DCIT, New Delhi V. M/s AKN Developers Pvt. Ltd., New Delhi

ITA 4945/DEL/2010

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 52661 (ITAT-DELHI)
• Duration Of Justice: 9 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-09-2011
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 01-09-2011
• Assessment Year: 2006-2007
• Appeal Filed On: 11-11-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: GITMALA MOHNANI
• Keywords: Unexplained investment; Unexplained expenditure; Business expenditure; Additional evidence; Fair market value; Valuation report; Onus to prove
• Section: 69C; 143(3); 133A; 69; 56

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, ACCOUNTANT MEMBER ITA NO.4945/DEL/2010 ASSESSMENT YEAR : 2006-07 DCIT, CENTRAL CIRCLE-12, ROOM NO.330, ARA CENTRE, JHANDEWALAN EXTENSION, NEW DELHI. VS. AKN DEVELOPERS PVT. LTD., T-1663, KOTLA MUBARAKPUR, NEW DELHI. PAN : AADCA7428G (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI RAJESH MALHOTRA, CA REVENUE BY : SMT. GITMALA MOHNANI, CIT, DR ORDER PER I.P. BANSAL, JUDICIAL MEMBER THIS IS AN APPEAL FILED BY THE REVENUE. IT IS DIRECT ED AGAINST ORDER PASSED BY THE CIT (A) DATED 31 ST AUGUST, 2010 FOR ASSESSMENT YEAR 2006-07. THE GROUNDS OF APPEAL READ AS UNDER:- 1. THE ORDER OF LD. CIT (APPEALS) IS NOT CORRECT IN LAW AND FACTS. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT (A) IS NOT CORRECT IN ADMITTING THE ADDITIONAL EVIDENCES AGAINST THE PROVISIONS OF RULE 46A OF THE IT RULE, 1962 AFTER OBS ERVING THAT THE ASSESSEE WAS PROVIDED SUFFICIENT OPPORTUNITIES BY TH E ASSESSING OFFICER. 3. ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE LEA RNED CIT (A) HAS ERRED IN LAW AND ON FACTS IN DELETING THE ADDI TION OF RS.206,06,547/- MADE BY THE A.O. ON ACCOUNT OF UNEXPL AINED INVESTMENT IN THE MALL CONSTRUCTED BY THE ASSESSEE ON TECH NICAL GROUNDS IGNORING THE OBSERVATIONS OF THE VALUATION OFFI CER MADE IN THE VALUATION REPORT BUT RELYING UPON THE CONTENTIONS OF TH E ASSESSEE ONLY. ITA NO.4945/DEL/2010 2 4. THE APPELLANT CRAVES LEAVE TO ADD, ALTER OR AMEND ANY/ALL OF THE GROUNDS OF APPEAL BEFORE OR DURING THE COURSE OF THE HEARING OF THE APPEAL. 2. THE ASSESSEE IS ENGAGED IN THE BUSINESS OF REAL ESTATE, CONSTRUCTION, SALE, PURCHASE AND RENTING OF IMMOVABLE PROPERTIES. IT DEVELOPED A MALL AT M.G.-13, M.G. ROAD, SULTANPUR, NEW DELHI. THE LAND ON WHICH THE SAID MALL WAS DEVELOPED WAS PURCHASED DURING FINANCIAL YEAR 2003-04 AND IT WAS REGISTERED DURING F INANCIAL YEAR 2004-05. THE ASSESSEE STARTED CONSTRUCTION ON THE SAID LA ND WITH A CONTRACTOR DURING FINANCIAL YEAR 2003-04 AND THE CO NSTRUCTION WAS STOPPED DUE TO SEALING OF MUNICIPAL CORPORATION OF DE LHI AND THE ORDER OF HONBLE SUPREME COURT. A SEARCH U/S 133A OF THE I NCOME-TAX ACT, 1961 (THE ACT) WAS CONDUCTED IN THE CASE OF THE ASSESSEE ON 6 TH JANUARY, 2006 AT THEIR PREMISES MG-13, MG ROAD, SULTA NPUR, NEW DELHI AND IT IS MENTIONED IN THE ASSESSMENT ORDER THAT DURING THE COURSE OF SEARCH PROCEEDINGS CERTAIN DOCUMENTS WERE FOUND AND IM POUNDED WHICH HAVE BEEN EXAMINED AND SCRUTINIZED. THE ASSESSEE FILED THE RETURN OF INCOME AT A LOSS OF ` 3,06,978/- ON 24 TH NOVEMBER, 2006 AND THE SAME HAS BEEN ASSESSED VIDE THE IMPUGNED ASSESSMENT ORDER PASSED U/S 143(3) OF THE ACT DATED 29 TH DECEMBER, 2008 AT AN INCOME OF ` 2,02,99,569/-. THE SOLE ADDITION MADE TO THE RE TURNED LOSS IS A SUM OF ` 2,06,06,547/- BEING AN ADDITION ON ACCOUNT OF UNEXPLAINED INVESTMENT AS DISCUSSED ABOVE. 