Dr. V.K. Maheshwari, Gwalior V. ACIT, Gwalior

ITA 480/AGR/2009

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 0337 (ITAT-AGRA)
• Duration Of Justice: 9 year(s) 4 month(s) 16 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 16-05-2019
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 04-01-2013
• Assessment Year: 2006-2007
• Appeal Filed On: 30-12-2009
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: KK MISHRA
• Keywords: Fair market value; Valuation report
• Section: 143(3); 133A; 69

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, AGRA BENCH, AGRA BEFORE : SHRI BHAVNESH SAINI, JUDICIAL MEMBER AND SHRI A.L. GEHLOT, ACCOUNTANT MEMBER ITA NO. 480/AGRA/2009 ASSTT. YEAR : 2006-07 DR. V.K. MAHESHWARI VS. A.C.I.T., CIRCLE-1, 85, LAXMI BAI COLONY, GWALIOR. M.L.B. ROAD, LASHKAR, GWALIOR. (PAN : ABGPM 7222-B). ITA NO. 02/AGRA/2010 ASSTT. YEAR : 2006-07 A.C.I.T., CIRCLE-1, VS. DR. V.K. MAHESHWARI GWALIOR. 85, LAXMI BAI COLONY, M.L.B. ROAD, LASHKAR, GWALIOR. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI DEEPENDRA MOHAN, C.A. RESPONDENT BY : SHRI K.K. MISHRA, JR. D.R. DATE OF HEARING : 04.01.2013 DATE OF PRONOUNCEMENT OF ORDER : 11.01.2013 ORDER PER BHAVNESH SAINI, J.M.: BOTH THE CROSS APPEALS ABOVE ARE DIRECTED AGAINST THE ORDER OF LD. CIT(A), GWALIOR DATED 27.10.2009 FOR THE ASSESSMENT YEAR 20 06-07. ITA NO. 480/AGRA/09 & 02/AGRA/10 2 2. THE BRIEF FACTS OF THE CASE ARE THAT IN THIS CAS E, SURVEY OPERATION WAS CONDUCTED ON 09.11.2005. DURING THE COURSE OF SURVE Y, CASH OF RS.25,32,390/- WAS FOUND AGAINST CASH OF RS.6,07,789/- AS PER BOOKS OF ASSESSEE. THE ASSESSEE VOLUNTARILY SURRENDERED RS.20,00,000/- AS INCOME FR OM UNDISCLOSED SOURCES, WHICH HAS BEEN ACCEPTED BY THE AO. THE ISSUE UNDER BOTH T HE CROSS APPEALS IS WITH REGARD TO ADDITION MADE BY AO U/S. 69 OF THE IT ACT IN A S UM OF RS.68,57,080/- IN RESPECT OF THE PROPERTY PURCHASED BY THE ASSESSEE ON THE BA SIS OF DVOS VALUATION REPORT. THE AO ASKED THE EXPLANATION OF THE ASSESSEE THAT D URING THE COURSE OF SURVEY, THE ASSESSEE HAS STATED THAT ASSET IN THE FORM OF HOUSE PROPERTY WAS PURCHASED FOR RS.1,31,00,000/-, BUT RS.53,00,000/- HAS BEEN SHOWN ONLY IN THE BALANCE SHEET. THE ASSESSEE SUBMITTED BEFORE THE AO THAT THE PROPERTY IN QUESTION WAS PURCHASED FOR RS.53,00,000/- ON 11.01.2005 AND COPY OF THE PURCHA SE / SALE DEED WAS FILED CONFIRMING THAT THE PROPERTY WAS PURCHASED FROM ABH AY KUMAR AND THE PAYMENT WAS MADE OF RS.53,00,000/- AFTER OBTAINING LOAN FRO M ICICI BANK LTD. AND PERSONAL FUNDS OF THE ASSESSEE. THE PROPERTY WAS PU RCHASED IN THE JOINT NAME WITH SHWETA MAHESHWARI, DAUGHTER OF THE ASSESSEE TO AVOI D LEGAL COMPLICATIONS. COPY OF THE BANK CERTIFICATE AND AFFIDAVIT CONFIRMING TH E PROPERTY PURCHASED FOR RS.53,00,000/- WAS FILED. IN ADDITION TO