS NOT PURDUCED ANY FREIGHT BILLS. EXCEPT ONE IN WHICH THOUGH THE BILL HAS BEEN ADDRESSED TO M/S. GOYAL EXTRACTION CO. BUT ASSESSEE HAS ATTACHED A FREIGHT BILL, WHICH SHOWS THE NAME OF THE CONSIGNEE AS M /S. GOYAL TRADING CO., AMBIKAPUR (COPY OF BILL ENCLOSED). IT HAS ALSO NOT BEEN NOTICED THAT IN RESPECT OF SALES AFFECTED TO GOYAL TRADING CO., THERE HAS BEEN NO EVIDENCE OF THE SALES FOR WHICH CASH PAYMENTS HAVE BEEN SHOWN TO HAVE BEEN RECEIVED BY THE ASSE SSEE AND ALSO IN RESPECT OF THE SALES FOR WHICH DEBIT BALANCE HAS BEEN SHOWN BY THE ASSESSEE. IN RESPECT OF THESE TRANSACTIONS THOUGH ASSESSEE HAS PRODUCED COPY OF SALES BILLS BUT THEY ARE NOT ACCOMPANIED BY THE FREIGHT BILLS ISSUED BY THE TRANSPORTER AND ASSESSEE HAS BROUGHT NOTHING IN RECORD TO SHOW RECEIPT OF CASH PAYMENTS. HOWEVER, THE COUNTER VERIFICATION OF THE BUYER PARTY AND THE MODE OF ISSUE OF BILL AND PAYMENTS RECEIVED, CLEARLY POINTS TO THE FACT THAT ASSESSEE IN THE GUISE OF BOGUS SALES HAS IN TRODUCED UNEXPLAINED CASH CREDITS. THEREFORE, THE SALES SHOWN TO HAVE BEEN AFFECTED TO M/S. GOYAL EXTRACTION CO., AMOUNTING TO ` 27,40,000, IS ADDED BACK TO THE TOTAL INCOME OF THE ASSESSEE AS UNEXPLAINED CASH CREDITS U/S 68 OF THE I.T. ACT, 1961. LIKEWISE , THE DIFFERENCE OF SALES AFFECTED TO M/S. GOYAL TRADING CO. AMOUNTING TO ` 6,97,203 IS ADDED BACK TO THE TOTAL INCOME OF THE ASSESSEE AS UNEXPLAINED CASH CREDITS. THEREFORE, THE TOTAL UNEXPLAINED CASH CREDITS COMES TO ` 34,37,203, WHICH IS ADDED BACK TO T HE TOTAL INCOME FOR THE YEAR. THE ABOVE BOGUS SALES SHOWN TO THE TUNE OF ` 34,37,203, SHALL BE ADDED TO THE CLOSING STOCK OF THE ASSESSEE FOR THE YEAR. PENALTY PROCEEDINGS U/S 271(1)(C) IS ALSO BEING SEPARATELY INITIATED. SHRI GIRISH KUMAR JAIN 4 3. AGAINST THE ABOVE ORDER, THE A SSESSEE FILED APPEAL BEFORE THE FIRST APPELLATE AUTHORITY, WHEREIN THE LEARNED CIT(A) GRANTED RELIEF TO THE ASSESSEE BY HOLDING AS UNDER: 3.2 THE RIVAL SUBMISSIONS HAVE BEEN CAREFULLY CONSIDERED WITH REFERENCE TO THE FACTS OBTAINING FROM THE RECORD. THE GOODS SOLD BY THE APPELLANT TO M/S. GOYAL TRADING CO., AMBIKAPUR, WERE ON CREDIT BASIS AND THE GOODS WERE DISPATCHED ON VARIOUS DATES AND THE TRUCK NUMBERS WERE MENTIONED IN THE SALE BILLS. AS PER THE AUDITED ACCOUNTS, THE APPELLANT HAD TO RECEIVE ` 5,06, 100 AS ON 31.03.2007. SIMILARLY, THE TRANSACTIONS THAT THE APPELLANT HAD WITH M/S. G OYAL EXTRACTION CO . AMBIKAPUR, WERE FULLY SUPPORTED BY BILLS AND VOUCHERS AND DULY REFLECTED IN THE