3. IT IS MENTIONED IN THE ASSESSMENT ORDER THAT TO VALUE THE CONSTRUCTION COST OF THE AFOREMENTIONED PROPERTY, NAM ELY, MG-13, THE MATTER WAS REFERRED TO THE VALUATION CELL, NEW DELHI AND THE VALUATION CELL HAS SUBMITTED ITS REPORT ON 28 TH NOVEMBER, 2008 ACCORDING TO WHICH THE PROPERTY HAS BEEN VALUED AT A SUM OF ` 12,4 3,96,300/-. IT IS ALSO MENTIONED IN THE ASSESSMENT ORDER THAT THE ASSESSEE HAS SHOWN INVESTMENT IN THE SAID PROJECT AS ON 31 ST MARCH, 2006 AT A SUM OF ` 10,43,02,653/-. FINDING THE DIFFERENCE, THE ASSESSING OFFICER ISSUED ITA NO.4945/DEL/2010 3 SHOW CAUSE NOTICE TO THE ASSESSEE VIDE ORDER SHEET ENTRY D ATED 15 TH DECEMBER, 2008 AND ASKED THE ASSESSEE TO EXPLAIN AS TO WH Y THE SAID DIFFERENCE SHOULD NOT BE ASSESSED AS UNEXPLAINED INVESTMEN T OF THE ASSESSEE. IN RESPONSE, VIDE LETTER DATED 23 RD DECEMBER, 2008, IT WAS SUBMITTED THAT THE ASSESSEE HAD PURCHASED LAND OF 7206 YA RDS FOR A SUM OF ` 69,18,900/- DURING THE YEAR 2004-05 AND THE SAID PROPERTY WAS SURROUNDED BY OTHER PROPERTIES AND DOES NOT HAVE AN INDEPENDENT ENTRANCE. IT WAS SUBMITTED THAT THE VALUE OF LAND HA S WRONGLY BEEN CALCULATED AT ` 103.14 LAC BY THE DVO AND THE SAID D ETERMINATION OF PRICE IS BASED ON IMAGINATION. THE PROPERTY WHICH DO ES NOT HAVE ENTRANCE HAS TO BE VALUED AT A VERY LOW PRICE. IT WA S FURTHER SUBMITTED THAT THE ASSESSEE HAS SHOWN COST OF CONSTRUCTION OF BUILDIN G AT A SUM OF ` 9,73,83,753/- UPTO FINANCIAL YEAR ENDING 31 ST MARCH, 2006 AND SUCH INVESTMENT HAS BEEN DONE IN THREE FINANCIAL YEARS NAME LY, 2003-04 - ` 1,96,76,000/-; FINANCIAL YEAR 2004-05 - `2,32,58,25 7/-; AND FINANCIAL YEAR 2005-06 - ` 5,44,49,496/-. THE VALUATION OFF ICER HAD CONDUCTED VALUATION AS ON 31 ST OCTOBER, 2008 AND HAS WORKED OUT A TOTAL COST OF ` 11,40,81,900/- ON HYPOTHETICAL BASIS ON THE HIGHER SID E WITHOUT CONSIDERING THE STATUS OF BUILDING AS ON 31 ST MARCH, 2006. THE BUILDING WAS UNDER CONSTRUCTION ON 31.3.2006 AS REFLECTED IN TH E BALANCE SHEET AS WORK-IN-PROGRESS. THE CONSTRUCTION WAS ALSO CARRIED O UT FROM 1.4.2008 TO TILL DATE AND THE PERIOD OF FINISHING WO RK SHOULD ALSO BE CONSIDERED WHILE ESTIMATING THE YEAR-WISE COST OF CONSTR UCTION AND IF THE AMOUNT INCURRED THEREAFTER IS TAKEN INTO CONSIDER ATION, THEN, THE COST OF CONSTRUCTION SHOULD INCLUDE THE COST INCURRED B Y THE ASSESSEE UPTO 31 ST OCTOBER, 2008. 4. LD. ASSESSING OFFICER DID NOT ACCEPT SUCH CONTENTIONS OF THE ASSESSEE AND REFERRING TO THE VALUATION REPORT, HE OBSER VED THAT THE ISSUE HAS BEEN DISCUSSED IN DETAIL REGARDING THE VALUATIO N OF THE PROPERTY AND HE HAS REPRODUCED THE CHART ACCORDING TO WHICH THE ITA NO.4945/DEL/2010 4 VALUE OF THE PROPERTY HAS BEEN TAKEN BY THE VALUATIO N OFFICER AND HAS OBSERVED THAT THE VALUATION OFFICER HAS IN A VERY MET HODICAL MANNER GIVEN THE INVESTMENT MADE IN THE PROPERTY AND HE HAS ALSO PROVIDED DETAILS OF FAIR MARKET VALUE OF LAND AND AN ABSTRACT OF COST OF CONSTRUCTION OF BASEMENT, LOWER GROUND FLOOR, GROUND FLOOR, UPPER GROUND FLOOR, FIRST FLOOR AND SECOND FLOOR AT DIFFERE NT RATES PER SQUARE METRE. HE ALSO PROVIDED DETAILS OF EXTRA ITEMS LIKE M ARBLE FLOOR, FALSE CEILING, GRANITE CLADDING, ETC., AND HAS ALSO GIVEN D ETAILS OF BOUNDARY WALL AND OTHER RELATED DETAILS. THE VALUATION OFFIC ER HAS ALSO PROVIDED DETAILS OF CALCULATION OF WEIGHTED COST INDEX AND PLI NTH AREA RATES AND, THUS, HE HAS ARRIVED AT A COST OF CONSTRUCTION AND LAND IN A MOST SCIENTIFIC MANNER. LD. ASSESSING OFFICER ALSO REFERRED T O THE ADJACENT MALL BUILT BY M/S RAHUL POLYMERS AND REFERRED TO THE FACT THAT A SEARCH WAS CONDUCTED IN THAT CASE AND ON THE BASIS OF DIFFEREN T PAPERS FOUND DURING THE SEARCH, THE VALUE OF THE SAID MALL WAS ARRI VED AT ` 22,73,59,600/- AND COMPARING THE COST INCURRED BY TH E ASSESSEE, LD. ASSESSING OFFICER HAS OBSERVED THAT THE VALUATION MADE IN THE CASE OF THE ASSESSEE IS FAIRLY LOGICAL AND ON LOWER SIDE OF INVE STMENT AND, IN THIS MANNER, HE HAS MADE THE ADDITION OF DIFFERENCE O F ` 2,06,06,547/-. FOR THE SAKE OF CONVENIENCE THE CHART REPRODUCED BY THE ASSESSING OFFICER IN THE ASSESSMENT ORDER FOR CALCULATION OF SUCH DIFFERENCE IS ALSO REPRODUCED BELOW:- S.NO. DATE OF VALUATION/ PERIOD OF CONSTN. INVESTMENT ON LAND/CONSTRUCTION OF BUILDING DECLARED BY ASSESSEE ESTIMATED BY THIS OFFICE A. LAND 1. 01.04.2003 (DATE OF MOU) RS.64,06,000.00 RS. 1,03,14,400.00 TOTAL (A) RS.64,06,000.00 RS. 1,03,14,400.00 B. COST OF CONSTRUCTION 1. 