Shri D.K. Swami, Bhopal V. THE DCIT (CENTRAL), Bhopal

ITSSA 41/IND/2017

• Counselvise Citation: [2018] 123 COUNSELVISE.COM (IT) 0817 (ITAT-INDORE)
• Duration Of Justice: 1 year(s) 7 month(s) 15 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 08-10-2018
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: DB
• Next Hearing Date: 27-09-2018
• Assessment Year: 2010-2011
• Appeal Filed On: 22-02-2017
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: LALCHAND
• Assessee Lawyers: S H ALINI MEHTA
• Keywords: Unexplained investment; Value adopted by valuation officer; Capital asset; Search and seizure; Salary income; Loose papers; Opportunity of being heard; Cost of acquisition; Fair market value
• Section: 143(3); 153A; 131; 54; 37; 132

Judgement Text

D.K. SWAMI & PREETI SWAMI ITA (SS)NO.39 TO 45/IND/2017 1 , , IN THE INCOME TAX APPELLATE TRIBUNAL, INDORE BENCH, INDORE BEFORE SHRI KUL BHARAT, JUDICIAL MEMBER AND SHRI MANISH BORAD, ACCOUNTANT MEMBER ITA (SS) NO.39 TO 43/IND/2017 ASSESSMENT YEARS: 2008-09, 2009-10, 2010-11, 2011-1 2 & 2012-13 REVENUE BY S HRI LAL CHAND, CIT ASSESSEE BY MS. S H ALINI MEHTA , CA DATE OF HE ARING 27 .09. 2018 DATE OF PRONOUNCEMENT 08.10 .2018 ITA (SS) NO.44 & 45/IND/2017 ASSESSMENT YEARS: 2009-10 & 2011-12 REVENUE BY S HRI LAL CHAND, CIT ASSESSEE BY MS. SHALINI MEHTA ,CA DATE OF HEARING 27.09. 2018 DATE OF PRONOUNCEMENT 08 .10 .2018 SHRI D.K. SWAMI, B-23, SURENDRA ESTATE, CHUNA BHATTI, BHOPAL VS. DCIT (CENTRAL) BHOPAL ( APPELLANT ) (RESPONDENT ) PAN NO. A DMPS7915P SMT . PREETI SWAMI, B-23, SURENDRA ESTATE, CHUNA BHATTI, BHOPAL VS. DCIT (CENTRAL) BHOPAL ( APPELLANT ) (RESPONDENT ) PAN NO. ADMPS 7314N D.K. SWAMI & PREETI SWAMI ITA (SS)NO.39 TO 45/IND/2017 2 O R D E R PER MANISH BORAD, AM. THESE BUNCH OF SEVEN APPEALS ARE FILED AT THE INST ANCE OF TWO ASSESSEES NAMELY SHRI D.K. SWAMI AND SMT. PREETI S WAMI. ITA(SS) NO.39 TO 43/IND/2017 PERTAINING TO A.Y. 2008-09 TO 2012-13 IN THE CASE OF SHRI D.K. SWAMI AND ITA(SS) NO.44 TO 45/IN D/2017 PERTAINING TO ASSESSMENT YEAR 2011-12 AND 2012-13 1 3 IN THE CASE OF SMT. PREETI SWAMI ARE DIRECTED AGAINST THE CONS OLIDATED ORDERS (SEPARATELY ISSUED FOR EACH ASSESSEE) OF LD. COMMIS SIONER OF INCOME TAX(APPEALS)-3 (IN SHORT CIT(A)), BHOPAL DATED 8. 12.2016 WHICH ARE ARISING OUT OF THE ORDER U/S 153A R.W.S. 143(3) OF THE INCOME TAX ACT 1961(IN SHORT THE ACT) DATED 16.01.2015 F RAMED BY DCIT(CENTRAL)-1, BHOPAL. 2. AS THE ISSUES RAISED IN ALL THESE APPEALS ARE M OSTLY COMMON THEY WERE HEARD TOGETHER AND HAVE BEEN DISPOSED OFF BY THIS COMMON ORDER FOR SAKE OF CONVENIENCE AND BREVITY. D.K. SWAMI & PREETI SWAMI ITA (SS)NO.39 TO 45/IND/2017 3 3. GROUNDS OF APPEALS TAKEN BY BOTH THE ASSESSEES ARE NOT IN CONSONANCE WITH RULE 8 OF THE INCOME TAX APPELLATE TRIBUNAL (RULES 1963) ARE DESCRIPTIVE AND ARGUMENTATIVE IN NATURE. 