THAT, PROP ERTY OF RS.18,00,000/- HAS BEEN PURCHASED IN THE NAME OF WIFE OF THE ASSESSEE, WHIC H WAS DULY REFLECTED IN THE RETURN OF HER INCOME. THE COST OF INVESTMENT THUS C OMES TO RS.71,00,000/- INSTEAD ITA NO. 480/AGRA/09 & 02/AGRA/10 3 OF RS.1,31,00,000/-. THE AO, HOWEVER, REFERRED THE MATTER TO THE DVO TO ASCERTAIN THE FAIR MARKET VALUE OF PROPERTY, WHO HAS VALUED T HE SAME AT RS.1,39,57,080/-. THEREFORE, DIFFERENCE OF RS.68,57,080/- WAS ADDED T O THE INCOME OF THE ASSESSEE U/S. 69 OF THE IT ACT. IT WAS SUBMITTED BEFORE THE LD. CIT(A) THAT THE VALUATION MADE BY THE DVO IS MERELY OPINION ON ESTIMATE BASIS AND NO MATERIAL WAS FOUND TO SHOW THAT THE ASSESSEE MADE PAYMENT OVER AND ABO VE WHAT IS STATED IN THE SALE DEED. FURTHER THE ASSESSEE MADE PURCHASE OF PROPERT Y ON 11.01.2005 AS PER REGISTERED SALE DEED FOR RS.53,00,000/-, THEREFORE, IT WOULD FALL IN F.Y. ENDING 31.03.2005 RELEVANT TO ASSESSMENT YEAR 2005-06 AND NOT THE ASSESSMENT YEAR UNDER APPEAL. THEREFORE, NO ADDITION COULD BE MADE IN THE ASSESSMENT YEAR UNDER APPEAL, I.E., 2006-07. 3. THE LD. CIT(A), CONSIDERING THE MATERIAL ON RECO RD ACCEPTED THE CONTENTION OF THE ASSESSEE ON THE BASIS OF THE VALUATION SHOWN BY THE REGISTERED VALUER AT RS.56,06,000/- INSTEAD OF RS.53,00,000/- AND PARTLY SUSTAINED THE ADDITION. THE LD. CIT(A) ALSO HELD THAT SINCE THE PROPERTY IS PURCHAS ED ON 11.01.2005 PERTAINING TO PRECEDING ASSESSMENT YEAR 2005-06, THEREFORE, THE A DDITION OF RS.68,57,080/- FOR THE ASSESSMENT YEAR 2006-07 IS DELETED. THE FINDING S OF THE LD. CIT(A) IN PARA 5.1 TO 7.1 OF THE APPELLATE ORDER IS REPRODUCED AS UNDE R : ITA NO. 480/AGRA/09 & 02/AGRA/10 4 5.1 THE APPELLANT HAS ALSO FILED PURCHASE DEED, LO AN STATEMENT, COPY OF ACCOUNT OF PROPERTY DURING THE COURSE OF AP PEAL PROCEEDINGS. 6. FROM THE PERUSAL OF ASSESSMENT ORDER AND RECORDS INCLUDING SURVEY FOLDER, IT IS SEEN THAT THE A.O. HAS RELIED ON STATEMENT ON OATH OF THE APPELLANT TAKEN DURING THE COURSE OF S URVEY PROCEEDING U/S 133A OF THE I.T. ACT ON 9.11.05 WHICH IS HELD T O BE BINDING AND FINAL. IN THIS CONNECTION, IT IS PERTINENT TO MENTI ON THAT A POWER TO EXAMINE A PERSON ON OATH IS SPECIFICALLY CONFERRED ON THE AUTHORIZED OFFICER ONLY U/S 132(4) IN THE COURSE OF ANY SEARCH OR SEIZURE. THUS, THE INCOME TAX ACT, WHENEVER IT THOUGHT FIT AND NEC ESSARY TO CONFER SUCH POWER TO EXAMINE A PERSON ON OATH, HAS EXPRESS LY PROVIDED FOR IT, WHEREAS SECTION 133A DOES NOT EMPOWER ANY INCOM E TAX OFFICER TO EXAMINE ANY PERSON ON OATH. THUS IN CONTRADISTINCTI ON TO THE POWER U/S 133A, SECTION 132(4) OF THE INCOME TAX ACT ENAB LES THE AUTHORIZED OFFICER TO EXAMINE A PERSON ON OATH AND ANY STATEME NT MADE BY SUCH PERSON DURING SUCH EXAMINATION CAN ALSO BE USED IN EVIDENCE UNDER THE INCOME TAX ACT. ON THE OTHER HAND, WHATEVER STA TEMENT