2003-04 RS. 1,96,76,000.00 RS. 2,30,49,794.00 2. 2004-05 RS. 2,32,58,257.00 RS. 2,72,46,292.00 3. 2005-06 RS. 5,44,49,496.00 RS. 6,37,85,814.00 TOTAL (B) RS. 9,73,83,753.00 RS.11,40,81,900.00 TOTAL OF (A) + (B) RS.10,37,89,753.00 RS.12,43,96,300.00 ITA NO.4945/DEL/2010 5 5. AGGRIEVED, THE ASSESSEE FILED AN APPEAL BEFORE THE C IT (A). IT WAS CONTENDED THAT THE LAND WAS PURCHASED BY THE ASSESSEE FOR A SUM OF ` 69,18,900/- DURING FINANCIAL YEAR 2003-04 WHI CH WAS REGISTERED DURING FINANCIAL YEAR 2004-05. NO AMOUNT OTHER THA N THE AMOUNT MENTIONED IN THE TITLE DEED WAS PAID BY THE ASSESSEE FOR PURCHASE OF LAND. THE COPY OF SALE DEED WAS FURNISHED FOR VERIFIC ATION OF THE ASSESSING OFFICER. NO EVIDENCE WHATSOEVER WAS FOUND EITH ER DURING THE COURSE OF ASSESSMENT PROCEEDINGS OR DURING THE COURSE OF SURVEY. THAT ANY AMOUNT EXTRA THAN THE AMOUNT DECLARED IN T HE PURCHASE DEED WAS PAID BY THE ASSESSEE TO THE SELLER. THEREFORE, IT WA S CONTENDED THAT THE ASSESSING OFFICER HAD NO POSITIVE EVIDENCE IND ICATING THE FACT THAT THE ASSESSEE HAS PAID ANYTHING MORE THAN THE ONE DI SCLOSED IN THE SALE DEED. REFERENCE WAS MADE TO THE DECISION OF HON BLE SUPREME COURT IN THE CASE OF K.P. VERGHESE 131 ITR 597 (SC) A ND ALSO THE DECISION OF HONBLE DELHI HIGH COURT IN THE CASE OF C IT VS. MAHESH KUMAR (ITA NO.1191-1192/2010). 6. IT WAS FURTHER SUBMITTED THAT THE DVO HAD CONDUCTE D THE VALUATION ON 31 ST OCTOBER, 2008 AND HAS WORKED OUT THE CONSTRUCTION COST AT ` 11,40,81,900/- ON HYPOTHETICAL BASIS WHICH I S ON HIGHER SIDE. THE DVO HAS DIVIDED THE COST OF CONSTRUCTION IN THREE FINANCIAL YEARS AS PER WEIGHTED COST INDEX AND ESTIMATION DETAILS, WITHOU T COMPARING THE STATUS OF THE BUILDING AS ON 31 ST MARCH, 2006 AND 31 ST OCTOBER, 2008. THE BUILDING WAS UNDER CONSTRUCTION AS ON 31 ST MARCH, 2006 AS IS REFLECTED IN THE BOOKS OF ACCOUNT AND THE BALANCE AS WORK-IN-PROGRESS. SINCE THE CONSTRUCTION WORK WAS ALSO CARRIED OUT FROM 1.4.2006 TO TILL DATE, SUCH PERIOD OF CONSTRUCTION ALSO SHOULD BE CONSIDE RED. IT WAS SUBMITTED THAT COST OF CONSTRUCTION INCURRED DURING TH E PERIOD OF APRIL, 2006 TO 31 ST OCTOBER, 2008 IS A SUM F ` 93,85,026/- AND, THUS, THE COST OF CONSTRUCTION IN THE HANDS OF THE ASSESSEE AS ON 31 ST OCTOBER, 2008 HAS COME TO ` 10,67,68,779/-. ITA NO.4945/DEL/2010 6 7. IT WAS FURTHER SUBMITTED THAT THE DIRECTOR OF THE ASSESSEE COMPANY HAD DIRECTLY NEGOTIATED WITH THE VENDOR AND HAD PURCHASED THE MATERIAL FOR CONSTRUCTION AND THERE WAS NO BROKER /AGENT ENGAGED FOR THE PURCHASE OF THE MATERIAL. THE CONSTRUCTION OF THE MALL WAS UNDER THE DIRECT CONTROL AND SUPERVISION OF THE DIREC TOR SINCE THEY HAVE EXPERTISE IN THE CONSTRUCTION FIELD FOR MORE THAN 20 YEARS. IN THIS MANNER, THE COMPANY WAS ABLE TO SAVE 10% OF THE MINIM UM CONSTRUCTION COST WHICH COMES TO ` 1,06,76,878/- AND I F THE SAID AMOUNT IS ADDED TO THE CONSTRUCTION COST AS PER BOOKS OF ACCOUNT, THE COST OF CONSTRUCTION WILL COME TO ` 11,74,45,857/- WH ICH IS AN AMOUNT HIGHER THAN THE DVOS REPORT. THE CALCULATION WAS SUB MITTED IN THIS RESPECT WHICH IS AS UNDER:- COST OF CONSTRUCTION AS ON 31.03.2006 RS.9,73,83,753/ - ADD: COST OF CONSTRUCTION FOR THE PERIOD 01.04.2006 TO 31.10.08 RS. 93,85,026/- ----------------------- RS.10,67,68,779/- ADD: NOTIONAL PROFIT MARGIN OF CONTRACTOR I.E., 10% OF THE COST OF CONSTRUCTION RS. 1,06,76,878 /- ------------------------- TOTAL RS.11,74,45,657/- 8. IT WAS FURTHER SUBMITTED THAT THE ASSESSEE COMPANY IS MAINTAINING PROPER BOOKS OF ACCOUNT IN RESPECT OF THE INVESTMENT MADE IN THE CONSTRUCTION OF THE PROPERTY WHICH IS DUL Y SUPPORTED BY VOUCHERS AND NO DEFECT WHATSOEVER HAS BEEN POINTED OUT BY THE ASSESSING OFFICER IN THE ASSESSMENT. IT WAS FURTHER SUBMITTE D THAT DURING THE COURSE OF ASSESSMENT AS WELL AS DURING THE SURVE Y NO EVIDENCE OR DOCUMENT WHATSOEVER WAS FOUND FROM WHICH IT CAN BE INFERRED THAT THE ASSESSEE HAS INCURRED MORE EXPENDITURE THAN WHAT WAS STATED IN THE BOOKS OF ACCOUNT. IT WAS SUBMITTED