ITO, New Delhi V. Sh. Pramod Jain, New Delhi

ITA 857/DEL/2010

• Counselvise Citation: 85720114 RSA 2010
• Duration Of Justice: 1 year(s) 6 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-09-2011
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: F
• Next Hearing Date: 15-09-2011
• Assessment Year: 2006-2007
• Appeal Filed On: 03-03-2010
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: SALIL MISHRA SENIOR
• Assessee Lawyers: GURJEET SINGH
• Keywords: Unexplained investment; Depreciation; Additional evidence; Question of law; Fair market value; Valuation report
• Section: 143(3)

Judgement Text

BEFORE THE INCOME TAX APPELLATE TRIBUNAL, DELHI BENCH F, NEW DELHI BEFORE SHRI C.L. SETHI, JUDICIAL MEMBER AND SHRI B.C. MEENA, ACCOUNTANT MEMBER ITA NO.857/DEL.2010 (ASSESSMENT YEAR : 2006-07) ITO, WARD 36 (1), VS. SHRI PRAMOD JAIN, NEW DELHI. 221, BANK ENCLAVE, LAXMI NAGAR, DELHI 110 092. (PAN NO.ACXPJ 0716 F) (APELLANT) (RESPONDENT) ASSESSEE BY : SHRI GURJEET SINGH, CA DEPARTMENT BY : SHRI SALIL MISHRA, SENIOR DR O R D E R PER B.C. MEENA, ACCOUNTANT MEMBER : THIS APPEAL FILED BY THE REVENUE ARISES OUT OF THE ORDER OF CIT (APPEALS)-XXVII, NEW DELHI DATED 25.11.2009 FOR THE ASSESSMENT YEAR 2006- 07. 2. THE ASSESSEE IS ENGAGED IN THE BUSINESS OF MANU FACTURING AND TRADING OF DAAL PIN THE NAME OF SHUBHAM FOOD INDUSTRIES. T HE ASSESSEE FILED THE RETURN DECLARING INCOME OF RS.1,61,112/- ON 17.10.2 006. THE ASSESSMENT U/S 143(3) OF THE INCOME-TAX ACT WAS MADE ON 19.12.2008 AT AN INCOME OF RS.16,94,196/-. THE GROUNDS OF APPEAL READ AS UNDE R :- ITA NO.857/DEL./2010 2 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT (A) HAS ERRED IN DELETING THE ADDITION OF RS.14,52, 300/- MADE U/S 68 OF THE I.T. ACT. 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT (A) HAS ERRED IN DELETING THE ADDITION OF RS.79,560 /- MADE ON ACCOUNT OF SHORT TERM CAPITAL GAIN. 3. THE APPELLANT CRAVES LEAVE FOR RESERVING THE RIG HT TO AMEND, MODIFY, ALTER, ADD OR FOREGO ANY GROUND(S) O F APPEAL AT ANY TIME BEFORE OR DURING THE HEARING OF THIS APPEA L. 3. IN THE GROUND NO.1, THE ISSUE INVOLVED IS AGAINS T THE DELETION OF ADDITION OF RS.14,52,300/- MADE U/S 69-B OF THE INCOME-TAX A CT AND THE GROUND NO.2 IS RELATING TO DELETION OF ADDITION OF RS.79,560/- MAD E ON ACCOUNT OF SHORT TERM CAPITAL GAIN. 4. DURING THE YEAR, THE ASSESSEE PURCHASED A HOUSE PROPERTY MEASURING 97 SQ.YARD LOCATED AT 265/14-A, ABADI MOHALLA RAM NAGA R, GANDHI NAGAR, VILLAGE SEELAMPUR, ILAKA SHAHDARA, DELHI. THE PROP ERTY WAS SHOWN AS PURCHASED FOR RS.2,80,000/- ON 06.04.2005 AND THE S AME WAS DECLARED TO BE SOLD AT RS.3,15,000/- ON 09.12.2005. THE PURCHASE AND SALE WAS DURING THE SAME PREVIOUS YEAR. ASSESSEE HAS DECLARED SHORT TE RM CAPITAL GAIN OF RS.35,000/- ON