Debopriyo Sarkar, Hooghly V. ITO,Ward-1(3), Siliguri, Darjeeling

ITA 855/KOL/2012

• Counselvise Citation: [2012] 119 COUNSELVISE.COM (IT) 7911 (ITAT-KOLKATA)
• Duration Of Justice: 2 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-08-2012
• Appeal Filed By: Assessee
• Bench Allotted: A
• Assessment Year: 2008-2009
• Appeal Filed On: 29-05-2012
• Court: TRIBUNAL
• Department Lawyers: K K DAS
• Keywords: Fair market value; Valuation report; Onus to prove
• Section: 143(3)

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH: KOL KATA () BEFORE , /AND ! ! ! ! , '# ) [BEFORE SHRI MAHAVIR SINGH, JM & SHRI SANJAY ARORA, AM] $ $ $ $ / I.T.A NO. 855/KOL/2012 %& '( %& '( %& '( %& '(/ // / ASSESSMENT YEAR : 2008-09 DEBOPRIYO SARKAR VS. INCOME-TAX OFFICER, WD-1( 3), SILIGURI (PAN: APYPS3736C) (*+ /APPELLANT ) (,-*+/ RESPONDENT ) FOR THE APPELLANT: SHRI SOMNATH GHOSH FOR THE RESPONDENT: SHRI K. K. DAS DATE OF HEARING: 08.08.2012 DATE OF PRONOUNCEMENT: 09.08.2012 '. / ORDER PER MAHAVIR SINGH, JM ( , , , , ) THIS APPEAL BY ASSESSEE IS ARISING OUT OF ORDER OF CIT(A), SILIGURI IN APPEAL NO. 55/CIT(A)/SLG/10-11 DATED 22.03.2012. ASSESSMENT WA S FRAMED BY ITO, WARD-1(3), SILIGURI U/S. 143(3) OF THE INCOME TAX ACT, 1961 (HEREINAFTE R REFERRED TO AS THE ACT) FOR ASSESSMENT YEARS 2008-09 AND 2009-10 VIDE HIS ORDER DATED 15.1 2.2010. 2. THE ONLY ISSUE IN THIS APPEAL OF ASSESSEE IS AG AINST THE ORDER OF CIT(A) CONFIRMING THE ADDITION OF EXCESS INVESTMENT U/S. 69B OF THE ACT. FOR THIS ASSESSEE HAS RAISED FOLLOWING THREE GROUNDS: 1. FOR THAT THE LD. COMMISSIONER OF INCOME TAX (A PPEALS) SILIGURI FAILED TO APPRECIATE THAT NONE OF THE CONDITIONS PRECEDENT FO R THE ASSUMPTION OF JURISDICTION U/S. 69B OF THE INCOME TAX ACT, 1961 EXISTED AND/OR HAS BEEN COMPLIED WITH AND/OR FULFILLED IN THE INSTANT CASE BY THE LD. INCOME TAX OFFICER, WARD 1(3), SILIGURI AND THE IMPUGNED ADDITION SUSTANED ON THAT ACCOUNT IN THE SUM OF RS . 3,71,250/- WITHOUT ESTABLISHING ANY INFRINGEMENT ON THAT BEHALF IS AB INITIO VOID, ULTR A VIRES AND EX..FACIENULL IN LAW. 2. FOR THAT ON THE FACTS AND IN THE CIRCUMSTANCES O F THE INSTANT CASE, THE LD. COMMISSIONER OF INCOME TAX (APPEALS) SILIGURI ACTED UNLAWFULLY IN UPHOLDING THE ADDITION IN THE SUM OF RS. 3,71,250/- MADE BY THE L D. INCOME TAX OFFICER, WARD 1(3), SILIGURI WRONGLY INVOKING THE PROVISION OF S. 69B O F THE INCOME TAX ACT, 1 96 1 AND WITHOUT CONSIDERING THE IMMACULATE EVIDENCE ADDUCED ON RECORD AND HIS IMPUGNED FINDINGS ON THAT BEHALF ARE ALTOGETHER ARBITRARY, U NREASONABLE AND PERVERSE. 2 ITA 855/K/2012 DEBOPRIYO SARKAR A.Y. 08-09 3. FOR THAT THE LD. COMMISSIONER OF INCOME TAX (APP EALS) SILIGURI ERRED IN NOT JUDICIOUSLY CONSIDERING THE ABSOLUTE RELIANCE OF TH E D.V.O. UPON THE VALUATION REACHED BY THE SUB-REGISTRAR, FOR THE PURPOSES OF INDIAN RE GISTRATION ACT, 1908, IN HIS REPORT WITHOUT INDEPENDENTLY DECIDNG THE MATTER ON APPROP RIATE PARAMETERS THUS DEPRIVING HS ASSESSMENT OF ANY SANCTITY IN THIS RESPECT AND HIS IMPUGNED ACTION UPHOLDING THE FINDINGS OF THE LD. INCOME TAX OFFICER, WARD 1(3). SI1IIIRI, OF INVOKING THE PROVISION OF S. 69B OF THE INCOME TAX ACT, 1961 SOLELY AND EXCLU SIVELY RELYING ON THE SPECIOUS VALUATION REPORT OBTAINED U/S. 142A OF THE ACT FOR HIS ALLEGED DECISION IN THE FACTS AND CIRCUMSTANCES OF THE CASE, IS WHOLLY CAPRICIOUS, ER RONEOUS, FLAWED, INVALID, UNFOUNDED AND OPPOSED TO THE SETTLED POSITION OF LAW. 3. WE HAVE HEARD RIVAL SUBMISSIONS AND GONE THROUGH FACTS AND CIRCUMSTANCES OF THE CASE. BRIEF FACTS ARE THAT THE ASSESSEE DURING THE YEAR U NDER CONSIDERATION HAD PURCHASED A SHOP AT S. S. MARKET COMPLEX AND DISCLOSED INVESTMENT AT RS.3. 