Aneeta Singh, New Delhi V. ITO, New Delhi

ITA 4324/DEL/2009

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 52592 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 9 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-08-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 25-08-2011
• Assessment Year: 2003-2004
• Appeal Filed On: 11-11-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ANUSHA KHURANA
• Assessee Lawyers: JAN PRIYA ROOP RAI
• Keywords: Cost of acquisition; Fair market value; Valuation report; Onus to prove
• Section: 69

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH : A: NEW DELHI BEFORE SHRI I.P. BANSAL, JUDICIAL MEMBER AND SHRI B.C. MEENA, JUDICIAL MEMBER ITA NO.4324/DEL/2009 ASSESSMENT YEAR : 2003-04 ANEETA SINGH, W-19, GREEN PARK MAIN, NEW DELHI. PAN : AATPS6036M VS. ITO, WARD 24 (4), NEW DELHI. (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI AJAY VOHRA, ADVOCATE & MS JAN PRIYA ROOP RAI REVENUE BY : SMT. ANUSHA KHURANA, SR. DR ORDER PER I.P. BANSAL, JUDICIAL MEMBER THIS IS AN APPEAL FILED BY THE ASSESSEE. IT IS DIRECTED AGAINST THE ORDER PASSED BY THE CIT (A) DATED 13 TH MARCH, 2009 FOR ASSESSMENT YEAR 2003-04. THE GROUNDS OF APPEAL READ AS UNDER:- 1. THAT IN THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LEARNED CIT (A) HAS ERRED IN CONFIRMING THE ADDITION MADE BY THE A.O. ON ACCOUNT OF UNDISCLOSED INVESTMENT IN THE PURCHA SE OF FLAT AT W-19, GREEN PARK MAIN, NEW DELHI OF RS.24,59, 300/-. 2. THAT IN THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LEARNED CIT (A) HAS ERRED IN UPHOLDING THE ACTION OF LEARNED A.O. IN REFERRING THE MATTER TO THE VALUATION OFFICER FOR OBTAI NING ESTIMATES OF VALUE OF PROPERTY. 3. THAT IN THE FACTS AND CIRCUMSTANCES OF THE CASE, TH E LEARNED CIT (A) HAS ERRED IN NOT STRIKING DOWN THE ACTI ON OF THE A.O. IN ARBITRARILY REFERRING TO THE VALUATION OFFICER UNDER SECTION 142A AND NOT CONSIDERING THE OBJECTION OF THE APPELLANT. ITA NO.4324/DEL/2009 2 4. THAT IN THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LEARNED CIT (A) HAS ERRED IN CONFIRMING THE ARBITRARILY MAKIN G AN ADDITION AFTER APPLYING PROVISIONS OF SECTION 69B. 5. WITHOUT PREJUDICE TO THE ABOVE, THE LEARNED CIT (A) H AS ERRED IN NOT STRIKING DOWN THE ORDER OF THE A.O., WHO ACCEPTED THE ESTIMATE OF THE VALUATION OFFICER, WITHOUT GIVING REASONA BLE OPPORTUNITY TO THE APPELLANT, EVEN THOUGH THE VALUATION OF FICER HAD POINTED OUT THAT THE APPELLANTS OBJECTIONS HAD NOT BEE N CONSIDERED BY HIM, AND HAD REQUIRED THE A.O. TO CONSI DER APPELLANTS OBJECTIONS, THE VALUATION OFFICER HAD NOT AL LOWED REASONABLE OPPORTUNITY BEFORE FINALIZING HIS ESTIMATES. 