RECORDED U/S 133A OF THE INCOME TAX ACT IS NOT GIVEN AN EVID ENTIARY VALUE. THIS HAS BEEN SO HELD BY KERALA HIGH COURT IN THE CASE O F PAUL MATHEWS & SONS VS. CIT 263 ITR 101 (2003). THE APPELLANT HAS ALSO GIVEN STATEMENT ON OATH ON 18.11.05 ADMITTING OF HIS MI STAKE & VALUATION GIVEN UNDER PRESSURE DURING THE COURSE OF SURVEY UN DER IMPRESSION OF GIVING DETAILS OF HIS TOTAL INVESTMENT. ALSO EVEN D URING THE COURSE OF SURVEY OR ASSESSMENT PROCEEDINGS NO EVIDENCE HAS BE EN BROUGHT ON RECORD BY THE A.O. SUGGESTING VALUATION OF PROPERTY AT RS. 1.31 CRORES. THE BOOKS OF ACCOUNTS/DOCUMENTS/PAPERS FOUN D AND IMPOUNDED DURING THE COURSE OF SURVEY U/S 131(3) VI DE ORDER DTD. 9.11.05 AND 18.11.05 ARE AS UNDER: SL. NO. PARTICULARS MARKS OF IDENTIFICATION 1. CASE SHEET REGISTER 21.10.2005 TO 08.11.2005 SIGNED ON THE PAGES DATED 21.10.2005 AND 08.11.2005. 2. CASE SHEET MEDICINE 28.09.2005 TO 21.10.2005 SIGNED ON PAGES DATED 28.09.2005 & 21.10.2005. 3. OPERATION RECORD REGISTER DTD. 29.10.2004 TO 07.11.2005 SIGNED ON PAGES DATED 29.10.2004 & 07.11.2005 4. CASE SHEET SURGERY REGISTER 02.09.2005 TO 07.11.2005 SIGNED ON PAGES DATED 02.09.2005 & 07.11.2005 ITA NO. 480/AGRA/09 & 02/AGRA/10 5 5. CONSULTATION RECEIPT BOOK FROM SL. NO. 11001 TO 11067 USED SIGNED ON 11001 & 11067 6. CASH RECEIPT BOOK FROM SL. NO. 26601 TO 26777 USED SIGNED ON S.NO. 26601 & 26777 7. ULTRASOUND RECEIPT BOOK S.NO. 1001 TO 1393 SIGNED ON 1001 & 1393 8. CASE SHEET RECORD FROM 01.01.2005 TO 01.10.2005 SIGNED AT PAGE 03.01.2005 & 01.10.2005 6.1 DURING THE COURSE OF SURVEY PROCEEDINGS, THE AP PELLANT HAVING FOUND THAT THERE WERE CERTAIN OMISSIONS AND DISCREP ANCIES ON HIS PART HAS VOLUNTARILY ALREADY OFFERED AN AMOUNT OF RS. 20 LAKHS AS ADDITIONAL INCOME FOR THE YEAR IN QUESTION WHICH HA S NOT BEEN DISPUTED BY THE ASSESSING OFFICER. 7. THE ASSESSING OFFICER HAS FURTHER REFERRED THE M ATTER TO THE DVO, BHOPAL VIDE REFERENCE MADE U/S 142(A) DATED 24 .10.2008. WHILE MAKING SUCH REFERENCE, THE A.O. HAS MENTIONED THE ESTIMATED COST OF INVESTMENT AT COL. 5 TO BE RS. 2.50 CRORES, THE BASIS FOR WHICH HAS NOT BEEN GIVEN. THE APPELLANT HAS DECLARED AMOU NT OF RS. 53 LAKHS AS INVESTMENT IN PROPERTY IN HIS RETURN OF INCOME A ND AS MENTIONED DURING THE COURSE OF STATEMENT RECORDED ON 18.11.05 BY THE A.O. ON OATH. THE APPELLANT HAS MENTIONED DURING THE COUR SE OF ASSESSMENT PROCEEDINGS AND APPEAL PROCEEDINGS THAT HE HAD NOT PROPERLY UNDERSTOOD THE QUESTION DURING THE COURSE OF SURVEY PROCEEDINGS, BEING UNDER PRESSURE AND HAD WRONGLY STATED THE VAL UE OF THE SAID PROPERTY AT RS. 1.31 CRORES BY MISTAKE & UNDER FALS E IMPRESSION TO GIVE TOTAL VALUE OF HIS INVESTMENTS. THE VALUATION CERTIFICATE FROM REGD. VALUER DTD. 18.10.05 OF THE SAID PROPERTY LOC ATED AT ADRASH NAGAR, GOLE KA MANDIR, GWALIOR HAS ALSO BEEN GIVEN BY THE APPELLANT WHEREBY THE PROPERTY HAS BEEN VALUED AT R S. 56,06,000/- AS AGAINST DECLARED VALUE OF RS. 53 LAKHS. IT IS ALSO SEEN FROM THE RECORDS THAT THE DVO HAS FAXED HIS REPORT VALUING THE PROPE RTY AT RS. 1,39,57,080/- TO THE A.O. ON 29.12.08 AT 4.50 P.M. THE APPELLANT HAS BEEN GIVEN THE OPPORTUNITY VIDE LETTER DATED 29.12. 