4. IN BRIEF FOLLOWING FIVE ISSUES ARE INVOLVED IN T HESE APPEALS; 1. CHALLENGING THE VALIDITY OF THE SEARCH U/S 132 O F THE ACT AND THE ASSESSMENT FRAMED SUBSEQUENT THERE TO U/S 1 43(3) OF THE ACT. 2. ADDITION FOR UNEXPLAINED CASH DEPOSIT IN THE BAN K ACCOUNT 3. ADDITION FOR LONG TERM CAPITAL GAIN OF RS.1,88,9 39/- 4.ALLEGED UNDISCLOSED INVESTMENT IN THE PURCHASE OF RESIDENTIAL/PLOT OF RS.21,10,825/- 5. UNEXPLAINED INVESTMENT IN PURCHASE OF AGRICULTU RE LAND AT RS.5,10,000/-. 5. BRIEF FACTS OF THE CASE AS CULLED OUT FROM THE R ECORDS ARE THAT THE SEARCH AND SEIZURE OPERATIONS U/S 132 OF THE AC T WAS CARRIED OUT AT THE RESIDENTIAL PREMISES OF BOTH THE ASSESSE ES (WHO ARE HUSBAND AND WIFE) LOCATED AT NEHRU NAGAR, BHOPAL ON 13.11.12, ON THE BASIS THAT THEY ARE HAVING CONNECTION WITH THE SR GROUP OF D.K. SWAMI & PREETI SWAMI ITA (SS)NO.39 TO 45/IND/2017 4 BHOPAL WHICH IS ENGAGED IN THE BUSINESS OF MINING A ND MANUFACTURING OF VARIOUS FORMS OF IRONS AND OTHER M ETALS, FERRO AND ALLOYS. SEARCH WAS CONDUCTED IN SR GROUP, BHOP AL AND VARIOUS PERSONS CONNECTED THERE TO. PURSUANT TO SE ARCH VARIOUS LOOSE PAPERS AND DOCUMENTS WERE FOUND. NOTICES U/S 153A OF THE ACT WERE SERVED UPON BOTH THE ASSESSEES AND THE AS SESSMENT PROCEEDINGS U/S 153A OF THE ACT R.W.S. 133 WERE CO MPLETED AFTER RECEIVING THE INCOME TAX RETURNS AS WELL AS EXAMINI NG THE DOCUMENTS FOUND DURING THE COURSE OF SEARCH. VARIO US ADDITIONS WERE MADE IN THE HANDS OF BOTH THE ASSESSEES AGAIN ST WHICH APPEAL WAS FILED BEFORE LD.CIT(A) AND PARTLY SUCCEEDED. 6. NOW BOTH THE ASSESSEES ARE IN APPEAL BEFORE THE TRIBUNAL. 7. THE FIRST COMMON ISSUE RELATING TO SHRI D.K. SWA MI AND SMT. PREETI SWAMI RELATES TO CHALLENGING THE VALIDITY OF SEARCH AND THE ASSESSMENT PROCEEDINGS CARRIED THEREAFTER. 8. WE HAVE HEARD RIVAL CONTENTIONS AND PERUSED THE RECORDS PLACED BEFORE US. WE OBSERVE THAT DURING THE COURSE OF SEARCH VARIOUS INCRIMINATING DOCUMENTS WERE FOUND AND THE ALLEGED CONNECTION OF THE ASSESSEE WITH THE SR GROUP WAS UN EARTHED BY THE D.K. SWAMI & PREETI SWAMI ITA (SS)NO.39 TO 45/IND/2017 5 REVENUE AUTHORITIES. IN THE GIVEN FACTS AND CIRCUM STANCES OF THE CASE AS WELL AS THE FINDINGS OF LOWER AUTHORITIES, WE FIND NO MERIT IN THIS COMMON ISSUE RAISED BY BOTH THE ASSESSEES AND THEREFORE CONFIRM THE FOLLOWING VIEW TAKEN BY LD.CIT(A); 5.2. I HAVE CONSIDERED THE FACTS OF THE CASE, WRIT TEN SUBMISSIONS OF THE LEARNED AR, PERUSED THE CASE RECORDS AND VARIOUS DE CISIONS CITED. THE APPELLANT SHRI D.K. SWAMI WHO IS THE DIRECTOR IN VN S GROUP OF INSTITUTIONS, BHOPAL, RESIDING AT B-23, SURENDRA ES TATE, CHUNA BHATTI, BHOPAL WITH HIS WIFE SMT. PREETI D SWAMI. A SEARCH WAS CONDUCTED IN THE SR GROUP