6. THAT IN THE FACTS AND CIRCUMSTANCES OF THE CASE, THE L EARNED CIT (A) HAS ERRED IN CONFIRMING THE ACTION OF A.O. IN RELYING ONLY ON AN ESTIMATE AND, TO HOLD THAT APPELLANT HAD MADE AN UNDISCLOSED INVESTMENT, WITHOUT BRINGING ANY OTHER MATERI AL ON RECORD. 7. THAT IN THE FACTS AND CIRCUMSTANCES OF THE CASE, THE L EARNED CIT (A) HAS ERRED IN IGNORING THE FACTS AND EXPLANATIO NS FURNISHED BY THE APPELLANT. 8. THAT IN THE FACTS AND CIRCUMSTANCES OF THE CASE, THE APPE LLANT CRAVES LEAVE TO ADD, ALTER, AMEND OR DROP ANY OF THE A BOVE GROUNDS AT THE TIME OF HEARING. 2. THE SOLE GRIEVANCE OF THE ASSESSEE IN THE PRESENT APPE AL IS REGARDING SUSTENANCE OF ADDITION OF ` 24,59,300/- IN RESPECT OF UNDISCLOSED INVESTMENT IN THE PURCHASE OF FLAT W-19, GR EEN PARK MAIN, NEW DELHI. DURING THE YEAR UNDER CONSIDERATION, THE ASSESSEE HAS PURCHASED HALF SHARE IN THE FLAT SITUATED AT W-19, GRE EN PARK MAIN, NEW DELHI WHEREIN A SUM OF ` 6,21,500/- WAS INVESTED A S PER SALE DEED INCLUDING THE COST OF STAMP DUTY, ETC. IT IS MENTIONE D IN THE ASSESSMENT ORDER THAT THE MATTER WAS REFERRED TO THE VAL UATION OFFICER U/S 142A OF THE INCOME-TAX ACT, 1961 (THE ACT) TO IN VESTIGATE THE COST OF ACQUISITION AND THE INVESTMENT MADE BY THE ASSESSEE IN THE PURCHASE OF THE SAID FLAT. THE DVO VALUED THE SHARE O F THE ASSESSEE AT ` 30,80,000/-. THE ASSESSING OFFICER CALLED FOR THE OB JECTIONS FROM THE ASSESSEE. THE ASSESSEE OBJECTED TO THE REFERENCE MADE U/S 1 42A OF THE ACT AND ALSO HAD OBJECTED REGARDING NON-GRANT OF OPPORTUNITY BEFORE A REFERENCE WAS ACTUALLY MADE. THE ASSESSING OFF ICER REJECTED ITA NO.4324/DEL/2009 3 SUCH CONTENTION ON THE GROUND THAT AS PER REQUIREMENT OF SECTION 142A, NO OPPORTUNITY WAS REQUIRED TO BE GRANTED. TH E NEXT OBJECTION TAKEN BY THE ASSESSEE WAS THAT THE VALUATION OFFICER DID NOT ALLOW HER TO REBUT THE VALUATION. THIS OBJECTION OF THE ASSESSEE WAS REBUTTED BY THE ASSESSING OFFICER ON THE GROUND THAT THE ASSESSEE HAS BE EN AFFORDED WITH REASONABLE OPPORTUNITY TO SEND HIS OBJEC TION, IF ANY, TO THE VALUATION REPORT TO THE ASSESSING OFFICER AND THE A SSESSEE HAS ALSO AVAILED SUCH OPPORTUNITY. THE ASSESSEE SUBMITTED THAT TH E DVO HAS ESTIMATED THE VALUE OF THE PROPERTY ON THE BASIS OF SAL E INSTANCE AS OLD AS 24 TH MAY, 1999 IN RESPECT OF FLAT NO.N-6, GREEN PARK MAI N, NEW DELHI. IT WAS SUBMITTED THAT THERE WAS A STEEP FALL IN THE PRICES OF IMMOVABLE PROPERTY AFTER 1999. SUCH CONTENTION OF THE ASSESSEE WAS ALSO REJECTED BY THE ASSESSING OFFICER ON THE GROUND THA T