The ACIT Central-II, Bhopal V. M/s. Golden Realities Pipariya, Pipariya

ITSSA 80/Ind/2019

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 3486 (ITAT-INDORE)
• Duration Of Justice: 2 year(s) 4 month(s) 28 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 04-10-2021
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 22-02-2021
• Assessment Year: 2014-2015
• Appeal Filed On: 06-05-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S S MANTRI
• Assessee Lawyers: S N AGRAWAL; BHAVESH AGRAWAL CAS
• Keywords: Rejection of books of accounts; Unexplained investment; Value adopted by valuation officer; Capital asset; Search and seizure; Loose papers; Document seized; Fair market value; Corroborative evidences; Valuation report; Validity of assessment; Block assessment; Onus to prove; Documents seized; Set aside; Capital Gains
• Section: 143(3); 142(1); 153A; 234B; 69B; 201; 143(2); 64; 43; 48; 73; 72; 13; 153; 22; 153C; 147; 69; 148; 132; 28

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL, INDORE BENCH, INDORE BEFORE HONBLE RAJPAL YADAV, VICE PRESIDENT AND SHRI MANISH BORAD, ACCOUNTANT MEMBER VIRTUAL HEARING IT(SS)A NOS.59 TO 62/IND/2019 ASSESSMENT YEARS: 2013-14 TO 2016-17 M/S GOLDEN REALITIES, BHOPAL PAN:AAKFG88276G : APPELLANT V/S ACIT(CENTRAL)-II BHOPAL : RESPONDENT IT(SS)A NOS.80 TO 82/IND/2019 ASSESSMENT YEARS: 2014-15 TO 2016-17 ACIT(CENTRAL)-II BHOPAL : APPELLANT V/S M/S GOLDEN REALITIES, BHOPAL PAN:AAKFG88276G : RESPONDENT REVENUE BY SHRI S.S. MANTRI, CIT - DR RE SPONDENT BY S/ SHRI S.N. AGRAWAL & BHAVESH AGRAWAL, CAS DATE OF HEARING 0 5 .0 8 .2021 DATE OF PRONOUNCEMENT 04.10.2021 O R D E R GOLDEN REALITIES (SS)59 OF 2019 AND OTHERS 2 PER MANISH BORAD, A.M THE ABOVE CAPTIONED APPEALS FILED AT THE INSTANCE OF THE ASSESSEE & CROSS APPEALS BY THE REVENUE FOR ASSESS MENT YEARS 2013-14 TO 2016-17 ARE DIRECTED AGAINST THE ORDERS OF LD. COMMISSIONER OF INCOME TAX(APPEALS) (IN SHORT LD. CIT(A)],-3 BHOPAL DATED 08.02.2019 WHICH ARE ARISING OUT OF TH E ORDER U/S 143(3) OF THE INCOME TAX ACT 1961(IN SHORT THE AC T) DATED 12.01.2018 FRAMED BY ACIT(CENTRAL)-II, BHOPAL. THE ASSESSEE HAS RAISED FOLLOWING GROUNDS OF APPEAL IN IT(SS)ANO.59/IND/2019: 1. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF T HE CASE AND IN LAW, THE LD. CIT(A) ERRED IN UPHOLDING THAT VALIDIT Y OF NOTICE AS ISSUED UNDER SECTION 153C OF THE INCOME TAX ACT WIT HOUT PROPERLY APPRECIATING THE FACTS OF THE CASE AND SUBMISSIONS MADE BEFORE HIM EVEN WHEN NOTHING INCRIMINATING WAS FOUND AND S EIZED RELATED TO THE APPELLANT FROM THE POSSESSION OF THE PERSON IN WHOSE CASE SEARCH WAS EXECUTED. 2. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE AND IN LAW, THE LD. CIT(A) ERRED IN UPHOLDING THE VALIDITY OF NOTICE AS ISSUED UNDER SECTION 153C OF THE INCOME TAX ACT EVE N WHEN THE NOTICE WAS ISSUED UNDER SECTION 153C OF THE ACT WIT HOUT PROPER RECORDING OF SATISFACTION IN DUAL CAPACITY. 3. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE AND IN LAW, THE LD. CIT(A) ERRED IN MAINTAINING THE ADDITI ON OF RS.12,39,521/- OUT OF THE TOTAL ADDITION OF RS.94,7 1,070/- AS MADE BY THE ASSESSING OFFICER TO THE TOTAL INCOME O F THE APPELLANT ON ACCOUNT OF ADDITIONAL COST OF CONSTRUCTION/DEVEL OPMENT INCURRED IN THE PROJECT WITHOUT PROPERLY APPRECIATI NG THE FACTS OF THE CASE AND SUBMISSION MADE BEFORE IN AND MERELY O N THE BASIS OF REPORT OF THE DVO EVEN WHEN THE SAID ASSESSMENT YEAR WAS A NON-ABATE ASSESSMENT YEAR AND ADDITION COULD HAVE B EEN MADE ONLY ON THE BASIS OF INCRIMINATING DOCUMENTS AS FOU ND AND SEIZED. 4. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE AND IN LAW, THE LD. CIT(A) ERRED IN MAINTAINING THE ADDITI ON OF GOLDEN REALITIES (SS)59 OF 2019 AND OTHERS 3 RS.12,39,521/- OUT OF THE TOTAL ADDITION OF RS.94,7 1,070/- AS MADE BY THE ASSESSING OFFICER TO THE TOTAL INCOME O F THE APPELLANT BY REFERRING THE MATTER TO THE DVO FOR ESTIMATION O F THE COST OF CONSTRUCTION/DEVELOPMENT INCURRED IN THE PROJECT WI THOUT POINTING OUT ANY SPECIFIC DEFECTS AND ALSO WITHOUT REJECTING THE REGULAR BOOKS OF ACCOUNTS AS MAINTAINED BY THE APPELLANT. 5. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE AND IN LAW, THE LD. CIT(A) ERRED IN MAINTAIN THE ADDITION FRS.12,39,521/- TO THE TOTAL INCOME OF THE APPELLANT ON ACCOUNT OF ADDITIONAL COST OF CONSTRUCTION/DEVELOPMENT INCURRED IN THE PROJECT AFTER ALLOWING MARGIN OF ONLY 30% (25% FOR DIFFERENCE IN CPWD AND PWD RATES AND 5% FOR SELF-SUPERVISION) EVEN WHEN MARGIN OF 30 % IS ALLOWABLE ON ACCOUNT OF DIFFERENCE IN CPWD AND PWD RATED AND MARGIN OF 10-12.5% IS ALLOWABLE FOR SELF-SUPERVISIO N. 6. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE AND IN LAW, THE LD. CIT(A) GROSSLY ERRED IN NOT ALLOWING R ELIEF TO THE APPELLANT ON ACCOUNT OF SPECIFIC DISCREPANCIES IN T HE REPORT OF THE DVO AS POINTED OUT BY THE APPELLANT DURING THE COUR SE OF ASSESSMENT AS WELL AS APPELLANT PROCEEDINGS. 7. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE AND IN LAW, THE LD. CIT(A) ERRED IN MAINTAINING THE INTERE ST AS CHARGED BY THE ASSESSING OFFICER UNDER SECTION 234A AND 234 B OF THE ACT. 8. THE APPELLANT RESERVES ITS RIGHT TO ADD, ALTER A ND MODIFY THE GROUNDS OF APPEAL AS TAKEN BY IT. IT(SS)ANO.60/IND/2019 ASSESSEES APPEAL 1. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF T HE CASE AND IN LAW, THE LD. CIT(A) ERRED IN UPHOLDING THAT VALIDIT Y OF NOTICE AS ISSUED UNDER SECTION 153C OF THE INCOME TAX ACT WIT HOUT PROPERLY APPRECIATING THE FACTS OF THE CASE AND SUBMISSIONS MADE BEFORE HIM EVEN WHEN NOTHING INCRIMINATING WAS FOUND AND S EIZED RELATED TO THE APPELLANT FROM THE POSSESSION OF THE PERSON IN WHOSE CASE SEARCH WAS EXECUTED. 2. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE AND IN LAW, THE LD. CIT(A) ERRED IN UPHOLDING THE VALIDITY OF NOTICE AS ISSUED UNDER SECTION 153C OF THE INCOME TAX ACT EVE N WHEN THE NOTICE WAS ISSUED UNDER SECTION 153C OF THE ACT WIT HOUT PROPER RECORDING OF SATISFACTION IN DUAL CAPACITY. 3. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE AND IN LAW, THE LD. CIT(A) ERRED IN MAINTAINING THE ADDITI ON OF RS.32,11,330/- OUT OF THE TOTAL ADDITION OF RS.2,02 ,26,080/- AS MADE BY THE ASSESSING OFFICER TO THE TOTAL INCOME O F THE APPELLANT ON ACCOUNT OF ADDITIONAL COST OF CONSTRUCTION/DEVEL OPMENT INCURRED IN THE PROJECT WITHOUT PROPERLY APPRECIATI NG THE FACTS OF THE CASE AND SUBMISSION MADE BEFORE IN AND MERELY O N THE BASIS OF REPORT OF THE DVO EVEN WHEN THE SAID ASSESSMENT YEAR WAS A NON-ABATE ASSESSMENT YEAR AND ADDITION COULD HAVE B EEN MADE GOLDEN REALITIES (SS)59 OF 2019 AND OTHERS 4 ONLY ON THE BASIS OF INCRIMINATING DOCUMENTS AS FOU ND AND SEIZED. 4. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE AND IN LAW, THE LD. CIT(A) ERRED IN MAINTAINING THE ADDITI ON OF RS. 32,11,330/- OUT OF THE TOTAL ADDITION OF RS. 2,02,2 6,080/- AS MADE BY THE ASSESSING OFFICER TO THE TOTAL INCOME O F THE APPELLANT BY REFERRING THE MATTER TO THE DVO FOR ESTIMATION O F THE COST OF CONSTRUCTION/DEVELOPMENT INCURRED IN THE PROJECT WI THOUT POINTING OUT ANY SPECIFIC DEFECTS AND ALSO WITHOUT REJECTING THE REGULAR BOOKS OF ACCOUNTS AS MAINTAINED BY THE APPELLANT. 5. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE AND IN LAW, THE LD. CIT(A) ERRED IN MAINTAIN THE ADDITION OF RS. 32,11,330/- TO THE TOTAL INCOME OF THE APPELLANT ON ACCOUNT OF ADDITIONAL COST OF CONSTRUCTION/DEVELOPMENT INCURRE D IN THE PROJECT AFTER ALLOWING MARGIN OF ONLY 30% (25% FOR DIFFERENCE IN CPWD AND PWD RATES AND 5% FOR SELF-SUPERVISION) EVE N WHEN MARGIN OF 30% IS ALLOWABLE ON ACCOUNT OF DIFFERENCE IN CPWD AND PWD RATED AND MARGIN OF 10-12.5% IS ALLOWABLE FOR S ELF- SUPERVISION. 6. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE AND IN LAW, THE LD. CIT(A) GROSSLY ERRED IN NOT ALLOWING R ELIEF TO THE APPELLANT ON ACCOUNT OF SPECIFIC DISCREPANCIES IN T HE REPORT OF THE DVO AS POINTED OUT BY THE APPELLANT DURING THE COUR SE OF ASSESSMENT AS WELL AS APPELLANT PROCEEDINGS. 7. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE AND IN LAW, THE LD. CIT(A) ERRED IN MAINTAINING THE INTERE ST AS CHARGED BY THE ASSESSING OFFICER UNDER SECTION 234A AND 234 B OF THE ACT. 8. THE APPELLANT RESERVES ITS RIGHT TO ADD, ALTER A ND MODIFY THE GROUNDS OF APPEAL AS TAKEN BY IT. IT(SS)ANO.61/IND/2019 ASSESSEES APPEAL 1. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF T HE CASE AND IN LAW, THE LD. CIT(A) ERRED IN UPHOLDING THAT VALIDIT Y OF NOTICE AS ISSUED UNDER SECTION 153C OF THE INCOME TAX ACT WIT HOUT PROPERLY APPRECIATING THE FACTS OF THE CASE AND SUBMISSIONS MADE BEFORE HIM EVEN WHEN NOTHING INCRIMINATING WAS FOUND AND S EIZED RELATED TO THE APPELLANT FROM THE POSSESSION OF THE PERSON IN WHOSE CASE SEARCH WAS EXECUTED. 2. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE AND IN LAW, THE LD. CIT(A) ERRED IN UPHOLDING THE VALIDITY OF NOTICE AS ISSUED UNDER SECTION 153C OF THE INCOME TAX ACT EVE N WHEN THE NOTICE WAS ISSUED UNDER SECTION 153C OF THE ACT WIT HOUT PROPER RECORDING OF SATISFACTION IN DUAL CAPACITY. 3. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE AND IN LAW, THE LD. CIT(A) ERRED IN MAINTAINING THE ADDITI ON OF GOLDEN REALITIES (SS)59 OF 2019 AND OTHERS 5 RS.62,69,716/- OUT OF THE TOTAL ADDITION OF RS.3,96 ,64,189/- AS MADE BY THE ASSESSING OFFICER TO THE TOTAL INCOME O F THE APPELLANT ON ACCOUNT OF ADDITIONAL COST OF CONSTRUCTION/DEVEL OPMENT INCURRED IN THE PROJECT WITHOUT PROPERLY APPRECIATI NG THE FACTS OF THE CASE AND SUBMISSION MADE BEFORE IN AND MERELY O N THE BASIS OF REPORT OF THE DVO EVEN WHEN THE SAID ASSESSMENT YEAR WAS A NON-ABATE ASSESSMENT YEAR AND ADDITION COULD HAVE B EEN MADE ONLY ON THE BASIS OF INCRIMINATING DOCUMENTS AS FOU ND AND SEIZED. 4. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE AND IN LAW, THE LD. CIT(A) ERRED IN MAINTAINING THE ADDITI ON OF RS. 62,69,716/- OUT OF THE TOTAL ADDITION OF RS. 3,96,6 4,189/- AS MADE BY THE ASSESSING OFFICER TO THE TOTAL INCOME O F THE APPELLANT BY REFERRING THE MATTER TO THE DVO FOR ESTIMATION O F THE COST OF CONSTRUCTION/DEVELOPMENT INCURRED IN THE PROJECT WI THOUT POINTING OUT ANY SPECIFIC DEFECTS AND ALSO WITHOUT REJECTING THE REGULAR BOOKS OF ACCOUNTS AS MAINTAINED BY THE APPELLANT. 5. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE AND IN LAW, THE LD. CIT(A) ERRED IN MAINTAIN THE ADDITION OF RS. 62,69,716/- TO THE TOTAL INCOME OF THE APPELLANT ON ACCOUNT OF ADDITIONAL COST OF CONSTRUCTION/DEVELOPMENT INCURRE D IN THE PROJECT AFTER ALLOWING MARGIN OF ONLY 30% (25% FOR DIFFERENCE IN CPWD AND PWD RATES AND 5% FOR SELF-SUPERVISION) EVE N WHEN MARGIN OF 30% IS ALLOWABLE ON ACCOUNT OF DIFFERENCE IN CPWD AND PWD RATED AND MARGIN OF 10-12.5% IS ALLOWABLE FOR S ELF- SUPERVISION. 6. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE AND IN LAW, THE LD. CIT(A) GROSSLY ERRED IN NOT ALLOWING R ELIEF TO THE APPELLANT ON ACCOUNT OF SPECIFIC DISCREPANCIES IN T HE REPORT OF THE DVO AS POINTED OUT BY THE APPELLANT DURING THE COUR SE OF ASSESSMENT AS WELL AS APPELLANT PROCEEDINGS. 7. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE AND IN LAW, THE LD. CIT(A) ERRED IN MAINTAINING THE INTERE ST AS CHARGED BY THE ASSESSING OFFICER UNDER SECTION 234A AND 234 B OF THE ACT. 8. THE APPELLANT RESERVES ITS RIGHT TO ADD, ALTER A ND MODIFY THE GROUNDS OF APPEAL AS TAKEN BY IT. IT(SS)ANO.62/IND/2019 ASSESSEES APPEAL 1.THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE AND IN LAW, THE LD. CIT(A) CONCURRED WITH THE ASSESSING OF FICER AND ERRED IN CONSIDERING THE DATE OF SEARCH AS 05.10.2015 AND NO NOTICE WAS ISSUED U/S 153C OF THE ACT EVEN WHEN DATE OF SE ARCH IN CASE OF OTHER PERSON IS THE DATE ON WHICH INFORMATION FR OM THE ASSESSING OFFICER OF THE PERSON SEARCHED IS PASSED ON TO THE ASSESSING OFFICER OF THE OTHER PERSON I.E. DATE OF SEARCH IN THE PRESENT CASE SHALL BE 15.11.2016 WHICH FALLS IN THE ASSESSMENT YEAR 2017-18. GOLDEN REALITIES (SS)59 OF 2019 AND OTHERS 6 2. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE AND IN LAW, THE LD. CIT(A) ERRED IN UPHOLDING THE VALIDITY OF ASSESSMENT ORDER AS PASSED U/S 143(3) OF THE ACT FOR THE YEAR UNDER CONSIDERATION BY TREATING THIS YEAR AS THE YEAR OF SEARCH EVEN ASSESSMENT WAS OUGHT TO BE FRAMED UNDER SECTION 153 C R.W.S. 143(3) OF THE ACT FOR THIS YEAR AND NOT UNDER SECTI ON 143(3) OF THE ACT. 3. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE AND IN LAW, THE LD. CIT(A) ERRED IN UPHOLDING THAT VALIDIT Y OF ASSESSMENT EVEN WHEN NOTHING INCRIMINATING WAS FOUND AND SEIZE D RELATED TO THE APPELLANT FROM THE POSSESSION OF THE PERSON IN WHOSE CASE SEARCH WAS EXECUTED. 4. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE AND IN LAW, THE LD. CIT(A) ERRED IN UPHOLDING THE VALIDITY OF ASSESSMENT EVEN WHEN THE NOTICE WAS ISSUED UNDER SECTION 153C OF THE ACT WITHOUT PROPER RECORDING OF SATISFACTION IN DUAL CA PACITY. 5. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE AND IN LAW, THE LD. CIT(A) ERRED IN MAINTAINING THE ADDITI ON OF RS.36,67,707/- OUT OF THE TOTAL ADDITION OF RS.3,28 ,86,624/- AS MADE BY THE ASSESSING OFFICER TO THE TOTAL INCOME O F THE APPELLANT ON ACCOUNT OF ADDITIONAL COST OF CONSTRUCTION/DEVEL OPMENT INCURRED IN THE PROJECT WITHOUT PROPERLY APPRECIATI NG THE FACTS OF THE CASE AND SUBMISSION MADE BEFORE HIM 6. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE AND IN LAW, THE LD. CIT(A) CONCURRED WITH THE ASSESSING OF FICER AND ERRED IN CONSIDERING THE CONSTRUCTION/DEVELOPMENT EXPENSE S AS INCURRED BY THE APPELLANT AT RS. 6,45,09,766/- ONLY WHEREAS CORRECT AMOUNT OF CONSTRUCTION/DEVELOPMENT EXPENSES AS ACTUALLY INCURRED BY THE APPELLANT WERE OF RS.7,75,17,766/-. 7. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF T HE CASE AND IN LAW, THE LD. CIT(A) ERRED IN MAINTAINING THE ADDITI ON OF RS. 36,67,707/- OUT OF THE TOTAL ADDITION OF RS. RS.3,2 8,86,624/- AS MADE BY THE ASSESSING OFFICER TO THE TOTAL INCOME O F THE APPELLANT BY REFERRING THE MATTER TO THE DVO FOR ESTIMATION O F THE COST OF CONSTRUCTION/DEVELOPMENT INCURRED IN THE PROJECT WI THOUT POINTING OUT ANY SPECIFIC DEFECTS AND ALSO WITHOUT REJECTING THE REGULAR BOOKS OF ACCOUNTS AS MAINTAINED BY THE APPELLANT. 8. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE AND IN LAW, THE LD. CIT(A) ERRED IN MAINTAIN THE ADDITION OF RS. 36,67,707/- TO THE TOTAL INCOME OF THE APPELLANT ON ACCOUNT OF ADDITIONAL COST OF CONSTRUCTION/DEVELOPMENT INCURRE D IN THE PROJECT AFTER ALLOWING MARGIN OF ONLY 30% (25% FOR DIFFERENCE IN CPWD AND PWD RATES AND 5% FOR SELF-SUPERVISION) EVE N WHEN MARGIN OF 30% IS ALLOWABLE ON ACCOUNT OF DIFFERENCE IN CPWD AND PWD RATED AND MARGIN OF 10-12.5% IS ALLOWABLE FOR S ELF- SUPERVISION. 9. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE AND IN LAW, THE LD. CIT(A) GROSSLY ERRED IN NOT ALLOWING R ELIEF TO THE APPELLANT ON ACCOUNT OF SPECIFIC DISCREPANCIES IN T HE REPORT OF THE GOLDEN REALITIES (SS)59 OF 2019 AND OTHERS 7 DVO AS POINTED OUT BY THE APPELLANT DURING THE COUR SE OF ASSESSMENT AS WELL AS APPELLANT PROCEEDINGS. 10. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF T HE CASE AND IN LAW, THE LD. CIT(A) ERRED IN MAINTAINING THE INTERE ST AS CHARGED BY THE ASSESSING OFFICER UNDER SECTION 234A AND 234 B OF THE ACT. 11. THE APPELLANT RESERVES ITS RIGHT TO ADD, ALTER AND MODIFY THE GROUNDS OF APPEAL AS TAKEN BY IT. IT(SS)ANO.80/IND/2019 DEPARTMENTAL APPEAL 1.THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE THE LD. CIT(A) ERRED IN DELETING THE ADDITION OF RS.1,70,14 ,750/- MADE BY THE ASSESSING OFFICER ON ACCOUNT OF UNDISCLOSED INV ESTMENT U/S 69B OF THE INCOME TAX ACT, 1961. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E, THE LD. CIT(A) ERRED IN DELETING THE ADDITION OF RS.2,53,55 5/- MADE BY THE ASSESSING OFFICER ON THE BASIS OF UNEXPLAINED C ASH RECEIVED FROM SMT. SUNITA RAI. 3. THE APPELLANT RESERVES HIS RIGHT TO ADD, AMEND O R ALTER THE GROUNDS OF APPEAL ON OR BEFORE THE DATE THE APPEAL IS FINALLY HEARD FOR DISPOSAL. IT(SS)ANO.81/IND/2019 DEPARTMENTAL APPEAL 1.THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE THE LD. CIT(A) ERRED IN DELETING THE ADDITION OF RS.3,33,94 ,473/- MADE BY THE ASSESSING OFFICER ON ACCOUNT OF UNDISCLOSED INV ESTMENT U/S 69B OF THE INCOME TAX ACT, 1961. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E, THE LD. CIT(A) ERRED IN DELETING THE ADDITION OF RS.3,74,00 0/- MADE BY THE ASSESSING OFFICER ON THE BASIS OF UNEXPLAINED C ASH RECEIVED FROM SMT. SUNITA RAI. 3. THE APPELLANT RESERVES HIS RIGHT TO ADD, AMEND O R ALTER THE GROUNDS OF APPEAL ON OR BEFORE THE DATE THE APPEAL IS FINALLY HEARD FOR DISPOSAL. IT(SS)ANO.82/IND/2019 DEPARTMENTAL APPEAL 1.THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE THE LD. CIT(A) ERRED IN DELETING THE ADDITION OF RS.2,92,18 ,917/- MADE BY THE ASSESSING OFFICER ON ACCOUNT OF UNDISCLOSED INV ESTMENT U/S 69B OF THE INCOME TAX ACT, 1961. 2. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE THE LD. CIT(A) ERRED IN TREATING THE ADDITIONAL INCOME OF R S.2,95,00,000/- ADMITTED BY THE ASSESSEE DURING THE COURSE OF SURVE Y UNDER THE GOLDEN REALITIES (SS)59 OF 2019 AND OTHERS 8 HEAD INCOME FROM OTHER SOURCES WHEREAS THE ASSESS ING OFFICER HAS RIGHTLY TAXED THE ADDITIONAL INCOME ADMITTED BY THE ASSESSEE DURING THE COURSE OF SURVEY U/S 69B OF THE ACT. 3. THE APPELLANT RESERVES HIS RIGHT TO ADD, AMEND O R ALTER THE GROUNDS OF APPEAL ON OR BEFORE THE DATE THE APPEAL IS FINALLY HEARD FOR DISPOSAL. AS THE ISSUES RAISED IN THESE APPEALS ARE MOSTLY CO MMON AND RELATE TO SAME ASSESSEE, AT THE REQUEST OF BOTH THE PARTIES, THESE APPEALS WERE HEARD TOGETHER AND ARE BEING DISPOSED OF BY THIS COMMON ORDER FOR SAKE OF CONVENIENCE AND BREVITY. 2. BRIEF FACTS AS CULLED OUT FROM THE RECORDS ARE T HAT THE ASSESSEE IS A PARTNERSHIP FIRM FORMED ON 01.03.2012 ENGAGED IN THE BUSINESS OF REAL ESTATE. SEARCH ACTION U/S 132 OF THE ACT WAS CONDUCTED AT THE VARIOUS PREMISES OF THE GROUP ON 0 5.10.2015 AND THEREAFTER SURVEY ACTION WAS ALSO CONDUCTED AT THE BUSINESS PREMISES OF THE ASSESSEE. SUBSEQUENTLY, NOTICES U/S 153C OF THE ACT WERE ISSUED ON 15.11.2016 FOR AY 2012-13 TO 201 5-16. NOTICES U/S 143(2) & 142(1) OF THE ACT WERE ISSUED AND DULY SERVED UPON THE ASSESSEE. VARIOUS DETAILS WERE CALL ED FOR BY THE ASSESSING OFFICER WHICH WERE REPLIED BY THE ASSESSE E. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, REFERENCE WAS MAD E TO VALUATION OFFICER (IN SHORT THE DVO) ON 06.04.201 7 FOR DETERMINATION OF COST OF CONSTRUCTION OF PROJECT UN DERTAKEN BY GOLDEN REALITIES (SS)59 OF 2019 AND OTHERS 9 THE ASSESSEE. THE DVO SUBMITTED HIS REPORT ON 17.08 .2017. THE ASSESSEE CHALLENGED THE CPWD RATES ADOPTED BY THE D VO FOR VALUATION PURPOSE. THE ASSESSEE ALSO POINTED OUT VA RIOUS DISCREPANCIES IN THE VALUATION REPORT SUBMITTED BY THE DVO. HOWEVER, THE ASSESSEE FAILED TO FIND ANY FAVOUR FRO M THE LD. ASSESSING OFFICER AND THE LD. ASSESSING OFFICER COM PLETED ASSESSMENT U/S 153C R.W.S. 143(3) OF THE ACT FOR AY 2012-13 TO 2015-16 AND U/S 143(3) OF THE ACT FOR AY 2016-17 AF TER MAKING THE FOLLOWING ADDITIONS: AMOUNT (RS.) S.NO. NATURE OF ADDITIONS AY 2013-14 AY 2014-15 AY 2015-16 AY 2016-17 1 ADDITION ON ACCOUNT OF UNDISCLOSED INVESTMENT IN CONSTRUCTION OF PROJECT 94,71,070 2,02,26,080 3,96,64,189 3,28,86,624 2 ADDITION ON ACCOUNT OF UNEXPLAINED CASH RECEIVED FROM SMT. SUNITA RAI - 2,53,555 3,74,000 - TOTAL ADDITIONS 94,71,070 2,04,79,635 4,00,38,189 3,28,86,624 3. AGGRIEVED ASSESSEE PREFERRED AN APPEAL BEFORE TH E LD. CIT(A) AND PARTLY SUCCEEDED. AS REGARDS THE ADDITION ON AC COUNT OF UNDISCLOSED INVESTMENT IN CONSTRUCTION OF PROJECT, THE RELIEF GOLDEN REALITIES (SS)59 OF 2019 AND OTHERS 10 ALLOWED AND ADDITIONS CONFIRMED BY THE LD. CIT(A) A RE TABULATED AS UNDER: AMOUNT (RS.) S.NO. AY ADDITIONS MADE BY THE LD. ASSESSING OFFICER RELIEF ALLOWED BY THE LD. CIT(A) ADDITIONS CONFIRMED BY THE LD. CIT(A) 1 2013-14 94,71,070 82,31,549 12,39,521 2 2014-15 2,02,26,080 1,70,14,750 32,11,330 3 2015-16 3,96,64,189 3,33,94,473 62,69,716 4 2016-17 3,28,86,624 2,92,18,917 36,67,707 4. AS REGARDS THE ADDITION ON ACCOUNT OF UNEXPLAINE D CASH RECEIVED FROM SMT. SUNITA RAI, THE LD. CIT(A) DELET ED THE ADDITION MADE BY THE LD. ASSESSING OFFICER. AGAINST THE ORDE R PASSED BY THE LD CIT(A) BOTH THE ASSESSEE AND DEPARTMENT ARE IN APPEAL BEFORE THE TRIBUNAL. 5. WE WILL FIRST TAKE UP THE ASSESSEES APPEAL IN I T(SS)A NO. 62/IND/2019 AS THE GROUNDS OF APPEAL TAKEN IN ASSES SEES APPEALS FOR ALL THE OTHER YEARS ARE SIMILAR TO THE GROUNDS OF APPEAL TAKEN IN THE PRESENT APPEAL I.E. IT(SS)A NO. 62/IND/2019. 6. GROUND NOS. 1 & 2 RAISED BY THE ASSESSEE CHALLEN GE THE FINDINGS OF THE LD. CIT(A) UPHOLDING THE VALIDITY O F ASSESSMENT ORDER PASSED U/S 143(3) OF THE ACT FOR THE AY 2016- 17 INSTEAD OF SECTION 153C R.W.S. 143(3) OF THE ACT. GOLDEN REALITIES (SS)59 OF 2019 AND OTHERS 11 7. BRIEF FACTS RELATING TO THIS ISSUE ARE THAT DATE OF SEARCH IN THE CASE OF THE GROUP WAS 05.10.2015. THE DOCUMENTS RELATED TO THE ASSESSEE FOUND DURING THE COURSE OF SEARCH FROM THE VARIOUS PREMISES OF THE GROUP WERE HANDED OVER TO THE LD. A SSESSING OFFICER OF THE ASSESSEE ON 15.11.2016. THE LD. ASSE SSING OFFICER HOWEVER DID NOT ISSUE ANY NOTICE U/S 153C OF THE AC T FOR THE AY 2016-17 AND PASSED ASSESSMENT ORDER U/S 143(3) OF T HE ACT FOR THE YEAR UNDER CONSIDERATION. 8. THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT NO SEARCH WAS CARRIED OUT AT THE BUSINESS PREMISES OF THE ASS ESSEE AND THAT THE DOCUMENTS RELATED TO THE ASSESSEE WERE FOUND DU RING THE COURSE OF SEARCH CARRIED OUT AT THE VARIOUS OTHER P REMISES OF THE GROUP. THE LD. COUNSEL CONTENDED THAT DATE OF INITI ATION OF SEARCH IN CASE OF OTHER PERSON IS THE DATE ON WHICH BOOKS OF ACCOUNTS OR DOCUMENTS OR ASSETS SEIZED DURING THE C OURSE OF SEARCH ARE HANDED OVER TO THE ASSESSING OFFICER OF THE OTHER PERSON WHICH IN THE PRESENT CASE WAS 15.11.2016 AND NOT 05.10.2015 AND ACCORDINGLY, NOTICE U/S 153C OF THE ACT OUGHT TO HAVE BEEN ISSUED AND ASSESSMENT ORDER OUGHT TO HAVE BEEN PASSED U/S 153C R.W.S. 143(3) OF THE ACT FOR THE AY 2016-17. GOLDEN REALITIES (SS)59 OF 2019 AND OTHERS 12 9. THE LD. COUNSEL FOR THE ASSESSEE ALSO RELIED UPO N THE FOLLOWING WRITTEN SUBMISSION: 3.4.1] THAT DATE OF RECEIPT OF DOCUMENTS BY THE ASS ESSING OFFICER OF THE OTHER PERSON IS THE DATE OF SEARCH IN THE CASE OF THE OTHER PERSON AS IS ALSO HELD BY VARIOUS JUDICIAL PRECEDEN TS. THAT RELEVANT EXTRACTS FROM FEW OF THE JUDICIAL PRECEDENTS ARE RE PRODUCED AS UNDER: 3.4.2.1] THAT HONBLE DELHI HIGH COURT IN THE CASE OF CIT VS RRJ SECURITIES LIMITED [APPEAL NO ITA NO 164/2015 DATED 30.10.2015 ] HAS HELD THAT : 24. AS DISCUSSED HEREINBEFORE, IN TERMS OF PROVISO TO SECTION 153C OF THE ACT, A REFERENCE TO THE DATE OF THE SEARCH U NDER THE SECOND PROVISO TO SECTION 153A OF THE ACT HAS TO BE CONSTR UED AS THE DATE OF HANDING OVER OF ASSETS/DOCUMENTS BELONGING TO TH E ASSESSEE (BEING THE PERSON OTHER THAN THE ONE SEARCHED) TO T HE AO HAVING JURISDICTION TO ASSESS THE SAID ASSESSEE. FURTHER P ROCEEDINGS, BY VIRTUE OF SECTION 153C(1) OF THE ACT, WOULD HAVE TO BE IN ACCORDANCE WITH SECTION 153A OF THE ACT AND THE REFERENCE TO T HE DATE OF SEARCH WOULD HAVE TO BE CONSTRUED AS THE REFERENCE TO THE DATE OF RECORDING OF SATISFACTION. IT WOULD FOLLOW THAT THE SIX ASSESSMENT YEARS FOR WHICH ASSESSMENTS/REASSESSMENTS COULD BE MADE UNDER SECTION 153C OF THE ACT WOULD ALSO HAVE TO BE CONST RUED WITH REFERENCE TO THE DATE OF HANDING OVER OF ASSETS/DOC UMENTS TO THE AO OF THE ASSESSEE. IN THIS CASE, IT WOULD BE THE D ATE OF THE RECORDING OF SATISFACTION UNDER SECTION 153C OF THE ACT, I.E., 8TH SEPTEMBER, 2010. IN THIS VIEW, THE ASSESSMENTS MADE IN RESPECT OF ASSESSMENT YEAR 2003-04 AND 2004-05 WOULD BE BEYOND THE PERIOD OF SIX ASSESSMENT YEARS AS RECKONED WITH REF ERENCE TO THE DATE OF RECORDING OF SATISFACTION BY THE AO OF THE SEARCHED PERSON. IT IS CONTENDED BY THE REVENUE THAT THE RELEVANT SI X ASSESSMENT YEARS WOULD BE THE ASSESSMENT YEARS PRIOR TO THE AS SESSMENT YEAR RELEVANT TO THE PREVIOUS YEAR IN WHICH THE SEARCH W AS CONDUCTED. IF THIS INTERPRETATION AS CANVASSED BY THE REVENUE IS ACCEPTED, IT WOULD MEAN THAT WHEREAS IN CASE OF A PERSON SEARCHE D, ASSESSMENTS IN RELATION TO SIX PREVIOUS YEARS PRECE DING THE YEAR IN WHICH THE SEARCH TAKES PLACE CAN BE REOPENED BUT IN CASE OF ANY OTHER PERSON, WHO IS NOT SEARCHED BUT HIS ASSETS AR E SEIZED FROM THE SEARCHED PERSON, THE PERIOD FOR WHICH THE ASSES SMENTS COULD BE REOPENED WOULD BE MUCH BEYOND THE PERIOD OF SIX YEARS. THIS IS SO BECAUSE THE DATE OF HANDING OVER OF ASSETS/DOCUM ENTS OF A PERSON, OTHER THAN THE SEARCHED PERSON, TO THE AO W OULD BE SUBSEQUENT TO THE DATE OF THE SEARCH. THIS, IN OUR VIEW, WOULD BE CONTRARY TO THE SCHEME OF SECTION 153C(1) OF THE AC T, WHICH CONSTRUES THE DATE OF RECEIPT OF ASSETS AND DOCUMEN TS BY THE AO OF GOLDEN REALITIES (SS)59 OF 2019 AND OTHERS 13 THE ASSESSEE (OTHER THAN ONE SEARCHED) AS THE DATE OF THE SEARCH ON THE ASSESSEE. THE RATIONALE APPEARS TO BE THAT WHER EAS IN THE CASE OF A SEARCHED PERSON THE AO OF THE SEARCHED PERSON ASSUMES POSSESSION OF SEIZED ASSETS/DOCUMENTS ON SEARCH OF THE ASSESSEE; THE SEIZED ASSETS/DOCUMENTS BELONGING TO A PERSON O THER THAN A SEARCHED PERSON COME INTO POSSESSION OF THE AO OF T HAT PERSON ONLY AFTER THE AO OF THE SEARCHED PERSON IS SATISFIED TH AT THE ASSETS/DOCUMENTS DO NOT BELONG TO THE SEARCHED PERS ON. THUS, THE DATE ON WHICH THE AO OF THE PERSON OTHER THAN THE O NE SEARCHED ASSUMES THE POSSESSION OF THE SEIZED ASSETS WOULD B E THE RELEVANT DATE FOR APPLYING THE PROVISIONS OF SECTION 153A OF THE ACT. WE, THEREFORE, ACCEPT THE CONTENTION THAT IN ANY VIEW O F THE MATTER, ASSESSMENT FOR AY 2003-04 AND AY 2004-05 WERE OUTSI DE THE SCOPE OF SECTION 153C OF THE ACT AND THE AO HAD NO JURISDICTION TO MAKE AN ASSESSMENT OF THE ASSESSEES INCOME FOR THA T YEAR. 3.4.2.2] THAT HONBLE ITAT DELHI BENCH IN THE CASE OF RAJEEV BEHL VS DCIT [APPEAL NOS ITA NOS 1927 TO 1931/DEL/2015 D ATED 29-06- 2016 HAS ALSO EXPRESSED SIMILAR VIEW IN PARA 34 OF ITS ORDER WHICH IS REPRODUCED AS UNDER: 34. THE BLOCK PERIOD, IN VIEW OF FIRST PROVISO TO SECTION 153C , HAD TO BE DETERMINED FOR THE PURPOSES OF SECOND PROVISO TO SECTION 153A FROM THE DATE WHEN THE BOOKS OF A/C WERE HANDED OV ER TO THE AO OF PERSON OTHER THAN THE SEARCHED PERSON. RE SPECTFULLY FOLLOWING THE AFOREMENTIONED DECISION OF HON'BLE DE LHI HIGH COURT IN THE CASE OF RRJ SECURITIES LTD. (SUPRA)WE HOLD T HAT ASSESSMENT FOR AY 2007-08 WAS OUTSIDE THE AMBIT OF THE BLOCK P ERIOD AND THE AO HAD NO JURISDICTION TO MAKE ASSESSMENT OF THE AS SESSEE'S INCOME FOR THAT YEAR. ACCORDINGLY, ASSESSE'S APPEAL FOR AY 2007-08 IS ALLOWED. 