08 TO GIVE HIS OBJECTIONS BY 30.12.08 (WRONGLY MENTIONED AS 30 TH SEPTEMBER, 2008 IN THE RECORDS). REPLY OF THE APPELLANT DATED 30.12.08 OBJECTING TO THE VALUATION OF THE DVO GIVING INSTANCES OF SALE OF PR OPERTY IN SAME AREA, DATE OF VALUATION AND OTHER BASIS OF VALUATIO N BY THE DVO IS ITA NO. 480/AGRA/09 & 02/AGRA/10 6 ALSO AVAILABLE ON RECORDS. HOWEVER, DRAFT ORDER DAT ED 30.12.08 HAS BEEN SENT TO THE ADDL. CIT, RANGE-I, GWALIOR BY THE A.O. FOR HIS APPROVAL. THE APPROVAL BY THE ADDL. CIT, RANGE-1 HA S BEEN GIVEN VIDE LETTER DATED 30.12.08 ITSELF AND ASSESSMENT OR DER U/S 143(3) PASSED ON 31.12.08. 7.1 FROM THE ABOVE, IT APPEARS THAT OBJECTIONS RAIS ED BY THE APPELLANT HAVE NOT BEEN EXAMINED, BUT ONLY FOUND NO T TENABLE BY THE ASSESSING OFFICER AS PER THE ASSESSMENT ORDER. THE A.O. HAS NOT BROUGHT ANY MATERIAL ON RECORD TO ESTABLISH THAT TH E APPELLANT HAS SPENT ANYTHING MORE THAN WHAT IS RECORDED IN HIS BO OKS ON THE PURCHASE OF SAID PROPERTY NOT THERE IS ANY MATERIAL ON RECORD SUGGESTIVE OF SUCH EXPENDITURE HAVING BEEN INCURRED . NO DEFECTS HAVE BEEN POINTED OUT IN THE BOOKS OF ACCOUNTS OF THE AP PELLANT REGARDING PURCHASE OF SUCH PROPERTY, THE EXPENSES OF WHICH AR E FULLY SUPPORTED BY THE DETAILS GIVEN IN FORM OF AFFIDAVIT, LOAN STA TEMENT, PURCHASE DEED, COPY OF RETURNS, BANK STATEMENTS. NO OTHER DO CUMENT REGARDING PROPERTY HAVE BEEN MENTIONED IN RECORDS, AS FOUND D URING THE COURSE OF SURVEY OR ASSESSMENT PROCEEDINGS SUGGESTING THE VALUATION OF PROPERTY AT RS. 1.31 CRORES, AS GIVEN BY THE DVO. I T HAS BEEN HELD BY RAJASTHAN HIGH COURT IN THE CASE OF CIT VS. PRATAPS INGH AMROSINGH RAJENDRA SING AND DEEPAK KUMAR (1993) 200 ITR 788 T HAT SIMPLY BECAUSE A VALUATION REPORT HAS BEEN OBTAINED WHICH GIVES VALUATION AT A HIGHER AMOUNT, THE BOOKS CANNOT BE SAID TO BE UNR ELIABLE AND NO ADDITION ON THE BASIS OF SUCH HIGHER VALUATION CAN BE MADE. WHERE THE BOOKS OF ACCOUNTS ARE NOT REJECTED AND THERE IS NO FINDING THAT COST OF CONSTRUCTION/PURCHASE IS INCORRECT, THE REPORT OF T HE VALUATION OFFICER CANNOT FORM BASIS FOR ADDITION U/S 69. IN VIEW OF A BOVE FACTS, THE VALUE OF PROPERTY IS TAKEN AT RS. 56,06,000/- AS GIVEN BY THE REGD. VALUER BY THE APPELLANT INSTEAD OF RS. 53,00,000/- AS DECLARE D BY THE APPELLANT. SINCE THE SAID PROPERTY HAS BEEN PURCHASED ON 11.01 .2005 I.E. PERTAINING TO A.Y. 2005-06 ADDITION MADE OF RS. 68, 57,080/- FOR A.Y. 2006-07 MADE U/S 69 ON ACCOUNT OF DIFFERENCE IN VAL UATION OF PROPERTY IS DELETED. 