BHOPAL. THE FLAGSHIP CONCEMS OF THE GR OUP ARE M/S S.R. FERRO ALLOYS, M/S SHIVALIK MINERALS. THE SEARCH AND SEIZURE OPERATIONS WERE CARRIED OUT AT VARIOUS PREMISES OF THE GROUP I NCLUDING THE RESIDENTIAL PREMISES OF APPELLANT LOCATED AT B-23, SURENDRA ESTATE, CHUNNA BHATTI, BHOPAL AND D-5O, AAKRITI GARDEN, NEH RU NAGAR, BHOPAL. THE SEARCH AND SEIZURE OPERATION WAS ALSO CARRIED O UT AT THE LOCKER WITH STATE BANK OF INDIA, CHUNA BHATTI BRANCH, BHOPAL, H ELD IN THE JOINT NAMES OF THE APPELLANT ASSESSEE AND HIS WIFE SMT. P REETI D SWAMI. 5.3. PERUSAL OF THE CASE RECORDS SHOW THAT DURING T HE COURSE OF SEARCH AT THE RESIDENTIAL PREMISES OF THE APPELLANT ASSESSEE LOOSE PAPERS, DOCUMENTS ETC. WERE FOUND AND SEIZED. ACKNOWLEDGEME NT GIVEN BY SHRI D.K SWAMI REGARDING RECEIPT OF PHOTOCOPIES OF MATER IAL SEIZED DURING SEARCH AT IS RESIDENCE IS PLACED ON ASSESSMENT RECO RD. THE APPELLANT HAS FILED REPLY DATED L5/12/2014 BEFORE THE A.O. IN RES PONSE TO QUESTIONNAIRES ISSUED BY THE A.O. ON 18/11/2013 AND 23/09/2014 (QUESTION NO. B-7, SR.NO 1 TO 10) WHEREIN THERE IS A SPECIFIC MENTION OF LOOSE PAPERS AND DOCUMENTS FOUND DURING THE SEARCH FROM THE RESIDENTIAL PREMISES. THE APPELLANT HAD NOT FILED I NCOME TAX RETURN FOR D.K. SWAMI & PREETI SWAMI ITA (SS)NO.39 TO 45/IND/2017 6 ASSESSMENT YEAR 2007-08. IT WAS ONLY FILED AFTER TH E ISSUE OF NOTICE ON U/S L53A ON 17/10/2013, WHICH IS BEYOND THE TIME LI MIT SPECIFIED U/S 139(1) OF THE IT ACT. THE APPELLANT HAS NOT FILLED ANY APPEAL FOR THE SAID ASSESSMENT YEAR 2007-08,CHALLENGING THE ISSUE OF NO TICE U/S LS3A AND HAS ALSO PARTICIPATED IN ASSESSMENT PROCEEDINGS BEF ORE THE A.O. FOR ALL ASSESSMENT YEARS FROM 2007-08 TO 2013-14. 5.4. THE A.O. HAS SPECIFICALLY MENTIONED IN PARA 4. 1 OF THE ASSESSMENT ORDER THAT THE APPELLANT ASSESSEE IS ASSOCIATED WIT H THE SR GROUP, AND IS THE DIRECTOR IN VNS GROUP OF INSTITUTIONS, BHOPAL W HICH IS INTERCONNECTED AND HAVING BUSINESS ASSOCIATION WITH THE SAID GROUP SEARCHED U/S 132 OF THE IT ACT 1961. THE GROUP IS R EFERRED TO BY A COMMON NAME 'SR GROUP'. THUS, THE CONTENTION OF THE LEARNED AR THAT THE APPELLANT HAS NO CONNECTION WITH THE SR FERRO A LLOYS GROUP DOES NOT APPEAR TO BE JUSTIFIED. THE A.O FOR THE SAKE OF REF ERENCE AND CONVENIENCE TO A SEARCH GROUP HAS USED THE TERM 'SR FERRO ALLOY S/ SR GROUP'. THE SAID FACT HAS ALSO BEEN MENTIONED BY THE A.O IN THE ASSESSMENT ORDER ITSELF. KEEPING IN VIEW THE TOTALITY OF THE FACTS A S DISCUSSED ABOVE, THE ORDER OF THE A.O. IS HELD AS A VALID ASSESSMENT. THE GROUNDS OF APPEAL 1 & 2 ARE DISMISSED. 9. IN THE RESULT THIS COMMON ISSUES RAISED IN GROUN D NO.1 & 2 OF BOTH THE ASSESSEES IN ABOVE CAPTIONED SEVEN APPEAL S STANDS DISMISSED. 