THIS TRANSACTION. THE AO REFERRED T HE PROPERTY FOR VALUATION. INITIALLY, THE VALUATION OFFICER VALUED THE PROPERT Y AT RS.20,13,000/- AS ON 06.04.2005 AND RS.21,13,200/- AS ON 09.12.2005. TH E ASSESSEE SUBMITTED THE OBJECTION TO THE VALUATION WHICH WAS FORWARDED BY T HE AO TO THE VALUATION OFFICER AND IN THE REVISED VALUATION, THE VALUE OF PROPERTY WAS VALUED AT ITA NO.857/DEL./2010 3 RS.17,32,300/- AS ON 06.04.2005 AND RS.18,11,864/- AS ON 09.12.2005. THE AO MADE THE ADDITION BY HOLDING AS UNDER :- 5.6 THE CONTENTION OF THE ASSESSEE AS MENTIONED AT THE PRECEDING PARA 5.5 HAS BEEN CONSIDERED. HOWEVER, TH E ARGUMENTS PUT FORWARD BY THE ASSESSEE ARE NOT AT AL L TENABLE. THE ISSUES RAISED BY THE ASSESSEE IN HIS FINAL SUBMISSI ON HAVE ALREADY BEEN RAISED BY HIM BEFORE THE AVO-I ON RECEIPT OF T HE ORIGINAL VALUATION REPORT. IN FACT, IT IS ONLY AFTER TAKING INTO CONSIDERATION THE ABOVE-REFERRED CONTENTION OF THE ASSESSEE THAT THE AVO-I HAS MODIFIED HIS ORIGINAL VALUATION REPORT, WHICH IS AM PLY CLEAR FROM THE PARA WISE REPORT OF THE AVO-I AS DISCUSSED AT P ARA 5.4. THE AVO- I HAS WORKED OUT THE VALUE OF THE PROPERTY AS PER PAR- 1992. HE HAS DISTINGUISHED HIS METHOD OF VALUATION FROM ADOPTION OF L&DO RATES VIDE POINT NO. 6 OF HIS REPO RT AS DISCUSSED AT PARA 5.4. THUS, NO FURTHER CONCESSION CAN BE GIVEN TO THE ASSESSEE ON THE ISSUES AS DISCUSSED IN THE P RECEDING PARAS. THEREFORE, THE DIFFERENCE BETWEEN THE VALUE OF PROP ERTY AS ESTIMATED BY THE AVO-I AS PER THE REVISED VALUATION REPORT (RS.17,32,300/-) AND THE VALUE AS DECLARED BY THE A SSESSEE (RS.2,80,000/-), WHICH COMES TO RS.14,52,300/- IS TREATED AS UNEXPLAINED INVESTMENT OF THE ASSESSEE U/S 69-B OF THE ACT, AND BROUGHT TO TAX AS 'INCOME FROM OTHER SOURCES'. PENALTY PROCEEDINGS U/S 271(1)(C) FOR CONCEALMENT OF INCOME ARE INITIATED SEPARATELY ON THIS ISSUE. 5.7 IN VIEW OF THE FACT THAT THE VALUE OF PROPERTY AS ON 09.12.2005, HAS BEEN ESTIMATED BY THE AVO-I AT RS.1 8,11,864/- AS AGAINST RS.3,15,000/- DECLARED BY THE ASSESSEE, AS THIS VALUE IS TAKEN AS THE SALES CONSIDERATION FOR STCG CALCULATI ON, WHILE THE PURCHASE PRICE IS ALSO RE-WORKED AT RS.17,32,300/- AS DISCUSSED AT THE PRECEDING PARA NO. 5.4. ACCORDINGLY, THE STC G IN THE CASE OF THE ASSESSEE IS RE-WORKED AT RS.79,564/-. THUS, THERE IS AN ADDITION OF RS.44,564/- ON THIS ACCOUNT. PENALTY PROCEEDINGS U/S 271(1)(C) FOR CONCEALMENT OF INCOME ARE INITIAT ED SEPARATELY ON THIS ISSUE. ITA NO.857/DEL./2010 4 5. THE CIT (A) GRANTED THE RELIEF BY HOLDING AS UND ER :- 6. DETERMINATION: ( GROUND NOS. 2 & 3) : HAVING CONSIDERED THE FACTS, EVIDENCES AND THE MAT ERIAL ON RECORD IT HAS BEEN FOUND THAT THE ID. ASSESSING OFFICER HAS RETURNED A FINDING OF FACT REGARDING FURNISHING OF ALL THE DESIRED DETAILS WHICH HAVE BEEN EXAMINED AND FOUND TO BE NOT TENABLE FOR THE FOLLOWING REASONS :- . 