SHRI MOHD. ILYAS ANSARI, MUMBAI V. INCOME TAX OFFICER 23(2)(3), MUMBAI

ITA 6174/MUM/2017

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 3359 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-11-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2014-2015
• Appeal Filed On: 09-10-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: KAVITA P KAUSHIK
• Keywords: Unexplained cash credit; Unexplained investment; Sale consideration of property below Jantri Value; Value adopted by valuation officer; Capital asset; Principle of natural justice; Additional evidence; Fair market value; Valuation report; Accommodation entries; Set aside; Capital Gains
• Section: 56(2)(vii)(b); 50C; 56(2); 250; 43; 73; 13; 22; 131; 68; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH B , MUMBAI (THROUGH VIRTUAL COURT) BEFORE SHRI C.N. PRASAD, HON'BLE JUDICIAL MEMBER AND SHRI S. RIFAUR RAHMAN , HON'BLE ACCOUNTANT MEMBER ITA NO. 6174 /MUM/201 7 ( A.Y : 2014 - 15) SHRI MOHD. IL YAS ANSARI ROOM NO. 22, 1 ST FLOOR BUILDING NO. 41, BOOTWALA MANZIL NAVPADA, BANDRA(E) MUMBAI - 400051 PAN: AEXPA7459N V. INCOME TAX OFFICER - 23(2 )( 3 ) ROOM NO . 110 MATRU MANDIR, TARDEV ROAD MUMBAI 400 007 (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI HARIOM TULSYAN DEPARTMENT BY : M S. KAVITA P. KAUSHIK DATE OF HEARING : 21 .10.2020 DATE OF PRONOUNCEMENT : 06 .11 .2020 O R D E R PER C. N. PRASAD (JM) 1. THIS APPEAL IS FILED BY THE ASSESSEE AGAINST THE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) 33 , MUMBAI [HEREINAFTER IN SHORT LD.CIT(A)] DATED 21.08.12017 FOR THE A.Y. 2014 - 15. 2 ITA NO. 6174/MUM/2017 ( A.Y: 2014 - 15) SHRI MOHD. ILYAS ANSARI 2. ASSESSEE HAS RAISED FOLLOWING GROUNDS IN ITS APPEAL: - 1. THE LD.CIT(A) ERRED IN CO NFIRMING ADDITION OF .1,80,49,999/ - U/S. 56(2)(VII) OF I.T. ACT 1961. 2. WITHOUT PREJUDICE TO THE ABOVE, THE LD.CIT(A) ERRED IN CONFIRMING THE ORDER OF LAO THOUGH THE ASSESSMENT ORDER IS LIABLE TO BE CANCELLED ON THE GROUND THAT THE LAO FAILED TO REFER TH E ISSUE OF VALUATION TO DISTRICT VALUATION OFFICER THOUGH HE WAS LEGALLY REQUIRED TO DO SO. 3. WITHOUT PREJUDICE TO THE ABOVE, THE LD.CIT(A) ERRED IN CONFIRMING ADDITION IN RESPECT OF SHARE OF WIFE IN THE PROPERTY. 4. WITHOUT PREJUDICE TO THE ABOVE, THE LD.CIT(A) ERRED IN CONFIRMING ENTIRE ADDITION MADE BY LAO, THOUGH THE AREA OF FLAT WAS IN FACT LESS THAN WHAT THE LAO HAD TAKEN. BOTH THE LOWER AUTHORITIES ERRED IN TAKING THE AREA OF FLAT AT A HIGHER FIGURE. 3. ASSESSEE HAS ALSO RAISED FOLLOWING ADDITIONAL GROUND IN HIS APPEAL : 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE ADDITION MADE U/S 56(2)(VIIB) OF RS. 1,80,49,999/ - IS UNSUSTAINABLE AND BAD IN LAW SINCE SECTION 56(2)(VIIB) APPLIES ONLY TO IMMOVABL E PROPERTIES I.E. PROPERTY WHICH ARE FULLY CONSTRUCTED AND NOT ON PROPERTIES WHICH ARE UNDER CONSTRUCTION. IN CASE OF THE APPELLANT, THE PROPERTY PURCHASED WAS UNDER CONSTRUCTION WHICH IS ESTABLISHED BY THE REPORT OF PERFECT VALUATIONS & CONSULTANTS, BEING A GOVT. REGD. VALUER SUBMITTED BY THE APPELLANT DURING THE COURSE OF ASSESSMENT PROCEEDINGS. 4. LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE ADDITIONAL GROUND RAISED IN THE APPEAL IS PURELY A LEGAL GROUND , AS TO WHETHER THE PROVISION S OF SECTION 56(2)(VIIB) APPLY TO THE IMMOVABLE PROPERTY FULLY CONSTRUCTED AND NOT FOR THE PROPERTIES PARTIALLY CONSTRUCTED AND NO FRESH FACTS HAVE TO BE EXAMINED AND T HEREFORE PRAYED THAT IN VIEW OF THE DECISION OF THE HON'BL E SUPREME COURT IN THE CASE OF NATIONAL THERMAL 3 ITA NO. 6174/MUM/2017 ( A.Y: 2014 - 15) SHRI MOHD. ILYAS ANSARI POWER CO. LTD., V . CIT [ 229 ITR 383 ] THE ADDITIONAL GROUND BE ADMITTED FOR ADJUDICATION. 5. ON THE OTHER HAND, LD. DR HAS OPPOSED FOR ADMISSION OF THE ADDITIONAL GROUND. LD. DR SUBMITS THAT SINCE THERE IS NO D ISTINCTION IN THE ACT AS TO THE APPLICABILITY OF THE PROVISION S OF SECTION 56(2) TO EITHER FULLY CONSTRUCTED PROPERTIES OR PARTIALLY CONSTRUCTED PROPERTIES , THE ADDITIONAL GROUND SHALL NOT BE ENTERTAINED AT THIS STAGE. 6. ON HEARING BOTH SIDES, W E ARE OF THE VIEW THAT THE ADDITIONAL GROUND RAISED BY THE ASSESSEE IS PURELY A LEGAL GROUND AND REQUIRED NO VERIFICATION OF THE FACTS AND THUS FOLLOWING THE DECISION OF THE HON'BLE SUPRE ME COURT IN THE CASE OF NATIONAL THERMAL POWER CO. LTD., V . CIT (SUPRA) , WE ADMIT THE ADDITIONAL GROUND FOR ADJUDICATION . 7. BRIEFLY STATED THE FACTS ARE THAT, ASSESSEE ENGAGED IN THE BUSINESS OF READYMADE GARMENTS IN THE NAME OF M/S SHADAB GARMENTS FILED HIS RETURN OF INCOME ON 04.09.2014 DECLARING TOTAL INCOME OF . 2,67,260/. DURING THE YEAR UNDER CONSIDERATION, THE ASSESSEE PURCHASE D FLAT NO. 1102 IN THE BUILDING NEBULLA EMPRESS JOINTLY WITH HIS WIFE FOR A TOTAL CONSIDERATION OF . 40,00,000/ - AND FLAT IS A PART OF SLUM REHABILITATION 4 ITA NO. 6174/MUM/2017 ( A.Y: 2014 - 15) SHRI MOHD. ILYAS ANSARI AUTHORITY DEVELOPMENT PROJECT WHICH WAS STARTED BY M/ S GURUNANAK DEVELOPERS(I) P. LTD. HOWEVER, DUE TO DISPUTE BETWEEN THE PARTNERS AND FINANCIAL CRUNCH THE BUILDER WAS NOT ABLE TO COMPLETE THE PROJECT. THE BUILDER SUBSEQUENTLY DECIDED TO EXIT FROM THE PROJECT LEAVING THE PROJECT HALFWAY. HOWEVER, T HEY EN TERED INTO AN AGREEMENT WITH M/S WATERFRONT GEO SOLUTION P VT . LTD. WHICH TRIED TO REVIVE THE PROJECT. BUT THIS PARTNER TOO DID NOT COMPLETE THE PROJECT AND A S A RESULT THE FLAT WAS SOLD FOR DISTRESS PRICE OF . 40,00,000/ - TO THE ASSESSEE. THE SALE WAS REGISTERED AND THEREAFTER THE BUILDER DISAPPEARED WITHOUT COMPLETING THE PROJECT. THE AGREEMENT WAS MADE BY THE BUILDER FOR A FLAT ADMEASURING 1360 SQ. FEET. HOWEVER, WHEN THE ASSESSEE GOT THE POSSESSION OF FLAT HE FOUND THAT IT HAS BEEN SOL D TO TWO PERSONS. THE ACTUAL AREA OF THE FLAT TOO WAS ONLY 784 SQ. FEET AGAINST THE A GREEMENT AREA OF 1360 SQ. FEET. 8. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE ASSESSING OFFICER NOTICED THAT THE STAMP DUTY VALUATION OF THE FLAT IS .2,20,49,999/ - BU T THE ASSESSEE SHOWN TO HAVE PURCHASED ONLY FOR .40,00,000/ - . THE ASSESSEE WAS REQUIRED TO EXPLAIN AS TO WHY THE DIFFERENCE IS NOT TO BE TREATED AS INCOME U/S. 56(2)(VII) OF THE ACT . THE ASSESSEE FILED A VALUATION REPORT OF PERFECT VALUATION & CONSULTAN TS, BEING A GOVT. REGD. VALUER WHO VALUED THE FLAT AT . 82.60 LAKHS. DURING THE ASSESSMENT PROCEEDINGS THE ASSESSEE 5 ITA NO. 6174/MUM/2017 ( A.Y: 2014 - 15) SHRI MOHD. ILYAS ANSARI FILED THIS VALUATION REPORT DISPUTING THE VALUATION MADE BY THE STAMP VALUATION AUTHORITY. HOWEVER, THE ASSESSING OFFICER DID NOT REFER T HE MATTER OF VALUATION TO THE DISTRICT VALUATION OFFICER, THOUGH THE VALUATION OF STAMP VALUATION AUTHORITY WAS DISPUTED BY THE ASSESSEE BY WAY OF VALUATION REPORT. THE ASSESSING OFFICER MADE AN ADDITION OF .1,80,49,999/ - U/S. 56(2)(VII B) OF THE ACT IN T HE HANDS OF THE ASSESSEE. THE ASSESSEE FILED AN APPEAL BEFORE THE LD. CIT(A) AGAINST THE ABOVE ORDER. HOWEVER, THE LD. CIT(A) ALSO DID NOT CONSIDER THE VALUATION REPORT SUBMITTED BY THE ASSESSEE HOLDING THAT THE ASSESSEE HAD NOT DISPUTED THE VALUATION MADE BY THE STAMP VALUATION AUTHORITY. ACCORDINGLY, THE LD. CIT(A) CONFIRMED THE ADDITION MADE AND PASSED THE ORDER AGAINST THE ASSESSEE. 9. NOW FIRSTLY COMING TO THE REGULAR GROUNDS OF APPEAL, GROUND NO. 1 OF GROUNDS OF APPEAL IS GENERAL IN NATUR E AND REQUIRES NO ADJUDICATION. 