10. NOW WE TAKE UP NEXT COMMON ISSUE RELATING TO UN EXPLAINED CASH DEPOSIT. THE LD. COUNSEL FOR THE ASSESSEE REF ERRED AND RELIED D.K. SWAMI & PREETI SWAMI ITA (SS)NO.39 TO 45/IND/2017 7 ON THE SUBMISSIONS MADE BEFORE THE LOWER AUTHORITIE S AND THE LD. DEPARTMENTAL REPRESENTATIVE SUPPORTED THE ORDERS OF LD.CIT(A). 11. WE HAVE HEARD RIVAL CONTENTIONS AND PERUSED THE RECORDS PLACED BEFORE US. THROUGH THIS COMMON ISSUE THE AS SESSEE HAS CHALLENGED THE FINDINGS OF LD.CIT(A) CONFIRMING THE ADDITION TOWARDS UNEXPLAINED CASH DEPOSIT IN THE CASE OF SHRI D.K. S WAMI AT RS. 1,28,500/-, RS.1,18,000/- AND RS.1,05,000/- FOR ASS ESSMENT YEAR 2008-09, 2010-11 AND 2011-12 RESPECTIVELY AND IN TH E CASE OF SMT. PREETI SWAMI AT RS.63,000/- FOR ASSESSMENT YEAR 201 1-12. WE FIND THAT ADDITION FOR UNEXPLAINED CASH WERE ALSO MADE F OR OTHER ASSESSMENT YEARS BUT LD. CIT(A) DELETED THE SAME FO R THE SMALLNESS OF THE AMOUNT. THE ASSESSEE HAS PROVIDED CASH FLOW STATEMENT AND DETAILS OF BANK DEPOSITS. SOURCE OF DEPOSITS WAS C LAIMED TO HAVE BEEN PROVED BEFORE THE LOWER AUTHORITIES. IT IS PE RTINENT TO NOTE THAT BOTH THE ASSESSEES ARE QUALIFIED PROFESSIONALS AND ARE EARNING INCOME FROM SALARY FOR LAST MANY YEARS. SHRI D.K. SWAMI WHO IS A PROFESSOR AND HAVE BEEN WORKING WITH GOVERNMENT ENG INEERING COLLEGE (SATI) AT VIDISHA, JOINED VNS GROUP AS DIR ECTOR IN THE YEAR 2008. HIS WIFE SMT. PREETI SWAMI IS ALSO AN ENGINE ER AND IS A D.K. SWAMI & PREETI SWAMI ITA (SS)NO.39 TO 45/IND/2017 8 PROFESSOR IN GOVERNMENT ENGINEERING COLLEGE (SATI), VIDISHA AND WORKING FOR PAST 20 YEARS. SHRI D.K. SWAMI HAS DEC LARED INCOME OF RS.2,64,436/-, RS.2,10,994/-, RS.4,50,179/-, RS.8,4 0,860/- RS.11,12,604/- AND RS.11,26,754/- IN THE INCOME TAX RETURN FILED FOR ASSESSMENT YEARS 2007-08 TO 2012-13. SIMILARLY SMT. PREETI SWAMI HAS DISCLOSED THE INCOME OF RS.1,25,672/-, RS .1,59,350/-, RS.2,48,396/-, RS.2,11,210/-, RS.4,24,977/- AND RS. 7,53,365/- FOR ASSESSMENT YEARS 2007-08 TO 2012-13. BOTH THE PER SONS ARE REGULARLY EARNING INCOME FROM SALARY AS ENGINEERS S INCE LAST ABOUT 20 TO 25 YEARS. IN THE GROUNDS RAISED BEFORE US RE LATES TO UNEXPLAINED CASH DEPOSIT TOTALING RS.3,51,500/- IN THE CASE OF SHRI D.K. SWAMI AND RS.63,000/- IN THE CASE OF SMT. PREE TI SWAMI. REVENUE AUTHORITIES ARE UNABLE TO PROVE THAT THE AS SESSEES HAVE SOME OTHER SOURCE OF INCOME ALSO. LOOKING TO THE A MOUNT OF INCOME DISCLOSED BY BOTH THE ASSESSEES AND ALSO IN THE GI VEN CIRCUMSTANCES OF THE CASE, THE ASSESSEE HAS BEEN CO NSISTENTLY MAKING TRANSACTIONS THROUGH ITS VARIOUS BANK ACCOUN TS AND WITHDRAWING AND DEPOSITING THE CASH AND ALSO ONE CA NNOT IGNORE THE POSSIBILITY OF ACCUMULATED CASH FOR SO MANY YE ARS, WE ARE OF THE CONSIDERED VIEW THAT NO ADDITION WAS CALLED FOR TOWARDS D.K. SWAMI & PREETI SWAMI ITA (SS)NO.39 TO 45/IND/2017 9 UNEXPLAINED CASH DEPOSIT AT RS.1,28,500/-, RS.1,88, 939/- AND RS.1,05,000/- FOR ASSESSMENT YEAR 2008-09, 2010-11, AND 2011-12 IN THE CASE OF SHRI D.K. SWAMI AND SIMILARLY NO ADD ITION WAS CALLED FOR IN THE CASE OF SMT. PREETI SWAMI AT RS.63,000/ - FOR ASSESSMENT YEAR 2011-12. WE ACCORDINGLY DELETE THESE ADDITION S AND ALLOW THE RESPECTIVE GROUNDS RAISED IN RESPECTIVE ASSESSMENT YEARS MENTIONED HEREIN ABOVE. 