AUDITED ACCOUNTS AND ON THE BASIS OF THESE ACCOUNTS, THE ALLEGATION OF T HE A.O. THAT THE APPELLANT HAD MADE CASH SALES BELOW ` 20,000, WAS DENIED AND IF THE OTHER PARTY VIZ. M/S. GOYAL EXTRACTION CO. , AMBIKAPUR, HAVING NOT MADE CORRESPONDING ENTRIES IN THEIR BOOKS OF ACCOUNT, HAD DENIED THE IMPUGNED TRANSACTION. THE APPELLANT COULD NOT BE HELD RESPONSIBLE FOR THE SAME. ACCOUNTS ALSO REVEALED THAT MOST OF THE TRANSACTIONS THAT THE APPELLANT HAD WITH THESE PARTIES WERE THROUGH BANKING CHANNELS AND IT THE PURCHASERS HAD NOT PROPERLY ACCOUNTED THE IMPUGNED PURCHASES IN THEIR BOOKS OF ACCOUNT, ADVERSITY FOR SUCH UNRECORDED PURCHASES, WOULD HAVE BEEN HELD AGAINST THEM AND NOT AGAINST THE APPELLANT. THIS IS MORE SO WHEN THE APPELLANT HAD NO ADMINISTRATIVE CONTROL OVER THE ACCURACY OF ACCOUNTS OF THE PURCHASERS SINCE THE APPELLANT WAS O NLY ACCOUNTABLE FOR THE CORRECTNESS IN ITS ACCOUNTS. HENCE, THE APPELLANT, IN MY CONSIDERED VIEW, WAS NOT ANSWERABLE FOR THE VARIATION FOUND FROM THE COPIES OF ACCOUNT SUPPLIED BY THE PURCHASERS. IN KALRA GLUE FACTORY V/S SALES TAX TRIBUNAL 167 ITR 498 (SC ), IT WAS HELD THAT ASSESSMENT CANNOT BE BASED ON THE ENTRIES FOUND IN THE BOOKS OF ACCOUNT OF THE THIRD PARTY WITHOUT AFFORDING OPPORTUNITY OF CROSS EXAMINING THE PARTY. IN MY CONSIDERED VIEW, THE ENQUIRIES CONDUCTED BY THE A.O. BEHIND THE BACK OF THE APP ELLANT, HAVING NO EVIDENTIARY VALUE, COULD NOT BE ADVERSELY CONSTRUED AGAINST THE APPELLANT. RECORD EVIDENCES THE FACT THAT NEITHER THE PURCHASERS NOR THE TRANSPORTERS WERE SUMMONED AND EXAMINED IN PRESENCE OF THE APPELLANT, MEANING THEREBY THAT THE OPPORT UNITY OF CROSS EXAMINATION WAS NOT AFFORDED TO THE APPELLANT. ASSESSMENT ORDER EVIDENCES THE FACT THAT THE AUDITED SHRI GIRISH KUMAR JAIN 5 BOOKS OF ACCOUNT WERE NOT REJECTED AND PROVISIONS OF SECTION 145 WERE NOT INVOKED IMPLYING THEREBY THAT THE GENUINENESS OF THE PURCHASES AND SALES, RECORDED IN THE BOOKS, STOOD UNDISPUTEDLY ACCEPTED COUPLED WITH ACCEPTANCE OF THE TRADING RESULTS SHOWN AS PER BOOKS. SINCE THE IMPUGNED TRANSACTIONS REPRESENTED CREDIT SALES, IN MY CONSIDERED OPINION, PROVISIONS OF SECTION 68 OF THE ACT WERE NOT AT TRACTED SINCE THE IMPUGNED TRADE CREDITS WERE NOT UNSECURED LOANS OBTAINED FROM THIRD PARTIES. RELIANCE FOR THIS PROPOSITION IS PLACED ON THE DECISION IN CIT V/S PANCHAM DASS JAIN (2006) 205 CTR 444 (ALL.). NO EVIDENCE WHATSOEVER WAS BROUGHT ON RECORD TO C ONCLUSIVELY PROVE THAT THE IMPUGNED SUM DEEMED AND ASSESSED U/S 68 OF THE ACT, WAS THE UNDISCLOSED INCOME EARNED BY THE APPELLANT DURING THE RELEVANT PREVIOUS YEAR. FOR ALL THE REASONS MENTIONED ABOVE, THE IMPUGNED ADDITION MADE U/S 68 OF THE ACT IS UNSUST AINABLE ON FACTS AND IN LAW AND HENCE, THE SAME IS DELETED. AGAINST THE ABOVE ORDER, THE REVENUE IS IN APPEAL BEFORE THE TRIBUNAL. 4. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. WE FIND THAT THE ASSESSING OFFICER HAS N OTED DISCREPANCY FROM THE SALE AS RECORDED IN ASSESSEES BOOKS AND THE SALES WHICH WERE ACCEPTED BY THE PARTIES TO WHOM THE SALES WERE MADE. IN THIS REGARD, ENQUIRY WAS ALSO MADE THROUGH THE ASSESSING OFFICERS OF THE CONCERNED PARTIES. FROM THIS EXAMINATIO N, IT WAS CLEAR THAT THE SALES REFLECTED BY THE ASSESSEE WERE NOT CORROBORATED BY THE OTHER PARTIES BOOKS. UNDER THESE CIRCUMSTANCES, THE LEARNED CIT(A)S CONCLUSION THAT THE ASSESSEE SHOULD NOT BE CALLED UPON TO GIVE EXPLANATION REGARDING THIS DISCREPANC Y IS NOT SUSTAINABLE. THIS IS SO IN SHRI GIRISH KUMAR JAIN 6 THE LIGHT OF THE FACT THAT THE ASSESSING OFFICER HAS GIVEN AMPLE EVIDENCE THAT THESE SO CALLED SALES OF THE ASSESSEE WERE NOT CORROBORATED BY CORRESPONDING GENUINE FREIGHT DOCUMENTS. ON SUCCESSIVE DAYS RECEIVED ` 19,000, IN CASH AGAINST THE SALES WHICH HAVE NOT BEEN ACCEPTED BY THE PARTIES FURTHER PUTS A QUESTION MARK ON THE VERACITY OF CLAIM AND CONDUCT OF THE ASSESSEE. WE FURTHER NOTE THAT THE LEARNED CIT(A) HAS NOTED THAT THE ASSESSING OFFICER HAS MADE ENQUIRIES WITHOU T GIVING THE ASSESSEE AN OPPORTUNITY TO CROSS EXAMINE THE PARTIES. IN THIS REGARD, THE LEARNED DEPARTMENTAL REPRESENTATIVE HAS SUBMITTED THAT THE ASSESSING OFFICER HAS DULY GIVEN OPPORTUNITY TO THE ASSESSEE AND IT WAS ONLY AT THE FAG END OF THE ASSESSMENT PROCEEDINGS THAT THE ASSESSEE ASKED FOR ISSUANCE OF ISSUANCE OF NOTICE TO THE 31 PARTIES IN THIS REGARD. WE FIND CONSIDERABLE COGENCY IN THE LEARNED DEPARTMENTAL REPRESENTATIVES SUBMISSION THAT THE LEARNED CIT(A) HAS GOT CO TERMINUS POWER WITH THAT OF THE ASSESSING OFFICER AND UNDER THESE CIRCUMSTANCES, HE SHOULD HAVE CORRECTED THE LACUNA IF ANY IN THE ORDER OF THE ASSESSING OFFICER BY GIVING AN OPPORTUNITY TO THE ASSESSEE TO CROSS EXAMINE THE PARTIES. WE FIND THAT THIS VIEW IS ALSO SUPPORTED BY THE HON BL E APEX COURT DECISION IN THE CASE OF KAPURCHAND SHRIMAL V/S TAX RECOVERY OFFICER, HYDERABAD & ORS. , [1969] 131 ITR 451 (SC). IN THIS CASE, THE HONBLE SUPREME COURT HAS SHRI GIRISH KUMAR JAIN 7 EXPOUNDED THAT THE APPELLATE