10. WITH REGARD TO GROUND NO. 2 OF GROUNDS OF APPEAL I.E. THE LD.CIT(A) ERRED IN CONFIRMING THE ORDER OF THE ASSESSING OFFICER THOUGH ASSESSMENT ORDER IS LIABLE TO BE CANCELED ON THE GROUND THAT THE ASSESSING OFFICER FAILED TO REFER THE ISSUE OF VALUATION TO THE DISTRICT VALUATION OFFICER THOUGH HE WAS LEGALLY REQUIRED TO DO SO, LD. COUNSEL FOR THE ASSESSEE SUBMITS 6 ITA NO. 6174/MUM/2017 ( A.Y: 2014 - 15) SHRI MOHD. ILYAS ANSARI THAT THE ASSESSING OFFICER DID NOT REFER THE MATTER OF VALUATION OF THE PROPERTY TO THE DISTRICT VALUATION OFFICER EVEN THOUGH THE ASSESSEE DISPUTED THE VALUATION MADE BY THE STAMP VALUATION AUTHORITY. LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE ASSESSEE HAD FILED BEFORE THE ASSESSING OFFICER A COPY O F VALUATION REPORT OF THE PERFECT VALUATION & CONSULTANTS, BEING A GOVT. REGD. VALUER WHO VALUED THE FLAT AT . 82.60 LAKHS. THE SAME WAS FILED BEFORE THE LD. ASSESSING OFFICER SINCE THE ASSESSEE DISPUTED THE VALUATION MADE BY THE STAMP VALUATION AUTHORITY . BUT THE ASSESSING OFFICER COMPLETELY IGNORED THE SAME. LD. COUNSEL FOR THE ASSESSEE FURTHER SUBMITS THAT WHEN THE ASSESSEE DISPUTES THE VALUATION MADE BY THE STAMP VALUATION AUTHORITY, THE ASSESSING OFFICER HAS TO REFER THE MATTER OF VALUATION TO THE DISTRICT VALUATION OFFICER. THIS DUTY IS CAST ON THE ASSESSING OFFICER AS PER THE PROVISIONS CONTAINED IN PROVISO TO S ECTION 56(2)(VII)(B) OF THE ACT AND S ECTION 50C(2) OF THE ACT. 11. LEARNED COUN SEL FOR THE ASSESSEE SUBMITTED THAT THE PROVISO TO S ECTION 56(2)(VII)(B) OF THE ACT PROVIDES THAT WHERE THE ASSESSEE DISPUTES THE STAMP DUTY VALUATION OF THE IMMOVABLE PROPERTY ON THE GROUNDS MENTIONED IN SUB SECTION (2) OF S ECTION 50C OF THE ACT, THE ASSE SSING OFFICER SHALL REFER THE MATTER OF VALUATION TO THE VALUATION OFFICER. SECTION 7 ITA NO. 6174/MUM/2017 ( A.Y: 2014 - 15) SHRI MOHD. ILYAS ANSARI 50C(2) OF THE ACT PROVIDES THAT THE ASSESSING OFFICER HAS TO REFER THE MATTER OF VALUATION TO THE DISTRICT VALUATION OFFICER PROVIDED TWO CONDITIONS ARE SATISFIED. FIRST , THE ASSESSEE CLAIMS BEFORE THE ASSESSING OFFICER THAT THE VALUE ADOPTED BY ASSESSED OR ASSESSABLE BY THE STAMP VALUATION AUTHORITY EXCEEDS THE FAIR MARKET VALUE AS ON THE DATE OF TRANSFER. SECOND, THE ASSESSEE DOES NOT DISPUTE THE VALUATION ADOPTED BY TH E STAMP VALUATION AUTHORITY BY WAY OF FILING ANY APPEAL OR REVISION BEFORE ANY OTHER AUTHORITY, COURT OR HIGH COURT. 12. LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT, COMING TO THE FACTS OF THE CASE IN HAND, IT IS SUBMITTED THAT BOTH THE CONDITIONS SPECIFIED IN SECTION 50C(2) OF THE ACT HAVE BEEN SATISFIED. WITH REGARD TO THE FIRST CONDITION, IT IS SUBMITTED THAT THE STA MP VALUATION AUTHORITY ASSESSED THE VALUE OF THE FLAT AT .2,20,49,999/ - WHICH IS MUCH MORE THAN THE PURCHASE CONSIDERATION OF .40,00,000/ - PAID AND S INCE THE SAME WAS NOT ACCEPTABLE TO THE ASSESSEE, DURING THE COURSE OF ASSESSMENT PROCEEDINGS SUBMITTED A COPY OF VALUATION REPORT OF PERFECT VALUATION & CONSULTANT, BEING A GOVT. REGD. VALUER WHO VALUED THE FLAT AT . 82.60 LAKH. THE SAME WAS FILED DISPUTING THE VALUATION MADE BY THE STAMP VALUATION AUTHORITY. ACCORDINGLY, THE FIRST CONDITION IS FULFILLED. LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT T HE VIEW TAKEN BY LD.CIT(A) IS THAT THE ASSESSEE HAD NOT 8 ITA NO. 6174/MUM/2017 ( A.Y: 2014 - 15) SHRI MOHD. ILYAS ANSARI SUBMITTED A FORMAL LETTER OBJECTING TO THE VALUATION MADE BY STAMP VALUATION AUTHORITY. IN THIS REGARD IT IS SUBMITTED THAT THOUGHT T HE ASSESSEE HAD NOT FILED A FORMAL LETTER DISPUTING THE VALUATION ADOPTED BY THE STAMP VALUATION AUTHORITY, STILL IT IS A FACT THAT ASSESSEE OBJECTED AS HE DID FILE THE COPY OF VALUATION REPORT FROM A GOVERNMENT APPROVED VALUER ACCORDING TO WHICH THE VALUE OF THE PROPERTY IS MUCH LESS THAN THE STAMP DUTY VALUE OF THE PROPERTY AND I T CLEARLY SHOWS THAT THE ASSESSEE DISPUTED THE VALUATION. 13. LEARNED COUNSEL FOR THE ASSESSEE W ITH REGARD TO THE FULFILLMENT OF SECOND CONDITION OF SECTION 50C(2) OF THE ACT SUBMITTED THAT ASSESSEE HAS NOT DISPUTED THE VALUATION MADE BY THE STAMP VALUATION AUTHORITY BY WAY OF ANY APPEAL OR REVISION BEFORE ANY OTHER AUTHORITY, COURT OR HIGH COURT. ACCORDINGLY, THE SECOND CONDITION ALSO STANDS FULFILLED. T HUS, IT IS SUBMITTED THAT BOTH THE CONDITIONS AS S TIPULATED U/S 50C(2) OF THE ACT ARE SATISFIED. IT IS SUBMITTED THAT THOUGH THE ASSESSEE HAS DISPUTED THE VALUATION ADOPTED BY THE STAMP VALUATION AUTHORITY BY FURNISHING A COPY OF VALUATION REPORT THE COURTS HAVE HELD THAT EVEN WHERE A SIMPLE REQUEST IS M ADE BY THE ASSESSEE TO REFER THE MATTER OF VALUATION TO THE DISTRICT VALUATION OFFICER, THE ASSESSING OFFICER IS DUTY BOUND TO DO THE SAME. THIS 9 ITA NO. 6174/MUM/2017 ( A.Y: 2014 - 15) SHRI MOHD. ILYAS ANSARI IS BECAUSE THE TERM 'MAY' USED IN S ECTION 50C(2) OF THE ACT HAS TO BE READ AS 'SHOULD' SO THAT THE PROVISION IS NOT RENDERED REDUNDANT. 14. LD. COUNSEL FOR THE ASSESSEE PLACED RELIANCE ON THE FOLLOWING DECISIONS IN SUPPORT OF HIS CONTENTIONS: - (I) CIT V. SH. CHANDRA NARAIN CHAUDHRI IN INCOME TAX APPEAL N O. 287 OF 2011 DATED 29.08.2013 OF HON'BLE ALLAHABAD HIGH COURT. (II) MEGHRAJ BAID V. ITO [114 TTJ 841] [JODHPUR ITAT] (III) APPADURAI VIJAYARAGHAVAN VS. JCIT (OSD) [369 ITR 486 (MAD)] (IV) ITO V. MANJURANI JAIN [(2008) 24 SOT 24 DATED 17.04.2008 (DELHI ITAT)] 15. THEREFORE, I N VIEW OF THE ABOVE JUDGMENTS, LD. COUNSEL FOR THE ASSESSEE SUBM ITTED THAT WHERE THE ASSESSEE IS CHALLENGING THE ASSESSED VALUE OF THE STAMP VALUATION AUTHORITY, THE LD. ASSESSING OFFICER OUGHT TO HAVE REFERRED THE MATTER OF VALUATION TO THE DISTRICT VALUAT ION OFFICER, WHICH IS NOT DONE. 16. LD. COUNSEL FOR THE ASSESSEE FURTHER STRONGLY PLAC ING RELIANCE ON THE DECISION OF THE DELHI BENCH OF THE TRIBUNAL IN THE CASE OF ITO V. AASTHA GOEL IN ITA.NO. 6005/DEL/2017 DATED 08.10.2018 , SUBMITTED THAT ON IDENTICAL CIRCUMSTANCES THE TRIBUNAL FOLLOWING THE DECISION OF THE DELHI TR IBUNAL IN THE CASE OF ITO V. ADITYA NARAIN VERMA (HUF) IN ITA.NO. 4166/MUM/ 18 DATED 07.06.2017 REJECTED THE REQUEST OF THE REVENUE THAT THE MATTER BE REFERRED TO ASSESSING OFFICER FOR THE PURPOS E OF VALUATION OF 10 ITA NO. 6174/MUM/2017 ( A.Y: 2014 - 15) SHRI MOHD. ILYAS ANSARI THE PROPERTY AND DIRECTED TO DELETE THE ADD ITION MADE BY THE ASSESSING OFFICER . 17. LD. COUNSEL FOR THE ASSESSEE ALSO PLACED RELIANCE ON THE DECISION OF AGRA BENCH OF THE TRIBUNAL IN THE CASE OF HARI OM GARG V. ITO I N ITA.NO. 342/AGR A /2017 DATED 31.05.2019 AND SUBMITTED THAT THE AGRA BENCH OF THE TRIBUNAL HAD CONSIDERED VARIOUS DECISIONS ON THE ISSUE AND HELD THAT THE REVENUE CANNOT BE ALLOWED A SECOND INNING BY SENDING THE MATTER BACK TO THE ASSESSING OFFICER ENABLING THE REVENUE TO FILL THE LACUNAE AND SHORTCOMINGS AND PUTTING THE ASSESSEE VIRTUALLY TO FACE A RE - TRAIL FOR NO FAULT OF HIM AND TO AGAIN PROVE BEFORE THE ASSESSING OFFICER THAT THE SALE CONSIDERATION WAS THE FAIR MARKET VALUE OF THE PROPERTY PURCHASED BY HIM. 18. ON THE OTHER HAND, THE LD. DR STRONGLY SUPPORTED THE ORDERS OF THE LOWER AUTHORITIES . LD. DR FURTHER SUBMITTED THAT IN CASE THE TRIBUNAL IS NOT AGREEING WITH THE DECISION OF THE ASSESSING OFFICER THE MATTER MAY BE RESTORED TO THE ASSESSING OFFICER FOR REFERRING THE I SSUE TO THE VALUATION OFFICER. 19. WE HAVE HEARD THE RIVAL SUBMISSIONS, PERUSED THE ORDERS OF THE AUTHORITIES BELOW AND THE CASE LAWS RELIED ON. IN THIS CASE THE ASSESSING 11 ITA NO. 6174/MUM/2017 ( A.Y: 2014 - 15) SHRI MOHD. ILYAS ANSARI OFFICER WHILE COMPLETING THE ASSESSMENT NOTICED THAT ASSESSEE HAD PURCHASED IMMOVABLE PROPERTY I.E. FLAT NO. 1102 IN THE BUILDING NEBULLA E MPRESS FOR AN AMOUNT OF .40,00,000/ - . HOWEVER, HE OBSERVED THAT THE MARKET RATE OF THE SAID PROPERTY AS PER STAMP DUTY AUTHORITY IS .2, 20,49,999/ - . THE ASSESSEE WAS T HEREFORE RE QUIRED TO EXPLAIN AS TO WHY THE DIFFERENCE BETWEEN STAMP VALUE AND THE PURCHASE VALUE AMOUNTING TO .1,80,49,999/ - SHOULD NOT BE CONSIDERED AS INCOME CHARGEABLE TO TAX UNDER THE HEAD INCOME FROM OTHER SOURCES UNDER SECTION 56(2)(VII) OF THE ACT . 