TH AT THE ITA NO.4945/DEL/2010 7 VALUATION REPORT COULD NOT BE OBTAINED AS IT CAN BE OBTAINED ONLY WHEN THE BOOKS OF ACCOUNT ARE NOT RELIABLE AND ARE NOT SUP PORTED BY PROPER VOUCHERS AND BOOKS ARE REJECTED BY THE ASSESSING OFFICER. IT WAS SUBMITTED THAT SECTION 142A PERMITS THE DEPARTMENT TO OBTAIN VALUATION REPORT ONLY WITH REFERENCE TO SECTION 69 OR 69B. THE SECTION 69 IS ATTRACTED WHEN THE INVESTMENT IS NOT AT ALL REFL ECTED IN THE BOOKS OF ACCOUNT. THE SECTION 69B APPLIES WHERE THE ASSESSING OFFICER FINDS THAT THE AMOUNT EXPENDED ON MAKING INVESTMENT EXCEED S THE AMOUNT RECORDED IN THE BOOKS OF ACCOUNT. THUS, IT WAS SUBMITT ED THAT THE PRE- REQUISITE FOR MAKING THE REFERENCE IS THAT THE ASSESSING OFFICER MUST FIND THAT THE COST EXCEEDS THE COST RECORDED IN THE BO OKS OF ACCOUNT. THE ASSESSING OFFICER HAD EXAMINED ALL THE BOOKS OF ACCO UNT AND ON SUCH EXAMINATION, HE COULD NOT POINT OUT ANY MATERIA L ACCORDING TO WHICH IT COULD BE FOUND THAT THE COST OF CONSTRUCTION OF THE ASSESSEE EXCEEDED THE COST OF CONSTRUCTION WHICH HAS BEEN SHOWN IN THE BOOKS OF ACCOUNT. IN THE ABSENCE OF ANY SUCH POSITIVE EVIDE NCE, THE ADDITION COULD NOT BE MADE. RELIANCE WAS ALSO PLACED ON THE F OLLOWING DECISIONS:- A) CIT V. GANESH RICE MILLS (2006) 280 ITR 409 (P&H) B) CIT V. NARESH KHATTER HUF 261 ITR 664 C) CIT V. HOTEL JOSHI (2002) 242 ITR 478 (RAJ.) D) CIT V. SATINDER KUMAR 250 ITR 484 E) K K SESHAIYER V. CIT (2000) 246 (MAD) F) SANJAY CHAWLA V. ITO 89 ITD 586 (DEL) G) BRITANIA INDUSTRIES LTD. V. DCIT 238 ITR 5 H) ITO V. ANSHU JAIN 36 SOT 263 9. ON THESE SUBMISSIONS, LEARNED CIT (A) HAS RECORDED A F INDING THAT REFERENCE TO DVO IS MADE WITHOUT FIRST FINDING T HAT THE ASSESSEE HAS MADE ANY INVESTMENT OUTSIDE THE BOOKS OF ACCOUNT. NO MATERIAL WAS FOUND EITHER DURING THE COURSE OF SURVEY OR DURING THE COURSE OF ITA NO.4945/DEL/2010 8 ASSESSMENT TO INFER THAT THERE WAS ANY MATERIAL TO SHOW T HAT THE ASSESSEE WAS FOUND TO HAVE INVESTED ANY AMOUNT OUTSIDE THE BOOKS OF ACCOUNT FOR ACQUISITION OF THE PROPERTY OR FOR CONSTR UCTION OF THE PROPERTY. THE PURCHASE OF THE LAND AND CONSTRUCTION OF PROPERTY WAS DULY SUPPORTED BY VOUCHERS AND BILLS, THE SOURCE OF WHI CH WAS FOUND TO BE DULY EXPLAINED IN THE HANDS OF THE ASSESSEE. REGARDI NG THE PROVISIONS OF SECTION 142A, LEARNED CIT (A) OBSERVED T HAT IT CAN BE APPLIED WHERE THE ASSESSEE IS FOUND TO HAVE MADE INVESTME NT OUTSIDE THE BOOKS OF ACCOUNT OR WHERE ANY SUCH INVESTMENT MADE BY HIM IS NOT FULLY DISCLOSED IN THE BOOKS OF ACCOUNT. THE COND ITION PRECEDENT FOR MAKING REFERENCE U/S 142A WAS ABSENT. THE PURCHASE OF LAND WAS DULY SUPPORTED BY THE TITLE DEED. THE ASSESSEE HAS MAINTAINED PROPER BOOKS OF ACCOUNT AND THERE BEING NO EVIDENCE OR DOCU MENT EXISTING ON RECORD ON THE BASIS OF WHICH IT COULD BE SAID THAT THE ASSESSEE HAD MADE ANY EXTRA INVESTMENT, THEREFORE, THE REPORT OF DVO PER SE BEING NOT AN INFORMATION COULD NOT BE RELIED UPON. LEARN ED CIT (A) HAS ALSO RECORDED A FINDING THAT IF THE COST OF CONSTRUCTION I NCURRED BY THE ASSESSEE UPTO 31 ST OCTOBER, 2008 IS TAKEN INTO CONSIDERATION, THEN, THE COST OF CONSTRUCTION OF THE ASSESSEE WILL BECOME ` 10,67, 68,779/- AND, THEREFORE, THE VALUATION REPORT OF THE DVO IS WHOLLY IRRELEVANT AND CANNOT BE ACCEPTED AS A RELIABLE OPINION. HE HAS OBSE RVED THAT THE FACT REMAINS THAT THE ASSESSING OFFICER HAS NOT BEEN ABLE TO DISCHARGE THE ONUS TO PROVE THAT THE ASSESSEE HAS INVESTED ANY AMOUN T OVER AND ABOVE THE AMOUNT DECLARED BY HIM AND IN THIS MANNER, THE ADDITION HAS BEEN DELETED. THE DEPARTMENT IS AGGRIEVED, HENCE , HAS FILED THIS APPEAL. 