60 LACS. THE AO DURING THE COURSE OF ASSESSMENT PROCEEDINGS MADE REFERENCE TO THE VALUAT ION CELL TO ASCERTAIN THE ACTUAL INVESTMENT AND REFERRED THE SAME FOR ASCERTAINING THE FAIR MAR KET VALUE OF THE PROPERTY TO THE VALUATION OFFICER. THE VALUATION OFFICER DETERMINED THE FAIR MARKET VALUE OF PROPERTY AT RS.7,01,250/- AND ON THAT BASIS, THE AO MADE ADDITION OF RS.3,71, 250/-. AGGRIEVED, ASSESSEE PREFERRED APPEAL BEFORE CIT(A) AND THE FIRST OBJECTION OF THE ASSESS EE IS AS REGARDS TO JURISDICTION OF MAKING ADDITION U/S. 69B OF THE ACT. ACCORDING TO ASSESEE , THE VALUATION OFFICER ESTIMATED THE VALUE AND MERELY ON THE VALUATION REPORT NO ADDITION CAN BE MADE BY INVOKING THE PROVISIONS OF SECTION 69B OF THE ACT. THE CIT(A) HAS NOT ACCEPTE D THE EXPLANATION OF THE ASSESSEE AND CONFIRMED THE ADDITION. AGGRIEVED, NOW ASSESSEE IS IN APPEAL BEFORE US. 4. WE FIND THAT THE FACTS ARE UNDISPUTED AS NARRATE D ABOVE THAT THE ASSESSEE HAS PURCHASED ONE SHOP IN S. S. MARKET COMPLEX AT AN INVESTMENT V ALUE OF RS.3.60 LACS. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, AO REFERRED THE SAME TO VAL UATION OFFICER FOR DETERMINING THE FAIR MARKET VALUE AND HE IN TURN DETERMINED THE VALUE OF SHOP AT RS.7,01,250/-. BOTH THE AUTHORITIES BELOW INVOKING THE PROVISIONS OF SECTION 69B OF THE ACT MADE ADDITION. THERE IS NO OTHER EVIDENCE BEFORE THE LOWER AUTHAORITIES THAT THE ASS ESSEE HAS PAID EXCESS AMOUNT. IN SUCH SITUATION, AS RELIED ON BY THE LD. COUNSEL FOR THE ASSESSEE THE CASE LAW OF HONBLE DELHI HIGH COURT IN THE CASE OF CIT VS. PUNEET SABHARWAL (2011 ) 338 ITR 485 (DEL), WHEREIN IT IS HELD THAT THE ASSESSING OFFICER HAD SOLELY RELIED UPON THE RE PORT OF THE DISTRICT VALUATION OFFICER. APART FROM THIS, THERE WAS NO EVIDENCE OR MATERIAL IN HIS POSSESSION TO COME TO THE CONCLUSION THAT THE ASSESSEE HAD PAID EXTRA CONSIDERATION OVER AND ABOVE WHAT WAS STATED IN THE SALE DEEDS. THE ADDITION TO INCOME WAS NOT JUSTIFIED. WE FIND THAT IN THE PRESENT CASE ALSO THERE IS ONLY DEPARTMENTAL VALUATION OFFICERS REPORT, WHICH IS THE BASIS OF EVIDENCE AND NO OTHER 3 ITA 855/K/2012 DEBOPRIYO SARKAR A.Y. 08-09 EVIDENCE TO SUBSTANTIATE THE REVENUES CLAIM. WE A RE OF THE VIEW THAT THE PRIMARY BURDEN OF PROOF OF UNDERSTATEMENT OR CONCEALMENT OF INCOME IS ON THE REVENUE AND IT IS ONLY WHEN SUCH BURDEN IS DISCHARGED THAT IT WOULD BE PERMISSIBLE T O RELY UPON THE VALUATION REPORT GIVEN BY THE VALUATION OFFICER. THE INFORMATION OF THE VALUATIO N OFFICER PER SE IS NOT AN INFORMATION AND CANNOT BE RELIED UPON WITHOUT REJECTION OF BOOKS OF ACCOUNT OR WITHOUT ANY CORROBORATIVE EVIDENCE. IN VIEW OF THESE FACTS, WE RESPECTFULLY FOLLOWING THE HONBLE DELHI HIGH COURTS DECISION IN THE CASE OF PUNEET SABHARWAL, SUPRA ALL OW THE APPEAL OF ASSESSEE. 5. IN THE RESULT, APPEAL OF ASSESSEE IS ALLOWED. 6. ORDER PRONOUNCED IN OPEN COURT ON 09.08.2012. SD/- SD/- ! ! ! ! , '# , (SANJAY ARORA) (MAHAVIR SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER ( /# /# /# /#) )) ) DATED: 9TH AUGUST, 2012 01 %2 3 JD.(SR.P.S.) '. 4 ,5 6'5'7- COPY OF THE ORDER FORWARDED TO: 1 . *+ / APPELLANT SHRI DEBOPRIYO SARKAR, C/O SHRI SOMNATH GHOSH, ADVOCATE, SEVEN BROTHERS LODGE, P.O. BUROSHIBTALA, CHINSURAH, DIST. HOOGHLY, PIN 712 105 2 ,-*+ / RESPONDENT ITO, WARD-1(3), SILIGURI 3 . .% ( )/ THE CIT(A), SILIGURI 4. .% / CIT, 5 . >? ,% / DR, KOLKATA BENCHES, KOLKATA -5 ,/ TRUE COPY, '.%@/ BY ORDER, /ASSTT. REGISTRAR .