AUTHORITY HAS THE JURISDICTION AS WELL AS DUTY TO CORRECT THE ERRORS IN THE PROCEEDINGS UNDER APPEAL AND TO ISSUE IF NECESSARY APPROPRIATE DIRECTIONS TO THE AUTHORITY AGAINST WHOSE DECISION THE APPEAL IS PREFERRED TO DEPOSE THE WHOLE OR ANY PART OF THE MATTER AFRESH UNLESS FORBIDDEN FROM DOING SO BY THE STATUTE. NOW EXAMINING THE PRESENT CASE ON THE TOUCHSTONE OF THE ABOVE DECISION, WE FIND THAT THE ASSESSING OFFICER HAS COGENTLY BROUGHT ON RECORD EVIDENCE THAT THE ASSESSEE HAD BOOK ED SALES WHICH LACK COGENCY. THE DOCUMENTS BROUGHT ON RECORD AND THE FINDINGS OF TH E ASSESSING OFFICER HAVE NOT BEEN PROPERLY DISLODGED BY THE LEARNED CIT(A). JUST BECAUSE THE ASSESSEE IS CLAIMING THAT HE HAS NOT BEEN PROVIDED WITH AN OPPORTUNITY TO CROSS EXAMINE THE PARTIES SHOULD NOT BE A REASON FOR THE LEARNED CIT(A) TO ANNUL THE ASSE SSMENT IN THE FACTS AND CIRCUMSTANCES OF THE CASE, MORE SO WHEN THE LEARNED CIT(A) COULD HAVE GIVEN THE ASSESSEE THE NECESSARY OPPORTUNITY HIMSELF IN THIS REGARD. FURTHERMORE, WE NOTE THAT THE LEARNED CIT(A)S PROPOSITION THAT PROVISIONS OF SECTION 68 OF T HE ACT CANNOT BE APPLIED WITH RESPECT TO SALES ENTRIES HAS BEEN COUNTERED BY THE LEARNED DEPARTMENTAL REPRESENTATIVE BY PLACING RELIANCE UPON THE THIRD MEMBER CASE IN THE CASE OF ACIT V/S G.R. CORPORATION, 116 ITD 131. NEVERTHELESS, WE ARE OF THE OPINION T HAT QUOTING OF WRONG SECTION IN THE ASSESSMENT SHRI GIRISH KUMAR JAIN 8 PROCEEDINGS CANNOT BE FATAL TO THE SUBSTANCE OF THE DISALLOWANCE OR ADDITION . THIS IS ALSO A SETTLED LAW. IN THE LIGHT OF THE AFORESAID DISCUSSION AND PRECEDENCE, WE REMIT THIS ISSUE TO THE FILE OF THE ASSESSI NG OFFICER. THE ASSESSING OFFICER IS DIRECTED TO EXAMINE THE ISSUE AFRESH AFTER GIVING THE ASSESSEE ADEQUATE OPPORTUNITY OF BEING HEARD. THIS GROUND IS ALLOWED FOR STATISTICAL PURPOSES. 5. THE FACTS, APROPOS GROUND NO.2 , ARE THAT, ACCORDING TO THE ASSESSING OFFICER, THE ASSESSEE CLAIMED CAPITAL LOSS FROM SALE OF PLOT AT ` 18,540. THE SALE CONSIDERATION FOR THE ABOVE PLOT WAS SHOWN AT ` 76,000, AND THE COST OF ACQUISITION WAS SHOWN AT ` 94,540, BUT THEN, AS PER THE REGISTRATION DEED FILED IN ASSESSMENT PROCEED INGTS, MARKET VALUE OF THE ABOVE PLOT WAS SHOWN AT ` 4,78,200. WHEN CONFRONTED AS TO WHY SECTION 50C OF THE ACT SHOULD NOT BE INVOKED FOR COMPUTATION OF CAPITAL GAIN ARISING FROM SALE OF PLT, THE ASSESSEE DID NOT FURNISH ANY SATISFACTORY CONTENTION AND HEN CE, CAPITAL GAIN FROM SALE OF PLOT WAS COMPUTED AT ` 3,83,660, BY