10. AFTER NARRATING THE FACTS, IT WAS VEHEMENTLY PLEA DED BY THE LEARNED DR THAT AS PER STATEMENT RECORDED DURING THE COURSE OF SURVEY, THE DIRECTOR OF ASSESSEE COMPANY HAS STATED THAT T HE COST OF CONSTRUCTION OF THE MALL WAS ` 12 CRORE. FOR THIS PUR POSE, SHE INVITED ITA NO.4945/DEL/2010 9 OUR ATTENTION TOWARDS THE SURVEY REPORT FIELD BY THE ASSESSING OFFICER IN THE CASE OF THE ASSESSEE, A COPY OF WHICH HAS BEEN PLA CED ON OUR RECORD. THE QUESTION NO.8 AND ANSWER THERETO READ AS UNDER:- Q.8 PLEASE GIVE THE DETAILS OF YOUR MOVEABLE AND IMM OVEABLE PROPERTIES. ANS. (1) I AM OWNER OF A MALL NAMED AS MG-13 WHICH IS SITUATED AT M.G. ROAD, SULTAN PUR, NEW DELHI MEASURING APPROX 7150 SQ. YARDS. THE SAID MALL HAD BEEN PURCHASED F OUR YEARS AGO AND THE COST OF THE MALL IS 75,00,00,000/- TO 80,00,00, 000/-. THE REGISTRY OF THE MALL IS KEPT WITH MY CA. CONSTRUCTION WO RK IS ON FOR THE LAST TWO AND HALF YEAR WHICH NOW LIKELY TO COMP LETE. THE CONSTRUCTION COST IS RS.12,00,00,000/- OF THIS MALL. 11. SHE PLEADED THAT THIS IS A VALID MATERIAL WORKING UPON WHICH THE ASSESSING OFFICER HAS RIGHTLY REFERRED THE VALUATION TO THE VALUATION OFFICER UNDER THE PROVISIONS OF SECTION 142A OF THE A CT. SHE SUBMITTED THAT THE CONSTRUCTION COST AS STATED BY THE DIRECTOR OF THE COMPANY WAS ` 12 CRORE AND AS AGAINST THAT THE ASSESSEE HAD INCURR ED COST OF CONSTRUCTION IN ITS BOOKS OF ACCOUNT AT ` 9,73,83,753/ - AND THERE BEING SUBSTANTIAL DIFFERENCE, THAT CONSTITUTED A MATERIAL TO MAKE A REFERENCE TO THE VALUATION OFFICER UNDER THE PROVISIONS OF SECT ION 142A OF THE ACT. THUS, SHE SUBMITTED THAT REFERENCE HAS RIGHTLY BEEN MAD E BY THE ASSESSING OFFICER TO THE DVO AND, RELYING UPON THE DVO S REPORT, THE ADDITION HAS RIGHTLY BEEN MADE IN THE HANDS OF THE ASSE SSEE. SHE FURTHER SUBMITTED THAT THE PREMISES OF THE ASSESSEE WAS SEAL ED, THEREFORE, THERE IS NO FORCE IN THE CONTENTION OF TH E ASSESSEE THAT IT HAS INCURRED FURTHER SUM OF ` 93,85,026/- ON THE CONSTRUC TION FROM 1 ST APRIL, 2006 TO 31 ST OCTOBER, 2008. SHE REFERRED TO THE PAGE 11 ON WHI CH THE DETAILS OF STOCK OF PROPERTY AS ON 31 ST MARCH, 2006 IS FILED WHEREIN THE OPENING VALUE OF STOCK-IN-PROGRESS IN RESPECT OF RELEVA NT PROPERTY HAS BEEN SHOWN AT ` 4,29,34,257/- AND A FURTHER SUM HAS BE EN INCURRED TO BE AT ` 5,44,49,496/- WHICH HAS MADE THE TOTAL WORK- IN-PROGRESS AT ` 9,73,83,753/-. THEN, SHE REFERRED TO PAGE 250 OF TH E PAPER BOOK WHEREIN FOR YEAR ENDING 31 ST MARCH, 2008 THE ADDITION HAS BEEN SHOWN ITA NO.4945/DEL/2010 10 OF ` 2,98,000/- TO THE AFOREMENTIONED AMOUNT OF ` 9 ,73,83,753/- FOR MAKING THE TOTAL WORK-IN-PROGRESS AS AT THE END OF TH E YEAR 31 ST MARCH, 2008 FOR A SUM OF ` 9,76,81,753/-. THUS, SHE SUBMITTED THAT BY THE YEAR ENDING 31 ST MARCH, 2008 THE ONLY SUM INCURRED BY THE ASSESSEE AFTER 31 ST MARCH, 2006 IS A SUM OF ` 2,98,000/- AND, THUS, THERE IS NO FORCE IN THE CONTENTION OF THE ASSESSEE THAT IT HAD INC URRED ADDITIONAL AMOUNT OF ` 93,85,026/- DURING THE PERIOD 1 ST APRIL, 2006 TO 31 ST OCTOBER, 2008. 12. SHE SUBMITTED THAT REJECTION OF BOOKS OF ACCOUNT HAS TO BE SEEN WITH RESPECT TO THE ADDITION MADE AND AS THE ADDITION IS MADE BY THE ASSESSING OFFICER, THAT VERY FACT ESTABLISHES THAT THE BOO KS OF ACCOUNT OF THE ASSESSEE ARE NOT RELIABLE AND HAS BEEN REJECTED B Y THE ASSESSING OFFICER. 13. LEARNED DR FURTHER RELIED UPON THE DECISION OF H ONBLE UTTARAKHAND HIGH COURT IN THE CASE OF SMT. KIRAN LAT A VS. ITAT 318 ITR 44 (UK) TO CONTEND THAT IN A CASE WHERE THE ASSESSING OF FICER, AFTER INSPECTING THE BUILDING HAD REFERRED THE VALUATION T O THE DVO, THE ACTION OF ASSESSING OFFICER WAS UPHELD. SHE ALSO RELIED UPON THE DECISION OF COCHIN BENCH IN THE CASE OF SANTHWANA HOSP ITAL PVT. LTD. VS. DCIT (2011) 12 TAXMAN.COM 245 (COCHIN) TO CONTEN D THAT IT IS NOT NECESSARY THAT BEFORE INVOKING SECTION 142A THE ASSESSING OFFICER MUST FIRST FIND THE ASSESSEES BOOKS OF ACCOUNT BEING NOT R ELIABLE AND REJECT THE SAME. IN THIS MANNER, THE LEARNED DR ARGU ED THAT THE ADDITION HAS WRONGLY BEEN DELETED BY LEARNED CIT (A) AND THE SAME SHOULD BE RESTORED. 