6.1. ON DATED 21.11.2008 A DETAILED REPLY FILED DUR ING THE ASSESSMENT PROCEEDINGS CATEGORICALLY STATES OF FILI NG THE REPLY EARLIER ON DT. 26.03.2008, 13.10.2008 FOR WHICH THE DEPARTMENTAL ACKNOWLEDGEMENT NUMBERS 27, 30 RESPECT IVELY HAVE BEEN BROUGHT TO THE NOTICE HENCE THE ASSESSEE HAS BEEN ATTENDING TO THE PROCEEDINGS THUS THE FINDING THAT THE ASSESSEE NON COOPERATIVE BY THE VALUATION OFFICER IS UNSUSTA INABLE. 6.2. FURTHER ON THE REMAND REPORT DT.16.03.2009 THE OBJECTION RAISED IS FAR NON CONSIDERATION OF DOCUMENTS SINCE FILED DURING APPELLATE PROCEEDINGS BEING ADDITIONAL EVIDENCES. T HE COUNTER COMMENTS DT.02.04.2009 EVIDENTLY SHOW THE SAID DOCU MENTS {PRESENTLY AT PAPER BOOK PG 64-67} DT 26.06.1991 BE ING THE CENSUS OF DELHI STATE GOVERNMENT FILED BEFORE ASSES SING OFFICER ON DT. 24.11.2008. SECONDLY REGARDING REGIS TERED DEEDS {PRESENTLY AT PAPER BOOK PG 19-34} NOT BEING SUPPOR TED BY THE VALUATION REPORT THE SAME WERE FILED ON DT.13.10.20 08 WHICH LETTER CONTAINS THE ACKNOWLEDGMENT THUS THE OBJECTI ONS RAISED ARE BEREFT OF MERIT. 6.3. HAVING FURTHER CONSIDERED THE SUBMISSIONS OF T HE ASSESSEE REGARDING THE TRANSFER OF PROPERTY ACT, 18 82, THE REGISTRATION ACT, 1908, INDIAN CONTRACT ACT, 1872 R EAD WITH THE REGISTERED DOCUMENTS OF PURCHASE OF PROPERTY TH ERE HAS NOT BEEN MADE ANY EFFORT BY THE (ASSESSING OFFICER TO P OINT OUT ANY INFIRMITY IN THE SUBMISSIONS ADVANCED BY THE AS SESSEE TO SUBSTANTIATE THE AUTHENTICITY OF THE TRANSACTIONS A ND THE CONSIDERATION CONTAINED HEREIN. 6.4. FURTHER THE COMPARABLE SALE INSTANCES FOR THE SAME AREA AND THE SAME PERIOD DT 21.12.2005, 15.2.2006 AND 27 .3.2006 HAVE BEEN RELIED UPON WHICH IS NEARING THE DATE OF THE PRESENT ITA NO.857/DEL./2010 5 TRANSACTIONS DT 06.4.2005 AND 09.12.2005 ON WHICH F ACTUAL ASPECT THERE HAS NOT BEEN ADVANCED ANY FINDING BY T HE ASSESSING OFFICER. EVEN FURTHER THE ASSESSEE HAS S PECIFICALLY RELIED UPON THE SALE INSTANCE BY SH. KARAN KUMAR S/ O SH. NARAYAN DAS R/O 9/6535, INDIRA GALI, GANDHI NAGAR, DELHI- 110031 WHEREIN THE SAID SALE TRANSACTION HAS BEEN A CCEPTED FOR DT 9.12.2005 QUA THE SAME PROPERTY. THUS THERE CANN OT BE A BETTER EVIDENCE THAN THAT OF THE DEPARTMENT ON WHIC H SUBJECT THERE HAS NOT BEEN ADVANCED ANY REBUTTAL AND THE CO UNTER TO THE SAID FACT ON EVIDENCE. 