DEDUCTING THE COST OF ACQUISITION OF ` 94.540 FROM THE MARKET VALUE OF THE PLOT REGISTRATION DEED AT ` 4,78,200, BY INVOKING SECTION 50C OF THE ACT. 6. UPON ASSESSEES APPEAL IN THIS REGARD, T HE LEARNED CIT(A) PLACED RELIANCE ON THE DECISION OF THE HONBLE PUNJAB & HARYANA HIGH COURT IN SHRI GIRISH KUMAR JAIN 9 CIT V/S CHANDNI BHUCHAR, [2010] 229 CTR 190 (P&H) FOR THE PROPOSITION THAT IN THE ABSENCE OF ANY SOLID EVIDENCE SHOWING THE UNDERSTATEMENT OF CONSIDERATION STAM P DUTY VALUATION SHALL NOT AUTOMATICALLY SUBSTITUTE THE DECLARED SALE CONSIDERATION. AGAINST THE ABOVE ORDER, THE REVENUE IS IN APPEAL BEFORE US. 7. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. WE FIND THAT PROVISIONS OF SECTION 50C HAVE BEEN INSERTED W.E.F. 1 ST APRIL 2003, BY FINANCE ACT, 2002. THE SAID SECTION PROVIDES THAT VALUE ADOPTED BY THE STAMP VALUATION AUTHORITY SHOULD BE DEEMED TO BE FULL VALUE OF CONSIDERATION RECEIVED BY THE ASSESSEE IN CASE THE CONSIDERATION SHOWN IS LESS THAN THAT. SUB SECTION (3) OF THE SAID SECTION ALSO PROVIDES THAT WHEN THE ASSESSEE OBJECTS TO THE VALUE SO ADOPTED, THE ASSESSING OFFICER MAY REFER THE VALUATION TO A VALUATION OFFICER. NOW, WE NOTE THAT THE HONBLE PUNJAB & HARYANA HIGH COU RT IN THE CASE OF CHANDNI BHUCHAR (SUPRA), REFERRED BY THE LEARNED CIT(A) WAS CONSIDER ING A CASE AFTER THE ENACTMENT OF SECTION 50C . IN THAT CASE, THE HONBLE HIGH COURT HAS UPHELD THE TRIBUNALS VIEW THAT VALUATION DONE FOR THE PURPOSE OF STAMP DUTY WOULD NOT IPSO FACTO TAKE PLACE OF THE ACTUAL CONSIDERATION. THE HIGH COURT HAS ALSO UPHELD THE TRIBUNALS DECISION OF REJECTING THE REVENUES PLEA THAT THE SHRI GIRISH KUMAR JAIN 10 MATTER SHOULD BE SET ASIDE FOR REFERRING TO THE VALUATION CELL. WE MAY GAINFULLY REFER TO THE TRIBUNALS ORDER AS REFERRED BY THE HONBLE HIGH COURT IN ITS JUDGMENT AS UNDER: 'FROM A PLAIN READING OF THIS PROVISION, IT EMERGES OUT THAT THE VALUE ADOPTED OR ASSESSED BY ANY AUTHORITY OF A STATE GOVERNMENT FOR THE PURPOSE OF PAYMENT OF STAMP DUTY IN RESPECT O F LAND OR BUILDING OR BOTH, SHALL FOR THE PURPOSE OF S. 48 BE DEEMED TO BE THE FULL VALUE OF THE CONSIDERATION RECEIVED OR ACCRUING AS A RESULT OF TRANSFER. IT NOWHERE PROVIDES THAT THE VALUATION DONE BY THE STATE GOVERNMENT FOR THE PURPOSE OF STAMP DUTY E TC. WOULD IPSO FACTO TAKE PLACE OF THE ACTUAL CONSIDERATION AS BEING PASSED ON TO THE SELLER BY THE PURCHASER IN THE ABSENCE OF ANY OTHER EVIDENCE. THE AO IS REQUIRED TO BRING POSITIVE EVIDENCE ON RECORD