N-6, GREEN PARK MAIN PROPERTY WAS ALSO SITUATED AT FIRST FLOOR AS A GAINST THAT THE ASSESSEE HAS PURCHASED FIRST FLOOR ALONG WITH HALF OF THE TOP TERRACE RIGHTS. AS AGAINST THAT IN THE COMPARABLE INSTANCE NO ROOF RIGHT WAS GIVEN TO THE PURCHASER. THEREFORE, THE ASSESSING OFFICE R HELD THAT THE VALUE ADOPTED BY THE VALUATION OFFICER IS FAIR ENOUG H. HE ALSO REFERRED TO THE FACT THAT APPROPRIATE AUTHORITY HAD ALSO CLEA RED THE COMPARABLE CASE IN TERMS OF CHAPTER XX-C OF THE ACT. IT WAS ALSO SUBMITTED BY THE ASSESSEE THAT SECTION 69B WAS NOT APPLICABLE. HOWEVER, BASED UPON THE VALUATION REPORT, THE ASSESSING OFFICER ADDED THE A MOUNT OF ` 24,59,300/- TO THE INCOME OF THE ASSESSEE BEING DIFFERE NCE IN THE INVESTMENT SHOWN BY THE ASSESSEE AND AS VALUED BY THE DVO. 3. IN AN APPEAL FILED BEFORE CIT (A), APART FROM CH ALLENGING THE ADDITION, THE ASSESSEE CHALLENGED THE INVOCATION OF SEC TION 142A AS, ACCORDING TO THE ASSESSEE, TO INITIATE REFERENCE U/S 142 A, IT WAS NECESSARY THAT THE CASE OF THE ASSESSEE SHOULD FALL UNDER SE CTION 69B WHICH USE THE WORD FOUND. IT WAS SUBMITTED THAT THE RE WAS NO MATERIAL WHATSOEVER FOUND ACCORDING TO WHICH IT COUL D BE SAID THAT THE ITA NO.4324/DEL/2009 4 ASSESSEE HAD MADE ANY INVESTMENT IN EXCESS OF WHAT WAS SHOWN TO BE INVESTED. THE ASSESSEE ALSO CHALLENGED THE COMPARABLE IN STANCE. IT WAS SUBMITTED THAT COMPARABLE INSTANCE TAKEN BY THE DV O BEING N-6, GREEN PARK MAIN, NEW DELHI WAS NOT COMPARABLE AT ALL WITH THE PROPERTY OF THE ASSESSEE AND MORE APPROPRIATE COMPARABL E WAS SALE INSTANCE OF PROPERTY NO.X-1, GREEN PARK MAIN, NEW DE LHI WHICH IS EXACTLY OPPOSITE TO THE PROPERTY OF THE ASSESSEE I.E., A CROSS THE ROAD. THE SIZE OF THE PLOT IS SAME AND THE CONSTRUCTION WAS AL SO SAME. IT WAS SUBMITTED THAT RATHER X-1 PROPERTY WAS A NEW BUILT PROPERTY, HENCE IT SHOULD BE ADOPTED BEING MORE APPROPRIATE CO MPARABLE. IT WAS ALSO SUBMITTED THAT X-1 PROPERTY WAS SOLD IN JANUARY , 2002 AND WAS ALSO ON THE PLOT OF 200 SQ. YARD AND THE PROPERTY OF THE ASSESSEE IS ALSO BUILT ON 200 SQ. YARD. THE PROPERTY X-1 WAS SOLD IN JANUARY, 2002 FOR A CONSIDERATION OF ` 13.25 LAC WHICH IS A DATE VE RY NEAR TO THE PROPERTY PURCHASED BY THE ASSESSEE. THE ASSESSEE ALSO FILED THE MUNICIPAL VALUATION OF ` 7 LAC IN RESPECT OF THE PRO PERTY W-19, FF, WHICH WAS THE VALUE ADOPTED BY THE MCD VIDE LETTER DATED 3 1 ST MARCH, 1999. 4. LEARNED CIT (A) HAS REJECTED ALL THESE CONTENTIONS OF THE ASSESSEE AND HAS UPHELD THE ADDITION MADE BY THE ASSESSING O FFICER. THE ASSESSEE IS AGGRIEVED, HENCE, IN APPEAL. 