6.5. THE STATUS OF THE PROPERTY IS RESIDENTIAL UNAU THORIZED IN PURSUANCE TO NOTIFICATION NO. 13/46/2006/UD/16071 D ATED 15.9.2006 AND IN EVEN FURTHER THE PERMISSIBLE AREA OF COVERAGE AND PLINTH AREA OF CONSTRUCTION HAS RESTRICTION THE REON. THE BASIS OF VALUATION HAS BEEN CHALLENGED BY POINTING OUT THE DIFFERENCE IN THE RATES AS APPLIED BY THE VALUATION OFFICER SINCE THE STRUCTURE AS PURCHASED BY THE ASSESSEE HAS BEEN 25 YEARS OLD BEING SUBSTANDARD AND DILAPIDATED BUILDING WHIC H HAS BEEN SOLD AS SUCH AND THE RATES APPLIED ARE AS THAT ON T HE PRESENT BUILT RENOVATED, CONSTRUCTED BUILDING HAVING NO STA IRCASES TO UPWARD FLOORS WHICH WERE EXISTING IN THE OLD STRUCT URE AS THERE ARE RENOVATION IN THE BUILDING AFTER THE SALE BY TH E ASSESSEE AND THE PRESENT RENOVATED AND CONSTRUCTED STRUCTURE HAS BEEN MERGED WITH THE ADJACENT PROPERTY. 6.6. THE FURTHER DISTINGUISHING FEATURE OF ADJUSTME NT FACTOR IN ACCORDANCE WITH THE DEPARTMENT INSTRUCTION NO.4/91 DATED 30.1.1991 ISSUED BY THE MUNICIPAL CORPORATION CONTA INS THE RATES WHICH THE ASSESSING OFFICER HAS APPLIED FOR T HE AREA BEING 9 TO 10 KM AWAY FROM THE PRESENT PROPERTY AND THE RATES APPLIED TOO ARE FOR THE DEVELOPED AND AUTHORIZED CO LONIES. EVEN FURTHER THE RATE APPLICATION IS CHALLENGED ON GROUND OF 2 WRONG ASSUMPTIONS BY THE LD. ASSESSING OFFICER NAME LY AUCTION RATE (DDA) SECONDLY THE COMMERCIAL RATE WHE REBY THE SAID RATES ARE NOT TO BE APPLIED BECAUSE THE RATES RELEVANT TO BE APPLIED ARE OF JHEEL KHURANJA/GEETA COLONY (L&DO) W HICH ARE IN THE NEAR VICINITY OF THE PROPERTY BEING A 1/ 2 KM AWAY. HAVING CONSIDERED THE PRIMARY AND DIRECT EVIDENCE C ONTAINED IN THE PAPER BOOK, THERE IS NO REASON TO DISAGREE W ITH THE SUBMISSIONS OF THE ASSESSEE THAT THE BURDEN OF PROO F AS REQUIRED TO BE DISCHARGED BY THE LD. ASSESSING OFFI CER BEFORE ITA NO.857/DEL./2010 6 ARRIVING AT THE CONCLUSION HAS BEEN A FAILURE THERE OF AS REQUIRED UNDER LAW IN ITS TRUE SENSE AND SPIRITS. 6.7. THE WRITTEN REPLY DT 21.11.2008 HAYING CONSIDE RED PARTIALLY HAS REVISED AND MODIFIED THE VALUATION BY AN AMOUNT OF RS.2,81,000 IN THE PURCHASE AND RS.3,01, 136 AND IN THE SALE WHICH GOES TO SUBSTANTIATE THE STAND OF THE ASSESSE E AS PRAYED THAT THE DECISION BE TAKEN IN ACCORDANCE WITH LAW F OR A LOGICAL END TO THE CONTROVERSY ON THE COMPLETE APPRECIATION OF THE FACTS AND THE EVIDENCES. ON THIS ASPECT THE ISSUE H AVING BEEN CONSIDERED THE ASSESSING OFFICER, WHO HAS PRIMARILY GONE BY THE COMMENTS IN PARAGRAPH 5.4 OF THE ORDER UNDER CH ALLENGE WHEREIN ON THE ISSUE RAISED FOR THE VALUATION THERE HAS BEEN RENDERED 'NO COMMENTS' TO THE ASPECTS ON FACTS AND EVIDENCES. 6.8. ON DT 15.9.2009 THE ASSESSEE HAS PLACED RELIA NCE ON THE ADDITIONAL SUBMISSIONS WITH REGARD TO PROVISION OF SECTION 142A( 1) WHICH IS REPRODUCED HEREUNDER AND THE DECI SION OF THE HON'BLE HIGH COURT CIT VS. SMT. NILOFER I. SING H (2009) 309 ITR 233 (DELHI) , DEV KUMAR JAN VS. ITO, (2009) 309 ITR 280 FOR THE PROPOSITION THAT THE REFERENCE TO T HE VALUATION OFFICER IS FOR ASCERTAINING THE MARKET VALUE OF AN ASSET ONLY AND THE PRESENT IS THE CASE WHICH IS DETERMINING THE IN VESTMENT U/S 69B. THE FACTS OF THE AFORESAID CASES (NILOFER I. S INGH) ARE