3.4.2.3] THAT HONBLE ITAT DELHI BENCH IN THE CASE OF M/S R L ALLIED INDUSTRIES VS ITO AS REPORTED IN [2015] 54 T AXMANN.COM 222 (DELHITRIB.)/[2015] 37 ITR(T) 507 (DELHI-TRIB.)/[2 015] 167 TTJ 20 (DELHI TRIB.) (UO) HAS HELD THAT: 8. THUS, AS PER SECTION 153A(1)(B), THE ASSESSING OFFICER IS EMPOWERED TO ASSESS OR REASSESS THE TOTAL INCOME OF THE SIX ASSESSMENT YEARS IMMEDIATELY PRECEDING THE ASSESSME NT YEAR RELEVANT TO THE ASSESSMENT YEAR IN WHICH SEARCH IS CONDUCTED. THUS, IN OTHER WORDS, HE HAS TO ASSESS THE SEARCH Y EAR AND SIX PRECEDING YEARS. AS PER PROVISO TO SECTION 153C, FO R THE PURPOSE OF SECTION 153C, THE DATE OF RECEIVING THE BOOKS OF AC COUNT OR DOCUMENTS SHALL BE CONSIDERED THE DATE OF SEARCH. T HEREFORE, WITH THE COMBINED READING OF PROVISO TO SECTION 153C AND SECTION 153A(1)(B), IT IS CLEAR THAT IN THE CASE OF THE PER SON IN WHOSE CASE ACTION IS REQUIRED UNDER SECTION 153C, THE ASSESSIN G OFFICER IS EMPOWERED TO TAKE ACTION UNDER SECTION 153C FOR THE YEAR IN WHICH GOLDEN REALITIES (SS)59 OF 2019 AND OTHERS 14 THE SEIZED DOCUMENT IS RECEIVED BY HIM AND THE PREC EDING SIX YEARS. IN THE CASE UNDER APPEAL BEFORE US, AS MENTI ONED BY THE ASSESSING OFFICER IN PARAGRAPH 2 OF HIS ORDER, THE SEIZED MATERIAL WAS RECEIVED ON 12TH MARCH, 2009 FROM ACIT, CENTRAL CIRCLE-17. THUS, THE YEAR IN WHICH SEIZED MATERIAL WAS SEIZED IS PREVIOUS YEAR 2008-09 RELEVANT TO AY 2009-10. THE PRECEDING SIX YEARS WOULD BE AY 2008-09, 2007-08, 2006-07, 2005-06, 200 4-05 AND 2003-04. THEREFORE, AFTER CONSIDERING THE FACTS OF THE ASSESSEE'S CASE AND COMBINED READING OF SECTION 153C AS WELL A S SECTION 153A, IN OUR OPINION, THE ISSUE OF NOTICE UNDER SEC TION 153C FOR AY 2001-02 & 2002-03 IS BARRED BY LIMITATION. ACCORDIN GLY, WE QUASH THE SAME AND CONSEQUENTIALLY, THE ASSESSMENT ORDER PASSED IN PURSUANCE TO THE NOTICE ISSUED UNDER SECTION 153C I S ALSO QUASHED. 3.4.3] THAT IN VIEW OF THE FACTS OF THE CASE AND TH E DECISIONS AS REFERRRED, IT IS CLEAR THAT THE DATE OF SEARCH IN T HE CASE OF THE APPELLANT WAS 15-11-2016 I.E. THE DATE ON WHICH NOT ICE UNDER SECTION 153C OF THE ACT WAS ISSUED AND NOT THE DATE ON WHICH SEARCH WAS ACTUALLY EXECUTED ON THE PERSON SEARCHED I.E. ON 05-10- 2015. HENCE, ADDITIONS MADE TILL THE ASST YEAR 2015 -16 IN ABSENCE OF ANY INCRIMINATING MATERIAL IN POSSESSION OF THE ASSESSING OFFICER WERE NOT JUSTIFIED. 10. PER CONTRA LD. DR VEHEMENTLY ARGUED SUPPORTING THE FINDING OF BOTH LOWER AUTHORITIES. 11. WE HAVE HEARD RIVAL CONTENTIONS AND PERUSED THE RECORDS PLACED BEFORE US AND CAREFULLY GONE THROUGH THE SUB MISSIONS MADE BY BOTH THE SIDES. THROUGH GROUND NOS. 1 & 2, THE ASSESSEE HAS CHALLENGED THE FINDING OF LD. CIT(A) U PHOLDING THE VALIDITY OF ASSESSMENT ORDER PASSED U/S 143(3) OF T HE ACT FOR THE AY 2016-17 INSTEAD OF SECTION 153C R.W.S. 143(3) OF THE ACT. WE NOTICE THAT THE SOLE CONTENTION OF THE ASSESSEE IN THESE GROUNDS OF APPEAL IS THAT AY 2016-17 FELL WITHIN THE PURVIEW O F SECTION 153C OF THE ACT AND HENCE, NOTICE OUGHT TO HAVE BEEN ISS UED U/S 153C GOLDEN REALITIES (SS)59 OF 2019 AND OTHERS 15 OF THE ACT AND ASSESSMENT ORDER OUGHT TO HAVE BEEN PASSED U/S 153C R.W.S. 143(3) OF THE ACT FOR AY 2016-17. THERE IS NO DISPUTE REGARDING THE FACT THAT SEARCH ACTION AT THE PREMIS ES OF OTHER PERSONS OF THE GROUP WAS CONDUCTED ON 05.10.2015. F URTHER, IT IS ALSO AN UNCONTROVERTED FACT THAT DOCUMENTS SEIZED D URING THE COURSE OF SEARCH WERE HANDED OVER TO THE ASSESSING OFFICER OF THE OTHER PERSON I.E. TO THE ASSESSING OFFICER OF THE A SSESSEE ONLY ON 15.11.2016 AND THEREAFTER NOTICES WERE ISSUED U/S 1 53C OF THE ACT. THE PROVISION OF SECTION 153C OF THE ACT READS AS UNDER: 153C. (1) NOTWITHSTANDING ANYTHING CONTAINED IN SEC TION 139, SECTION 147, SECTION 148, SECTION 149, SECTION 151 AND SECTION 153, WHERE THE ASSESSING OFFICER IS SATISFIED THAT, (A) ANY MONEY, BULLION, JEWELLERY OR OTHER VALUABL E ARTICLE OR THING, SEIZED OR REQUISITIONED, BELONGS TO; OR (B) ANY BOOKS OF ACCOUNT OR DOCUMENTS, SEIZED OR R EQUISITIONED, PERTAINS OR PERTAIN TO, OR ANY INFORMATION CONTAINE D THEREIN, RELATES TO, A PERSON OTHER THAN THE PERSON REFERRED TO IN SECTI ON 153A, THEN, THE BOOKS OF ACCOUNT OR DOCUMENTS OR ASSETS, SEIZED OR REQUISITIONED SHALL BE HANDED OVER TO THE ASSESSING OFFICER HAVIN G JURISDICTION OVER SUCH OTHER PERSON AND THAT ASSESSING OFFICER S HALL PROCEED AGAINST EACH SUCH OTHER PERSON AND ISSUE NOTICE AND ASSESS OR REASSESS THE INCOME OF THE OTHER PERSON IN ACCORDAN CE WITH THE PROVISIONS OF SECTION 153A, IF, THAT ASSESSING OFFI CER IS SATISFIED THAT THE BOOKS OF ACCOUNT OR DOCUMENTS OR ASSETS SEIZED OR REQUISITIONED HAVE A BEARING ON THE DETERMINATION OF THE TOTAL IN COME OF SUCH OTHER PERSON FOR SIX ASSESSMENT YEARS IMMEDIATELY PRECEDI NG THE ASSESSMENT YEAR RELEVANT TO THE PREVIOUS YEAR IN WH ICH SEARCH IS CONDUCTED OR REQUISITION IS MADE AND FOR THE RELEVA NT ASSESSMENT YEAR OR YEARS REFERRED TO IN SUB-SECTION (1) OF SEC TION 153A : PROVIDED THAT IN CASE OF SUCH OTHER PERSON, THE REFERENCE T O THE DATE OF INITIATION OF THE SEARCH UNDER SECTION 132 OR MA KING OF REQUISITION UNDER SECTION 132A IN THE SECOND PROVISO TO SUB-SEC TION (1) OF SECTION 153A SHALL BE CONSTRUED AS REFERENCE TO THE DATE OF RECEIVING GOLDEN REALITIES (SS)59 OF 2019 AND OTHERS 16 THE BOOKS OF ACCOUNT OR DOCUMENTS OR ASSETS SEIZED OR REQUISITIONED BY THE ASSESSING OFFICER HAVING JURISDICTION OVER S UCH OTHER PERSON : PROVIDED FURTHER THAT THE CENTRAL GOVERNMENT MAY BY RULES13 MADE BY IT AND PUBLISHED IN THE OFFICIAL GAZETTE, S PECIFY THE CLASS OR CLASSES OF CASES IN RESPECT OF SUCH OTHER PERSON, I N WHICH THE ASSESSING OFFICER SHALL NOT BE REQUIRED TO ISSUE NO TICE FOR ASSESSING OR REASSESSING THE TOTAL INCOME FOR SIX ASSESSMENT YEARS IMMEDIATELY PRECEDING THE ASSESSMENT YEAR RELEVANT TO THE PREVIOUS YEAR IN WHICH SEARCH IS CONDUCTED OR REQUISITION IS MADE AND FOR THE RELEVANT ASSESSMENT YEAR OR YEARS AS REFERRED TO IN SUB-SECTION (1) OF SECTION 153A EXCEPT IN CASES WHERE ANY ASSESSMEN T OR REASSESSMENT HAS ABATED. (2) WHERE BOOKS OF ACCOUNT OR DOCUMENTS OR ASSETS S EIZED OR REQUISITIONED AS REFERRED TO IN SUB-SECTION (1) HAS OR HAVE BEEN RECEIVED BY THE ASSESSING OFFICER HAVING JURISDICTI ON OVER SUCH OTHER PERSON AFTER THE DUE DATE FOR FURNISHING THE RETURN OF INCOME FOR THE ASSESSMENT YEAR RELEVANT TO THE PREVIOUS YEAR IN WH ICH SEARCH IS CONDUCTED UNDER SECTION 132 OR REQUISITION IS MADE UNDER SECTION 132A AND IN RESPECT OF SUCH ASSESSMENT YEAR (A) NO RETURN OF INCOME HAS BEEN FURNISHED BY SUCH OTHER PERSON AND NO NOTICE UNDER SUB-SECTION (1) OF SECTION 142 HAS BEEN ISSUED TO HIM, OR (B) A RETURN OF INCOME HAS BEEN FURNISHED BY SUCH OTHER PERSON BUT NO NOTICE UNDER SUB-SECTION (2) OF SECTION 143 HAS BEEN SERVED AND LIMITATION OF SERVING THE NOTICE UNDER SUB-SECT ION (2) OF SECTION 143 HAS EXPIRED, OR (C) ASSESSMENT OR REASSESSMENT, IF ANY, HAS BEEN M ADE, BEFORE THE DATE OF RECEIVING THE BOOKS OF ACCOUNT O R DOCUMENTS OR ASSETS SEIZED OR REQUISITIONED BY THE ASSESSING OFF ICER HAVING JURISDICTION OVER SUCH OTHER PERSON, SUCH ASSESSING OFFICER SHALL ISSUE THE NOTICE AND ASSESS OR REASSESS TOTAL INCOM E OF SUCH OTHER PERSON OF SUCH ASSESSMENT YEAR IN THE MANNER PROVID ED IN SECTION 153A. FROM PERUSAL OF THE ABOVE PROVISION, WE FIND THAT P ROVISO TO SUB- SECTION (1) OF SECTION 153C OF THE ACT PROVIDES THA T THE REFERENCE TO THE DATE OF INITIATION OF THE SEARCH UNDER SECTI ON 132 OR MAKING OF REQUISITION UNDER SECTION 132A IN THE SEC OND PROVISO TO SUB-SECTION (1) OF SECTION 153A SHALL BE CONSTRU ED AS REFERENCE TO THE DATE OF RECEIVING THE BOOKS OF ACCOUNT OR DO CUMENTS OR GOLDEN REALITIES (SS)59 OF 2019 AND OTHERS 17 ASSETS SEIZED OR REQUISITIONED BY THE ASSESSING OFF ICER HAVING JURISDICTION OVER SUCH OTHER PERSON. FURTHER, SUB-SE CTION (2) OF SECTION 153C OF THE ACT PROVIDES THAT WHERE BOOKS O F ACCOUNTS OR DOCUMENTS OR ASSETS SEIZED OR REQUISITIONED AS REFE RRED TO IN SUB- SECTION (1) HAS OR HAVE BEEN RECEIVED BY THE ASSESS ING OFFICER HAVING JURISDICTION OVER SUCH OTHER PERSON AFTER THE DUE DATE FOR FURNISHING THE RETURN OF INCOME FOR THE ASSESSMENT YEAR RELEVANT TO THE PREVIOUS YEAR IN WHICH SEARCH IS CONDUCTED U NDER SECTION 132 AND IN RESPECT OF SUCH ASSESSMENT YEAR, NO RETU RN OF INCOME HAS BEEN FURNISHED BY SUCH OTHER PERSON AND NO NOTI CE UNDER SUB-SECTION (1) OF SECTION 142 HAS BEEN ISSUED TO H IM; BEFORE THE DATE OF RECEIVING THE BOOKS OF ACCOUNT OR DOCUMENTS OR ASSETS SEIZED OR REQUISITIONED BY THE ASSESSING OFFICER HA VING JURISDICTION OVER SUCH OTHER PERSON, SUCH ASSESSING OFFICER SHALL ISSUE THE NOTICE AND ASSESS OR REASSESS TOTAL INCOM E OF SUCH OTHER PERSON OF SUCH ASSESSMENT YEAR IN THE MANNER PROVIDED IN SECTION 153A. IN THE INSTANT CASE, THE DOCUMENTS RE LATED TO THE ASSESSEE WERE HANDED OVER TO THE ASSESSING OFFICER OF THE ASSESSEE ONLY ON 15.11.2016 AND HENCE, REFERENCE TO THE DATE OF INITIATION OF THE SEARCH UNDER SECTION 132 SHALL BE CONSTRUED AS 15.11.2016 AS PER PROVISO TO SUB-SECTION (1) OF SEC TION 153C OF GOLDEN REALITIES (SS)59 OF 2019 AND OTHERS 18 THE ACT. FURTHER, THE DOCUMENTS SEIZED DURING THE C OURSE OF SEARCH WERE HANDED OVER TO THE ASSESSING OFFICER OF THE ASSESSEE AFTER THE DUE DATE FOR FURNISHING THE RETURN OF INC OME FOR THE AY 2016-17 AND IN RESPECT OF AY 2016-17, NO RETURN OF INCOME WAS FURNISHED BY THE ASSESSEE AND NO NOTICE UNDER SUB-S ECTION (1) OF SECTION 142 WAS ISSUED BEFORE THE DATE OF RECEIPT O F THE DOCUMENTS BY THE ASSESSING OFFICER HAVING JURISDICTI ON OVER THE ASSESSEE I.E. ON 15.11.2016. THEREFORE, ON A CONJOIN T READING OF THE PROVISIONS CONTAINED IN SECTION 153C OF THE ACT , IT SEEMS THAT THE ASSESSING OFFICER SHOULD HAVE ISSUED NOTICE U/S 153C OF THE ACT AND SHOULD HAVE ASSESSED TOTAL INCOME OF THE AS SESSEE OF AY 2016-17 IN THE MANNER PROVIDED IN SECTION 153A OF T HE ACT. 12. WE ALSO NOTICE THAT THE ISSUE OF SCOPE OF SECTI ON 153C OF THE ACT CAME UP BEFORE THE HONBLE DELHI HIGH COURT IN THE CASE OF CIT-7 V. RRJ SECURITIES LTD. REPORTED IN [2016] 380 ITR 612 (DELHI) WHEREIN HONBLE HIGH COURT HELD THAT: 24. AS DISCUSSED HEREINBEFORE, IN TERMS OF PROVISO TO SECTION 153C OF THE ACT, A REFERENCE TO THE DATE OF THE SEARCH U NDER THE SECOND PROVISO TO SECTION 153A OF THE ACT HAS TO BE CONSTR UED AS THE DATE OF HANDING OVER OF ASSETS/DOCUMENTS BELONGING TO THE A SSESSEE (BEING THE PERSON OTHER THAN THE ONE SEARCHED) TO THE AO H AVING JURISDICTION TO ASSESS THE SAID ASSESSEE. FURTHER P ROCEEDINGS, BY VIRTUE OF SECTION 153C(1) OF THE ACT, WOULD HAVE TO BE IN ACCORDANCE WITH SECTION 153A OF THE ACT AND THE REFERENCE TO T HE DATE OF SEARCH WOULD HAVE TO BE CONSTRUED AS THE REFERENCE TO THE DATE OF RECORDING OF SATISFACTION. IT WOULD FOLLOW THAT THE SIX ASSES SMENT YEARS FOR WHICH ASSESSMENTS/REASSESSMENTS COULD BE MADE UNDER SECTION GOLDEN REALITIES (SS)59 OF 2019 AND OTHERS 19 153C OF THE ACT WOULD ALSO HAVE TO BE CONSTRUED WIT H REFERENCE TO THE DATE OF HANDING OVER OF ASSETS/DOCUMENTS TO THE AO OF THE ASSESSEE. IN THIS CASE, IT WOULD BE THE DATE OF THE RECORDING OF SATISFACTION UNDER SECTION 153C OF THE ACT, I.E., 8 TH SEPTEMBER, 2010. IN THIS VIEW, THE ASSESSMENTS MADE IN RESPECT OF ASSESSMENT YEARS 2003-04 AND 2004-05 WOULD BE BEYOND THE PERIO D OF SIX ASSESSMENT YEARS AS RECKONED WITH REFERENCE TO THE DATE OF RECORDING OF SATISFACTION BY THE AO OF THE SEARCHED PERSON. IT IS CONTENDED BY THE REVENUE THAT THE RELEVANT SIX ASSE SSMENT YEARS WOULD BE THE ASSESSMENT YEARS PRIOR TO THE ASSESSME NT YEAR RELEVANT TO THE PREVIOUS YEAR IN WHICH THE SEARCH W AS CONDUCTED. IF THIS INTERPRETATION AS CANVASSED BY THE REVENUE IS ACCEPTED, IT WOULD MEAN THAT WHEREAS IN CASE OF A PERSON SEARCHE D, ASSESSMENTS IN RELATION TO SIX PREVIOUS YEARS PRECE DING THE YEAR IN WHICH THE SEARCH TAKES PLACE CAN BE REOPENED BUT IN CASE OF ANY OTHER PERSON, WHO IS NOT SEARCHED BUT HIS ASSETS AR E SEIZED FROM THE SEARCHED PERSON, THE PERIOD FOR WHICH THE ASSESSMEN TS COULD BE REOPENED WOULD BE MUCH BEYOND THE PERIOD OF SIX YEA RS. THIS IS SO BECAUSE THE DATE OF HANDING OVER OF ASSETS/DOCUMENT S OF A PERSON, OTHER THAN THE SEARCHED PERSON, TO THE AO WOULD BE SUBSEQUENT TO THE DATE OF THE SEARCH. THIS, IN OUR VIEW, WOULD BE CONTRARY TO THE SCHEME OF SECTION 153C(1) OF THE ACT, WHICH CONSTRU ES THE DATE OF RECEIPT OF ASSETS AND DOCUMENTS BY THE AO OF THE AS SESSEE (OTHER THAN ONE SEARCHED) AS THE DATE OF THE SEARCH ON THE ASSESSEE. THE RATIONALE APPEARS TO BE THAT WHEREAS IN THE CASE OF A SEARCHED PERSON THE AO OF THE SEARCHED PERSON ASSUMES POSSES SION OF SEIZED ASSETS/DOCUMENTS ON SEARCH OF THE ASSESSEE; THE SEI ZED ASSETS/DOCUMENTS BELONGING TO A PERSON OTHER THAN A SEARCHED PERSON COME INTO POSSESSION OF THE AO OF THAT PERSO N ONLY AFTER THE AO OF THE SEARCHED PERSON IS SATISFIED THAT THE ASS ETS/DOCUMENTS DO NOT BELONG TO THE SEARCHED PERSON. THUS, THE DAT E ON WHICH THE AO OF THE PERSON OTHER THAN THE ONE SEARCHED ASSUME S THE POSSESSION OF THE SEIZED ASSETS WOULD BE THE RELEVA NT DATE FOR APPLYING THE PROVISIONS OF SECTION 153A OF THE ACT. WE, THEREFORE, ACCEPT THE CONTENTION THAT IN ANY VIEW OF THE MATTE R, ASSESSMENT FOR AY 2003-04 AND AY 2004-05 WERE OUTSIDE THE SCOPE OF SECTION 153C OF THE ACT AND THE AO HAD NO JURISDICTION TO M AKE AN ASSESSMENT OF THE ASSESSEE'S INCOME FOR THAT YEAR. 13. WE FURTHER WOULD LIKE TO REFER TO THE JUDGMENT O F HONBLE ITAT DELHI F BENCH IN THE CASE OF RAJEEV BEHL VS. DCIT CENTRAL CIRCLE-15, NEW DELHI (ITA NOS. 1927 TO 1931/DEL/201 5) WHEREIN GOLDEN REALITIES (SS)59 OF 2019 AND OTHERS 20 HONBLE COORDINATE BENCH DISCUSSED THE AFORESAID IS SUE AT LENGTH AND HELD THAT: 34. THE BLOCK PERIOD, IN VIEW OF FIRST PROVISO TO SECTION 153C, HAD TO BE DETERMINED FOR THE PURPOSES OF SECOND PROVISO TO SECTION 153A FROM THE DATE WHEN THE BOOKS OF A/C WERE HANDED OVE R TO THE AO OF PERSON OTHER THAN THE SEARCHED PERSON. RESPECTFULLY FOLLOWING THE AFOREMENTIONED DECISION OF HONBLE DELHI HIGH COURT IN THE CASE OF RRJ SECURITIES LTD. (SUPRA)WE HOLD THAT ASSESSMENT FOR AY 2007-08 WAS OUTSIDE THE AMBIT OF THE BLOCK PERIOD AND THE A O HAD NO JURISDICTION TO MAKE ASSESSMENT OF THE ASSESSEES I NCOME FOR THAT YEAR. ACCORDINGLY, ASSESSES APPEAL FOR AY 2007-08 IS ALLOWED. 