5. IT IS THE FIRST CONTENTION OF THE LEARNED AR THAT THE PROVISIONS OF SECTION 142A HAVE WRONGLY BEEN INVOKED BY THE ASSESSING OFFICER. ACCORDING TO THE LEARNED AR, TO INITIATE THE PROCEE DINGS U/S 142A, THE TRIGGERING POINT IS INVOCATION OF SECTION 69B WHICH USES THE WORD FOUND. HE SUBMITTED THAT ACCORDING TO JUDICIAL IN TERPRETATIONS, THE WORD FOUND IS TO BE UNDERSTOOD IN THE SHAPE OF SOME E XISTING MATERIAL ON THE BASIS OF WHICH IT COULD BE SAID THAT THERE WAS A NY INVESTMENT IN THE ASSET WHICH IS NOT RECORDED IN THE BOOKS OF ACCOUNT . FOR THIS PROPOSITION HE MAINLY RELIED UPON THE DECISION OF ITA T, DELHI IN THE ITA NO.4324/DEL/2009 5 CASE OF ITO VS. RAJESHWAR NATH GUPTA VIDE ORDER DATED 9 TH MAY, 2008 IN ITA NO.4295/DEL/2005 (COPY PLACED AT PAGES 35-42 OF THE PAPER BOOK) AND HE INVITED OUR ATTENTION TOWARDS THE OBSERVATIONS OF THE TRIBUNAL IN PARA 15 WHICH READ AS UNDER:- 15. A PERUSAL OF THE AFORESAID PROVISIONS SHOWS THA T SECTION 142A IS ATTRACTED, INTER ALIA, WHERE THE ASSESSEE IS FOU ND TO HAVE MADE INVESTMENT OUTSIDE THE BOOKS OF ACCOUNT OR WHERE AN Y SUCH INVESTMENT MADE BY HIM IS NOT FULLY DISCLOSED IN THE BOOKS OF ACCOUNT. THE CONDITION PRECEDENT FOR MAKING THE REFE RENCE BY INVOKING THE PROVISIONS OF SECTION 142A THUS IS THAT THER E SHOULD BE SOMETHING ON RECORD TO SHOW THAT THE ASSESSEE IN FIRS T PLACE HAS MADE SUCH INVESTMENT OUTSIDE THE BOOKS OR THE INVES TMENT SO MADE BY HIM IS NOT FULLY DISCLOSED IN THE BOOKS OF ACCOUNT AND ONCE THIS CONDITION IS SATISFIED, THE QUANTUM OF SU CH INVESTMENT MADE CAN BE ASCERTAINED BY THE A.O. BY MAKIN G A REFERENCE U/S 142A IN ORDER TO MAKE THE ADDITION U/S 69 OR 69B, WHICHEVER IS APPLICABLE. IN THE PRESENT CASE, THE REL EVANT PROPERTY WAS PURCHASED BY THE ASSESSEE DURING THE YEAR UNDER CONSIDERATION FOR RS.15 LAKHS AND THE AMOUNT OF THE SAI D CONSIDERATION WAS PAID OUT OF ITS DISCLOSED SOURCES AS ACCEPTED EVEN BY THE A.O. IN THE REASSESSMENT. A PERUSAL OF THE ASSESSMENT ORDER, HOWEVER, SHOWS THAT THERE WAS NO REFE RENCE WHATSOEVER MADE BY THE A.O. TO ANY MATERIAL/EVIDENCE/ INFORMATION ON THE BASIS OF WHICH IT COULD BE SAID THAT THE SAID CONSIDERATION SHOWN BY THE ASSESSEE WAS UNDERSTATED AN D THAT ANYTHING ABOVE WHAT WAS DISCLOSED BY THE ASSESSEE HAD ACTUALLY BEEN PAID AS CONSIDERATION. THE CONDITION PRECEDENT FO R MAKING A REFERENCE TO THE DVO BY INVOKING THE PROVISIONS OF S ECTION 142A THUS WAS NOT SATISFIED IN THE PRESENT CASE AND NEI THER THE SAID REFERENCE NOR THE ADDITION MADE ON THE BASIS OF R EPORT OBTAINED FROM THE DVO IN RESPONSE TO THE SAID REFERENCE , IN OUR OPINION, WAS SUSTAINABLE IN LAW AS RIGHTLY HELD BY TH E LEARNED CIT (A). IN THE CASE OF SUBHASH CHAND CHOPRA VS. AC IT 92 TTJ 1087, THIS BENCH OF THE TRIBUNAL HAS HELD THAT NO MATERI AL OR EVIDENCE HAVING BEEN RECOVERED DURING THE COURSE OF SEARCH SHOWING INVESTMENT IN CONSTRUCTION, THE A.O. WAS NOT COMP ETENT TO MAKE A REFERENCE TO THE DVO U/S 142A AND TO MAKE ADD ITION ON THAT BASIS. 