20. IN REPLY ASSESSEE FILED LETTER EXPLAINING AS TO WHY THE PROPERTY WAS PURCHASED ONLY FOR .40,00,000/ - WHICH IS AS UNDER: - THE ASSESSEE HAS ACTUALLY ACQUIRED ONLY ONE RESIDENTIAL UNIT OF 225 SQ.FT. FLAT A - 1102 DURING THE YEAR AND FURTHER THE ASSESSEE'S WIFE HAS ACQUIRED A - 1102 AND BOTH THE FLATS WERE ACQUIRED AT COMBINED PRICE OF RS.40 LACS. THE AREA BY COMBINATION OF ASSESSEE AND HIS WIFE IS MUCH LOWER OF THE VALUE ADOPTED BY THE STAMP VALUATION AUTHORITY. ASSESSEE IS INNOCENT AND NEVER ACQUIRED SUCH HUGE AREA O F FLAT OF 1360 SQ. FT. THE VALUE ADOPTED BY THE STAMP VALUATION AUTHORITY EXORBITANTLY EXCEEDS THE FAIR MARKET VALUE OF THE PROPERTY AS ON THE DATE OF TRANSFER. THERE WAS EXTREME EDUCATIONAL HARDSHIP AND WAS NOT ABLE UNDERSTAND THE TERMS OF THE AGREEMENT W HICH WERE BEYOND THE ACTUAL FACTS AND ARE IN ASTRONOMICAL FIGURES. THE ASSESSEE WAS KEPT IN COMPLETE DARK ABOUT THE DESCRIPTION OF THE PROPERTY. 12 ITA NO. 6174/MUM/2017 ( A.Y: 2014 - 15) SHRI MOHD. ILYAS ANSARI 21. THE ASSESSEE ALSO FURNISHED VALUATION REPORT DATED 04.11.2016 FROM GOVERNMENT REGISTERED VALUER WHEREIN THE G OVERNMENT VALUER APPLYING COMPOSITE MARKET RATE VALUE FOR VALUATION AND ASSUMING ONLY 65% WORK WAS DONE AS THE PROPERTY WAS STILL UNDER CONSTRUCTION VALUED THE PROPERTY AT .82 LAKHS . BY SUBMITTING THE REPORT OF THE GOVERNMENT REGISTERED VALUER THE ASSESS EE DISPUTED THE STAMP DUTY VALUE OF THE PROPERTY . HOWEVER, THE ASSESSING OFFICER NOT APPRECIATING THE SUBMISSIONS OF THE ASSESSEE ADOPTED THE STAMP DUTY VALUE OF THE PROPERTY AS DEEMED PURCHASE CONSIDERATION AND APPLYING THE PROVISIONS OF SECTION 56(2)(VII) , THE DIFFERENCE BETWEEN THE STAMP DUTY VALUATION OF THE PROPERTY AND THE ACTUAL CONSIDERATION PAID BY THE ASSESSEE WAS BROUGHT TO TAX W HICH IS AMOUNT ING TO .1,80,49,999/ - . WHILE BRINGING TO TAX THE SAID DIFFERENCE BETWEEN STAMP DUTY VALUATION AND THE ACTUAL CONSIDERATION PAID THE ASSESSING OFFICER OBSERVED THAT IN THE SALE AGREEMENT THE AREA OF THE FLAT HAS BEEN SHOWN AT 1360 S QUARE FEE T AND THE SAME WAS SOLD BY THE DEVELOPER TO THE ASSESSEE AS PER AGREEMENT THOUGH THE REGISTERED VALUER HAS COME TO THE CONCLUSION THAT ONLY 65% OF T HE CONSTRUCTION WAS COMPLETED. 22. ON APPEAL THE LD.CIT(A) SUSTAINED THE ORDER OF THE ASSESSING OFFICER OBSERVIN G THAT WHEN THE CONSIDERATION AS SHOWN IN THE CONVEYANCE DEED 13 ITA NO. 6174/MUM/2017 ( A.Y: 2014 - 15) SHRI MOHD. ILYAS ANSARI IS LESS THAN MARKET VALUE DETERMINED BY THE STAMP VALUATION AUTHORITIES FOR THE PURPOSE OF CHARGING THE STAMP DUTY , THE PROVISIONS OF SECTION 56(2)(VII) ARE CLEARLY APPLICABLE AND THE ASSESSING OFFICER HAS RIGHTLY APPLIED THE SAID PROVISION. WE OBSERVE FROM THE ORDER OF THE LD.CIT(A) THAT IN THE COURSE OF THE APPELLATE PROCEEDINGS THE ASSESSEE SUBMITTED VALUATION REPORT OF THE VALUATION OFFICER - II MUMBAI DATED 07.10.2016 IN RESPECT OF FLAT N O . 6 01 OF THE VERY SAME BUILDING I.E. NEBULA E MPRESS, MUMBAI WHEREIN THE SAID FLAT IN THE PROPERTY WAS VALUED AT .1,00,76,000/ - . WE OBSERVED THAT EVEN AT THIS STAGE THE LD.CIT(A) DID NOT CHOOSE TO EITHER CALL FOR THE REMAND REPORT OR REFER IT TO THE VALUATIO N OFFICER FOR THE CORRECT VALUATION OF THE PROPERTY, INSTEAD HE FINDS NO REASON TO ACCEPT AND APPLY TH E VALUATION OF SOME OTHER FLAT WHICH IN HIS OPINION IS ATLEAST FIVE FLOOR ABOVE FLAT NO 601 WITH CONSEQUENTIAL ESCALATION IN COST , DIFFERENT AREAS OF TWO FLATS AND AMENITIES ETC., 23. WE OBSERVE THAT THE ASSESSEE ALL ALONG IS DISPUTING THE VALUATION BY SUBMITTING REGISTERED VALUER REPORT BEFORE THE ASSESSING OFFICER AND ALSO EXPLAINING THAT THE PROPERTY WAS SEMI FURNISHED AND EVEN AT THE FIRST APPELLATE STAGE THE REPORT OF THE VALUATION OFFICER II, MUMBAI WAS ALSO FURNISHED WHEREIN IN THE VERY SAME BUILDING FLAT NO. 601 WAS VALUED AT .1,00,76,000/ - BUT THE LOWER AUTHORITIES COMPLETEL Y BRUSHED ASIDE THE 14 ITA NO. 6174/MUM/2017 ( A.Y: 2014 - 15) SHRI MOHD. ILYAS ANSARI OBJECTIONS OF THE ASSESSEE. THE ASSESSING OFFICER FAILED IN HIS DUTY TO REFER THE MATTER TO THE VALUATION OFFICER AS PROVIDED U/S. 50(C)(II) R.W. PROVISO TO SECTION 56(2)(VII) OF THE ACT. 24. IN THE CASE OF ITO V. ASTHA GOEL THE DELHI TRIB UNAL IN ITA.NO. 6005/DEL/2017 DATED 08.10.2018 CONSIDERED ALMOST SIMILAR SITUATION WHEREIN THE LD.CIT(A) DELETED THE ADDITION MADE BY THE ASSESSING OFFICER U/S. 56(2)(VII)(B) BEING THE DIFFERENCE IN STAMP DUTY VALUATION AND THE PURCHASE CONSIDERATION PAID , FOR THE REASON THAT THOUGH THE ASSESSEE DISPUTED VALUATION NO REFERENCE WAS MADE TO THE VALUATION OFFICER BY THE ASSESSING OFFICER , WHEN REMAND REPORT WAS CALLED FOR BY THE LD.CIT(A) AS THE ASSESSEE FURNISHED NEAREST SALE INSTANCES AS COMPARABLES EVEN AT THAT STAGE THE ASSESSING OFFICER FAILED TO REFER THE MATTER TO THE VALUATION OFFICER , IN THOSE CIRCUMSTANCES THE LD.CIT(A) DELETED THE DIFFERENCE BETWEEN T HE VALUATION OF THE PROPERTY AS PER THE STAMP VALUE AND THE VALUATION AS PER THE PURCHASE DEED OF THE PROPERTY WHICH DECISION WAS UPHELD BY THE TRIBUNAL OBSERVING AS UNDER: - 14. WE HAVE CONSIDERED THE RIVAL ARGUMENTS MADE BY BOTH THE SIDES AND PERUSED THE MATERIAL AVAILABLE ON RECORD. WE FIND THE ASSESSEE IN THE INSTANT CASE HAD JOINTLY PURCHASED THE PROPERTY LOCATED AT E - 886, NARELA INDUSTRIAL COMPLEX DSIIDC NARELA, DELHI WITH HE R HUSBAND SHRI RACHIT GARG EACH HAVING 50% UNDIVIDED SHARE IN THE SAID PROPERTY AT PURCHASE PRICE OF RS.75,00,000/ - . WE FIND ON THE BASIS OF PRICE ADOPTED BY THE STAMP VALUATION AUTHORITY AT RS.2,80,00,000/ - , THE ASSESSING OFFICER MADE ADDITION OF 15 ITA NO. 6174/MUM/2017 ( A.Y: 2014 - 15) SHRI MOHD. ILYAS ANSARI RS.1,02, 50,000/ - IN THE HANDS OF THE ASSESSEE BY FOLLOWING THE PROVISIONS OF SECTION 56(2) OF THE I.T. ACT. WE FIND, IN APPEAL, THE LD. CIT(A) DELETED THE ADDITION, THE REASONS FOR WHICH HAVE ALREADY BEEN REPRODUCED IN THE PRECEDING PARAGRAPH. IT IS THE SUBMISSION OF THE LD. DR THAT SINCE THE LD. CIT(A), INSTEAD OF CALLING FOR A REPORT FROM THE DVO, HAD DELETED THE ADDITION ON THE BASIS OF SUBMISSIONS MADE BY THE ASSESSEE, THEREFORE, THE ORDER OF THE LD. CIT(A) IS NOT IN ACCORDANCE WITH LAW AND THE ORDER OF THE LD. CIT(A) BE REVERSED. IN HIS ALTERNATE ARGUMENT IT IS HIS SUBMISSION THAT THE MATTER SHOULD BE RESTORED TO THE FILE OF THE ASSESSING OFFICER. 15. IT THE SUBMISSION OF THE LD. COUNSEL FOR THE ASSESSEE THAT WHEN THE ASSESSEE HAD FURNISHED COPY OF THE REGISTER ED VALUER AND HAS ALSO BROUGHT TO THE NOTICE OF THE ASSESSING OFFICER DURING THE ASSESSMENT PROCEEDINGS REGARDING THE ARBITRARY ADOPTION OF CIRCLE RATE BY THE STAMP VALUATION AUTHORITY, THE ASSESSING OFFICER, INSTEAD OF REFERRING THE MATTER TO THE DVO PROC EEDED TO MAKE THE ADDITION ON THE BASIS OF THE VALUATION ADOPTED BY THE STAMP VALUATION AUTHORITY. FURTHER, DURING THE APPELLATE PROCEEDINGS, THE ASSESSEE HAD FILED SALE INSTANCES OF TWO COMPARABLE CASES IN THE NEARBY AREA WHICH WERE FORWARDED BY THE LD. C IT(A) TO THE ASSESSING OFFICER AND THE ASSESSING OFFICER AT THAT TIME ALSO DID NOT REFER THE MATTER TO THE DVO. THEREFORE, THE ORDER OF THE LD. CIT(A) BEING IN ACCORDANCE WITH LAW SHOULD BE UPHELD. 