51. IF WE CLOSELY ANALYZE THE PROVISIONS OF SECTION 153C, WE FIND THAT BY INCORPORATING SECOND PROVISO TO SECTION 153 C, THE DATE OF SEARCH HAS BEEN DEFERRED TO THE DATE OF TRANSFER OF ASSETS/ DOCUMENTS ETC. TO THE AO HAVING JURISDICTION OVER O THER PERSONS. THE CONSEQUENCE OF THIS WOULD BE TO RECKON THE BLOCK PE RIOD FROM THIS DATE. THEREFORE, LEGISLATURE HAS INCORPORATED SECTI ON 153C(2) AS PER WHICH, ASSESSMENT U/S 153A/153C IS TO BE MADE ONLY IF CONDITIONS CONTEMPLATED IN EITHER OF CLAUSE (A),(B) OR (C) U/S 153C(2) ARE FULFILLED. ALL THESE CLAUSES CONTEMPLATE VARIOUS SI TUATIONS WHERE ASSESSMENT HAS TO BE TREATED AS COMPLETED ASSESSMEN T. HOWEVER, IN RESPECT OF PENDING ASSESSMENT NO SUCH PROVISION HAS BEEN MADE. THEREFORE, FOR PENDING ASSESSMENTS AO HAS TO PASS A SSESSMENT ORDER U/S 143(1)/ 143(3). IF WE ACCEPT THE CONTENTI ON ADVANCED BY LD. COUNSEL, THEN SECTION 153C(2) WILL BE RENDERED OTIOSE. THIS SECTION HAS BEEN INCORPORATED IN VIEW OF THE DEEMIN G PROVISION CONTAINED IN SECOND PROVISO. HAD THE INTENTION OF L EGISLATURE WAS THAT ASSESSMENT ORDERS IN RESPECT OF ASSESSMENT YEA RS PRIOR TO THE DATE OF CONSTRUED SEARCH ARE TO BE PASSED U/S 153A/ 153C, THEN IT COULD INCORPORATE PROVISIONS IDENTICAL TO FIRST PRO VISO TO SECTION 153A FOR PASSING ASSESSMENT ORDERS. BUT THAT HAS NOT BEE N DONE. IN THIS REGARD IT IS PERTINENT TO NOTE THAT NO INCRIMINATIN G DOCUMENT IS LIKELY GOLDEN REALITIES (SS)59 OF 2019 AND OTHERS 21 TO BE FOUND ON DATE OF ACTUAL SEARCH RELATING TO PO ST SEARCH PERIOD. THEREFORE, THERE WAS NO NEED TO PASS ORDERS U/S 153 A IN RESPECT OF ASSESSMENT YEAR RELEVANT TO PERIOD AFTER THE DATE O F ACTUAL SEARCH. IT IS WELL SETTLED LAW THAT ALL ORDERS PASSED BY AUTHO RITIES ARE WITHIN JURISDICTION UNLESS CONTRARY IS ESTABLISHED. 52. ADMITTEDLY THE DOCUMENTS WERE RECEIVED BY AO OF ASSESSEE AFTER THE DUE DATE FOR FURNISHING THE RETURN OF INC OME FOR ASSESSMENT YEAR 2012-13 RELEVANT TO PREVIOUS YEAR 2011-12. THE REFORE, ASSESSMENT COULD BE FRAMED U/S 153A/ 153C ONLY WHEN ANY OF THE CONDITIONS CONTEMPLATED UNDER CLAUSES (A), (B) OR ( C) ARE FULFILLED. 14. WE FURTHER FIND THAT HONBLE ITAT DELHI F BENCH IN THE CASE OF M/S R.L. ALLIED INDUSTRIES VS. ITO WARD-20(1), N EW DELHI REPORTED IN [2015] 54 TAXMANN.COM 222 (DELHI - TRIB .) HAS HELD THAT: 8. THUS, AS PER SECTION 153A(1)(B), THE ASSESSING OFFICER IS EMPOWERED TO ASSESS OR REASSESS THE TOTAL INCOME OF THE SIX ASSESSMENT YEARS IMMEDIATELY PRECEDING THE ASSESSME NT YEAR RELEVANT TO THE ASSESSMENT YEAR IN WHICH SEARCH IS CONDUCTED. THUS, IN OTHER WORDS, HE HAS TO ASSESS THE SEARCH YEAR A ND SIX PRECEDING YEARS. AS PER PROVISO TO SECTION 153C, FOR THE PURP OSE OF SECTION 153C, THE DATE OF RECEIVING THE BOOKS OF ACCOUNT OR DOCUMENTS SHALL BE CONSIDERED THE DATE OF SEARCH. THEREFORE, WITH THE COMBINED READING OF PROVISO TO SECTION 153C AND SECTION 153A(1)(B), IT IS CLEAR THAT IN THE CASE OF THE PERSON IN WHOSE CASE ACTION IS REQU IRED UNDER SECTION 153C, THE ASSESSING OFFICER IS EMPOWERED TO TAKE ACTION UNDER SECTION 153C FOR THE YEAR IN WHICH THE SEIZED DOCUMENT IS RECEIVED BY HIM AND THE PRECEDING SIX YEARS. IN THE CASE UNDER APPEAL BEFORE US, AS MENTIONED BY THE ASSESSING OFF ICER IN PARAGRAPH 2 OF HIS ORDER, THE SEIZED MATERIAL WAS R ECEIVED ON 12TH MARCH, 2009 FROM ACIT, CENTRAL CIRCLE-17. THUS, TH E YEAR IN WHICH SEIZED MATERIAL WAS SEIZED IS PREVIOUS YEAR 2008-09 RELEVANT TO AY 2009-10. THE PRECEDING SIX YEARS WOULD BE AY 2008-0 9, 2007-08, 2006-07, 2005-06, 2004-05 AND 2003-04. THEREFORE, A FTER CONSIDERING THE FACTS OF THE ASSESSEES CASE AND C OMBINED READING OF SECTION 153C AS WELL AS SECTION 153A, IN OUR OPI NION, THE ISSUE OF NOTICE UNDER SECTION 153C FOR AY 2001-02 & 2002-03 IS BARRED BY GOLDEN REALITIES (SS)59 OF 2019 AND OTHERS 22 LIMITATION. ACCORDINGLY, WE QUASH THE SAME AND CONS EQUENTIALLY, THE ASSESSMENT ORDER PASSED IN PURSUANCE TO THE NOTICE ISSUED UNDER SECTION 153C IS ALSO QUASHED. 15. IN LIGHT OF THE FACTS RE-ITERATED ABOVE AND AFT ER GOING THROUGH THE FINDINGS OF THE HONBLE HIGH COURT AND COORDINA TE BENCHES CITED SUPRA, WE ARE OF THE CONSIDERED VIEW THAT AY 2016-17 FELL WITHIN THE PURVIEW OF PROVISIONS OF SECTION 153C OF THE ACT IN LIGHT OF FIRST PROVISO READ WITH SUB-SECTION (2) OF SECTION 153C OF THE ACT AND ACCORDINGLY, ASSESSMENT ORDER FOR AY 20 16-17 OUGHT TO BE TREATED AS FRAMED U/S 153C R.W.S. 143(3) OF T HE ACT AND NOT U/S 143(3) OF THE ACT AY 2016-17. ACCORDINGLY, GROU ND NOS. 1 & 2 OF THE ASSESSEES APPEAL ARE ALLOWED. 16. GROUND NO. 3 RAISED BY THE ASSESSEE CHALLENGES THE FINDINGS OF THE LD. CIT(A) UPHOLDING THE VALIDITY OF ASSESSM ENT EVEN WHEN NO INCRIMINATING DOCUMENTS RELATED TO THE ASSESSEE WERE FOUND AND SEIZED FROM THE POSSESSION OF THE PERSON IN WHO SE CASE SEARCH WAS EXECUTED AND MORE SO WHEN NO ADDITION WA S MADE IN RESPECT OF THE SO-CALLED INCRIMINATING DOCUMENTS RE FERRED TO BY THE LD. ASSESSING OFFICER. BRIEF FACTS RELATING TO THIS ISSUE ARE THAT DOCUMENTS PERTAINING TO THE ASSESSEE WERE SEIZED FR OM THE PREMISES OF SHRI AJIT SINGH MALHOTRA AND SHRI RASMEE T SINGH GOLDEN REALITIES (SS)59 OF 2019 AND OTHERS 23 MALHOTRA AT ALKA COMPOUND, NEHRU WARD, PIPARIYA, HOSHANGABAD DURING THE COURSE OF SEARCH. IT WAS STA TED IN THE SATISFACTION RECORDED BY THE LD. ASSESSING OFFICER THAT PAGE NO. 1- 40 OF LPS-2 CONTAINED PAPERS REGARDING PERMISSION O F REGISTRY OF FIRM, M/S GOLDEN REALITIES WHEREAS PAGE NO. 111-132 OF LPS-7 CONTAINED PAPERS REGARDING DIVERSION LETTER AND REG ISTRY OF FIRM, M/S GOLDEN REALITIES. IT WAS FURTHER STATED THAT A DOCUMENT RELATED TO THE ASSESSEE WAS ALSO FOUND FROM THE MOB ILE PHONE OF SHRI RASMEET SINGH MALHOTRA. ACCORDINGLY, THE LD. A SSESSING OFFICER FORMED A SATISFACTION THAT THESE SEIZED DOC UMENTS HAD A BEARING ON THE DETERMINATION OF TOTAL INCOME OF THE ASSESSEE AND ACCORDINGLY, NOTICES U/S 153C OF THE ACT WERE ISSUE D FOR AY 2010- 11 TO AY 2015-16. 17. THE LD. COUNSEL FOR THE ASSESSEE VEHEMENTLY ARG UED THAT SEIZED DOCUMENTS REFERRED TO BY THE LD. ASSESSING O FFICER IN HIS SATISFACTION NOTE WHICH ALSO FORMED PART OF THE PAP ER BOOK FROM PAGE NO. 424 TO 470 WERE NOT AT ALL INCRIMINATING I N NATURE. THE LD. COUNSEL CONTENDED THAT LOOSE PAPERS INVENTORIED AS LPS-2 AND LPS-7 CONSISTED OF PERMISSIONS AND DIVERSION LE TTERS IN RESPECT OF PROJECT UNDERTAKEN BY THE ASSESSEE WHICH HAD NO FINANCIAL IMPACT. HE FURTHER SUBMITTED THAT DOCUMEN T FOUND FROM GOLDEN REALITIES (SS)59 OF 2019 AND OTHERS 24 THE MOBILE PHONE OF SHRI RASMEET SINGH MALHOTRA REP RESENTED THE BALANCE OF RAJESH AGRAWAL HUF WHICH WAS DULY INC ORPORATED IN THE BOOKS OF ACCOUNTS OF THE ASSESSEE. THE LD. C OUNSEL FOR THE ASSESSEE ALSO STRONGLY CONTENDED THAT NO ADDITION W HATSOEVER WAS MADE BY THE LD. ASSESSING OFFICER IN RESPECT OF THE SO-CALLED INCRIMINATING DOCUMENTS RELATED TO THE ASSESSEE WHI CH WERE FOUND DURING THE COURSE OF SEARCH AND THEREFORE, TH E LD. ASSESSING OFFICER DID NOT ASSUME VALID JURISDICTION U/S 153C OF THE ACT. THE LD. COUNSEL FURTHER SUBMITTED THAT ASS ESSMENT YEARS TILL AY 2015-16 WERE NON-ABATE ASSESSMENT YEA RS AND THEREFORE, NO ADDITION WAS CALLED FOR TO THE TOTAL INCOME OF THE ASSESSEE IN THESE YEARS IN ABSENCE OF ANY INCRIMINA TING DOCUMENTS FOUND AND SEIZED DURING THE COURSE OF SEA RCH. THE LD. COUNSEL FOR THE ASSESSEE ALSO RELIED UPON THE FOLLO WING WRITTEN SUBMISSION: 1.1] THE APPELLANT IN THIS GROUND OF APPEAL HAS CLA IMED THAT NOTICE AS ISSUED UNDER SECTION 153C OF THE INCOME TAX ACT WAS INVALID SINCE NOTHING INCRIMINATING RELATING TO THE APPELLA NT WAS FOUND AND SEIZED FROM THE POSSESSION OF THE PERSON SEARCHED. 1.2] THAT SEARCH WAS EXECUTED AT THE RESIDENTIAL PR EMISES OF SHRI RASMEET SINGH MALHOTRA AND HIS OTHER FAMILY MEMBERS ON 05-10- 2015 AND SURVEY WAS EXECUTED ON THE BUSINESS PREMIS ES OF THE APPELLANT. 1.3] THE RELEVANT EXTRACT OF PROVISION OF SECTION 1 53C OF THE INCOME TAX ACTIS REPRODUCED AS UNDER FOR THE SAKE OF UNDER STANDING: NOTWITHSTANDING ANYTHING CONTAINED IN SECTION 139, SECTION 147, SECTION 148, SECTION 149, SECTION 151 AND SECTION 1 53, WHERE THE ASSESSING OFFICER IS SATISFIED THAT, GOLDEN REALITIES (SS)59 OF 2019 AND OTHERS 25 (A) ANY MONEY, BULLION, JEWELLERY OR OTHER VALUABLE ARTICLE OR THING, SEIZED OR REQUISITIONED, BELONGS TO; OR (B) ANY BOOKS OF ACCOUNT OR DOCUMENTS, SEIZED OR RE QUISITIONED, PERTAINS OR PERTAIN TO, OR ANY INFORMATION CONTAINE D THEREIN, RELATES TO, A PERSON OTHER THAN THE PERSON REFERRED TO IN SECTI ON 153A, THEN, THE BOOKS OF ACCOUNT OR DOCUMENTS OR ASSETS, SEIZED OR REQUISITIONED SHALL BE HANDED OVER TO THE ASSESSING OFFICER HAVING JURISDICTION OVER SUCH OTHER PERSON AND THAT ASSESSING OFFICER SHALL PROCEED AGAINST EACH SUCH OTHER PERSO N AND ISSUE NOTICE AND ASSESS OR REASSESS THE INCOME OF THE OTH ER PERSON IN ACCORDANCE WITH THE PROVISIONS OF SECTION 153A, IF THAT ASSESSING OFFICER IS SATISFIED THAT THE BOOKS OF ACCOUNT OR D OCUMENTS OR ASSETS, SEIZED OR REQUISITIONED, HAVE A BEARING ON THE DETERMINATION OF THE TOTAL INCOME OF SUCH OTHER PER SON FOR THE RELEVANT ASSESSMENT YEAR OR YEARS REFERRED TO IN SU B-SECTION (1) OF SECTION 153A. 1.4.1] THAT FOLLOWING CONDITIONS NEED TO BE SATISFI ED PRIOR TO THE ISSUANCE OF NOTICE UNDER SECTION 153C OF THE INCOME TAX ACT: S.NO CONDITIONS TO BE SATISFIED 1 SEARCH IS EXECUTED UNDER SECTION 132 OF THE INCOME TAX ACT 2 DURING THE COURSE OF SEARCH, BOOKS OF ACCOUNTS OR DOCUMENTS, SEIZED OR REQUISTIONED, PERTAINING TO OT HER PERSONS ARE FOUND AND SEIZED 3.1 THE ASSESSING OFFICER OF THE PERSON SEARCHED MUST B E SATISFIED THAT DOCUMENTS AS FOUND AND SEIZED ARE NO T RELATED TO THE PERSON SEARCHED BUT IN FACT PERTAIN TO THE OTHER PERSON 3.2 THE ASSESSING OFFICER OF THE PERSON SEARCHED MUST R ECORD HIS SATISFACTION ABOUT THESE DOCUMENTS 4 DOCUMENTS RELATED TO THE OTHER PERSON SHOULD BE HAN DED OVER TO THE ASSESSING OFFICER OF THE OTHER PERSON 5 THE ASSESSING OFFICER OF THE OTHER PERSON SHOULD FI RST VERIFY THE NATURE OF DOCUMENTS AND REACH TO A CONCLUSION T HAT THESE ARE INCRIMANTING IN NATURE, RECORD HIS SATISF ACTION AND THEN ISSUE NOTICE UNDER SECTION 153C OF THE ACT 1.4.2] THAT IN THE PRESENT CASE IN HAND, THE ASSESS ING OFFICER REFERRED THE LOOSE PAPERS AS FOUND AND SEIZED DURIN G THE COURSE OF SURVEY FROM THE BUSINESS PREMISES OF THE ASSESSEE I TSELF. THAT NOTHING INCRIMINATING WAS FOUND AND SEIZED FROM THE PREMISES OF THE PERSON SEARCHED. THAT IN PARA 7.1 ON INNER PAGE NO 4 OF THE ASSESSMENT ORDER, THE LOOSE PAPERS AS FOUND DURING THE COURSE OF SURVEY WAS REFERRED. HENCE, NOTICE NOW ISSUED UNDER SECTION 153C OF THE INCOME TAX ACT WAS PRIMA FACIE NOT CORRECT. 1.4.3] THAT IN THE PRESENT CASE IN HAND, THE ASSESS ING OFFICER HAS NOT REFERRED TO ANY DOCUMENTS WHICH WERE FOUND IN POSSE SSION OF THE GOLDEN REALITIES (SS)59 OF 2019 AND OTHERS 26 PERSON SEARCHED AND NOT FOUND RECORDED IN THE REGUL AR BOOKS OF ACCOUNTS. THAT IT IS PRIMARY CONDITION PRIOR TO THE ISSUANCE OF NOTICE UNDER SECTION 153C OF THE ACT THAT CERTAIN D OCUMENTS RELATED TO THE OTHER PERSON ARE FOUND IN POSSESSION OF THE PERSON SEARCHED AND THESE DOCUMENTS ARE ALSO INCRIM INATING IN NATURE. 1.4.4] THAT THIS IS A JURISDICTIONAL ISSUE IN THE I SSUANCE OF NOTICE UNDER SECTION 153C OF THE ACTSINCE THE ASSESSING OF FICER FAILED TO DISCUSS THESE PAPERS IN THE SEARCH ASSESSMENT ORDER AND THE FACT THAT DOCUMENTS ARE REQUIRED TO BE FOUND IN POSSESSI ON OF THE PERSON SEARCHED AND THAT THESEDOCUMENTS DO NOT ACTUALLY PE RTAIN TO THE PERSON SEARCHED BUT THE SAME PERTAINS TO THE ASSESS EE AND THESE DOCUMENTS ARE ALSO NOT FOUND RECORDED IN THE REGULA R BOOKS OF ACCOUNTS OF THE ASSESSEE. HOWEVER, IN THIS CASE, NO DOCUMENTS WERE REFERRED BY THE ASSESSING OFFICER AND HENCE, PRESEN T NOTICE AS ISSUED BY THE ASSESSING OFFICER AND ASSESSMENT AS FRAMED B Y THE ASSESSING OFFICER WAS WHOLLY WITHOUT JURISDICITON. THE ENTIRE PROCEEDINGS AS INITATED BASED ON SUCH ILLEGAL NOTIC E ARE BAD IN LAW AND LIABLE TO BE QUASHED AS WITHOUT JURISDICTION. 