6. FOR SIMILAR PROPOSITION, THE LEARNED AR ALSO PLACED RELIANCE ON THE DECISION OF ITAT DELHI IN THE CASE OF M/S AERENS IN FRASTRUCTURE & TECHNOLOGY LTD., 2010-TIOL-321-ITAT-DEL (COPY PLACE D AT PAGES 58-64 OF THE PAPER BOOK). ITA NO.4324/DEL/2009 6 7. THE LEARNED AR ALSO REFERRED TO THE DECISION OF HO NBLE SUPREME COURT IN THE CASE OF K.P. VERGHESE VS. ITO 131 ITR 597 (SC) WHICH WAS CONSIDERED IN THE AFOREMENTIONED DECISIONS. LD. AR A LSO REFERRED TO THE FOLLOWING DECISIONS:- (I) CIT VS. BAJRANG LAL BANSAL 335 ITR 572 (DEL) TO C ONTEND THAT ADDITION COULD NOT BE MADE ON THE BASIS OF REPOR T OF DISTRICT VALUATION OFFICER IN THE ABSENCE OF ANY EVID ENCE SUGGESTING THAT THE ASSESSEE HAS MADE ANY PAYMENT ABOVE THE CONSIDERATION MENTIONED IN THE RETURN PARTICULARLY WHEN THE BOOKS ARE NOT REJECTED. (II) CIT VS. SURAJ DEVI, 328 ITR 604 (DEL) TO CONTEN D THAT THE BURDEN OF PROOF TO PROVE UNDERSTATEMENT IS OF REVENUE . NO EVIDENCE HAVING BEEN FOUND AT THE TIME OF SEARCH TO SUGGEST THAT ANY PAYMENT OVER AND ABOVE THE CONSIDERATION STATED IN THE REGISTERED PURCHASE DEED WA S MADE, ADDITION WAS NOT JUSTIFIED. (III) CIT VS. PUNEET SABHARWAL: LEX ID 402041 (COPY OF THE DECISION IS PLACED AT PAGES 18-19 OF THE PAPER BOOK) WHEREIN THE ASSESSING OFFICER BEING OF THE VIEW THAT CO ST OF ACQUISITION IN RESPECT OF CERTAIN PURCHASES OF THE ASSESSEE AS SHOWN IN THE SALE DEED WAS MUCH LOWER THAN THE FAIR MARKET VALUE HAD REFERRED THE MATTER TO THE DVO WHO VALUED THE PROPERTIES HIGHER BY AN AMOUNT OF ` 12,54 ,206/- WHICH WAS ADDED TO THE INCOME OF THE ASSESSEE AND, REFERRING TO THE DECISION OF HONBLE SUPREME COURT I N THE CASE OF K.P. VERGHESE VS. ITO (SUPRA), THEIR LORDSHIPS HA D DELETED THE ADDITION. (IV) CIT VS. BANWARILAL MURWATIYA 215 CTR 489 WHEREI N THE ASSESSEE HAD PURCHASED A PLOT OF LAND FROM SS FOR ` 9 ITA NO.4324/DEL/2009 7 LAC. THE STATEMENT OF SS WAS RECORDED WHEREIN HE ST ATED THAT PLOT WAS SOLD BY HIM AT HIGHER PRICE. LATER ON SS RETRACTED FROM HIS STATEMENT ON THE GROUND THAT IT WA S EXTRACTED FROM HIM UNDER PRESSURE. IT WAS HELD THAT RETRACTED STATEMENT COULD NOT BE MADE THE SOLE BASIS OF ADDITION TO THE INCOME IN THE ABSENCE OF ANY OTHER MATERIAL. (V) DCIT VS. SEEMA GUPTA, ORDER DATED 22 ND APRIL, 2009 IN ITA