14. ON THE OTHER HAND, IT WAS SUBMITTED THE LEARNED A R THAT THE ADDITION HAS RIGHTLY BEEN DELETED BY LEARNED CIT (A) . THE LEARNED AR SUBMITTED THAT IT HAS SPECIFICALLY BEEN FOUND BY LEARN ED CIT (A) THAT THERE WAS COMPLETE ABSENCE OF ANY MATERIAL EITHER DUR ING THE COURSE ITA NO.4945/DEL/2010 11 OF SURVEY OR DURING THE COURSE OF ASSESSMENT PROCEEDINGS A CCORDING TO WHICH IT COULD BE SAID THAT THE ASSESSEE HAD INCURRED AN Y EXPENDITURE OVER AND ABOVE THAT HAS BEEN SHOWN TO BE INCURRED ON THE CONSTRUCTION OF THE PROPERTY WHICH WAS RECORDED BY TH E ASSESSEE IN THE BOOKS OF ACCOUNT. HE SUBMITTED THAT IN THE ABSENCE OF ANY SUCH MATERIAL, THE ADDITION MADE ON THE BASIS OF DVO REPOR T IS NOT LEGALLY SUSTAINABLE. HE IN THIS REGARD REFERRED TO THE DECISIO N OF HONBLE HIGH COURT IN THE CASE OF CIT VS. MAHESH KUMAR 196 TAXMAN 4 15 (DELHI). IN THAT CASE THE ASSESSEE HAD PURCHASED TWO PLOTS FOR ` 2 LAC AND ` 3 LAC RESPECTIVELY. A SEARCH WAS CONDUCTED AT THE PREMISES OF THE ASSESSEE. NO INCRIMINATING DOCUMENT OR MATERIAL WAS FOUND OR SE IZED DURING THE COURSE OF SEARCH OPERATION IN RESPECT OF AFOREMENTIONE D TWO PLOTS. THE ASSESSING OFFICER REFERRED THE VALUATION TO THE DVO U/S 142A ON THE BASIS OF WHICH THE ADDITIONS WERE MADE. IT WAS HELD TH AT PRIMARY BURDEN TO PROVE REGARDING UNDERSTATEMENT OR CONCEALM ENT OF INCOME WAS ON THE REVENUE AND UPON DISCHARGE OF THE SUCH BURD EN, IT WOULD BE PERMISSIBLE TO RELY UPON THE VALUATION GIVEN BY TH E DVO. THERE BEING NO EVIDENCE, MUCH LESS ANY INCRIMINATING EVIDEN CE, THE TRIBUNAL WAS JUSTIFIED IN DELETING THE ADDITION. 15. HE FURTHER REFERRED TO THE DECISION OF HONBLE D ELHI HIGH COURT IN THE CASE OF CIT VS. AAR PEE APARTMENTS (2010) 188 TAXM AN 39 (DELHI). THE ASSESSEE IN THAT CASE WAS A CONSTRUCTION COMPANY AND H AD COMPLETED ONE OF ITS PROJECTS AND DECLARED PROFITS FRO M THE SAID PROJECT. THE ASSESSING OFFICER HAD REFERRED THE MATTER TO THE VALUATION OFFICER TO DETERMINE THE COST OF CONSTRUCTION OF THE PROJECT AND, ON THE BASIS OF THE REPORT OF THE DVO, ADDITION WAS MADE TO T HE INCOME OF THE ASSESSEE WHICH WAS CONFIRMED BY THE CIT (A). ITAT HELD THAT SECTION 142A DOES NOT DEAL WITH UNEXPLAINED EXPENDITURE U/S 6 9-C AND, THEREFORE, IT WAS NOT PERMISSIBLE FOR THE ASSESSING OFFICE R TO REFER THE MATTER TO THE DVO FOR OBTAINING THE COST OF CONSTRUCT ION. ON APPEAL ITA NO.4945/DEL/2010 12 FILED BY THE DEPARTMENT IT WAS HELD BY THE HONBLE H IGH COURT THAT THE SCOPE AND AMBIT OF SECTION 69-B AND 69-C ARE ALTOGET HER DIFFERENT. SECTION 142A(1) ENABLES THE ASSESSING OFFICER TO GET THE VALUATION DONE FROM THE VALUATION OFFICER IN CERTAIN SPECIFIC CASES. THESE WOULD BE THE CASES WHEREIN AN ESTIMATE OF THE VALUATION OF A NY INVESTMENT REFERRED TO IN SECTION 69 OR SECTION 69B OR THE VA LUE OF ANY BULLION, JEWELLERY OR OTHER VALUABLE ARTICLE REFERRED TO IN SECTION 69A. THERE IS NO MENTION ABOUT SECTION 69-C. SECTION 69A DEALS W ITH UNEXPLAINED MONEY. SECTION 69B LIKEWISE RELATES TO THE AMOUNT OF INVESTMENT, ETC. NOT DISCLOSED IN THE BOOKS OF ACCOUNT. ON THE OTHER H AND, THE PROVISION RELATING TO UNEXPLAINED EXPENDITURE IS IN SECTION 69 -C. THE ASSESSING OFFICER IN THAT CASE HAD DOUBTED THE EXPENDITURE INC URRED BY THE ASSESSEE ON THE PROJECT AND THE MATTER WAS REFERRED TO T HE DVO FOR THE PURPOSE OF DETERMINING THE COST OF CONSTRUCTION OF THE PROJECT. HOWEVER, FOR THE PURPOSE OF GETTING HIMSELF SATISFIED A BOUT THE PURPORTED UNEXPLAINED EXPENDITURE U/S 69-C, POWERS U/ S 142A COULD NOT BE INVOKED. WITH REGARD TO THE CONTENTION OF T HE REVENUE THAT THE EXPENDITURE INCURRED SHOULD BE CONSIDERED IS COMING WITHIN THE EXPRESSION INVESTMENT, IT WAS HELD THAT IF INVESTMENTS COULD INCLUDE WITHIN ITS FOLD, THE EXPENDITURE AS WELL WHICH WERE I NCURRED BY A BUSINESSMAN DURING THE COURSE OF HIS BUSINESS, THERE WAS NO NECESSITY OF HAVING A SEPARATE PROVISION U/S 69-C WHICH DEALS WIT H UNEXPLAINED EXPENDITURE. THE CONNOTATION OF THE INVESTMENT APPEARING IN SECTION 69B HAS TO BE IN THE CONTEXT OF INVESTMENTS MA DE IN THE SAME PROPERTY OR ANY OTHER TYPE OF INVESTMENTS AND IT CANN OT BE THE BUSINESS EXPENDITURE AND IF SUCH CONTENTION OF THE REVE NUE IS ACCEPTED AND THE EXPRESSION