1.5] THAT HONBLE APEX COURT IN THE CASE OF CIT VS SINHGAD TECHNICAL EDUCATION SOCIETY AS REPORTED IN 397 ITR 344 HAS DEALT WITH THE SAID ISSUE IN DETAIL AND APPROVED TH E FINDING OF THE HONBLE ITAT AND HONBLE HIGH COURT BY STATI NG THAT: 18) THE ITAT PERMITTED THIS ADDITIONAL GROUND BY G IVING A REASON THAT IT WAS A JURISDICTIONAL ISSUE TAKEN UP ON THE BASIS OF FACTS ALREADY ON THE RECORD AND, THEREFORE, COULD BE RAIS ED. IN THIS BEHALF, IT WAS NOTED BY THE ITAT THAT AS PER THE PR OVISIONS OF SECTION 153C OF THE ACT, INCRIMINATING MATERIAL WHI CH WAS SEIZED HAD TO PERTAIN TO THE ASSESSMENT YEARS IN QUESTION AND IT IS AN UNDISPUTED FACT THAT THE DOCUMENTS WHICH WERE SEIZE D DID NOT ESTABLISH ANY CO-RELATION, DOCUMENT-WISE, WITH THES E FOUR ASSESSMENT YEARS. SINCE THIS REQUIREMENT UNDER SECT ION 153C OF THE ACT IS ESSENTIAL FOR ASSESSMENT UNDER THAT PROV ISION, IT BECOMES A JURISDICTIONAL FACT. WE FIND THIS REASONI NG TO BE LOGICAL AND VALID, HAVING REGARD TO THE PROVISIONS OF SECTI ON 153C OF THE ACT. PARA 9 OF THE ORDER OF THE ITAT REVEALS THAT T HE ITAT HAD SCANNED THROUGH THE SATISFACTION NOTE AND THE MATER IAL WHICH WAS DISCLOSED THEREIN WAS CULLED OUT AND IT SHOWED THAT THE SAME BELONGS TO ASSESSMENT YEAR 2004-05 OR THEREAFT ER. AFTER TAKING NOTE OF THE MATERIAL IN PARA 9 OF THE ORDER, THE POSITION THAT EMERGES THERE FROM IS DISCUSSED IN PARA 10. IT WAS SPECIFICALLY RECORDED THAT THE COUNSEL FOR THE DEPARTMENT COULD NOT POINT OUT TO THE CONTRARY. IT IS FOR THIS REASON THE HIGH COU RT HAS ALSO GIVEN ITS IMPRIMATUR TO THE AFORESAID APPROACH OF THE TRI BUNAL. THAT APART, LEARNED SENIOR COUNSEL APPEARING FOR THE RES PONDENT, ARGUED THAT NOTICE IN RESPECT OF ASSESSMENT YEARS 2 000-01 AND 2001-02 WAS EVEN TIME BARRED. GOLDEN REALITIES (SS)59 OF 2019 AND OTHERS 27 19) WE, THUS, FIND THAT THE ITAT RIGHTLY PERMITTED THIS ADDITIONAL GROUND TO BE RAISED AND CORRECTLY DEALT WITH THE SA ME GROUND ON MERITS AS WELL. ORDER OF THE HIGH COURT AFFIRMING T HIS VIEW OF THE TRIBUNAL IS, THEREFORE, WITHOUT ANY BLEMISH. BEFORE US, IT WAS ARGUED BY THE RESPONDENT THAT NOTICE IN RESPECT OF THE ASSESSMENT YEARS 2000-01 AND 2001-02 WAS TIME BARRE D. HOWEVER, IN VIEW OF OUR AFOREMENTIONED FINDINGS, IT IS NOT NECESSARY TO ENTER INTO THIS CONTROVERSY. 1.6] THAT IN VIEW OF THE ABOVE DISCUSSION, IT IS CLEAR T HAT EVEN IN THE PRESENT CASE IN HAND, NOTHING INCRIMINATING WAS FOUND PERTAINING TO THE APPELLANT DURING THE COURSE OF SE ARCH AS EXECUTED UNDER SECTION 132 OF THE ACT AND THEREFORE THE ASSESSING OFFICER WAS NOT HAVING VALID JURISDICTION OVER THE CASE OF THE APPELLANT . THE ASSESSMENT ORDER AS PASSED UNDER SECTION 153C R.W.S. 143[3] OF THE ACT WAS THEREFORE WITHOUT JURISDICTION AND THE SAME NOW REQUIRES TO BE QUASHE D. . 3.5.1] THAT IT IS A SETTLED POSITION OF LAW THAT IN ABSENCE OF ANY INCRIMINATING MATERIAL, NO ADDITION CAN BE MADE TO THE TOTAL INCOME OF THE ASSESSEE IN CASE OF NON-ABATE ASSESSMENT. 3.5.2] THAT IN THE PRESENT CASE IN HAND, ADDITION W AS MADE MERELY ON THE BASIS OF VALUATION REPORT AS OBTAINED FROM T HE DEPARTMENTAL VALUATION OFFICER WHICH IN ANY CASE IS NOT JUSTIFIA BLE SINCE THE YEAR UNDER CONSIDERATION WAS A NON-ABATE ASSESSMENT YEAR . 3.6.1] THAT HONBLE DELHI HIGH COURT IN THE CASE OF CIT VS ANIL KUMAR BHATIA [APPEAL NOS 1626,1632,1998,2006,2019,2020/2010 DATED 07-08-2012 ] HAS DISCUSSED THE SIMILAR ISSUE IN DETAIL IN PARA 2 0 AND 23 AND HELD THAT: 20. A QUESTION MAY ARISE AS TO HOW THIS IS SOUGHT TO BE ACHIEVED WHERE AN ASSESSMENT ORDER HAD ALREADY BEEN PASSED IN RESPECT OF ALL OR ANY OF THOSE SIX ASSESSMENT YEARS , EITHER UNDER SECTION 143(1)(A) OR SECTION 143(3) OF THE ACT. IF SUCH AN ORDER IS ALREADY IN EXISTENCE , HAVING OBVIOUSLY BEEN PASSED PRIOR TO THE INITIATION OF THE SEARCH/REQUISITION, THE ASSESSING OFFICER IS EMPOWERED TO REOPEN THOSE PROCEEDINGS AN D REASSESS THE TOTAL INCOME, TAKING NOTE OF THE UNDIS CLOSED INCOME, IF ANY, UNEARTHED DURING THE SEARCH. FOR THIS PURPOSE, THE FETTERS IMPOSED UPON THE ASSESSING OFF ICER BY THE STRICT PROCEDURE TO ASSUME JURISDICTION TO REOPEN T HE ASSESSMENT UNDER SECTIONS 147 AND 148, HAVE BEEN REMOVED BY TH E NON OBSTANTE CLAUSE WITH WHICH SUB SECTION (1) OF SECTI ON 153A OPENS. THE TIME-LIMIT WITHIN WHICH THE NOTICE UNDER SECTIO N 148 CAN BE ISSUED, AS PROVIDED IN SECTION 149 HAS ALSO BEEN MA DE INAPPLICABLE BY THE NON OBSTANTE CLAUSE. SECTION 151 WHICH REQUIRES SANCTION TO BE OBTAINED BY THE ASSESSING OFFICER BY ISSUE OF NOTICE TO REOPEN THE ASSESSMENT GOLDEN REALITIES (SS)59 OF 2019 AND OTHERS 28 UNDER SECTION 148 HAS ALSO BEEN EXCLUDED IN A CASE COVERED BY SECTION 153A. THE TIME-LIMIT PRESCRIBED FOR COMPLET ION OF AN ASSESSMENT OR REASSESSMENT BY SECTION 153 HAS ALSO BEEN DONE AWAY WITH IN A CASE COVERED BY SECTION 153A. WITH A LL THE STOPS HAVING BEEN PULLED OUT, THE ASSESSING OFFICER UNDER SECTION 153A HAS BEEN ENTRUSTED WITH THE DUTY OF BRINGING TO TAX THE TOTAL INCOME OF AN ASSESSEE WHOSE CASE IS COVERED BY SECT ION 153A, BY EVEN MAKING REASSESSMENTS WITHOUT ANY FETTERS, I F NEED BE. 23. WE ARE NOT CONCERNED WITH A CASE WHERE NO INCRI MINATING MATERIAL WAS FOUND DURING THE SEARCH CONDUCTED UNDE R SECTION 132 OF THE ACT. WE, THEREFORE, EXPRESS NO OPINION A S TO WHETHER SECTION 153A CAN BE INVOKED EVEN IN SUCH A SITUATIO N. THAT QUESTION IS THEREFORE LEFT OPEN. 3.6.2] THAT HON'BLE DELHI HIGH COURT IN THE CASE OF CIT VS SMT SURAJ DEVI REPORTED IN 328 ITR 604 HAS HELD THAT (REFER PARA 7): 7. MOREOVER, IN THE PRESENT CASE, NO EVIDENCE MUCH LESS INCRIMINATING EVIDENCE WAS FOUND AS A RESULT OF THE SEARCH TO SUGGEST THAT THE ASSESSEE HAD MADE ANY PAYMENT O VER AND ABOVE THE CONSIDERATION MENTIONED IN THE REGIST ERED PURCHASE DEED . A READING OF PARA 3.4.1 OF THE AOS ORDER DOES NOT DISCLOSE THAT THE RESPONDENT-ASSESSEE HAD MADE ANY ADMISSION IN HER ALLEGED STATEMENT UNDER S. 132(4) OF ACT, 1961. IN FACT, NO SUCH STATEMENT HAS BEEN PRODUCED BEFORE US. IT IS ALSO PERTINENT TO MENTION THAT NO ADJUSTMENT ON ACCOUNT OF SALES CONSIDERATION HAS BEEN MADE BY THE REVENUE IN THE C ASE OF THE SELLER. CONSEQUENTLY, WE FIND THAT NO SUBSTANTIAL Q UESTION OF LAW ARISES IN THE PRESENT APPEAL WHICH, BEING BEREFT OF MERIT, IS DISMISSED. 3.6.3]THAT HONBLE DELHI HIGH COURT IN THE CASE OF CIT VS NAVEEN GERA REPORTED IN 328 ITR 516 HAS HELD THAT ( REFER PARA 9): 9. WE DO NOT FIND MERIT IN THE SUBMISSION MADE BY MS. SURUCHII AGGARWAL THAT THE CONCEALED INCOME WAS DETECTED DUR ING THE COURSE OF SEARCH OR ANY EVIDENCE WAS FOUND WHICH WO ULD INDICATE SUCH CONCEALMENT. THE SEIZED MATERIAL CONTAINING TH E SALE DEEDS OF THE PROPERTIES, WHICH HAVE BEEN RELIED UPON TO M AKE REFERENCE TO DVO, HAD ALREADY BEEN DECLARED TO THE REVENUE BY THE RESPONDENT-ASSESSEE UNDER VDIS. WE ARE ALSO IN AGRE EMENT WITH THE SUBMISSION MADE BY MR. PIYUSH KAUSHIK THAT IT I S SETTLED LAW THAT IN THE ABSENCE OF ANY INCRIMINATING EVIDENCE T HAT ANYTHING HAS BEEN PAID OVER AND ABOVE THAN THE STATED AMOUNT , THE PRIMARY BURDEN OF PROOF IS ON THE REVENUE TO SHOW T HAT THERE HAS BEEN AN UNDER-STATEMENT OR CONCEALMENT OF INCOME. I T IS ONLY WHEN SUCH BURDEN HAS BEEN DISCHARGED, WOULD IT BE P ERMISSIBLE TO RELY UPON THE VALUATION GIVEN BY THE DVO. FURTHE R, THE OPINION OF DVO, PER SE, IS NOT AN INFORMATION AND CANNOT BE RELIED UPON IN GOLDEN REALITIES (SS)59 OF 2019 AND OTHERS 29 THE ABSENCE OF OTHER CORROBORATIVE EVIDENCE [SEE K. P. VARGHESE VS. ITO (1981) 24 CTR (SC) 358 : (1981) 131 ITR 59 (SC), ASSTT. CIT VS. DHARIYA CONSTRUCTION COMPANY, CIVIL APPEAL NO. 9468 OF 2003 [REPORTED AS (2010) 236 CTR (SC) 226.ED.], DEC IDED BY THE APEX COURT ON 16TH FEB., 2010, CIT VS. SMT. SHAKUNT ALA DEVI (2009) 224 CTR (DEL) 79 : (2009) 316 ITR 46 (DEL), CIT VS. ASHOK KHETRAPAL (2007) 211 CTR (DEL) 576 : (2007) 294 ITR 143 (DEL) AND CIT VS. MANOJ JAIN (2006) 200 CTR (DEL) 327 : ( 2006) 287 ITR 285 (DEL)]. 3.6.4] THAT HONBLE DELHI HIGH COURT IN THE CASE OF KABUL CHAWLA AS REPORTED IN 380 ITR 573 HAS HELD THAT: 38. THE PRESENT APPEALS CONCERN AYS, 2002-03, 2005 -06 AND 2006-07.ON THE DATE OF THE SEARCH THE SAID ASSESSME NTS ALREADY STOOD COMPLETED. SINCE NO INCRIMINATING MATERIAL WA S UNEARTHED DURING THE SEARCH, NO ADDITIONS COULD HAVE BEEN MAD E TO THE INCOME ALREADY ASSESSED. 3.6.5] THAT HONBLE DELHI HIGH COURT IN THE CASE OF PR CIT V. MEETA GUTGUTIA AS REPORTED IN 395 ITR 526 HAS HELD THAT: 71. FOR ALL OF THE AFOREMENTIONED REASONS, THE COU RT IS OF THE VIEW THAT THE ITAT WAS JUSTIFIED IN HOLDING THAT TH E INVOCATION OF SECTION 153A BY THE REVENUE FOR THE AYS 2000-01 TO 2003-04 WAS WITHOUT ANY LEGAL BASIS AS THERE WAS NO INCRIMI NATING MATERIAL QUA EACH OF THOSE AYS. 3.6.6] THAT HONBLE ITAT INDORE BENCH IN THE CASE O F M/S ANANT STEELS P LIMITED [IT [SS]A NOS 31, 28, 29& 30 / IND/2010 DATED 18-11-2015 AS PASSED FOR THE ASST YE ARS 2001-02 TO 2004-05] HAS HELD [REFER PARA 16 AND 17 OF THE ORDER]: 16. WE HAVE HEARD RIVAL CONTENTIONS OF BOTH THE PA RTIES. WE HAVE DECIDED THE ISSUE THAT IN ABSENCE OF ANY INCRIMINAT ING MATERIAL OR DOCUMENTS SEIZED DURING THE COURSE OF SEARCH, THE A SSESSING OFFICER CANNOT PASS ORDER U/S 153A R.W.S. SEC. 143( 3) OF THE I.T. ACT IN THE CASE OF KALANI BROS. IN IT(SS)A NO.71/IN D/2014 AND OTHERS. THE RELEVANT PORTION OF THE ORDER IS REPROD UCED HEREUNDER: 8. IN RESPECT OF 153A BAD IN LAW ON THE GROUND TH AT ORIGINAL ASSESSMENT PROCEEDINGS U/S 143(3) WAS COMPLETED ON 29.12.2006 (HEREINAFTER REFERRED AS ORIGINAL ASSES SMENT ORDER FOR EASE OF REFERENCE), THE AO TREATED THE SAID LEA SE TRANSACTION AS SALE TRANSACTION AND TAXED THE TOTAL SECURITY DE POSIT RECEIVABLE AS SALE CONSIDERATION OF SALE OF LAND. T HE ADDITION MADE IN THE SEARCH ASSESSMENT ORDER PERTAINED TO TH E ISSUE ALREADY DEALT IN THE ORIGINAL ASSESSMENT ORDER I.E. LEASE TRANSACTION CATEGORIZED AS SALE TRANSACTION. THE FA CT THAT THE AFORESAID ISSUE BEARS NO RELATION TO THE ANY OF THE MATERIAL / DOCUMENTS / RECORDS FOUND AND SEIZED DURING THE SEA RCH GOLDEN REALITIES (SS)59 OF 2019 AND OTHERS 30 ACTION ON 16.04.2009. LD. CIT (A) HAS RELIED UPON T HE CIRCULAR NO. 7 OF 2003 WHICH CLARIFIES THE POSITION OF THE P ENDING APPEALS AS ON THE DATE OF THE SEARCH. THE RELEVANT PORTION IS PRODUCED HEREWITH 'THE ASSESSING OFFICER SHALL ASSESS OR REASSESS THE TOTAL INCOME OF EACH OF THESE SIX ASSESSMENT YEARS. ASSE SSMENT OR REASSESSMENT, IF ANY, RELATING TO ANY ASSESSMENT YE AR FALLING WITHIN THE PERIOD OF SIX ASSESSMENT YEARS PENDING O N THE DATE OF INITIATION OF THE SEARCH UNDER SECTION 132 OR R EQUISITION UNDER SECTION 132A, AS THE CASE MAY BE, SHALL ABATE . IT IS CLARIFIED THAT THE APPEAL, REVISION OR RECTIFICATIO N PROCEEDINGS PENDING ON THE DATE OF INITIATION OF SEARCH UNDER S ECTION 132 OR REQUISITION SHALL NOT ABATE.' ACCORDINGLY, AS FAR AS COMPLETED ASSESSMENTS ARE CO NCERNED, THEY DO NOT ABATE. THE AO CANNOT PROCEED TO MAKE TH E SAME ADDITION IN THE BLOCK ASSESSMENT WITHOUT ANY INCRIM INATING MATERIAL FOUND IN THE COURSE OF SEARCH. THE SAID VI EW PREVENTS THE AO TO UNDO WHAT HAS ALREADY BEEN COMPLETED AND HAS BECOME FINAL IN THE ORIGINAL ASSESSMENT PROCEEDINGS . 9. WE HAVE HEARD BOTH THE SIDES. WE HAVE ALSO GON E THROUGH THE CASE LAWS RELIED UPON BY BOTH THE SIDES. WE HAV E ALSO CONSIDERED VARIOUS RELEVANT FACTS OF THE CASE. IT I S A SETTLED LEGAL POSITION THAT ONCE A SEARCH AND SEIZURE ACTIO N HAS TAKEN PLACE U/S 132 OF THE ACT OR A REQUISITION HAS BEEN MADE U/S 132A, THE PROVISIONS OF SECTION 153A TRIGGED AND AS SESSING OFFICER IS BOUND TO ISSUE NOTICE U/S 153A OF THE AC T. ONCE NOTICES ARE ISSUED U/S 153A OF THE ACT THEN ASSESSE E IS LEGALLY OBLIGED TO FILE RETURN OF INCOME FOR SIX YEARS. THE ASSESSMENT AND REASSESSMENT FOR SIX YEARS SHALL BE FINALISED B Y THE ASSESSING OFFICER. IT IS ALSO HELD BY VARIOUS COUR TS THAT ONCE NOTICE U/S 153A OF THE ACT ISSUED, THEN ASSESSMENT FOR SIX YEARS SHALL BE AT LARGE BOTH FOR ASSESSING OFFICER AND ASSESSEE HAVE NO WARRANT OF LAW. IT HAS BEEN ALSO HELD THAT IN THE ASSESSMENT YEARS WHERE ASSESSMENTS HAVE BEEN ABATED IN TERMS OF SECOND PROVISO TO SECTION 153A THEN ASSESS ING OFFICER ACTS UNDER ORIGINAL JURISDICTION AND ONE ASSESSMENT IS MADE FOR TOTAL INCOME INCLUDING THE ADDITION MADE ON THE BASIS OF SEIZED MATERIAL. BUT WHERE THERE IS NO ABATEMENT OF ASSESSMENTS AND ASSESSMENTS WERE COMPLETED ON THE D ATE OF SEARCH THEN ADDITION CAN BE MADE ONLY ON THE BASIS OF INCRIMINATING DOCUMENTS OR UNDISCLOSED ASSETS, ETC. IN THESE CASES THERE WAS NO INCRIMINATING DOCUMENT FOUND AND SEIZED. NO ASSESSMENT PROCEEDINGS WERE ABATED IN THESE ASSE SSEES. THUS ASSESSMENTS FOR THESE ASSESSMENT YEARS WERE CO MPLETED ON THE DATE OF SEARCH. THE ASSESSMENTS WERE COMPLET ED U/S 143(3) OF THE ACT READ WITH SECTION 153A/153C OF TH E ACT AFTER THE SEARCH. THERE WAS NO ABATEMENT OF ANY PROCEEDIN GS IN THESE CASES FOR THESE ASSESSMENT YEARS IN TERMS OF SECOND GOLDEN REALITIES (SS)59 OF 2019 AND OTHERS 31 PROVISO TO SECTION 153A OF THE ACT. THERE IS NO SEI ZED MATERIAL BELONGING TO THE ASSESSEE WHICH WAS FOUND AND SEIZE D IN RELATION TO ADDITIONS MADE. IN A RECENT DECISION, H ON'BLE DELHI HIGH COURT IN THE CASE OF CIT VS. KABUL CHAWLA (SUP RA) HAS HELD THAT COMPLETED ASSESSMENTS CAN BE INTERFERED W ITH BY THE ASSESSING OFFICER WHILE MAKING ASSESSMENT U/S 153A OF THE ACT, ONLY ON THE BASIS OF SOME INCRIMINATING MATERI AL UNEARTHED DURING THE COURSE OF SEARCH OR REQUISITION OF DOCUM ENTS OR UNDISCLOSED INCOME OR PROPERTY DISCOVERED IN THE CO URSE OF SEARCH WHICH WAS NOT PRODUCED OR NOT ALREADY DISCLO SED OR MADE KNOWN IN THE COURSE OF ORIGINAL ASSESSMENT. IN ALL THESE CASES NO ASSESSMENTS WERE PENDING ON THE DATE OF SE ARCH FOR THESE ASSESSMENT YEARS. NO ASSESSMENTS WERE ABATED IN TERMS OF SECOND PROVISO TO SECTION 153A OF THE ACT. HON'BLE DELHI HIGH COURT IN THE CASE OF CIT VS. KABUL CHAWL A (SUPRA) HAS CONSIDERED VARIOUS HIGH COURT DECISIONS RELIED UPON BY THE LEARNED DR. THE HON'BLE DELHI HIGH COURT HAS CO NSIDERED THE CASES OF CANARA HOUSING DEVELOPMENT CO. VS. DCI T; MADUGULA VS. DCIT; CIT VS. CHETANDASLAXMANDAS AND C IT VS. ANIL KUMAR BHATIA (SUPRA). THE ONLY DECISION OF TH E HON'BLE ALLAHABAD HIGH COURT IN THE CASE OF CIT VS. RAJ KUM AR ARORA; 367 ITR 517 RELIED ON BY THE LEARNED DR WAS NOT CON SIDERED BY HON'BLE DELHI HIGH COURT WHILE DECIDING THE ISSU E IN THE CASE OF KABUL CHAWLA. THE HON'BLE ALLAHABAD HIGH CO URT HAS REVERSED THE ORDER OF THE TRIBUNAL AND REMANDED THE ISSUE TO THE TRIBUNAL TO CONSIDER THE APPEAL OF THE DEPARTME NT ON MERITS. IT IS A SETTLED LEGAL POSITION THAT WHEN TW O VIEWS ARE POSSIBLE ON A PARTICULAR ISSUE THEN THE VIEW FAVOUR ABLE TO THE ASSESSEE SHOULD BE FOLLOWED AS HELD BY THE HON'BLE APEX COURT IN THE CASE OF CIT VS. VEGETABLE PRODUCTS; 88 ITR 192. RESPECTFULLY FOLLOWING THE DECISION OF THE HON'BLE APEX COURT, WE DISMISS THE GROUND OF APPEALS OF THE REVENUE. DEPARTMENTAL APPEALS ARE DISPOSED ACCORDINGLY. 