4. THE ASSESSEE IS IN APPEAL CHALLENGING THE ADDITI ON OF RS.3,06,000/- BEING THE DIFFERENCE OF VALUATION SHOWN BY THE ASSESSEE AND A DOPTED BY THE REGISTERED VALUER. ITA NO. 480/AGRA/09 & 02/AGRA/10 7 THE REVENUE IS IN APPEAL CHALLENGING THE DELETION O F ADDITION OF RS.68,57,080/- ON THE SAME ISSUE. 5. AFTER HEARING THE RIVAL SUBMISSIONS OF THE PARTI ES AND CONSIDERING THE SALE DEED IN QUESTION DATED 11.01.2005 OF THE PROPERTY I N QUESTION, COPY OF WHICH IS PLACED ON RECORD, WE DO NOT FIND ANY JUSTIFICATION TO INTERFERE WITH THE ORDER OF THE LD. CIT(A) IN DELETING THE ADDITION OF RS.68,57,080 /-. IT IS ADMITTED FACT THAT THE ASSESSEE PURCHASED THE PROPERTY IN QUESTION VIDE RE GISTERED SALE DEED DATED 11.01.2005. THEREFORE, THE TRANSACTION AND INVESTME NT IN PROPERTY RELEVANT TO ASSESSMENT YEAR 2005-06, CANNOT BE DEEMED TO BE REL EVANT FOR ASSESSMENT YEAR UNDER APPEAL FOR THE PURPOSE OF ADDITION. THERE IS NO CHALLENGE TO THE FINDING OF LD. CIT(A) IN THIS REGARD BY THE REVENUE IN THE DEPARTM ENTAL APPEAL. THE PROPER COURSE FOR THE AO WAS TO TAKE UP THE ISSUE IN PRECE DING ASSESSMENT YEAR 2005-06, WHICH HE HAS FAILED TO DO SO FOR THE REASONS BEST K NOWN TO HIM. THUS, WITHOUT COMMENTING UPON OTHER FINDINGS OF THE LD. CIT(A), W E ARE OF THE VIEW THAT SINCE IT IS UNDISPUTED FACT THAT THE ASSESSEE MADE INVESTMEN T IN PROPERTY IN QUESTION IN PRECEDING ASSESSMENT YEAR 2005-06, THEREFORE, NO AD DITION COULD BE MADE IN ASSESSMENT YEAR UNDER APPEAL, I.E., 2006-07. FURTHE R, THE LD. CIT(A), THOUGH TOOK THE VALUE OF PROPERTY AS PER REGISTERED VALUERS RE PORT, BUT IN THE OPERATIVE PORTION OF THE ORDER, HOLDING THAT THE ADDITION COULD NOT B E MADE IN ASSESSMENT YEAR 2006- ITA NO. 480/AGRA/09 & 02/AGRA/10 8 07, DELETED THE ENTIRE ADDITION OF RS.68,57,080/- A S WAS MADE BY THE AO IN THE ASSESSMENT ORDER. THEREFORE, THERE IS NO CASE LEFT FOR THE ASSESSEE TO CHALLENGE THE ORDER OF THE LD. CIT(A) IN HIS APPEAL. THE APPEAL O F THE ASSESSEE, THUS, IS NOT MAINTAINABLE AND IS LIABLE TO BE DISMISSED. CONSIDE RING THE ABOVE DISCUSSION, SINCE THE LD. CIT(A) DELETED THE ENTIRE ADDITION OF RS.68 ,57,080/- ON THE BASIS THAT THE INVESTMENT IN QUESTION DOES NOT FALL IN THE ASSESSM ENT YEAR UNDER APPEAL, THE DEPARTMENTAL APPEAL HAS NO MERIT AND IS ALSO LIABLE TO BE DISMISSED. IN VIEW OF THE ABOVE DISCUSSION, THE APPEAL OF THE ASSESSEE AS WEL L AS THE DEPARTMENTAL APPEAL ARE DISMISSED AS INDICATED ABOVE. 6. IN THE RESULT, BOTH THE CROSS APPEALS ARE DISMIS SED. ORDER PRONOUNCED IN THE OPEN COURT. SD/- SD/- (A.L. GEHLOT) (BHAVNESH SAINI) ACCOUNTANT MEMBER JUDICIAL MEMBER *AKS/- COPY OF THE ORDER FORWARDED TO : 1. APPELLANT 2. RESPONDENT 3. CIT(A), CONCERNED BY ORDER 4. CIT, CONCERNED 5. DR, ITAT, AGRA 6. GUARD FILE SR. PRIVATE SECRETARY TRUE COPY