IS GIVEN WIDER MEANING AS IS SAID TO B E MADE OUT, THE PROVISIONS OF SECTION 69-C SHALL BE RENDERED OTIOSE . REFERRING TO THE OBJECTS BEHIND INSERTION OF SECTION 142A, IT WAS H ELD THAT THERE WAS NO INTENTION TO INCLUDE UNEXPLAINED EXPENDITURE AS CONTEMPLATED IN SECTION 69-C, OTHERWISE SECTION 69 SHOULD HAVE BEEN SP ECIFICALLY ITA NO.4945/DEL/2010 13 MENTIONED IN SECTION 142A. WHAT IS NOT INCLUDED BY THE LEGISLATURE AND RATHER SPECIFICALLY EXCLUDED CANNOT BE INCORPORA TED BY THE COURT DURING THE PROCESS OF INTERPRETATION AND ONLY PERMITT ED WAY IS TO AMEND THE PROVISIONS WHICH IS NOT THE INTENTION OF THE COURT TO LEGISLATE OR TO PLUG THE LOOPHOLES IN THAT LAW AND, THUS, THE T RIBUNAL WAS HELD TO BE CORRECT IN DELETING THE ADDITION IN THE ABSENCE O F ANY OTHER EVIDENCE TO DISBELIEVE THE EXPENDITURE SHOWN BY THE A SSESSEE. 16. COMING TO THE ARGUMENTS OF THE LEARNED DR THAT T HE ASSESSEE HAS ONLY INCURRED A SUM OF ` 2,98,000/- AFTER 31 ST MARCH, 2006, IT WAS SUBMITTED BY THE LEARNED AR THAT THIS CONTENTION OF T HE LEARNED DR IS WRONG. HE REFERRED TO PAGE 264 OF THE PAPER BOOK W HICH IS A TOTAL OF STOCK OF PROPERTY AS ON 31 ST MARCH, 2009 IN WHICH THE OPENING BALANCE OF WORK-IN-PROGRESS OF THE AFOREMENTIONED PROPERTY AH S BEEN SHOWN AT ` 9,76,81,753/- TO WHICH A SUM OF ` 1,23,34,880/- HA S BEEN ADDED AND AFTER REDUCING THE DIFFERENCE BETWEEN THE SALES AND C OST OF SALES (SALES - ` 2,70,51,000/- AND COST OF SALES - ` 2,12,41,018.27 ), THE CLOSING BALANCE HAS BEEN SHOWN AT ` 88,87,75,614.73. HE SUBMI TTED THAT UPTO 31 ST OCTOBER, 2008 WHEN THE SAID PROPERTY WAS INSPECTED, T HE ASSESSEE HAD INCURRED MORE COST OF ` 93,85,026/- AND SUCH FIGU RE WAS DULY COMMUNICATED TO THE CIT (A) AND IT CAN BE FOUND IN THE ORDER OF THE CIT (A). THUS, HE SUBMITTED THAT THE LEARNED DR IS INCORR ECT IN SAYING THAT THE ASSESSEE HAS ONLY INCURRED A SUM OF ` 2,98,000/- UPTO 31 ST OCTOBER, 2008. THUS, IT WAS SUBMITTED BY THE LEARNED AR THAT T HE ADDITION HAS RIGHTLY BEEN DELETED BY CIT (A) AND HIS ORDER SHOULD UPHELD. 17. WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSIONS I N THE LIGHT OF THE MATERIAL PLACED BEFORE US. FOR PROPER APPRECIA TION OF THE ISSUE RAISED IN THE PRESENT APPEAL, IT WILL BE RELEVANT TO REPRODUCE THE PROVISIONS OF SECTION 142A UNDER WHICH THE REFERENCE HAS BEEN MADE BY THE ASSESSING OFFICER TO THE DVO:- ITA NO.4945/DEL/2010 14 142A (1) FOR THE PURPOSE OF MAKING AN ASSESSMENT OR REASSESSMENT UNDER THIS ACT, WHERE AN ESTIMATE OF THE VAL UE OF ANY INVESTMENT REFERRED TO IN SECTION 69 OR SECTION 69B OR THE VALUE OF ANY BULLION, JEWELLERY OR OTHER VALUABLE AR TICLE REFERRED TO IN SECTION 69A OR SECTION 69B OR FAIR MARKET VALUE OF ANY PROPERTY REFERRED TO IN SUB-SECTION (2) OF SECTION 56 IS REQUIR ED TO BE MADE, THE ASSESSING OFFICER MAY REQUIRE THE VALUATION OFFICE R TO MAKE AN ESTIMATE OF SUCH VALUE AND REPORT THE SAME TO HIM. 18. IT IS UNDISPUTED THAT THE EXPENDITURE SHOWN BY THE ASSESSEE ON CONSTRUCTION OF THE BUILDING IS ITS WORK-IN-PROGRESS IN RESPECT OF A PROJECT AND ACCORDING TO THE BUSINESS ACTIVITY OF THE ASSESSEE, DEVELOPMENT AND CONSTRUCTION OF SUCH PROJECT IS ONE OF ITS ACTIVITIES. THEREFORE, IT CANNOT BE DENIED THAT SUCH EXPENDITURE IN THE HANDS OF THE ASSESSEE WILL BE BUSINESS EXPENDITURE AND, THEREFORE, THE AFOREMENTIONED DECISION OF HONBLE DELHI HIGH COURT (JURISDICTIONAL HIGH COURT) IN THE CASE OF CIT VS. AAR PEE APARTMENTS PVT. LTD. (SUPRA) IS FULLY APPLICABLE TO THE FACTS OF THE ASSESSEES CASE. I N THE PRESENT CASE ALSO APART FROM THE STATEMENT OF THE DIRECTOR THE RE IS NO MATERIAL ON RECORD WHICH SUGGEST THAT ANY EXTRA INVESTMENT WAS M ADE BY THE ASSESSEE WHICH WAS NOT DISCLOSED IN THE BOOKS OF ACCOUNT. THEREFORE, THERE WAS NO JUSTIFICATION FOR MAKING SUCH ADDITION. 