12. NOW WE TAKE UP THIRD ISSUE RELATING TO SHRI D.K . SWAMI FOR ASSESSMENT YEAR 2009-10 RAISED IN GROUND NO.3 ON AC COUNT OF ADDITION OF LONG TERM CAPITAL GAIN FROM SALE OF RES IDENTIAL HOUSE. WE HAVE HEARD RIVAL CONTENTIONS AND PERUSED THE REC ORDS PLACED BEFORE US. WE FIND THAT THE ASSESSEE SOLD HIS HOUS E AT VIDISHA FOR A SUM OF RS.13,00,000/- DURING THE FINANCIAL YEAR 200 8-09. AS PER THE STAMP VALUATION AUTHORITY THE SALE CONSIDERATIO N WAS TAKEN AT RS.17,16,500/-. AFTER GIVING THE BENEFIT OF INDEXED COST OF ACQUISITION REMAINING AMOUNT OF LONG TERM CAPITAL G AIN IS COMPUTED AT RS.1,88,939/-. THERE IS NO DISPUTE FOR THIS FIGURE OF LONG TERM CAPITAL GAIN BY BOTH THE PARTIES. THE ISS UE ARISED WHEN THE ASSESSEE WAS DENIED THE BENEFIT UNDER SECTION 5 4 OF THE ACT. D.K. SWAMI & PREETI SWAMI ITA (SS)NO.39 TO 45/IND/2017 10 THE ASSESSEE HAS PURCHASED RESIDENTIAL HOUSE IN THE NAME OF HIS WIFE AT B-23, SURENDRA ESTATE, CHUNA BHATTI, BHOPA L AT RS.22,51,700/- AND ALSO PURCHASED ANOTHER RESIDENTI AL HOUSE ON 15.4.2011 AT RS.5,28,125/- AT 226, CI ESTATE, BHOPA L. FROM GOING THROUGH THE FINDINGS OF LD. ASSESSING OFFICER WE F IND THAT HE HAS NOT ENTERTAINED THE CLAIM OF THE ASSESSEE U/S 54 OF THE ACT FOR PURCHASE OF RESIDENTIAL HOUSE OUT OF THE SALE CONSI DERATION RECEIVED FROM SALE OF RESIDENTIAL HOUSE. HE HAS MERELY COM MENTED UPON THE PRICE OF PURCHASE VIS--VIS THE PREVAILING MARKET R ATE BUT NOWHERE GAVE COGNIZANCE TO THE FACT THAT ASSESSEE WAS ELIGI BLE FOR THE BENEFIT OF SECTION 54 OF THE ACT. EVEN LD.CIT(A) ALSO DID NOT EXAMINED THE ISSUE OF EXEMPTION U/S 54 OF THE ACT FOR THE VERY R EASON THAT THE ASSESSEE HAS NOT DECLARED THE IMPUGNED TRANSACTION IN THE RETURN OF INCOME FILED ORIGINALLY AS WELL AS AGAINST THE N OTICE ISSUED U/S 153A OF THE ACT. 13. WE ARE OF THE CONSIDERED VIEW THAT ONCE THE DOC UMENTS AND DETAILS WERE AVAILABLE BEFORE THE LOWER AUTHORITIES THEN EVEN IF THE ASSESSEE HAS NOT DECLARED THE SAME IN THE RETURN OF INCOME BUT HAS MADE THE CLAIM DURING THE ASSESSMENT PROCEEDINGS, T HEN THE LOWER D.K. SWAMI & PREETI SWAMI ITA (SS)NO.39 TO 45/IND/2017 11 AUTHORITIES SHOULD HAVE ACTED AS PER THE PROVISIONS OF LAW AND SHOULD HAVE EXAMINED AS TO WHETHER THE ASSESSEE HAS ADHERED/COMPLIED TO THE PROVISIONS OF SECTION 54 OF THE ACT AND IF IT WAS SO ELIGIBLE TO GET THE BENEFIT THEN THE SAME SH OULD HAVE BEEN ALLOWED. WE THEREFORE SET ASIDE