17. WE, RESPECTFULLY FOLLOWING THE SAME, WE ALLOW T HE APPEALS ON THE GROUND OF SEC. 153A OF THE I.T. ACT WHEREIN WE HAVE ALREADY HELD THAT IN ABSENCE OF ANY INCRIMINATING DOCUMENTS FOUND AND SEIZED DURING THE COURSE OF SEARCH, THE ASSESSING O FFICER IS NOT JUSTIFIED IN MAKING THE ADDITION IN NON-ABATED ASSE SSMENT ORDER WHILE PASSING THE ORDER U/S 153A R.W.S. 143(3) OF T HE ACT. 3.6.7] THAT HONBLE ITAT INDORE BENCH IN THE CASE O F SHRI ANIL KATARIA [APPEAL NOS IT(SS)A NOS 177,178, 179/IND/20 16 DATED 31-05-2018 HAS HELD THAT: WE FIND THAT IN THE ABOVE JUDGMENT, THE HON'BLE DE LHI COURT HELD THAT COMPLETED ASSESSMENT CAN BE INTERFERED WITH BY THE ASSESSING ANIL KATARIA IT(SS)A NOS.177 TO 179,984, CO 49 & 163 TO 165/2017 OFFICER WHILE MAKING THE ASSESSMENT U/S 153A OF THE ACT ONLY ON THE BASIS OF SOME INCRIMINATING MAT ERIAL UNEARTHED DURING THE COURSE OF SEARCH OR REQUISITIO N OF DOCUMENTS GOLDEN REALITIES (SS)59 OF 2019 AND OTHERS 32 OR UNDISCLOSED INCOME OR PROPERTY DISCOVERED IN THE COURSE OF SEARCH WHICH WAS NOT PRODUCED OR NOT ALREADY DISCLO SED OR MADE KNOWN IN THE COURSE OF ORIGINAL ASSESSMENT. TWO IMP ORTANT ASPECTS COME OUT OF THIS JUDGMENT FIRSTLY THE ASSES SMENT SHOULD HAVE BEEN COMPLETED EARLIER AND SECONDLY SOME INCRI MINATING MATERIAL IS FOUND DURING THE COURSE OF SEARCH RELAT ING TO THAT ASSESSMENT YEAR. IN THE INSTANT CASE, WE FIND THAT THERE IS NO DISPUTE TO THE FACT THAT NO INCRIMINATING MATERIAL WAS FOUND PERTAINING TO ASSESSMENT YEAR 2007-08 AND ONLY THE PURCHASE DOCUMENTS IN THE SHAPE OF REGISTERED SALE DEED WERE FOUND WHICH WERE DULY DISCLOSED IN THE REGULAR BOOKS OF ACCOUNT S. THE ASSESSING OFFICER COULD NOT HAVE REOPENED THE ASSES SMENT IF IN CASE THE ASSESSMENT HAS BEEN COMPLETED EARLIER U/S 143(3) OF THE ACT FOR THE ASSESSMENT YEAR 2007-08 BUT THIS IS NOT SO IN THE CASE OF THE ASSESSEE BECAUSE FOR THE ASSESSMENT YEAR 200 7-08 THE RETURN OF THE ASSESSEE WAS MERELY PROCESSED U/S 143 (1)(A) OF THE ACT WHICH BY NO CANON CAN BE ANIL KATARIA IT(SS)A N OS.177 TO 179,984, CO 49 & 163 TO 165/2017 ACCEPTED AS REGULA R ASSESSMENT AND, THEREFORE, THE ASSESSING OFFICER HA D NO OCCASION TO EXAMINE THE RELATED TRANSACTIONS FOR THE ASSESSM ENT YEAR 2007-08. DURING THE COURSE OF SEARCH, DOCUMENTS WER E FOUND RELATING TO PURCHASE OF PROPERTY AS WELL AS INCRIMI NATING MATERIAL FOR UNDISCLOSED INVESTMENT IN CONSTRUCTION OF PROPE RTY WHICH WAS SUFFICIENT ENOUGH FOR THE ASSESSING OFFICER TO INIT IATE THE ASSESSMENT PROCEEDINGS FOR THE ASSESSMENT YEAR 2007 -08 TO ASSESS THE CORRECT INCOME OF THE ASSESSEE. WE, THER EFORE, SET ASIDE THE FINDINGS OF THE LEARNED COMMISSIONER OF I NCOME TAX (APPEALS) AND HOLD THAT THE ASSESSMENT FOR THE ASSE SSMENT YEAR 2007-08 U/S 153A R.W.S. 143(3) OF THE ACT WAS VALID . THE RELEVANT GROUNDS OF THE REVENUE FOR THE ASSESSMENT YEAR 2007-08 ARE ALLOWED. 3.7] THAT IN VIEW OF THE ABOVE, IT IS SUBMITTED THA T THE ASSESSING OFFICER WAS NOT JUSTIFIED IN MAKING ADDITIONS TO TH E TOTAL INCOME OF THE APPELLANT MERELY ON THE BASIS OF VALUATION REPO RT AND IN ABSENCE OF ANY INCRIMINATING DOCUMENTS FOUND DURING THE COU RSE OF SEARCH SO AS TO PROVE THE EXCESS INVESTMENT IN THE CONSTRUCTI ON OF THE DUPLEX AS CONSTRUCTED BY THE APPELLANT. ADDITION DURING THE COURSE OF SEARCH MERELY ON THE BASIS OF VALUATION REPORT 3.8] THAT IN CASE OF SEARCH ASSESSMENT , THERE WAS NO JUSTIFICATION FOR MAKING ADDITION TO THE TOTAL INCOME OF THE APPE LLANT MERELY ON THE BASIS OF VALUATION REPORT. THE ADDITION SO MADE WAS THEREFORE NEITHER LEGAL NOR PROPER. THE SAME NOW REQUIRES TO BE QUASHED. 3.8.1] THAT HONBLE ITAT AGRA BENCH IN THE CASE OF RAJ KUMAR MITTAL VS DCIT AS REPORTED IN 87 TAXMANN.COM 344 HA S HELD THAT: GOLDEN REALITIES (SS)59 OF 2019 AND OTHERS 33 8. WE HAVE HEARD THE RIVAL CONTENTIONS AND HAVE PE RUSED THE MATERIAL ON RECORD. THE AO ALLEGED THAT THE ASSESSE E HAD SUBMITTED REGISTERED DEED OF THE PROPERTY, BUT HE D ID NOT FURNISH THE REQUIRED BILLS, VOUCHERS AND RELEVANT DOCUMENT, I.E., VALUATION REPORT AND, THEREFORE, THE AO REFERRED THE PROPERTY IN QUESTION TO THE DEPARTMENTAL VALUATION OFFICER U/S 142A TO ASCE RTAIN THE ALLEGED UNEXPLAINED INVESTMENT OF THE ASSESSEE IN T HE SAID PROPERTY. THUS, THE ADDITION IN DISPUTE ON ACCOUNT OF ALLEGED UNEXPLAINED INVESTMENT IN THE AFORESAID PRO PERTY WAS MADE BY THE ASSESSING OFFICER ON THE BASIC OF T HE VALUATION REPORT OF THE DVO, OBTAINED BY WAY OF REF ERENCE U/S 142A OF THE ACT . 9. IT IS NOT DISPUTED THAT A READYMADE BUILDING WAS PURCHASED BY THE ASSESSEE; THAT NO EVIDENCE WAS FOUND DURING THE COURSE OF SEARCH ACTION CONDUCTED AT THE RESIDENTIAL PREMISES OF THE ASSESSEE AND OTHER FAMILY MEMBERS WARRANTING SUCH A SSESSMENT PROCEEDINGS IN THE CASE OF ASSESSEE; THAT THE ASSES SEE HAD PURCHASED A CONSTRUCTED RESIDENTIAL HOUSE, AS DETAI LED IN THE PURCHASE DEED; THAT NO CONSTRUCTION WAS CARRIED OUT AFTER THE PURCHASE OF THE PROPERTY ON 16.09.2007; AND THAT NO EVIDENCE THAT AFTER THE PURCHASE OF THE PROPERTY ON 16.09.20 07 EITHER ANY INVESTMENT WAS MADE BY THE ASSESSEE OR INVESTMENT I S FOUND RECORDED IN ITS BOOKS OF ACCOUNTS, EITHER DURING TH E COURSE OF SEARCH OF THE ASSESSEE'S RESIDENCE AND BUSINESS PRE MISES, OR THEREAFTER DURING THE COURSE OF ASSESSMENT PROCEEDI NGS OR EVEN IN THE DVOS ENQUIRY PROCEEDINGS. 9.1 IN THE CASE OF ABHINAV KUMAR MITTAL (SUPRA), IT WAS HELD THAT: '.REFERRED QUESTION OF VALUATION OF PROPERTIES TO DVO. ON RECEIPT OF VALUATION REPORT, ASSESSING OFFICER TOOK INTO ACCOUNT DIFFERENCE IN VALUES AS DECLARED BY ASSESSEE AND AS DETERMINED BY DVO AND ADDED SAME TO INCOME OF ASSESSEE AS UNEX PLAINED INVESTMENTS UNDER SECTION 69.THE APPELLATE AUTHORIT IES DELETED IMPUGNED ADDITION MADE BY ASSESSING OFFICER AS NO M ATERIAL WAS FOUND IN SEARCH AND SEIZURE OPERATIONS TO JUSTIFY R EFERENCE TO DVO AND THE DVOS VALUATION WAS BASED ON INCOMPARABLE S ALES. WHETHER VALUATION ARRIVED AT BY DVO WAS OF NO CONSE QUENCE HELD, YES. WHETHER, THEREFORE, APPELLATE AUTHORITIE S WERE JUSTIFIED IN DELETING IMPUGNED ADDITION MADE BY ASSESSING OFF ICER HELD, YES [PARA 6]' 10. SIMILARLY, IN THE CASE OF NISHI MEHRA (SUPRA) I T WAS HELDTHAT NO ADDITION CAN BE MADE MERELY ONLY ON THE BASIS OF DVOS REPORT IN THE ABSENCE OF ANY CORROBORATIVE EVIDENCE. (APB, 86-89). NO DECISION TO THE CONTRARY HAS BEEN CITED BEFORE US. 11. IN VIEW OF THE ABOVE, WE HOLD THAT THE AO COULD NOT TAX THE SAID AMOUNTS MERELY BASED UPON THE DVOS REPORT IN THE ABSENCE OF ANY CORROBORATIVE MATERIAL TO POINT OUT UNDER-VA LUATION OF THE PROPERTY IN QUESTION. THEREFORE, WE ACCEPT THE GRIE VANCE OF THE GOLDEN REALITIES (SS)59 OF 2019 AND OTHERS 34 ASSESSEE AS JUSTIFIED. ACCORDINGLY, THE IMPUGNED OR DERS OF THE LD CIT (A) ARE REVERSED AND THE ADDITIONS ARE HEREBY D ELETED, FOR ALL THE ASSESSMENT YEARS, I.E., FROM A.Y. 2007-08 TO 20 13-14. NOTHING, ELSE REMAINS TO BE ADJUDICATED. 3.8.2] THAT HONBLE DELHI HIGH COURT IN THE CASE OF CIT VS. BAJRANG LAL BANSAL [2011] 335 ITR 572/12 TAXMANN.CO M 88 (DELHI) DIRECTED FOR DELETION OF THE ADDITION MADE ON THE BASIS OF THE REPORT OF THE DVO HOLDING THAT THE REPORT OF THE DVO ALONE I S NOT AN INFORMATION WARRANTING ADDITION IN THE ABSEN CE OF ANY INCRIMINATING EVIDENCE DISCOVERED DURING SEARCH . 3.8.3] THAT HONBLE DELHI BENCH OF ITAT IN THE CASE OF DY. CIT (CENTRAL CIRCLE ) V. ABHINAV KUMAR MITTAL, IN ITA N O. 4460/DEL/2010, BY ORDER DATED 29.06.2012, WHEREIN THE ITAT, DELHI BENCH HAS DELETED THE ADDITION AS WAS MADE IN THE CASE OF THE ASSESSEE BASED SOLELY ON VALUATION REPORT. THE SAID DECISION OF THE ITAT WAS CARRIED IN APPEAL BY THE REVENUE BEFOR E THE HON'BLE DELHI HIGH COURT, WHERE ALSO VIDE ORDER DATED 23.01 .2013 REPORTED AS CIT V. ABHINAV KUMAR MITTAL [2013] 30 TAXMANN.CO M 357/213 TAXMAN 54 (MAG.) (DELHI), APPROVED THAT IN THE ABSE NCE OF ANY MATERIAL FOUND DURING THE COURSE OF SEARCH, NO ADDI TION CAN BE MADE SIMPLY ON THE BASIS OF VALUATION REPORT. THE HON'BL E HIGH COURT HELD AS UNDER: 'SECTION 69, READ WITH SECTIONS 142A AND 153C OF TH E INCOME TAX ACT, 1961 UNEXPLAINED INVESTMENTS IMMOVABLE PROPERT IES ASSESSMENT YEAR 2006-07 ASSESSING OFFICER AS A RESU LT OF SEARCH CONDUCTED UNDER SECTION 132 UPON A COMPANY AND ITS DIRECTORS ISSUED ON ASSESSEE A NOTICE UNDER SECTION 153C HE, IN COURSE OF ASSESSMENT PROCEEDINGS, CONSIDERED VALUATION OF THR EE PROPERTIES, WHICH HAD BEEN PURCHASED BY ASSESSEE IN RELEVANT YEAR, AND REFERRED QUESTION OF VALUATION OF PROPERT IES TO DVO ON RECEIPT OF VALUATION REPORT, ASSESSING OFFICER TOOK INTO ACCOUNT DIFFERENCE IN VALUES AS DECLARED BY ASSESSEE AND AS DETERMINED BY DVO AND ADDED SAME TO INCOME OF ASSESSEE AS UNEX PLAINED INVESTMENTS UNDER SECTION 69 APPELLATE AUTHORITIES DELETED IMPUGNED ADDITION MADE BY ASSESSING OFFICER NO MATE RIAL WAS FOUND IN SEARCH AND SEIZURE OPERATIONS TO JUSTIFY R EFERENCE TO DVO DVOS VALUATION WAS BASED ON INCOMPARABLE SALES WHE THER VALUATION ARRIVED AT BY WAS OF NO CONSEQUENCE HELD, YES WHETHER, THEREFORE, APPELLATE AUTHORITIES WERE JUST IFIED IN DELETING IMPUGNED ADDITION MADE BY ASSESSING OFFICER HELD, Y ES [PARA 6]' 3.8.4]THAT HONBLE DELHI HIGH COURT IN THE CASE OF CIT VS NISHI MEHRA[2015] 56 TAXMANN.COM 89/232 TAXMAN 111 (DELHI) DELETED THE ADDITION EMPHASIZING THAT NO ADDITION CAN BE MADE ONLY ON THE BASIS OF REPORT OF DVO IN ABSENCE OF ANY CORROBORATIVE EVIDENCES AND HELD THAT: 'SECTION 69B, READ WITH SECTION 158BA, OF THE INCOM E TAX ACT, 1961 UNDISCLOSED INVESTMENT (IMMOVABLE PROPERTIES A SSESSMENT GOLDEN REALITIES (SS)59 OF 2019 AND OTHERS 35 IN SEARCH CASES) BLOCK PERIOD 1986-87 TO 1995-96 WH ETHER OPINION OF DVO, PER SE, IS NOT AN INFORMATION AND C ANNOT BE RELIED UPON IN ABSENCE OF OTHER CORROBORATIVE EVIDENCE HEL D, NO. WHETHER WHERE DUE DISCLOSURE OF ACQUISITION OF PROP ERTIES HAD BEEN MADE IN COURSE OF REGULAR ASSESSMENTS BY ASSES SEE AND THOSE VALUATIONS HAD BEEN ACCEPTED BY INCOME TAX AU THORITIES AS WELL AS WEALTH TAX AUTHORITIES, ASSESSING OFFICER C OULD NOT TAX SAID AMOUNTS MERELY BASED UPON DVOS REPORT IN ABSE NCE OF ANY MATERIAL POINTING TO UNDERVALUATION IN BLOCK ASSESS MENT PROCEEDINGS HELD, YES.' 3.8.5] THAT HONBLE GUJARAT HIGH COURT IN THE CASE OF CIT V. BERRY PLASTICS (P.) LTD. [2013] 35 TAXMANN.COM 296/ 217 TAXMAN 39 (GUJ.) (APB, 93) HAS HELD THAT- 'SECTION 69B, READ WITH SECTION 142A OF THE INCOME- TAX ACT, 1961 - UNDISCLOSED INVESTMENTS [INVESTMENT IN LAND AND B UILDINGS] - ASSESSMENT YEAR 2006-07 - DURING RELEVANT YEAR, ASS ESSEE MADE SOME INVESTMENT IN LAND AND BUILDING - ASSESSING OF FICER REFERRED MATTER TO DVO WHO VALUED LAND AND BUILDING AT A HIG HER AMOUNT - IN VIEW OF DIFFERENCE BETWEEN DISCLOSED INVESTMENT OF ASSESSEE IN PURCHASE OF PROPERTY AND DVOS ESTIMATION OF ITS FA IR MARKET VALUE, ASSESSING OFFICER ADDED CERTAIN AMOUNT TO TA XABLE INCOME OF ASSESSEE UNDER SECTION 69B - COMMISSIONER (APPEA LS) DELETED ADDITION HOLDING THAT VALUATION REPORT OF DVO COULD NOT BE A CONCLUSIVE EVIDENCE AND THERE HAD TO BE SOME CLINCH ING EVIDENCE IN FORM OF PROOF TO SHOW THAT ADDITIONAL CONSIDERAT ION HAD PASSED BETWEEN BUYER AND SELLER - TRIBUNAL CONFIRMED ORDER OF COMMISSIONER (APPEALS) -WHETHER DVOS REPORT MAY BE A USEFUL TOOL IN HANDS OF ASSESSING OFFICER, NEVERTHELESS IT IS AN ESTIMATION AND WITHOUT THERE BEING ANYTHING MORE, CANNOT FORM BASIS FOR ADDITION UNDER SECTION 69B - HELD, YES - WHETHER, T HEREFORE, IN ABSENCE OF ANY OTHER MATERIAL ON RECORD, IMPUGNED A DDITION WAS CORRECTLY DELETED - HELD, YES [PARA 9] [IN FAVOUR O F ASSESSEE]' 3.9] THAT IN VIEW OF THE ABOVE, ADDITION AS MADE BY THE ASSESSING OFFICER MERELY ON THE BASIS OF VALUATION REPORT IN THE CASE OF THE SEARCH ASSESSMENT PROCEEDINGS WAS NOT JUSTIFIED. TH E ADDITION SO MADE NOW REQUIRES TO BE DELETED IN FULL. 18. PER CONTRA LD. DR VEHEMENTLY ARGUED SUPPORTING THE FINDING OF BOTH LOWER AUTHORITIES. 