16. WE FIND MERIT IN THE ABOVE ARGUMENT OF THE LD. COUNSE L FOR THE ASSESSEE. IT IS AN ADMITTED FACT THAT DURING THE COURSE OF ASSESSMENT PROCEEDINGS THE ASSESSEE HAD FILED A VALUATION REPORT OF CAPTAIN SURESH DUTT & ASSOCIATES, GOVERNMENT OF INDIA APPROVED AND REGISTERED VALUERS, WHO VALUED THE PROPERTY AT RS.75 ,40,000/ - VIDE THEIR REPORT DATED 07.06.2013, COPY OF WHICH IS PLACED AT PAGES 33 TO 37 OF THE PAPER BOOK. IT IS ALSO AN ADMITTED FACT THAT THE ASSESSEE DURING THE COURSE OF ASSESSMENT PROCEEDINGS HAD FILED THE REPRESENTATIONS MADE BY THE NARELA INDUSTRIAL COMPLEX WELFARE ASSOCIATION TO THE THEN CHIEF MINISTER OF DELHI DATED 09.12.2010 AND ANOTHER ON 30.01.2014, COPIES OF WHICH ARE PLACED AT PAGES 29 TO 32 OF THE PAPER BOOK. HOWEVER, IT IS STRANGE TO NOTE THAT THERE IS NOT A WHISPER IN THE ASSESSMENT ORDER BY THE ASSESSING OFFICER ON THE ABOVE FACTS. EVEN THOUGH THE ASSESSEE HAS BROUGHT TO THE NOTICE OF THE ASSESSING OFFICER REGARDING THE ARBITRARY VALUATION ADOPTED BY THE STAMP VALUATION AUTHORITIES, THE ASSESSING OFFICER INSTEAD OF REFERRING THE MATTER TO THE DVO, MADE THE ADDITION ON THE BASIS OF THE DIFFERENCE IN THE PURCHASE PRICE AND VALUE ADOPTED BY THE STAMP VALUATION AUTHORITY. WE FIND DURING THE COURSE OF APPELLATE PROCEEDINGS APART FROM VARIOUS SUBMISSIONS MADE BY THE ASSESSEE, TWO SALE INSTANCES O F NEARBY AREAS WERE FILED BEFORE THE LD. CIT(A) 16 ITA NO. 6174/MUM/2017 ( A.Y: 2014 - 15) SHRI MOHD. ILYAS ANSARI AS ADDITIONAL EVIDENCES AND THE LD. CIT(A) FORWARDED THOSE EVIDENCES IN SHAPE OF SALE INSTANCES TO THE ASSESSING OFFICER FOR HIS COMMENTS. AT THAT TIME ALSO, THE ASSESSING OFFICER DID NOT REFER THE MATTER TO THE DVO AND SIMPLY REQUESTED THE LD. CIT(A) TO ADJUDICATE THE ISSUE ON MERIT OF THE CASE. THE RELEVANT PORTION OF THE REMAND REPORT, COPY OF WHICH IS PLACED AT PAGE 42 AND 43 OF THE PAPER BOOK, READS AS UNDER : - THE AR OF ASSESSEE VIDE HIS LETTER DATED 27 .06.2017, DURING THE REMAND STAGE FURNISHED THE SALE DEEDS OF TWO PROPERTIES OF SAME LOCATION AND AREA I.E. 350 SQ.MTS. THE DESCRIPTIONS OF THE BOTH THE PROPERTIES IS AS UNDER: - S. NO. ADDRESS OF PROPERTY AREA IN SQ.MTRS. DATE OF SALE DEED VALUE AS PER CI RCLE RATES (RS.) VALUE AS REGISTERED SALE DEED 1. 957, SECTOR G, NARELA INDL. COMPLEX, DELHI 350 SQ. MTRS. 08.11.2015 3,58,57,500/ - 70,00,000/ - 2. 855, BLOCK E, DSIDC NARELA INDL. AREA, DELHI 350 SQ. MTRS 13.07.2013 2,80,00,000/ - 90,00,000/ - THE COPY OF VALUATION REPORT IN RESPECT OF PROPERTY NO.886, BLOCK E, NARELA INDUSTRIAL AREA, DELHI DATED 07.06.2013 OF CAPTAIN SURESH DUTT & ASSOCIATES ALSO FILED DURING THE REMAND STAGE. THE COPIES OF LETTER BY THE INDUSTRIAL COMPLEX WELFARE ASSOCIATION T O THE THEN CHIEF MINISTER OF DELHI SMT. SHEILA DIXIT DATED 09.12.2010 AND TO SHRI ARVIND KEJRIWAL DATED 30.01.2014,1, STATING THAT THE CIRCLE RATES OF INDUSTRIAL PLOTS IN NARELA INDUSTRIAL AREA ARE MUCH HIGHER THAN THE ACTUAL MARKET RATES AND CIRCLE RATES ARE ENHANCED ARBITRARILY WITHOUT ANY LOGIC WERE ALSO FILED. THE SUBMISSION OF AR OF ASSESSEE HAS BEEN CONSIDERED AND DOCUMENTS NOW FURNISHED HAS BEEN EXAMINED AND PLACED ON RECORDS. THE COPY OF VALUATION REPORT AND THE LETTERS WRITTEN TO THE CHIEF MINISTE R WERE ALSO FILED BY THE AR OF ASSESSEE DURING THE COURSE OF ASSESSMENT PROCEEDINGS, BUT THE ASSESSING OFFICER HAD NOT CONSIDERED THE SAME. NOW 17 ITA NO. 6174/MUM/2017 ( A.Y: 2014 - 15) SHRI MOHD. ILYAS ANSARI AT THE REMAND REPORT STAGE THE AR OF ASSESSEE FILED COPIES OF TWO SALE DEED I.E. DATED 13.07.2013 AND 08.11.2015 OF THE SAME LOCALITY AND AREA OF THE PROPERTY. THESE NEW EVIDENCES WERE NOT PRODUCED BEFORE THE AO DURING THE ASSESSMENT PROCEEDINGS WHERE THE PROPERTIES WERE SOLD WELL BELOW THE CIRCLE RATES. THE AR ARGUED THAT DUE TO SLUMP IN THE PROPERTY MARKET, THE PR OPERTIES IN THE NARELA INDUSTRIAL AREA ARE BEING SOLD WELL BELOW THE CIRCLE RATES. THE DOCUMENTARY EVIDENCES NOW FURNISHED BY THE AR OF ASSESSEE IS PLACED ON RECORDS. IN VIEW OF ABOVE NARRATED SUBMISSIONS AND THE FACTS OF THE CASE, IT IS REQUESTED THAT THE APPEAL OF THE ASSESSEE MAY PLEASE BE ADJUDICATED ON THE MERITS OF THE CASE. 17. SO FAR AS THE RELIANCE PLACED ON BY THE REVENUE ON THE DECISION OF THE HONBLE DELHI HIGH COURT IN THE CASE OF JANSAMPARK ADVERTISING AND MARKETING (P) LTD. (SUPRA) IS CONCERN ED, THE SAME, IN OUR OPINION, IS NOT APPLICABLE TO THE FACTS OF THE PRESENT CASE. IN THAT CASE THE ASSESSMENT WAS REOPENED ON THE BASIS OF THE REPORT OF THE INVESTIGATION WING THAT THE ASSESSEE HAS RECEIVED ACCOMMODATION ENTRIES IN SHAPE OF BOGUS SHARE CAP ITAL. SINCE THE ASSESSING OFFICER WAS NOT SATISFIED WITH THE GENUINENESS OF THE CLAIM OF RECEIPT OF SHARE CAPITAL, HE ISSUED SUMMONS U/S 131 BUT NO ONE APPEARED AND SOME OF THE NOTICES WERE RETURNED UNDELIVERED WITH THE POSTAL REMARK LEFT/NO SUCH PERSON. ON BEING ASKED BY THE ASSESSING OFFICER TO PRODUCE THE PERSONS/PARTIES FROM WHOM THE ASSESSEE RECEIVED SHARE APPLICATION MONEY/SHARE CAPITAL, THE ASSESSEE FAILED TO PRODUCE THE DIRECTORS OF THE COMPANIES FROM WHOM THE SHARE CAPITAL WAS RECEIVED. THE ASSES SING OFFICER, THEREFORE, INVOKING THE PROVISIONS OF SECTION 68 OF THE I.T. ACT, 1961 MADE ADDITION WHICH WAS DELETED BY THE LD. CIT(A) AND SUBSEQUENTLY THE TRIBUNAL UPHELD THE ORDER OF THE LD. CIT(A). ON FURTHER APPEAL BY THE REVENUE, THE HON'BLE HIGH COUR T OBSERVED AS UNDER : - 38. THE PROVISION OF APPEAL, BEFORE THE CIT (APPEALS) AND THEN BEFORE THE ITAT, IS MADE MORE AS A CHECK ON THE ABUSE OF POWER AND AUTHORITY BY THE AO. WHILST IT IS TRUE THAT IT IS THE OBLIGATION OF THE AO TO CONDUCT PROPER SCRUTINY OF THE MATERIAL, GIVEN THE F ACT THAT THE TWO APPELLATE AUTHORITIES ABOVE ARE ALSO FORUMS FOR FACT - FINDING, IN THE EVENT OF AO FAILING TO DISCHARGE HIS FUNCTIONS PROPERLY, THE OBLIGATION TO CONDUCT PROPER INQUIRY ON FACTS WOULD NATURALLY SHIFT TO THE DOOR OF THE SAID APPELLATE AUTHORI TY. FOR SUCH PURPOSES, WE ONLY NEED TO POINT OUT ONE STEP IN THE PROCEDURE IN APPEAL AS PRESCRIBED IN SECTION 250 OF THE INCOME TAX ACT WHEREIN, 18 ITA NO. 6174/MUM/2017 ( A.Y: 2014 - 15) SHRI MOHD. ILYAS ANSARI BESIDES IT BEING OBLIGATORY FOR THE RIGHT OF HEARING TO BE AFFORDED NOT ONLY TO THE ASSESSEE BUT ALSO THE AO, T HE FIRST APPELLATE AUTHORITY IS GIVEN THE LIBERTY TO MAKE, OR CAUSE TO BE MADE, 'FURTHER INQUIRY', IN TERMS OF SUB - SECTION (4) WHICH READS AS UNDER: - THE COMMISSIONER (APPEALS) MAY, BEFORE DISPOSING OF ANY APPEAL, MAKE SUCH FURTHER INQUIRY AS HE THINKS F IT, OR MAY DIRECT THE ASSESSING OFFICER TO MAKE FURTHER INQUIRY AND REPORT THE RESULT OF THE SAME TO THE COMMISSIONER (APPEALS). 