THIS ISSUE OF EXE MPTION U/S 54 OF THE ACT AGAINST THE LONG TERM CAPITAL GAIN OF RS.1, 88,939/- TO THE FILE OF LD.A.O FOR AFRESH ADJUDICATION AND DIRECT T HE ASSESSING OFFICER TO EXAMINE THE DOCUMENTS OF PURCHASE OF RES IDENTIAL HOUSE TO BE FURNISHED BY THE ASSESSEE AND IF FOUND CORREC T THEN ALLOW THE CLAIM U/S 54 OF THE ACT AND DELETE THE ADDITION FOR LONG TERM CAPITAL GAIN OF RS.1,88,139/-. IN THE RESULT THE A PPEAL OF THE ASSESSEE FOR ASSESSMENT YEAR 2009-10 IN THE CASE OF SHRI D.K. SWAMI IS ALLOWED FOR STATISTICAL PURPOSES. 14. NOW WE TAKE UP THE FOURTH ISSUE RAISED BY THE ASSESSEE SHRI D.K. SWAMI THROUGH GROUND NO. 4 & 5 FOR ASSESSMENT YEAR 2012- 13 WHICH ARISED ON ACCOUNT OF ADDITION OF UNEXPLA INED INVESTMENT OF RS.5,28,125/- AND RS.15,39,000/- FOR THE PURCHAS E OF HOUSE NO.226 AT EI ESTATE, BHOPAL AND PURCHASE OF FLAT NO .B-16 AT BHOOMIKA RESIDENCY, KOLAR ROAD, BHOPAL. D.K. SWAMI & PREETI SWAMI ITA (SS)NO.39 TO 45/IND/2017 12 15. WE HAVE HEARD RIVAL CONTENTIONS AND PERUSED THE RECORD PLACED BEFORE US. BRIEF FACTS OF THIS ISSUE ARE TH AT DURING THE COURSE OF ASSESSMENT PROCEEDINGS LD.A.O NOTICED THAT THE A SSESSEE HAS MADE INVESTMENT IN RESIDENTIAL HOUSE/FLAT. LD.A.O OBSERVED THAT HOUSE NO.226 AT EI ESTATE, BHOPAL PURCHASED ON 15. 4.2011 AT RS.5,28,125/-. LD.A.O ALSO OBSERVED THAT THE PREVAI LING MARKET RATE IS MUCH HIGHER AND HE ESTIMATED THE PREVAILING MARK ET RATE AND MADE ADDITION OF RS.5,71,825/-. SIMILARLY IN THE C ASE OF PURCHASE OF FLAT BY THE ASSESSEE AT FLAT NO.B-16, KOLAR ROAD , BHOPAL ON 23.12.2011 FOR RS.14,61,000/-. LD.A.O TOOK SIMILAR VIEW OF ADOPTING/ESTIMATING HIGHER MARKET RATE AND ESTIMATE D IT AT RS.30,00,000/- AND ACCORDINGLY MADE ADDITION FOR UN EXPLAINED INVESTMENT OF RS.15,39,000/-. LD.CIT(A) CONFIRMED THE VIEW TAKEN BY THE ASSESSING OFFICER. 16. FROM GOING THROUGH THE ORDERS OF BOTH THE LOWER AUTHORITIES WE OBSERVE THAT THE ASSESSING OFFICER HAS MERELY MADE THE ESTIMATION. THERE IS NO FINDING ABOUT THE VALUE DETERMINED BY T HE STAMP VALUATION AUTHORITIES IN THE PURCHASE DEED I.E. WHE THER THE VALUE AS PER THE STAMP VALUATION AUTHORITY WAS MORE THAN TH E PURCHASE D.K. SWAMI & PREETI SWAMI ITA (SS)NO.39 TO 45/IND/2017 13 CONSIDERATION PAID BY THE ASSESSEE. IT IS ALSO DI SCERNABLE FROM RECORDS THAT THE NAMES AND ADDRESS OF THE SELLER HA VE BEEN PROVIDED TO THE ASSESSING AUTHORITY AND ONE OF THEM HAS EVEN ACCEPTED THE TRANSACTION. EVEN IF FOR ANY REASON T HE LD.A.O COULD NOT PLACE HANDS ON THE COPIES OF PURCHASE DEEDS THE N ALSO IT HAD SUFFICIENT POWERS U/S 55A OF THE ACT WHICH PROVIDE S FOR MAKING REFERENCE TO THE VALUATION OFFICER. FOR SAKE OF UND ERSTANDING WE MENTION BELOW THE PROVISIONS OF SECTION 55A OF THE ACT. SECTION 55A : REFERENCE TO VALUATION OFFICER. 