INDICATING THE FACT THAT ASSESSEE HAS PAID ANYTHING MORE THAN THE ONE DISCLOSED IN THE PURCHASE DEED. THE DEPARTMENT HAS TAKEN AN ARGUMENT IN THE GROUNDS OF APPEAL THAT AO SHOULD BE DIRECTED TO MAKE A REFERENCE TO THE VALUATION OFFICER UNDER S. 142A OF THE ACT. IT ALSO RAISED A PLEA THAT AO HAS WRONGLY MADE A REFERENCE OF S. 50C WHILE MAKING THE ADDITION, IN FACT, THE ADDITION IS MADE U / S 69B ON ACCOUNT OF UNEXPLAINED INVESTMENT IN THE PROPERTY. WE HAVE TAKEN COGNIZANCE OF BOTH THESE ARGUMENTS. IT IS THE AO WHO HIMSELF OUGHT TO HAVE COLLECTED THE EVIDENCE IN DICATING THE FACT THAT ASSESSEE HAS PAID MORE MONEY THAN THE ONE DISCLOSED IN THE PURCHASE DEED. THE TRIBUNAL WHILE SITTING IN THE SECOND APPEAL IS NOT SUPPOSED TO GIVE DIRECTIONS ON THE APPEAL OF REVENUE THAT A REFERENCE TO THE VALUATION OFFICER IS TO BE MADE IN ORDER TO SUBSTANTIATE THE ADDITION. THE STEPS WHICH AO COULD HAVE TAKEN, IF NOT TAKEN THEN THAT LACUNA CANNOT BE FILLED UP AT THE END OF THE TRIBUNAL. IN THE ABSENCE OF ANY EVIDENCE EXHIBITING THE FACT THAT ASSESSEE HAS MADE UNEXPLAINED INVESTMENT IN THE HOUSE PROPERTY, NO ADDITION CAN BE JUSTIFIED. LEARNED FIRST APPELLATE AUTHORITY HAS APPRECIATED THE FACTS AND CIRCUMSTANCES IN RIGHT PERSPECTIVE. WE DO NOT FIND ANY ERROR IN THE IMPUGNED ORDER ON THIS GROUND. THUS, THE GROUND OF APPEAL RAISED BY THE REVENUE IS REJECTED.' THE HONBLE HIGH COURT S ADJUDICATION OF THE ISSUE, READS AS UNDER: SHRI GIRISH KUMAR JAIN 11 HAVING HEARD THE LEARNED COUNSEL, WE ARE OF THE CONSIDERED VIEW THAT THE VIEW TAKEN BY THE TRIBUNAL WHILE ACCEPTING THE ORDER OF THE CIT(A) DOES NOT SUFFER FROM ANY LEGAL INFIRMITY. THE ARGUMENT OF THE LEARNED COUNSEL FOR THE REVENUE THAT THE TRIBUNAL SHOULD HAVE ASKED THE AO TO MAKE A REFERENCE TO THE VALUATION OFFICER UNDER S. 142A OF THE ACT DOES NOT REQUIRE ANY DETAILED CONSIDERATION BECAUSE CIT(A) HAD SENT THE EV IDENCE PRODUCED BY THE ASSESSEE TO THE AO FOR HIS COMMENTS. HE CONDUCTED AN INQUIRY AND ASKED THE ASSESSEE - RESPONDENT TO PRODUCE ORIGINAL BANK STATEMENT. THEN HE SENT A REPLY TO THE CIT(A) AUTHENTICATING THE WHOLE TRANSACTIONS. THEREAFTER THE CIT(A) AND TH E TRIBUNAL HAVE ACCEPTED SALE CONSIDERATION DEPICTED IN SALE DEED AS FACT. THE ASSESSEE - RESPONDENT HAS DISCHARGED THE BURDEN OF PROVING THE SALE CONSIDERATION AS PROJECTED IN THE SALE DEED. MOREOVER, THE LEARNED COUNSEL FOR THE REVENUE HAS NOT BEEN ABLE TO POINT OUT THAT THE VIEW TAKEN BY THE ALLAHABAD HIGH COURT IN SMT. RAJ KUMARI