19. MOREOVER, THE ASSESSING OFFICER SIMPLY HAS MADE THE A DDITION OF THE DIFFERENCE BETWEEN THE COST SHOWN BY THE ASSESSEE AND ESTIMATED BY THE VALUATION OFFICER WHICH INCLUDES THE VALUE OF THE LAND AS WELL AS THE COST OF CONSTRUCTION RELATING TO THE FINANCIAL YE ARS PRIOR TO THE FINANCIAL YEAR FOR WHICH THE ASSESSMENT HAS BEEN MADE B Y THE ASSESSING OFFICER. THE DVO HAS ESTIMATED THE DIFFERENCE YEAR-WISE AS IT CAN BE SEEN FROM THE CHART REPRODUCED IN THE ABOV E PART OF THIS ORDER. THEREFORE, THE ENTIRE ADDITION OF ` 2,06,06 ,547/- DOES NOT PERTAIN TO THE YEAR UNDER CONSIDERATION. THE DIFFER ENCE FOR THE YEAR UNDER CONSIDERATION IF IT IS SEEN IS ONLY A SUM OF ` 93 ,36,318/- (COST OF CONSTRUCTION ESTIMATED BY THE DVO I.E., `6,37,85,840/ - - COST OF CONSTRUCTION ASSESSED BY THE ASSESSEE - ` 5,44,49,496/-). I T HAS BEEN ITA NO.4945/DEL/2010 15 THE CASE OF THE ASSESSEE EVEN BEFORE THE ASSESSING OFFICER T HAT THE VALUATION OFFICER HAS VALUED THE CONSTRUCTION AS ON 31 ST OCTOBER, 2008 AND TILL THAT TIME THE ASSESSEE HAD INCURRED EXTRA AMOU NT ON THE CONSTRUCTION WHICH WAS A SUM OF ` 93,85,026/-. IF THE SAID AMOUNT IS TAKEN INTO CONSIDERATION, THEN, FOR THE YEAR UNDER C ONSIDERATION THERE WILL BE NO DIFFERENCE AT ALL AND NO ADDITION WHATSOE VER ON ACCOUNT OF DIFFERENCE OF CONSTRUCTION COULD BE MADE. 20. THE ASSESSING OFFICER IN HIS ORDER HAS REFERRED TO AN OTHER CASE OF M/S RAHUL POLYMERS (SUPRA), BUT THAT CASE CANNOT BE APP LIED TO THE CASE OF THE ASSESSEE AS IT HAS BEEN MENTIONED BY THE ASSESSING OFFICER HIMSELF THAT IN THAT CASE DIFFERENT PAPERS WERE FOUND AND SEIZED ON THE BASIS OF WHICH VALUATION OF THE SAID MALL WAS ARRIVED A T. THEREFORE, EVEN IF ONE DOES NOT GO INTO THE QUESTION THAT WHETHE R OR NOT THE STATEMENT RECORDED BY THE DIRECTOR COULD BE CONSIDERE D AS A VALID BASE FOR MAKING REFERENCE TO SECTION 142A, EVEN THEN, AC CORDING TO THE AFOREMENTIONED DECISION OF HONBLE DELHI HIGH COURT IN THE CASE OF CIT VS. AAR PEE APARTMENTS (SUPRA) THE PROVISIONS OF SECTION 142A COULD NOT BE INVOKED BY THE ASSESSING OFFICER AND ADDITION CO ULD NOT BE MADE SIMPLY FOR THE REASON THAT DVO HAS VALUED THE COST OF CONSTRUCTION AT A HIGHER AMOUNT THAT THAT SHOWN BY TH E ASSESSEE. 21. SO AS IT RELATES TO THE DECISION RELIED UPON BY TH E LEARNED DR IN THE CASE OF SMT. KIRAN LATA VS. ITAT (SUPRA) IT MAY B E MENTIONED THAT THE FACTS OF THE SAID CASE ARE DISTINGUISHABLE AS IN THAT CASE THE ASSESSEE HERSELF HAD ADMITTED THAT THE ACCOUNTS MAINTAINE D BY HER WERE NOT COMPLETE AND ` 5 LAC MORE MIGHT HAVE BEEN SPENT IN THE CONSTRUCTION OF THE BUILDING, BUT, IN THE PRESENT CASE , AS POINTED OUT EARLIER, NO MATERIAL HAS BEEN BROUGHT ON RECORD BY T HE ASSESSING OFFICER TO SUGGEST THAT THE ACCOUNTS MAINTAINED BY THE ASSESSEE ARE EITHER INCOMPLETE OR ARE DEFECTIVE. THEREFORE, THE SAID CASE LAW IS NOT APPLICABLE. ITA NO.4945/DEL/2010 16 22. IN ANOTHER DECISION RELIED UPON BY THE LEARNED D R IN THE CASE OF SANTHWANA HOSPITAL PVT. LTD. (SUPRA), THE QUESTION WAS THAT WHETHER OR NOT IT IS NECESSARY FOR THE ASSESSING OFFICER TO FIRST REJE CT THE BOOKS OF ACCOUNT AND, THEN, REFERRED TO THE VALUATION U/S 142 A AND IT WAS HELD THAT THE SCOPE OF SECTION 142A IS LIMITED AND IS APPLI CABLE ONLY WHERE THE VALUE OF INVESTMENT REFERRED TO IN SECTION 69 AN D 69B ARE REQUIRED FOR MAKING AN ASSESSMENT. IT HAS ALREADY BEEN OBSERVED TH AT THE PRESENT CASE FALLS UNDER THE SCOPE OF SECTION 69C AND, THEREFORE, THE SAID CASE HAS ALSO NO APPLICATION ON THE FACTS OF THE PR ESENT CASE. 23. KEEPING IN VIEW THE AFOREMENTIONED DISCUSSION, WE ARE OF THE OPINION THAT IT IS NOT A FIT CASE WHERE ADDITION MADE BY THE ASSESSING OFFICER COULD BE HELD JUSTIFIED. FINDING NO MERIT I N THE DEPARTMENTAL APPEAL, THE SAME IS DISMISSED. 24. IN THE RESULT, THE APPEAL FILED BY THE REVENUE I S DISMISSED. THE ORDER PRONOUNCED IN THE OPEN COURT ON 09.09.20 11. SD/- SD/- [B.C. MEENA] [I.P. BANSAL] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED, 09.09.2011. DK ITA NO.4945/DEL/2010 17 COPY FORWARDED TO: - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT TRUE COPY BY ORDER, DEPUTY REGISTRAR, ITAT, DELHI BENCHES