55A. WITH A VIEW TO ASCERTAINING THE FAIR MARKET V ALUE OF A CAPITAL ASSET FOR THE PURPOSES OF THIS CHAPTER, THE ASSESSING OFF ICER MAY REFER THE VALUATION OF CAPITAL ASSET TO A VALUATION OFFICER (A) IN A CASE WHERE THE VALUE OF THE ASSET AS CLAIMED BY THE ASSESSEE IS IN ACCORDANCE WITH THE ESTIMATE MADE BY A REGISTERED VALUER, IF THE ASSESS ING OFFICER IS OF OPINION THAT THE VALUE SO CLAIMED IS AT VARIANCE WITH ITS F AIR MARKET VALUE; (B) IN ANY OTHER CASE, IF THE ASSESSING OFFICER IS OF OPIN ION (I) THAT THE FAIR MARKET VALUE OF THE ASSET EXCEEDS THE VALUE OF THE ASSET AS CLAIMED BY THE ASSESSEE BY MORE THAN SUCH PERCENTAGE82 OF THE VALU E OF THE ASSET AS SO CLAIMED OR BY MORE THAN SUCH AMOUNT82 AS MAY BE PRE SCRIBED IN THIS BEHALF ; OR (II) THAT HAVING REGARD TO THE NATURE OF THE ASSET AND OTHER RELEVANT CIRCUMSTANCES, IT IS NECESSARY SO TO DO, 8 3AND WHERE ANY SUCH REFERENCE IS MADE, THE PROVISIONS OF SUB-SECTIONS ( 2), (3), (4), (5) AND (6) OF SECTION 16A, CLAUSES (HA) AND (I) OF SUB-SECTION (1 ) AND SUB-SECTIONS (3A) AND (4) OF SECTION 23, SUB-SECTION (5) OF SECTION 2 4, SECTION 34AA, SECTION 35 AND SECTION 37 OF THE WEALTH-TAX ACT, 1957 (27 OF 1 957), SHALL WITH THE NECESSARY MODIFICATIONS, APPLY IN RELATION TO SUCH REFERENCE AS THEY APPLY IN RELATION TO A REFERENCE MADE BY THE ASSESSING OF FICER UNDER SUB-SECTION (1) OF SECTION 16A OF THAT ACT. EXPLANATION.IN THI S SECTION, 'VALUATION OFFICER' HAS THE SAME MEANING, AS IN CLAUSE (R) OF SECTION 2 OF THE WEALTH- TAX ACT, 1957 (27 OF 1957). D.K. SWAMI & PREETI SWAMI ITA (SS)NO.39 TO 45/IND/2017 14 17. FROM PERUSAL OF THE ABOVE SECTION 55A OF THE AC T THE ASSESSING OFFICER IN ORDER TO ASCERTAIN THE FAIR MARKET VALUE OF THE ASSET MAY REFER TO THE VALUATION OFFICER FOR VALUATION OF THE IMPUGNED ASSETS IF HE IS OF THE OPINION THAT FAIR MARKET VALUE EXCEEDS THE FAIR MARKET VALUE AS CLAIMED BY THE ASSESSEE. HOWEVER IN THE I NSTANT CASE LD.A.O HAS NOT TAKEN ANY RESORT TO COMPLY WITH THE PROVISIONS OF SECTION 55A OF THE ACT AND MERELY ON THE BASIS OF S URMISES APPLIED THE ESTIMATED PREVAILING MARKET RATE WITHOUT GIVING ANY BASIS FOR THE SAME AND COMPUTED THE UNEXPLAINED INVESTMENT IN THE HANDS OF THE ASSESSEE. 18. WE THEREFORE IN THE GIVEN CIRCUMSTANCES OF THE CASE ARE OF THE CONSIDERED VIEW THAT LD.A.O OUGHT TO HAVE REFERRED THE MATTER TO THE VALUATION OFFICER TO VALUE THE FAIR MARKET PRICE OF BOTH THE IMPUGNED ASSETS MENTIONED HEREIN ABOVE IN ORDER TO DECIDE THE ISSUE. WE ACCORDINGLY SET ASIDE THIS ISSUE TO THE F ILE OF ASSESSING OFFICER. NEEDLESS TO SAY THAT THE ASSESSEE IS TO B E PROVIDED PROPER OPPORTUNITY OF BEING HEARD, BOTH AT THE LEVEL OF TH E ASSESSING OFFICER AS WELL AS DEPARTMENTAL VALUATION OFFICER. IN THE RESULT GROUND NO. D.K. SWAMI & PREETI SWAMI ITA (SS)NO.39 TO 45/IND/2017 15 4 & 5 IN THE CASE OF SHRI D.K. SWAMI FOR ASSESSMENT YEAR 2012-13 IS ALLOWED FOR STATISTICAL PURPOSES. 