39. THE FURTHER INQUIRY ENVISAGED UNDER SECTION 250(4) QUOTED ABOVE IS GENERALLY BY CALLING WHAT IS KNOWN AS 'REMAND REPORT' . THE PURPOSE OF THIS ENABLING CLAUSE IS ESSENTIALLY TO ENSURE THAT THE MATTER OF ASSESSMENT REACHES FINALITY WITH ALL THE REQUISITE FACTS FOUND. THE ASSESSMENT PROCEEDINGS RE - OPENED ON THE BASIS OF PRELIMINARY SATISFACTION THAT SOME PART OF THE INCOME HA S ESCAPED ASSESSMENT, PARTICULARLY WHEN SOME UNEXPLAINED CREDIT ENTRIES HAVE COME TO THE NOTICE (AS IN SECTION 68), CANNOT CONCLUDE, SAVE AND EXCEPT BY REACHING SATISFACTION ON THE TOUCHSTONE OF THE THREE TESTS MENTIONED EARLIER; VIZ. THE IDENTITY OF THE T HIRD PARTY MAKING THE PAYMENT, ITS CREDITWORTHINESS AND GENUINENESS OF THE TRANSACTION. WHILST IT IS TRUE THAT THE ASSESSEE CANNOT BE CALLED UPON TO ADDUCE CONCLUSIVE PROOF ON ALL THESE THREE QUESTIONS, IT IS NONETHELESS LEGITIMATE EXPECTATION OF THE PROCE SS THAT HE WOULD BRING IN SOME PROOF SO AS TO DISCHARGE THE INITIAL BURDEN PLACED ON HIM. SINCE SECTION 68 ITSELF DECLARES THAT THE CREDITED SUM WOULD HAVE TO BE INCLUDED IN THE INCOME OF THE ASSESSEE IN THE ABSENCE OF EXPLANATION, OR IN THE EVENT OF EXPLA NATION BEING NOT SATISFACTORY, IT NATURALLY FOLLOWS THAT THE MATERIAL SUBMITTED BY THE ASSESSEE WITH HIS EXPLANATION MUST ITSELF BE WHOLESOME OR NOT UNTRUE. IT IS ONLY WHEN THE EXPLANATION AND THE MATERIAL OFFERED BY THE ASSESSEE AT THIS STAGE PASSES THIS MUSTER THAT THE INITIAL ONUS PLACED ON HIM WOULD SHIFT LEAVING IT TO THE AO TO START INQUIRING INTO THE AFFAIRS OF THE THIRD PARTY. XXXXX 42. THE AO HERE MAY HAVE FAILED TO DISCHARGE HIS OBLIGATION TO CONDUCT A PROPER INQUIRY TO TAKE THE MATTER TO LOGIC AL CONCLUSION. BUT CIT (APPEALS), HAVING NOTICED WANT OF PROPER INQUIRY, COULD NOT HAVE CLOSED THE CHAPTER SIMPLY BY ALLOWING THE APPEAL AND DELETING THE ADDITIONS MADE. IT WAS ALSO THE OBLIGATION OF THE FIRST APPELLATE AUTHORITY, AS INDEED OF ITAT, TO HAV E ENSURED THAT EFFECTIVE INQUIRY WAS CARRIED 19 ITA NO. 6174/MUM/2017 ( A.Y: 2014 - 15) SHRI MOHD. ILYAS ANSARI OUT, PARTICULARLY IN THE FACE OF THE ALLEGATIONS OF THE REVENUE THAT THE ACCOUNT STATEMENTS REVEAL A UNIFORM PATTERN OF CASH DEPOSITS OF EQUAL AMOUNTS IN THE RESPECTIVE ACCOUNTS PRECEDING THE TRANSACTIONS IN QUE STION. THIS NECESSITATED A DETAILED SCRUTINY OF THE MATERIAL SUBMITTED BY THE ASSESSEE IN RESPONSE TO THE NOTICE UNDER SECTION 148 ISSUED BY THE AO, AS ALSO THE MATERIAL SUBMITTED AT THE STAGE OF APPEALS, IF DEEMED PROPER BY WAY OF MAKING OR CAUSING TO BE MADE A 'FURTHER INQUIRY' IN EXERCISE OF THE POWER UNDER SECTION 250(4). THIS APPROACH NOT HAVING BEEN ADOPTED, THE IMPUGNED ORDER OF ITAT, AND CONSEQUENTLY THAT OF CIT (APPEALS) , CANNOT BE APPROVED OR UPHELD. 43. IN THE RESULT, THE QUESTIONS OF LAW STAND ANSWERED IN FAVOUR OF THE REVENUE THOUGH WITH A DIRECTION THAT THE MATTER OF ASSESSMENT ARISING OUT OF NOTICE UNDER SECTION 148 INCOME TAX ACT ISSUED ON 18.04.2007 FOR AY 2004 - 05 IN RESPECT OF THE ASSESSEE WOULD STAND REMITTED TO THE CIT (APPEALS) FOR FRES H CONSIDERATION/ADJUDICATION IN ACCORDANCE WITH LAW. 18. HOWEVER, THE FACTS IN THE INSTANT CASE ARE COMPLETELY DIFFERENT. THE ASSESSING OFFICER HAD NOT DISCUSSED ANYTHING ABOUT THE VALUATION REPORT FILED BY THE ASSESSEE DURING THE COURSE OF ASSESSMENT PRO CEEDINGS. THE REPRESENTATIONS FILED BY THE TRADE ORGANIZATION BEFORE THE THEN CHIEF MINISTER OF DELHI ABOUT THE ARBITRARY ADOPTION OF CIRCLE RATE BY THE STAMP VALUATION AUTHORITY WAS ALSO IGNORED BY THE ASSESSING OFFICER AND INSTEAD OF REFERRING THE MATTER TO THE DVO HE MADE ADDITION BEING THE DIFFERENCE BETWEEN THE CIRCLE RATE AND ACTUAL SALE CONSIDERATION. WHEN THE ASSESSEE SUBMITTED VARIOUS DETAILS INCLUDING TWO SALE INSTANCES BELOW THE CIRCLE RATE IN THE SAME AREA, THE LD. CIT(A) CALLED FOR A REMAND REP ORT FROM THE ASSESSING OFFICER AND THE ASSESSING OFFICER AT THAT TIME ALSO DID NOT REFER THE MATTER TO THE DVO. THEREFORE, UNDER THESE CIRCUMSTANCES, THE DECISION OF THE HONBLE DELHI HIGH COURT IN THE CASE OF JANSAMPARK ADVERTISING AND MARKETING LTD. (SUP RA) AS RELIED ON BY THE REVENUE IN THE GROUNDS OF APPEAL WILL NOT BE APPLICABLE TO THE FACTS OF THE PRESENT CASE. 19. WE FIND IDENTICAL ISSUE HAD COME UP BEFORE THE TRIBUNAL IN THE CASE OF ADITYA NARAIN VERMA (HUF) (SUPRA). IN THE SAID DECISION ALSO, THE DEPARTMENT HAD REQUESTED THE TRIBUNAL FOR SETTING ASIDE THE MATTER TO THE FILE OF THE ASSESSING OFFICER FOR REFERRING THE CASE TO THE VALUATION OFFICER. HOWEVER, THE TRIBUNAL AFTER CONSIDERING THE VARIOUS SUBM ISSIONS MADE BY THE ASSESSEE REJECTED SUCH REQUEST OF THE REVENUE AND UPHELD THE ORDER OF THE LD. CIT(A) BY OBSERVING AS UNDER : - 20 ITA NO. 6174/MUM/2017 ( A.Y: 2014 - 15) SHRI MOHD. ILYAS ANSARI 4.1 ON THE VERY PERUSAL OF THE PROVISIONS LAID DOWN UNDER SECTION 50C OF THE ACT REPRODUCED HEREINABOVE. WE FULLY CONCUR WITH THE FINDING OF THE ID. CIT (APPEALS) THAT WHEN THE ASSESSEE IN THE PRESENT CASE HAD CLAIMED BEFORE ASSESSING OFFICER THAT THE VALUE ADOPTED OR ASSESSED BY THE STAMP VALUATION AUTHORITY UNDER SUB SECTION (1) EXCEEDS THE FAIR MARKET VALUE OF THE PROPERTY AS ON THE DATE OF TRANSFER, THE ASSESSING OFFICER SHOULD HAVE REFERRED THE VALUATION OF THE CAPITAL ASSET TO A VALUATION OFFICER INSTEAD OF ADOPTING THE VALUE TAKEN BY THE STATE AUTHORITY FOR THE PURPOSE OF STAMP DUTY. THE VERY PURPOSE OF THE LEGISLATURE BEH IND THE PROVISIONS LAID DOWN UNDER SUB SECTION (2) TO SECTION 50C OF THE ACT IS THAT A VALUATION OFFICER IS AN EXPERT OF THE SUBJECT FOR SUCH VALUATION AND IS CERTAINLY IN A BETTER POSITION THAN THE ASSESSING OFFICER TO DETERMINE THE VALUATION. THUS, NON - C OMPLIANCE OF THE PROVISIONS LAID DOWN UNDER SUB SECTION (2) BY THE ASSESSING OFFICER CANNOT BE HELD VALID AND JUSTIFIED. THE HON'BLE JURISDICTIONAL HIGH COURT OF ALLAHABAD IN THE CASE OF SHASHI KANT GARG (SUPRA) HAS BEEN PLEASED TO HOLD THAT IT IS WELL SET TLED THAT IF UNDER THE PROVISIONS OF THE ACT AN AUTHORITY IS REQUIRED TO EXERCISE POWERS OR TO DO AN ACT IN A PARTICULAR MANNER, THEN THAT POWER HAS TO BE EXERCISED AND THE ACT HAS TO BE PERFORMED IN THAT MANNER ALONE AND NOT IN ANY OTHER MANNER. SIMILAR V IEW HAS BEEN - EXPRESSED BY THE OTHER DECISIONS CITED BY THE ID. AR IN THIS REGARD HEREINABOVE. THE FIRST APPELLATE ORDER ON THE ISSUE IS THUS UPHELD. THE GROUNDS ARE ACCORDINGLY REJECTED. 5. IN THE RESULT, APPEAL IS DISMISSED. 20. SINCE THE FACTS IN THE I NSTANT CASE ARE IDENTICAL TO THE FACTS OF THE CASE DECIDED BY THE TRIBUNAL, THEREFORE, RESPECTFULLY FOLLOWING THE SAME, WE UPHOLD THE ORDER OF THE LD. CIT(A) ON THIS ISSUE AND THE GROUNDS RAISED BY THE REVENUE ARE ACCORDINGLY DISMISSED. 25. IN THE CASE OF HARI OM GARG V. ITO, THE AGRA BENCH OF THE TRIBUNAL IN ITA.NO. 342/AGRA/2017 DATED 31.05.2019 HAS TAKEN A VIEW THAT THE DEPARTMENT CANNOT BE ALLOWED A SECOND INNING BY SENDING THE MATTER BACK TO THE ASSESSING OFFICER ENABLING THE REVENUE TO FILL THE LACUNAE AN D SHORTCOMINGS AND FURTHER PUTTING THE ASSESSEE TO FACE A RE - TRAIL FOR NO FAULT OF HIM AND TO PROVE BEFORE THE ASSESSING OFFICER THAT THE SALE 21 ITA NO. 6174/MUM/2017 ( A.Y: 2014 - 15) SHRI MOHD. ILYAS ANSARI CONSIDERATION WAS THE FAIR MARKET VALUE OF THE PROPERTY PURCHASED BY HIM. WHILE COMING TO SUCH CONCLUSION THE TR IBUNAL CONSIDERED VARIOUS DECISIONS OF HON'BLE HIGH COURTS AND TRIBUNALS AND THE O BSERVATIONS OF THE TRIBUNAL ARE AS UNDER: - 8. IN THE PRESENT CASE, NEITHER, THE AO NOR THE LD. CIT(A) HAS MADE ANY EFFORTS TO CRYSTALIZE THE ACTUAL VALUE OF INVESTMENT BY THE ASSESSEE IN THE PURCHASE OF THE PROPERTY BY WAY OF BRINGING MATERIAL DOCUMENTARY EVIDENCE ON RECORD TO ESTABLISH THE UNEXPLAINED INVESTMENT IN THE PROPERTY BY THE ASSESSEE. MERELY, REJECTION OF THE REPLY OF ASSESSEE WITHOUT GIVING VALID REASONS CAN NOT JUSTIFY THE ACTION OF THE SUBORDINATE AUTHORITIES. 