19. WE HAVE HEARD RIVAL CONTENTIONS AND PERUSED THE RECORDS PLACED BEFORE US AND CAREFULLY GONE THROUGH THE SUB MISSIONS GOLDEN REALITIES (SS)59 OF 2019 AND OTHERS 36 MADE BY BOTH THE SIDES. WE FIND THAT THE ASSESSEE H AS CHALLENGED THE FINDING OF LD. CIT(A) UPHOLDING THE VALIDITY OF ASSESSMENT EVEN WHEN NO INCRIMINATING DOCUMENTS RELATED TO THE ASSESSEE WERE FOUND AND SEIZED FROM THE POSSESSION OF THE PE RSON IN WHOSE CASE SEARCH WAS EXECUTED AND MORE SO WHEN NO ADDITION WAS MADE IN RESPECT OF THE SO-CALLED INCRIMINATING DOCUMENTS REFERRED TO BY THE LD. ASSESSING OFFICER IN THE SAT ISFACTION NOTE. WE HAVE GONE THROUGH THE SATISFACTION NOTES RECORDE D BY THE ASSESSING OFFICER OF THE PERSON SEARCHED AND BY THE ASSESSING OFFICER OF THE ASSESSEE WHICH HAVE BEEN PLACED ON P AGE NO. 420- 422 OF THE PAPER BOOK. WE HAVE ALSO GONE THROUGH TH E LOOSE PAPERS SEIZED DURING THE COURSE OF SEARCH AND INVEN TORIZED AS LPS-2 AND LPS-7 WHICH WERE REFERRED TO IN THE SATIS FACTION NOTES AND WHICH HAVE BEEN PLACED ON PAGE NO. 424-469 OF T HE PAPER BOOK. THESE PAPERS CONTAIN PERMISSIONS AND DIVERSIO N LETTERS IN RESPECT OF PROJECT UNDERTAKEN BY THE ASSESSEE WHICH HAVE NO FINANCIAL IMPACT IN THE CASE OF THE ASSESSEE. FURTH ER, THE DOCUMENT FOUND FROM THE MOBILE PHONE OF SHRI RASMEE T SINGH MALHOTRA REPRESENTS THE BALANCE OF RAJESH AGRAWAL H UF WHICH WAS DULY INCORPORATED IN THE BOOKS OF ACCOUNTS OF T HE ASSESSEE. THIS FACT IS DULY VERIFIABLE FROM THE LEDGER ACCOUN T OF RAJESH GOLDEN REALITIES (SS)59 OF 2019 AND OTHERS 37 AGRAWAL HUF IN THE BOOKS OF ACCOUNTS OF THE ASSESSE E PLACED ON PAGE NO. 470 OF THE PAPER BOOK. THEREFORE, IT SEEMS THAT THE LOOSE PAPERS REFERRED TO BY THE LD. ASSESSING OFFICER IN THE SATISFACTION NOTES WERE NOT INCRIMINATING IN NATURE. FURTHER, IT IS UNCONTROVERTED FINDING OF FACT THAT NO ADDITION WAS MADE BY THE LD. ASSESSING OFFICER IN RESPECT OF THESE LOOSE PAP ERS WHICH FORMED THE VERY BASIS FOR INITIATION OF PROCEEDINGS U/S 153C OF THE ACT IN THE CASE OF THE ASSESSEE. WE ALSO NOTICE THAT THE ISSUE OF VALIDITY OF ADDITION MADE IN THE PROCEEDINGS INI TIATED U/S 153C OF THE ACT IN ABSENCE OF INCRIMINATING MATERIAL CAM E UP BEFORE THE HONBLE SUPREME COURT OF INDIA IN THE CASE OF CIT-I II, PUNE V. SINHGAD TECHNICAL EDUCATION SOCIETY REPORTED IN [20 17] 397 ITR 344 (SC) WHEREIN HONBLE SUPREME COURT OF INDIA DISMISSED TH E APPEAL OF THE REVENUE AND HELD THAT: 18. THE ITAT PERMITTED THIS ADDITIONAL GROUND BY G IVING A REASON THAT IT WAS A JURISDICTIONAL ISSUE TAKEN UP ON THE BASIS OF FACTS ALREADY ON THE RECORD AND, THEREFORE, COULD BE RAIS ED. IN THIS BEHALF, IT WAS NOTED BY THE ITAT THAT AS PER THE PROVISIONS OF SECTION 153C OF THE ACT, INCRIMINATING MATERIAL WHICH WAS SEIZED HAD TO PERTAIN TO THE ASSESSMENT YEARS IN QUESTION AND IT IS AN UNDIS PUTED FACT THAT THE DOCUMENTS WHICH WERE SEIZED DID NOT ESTABLISH A NY CO-RELATION, DOCUMENT-WISE, WITH THESE FOUR ASSESSMENT YEARS. SI NCE THIS REQUIREMENT UNDER SECTION 153C OF THE ACT IS ESSENT IAL FOR ASSESSMENT UNDER THAT PROVISION, IT BECOMES A JURIS DICTIONAL FACT. WE FIND THIS REASONING TO BE LOGICAL AND VALID, HAV ING REGARD TO THE PROVISIONS OF SECTION 153C OF THE ACT. PARA 9 OF TH E ORDER OF THE ITAT REVEALS THAT THE ITAT HAD SCANNED THROUGH THE SATIS FACTION NOTE AND THE MATERIAL WHICH WAS DISCLOSED THEREIN WAS CU LLED OUT AND IT SHOWED THAT THE SAME BELONGS TO ASSESSMENT YEAR 200 4-05 OR THEREAFTER. AFTER TAKING NOTE OF THE MATERIAL IN PA RA 9 OF THE ORDER, GOLDEN REALITIES (SS)59 OF 2019 AND OTHERS 38 THE POSITION THAT EMERGES THEREFROM IS DISCUSSED IN PARA 10. IT WAS SPECIFICALLY RECORDED THAT THE COUNSEL FOR THE DEPA RTMENT COULD NOT POINT OUT TO THE CONTRARY. IT IS FOR THIS REASON TH E HIGH COURT HAS ALSO GIVEN ITS IMPRIMATUR TO THE AFORESAID APPROACH OF T HE TRIBUNAL. THAT APART, LEARNED SENIOR COUNSEL APPEARING FOR THE RES PONDENT, ARGUED THAT NOTICE IN RESPECT OF ASSESSMENT YEARS 2000-01 AND 2001-02 WAS EVEN TIME BARRED. 19. WE, THUS, FIND THAT THE ITAT RIGHTLY PERMITTED THIS ADDITIONAL GROUND TO BE RAISED AND CORRECTLY DEALT WITH THE SA ME GROUND ON MERITS AS WELL. ORDER OF THE HIGH COURT AFFIRMING T HIS VIEW OF THE TRIBUNAL IS, THEREFORE, WITHOUT ANY BLEMISH. BEFORE US, IT WAS ARGUED BY THE RESPONDENT THAT NOTICE IN RESPECT OF THE ASS ESSMENT YEARS 2000-01 AND 2001-02 WAS TIME BARRED. HOWEVER, IN VI EW OF OUR AFOREMENTIONED FINDINGS, IT IS NOT NECESSARY TO ENT ER INTO THIS CONTROVERSY. 20. WE FURTHER FIND THAT THE SIMILAR ISSUE ALSO CAM E UP FOR CONSIDERATION BEFORE THE HONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF CIT V. MECHMEN 11-C REPORTED IN [2016] 380 ITR 591 (MADHYA PRADESH) WHEREIN HONBLE JURISDICTIONAL HIGH COURT HELD THAT: 2 3. IN THE PRESENT CASE, THE CONCURRENT FINDING OF F ACT RECORDED BY THE APPELLATE FORUMS IS THAT, NO SATISFACTION HAS B EEN RECORDED BY THE ASSESSING OFFICER BEFORE ISSUING OF NOTICE UNDE R SECTION 153C. FURTHER, NONE OF THE PAPERS SEIZED BELONGS OR BELON G TO THE ASSESSEE (NOTICEE). THE APPELLATE FORUMS HAVE FURTHER FOUND THAT NO ADDITION OR EVEN OBSERVATIONS HAVE BEEN MADE BY THE ASSESSIN G OFFICER IN ANY OF THE ORDERS FOR THE RELEVANT ASSESSMENT YEARS IN CONNECTION WITH ANY MATERIAL FOUND DURING THE COURSE OF SEARCH . EVEN FOR THAT REASON NO ACTION UNDER SECTION 153C, IS JUSTIFIED. THESE FINDINGS OF FACT NEED NO INTERFERENCE AND HAVE NOT BEEN QUESTIO NED BEFORE US. CONSIDERING THE ABOVE, THESE APPEALS MUST FAIL. 21. IN LIGHT OF THE FACTS RE-ITERATED ABOVE AND AFT ER GOING THROUGH THE FINDINGS OF THE HONBLE SUPREME COURT OF INDIA AND HONBLE JURISDICTIONAL HIGH COURT (SUPRA) AND DECISION OF H ONBLE DELHI GOLDEN REALITIES (SS)59 OF 2019 AND OTHERS 39 HIGH COURT IN CASE OF KABUL CHAWLA (2016) 380 ITR 5 73 (DEL) AND ALSO DECISION OF MEETA GUTGUTIA (2017) 395 ITR 526 (DEL), WE ARE OF THE CONSIDERED VIEW THAT PROCEEDINGS INITIATED U /S 153C OF THE ACT FOR THE AY 2013-14 TO 2015-16 BEING NON-ABATED AND COMPLETED ASSESSMENTS (CONSIDERING THE DATE OF SEAR CH FOR PROCEEDINGS U/S 153C OF THE ACT AS 15.11.2016) DESE RVES TO BE QUASHED, SINCE NO INCRIMINATING MATERIAL WAS FOUND DURING THE COURSE OF SEARCH THEREBY WARRANTING INITIATION OF P ROCEEDINGS U/S 153C OF THE ACT FOR THESE YEARS. MOREOVER, NO ADDIT ION WAS MADE BY THE LD. ASSESSING OFFICER HIMSELF WHILE PASSING THE ASSESSMENT ORDER ON THE BASIS OF THE SO-CALLED INCRIMINATING M ATERIAL WHICH FORMED THE VERY BASIS FOR INITIATION OF PROCEEDINGS U/S 153C OF THE ACT. WE, THEREFORE, SET ASIDE THE FINDINGS OF L D. CIT(A) ON THIS GROUND AND CONCLUDE THAT PROCEEDINGS INITIATED IN T HE CASE OF THE ASSESSEE FOR AY 2013-14 TO 2016-17 ARE WITHOUT JURIS DICTION AND CONSEQUENTLY, ASSESSMENTS FRAMED FOR THESE YEARS AR E QUASHED AND SET ASIDE. ACCORDINGLY, GROUND NO. 3 OF THE ASS ESSEES APPEAL IS ALLOWED. 22. GROUND NO. 4 RAISED BY THE ASSESSEE CHALLENGES THE FINDINGS OF THE LD. CIT(A) UPHOLDING THE VALIDITY OF ASSESSM ENT EVEN WHEN GOLDEN REALITIES (SS)59 OF 2019 AND OTHERS 40 SATISFACTION WAS NOT PROPERLY RECORDED IN DUAL CAPA CITY. ACCORDINGLY, GROUND NO. 4 OF THE ASSESSEES APPEAL IS DISMISSED AS NOT PRESSED. 23. GROUND NOS. 5 TO 9 RAISED BY THE ASSESSEE CHALL ENGE THE ACTION OF THE LD. CIT(A) IN MAINTAINING ADDITION OF RS.36,67,707/- OUT OF THE TOTAL ADDITION OF RS.3,28,86,624/- MADE BY THE LD. ASSESSING OFFICER ON ACCOUNT OF UNDISCLOSED INVESTM ENT IN CONSTRUCTION OF PROJECT. BRIEF FACTS RELATING TO TH IS ISSUE ARE THAT THE LD. ASSESSING OFFICER DURING THE COURSE OF ASSE SSMENT PROCEEDINGS MADE REFERENCE TO THE VALUATION OFFICER FOR DETERMINATION OF COST OF INVESTMENT IN CONSTRUCTION OF THE PROJECT. THE DVO SUBMITTED HIS REPORT ON 17.08.2017 WHEREIN THE DVO DREW AN INVESTMENT COMPARISON CHART AS UNDER: FINANCIAL YEAR COST OF CONSTRUCTION DECLARED BY ASSESSEE COST OF CONSTRUCTION ASSESSED BY VALUATION CELL 2012 - 13 179,67,427 274,38,497 2013 - 14 364,89,754 567,15,834 2014 - 15 716,50,723 1113,14,912 2015 - 16 645,09,766 973,96,390 2016 - 17 3,19,46,677 464,94,366 ACCORDINGLY, THE LD. ASSESSING OFFICER WORKED OUT T HE EXCESS COST OF CONSTRUCTION INCURRED BY THE ASSESSEE IN VARIOUS YEARS AS UNDER: GOLDEN REALITIES (SS)59 OF 2019 AND OTHERS 41 ASSESSMENT YEAR EXCESS COST OF CONSTRUCTION INCURRED AS ESTIMATED B Y DVO 2013 - 14 94,71,070 2014 - 15 2,02,26,080 2015 - 16 3,96,64,189 2016 - 17 3,28,86,624 THE ASSESSEE FILED DETAILED OBJECTIONS BEFORE THE L D. ASSESSING OFFICER POINTING OUT VARIOUS DISCREPANCIES IN THE R EPORT SUBMITTED BY THE DVO. THE ASSESSEE ALSO CHALLENGED THE CPWD R ATES ADOPTED BY THE DVO IN HIS REPORT. HOWEVER, THE ASSE SSEE FAILED TO FIND ANY FAVOUR FROM THE LD. ASSESSING OFFICER WHO MADE ADDITIONS OF THE ABOVE-MENTIONED AMOUNTS TO THE TOT AL INCOME OF THE ASSESSEE U/S 69B OF THE ACT ON ACCOUNT OF UNDIS CLOSED INVESTMENT IN CONSTRUCTION OF PROJECT NOT RECORDED I N BOOKS OF ACCOUNTS. 24. AGGRIEVED ASSESSEE CARRIED THE MATTER BEFORE TH E LD. CIT(A) WHO PARTLY DELETED THE ADDITION MADE BY THE LD. ASS ESSING OFFICER ON ACCOUNT OF UNDISCLOSED INVESTMENT IN CONSTRUCTIO N OF PROJECT. 25. NOW THE ASSESSEE IS IN APPEAL BEFORE US IN RESP ECT OF THE ADDITIONS CONFIRMED BY THE LD. CIT(A) WHEREAS THE R EVENUE IS IN APPEAL BEFORE US IN RESPECT OF THE ADDITIONS DELETE D BY THE LD. CIT(A). GOLDEN REALITIES (SS)59 OF 2019 AND OTHERS 42 26. THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED AT T HE OUTSET THAT COST OF CONSTRUCTION CONSIDERED BY THE LD. ASS ESSING OFFICER TO THE TUNE OF RS.22,25,64,347/- WAS FACTUALLY INCO RRECT SINCE THE CORRECT AMOUNT OF COST OF CONSTRUCTION ACTUALLY INC URRED BY THE ASSESSEE WAS OF RS.23,69,68,970/-. THE LD. COUNSEL SUBMITTED THAT THE DIFFERENCE AROSE MAINLY DUE TO COST OF CON STRUCTION OF RS.6,45,09,766/- CONSIDERED BY THE LD. ASSESSING OF FICER AS AGAINST ACTUAL COST OF CONSTRUCTION OF RS.7,75,17,7 66/- INCURRED BY THE ASSESSEE DURING THE AY 2016-17. A TABLE SHOW ING THE AMOUNT OF ACTUAL COST OF CONSTRUCTION, COST OF CONS TRUCTION CONSIDERED BY THE LD. ASSESSING OFFICER, COST OF CO NSTRUCTION CONSIDERED BY THE DVO, DIFFERENCE IN COST WORKED OU T BY THE LD. ASSESSING OFFICER AND CORRECT AMOUNT OF DIFFERENCE WAS RELIED UPON WHICH IS AS UNDER: S . N O ASST YEAR ACTUAL COST OF CONSTRUCTION [IN RS] COST OF CONSTRUCTION AS DECLARED BY THE APPELLANT AND CONSIDERED BY THE AO [IN RS] COST OF CONSTRUCTION AS PER DVO [IN RS] DIFFERENCE AS PER AO [IN RS] CORRECT AMOUNT OF DIFFERENCE [IN RS] 1 2012-13 NIL NIL NIL NIL NIL 2 2013-14 1,79,67,427 1,79,67,427 2,74,38,497 94,71,070 94,71,070 3 2014-15 3,64,89,754 3,64,89,754 5,67,15,834 2,02,26,080 2,02,26,080 4 2015-16 7,16,50,723 7,16,50,723 11,13,14,912 3,96,64,189 3,96,64,189 5 2016-17 7,75,17,766 6,45,09,766 9,73,96,390 3,28,86,624 1,98,78,624 6 2017-18 3,33,43,300 3,19,46,677 4,64,94,366 1,45,47,689 1,31,51,066 23,69,68,970 22,25,64,347 33,93,59,999 11,67,95,652 10,23,91,029 GOLDEN REALITIES (SS)59 OF 2019 AND OTHERS 43 THE LD. COUNSEL ACCORDINGLY WORKED OUT THE DIFFEREN CE IN PERCENTAGE TERMS CONSIDERING THE COST OF CONSTRUCTI ON CONSIDERED BY THE LD. ASSESSING OFFICER AND THE CORRECT AMOUNT OF COST OF CONSTRUCTION WHICH IS AS UNDER: S.NO PARTICULAR ACTUAL EXPENSES AS INCURRED CONSTRUCTION EXPENSES AS CONSIDERED BY THE AO 1 CONSTRUCTION EXPENSES AS INCURRED 23,69,68,970 22,25,64,347 2 COST OF CONSTRUCTION AS ESTIMATED BY THE DVO 33,93,59,999 33,93,59,999 3.1 DIFFERENCE IN COST OF CONSTRUCTION AS ESTIMATED BY THE DVO AS SHOWN BY THE APPELLANT 10,23,91,029 11,67,95,652 3.2 % OF DIFFERENCE IN THE COST OF CONSTRUCTION 30.17% 34.42% THE LD. COUNSEL FOR THE ASSESSEE FURTHER SUBMITTED THAT THE LD. CIT(A) DURING THE COURSE OF FIRST APPELLATE PROCEED INGS ALLOWED REBATE TO THE EXTENT OF 30% I.E. 25% ON ACCOUNT OF CPWD AND PWD RATES AND 5% ON ACCOUNT OF SELF-SUPERVISION AND CONFIRMED THE BALANCE AMOUNT OF ADDITION MADE BY THE LD. ASSE SSING OFFICER. THE LD. COUNSEL RELIED UPON A TABLE WHEREI N ADDITIONS CONFIRMED BY THE LD. CIT(A) VIS-A-VIS THE CORRECT P OSITION IF THE ACTUAL AMOUNT OF COST OF CONSTRUCTION HAD BEEN CONS IDERED WAS COMPUTED AND SUMMARIZED AS UNDER: GOLDEN REALITIES (SS)59 OF 2019 AND OTHERS 44 S.NO ASST YEAR ACTUAL COST OF CONSTRUCT ION [IN RS] COST OF CONSTRUCT ION AS DECLARED BY THE APPELLANT AND CONSIDERE D BY THE AO [IN RS] COST OF CONSTRUCT ION AS PER DVO [IN RS] DIFFERENC E AS PER AO [IN RS] CORRECT AMOUNT OF DIFFERENC E [IN RS] COST AS ESTIMAT ED BY THE CIT(A) DIFFERENC E AS MAINTAIN ED BY CT(A) 1 2012- 13 NIL NIL NIL NIL NIL NIL NIL 2 2013- 14 1,79,67,4 27 1,79,67,4 27 2,74,38,4 97 94,71,070 94,71,070 1,92,06, 948 12,39,521 3 2014- 15 3,64,89,7 54 3,64,89,7 54 5,67,15,8 34 2,02,26,0 80 2,02,26,0 80 3,97,01, 084 32,11,330 4 2015- 16 7,16,50,7 23 7,16,50,7 23 11,13,14, 912 3,96,64,1 89 3,96,64,1 89 7,79,20, 439 62,69,716 5 2016- 17 7,75,17,7 66 6,45,09,7 66 9,73,96,3 90 3,28,86,6 24 1,98,78,6 24 6,81,77, 473 NIL 6 2017- 18 3,33,43,3 00 3,19,46,6 77 4,64,94,3 66 1,45,47,6 89 1,31,51,0 66 23,69,68, 970 22,25,64, 347 33,93,59, 999 11,67,95, 652 10,23,91, 029 THE LD. COUNSEL FOR THE ASSESSEE ARGUED THAT THE DV O APPLIED CPWD RATES APPLICABLE FOR RESIDENTIAL BUNGALOWS EVE N WHEN THE ASSESSEE CONSTRUCTED ONLY DUPLEX ROW HOUSES FOR SAL E. THE LD. COUNSEL FURTHER ARGUED THAT THE DVO WAS NOT JUSTIFIE D IN DETERMINING THE COST OF CONSTRUCTION ON THE BASIS O F PLINTH AREA METHOD OR COST INDEXED METHOD EVEN WHEN THE ASSESSE E MAINTAINED DAY-TO-DAY RECORDS OF CONSTRUCTION EXPEN SES ACTUALLY INCURRED BY IT ALONG WITH THE COPY OF SUPPORTING BI LLS AND VOUCHERS WHICH WERE PROVIDED TO THE LD. ASSESSING O FFICER AS WELL AS TO THE DVO. THE LD. COUNSEL FOR THE ASSESSEE ALS O BROUGHT THIS FACT TO OUR NOTICE THAT COST OF CONSTRUCTION CONSID ERED BY THE DVO GOLDEN REALITIES (SS)59 OF 2019 AND OTHERS 45 WAS EVEN HIGHER THAN THE SALE PRICE AS PER GUIDELIN E ISSUED BY THE SUB-REGISTRAR. THE LD. COUNSEL FOR THE ASSESSEE AL SO MADE US GO THROUGH THE VARIOUS DISCREPANCIES IN THE REPORT OF THE DVO WHICH WERE SUMMARIZED AND TABULATED ON PAGE NO. 276-277 O F THE PAPER BOOK. THE LD. COUNSEL FURTHER SUBMITTED THAT A VALUATION REPORT WAS ALSO OBTAINED FROM THE GOVERNMENT APPROV ED REGISTERED VALUER WHICH WAS ALSO FILED DURING THE C OURSE OF ASSESSMENT PROCEEDINGS WHEREIN COST OF CONSTRUCTION NET OF INTEREST AND PRE-OPERATIVE EXPENSES WAS ESTIMATED A T RS.22,13,82,000/- WHICH WAS CLOSE TO THE AMOUNT OF ACTUAL COST OF CONSTRUCTION INCURRED BY THE ASSESSEE. THE LD. C OUNSEL VEHEMENTLY ARGUED THAT DVO PREPARED THE VALUATION R EPORT BY APPLYING CPWD RATES COMPLETELY IGNORING THE FACT TH AT DUPLEX WERE CONSTRUCTED AT VILLAGE PIPARIYA, MADHYA PRADES H AND THEREFORE, VALUATION OUGHT TO HAVE BEEN DONE USING THE LOCAL PWD RATES AND NOT USING THE CPWD RATES. 