19. NOW WE COME TO THE LAST ISSUE WHICH RELATES TO UNEXPLAINED INVESTMENT IN THE PURCHASE OF AGRICULTURE LAND AT V ILLAGE FUNDA, DISTRICT BHOPAL IN THE CASE OF SMT. PREETI SWAMI F OR ASSESSMENT YEAR 2009-10. BRIEF FACTS ARE THAT THE ASSESSEE PU RCHASED AGRICULTURE LAND AT KHASRA NO.83, 104/84/5/1 IN RAK BA NO. 0.21 HECT, KHASRA NO. 83, 104/84/6/2 IN RAKBA NO. 0.15 H ECT. (TOTAL 16380 SQ.FT) PURCHASED ON 26.5.2008 AT RS. 4,90,000 /-. DETAILS OF THE SELLER OF THE LAND PROVIDED TO THE ASSESSING OF FICER ALONG WITH HIS ADDRESS HOWEVER HE DID NOT TURNED UP AGAINST TH E SUMMON U/S 131 ISSUED TO HIM. THE ASSESSEE CONTENDED THAT THE IMPUGNED LAND HAS BEEN PURCHASED AT THE FAIR MARKET PRICE AND TRA NSACTION HAVE BEEN DULY DISCLOSED IN THE INCOME TAX RETURNS. HOW EVER LD.A.O WAS OF THE VIEW THAT FAIR MARKET PRICE OF THE LAND IS A ROUND RS.10,00,000/- AND THE ASSESSEE HAS MERELY PAID A S UM OF RS.4,90,000/-. UNDISCLOSED INVESTMENT AT RS.5,10,00 0/- WAS WORKED OUT AND HE ACCORDINGLY MADE THE ADDITION U/ S 69B OF THE ACT. THIS ADDITION WAS CONFIRMED BY LD.CIT(A). WE ALSO FIND THAT D.K. SWAMI & PREETI SWAMI ITA (SS)NO.39 TO 45/IND/2017 16 THE MODUS OPERANDI OF THE LD. A.O OF MAKING ADDITIO N FOR UNACCOUNTED/UNDISCLOSED INVESTMENT IN AGRICULTURE L AND IS SIMILAR TO THE ONE MADE BY HIM IN THE HANDS OF SHRI D.K. SW AMI TOWARDS THE UNEXPLAINED INVESTMENT IN RESIDENTIAL HOUSES/FL ATS. IN THIS CASE ALSO THE LD.A.O HAS STEPPED INTO THE SHOES OF VALU ATION OFFICER AND HAS CALCULATED THE PREVAILING MARKET RATE WHICH IN OUR VIEW IS INCONSISTENT AS THE LD.A.O IS NOT AN EXPERT IN THIS FIELD AND HE OUGHT TO HAVE MADE THE REFERENCE TO THE VALUATION O FFICER U/S 55A OF THE ACT SO AS TO ASSESS THE FAIR MARKET PRICE. THEREFORE WE DIRECT THE LD.A.O TO REFER THE MATTER OF VALUATION OF IMPU GNED AGRICULTURAL LAND TO THE DEPARTMENTAL VALUATION OFFICER. THE ASS ESSEE IS ALSO DIRECTED TO FURNISH THE NECESSARY DOCUMENTS BEFORE BOTH THE AUTHORITIES AND TO PROVIDE COOPERATION IN GETTING T HE VALUATION DONE. IN THE RESULT GROUND NO.3 FOR ASSESSMENT YEAR 2009- 10 IN THE CASE OF SMT. PREETI SWAMI IS ALSO ALLOWED FOR STATISTIC AL PURPOSES. 20. IN THE RESULT I.T.A. NO. 39, 41, 42 & 44/IND/20 17 ARE PARTLY ALLOWED AND I.T.A. NO. 40, 43 & 45/IND/2017 ARE PAR TLY ALLOWED FOR STATISTICAL PURPOSES. D.K. SWAMI & PREETI SWAMI ITA (SS)NO.39 TO 45/IND/2017 17 THE ORDER PRONOUNCED IN THE OPEN COURT ON 08.10.2 018. SD/- SD/- ( KUL BHARAT) (MANISH BORAD) JUDICIAL MEMBER ACCOUNTANT MEMBER / DATED : 08 OCTOBER, 2018 /DEV COPY TO: THE APPELLANT/RESPONDENT/CIT CONCERNED/CIT (A) CONCERNED/ DR, ITAT, INDORE/GUARD FILE. BY ORDER PRIVATE SECRETARY/DDO, INDORE