THAT THE TRIBUNAL DECIDED THE MATTER IN THE FAVOUR OF TH E ASSESSEE ON ACCOUNT OF THE CAPITAL GAIN WHERE IN THE ADDITION W ERE MADE ON THE BASIS OF THE VALUATION REPORT. THE SAID WAS AN ASSESSMENT U/S 143(3) AND THE MATTER WAS REFERRED TO THE VALUA TION OFFICER WHEREIN THE FAIR MARKET VALUE OF THE PROPERTY WERE DETERMINED ABOVE THAN THE AMOUNT DISCLOSED BY THE ASSESSEE IN THE RETURN OF INCOME. ON THE SAID SUBSTANTIAL QUESTION OF LAW THE MATTER HAS BEEN DISMISSED VIDE ORDER DT.27.8.2008 AND CONS IDERING THE PRINCIPLE OF LAW AS HELD IN THE CASE OF CAR VS. GEO RGE HENDERSON AND CO. LTD. (1967) 66 ITR 622 (SC) (PARA 6) AND CIT V. GILLANDERS ARBUTHNOT AND CO. (1973) 87 ITR 4 07 (SC) (PARA 7). 6.9. ANOTHER DECISION OF DEV KUMAR (SUPRA) GOES TO THE EXTENT OF HOLDING AS UNDER WHEREIN THE APPEAL OF TH E ASSESSEE WAS ALLOWED AND THE ORDER OF THE HON'BLE TRIBUNAL D T 14.11.2002 WAS SET ASIDE. THE OBSERVATIONS OF THE C OURT ARE HEREUNDER :- ITA NO.857/DEL./2010 7 'WE ARE NOT IN AGREEMENT WITH THE SUBMISSION MADE BY THE LEARNED COUNSEL FOR THE REVENUE FOR THE REASONS THAT THERE IS NOTHING ON RECORD TO SHOW THAT THE ASSESSEE RECE IVED A CONSIDERATION FOR THE SALE OF THE SAID PROPERTY IN EXCESS OF THAT WHICH WAS SHOWN IN THE AGREEMENT TO SELL. THAT BEIN G THE CASE THE DECISION IN THE CASE OF SMT. NILOFER I. SINGH ( 2009) 309 ITR 233 (DELHI) WOULD BIND THE REVENUE. THE TRIBUNA L IN OUR VIEW ERRED IN ACCEPTING THE STAND OF THE REVENUE TH AT ACTUAL SALE CONSIDERATION RECORDED IN THE AGREEMENT TO SEL L WOULD BE SUBSTITUTED BY THE VALUE ARRIVED AT BY THE DVO UNDE R SECTION 55A OF THE ACT. THE QUESTION OF LAW AS FRAMED IS AN SWERED IN FAVOUR OF THE ASSESSEE AND AGAINST THE REVENUE. IN THE RESULT THE APPEAL IS ALLOWED AND THE JUDGME NT OF THE TRIBUNAL DATED 14.11.2002 IS SET ASIDE.' 6.10. IT HAS NOT BEEN POINTED OUT ANY FACT AND EVID ENCE OF WHATSOEVER KIND BY THE ASSESSING OFFICER BEFORE ARR IVING AT THE CONCLUSION OF INVOKING THE DEEMING PROVISIONS DISRE GARDING THE REGISTERED PURCHASE AND SALE DEEDS REGISTERED W ITH THE SUB REGISTRAR. 6.11. EVEN FURTHER WITH REGARD TO THE STRUCTURAL LI FE CONSIDERED AS ABOUT 66 YEARS BY THE VALUATION OFFICER IN ACCOR DANCE WITH PAGE 57 THE ASSESSEE HAS PLACED RELIANCE ON PAGE 'E ' (SUPRA). SUBMISSIONS DT. 05.03.2009 TO SUBSTANTIATE THAT THE RATE OF DEPRECIATION IS 5% P.A. ON THE ORIGINAL COST OF STR UCTURE RATHER THAN 1.5% APPLIED ON THE PREVAILING RATE BY THE VAL UATION OFFICER IN ACCORDANCE WITH THE CHART APPEARING AT P AGE 101 ON WHICH ASPECT TOO THERE IS NONE REPLY AND REBUTTAL A DVANCED BY THE ID. AO. EVEN FURTHER THERE HAS BEEN POINTED OUT CERTAIN FACILITIES LIKE SEWERAGE WHICH ARE NOT AVAILABLE IN THE SAID AREA WHICH LEADS TO THE CONCLUSION OF THE DIFFERENCE ON ACCOUNT OF THE VALUATION BEING