9. THE SUB - SECTION (2) CLEARLY MANDATES THAT WHERE THE ASSESSEE CLAIMS THAT THE VALUE ADOPTED OR ASSESSED OR ASSESSABLE BY THE STAMP VALUATION AUTHORITY EXCEEDS THE FAIR MARKET VALUE OF THE PROPERTY AS ON THE DATE OF TRANSFER, THE AO WOULD REFER THE VALUATION OF SUCH PROPERTY TO THE VALUATION OFFICER. HONBLE CALCUTTA HIGH COURT, IN THE CASE OF SUNIL KUMAR AGARWAL VS. CIT REPORTED IN 372 ITR 83 HAS CLEARLY HELD THAT THE AO, DISCHARGING QUASI - JUDICIAL FUNCTION, HAS THE BOUNDEN DUTY TO ACT FAIRLY AND TO FOLLOW THE COURSE PROVIDED BY LAW, WHICH IN THAT C ASE, WAS THE REFERENCE TO THE VALUATION OFFICER. IN THE PRESENT CASE, IN VIEW OF THE ASSESSEES SPECIFIC DISPUTE AND CLAIM BEFORE THE AO THAT STAMP VALUATION OF THE PROPERTY SOLD WAS NOT ITS FAIR MARKET VALUE, IT WAS THE BOUNDEN DUTY OF THE AO TO HAVE MA DE REFERENCE TO THE VALUATION OFFICER WHICH, FOR THE REASONS NOT BORNE ON RECORDS, WAS NOT MADE. 10. HONBLE ALLAHABAD HIGH COURT IN THE CASE OF CIT VS CHANDRA NARAIN CHAUDHARY IN ITAT NO.287 /2011 VIDE JUDGMENT DATED 29.08.2013 IN A CASE, THOUGH HAVING DIFFERENT FACTS WHERE ASSESSEE THEREIN HAD FILED MORE THAN ONE VALUATION REPORT , IN THE CONTEXT OF SECTION 50C OF THE ACT, HELD THAT WHENEVER OBJECTION IS TAKEN OR CLAIM IS MADE BEFORE AO, THA T THE VALUE ADOPTED OR ASSESSED OR ASSESSABLE BY THE STAMP VALUATION AUTHORITY UNDER SUB - SECTION (1) OF SECTION 50 - C EXCEEDS THE FAIR MARKET VALUE OF THE PROPERTY ON THE DATE OF TRANSFER, THE AO HAS TO APPLY HIS MIND ON THE VALIDITY OF THE OBJECTION OF THE ASSESSEE. HE MAY EITHER ACCEPT THE VALUATION OF THE PROPERTY ON THE BASIS OF THE REPORT OF THE APPROVED VALUER FILED BY THE ASSESSEE, OR INVITE OBJECTION FROM THE DEPARTMENT AND REFER THE QUESTION OF VALUATION OF THE CAPITAL ASSET TO DVO IN ACCORDANCE WIT H SECTION 55 - A OF THE ACT. IN ALL THESE EVENTS, THE AO HAS TO RECORD VALID REASONS, WHICH ARE JUSTIFIABLE IN LAW. HE IS NOT REQUIRED TO ADOPT 22 ITA NO. 6174/MUM/2017 ( A.Y: 2014 - 15) SHRI MOHD. ILYAS ANSARI AN EVASIVE APPROACH OF APPLYING DEEMING PROVISION WITHOUT DECIDING THE OBJECTION OR TO REFER THE MATTER TO THE DVO UNDER SECTION 55 - A OF THE ACT AS A MATTER OF COURSE, WITHOUT CONSIDERING THE REPORT OF APPROVED VA LUER SUBMITTED BY THE ASSESSEE. THE HONBLE HIGH COURT FURTHER HELD THAT SECTION 50 - C OF THE ACT IS A RULE OF EVIDENCE IN ASSESSING THE VALUATION OF PROPERTY FOR CALCULATING THE CAPITAL GAIN. THE DEEMING PROVISION UNDER SECTION 50 C (1) OF THE ACT IS REBUTTABLE. IT IS WELL KNOWN THAT AN IMMOVABLE PROPERTY MAY HAVE VARIOUS ATTRIBUTES, CHARGES, ENCUMBRANCES, LIMITATIONS AND CONDITIONS. THE STAMP VALUATION AUTHOR ITY DOES NOT TAKE INTO CONSIDERATION THE ATTRIBUTES OF THE PROPERTY FOR DETERMINING THE FAIR MARKET VALUE IN THE CONDITION THE PROPERTY IS A OFFERED FOR SALE AND IS PURCHASED. HE IS REQUIRED TO VALUE THE PROPERTY IN ACCORDANCE WITH THE CIRCLE RATES FIXED B Y THE COLLECTOR. THE OBJECT OF THE VALUATION BY THE STAMP VALUATION AUTHORITY IS TO SECURE REVENUE ON SUCH SALE AND NOT TO DETERMINE THE TRUE, CORRECT AND FAIR MARKET VALUE ON WHICH IT MAY BE PURCHASED BY A WILLING PURCHASER SUBJECT TO AND TAKING INTO CONS IDERATION ITS SITUATION, CONDITION AND OTHER ATTRIBUTES SUCH AS IT OCCUPATION BY TENANT, AN Y CHARGE OR LEGAL ENCUMBRANCES. 11. HONBLE JURISDICTIONAL HIGH COURT OF ALLAHABAD IN THE CASE OF DR. SHAHSI KANT GARG V. CIT 285 ITR 0158 HAS ALSO OBSERVED THAT IF UNDER THE PROVISIONS OF THE ACT AN AUTHORITY IS REQUIRED TO EXERCISE POWER OR DO AN ACT IN A PARTICULAR MANNER, THEN THAT POWER HAS TO BE EXERCISED AND THE ACT HAS TO BE PERFORMED IN THAT MANNER ALONE AND NOT IN ANY OTHER MANNER. 12. IN THE PRESENT CASE, AS DISCUSSED ABOVE THE AO NOT ONLY PASSED A CRYPTIC ORDER WITHOUT DISPUTING ANY OF THE GROUNDS OF DISPUTE RAISED BY THE ASSESSEE BUT ALSO FAILED TO FOLLOW THE PROCEDURE PRESCRIBED IN LAW I.E. MAKING OF A REFERENCE TO THE DVO AS MANDATED BY SECTION 50C (2) OF THE ACT. THEREFORE, THE ADDITION MAD E BY THE AO CANNOT BE APPROVED. 13. NOW, HAVING HELD THAT SINCE THE AO FAILED TO FOLLOW THE PROCEDURE PRESCRIBED UNDER THE LAW AND FOR THIS REASON THE ADDITION CANNOT BE HELD LEGALLY VALID, THE NEXT QUESTION ARISES FO R CONSIDERATION IS WHETHER THE CASE BE SET ASIDE TO THE AO FOR FOLLOWING THE SAID PROCE DURE AND THEN PASS FRESH ORDER. 14. IN THIS RESPECT WE STATE THAT THOUGH THE POWERS OF THE TRIBUNAL ARE WIDE ENOUGH BUT THEY SHOULD NOT BE USED TO ALLOW THE DEPARTMENT T O MAKE UP ITS SHORTCOMINGS, DOING SO WOULD DEFEAT THE PURPOSE OF JUSTICE AND FAIR PLAY. OBJECTION THAT THE ASSESSEE DID NOT REQUEST FOR MAKING REFERENCE TO THE VALUATION CELL, SUFFICE WOULD BE 23 ITA NO. 6174/MUM/2017 ( A.Y: 2014 - 15) SHRI MOHD. ILYAS ANSARI TO OBSERVE THAT ASSESSEE HAS NO OBLIGATION TO INS TRUCT THE AO T O FOLLOW THE LAW. 15. DECIDING SIMILAR ISSUE, ITAT, HYDERABAD IN THE CASE OF ACIT V. LALITHA KARAN, ITA NO. 1130/HYD/2015, ORDER DATED 04/01/2017 (COPY PLACED IN ASSESSEES COMPILATION ON PGS. 7 15) HAS OBSERVED IN PARA 7.1 WHEN DEEMING PROVISION WAS TO BE INVOKED, THE SAME HAS TO BE CONSTRUED STRICTLY AND IT HAS TO BE TAKEN TO ITS LOGICAL CONCLUSION I.E. UPON NOT FOLLOWING THE PROPER PROCEDURE PRESCRIBED THEREIN, PARTICULARLY, IN THE BACKDROP OF THE FACT THAT THE ASSESSEE HAS PRIMA - FACIA SHOWN THAT IT WAS A TENANTED PROPERTY AND, THEREFORE, SUBJECT TO CERTAIN ENCUMBRANCES AND ALSO THE FACT THE IN THE ABSENCE OF OBTAINING A DVOS REPORT, ASSSESSEE CANNOT BE PUT TO THE TROUBLE OF FACING A VIRTUAL TRIAL EVEN AFTER FIVE YEARS OF APPEARING BEFORE AO/DVO AT THIS STAGE TO PROVE THE SALE PRICE DECLARED BY HER IS REASONABLE. 16. IN THE CASE OF ACIT VS ANIMA INVESTMENT LTD [ 73 ITD 0125] THIRD MEMBER, ITAT, DELHI OBSERVED IN PARA 13 OF THE ORDER AS UNDER THE POWERS OF THE TRIBUNAL IN THE MATTER OF SETTING ASID E AN ASSESSMENT ARE LARGE AND WIDE, BUT THESE CANNOT BE EXERCISED TO ALLOW THE AO AN OPPORTUNITY TO PATCH UP THE WEAK PART OF HIS CASE AND TO FILL UP THE OMISSION. IN MY OPINION, A PARTY GUILTY OF REMISSNESS AND GROSS NEGLIGENCE IS NOT ENTITLED TO INDULGEN CE BEING SHOWN. IN THIS CONTEXT, I WOULD LIKE TO MAKE A REFERENCE TO A DECISION OF THE CHENNAI BENCH OF THE TRIBUNAL IN THE CASE OF TATIA SKYLINE & HEALTH FARMS LTD. VS. ASSTT. CIT (2000) 66 TTJ (CHENNAI) 203 : (1999) 70 ITD 387 (CHENNAI). IN THIS DECISION , ON THE ASSESSEES REQUEST THAT THE CASE BE SENT BACK TO THE AO FOR ANOTHER ROUND OF ENQUIRY AND FRESH ASSESSMENT IN ACCORDANCE WITH LAW. THE BENCH, REJECTING THE ASSESSEES REQUEST HAS HELD THAT THE REMAND ORDER SHOULD BE MADE IN VERY RARE AND EXCEPTIONA L CASE, FOR EXAMPLE, IF AT ORIGINAL STAGE, PATENTLY GRAVE ERROR WAS COMMITTED BY THE ORIGINAL AUTHORITY OR THAT THE ORDER WAS MADE IN HASTE OWNING TO THE LIMITATION OR THAT THE FIRST APPELLATE AUTHORITY HAD VIOLATED THE RULES OF NATURAL JUSTICE. NOTHING LI KE THIS HAS HAPPENED ON THE PRESENT CASE. THE BENCH HAS FURTHER OBSERVED THAT THE COURTS HAVE ALSO CAUTIONED THE APPELLATE AUTHORITIES BY HOLDING THAT REMAND SHOULD BE MADE ONLY IN 24 ITA NO. 6174/MUM/2017 ( A.Y: 2014 - 15) SHRI MOHD. ILYAS ANSARI THOSE CASES WHERE THE ORIGINAL AUTHORITIES HAVE NOT PASSED ORDERS IN ACCORD ANCE WITH LAW BUT IN NO CASE, REMAND SHOULD BE MADE ONLY IN THOSE CASES WHERE THE ORIGINAL AUTHORITIES HAVE NOT PASSED ORDERS IN ACCORDANCE WITH LAW BUT IN NO CASE, REMAND SHOULD BE MADE TO ENABLE AN ASSESSEE TO FILL IN THE BLANKS OR LACUNA IN THE CASE WHI CH REMAINS PRESENT. WHAT APPLIES TO THE ASSESSEE, WOULD EQUALLY APPLY TO THE AO. LIKEWISE, IN THE CASE OF SMT. NEENASYAL VS. ASSTT. CIT (1999) 70 ITD 62 (CHD.), THE CHANDIGARH BENCH OF THE TRIBUNAL HAS OBSERVED THAT IT IS NOT THE FUNCTION OF THE TRIBUNAL T O ALLOW FURTHER OPPORTUNITY TO THE AO TO COVER UP LEGAL LAPSES MADE BY HIM, BY RESTORING THE MATTER BACK TO HIS FILE. THEREFORE, REMAND/SETTING ASIDE ORDER COULD NOT BE MADE IN THIS CASE TO ENABLE THE AO TO MAKE UP HIS EARLIER DEFICIENT WORK BY INITIATING ASSESSMENT PROCEEDINGS FOR THE THIRD TIME AFTER A LAPSE OF CONSIDERABLE TIME. 17. IN THE CASE OF RAJ KUMAR JAIN, REPORTED AS 50 ITD 0001 (ITAT, ALLAHABAD), CH. G. KRISHNAMURTHY, THE