NO.1619/DEL/2008 (COPY PLACED AT PAGES 43-44 OF THE PAPER BOOK) WHEREIN THE ADDITION WAS MADE TO THE INC OME OF THE ASSESSEE ON ACCOUNT OF DIFFERENCE WORKED OUT IN THE AMOUNT SHOWN BY THE ASSESSEE AND AS VALUE ESTIMATED BY THE DEPARTMENTAL VALUATION OFFICER. THE REFERENCE WAS MADE U/S 142A AND IT WAS HELD THAT IN THE ABSENCE OF MATERIAL THE REFERENCE TO THE VALUATION OFFICER U/S 142A COULD NOT BE MADE. 8. IT WAS ALSO SUBMITTED BY THE LEARNED AR THAT ANOTHE R HALF OF THE PROPERTY WAS PURCHASED BY THE HUSBAND OF THE ASSESSEE AND NO ADDITION WHATSOEVER HAS BEEN MADE IN THE CASE OF THE H USBAND OF THE ASSESSEE AND THE DEPARTMENT CANNOT TAKE A DIFFERENT VIE W IN THE CASE OF THE ASSESSEE AND, TO SUPPORT SUCH CONTENTION HE RELIE D UPON THE FOLLOWING DECISIONS:- (I) CIT VS. BHAGIRATH AGGARWAL : LEX ID 396134 (DELH I HIGH COURT COPY PLACED AT PAGE 54 OF THE PAPER BOOK). (II) K.J. ARORA VS. DY. CIT : 180 TAXMAN 131 (MAG.) (ITAT DEL COPY PLACED AT PAGES 55-57 OF THE PAPER BOOK). ITA NO.4324/DEL/2009 8 9. IN THIS MANNER, THE LEARNED AR HAS CONCLUDED HIS AR GUMENTS TO CONTEND THAT THE ADDITION HAS WRONGLY BEEN SUSTAINED A ND IT SHOULD BE DELETED. 10. ON THE OTHER HAND, IT WAS VEHEMENTLY PLEADED BY THE LEARNED DR THAT THE ASSESSING OFFICER WAS VERY MUCH RIGHT IN REFERR ING THE VALUATION TO THE VALUATION OFFICER AS PER PROVISIONS O F SECTION 142A. SHE SUBMITTED THAT THE VALUE SHOWN TO HAVE BEEN INVEST ED BY THE ASSESSEE WAS VERY MUCH LOW AND, THEREFORE, THE ASSESSING OFF ICER WAS RIGHT IN REFERRING THE VALUATION TO THE VALUATION O FFICER. SHE SUBMITTED THAT NO WRONG HAS BEEN COMMITTED BY THE DVO BY TAKIN G INTO CONSIDERATION THE COMPARABLE PROPERTY AS N-6, GREEN P ARK MAIN, NEW DELHI. SHE SUBMITTED THAT THE SAID PLOT WAS IN THE SAM E LOCALITY, THEREFORE, COULD BE COMPARED WITH THE SALE INSTANCE O F THE ASSESSEE. SHE SUBMITTED THAT THE ASSESSEE COULD NOT SHOW ANY EVIDEN CE ACCORDING TO WHICH IT COULD BE SAID THAT THERE WAS A FALL IN THE PRICES OF LAND AND PROPERTY FROM 1999-2002. SHE SUBMITTED THA T THE COMPARABLE INSTANCE WHICH HAS BEEN ADOPTED BY DVO IS O F 1999 WHICH IS MUCH PRIOR TO THE SALE INSTANCE OF THE ASSESSEE AND VAL UE COULD HAVE GONE ON UPPER SIDE IF THE NEARER DATE IS TAKEN. SHE SUBMITTED THAT THE REPORT OF DVO SHOULD BE GIVEN CREDIBILITY AND MERE C ITING OF OTHER COMPARABLE INSTANCE BY THE ASSESSEE IS NOT SUFFICIENT TO T URN DOWN THE COMPARABLE INSTANCE TAKEN BY THE DVO. SHE SUBMITTED THAT THE CASE LAW RELIED UPON BY THE LEARNED AR IS DISTINGUISHABLE A S THE SAID CASE LAW HAS BEEN RENDERED IN RESPECT OF ADDITIONS MADE IN THE SEARCH ASSESSMENTS. THUS, SHE SUBMITTED THAT LEARNED CIT (A) HAS R IGHTLY UPHELD THE ADDITION AND HIS ORDER SHOULD BE UPHELD. 11. WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSIONS I N THE LIGHT OF THE MATERIAL PLACED BEFORE US. IN THE PRESENT CASE, T HE ADDITION HAS BEEN MADE AND SUSTAINED ON ACCOUNT OF VALUATION REPOR T OBTAINED BY ITA NO.4324/DEL/2009 9 THE ASSESSING OFFICER FROM DEPARTMENTAL VALUATION OFFIC ER (DVO). THE SOLE BASIS OF ESTIMATING THE VALUE OF PROPERTY PURCHASED BY THE ASSESSEE AS TAKEN BY DVO IS COMPARABLE INSTANCE WHICH IS A PROPERTY HAVING NO.N-6, GREEN PARK MAIN, NEW DELHI AND CONSIST S OF 1576.93 SQ. FT. THE DATE OF TRANSACTION OF THE SAID PROPERTY WAS 25 TH MAY, 1999 AND THE TRANSACTION WAS FOR A SUM OF ` 58 LAC GIVING THE R ATE OF ` 3678 PER SQ. FEET. ADOPTING THE SAID RATE AFTER APPLYING THE ADJUSTMENT FACTORS, THE RATE COMPUTED BY DVO IS ` 4,046/- PER SQ. FT. WHI CH IS APPLIED TO THE CASE OF THE ASSESSEE ON THE AREA OF THE FLAT , 1522. 89 SQ. FT AND, THUS, THE VALUE OF THE WHOLE OF THE PROPERTY HAS BEEN COMPUTED AT ` 61,61,613/-. THE ASSESSEES SHARE BEING 50% THEREOF, THE ESTIMATED INVESTMENT BY THE ASSESSEE HAS BEEN COMPUTED AT ` 30,80,8 07/- (ROUNDED OFF TO ` 30,80,800/-). 12. IT IS THE CASE OF THE ASSESSEE THAT COMPARISON, IF IT HAS TO BE MADE, SHOULD BE MADE WITH THE LIKE COMPARABLE. THE DEPARTMENT IS WRONG IN COMPARING A PROPERTY WHICH IS NOT THE LIKE PROPERTY. TO SUBSTANTIATE SUCH FACTOR COPY OF MAP OF GREEN PARK HAS BEEN SUBMITTED AT PAGE 64 OF THE PAPER BOOK AND IT HAS BEE N SHOWN THAT N- 6 IS FAR AWAY FROM W-19 PURCHASED BY THE ASSESSEE. THE T RANSACTION FOR N-6 PLOT HAD TAKEN PLACE IN 1999. THE ASSESSEE IN THE SALE INSTANCE COMPARABLE HAS RELIED UPON THE SALE TRANSACTION OF X-1 PLOT WHICH IS ACROSS THE ROAD TO THE PLOT OF THE ASSESSEE AND THE AREA IS ALSO SIMILAR. THE CONSTRUCTION OF THE SAID HOUSE IS ALSO NEW IN COMPAR ISON TO THE CONSTRUCTION OF THE ASSESSEES PROPERTY WHICH IS OLD ONE. THE DATE OF TRANSACTION IS ALSO NEARER TO THE TRANSACTION ENTERED I NTO BY THE ASSESSEE AS THE DATE OF TRANSACTION IN X-1 PROPERTY IS 23 RD JANUARY, 2002 AS AGAINST THE DATE OF TRANSACTION OF THE ASSESSEE WH ICH IS 4 TH DAY OF SEPTEMBER, 2002 AND, THUS, IT IS THE CASE OF THE ASSE SSEE THAT INSTEAD OF MAKING COMPARISON WITH N-6, THE MORE APPRO PRIATE COMPARISON WILL BE THE SALE TRANSACTION OF X-1. WE FI ND FORCE IN SUCH ITA NO.4324/DEL/2009 10 CONTENTION OF THE ASSESSEE. THE DVO WAS NOT RIGHT IN TA KING THE SALE INSTANCE OF 1999 FOR COMPARING THE PROPERTY OF THE A SSESSEE WITH THAT PLOT PARTICULARLY WHEN THE SALE INSTANCE OF THE VERY NEAR PROPERTY WAS AVAILABLE WHICH WAS X-1 IN THE REVENUE RECORD. THER EFORE, THE REPORT OF DVO SOLELY CANNOT BE RELIED UPON FOR UPHOLDING THE A DDITION IN THE CASE OF THE ASSESSEE. 