WRONGLY ARRIVED AT. 6.12. THUS, FOR THE AFORESAID REASONING EMPLOYED AS THE BASIS OF CONCLUDING THE ASSESSMENT ON THE GROUND OF VALUA TION ARE HELD TO BE WRONG FOR THE PURCHASE OF THE PROPERTY A ND LIKEWISE FOR THE SALE THEREOF. THE SHORT TERM CAPITAL GAIN W ORKED AMOUNTING TO RS.79,864 BY THE LD. ASSESSING OFFICER IS HELD TO ITA NO.857/DEL./2010 8 BE WRONG AND BOTH THE GROUNDS OF APPEAL RAISED SUPR A ARE ALLOWED IN THE FAVOUR OF THE ASSESSEE. ACCORDINGLY, THE ADDITION MADE BY THE ASSESSING OF FICER AMOUNTING TO RS.14,52,300/-, AS WELL AS THE ADDITIO N OF RS.79,564/- ON ACCOUNT OF STCG STANDS DELETED. 7. WE HAVE HEARD BOTH THE SIDES IN DETAIL AND CONSI DERED THE MATERIAL AVAILABLE ON RECORD. AFTER GOING THROUGH ALL THE M ATERIAL ON RECORD, WE FIND THAT THE ASSISTANT VALUATION OFFICER ADOPTED THE LA ND AND BUILDING METHOD AS A METHOD OF VALUATION. FROM THE VALUATION, WE FIND THAT THE VALUATION OFFICER HAS TAKEN THE SALE INSTANCE FROM C-10/135, YAMUNA V IHAR, NEW DELHI WHICH IS LOCATED FAR AWAY FROM THE PROPERTY IN QUESTION. SIMILARLY, WE FIND THAT THE VALUATION OFFICER HAS ALSO MADE ADJUSTMENT FOR TIME GAP, CONVERSION CHARGES AND MANY OTHER ADDITIONAL FACTORS. THE ASSESSEE HA S SUBMITTED THE SALE DEEDS OF THE PROPERTIES LOCATED IN THE SAME LOCALITY VIDE ITS LETTER DATED 13.10.2008 BEFORE ASSISTANT VALUATION OFFICER (PLACED AT PAGE S 17 TO 34 OF THE PAPER BOOK). ASSISTANT VALUATION OFFICER HAS NOT CONSIDE RED THESE SALE INSTANCES AT ALL. THEREFORE, FOR WORKING OUT THE VALUE OF THE L AND, WE HOLD THAT THE VALUATION OFFICER WAS NOT JUSTIFIED BY TAKING A SIN GLE SALE INSTANCE OF A FAR AWAY AREA WHILE MANY ACTUAL SALE INSTANCES WERE AVA ILABLE FROM THE SAME LOCALITY. FOR VALUING THE BUILDING EXISTING ON THE PLOT, THE COST VARIANCE BETWEEN THE TWO LOCATIONS SITUATED IN THE STATE OF DELHI CANNOT BE OF MUCH DIFFERENCE. ADJUSTMENT FOR NATURE OF CONSTRUCTION OF BUILDING AND ITS LOCATION ITA NO.857/DEL./2010 9 CAN BE MADE. THE DEDUCTION OF DEPRECIATION NEEDS T O BE LOOKED IN VIEW OF THE FACTS OF THE CASE. THUS, THERE ARE SOME DEFECTS IN THE VALUATION REPORT WHICH NEEDS RECTIFICATION IN VIEW OF ABOVE DISCUSSION. K EEPING THESE FACTS IN VIEW, WE SET ASIDE THE ISSUE TO THE FILE OF AO TO REWORK OUT THE SHORT TERM CAPITAL GAIN AS WELL AS THE ADDITION MADE U/S 69B OF THE IN COME-TAX ACT AFTER PROVIDING OPPORTUNITY TO THE ASSESSEE. 8. IN THE RESULT, THE APPEAL OF THE REVENUE IS ALLO WED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN OPEN COURT ON THIS 23 RD DAY OF SEPTEMBER, 2011. SD/- SD/- (C.L. SETHI) (B.C. MEENA) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED THE 23 RD DAY OF SEPTEMBER, 2011 TS COPY FORWARDED TO: 1.APPELLANT 2.RESPONDENT 3.CIT 4.CIT(A)-XXVII, NEW DELHI. 5.CIT(ITAT), NEW DELHI. AR, ITAT NEW DELHI.