THEN PRESIDENT OF ITAT, AS A THIRD MEMBER ALSO OBSERVED IN PARA 5 AS FO LLOWS THE TRIBUNAL ACTING AS AN APPELLATE AUTHORITY HAS TO SEE WHETHER THE ASSESSMENT FRAMED BY THE ASSESSING OFFICER AND WHETHER THE APPELLATE ORDER APPEALED AGAINST WAS ACCORDING TO LAW AND PROPERLY FRAMED ON FACTS AND WHETHER THERE WAS SUFFICIENT MA TERIAL TO SUPPORT IT. WHEN THERE IS NO MATERIAL TO SUPPORT IT AND WHEN AS OBSERVED BY THE LEARNED ACCOUNTANT MEMBER THE ADDITIONS MADE BY THE ASSESSING OFFICER COULD NOT BE SUSTAINED, IT IS NOT FOR THE TRIBUNAL TO START INVESTIGATIONS SUO - MOTO AND SUPPLY T HE EVIDENCE FOR THE DEPARTMENT. IF THE ADDITIONS ARE NOT SUPPORTED BY EVIDENCE, THE ONLY COURSE OPEN TO THE TRIBUNAL IS TO DELETE THE ADDITIONS POINTING OUT HOW THE ADDITIONS MADE COULD NOT BE SUSTAINED FOR WANT OF ADEQUATE SUPPORTING MATERIAL. IT IS FOR T HE DEPARTMENT TO GATHER THE MATERIAL AND MAKE PROPER ASSESSMENTS AND THE TRIBUNAL IS NOT IN THAT FASHION AN IT AUTHORITY. UNDER THE IT AUTHORITIES STIPULATED UNDER THE IT ACT, THE TRIBUNAL IS NOT ONE OF THEM. IT IS PURELY AN APPELLATE AUTHORITY. THEREFORE, THE OBJECT OF THE APPEAL BEFORE THE TRIBUNAL IS WHETHER THE ADDITION OR DISALLOWANCE SUSTAINED WAS IN ACCORDANCE WITH LAW AND SUPPORTED BY MATERIAL. IF 25 ITA NO. 6174/MUM/2017 ( A.Y: 2014 - 15) SHRI MOHD. ILYAS ANSARI THERE IS NO SUFFICIENT MATERIAL, THE ADDITION MUST BE DELETED. THE TRIBUNAL CANNOT ORDER FURTHER ENQUIR Y WITH A VIEW TO SUSTAIN THE ADDITION. THIS WILL AMOUNT TO TAKING SIDES WITH THE PARTIES WHICH IS NOT THE FUNCTION OF A JUDICIAL AUTHORITY LIKE THE TRIBUNAL. 18. THE HONBLE SUPREME COURT ALSO IN THE CASE OF PARUSRAM POTTERY WORKS CO. LTD VS. ITO, 106 ITR 0001 (SC)] OBSERVED AS FOLLOWS IT HAS BEEN SAID THAT THE TAXES ARE THE PRICE THAT WE PAY FOR CIVILIZATION. IF SO, IT IS ESSENTIAL THAT THOSE WHO ARE ENTRUSTED WITH THE TASK OF CALCULATING AND REALISING THAT PRICE SHOULD FAMILIARISE THEMSELVES WITH T HE RELEVANT PROVISIONS AND BECOME WELLVERSED WITH THE LAW ON THE SUBJECT. ANY REMISSNESS ON THEIR PART CAN ONLY BE AT THE COST OF THE NATIONAL EXCHEQUER AND MUST NECESSARILY RESULT IN LOSS OF REVENUE. AT THE SAME TIME, WE HAVE TO BEAR IN MIND THAT THE POLI CY OF LAW IS THAT THERE MUST BE A POINT OF FINALITY IN ALL LEGAL PROCEEDINGS, THAT STALE ISSUES SHOULD NOT BE REACTIVATED BEYOND A PARTICULAR STAGE AND THAT LAPSE OF TIME MUST INDUCE REPOSE IN AND SET AT REST JUDICIAL AND QUASI - JUDICIAL CONTROVERSIES AS IT MUST IN OTHER SPHERES OF HUMAN ACTIVITY. (EMPHASIS SUPPLIED) 19. THE COORDINATE BENCH IN THE CASE OF DR. SANJAY CHOBEY (HUF) VS ACIT, CIRCLE 2(3), JHANSI, ITA NO 140/AGR /2018 (ORDER DATED 02/07/2018), IN ALMOST SIMILAR FACTS ALLOWED THE ASSESSEES APPEAL OBSERVING, VIDE PARA 14, AS UNDER THE LOWER AUTHORITIES PASSED THE ORDER IN SUMMERY MANNER WITHOUT GOING INTO THE MERITS OF THE CASE AND ANALYZING THE LEGAL ISSUE INV OLVED, THE APPLICABILITY OF SECTION 50C(2)(A) OF THE ACT, IN A PARTICULAR. WE FURTHER FIND THAT THE AO HAS NOT FOUND ANY ADVERSE MATERIAL EVIDENCE TO INDICATE THAT THE ASSESSEE HAS RECEIVED ANY EXCESS MONEY OVER AND ABOVE THE SALE CONSIDERATION, IN THE RET URN OF INCOME. IN LIGHT OF THE PECULIAR FACTS OF THIS CASE AND IN THE ABSENCE OF THE DVO REPORT, WE ARE OF THE CONSIDERED OPINION THAT THE ASSESSEE CANNOT PUT TO TRAVEL UP FACING VIRTUAL TRIAL TO APPEAR BEFORE THE AO AFTER THREE YEARS TO PROVE THAT THE SAL E CONSIDERATION DECLARED BY HIM WAS REASONABLE. 26 ITA NO. 6174/MUM/2017 ( A.Y: 2014 - 15) SHRI MOHD. ILYAS ANSARI 20. IN THE PRESENT CASE, IT IS NOTED THAT NEITHER THE ASSESSING OFFICER NOR THE LD. CIT(A) APPRECIATED THE CONTENTIONS RAISED BY THE ASSESSEE WHILE ADOPTING THE THE STAMP DUTY VALUE AS FAIR MARKET VALUE OF THE PROPERTY PURCHASED NOR REFERRED THE MATTER TO THE DVO AS WAS REQUIRED U/S 50C(2) OF THE ACT. THE AO HAS ALSO NOT FOUND OR ALLEGED WITH ANY CORROBORATIVE MATERIAL EVIDENCE THAT THE ASSESSEE HAS PAID ANY EXCESS AMOUNT OVER THE SALE CONSIDERATION MENTIONE D IN THE SALE DEED. 21. CONSIDERING THE FACTUAL MATRIX AND BINDING LEGAL DECISIONS, THE FINDINGS OF LD. THE CIT(A) IN CONFIRMING THE ADDITION MADE BY THE AO CAN NOT BE APPROVED. IN OUR CONSIDERED ONION, THE DEPARTMENT CANNOT BE ALLOWED A SECOND INNING, BY SENDING THE MATTER BACK TO AO, ENABLING IT TO FILL THE LACUNAE AND SHORTCOMINGS AND PUTTING THE ASSESSEE VIRTUALLY TO FACE A RE - TRIAL FOR NO FAULT OF HIM AND TO AGAIN PROVE BEFORE THE AO THAT THE SALE CONSIDERATION WAS THE FAIR MARKET VALUE OF THE PROPER TY PURCHASED BY HIM. THIS WOULD AMOUNT TO GIVING A LEASE OF LIFE TO AN ORDER WHICH ON THE BASIS OF FACTS ON R ECORDS IS UNSUSTAINABLE IN LAW. 26. SIMILARLY, IN THE CASE OF SH. DEV BRAT SHARMA V. ITO , THE AMR ITSAR BENCH OF THE TRIBUNAL CAMPING AT JALANDHAR IN ITA.NO. 493/ASR/2018 DATED 17.01.2019 ALSO CONSIDERED IDENTICAL SITUATION AND DELETED THE ADDITION MADE BY THE ASSESSING OFFICER OBSERVING AS UNDER : - 8. WE HAVE HEARD THE AUTHORIZED REPRESENTATIVES FOR BOTH THE PARTIES, PERUSED THE ORDERS OF THE LOW ER AUTHORITIES AND THE MATERIAL AVAILABLE ON THE RECORD. ADMITTEDLY, THE ASSESSEE HAD SOLD THE PROPERTY UNDER CONSIDERATION FOR RS. 28 LAC. INSOFAR, THE CIRCLE VALUE/SEGMENT RATE OF THE PROPERTY UNDER CONSIDERATION IS CONCERNED, THE SAME WAS RS. 1 CRORE AN D STAMP DUTY WAS PAID ON THE SAID VALUE. IN THE RETURN OF INCOME FOR THE YEAR UNDER CONSIDERATION, THE ASSESSEE AFTER SPECIFICALLY REFERRING TO THE CIRCLE VALUE/SEGMENT RATE OF THE PROPERTY, HAD HOWEVER ADOPTED THE ACTUAL SALE CONSIDERATION OF RS. 28 LAC FOR THE PURPOSE OF COMPUTING THE LTCG ON THE SALE OF THE SAME. APART THEREFROM, WE FIND FROM A PERUSAL OF THE ORDERS OF THE LOWER AUTHORITIES THAT THE ASSESSEE AFTER REFERRING TO THE LOCATIONAL DISADVANTAGES OF THE PROPERTY UNDER 27 ITA NO. 6174/MUM/2017 ( A.Y: 2014 - 15) SHRI MOHD. ILYAS ANSARI CONSIDERATION, HAD IN THE COURSE OF THE ASSESSMENT PROCEEDINGS OBJECTED TO THE PROPOSED ADOPTION OF THE CIRCLE VALUE/SEGMENT RATE BY THE A.O AS THE DEEMED SALE CONSIDERATION FOR THE PURPOSE OF COMPUTING THE LTCG ON THE SALE OF THE SAME. RATHER, AS A MATTER OF FACT, DOCUMENTARY E VIDENCE IN THE SHAPE OF DRAWINGS OF THE PLOT AND PHOTOGRAPHS OF THE PROPERTY WERE PLACED ON THE RECORD BY THE ASSESSEE IN ORDER TO FORTIFY HIS CLAIM THAT THE PROPERTY UNDER CONSIDERATION WAS DISADVANTAGEOUSLY LOCATED. BE THAT AS IT MAY, IT REMAINS AS A MAT TER OF FACT BORNE FROM THE RECORDS THAT THE ASSESSEE HAD CLAIMED BEFORE THE A.O THAT THE VALUE ADOPTED BY THE STAMP VALUATION AUTHORITY EXCEEDED THE FAIR MARKET VALUE OF THE PROPERTY UNDER CONSIDERATION. HOWEVER, WE FIND THAT THE OBJECTION RAISED BY THE AS SESSEE TO THE PROPOSED ADOPTION OF THE CIRCLE VALUE/SEGMENT RATE BY THE A.O FOR THE PURPOSE OF COMPUTING THE LTCG ON THE SALE OF THE PROPERTY WAS HOWEVER BYPASSED BY THE A.O, WHO REWORKED THE LTCG BY ADOPTING THE CIRCLE VALUE/SEGMENT RATE AS THE DEEMED SA LE CONSIDERATION. 