13. NOW IT IS THE CASE OF THE ASSESSEE THAT IN THE ABSENCE OF ANY MATERIAL TO SUGGEST THAT THE ASSESSEE HAD INCURRED ANY EX CESS AMOUNT APART FROM WHAT WAS STATED IN THE TITLE DEED, IT WAS N OT PERMISSIBLE TO INFER THAT THE ASSESSEE HAS MADE INVESTMENT IN THE SAID PR OPERTY MORE THAN WHAT WAS STATED IN THE TITLE DEED. IN FACT THER E IS COMPLETE ABSENCE OF ANY SUCH MATERIAL EXCEPT INFERENCE DRAWN B Y THE ASSESSING OFFICER THAT THE AMOUNT SHOWN TO BE INVESTED BY THE A SSESSEE WAS NOT ACCORDING TO THE MARKET RATES OF THE SAID PROPERTY AS THE PROPERTY IS SITUATED IN A POSH RESIDENTIAL AREA. IN THE ABSENCE OF ANY SUCH MATERIAL, SECTION 69-B COULD NOT APPLIED AND IF SECT ION 69B COULD NOT BE APPLIED, THEN, THE ASSESSING OFFICER DOES NOT HAVE PO WER TO INVOKE SECTION 142A. SUCH PROPOSITION HAS BEEN CONSIDERED BY THE CO- ORDINATE BENCH IN THE CASE OF ITO VS. RAJESHWAR NATH G UPTA (SUPRA) AND THE RELEVANT OBSERVATIONS HAVE ALREADY BEEN REPRO DUCED. NO CONTRARY DECISION HAS BEEN BROUGHT TO OUR NOTICE AND WE HAVE NO REASON TO DIFFER FROM THAT PROPOSITION. THEREFORE, O N THIS ACCOUNT ALSO REFERENCE TO DVO COULD NOT BE MADE. 14. IF ONE DOES NOT GO TO OTHER ASPECTS WHICH HAVE BEE N TOUCHED BY THE LEARNED AR, THEN ALSO IT HAS TO BE HELD THAT THE ADDITION COULD NOT BE MADE IN THE CASE OF THE ASSESSEE SIMPLY ON THE BASIS OF REPORT OBTAINED FROM DVO PARTICULARLY IN THE CIRCUMSTANCES W HEN THE ASSESSEE HAS PRODUCED ON RECORD THE COMPARABLE INSTANCE W HICH IS MORE APPROPRIATE THAN THE INSTANCE APPLIED BY THE DV O AND ALSO ON ITA NO.4324/DEL/2009 11 THE GROUND THAT NO MATERIAL WHATSOEVER HAS BEEN BROUG HT ON RECORD BY THE REVENUE TO SUGGEST THAT THE ASSESSEE HAD IN FACT INVE STED MORE AMOUNT THAN THE AMOUNT STATED IN THE TITLE DEED. TH E CASE LAW RELIED UPON BY THE LEARNED AR DULY SUPPORT SUCH PROPOSITION. THE ADDITION BEING UNWARRANTED IN LAW REQUIRES DELETION. ACCORDI NGLY, IT IS HELD THAT THE ADDITION HAS WRONGLY BEEN SUSTAINED BY LEARNED CIT (A) AND THE SAME IS DELETED. 15. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS AL LOWED IN THE MANNER AFORESAID. THE ORDER PRONOUNCED IN THE OPEN COURT ON 30.08.20 11. SD/- SD/- [B.C. MEENA] [I.P. BANSAL] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED, 30.08.2011. DK COPY FORWARDED TO: - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT TRUE COPY BY ORDER, DEPUTY REGISTRAR, ITAT, DELHI BENCHES