VIMLA DEVIS CASE (SUPRA) HAS BEEN CHALLENGED BEFORE HONBLE SUPREME COURT AND THE SAME HAS BEEN REJECTED. THE AFORESAID VIEW SEEMS TO HAVE ACCEPTANCE OF THE APPELLANT. IF THAT B E SO THEN THE PRINCIPLE OF CONSISTENCY WOULD REQUIRE THAT THE AFORESAID VIEW BE FOLLOWED AS THE CORRECT VIEW. ACCORDINGLY, WE ARE OF THE VIEW THAT NO QUESTION OF LAW MUCH LESS SUBSTANTIAL QUESTION OF LAW WARRANTING ADMISSION OF THE APPEAL WOULD ARISE FOR D ETERMINATION OF THIS COURT. DISMISSED. NOW, WE NOTE THAT AS PER THE RATIO EMANATING FROM THE ABOVE JUDGMENT, THE ASSESSING OFFICER SHOULD HAVE REMANDED THE ISSUE TO THE FILE OF THE DVO WHEN HE PROPOSES TO TAKE RECOURSE TO THE PROVISIONS OF SECTION 50C. NOW, IN THIS CASE, THE LEARNED COUNSEL FOR THE ASSESSEE HAS SUBMITTED THAT EVEN BEFORE THE ASSESSING OFFICER, THE ASSESSEE HAS CATEGORICALLY SUBMITTED THAT THE VALUE ADOPTED FOR STAMP VALUATION IS NOT CORRECT. THE ASSESSEE HAS EVEN REQUESTED THAT THE PARTI ES FROM WHOM THE SALE WAS MADE SHOULD BE CALLED UPON TO GIVE SHRI GIRISH KUMAR JAIN 12 EXPLANATION REGARDING THE CONSIDERATION RECEIVED. IN THIS VIEW OF THE MATTER, WE FIND THAT WHEN THE ASSESSEE HAS CLEARLY OBJECTED TO THE SUBSTITUTION OF VALUE ADOPTED BY THE STAMP VALUATION AUTHO RITY, THE ASSESSING OFFICER WAS DUTY BOUND TO REFER THE MATTER TO THE VALUATION CELL. ADMITTEDLY, THE ASSESSING OFFICER HAS FAILED TO REFER TO THE MATTER TO THE VALUATION CELL. IN THIS VIEW OF THE MATTER, AS PER THE ABOVE JUDGMENT OF THE HONBLE PUNJAB & H ARYANA HIGH COURT, THIS IS FATAL TO THE ADDITION MADE BY THE ASSESSING OFFICER. NO CONTRARY DECISION HAS BEEN CITED BEFORE US. IT IS A SETTLED LAW THAT THE DECISION OF THE HIGH COURTS ARE BINDING UPON THE INFERIOR COURTS AND TRIBUNAL. ACCORDINGLY, RESPECTF ULLY FOLLOWING THE DECISION FROM THE HONBLE PUNJAB & HARYANA HIGH COURT CITED SUPRA, WE DO NOT FIND ANY INFIRMITY IN THE ORDER PASSED BY THE LEARNED CIT(A) AND THE SAME IS HEREBY AFFIRMED. 8. IN THE RESULT, REVENUES APPEAL IS PARTLY ALLOWED. ORDER PRONOU NCED IN THE OPEN COURT O N 12 TH JUNE 2015 SD/ - MUKUL K. SHRAWAT JUDICIAL MEMBER SD/ - SHAMIM YAHYA ACCOUNTANT MEMBER RAI PUR , DATED : 12 TH JUNE 2015 SHRI GIRISH KUMAR JAIN 13 COPY OF THE ORDER FORWARDED TO : (1) THE ASSESSEE ; (2) THE REVENUE; (3) THE CIT(A ) ; (4) THE CIT, BILAS PUR CITY CONCERNED ; (5) THE DR, ITAT, RAIPUR (6) GUARD FILE . TRUE COPY BY ORDER PRADEEP J. CHOWDHURY SR. PRIVATE SECRETARY SR. PRIVATE SECRETARY / A SS ISTANT REGISTRAR ITAT, RAIPUR