9. AS PER THE MANDATE OF CLAUSE (A) OF SUB - SECTION (2) TO SECTION 50C, IN CASE AN ASSESSEE CLAIMS BEFORE THE A.O. THAT THE VALUE ADOPTED BY THE STAMP VALUATION AUTHORITY EXCEEDS THE FAIR MARKET VALUE OF THE PROPERTY, THEN IT IS OBLIGATO RY FOR THE A.O TO REFER THE MATTER TO A VALUATION OFFICER FOR ASCERTAINING THE SAME. HOWEVER, IN THE CASE BEFORE US, WE FIND THAT THE A.O DESPITE A SPECIFIC OBJECTION TO THE SAID EFFECT HAVING BEEN RAISED BY THE ASSESSEE IN THE COURSE OF THE ASSESSMENT PRO CEEDINGS, HOWEVER DISPENSED WITH THE SAID STATUTORY OBLIGATION AND FAILED TO REFER THE VALUATION OF THE PROPERTY UNDER CONSIDERATION TO THE VALUATION OFFICER. IN OUR CONSIDERED VIEW, THE AFORESAID METHODOLOGY ADOPTED BY THE A.O FOR REWORKING THE LTCG NOT B EING IN ACCORD WITH THE MANDATE OF LAW, THUS CANNOT BE SUBSCRIBED TO ON OUR PART. WE FIND THAT A SIMILAR ISSUE HAD CAME UP BEFORE A COORDINATE BENCH OF THE TRIBUNAL VIZ., ITAT A BENCH, DELHI IN THE CASE OF ITO, WARD2(1), MORADABAD VS. M/S ADITYA NARAYAN VERMA (HUF) [ITA N. 4166/DEL/2013; DATED 07.06.2017]. AS OBSERVED BY US HEREINABOVE, IN THE SAID CASE, THE TRIBUNAL HAD AFTER DELIBERATING AT LENGTH ON THE SCOPE AND GAMUT OF SECTION 50C(2) HAD UPHELD THE ORDER OF THE CIT(A) AND CONCLUDED THAT IF THE A.O D ESPITE SPECIFIC OBJECTION RAISED BY THE ASSESSEE THAT THE VALUE ADOPTED OR ASSESSED BY THE STAMP VALUATION AUTHORITY UNDER SUB - SECTION (1) EXCEEDED THE FAIR MARKET VALUE OF THE PROPERTY AS ON THE DATE OF TRANSFER, HOWEVER FAILS TO REFER THE MATTER FOR VA LUATION TO THE 28 ITA NO. 6174/MUM/2017 ( A.Y: 2014 - 15) SHRI MOHD. ILYAS ANSARI VALUATION OFFICER, THEN THE ORDER OF THE A.O WOULD BE INVALID TO THE SAID EXTENT. THE TRIBUNAL WHILE CONCLUDING AS HEREINABOVE HAD OBSERVED AS UNDER: 4.1 ON THE VERY PERUSAL OF THE PROVISIONS LAID DOWN UNDER SECTION 50C OF THE ACT REPRODUCE D HEREINABOVE, WE FULLY CONCUR WITH THE FINDING OF THE ID. CIT (APPEALS) THAT WHEN THE ASSESSEE IN THE PRESENT CASE HAD CLAIMED BEFORE ASSESSING OFFICER THAT THE VALUE ADOPTED OR ASSESSED BY THE STAMP VALUATION AUTHORITY UNDER SUB SECTION (1) EXCEEDS THE F AIR MARKET VALUE OF THE PROPERTY AS ON THE DATE OF TRANSFER, THE ASSESSING OFFICER SHOULD HAVE REFERRED THE VALUATION OF THE CAPITAL ASSET TO A VALUATION OFFICER INSTEAD OF ADOPTING THE VALUE TAKEN BY THE STATE AUTHORITY FOR THE PURPOSE OF STAMP DUTY. THE VERY PURPOSE OF THE LEGISLATURE BEHIND THE PROVISIONS LAID DOWN UNDER SUB SECTION (2) TO SECTION 50C OF THE ACT IS THAT A VALUATION OFFICER IS AN EXPERT OF THE SUBJECT FOR SUCH VALUATION AND IS CERTAINLY IN A BETTER POSITION THAN THE ASSESSING OFFICER TO D ETERMINE THE VALUATION. THUS, NON - COMPLIANCE OF THE PROVISIONS LAID DOWN UNDER SUB SECTION (2) BY THE ASSESSING OFFICER CANNOT BE HELD VALID AND JUSTIFIED. THE HONBLE JURISDICTIONAL HIGH COURT OF ALLAHABAD IN THE CASE OF SHASHI KANT GARG (SUPRA) HAS BEEN PLEASED TO HOLD THAT IT IS WELL SETTLED THAT IF UNDER THE PROVISIONS OF THE ACT AN AUTHORITY IS REQUIRED TO EXERCISE POWERS OR TO DO AN ACT IN A PARTICULAR MANNER, THEN THAT POWER HAS TO BE EXERCISED AND THE ACT HAS TO BE PERFORMED IN THAT MANNER ALONE AND NOT IN ANY OTHER MANNER. SIMILAR VIEW HAS BEEN EXPRESSED BY THE OTHER DECISIONS CITED BY THE LD. AR IN THIS REGARD HEREINABOVE. THE FIRST APPELLATE ORDER ON THE ISSUE IS THUS UPHELD. WE HAVE GIVEN A THOUGHTFUL CONSIDERATION AND CONCUR WITH THE AFORESAID VIEW SO TAKEN BY THE TRIBUNAL. IN OUR CONSIDERED VIEW, NOW WHEN THE A.O DESPITE SPECIFIC OBJECTION RAISED BY THE ASSESSEE THAT THE VALUE ADOPTED BY THE STAMP VALUATION AUTHORITY EXCEEDED THE FAIR MARKET VALUE OF THE PROPERTY UNDER CONSIDERATION, HAD HOWEVE R FAILED TO REFER THE MATTER TO THE VALUATION OFFICER FOR ASCERTAINING THE SAME, THEREFORE, THE REWORKING OF THE LTCG BY HIM NOT BEING IN CONFORMITY WITH THE MANDATE OF LAW CANNOT BE ACCEPTED. WE THUS ARE OF A STRONG CONVICTION THAT AS THE VERY MANDATE OF LAW PRESCRIBED UNDER THE STATUTE HAD WHIMSICALLY BEEN BYPASSED BY THE A.O, THEREFORE, THE CONSEQUENTIAL ADDITION OF RS. 72,00,000/ - MADE BY HIM ON THE BASIS OF THE IMPUGNED REWORKING OF THE CAPITAL GAINS CANNOT BE SUSTAINED, AND DESERVES TO BE DELETED. 29 ITA NO. 6174/MUM/2017 ( A.Y: 2014 - 15) SHRI MOHD. ILYAS ANSARI 27. IN THE CASE BEFORE US ALSO THE ASSESSING OFFICER COMPLETELY IGNORE D THE VALUATION REPORT OF THE GOVERNMENT REGISTERED VALUER SUBMITTED BY THE ASSESSEE AND THE SUBMISSIONS THEREON. THE ASSESSING OFFICER MECHANICALLY APPLIED PROVISIONS OF SECTION 56(2) OF THE ACT TO BRING THE DIFFERENCE BETWEEN THE STAMP DUTY VALUE AND THE ACTUAL SALE CONSIDERATION PAID BY THE ASSESSEE WITHOUT MAKING ANY EFFORTS TO FIND OUT THE ACTUAL COST OF THE PROPERTY WHEN IN FACT THE ASSESSEE STATED THAT THE PROPERTY WHEN PURCHASED WAS UN DER SEMI CONSTRUCTION STAGE AND THERE WERE DISPUTES BE TWEEN BUILDERS AND THE PURCHASERS AND ULTIMATELY THE BUILDER WAS ABANDONED THE PROJECT AND LEFT. THE ASSESSEE ALSO STATED THAT WHAT WAS PURCHASED AS PER THE AGREEMENT IS DIFFERENT THAN WHAT WAS GIVEN T O HIM AS THE PROPERTY WAS SOLD TO TWO PERSONS. SO THERE IS DISPUTE IN THE AREA ACQUIRED BY THE ASSESSEE ALSO. IN SUCH CIRCUMSTANCES , IT WAS ALL THE MORE NECESSARY FOR THE ASSESSING OFFICER TO REFER IT TO THE VALUATION OFFICER WHICH HE MISERABLY FAILED. EVEN AT THE STAGE OF APPELLATE PROCEEDINGS WHEN THE ASSESSEE PRODUCED VALUATION OFFICERS REPORT WHO VALUED FLAT NO. 601 IN THE VERY SAME BUILDING AT . 1,00,76,000/ - THE LD.CIT(A) SHOULD HAVE CALLED FOR REMAND REPORT AND IN TURN THE VALUATION OFFICERS REP ORT WHICH THE LD.CIT(A) FAILED TO DO SO. IN SUCH CIRCUMSTANCES THE ADDITION MADE BY THE ASSESSING OFFICER IS TOTALLY UNJUSTIFIED AND CANNOT BE 30 ITA NO. 6174/MUM/2017 ( A.Y: 2014 - 15) SHRI MOHD. ILYAS ANSARI SUSTAINED . WE ARE ALSO OF THE OPINION THAT THE REVENUE CANNOT BE ALLOWED A SECOND INNING BY SENDING THE MATTER BACK TO THE ASSESSING OFFICER TO PROVE BEFORE THE ASSESSING OFFICER THAT THE SALE CONSIDERATION WAS THE FAIR MARKET VALUE OF THE PROPERTY PURCHASED BY THE ASSESSEE WHEN THE ASSESSEE WAS ALL ALONG DISPUTING VALUATION OF THE PROPERTY AND THE REVENUE MISERABL Y FAILED TO FIND OUT THE CORRECT VALUE OF THE PROPERTY BOTH AT ASSESSMENT STAGE AS WELL AS AT FIRST APPELLATE STAGE. THE DECISIONS REFERRED TO ABOVE SQUARELY APPLIES TO THE FACTS OF THE ASSESSEES CASE . THUS IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND ALSO IN VIEW OF THE ABOVE JUDICIAL PRONOUNCEMENTS WE DIRECT THE ASSESSING OFFICER TO DELETE THE ADDITION MADE U/S. 56(2) OF THE ACT. GROUND NO.2 OF GROUNDS OF APPEAL IS ALLOWED. 28. LD. COUNSEL FOR THE ASSESSEE ALSO MADE SUBMISSIONS WITH REGARD TO ADDITIONAL GROUND RAISED I.E PROVISIONS OF SECTION 56(2)(VII)(B) DOES NOT APPLY TO THE PROPERTY WHICH IS STILL UNDER CONSTRUCTION AND MADE ELABORATE SUBMISSIONS ON THIS. THE LD. COUNSEL FOR THE ASSESSEE ALSO MADE SUBMISSIONS THAT THE ADDITION WAS ENTIRELY MADE IN T HE HANDS OF THE ASSESSEE THOUGH THE FLAT WAS PURCHASED BY THE ASSESSEE JOINTLY WITH HIS WIFE. IT IS ALSO ARGUED THAT THE LD.CIT(A) ERRED IN TAKING AREA OF THE FLAT AT HIGHER FIGURE THAN THE ACTUAL AREA OF THE FLAT IN POSSESSION . SINCE WE 31 ITA NO. 6174/MUM/2017 ( A.Y: 2014 - 15) SHRI MOHD. ILYAS ANSARI HAVE ALLOWED GRO UND NO. 2 OF GROUNDS OF APPEAL OF THE ASSESSEE AND DELETED THE ADDITION MADE U/S. 56(2)(VII) ALL OTHER CONTENTIONS RAISED IN OTHER GROUNDS OF APPEAL INCLUDING THE ADDITIONAL GROUND ARE LEFT OPEN AS THE ADJUDICATION OF ALL THESE GROUNDS WOULD RENDER ACADEMI C AT THIS STAGE. THE ASSESSEE IS AT LIBERTY TO AGITATE ALL THESE G ROUNDS AT AN APPROPRIATE STAGE. 29. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED AS INDICATED ABOVE. ORDER PRONOUNCED ON 06 . 1 1 .2020 AS PER RULE 34(4) OF ITAT RULES BY PLACING THE PRONOUNCEMENT LIST IN THE NOTICE BOARD. SD/ - SD/ - ( S. RIFAUR RAHMAN ) (C.N. PRASAD) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI / DATED 06 / 11 / 2020 GIRIDHAR, SR.PS COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT. 3. THE CIT(A), MUMBAI. 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. //TRUE COPY// BY ORDER (ASSTT. REGISTRAR) ITAT, MUM