27. THE LD. COUNSEL THEREAFTER ALSO REFERRED TO A T ABLE PRODUCED ON PAGE NO. 280-281 OF THE PAPER BOOK WHEREIN THE V ALUATION DONE BY DVO WAS ADJUSTED WITH THE SPECIFIC DISCREPAN CIES POINTED OUT IN THE VALUATION REPORT AND WAS ALSO AD JUSTED ON GOLDEN REALITIES (SS)59 OF 2019 AND OTHERS 46 ACCOUNT OF REBATE OF CPWD AND PWD RATES AND SELF-SU PERVISION TO SUBSTANTIATE THAT ACTUAL COST INCURRED BY THE ASSES SEE TOWARDS CONSTRUCTION OF THE PROJECT WAS HIGHER THAN THE COS T ESTIMATED BY DVO AS ADJUSTED WITH THE SPECIFIC DISCREPANCIES POIN TED OUT THERE IN AND ALSO ON ACCOUNT OF REBATE OF CPWD AND PWD RA TES AND SELF-SUPERVISION WHICH IS AS UNDER: S.NO PARTICULARS AMOUNT [RS] AMOUNT [RS] 1 VALUATION OF COST OF CONSTRUCTION AS CONSIDERED BY THE DVO 33,93,60,000 LESS ADDITIONAL COST AS CONSIDERED BY THE DVO IN THE LIS T OF EXTRA ITEMS IN HIS REPORT WHICH WERE EITHER NOT INC URRED OR INCURRED BUT AT A LOWER QUANTUM 2.1 EXPENSES ON ACCOUNT OF LEVELING EVEN WHEN NO SUCH EXPENSES WERE INCURRED 40,95,329 2.2 EXPENSES ON ACCOUNT OF SEWER ESTIMATED AT RS 23,70,980/- WHEREASEXPENSES AS ACTUALLY INCURRED BY THE APPELLANT WERE OF RS 8,70,972/- 15,00,008 2.3 EXPENSES ON ACCOUNT OF STORM WATER DRAIN EXPENSES O F RS 9,16,060/- EVEN WHEN NO SUCH EXPENSES WERE INCURRED 9,16,060 2.4 EXPENSES ON ACCOUNT OF HORTICULTURE OF RS 8,62,175/ - WHEREAS EXPENSES AS ACTUALLY INCURRED BY THE APPELL ANT WERE OF RS 3,83,916/- 4,78,259 2.5 EXPENSES ON ACCOUNT OF INTER LOCKING OF PAVER BLOCK OF RS 11,23,665/- WHEREAS EXPENSES AS ACTUALLY INCURRED B Y THE APPELLANT WERE OF RS 5,49,090/- 5,74,575 2.6 EXPENSES ON ACCOUNT OF VITRIFIED FLOOR TILES OF RS 71,16,693/- EVEN WHEN THE COST OF TILES WAS ALREADY INCLUDED IN THE ESTIMATED AMOUNT OF CONSTRUCTION CO ST 71,16,693 2.7 EXPENSES ON ACCOUNT OF OVERHEAD TANK OF RS 25,00,00 0/- AND SUMP WELL OF RS 20,00,000/- TOTALING TO RS 45,00,000/- WHEREAS EXPENSES AS ACTUALLY INCURRED B Y THE APPELLANT WERE OF RS 16,00,000/- 29,00,000 2.8 EXPENSES ON ACCOUNT OF BORE WELL OF RS 7,50,000/- WHEREAS EXPENSES AS ACTUALLY INCURRED BY THE APPELL ANT WERE OF RS 2,50,000/- 5,00,000 2.9 EXPENSES ON ACCOUNT OF M S GATE OF RS 8,47,000/- EV EN WHEN THE COST OF M S GATE WAS ALREADY INCLUDED IN T HE ESTIMATED AMOUNT OF CONSTRUCTION COST 8,47,000 2.10 EXPENSES ON ACCOUNT OF CONSTRUCTION OF SWIMMING POO L OF RS 20,00,000/- WHEREAS EXPENSES AS ACTUALLY INCURRE D BY THE APPELLANT WERE OF RS 15,00,000/- 5,00,000 2.11 EXPENSES ON ACCOUNT OF CONSTRUCTION OF BOUNDARY WAL L FOR FULL BRICK WORK AND HALF BRICK WORK OF RS 1,75,00,0 00/- AND RS 90,00,000/- TOTALING TO RS 2,65,00,000/- WHE REAS ONLY 412 RUNNING SQMTRS OF BOUNDARY WALL WAS 2,52,64,000 GOLDEN REALITIES (SS)59 OF 2019 AND OTHERS 47 CONSTRUCTED FOR THE COLONY AND CONSIDERING THE RATE OF RS 3,000/- PER RUNNING SQMTRS, THE COST OF BOUNDARY WA LL CALCULATED COMES TO RS 12,36,000/-. THAT COST OF INDIVIDUAL BOUNDARY WALL OF THE ROW HOUSES HAD ALRE ADY BEEN CONSIDERED IN THE COST OF CONSTRUCTION OF THE ROW HOUSES 2.12 EXPENSES ON ACCOUNT OF CONSULTANCY FEES OF RS 34,38,339/- WHEREAS EXPENSES AS ACTUALLY INCURRED B Y THE APPELLANT WERE OF RS 25,31,532/- ONLY 9,06,807 4,55,98,731 VALUATION OF DVO AS PER CPWD AFTER REDUCED THE ADDITIONAL COST AS ESTIMATED BUT NOT ACTUALLY INCUR RED 29,37,61,269 ADD SUPERVISION CHARGES CREDIT AS ALLOWED BY DVO 79,11,805 VALUATION OF DVO PLUS SUPERVISION CHARGES 30,16,73,074 LESS DEDUCTION FOR SUPERVISION CHARGES @ 10% ON RS 30,04,37,074 3,00,43,707 DEDUCTION ON ACCOUNT OF CPWD RATES @30% 9,01,31,122 12,01,74,829 VALUATION AS PER DVO AFTER CONSIDERING REBATE ON ACCOUNT OF SELF SUPERVISION AND CPWD 18,14,98,245 VALUATION AS DECLARED BY THE APPELLANT 23,69,68,970 THE LD. COUNSEL FOR THE ASSESSEE ALSO ARGUED THAT A DDITION ON ACCOUNT OF UNDISCLOSED INVESTMENT IN CONSTRUCTION O F PROJECT WAS MADE BY THE LD. ASSESSING OFFICER SOLELY ON THE BAS IS OF VALUATION REPORT OF THE DVO MORE SO WHEN NO INCRIMINATING MAT ERIAL WAS UNEARTHED DURING THE COURSE OF SEARCH AND SEIZURE A CTION WHICH ITSELF MAKES THE ADDITION UNSUSTAINABLE. THE LD. CO UNSEL FOR THE ASSESSEE RELIED UPON THE FOLLOWING WRITTEN SUBMISSI ON: RATE AS APPLIED BY THE DVO AND OTHER SPECIFIC DEFECTS IN THE VALUATION REPORT 5.10.1] THE DEPARTMENTAL VALUATION OFFICER IN HIS V ALUATION REPORT CONSIDERED THE VALUATION OF DUPLEX ROW HOUSES AS CO NSTRUCTED BY THE APPELLANT AS PER DPAR-2012. THE DEPARTMENTAL VALUAT ION OFFICER APPLIED THE RATE AS APPLICABLE FOR RESIDENTIAL SIX STOREYED BUILDING OF RS 14,500/- PER SQMTRS [INNER PAGE NO 3 OF CPWD RATE BOOK] WHEREAS RATE OF RESIDENTIAL DUPLEX AS CONSTRUCTED B Y THE GOLDEN REALITIES (SS)59 OF 2019 AND OTHERS 48 APPELLANT WAS AKIN TO TYPE-IV QUARTERS AND THEREFOR E APPLICABLE RATE WASRS 12,400 PER SQMTRS [INNER PAGE NO 5 OF CPWD RATE BOOK] . THUS, THE RATE AS CHARGED BY THE DVO WAS HIGHER BY RS 1,900/- PER SQMTRSWHICH IN PERCENTAGE TERMS IS HIGHER BY 15.32% . THIS BEING AN APPARENT MISTAKE OF ADOPTING THE WRONG RATE NEEDS T O BE RECTIFIED BY THE DVO AND VALUATION AS DONE REQUIRES TO BE REDUCE D BY 15.32%. 5.10.2]THAT VALUATION RATE OF RS 12,400 PER SQMTRSI S APPLICABLE FOR INDEPENDENT BUNGALOWS CONSTRUCTED BY CPWD. HOWEVER, IN THE CASE OF THE APPELLANT, DUPLEX ROW HOUSES WERE CONSTRUCTE D WHEREIN ONE WALL IS A COMMON WALL AND THEREFORE REBATE FOR THE SAME SEPARATELY REQUIRES TO BE ALLOWED IN THE VALUATION REPORT. 5.10.3] THAT THE DVO ADOPTED THE RATE OF RS 18,179/ - PER SQMTRS [REFER ABSTRACT OF COST IN THE VALUATION REPORT] AT THE TIME OF VALUATION OF CLUB HOUSE BUILDING WHEREAS RA TE IN CASE OF NON- RESIDENTIAL DOUBLE STOREYED BUILDING WAS RS 14,300/ - PER SQMTRS [INNER PAGE NO 5 OF CPWD RATE BOOK] . HENCE, CORRESPONDING REBATE IN THE VALUATION OF CLUB HOUSE ALSO REQUIRES TO BE ALLOWED TO THE APPELLANT. 5.10.4]THAT THE DVO ADOPTED THE RATE OF RS 16,364/- PER SQMTRS [REFER ABSTRACT OF COST IN THE VALUATION REPORT] AT THE TIME OF VALUATION OF TEMPLE WHEREAS RATE IN CASE OF COMMERCIAL DOUBLE STOREYED BUILDING WAS RS 14,300/- PER SQMTRS ONLY. HENCE, CORRESPONDING REBATE IN THE VALUATION OF TEMPLE ALS O REQUIRES TO BE ALLOWED TO THE APPELLANT. 5.10.5] THAT ADDITIONAL COST OF LEVELING OF RS 40,9 5,329/- WAS CONSIDERED BY THE DVO IN HIS REPORT WHEREAS THE APP ELLANT DID NOT INCUR ANY EXPENSES ON ACCOUNT OF LEVELING. HENCE, T HE SAID AMOUNT OF ADDITIONAL COST AS ADDED WAS PURELY ON THE BASIS OF PRESUMPTION AND THE SAME REQUIRES TO BE EXCLUDED FROM THE VALUA TION OF THE COLONY. 5.10.6]THAT ADDITIONAL COST OF VITRIFIED FLOOR TILE S OF RS 71,16,693/- WAS CONSIDERED BY THE DVO IN HIS REPORT WHEREAS THE COST OF DUPLEX ROW HOUSES AS CONSIDERED BY THE DVO INCLUDES ENTIRE COST OF CONSTRUCTION WHICH ALSO INCLUDES COST OF VITRIFIED FLOOR TILES. HENCE, SEPARATE ADDITION ON ACCOUNT OF VITRIFIED FLOOR TIL ES TO THE VALUATION OF THE DUPLEX ROW HOUSES IS NOT JUSTIFIED. 5.10.7]THAT EXPENSES ON ACCOUNT OF BORE WELL WERE C ONSIDERED AT RS 7,50,000/- BY THE DVO IN HIS REPORT WHEREAS EXPENSE S AS ACTUALLY INCURRED BY THE APPELLANT WERE OF RS 2,50,000/- ONL Y.HENCE, CORRESPONDING REBATE ON ACCOUNT OF BORE WELL ALSO R EQUIRES TO BE ALLOWED TO THE APPELLANT. GOLDEN REALITIES (SS)59 OF 2019 AND OTHERS 49 5.10.8]THAT EXPENSES ON ACCOUNT OF CONSTRUCTION OF BOUNDARY WALL FOR FULL BRICK WORK AND HALF BRICK WORK OF RS 1,75,00,0 00/- AND RS 90,00,000/- TOTALING TO RS 2,65,00,000/- WERE CONSI DERED BY THE DVO IN HIS REPORT WHEREAS ONLY 412 RUNNING SQMTRS O F BOUNDARY WALL WAS CONSTRUCTED FOR THE COLONY AND CONSIDERING THE RATE OF RS 3,000/- PER RUNNING SQMTRS, THE COST OF BOUNDARY WA LL CALCULATED COMES TO RS 12,36,000/- ONLY.HENCE, CREDIT OF ADDIT IONAL COST OF BOUNDARY WALL OF RS 2,52,64,000/- REQUIRES TO BE AL LOWED TO THE APPELLANT. 5.10.9] THAT RATE OF MATERIAL CONSUMED AS CONSIDERE D WHILE CALCULATING THE CPWD RATES ARE AS UNDER: S.NO ITEMS CPWD RATES [REFER ANNEXURE 4 PROFORMA FOR CALCULATION OF COST INDEX OF CPWD RATE BOOK] ACTUAL AVERAGE RATE DIFFEREN CE [IN RATE] DIFFEREN CE [IN %] 1 BRICKS 3,867 PER 1000 PIECE 2,580 PER 1000 PIECE 1287 49.88 2 CEMENT 587 PER 100 KG 463.12 PER 100 KG 123.88 26.75 3 STEELS 4,669 PER 100KG 3,964 PER 100 KG 705 17.79 4 TILES 467 PER SQMTRS 338 PER SQMTRS 129 38.17 5 AGGREG ATE (GITTI) 1350 PER M 3 888 PER M 3 462 52.03% 6 SAND 1293 PER M 3 438 PER M 3 855 195.21% 5.10.10] THAT IN VIEW OF THE ABOVE, IT IS EVIDENT T HAT CORRESPONDING REBATE OF EXCESS COST OF MATERIAL AS CONSUMED ALSO REQUIRES TO BE ALLOWED WHILE CALCULATING THE COST OF CONSTRUCTION OF THE DUPLEX ROW HOUSES OF THE APPELLANT. REFERENCE TO THE DVO 5.11.1] THE APPELLANT HAS CHALLENGED THE REFERENCE AS MADE TO THE DVO FOR VALUATION OF THE DUPLEX ROW HOUSES. THAT RE FERENCE TO THE DVO IS NOT JUSTIFIED UNTIL AND UNLESS THE ASSESSING OFFICER HAS COGENT MATERIAL IN HIS POSSESSION. HOWEVER, IN THE PRESENT CASE IN HAND, THE ASSESSING OFFICER WITHOUT ANY COGENT MATERIAL IN HI S POSSESSION SIMPLY REFERRED THE MATTER TO THE DVO SO AS TO DETE RMINE THE COST OF CONSTRUCTION AS ACTUALLY INCURRED BY THE APPELLANT IN THE CONSTRUCTION OF THE DUPLEX ROW HOUSES. GOLDEN REALITIES (SS)59 OF 2019 AND OTHERS 50 5.11.2]THAT HONBLE ITAT LUCKNOW BENCH IN THE CASE OF DEPUTY CIT VSROHTAS PROJECTS LTD . AS REPORTED IN (2010) 133 TTJ (LUCKNOW)(UO) 89 AND THE TRIBUNAL HELD (HEAD NOTE) AS UNDER : 'IT IS TRUE THAT FOR THE PURPOSE OF MAKING ADDITION TOWARDS UNEXPLAINED INVESTMENT, THE AO WAS UNDER LEGAL OBLI GATION TO VERIFY THE BOOKS AND VOUCHERS MAINTAINED BY THE ASS ESSEE IN SUPPORT OF THE COST OF CONSTRUCTION SHOWN BY THE AS SESSEE AND AT THE SAME TIME, THE AO SHOULD HAVE POINTED OUT SPECI FIC DEFECTS IN THE BOOKS OF ACCOUNT REGULARLY MAINTAINED BY THE AS SESSEE. IT IS SEEN THAT THE ASSESSEE VIDE ITS LETTER DT. 26TH MAR CH, 1998 HAS REQUESTED THE AO TO IGNORE THE REPORT OF THE DVO AN D PROCEED WITH THE ASSESSMENT OF ACTUAL AMOUNT SPENT DULY SUPPORTE D BY VOUCHERS/BILLS AS PER AUDITED BOOKS OF ACCOUNT. IT SEEMS THAT THE AO HAD NOT ACCEDED TO THE REQUEST OF THE ASSESSEE. THE AO HAS MADE THE ADDITION MERELY ON THE BASIS OF THE VALUAT ION REPORT BY THE DVO. THE AO DID NOT CARE TO LOOK INTO THE BOOKS OF ACCOUNT REGULARLY MAINTAINED BY THE ASSESSEE, WHICH WERE DU LY SUPPORTED BY BILLS AND VOUCHERS. THERE IS NO DISPUTE THAT THE BOOKS OF ACCOUNT MAINTAINED BY THE ASSESSEE WERE DULY AUDITE D. IN FACT, THE AO HAS NOT POINTED OUT ANY SPECIFIC DEFECT/DISC REPANCY IN THE BOOKS OF ACCOUNT REGULARLY MAINTAINED BY THE ASSESS EE RELATING TO THE COST OF CONSTRUCTION OF THE BUILDING IN QUESTIO N. THE VALUATION REPORT OF DVO IS ONLY INFORMATION AND ESTIMATE OF C OST OF CONSTRUCTION CARRIED ON BY THE ASSESSEE AND THIS RE PORT ALSO SUFFERS FROM MATERIAL DEFECTS AS POINTED OUT BY THE CIT(A) IN PARA 9 OF THE IMPUGNED ORDER. THE REVENUE HAS ALSO NOT P OINTED OUT A SINGLE INSTANCE TO SHOW THAT THE ASSESSEE HAS ACTUA LLY INCURRED EXPENDITURE MORE THAN THAT RECORDED IN THE BOOKS OF ACCOUNT. CONSEQUENTLY NO ADDITION IS CALLED FOR.- K.K. SESHAIYER VS. CIT (2001) 166 CTR (MAD) 527 : (2000) 246 ITR 351 ( MAD) AND CIT VS. HOTEL JOSHI (1999) 157 CTR (RAJ) 369: (2000) 242 ITR 478 (RAJ) RELIED ON.' 5.11.3] THAT HONBLE GUJARAT HIGH COURT IN THE CASE OF ANAND BANWARILALADHUKIA VS DCIT AS REPORTED IN 75 TAXMANN .COM 301 [2016] HAS HELD THAT: WHERE ASSESSING OFFICER HAD NO COGENT MATERIAL AVA ILABLE TO SATISFY HIMSELF ABOUT REQUIREMENT OF SECTION 69, RE FERENCE TO VALUER UNDER SECTION 142A COULD NOT HAVE BEEN MADE. 5.11.4] THAT HONBLE ITAT DELHI BENCH IN THE CASE O F ITO VS RAJESHWAR NATH GUPTA [APPEAL NO ITA NO. 4295/DEL/20 05 DATED 04.05.2008] HAS HELD THAT: '15. A PERUSAL OF THE AFORESAID PROVISIONS SHOWS TH AT SECTION 142A IS ATTRACTED, INTER ALIA, WHERE THE ASSESSEE I S FOUND TO HAVE MADE INVESTMENT OUTSIDE THE BOOKS OF ACCOUNT OR WHE RE ANY SUCH GOLDEN REALITIES (SS)59 OF 2019 AND OTHERS 51 INVESTMENT MADE BY HIM IS NOT FULLY DISCLOSED IN TH E BOOKS OF ACCOUNT. THE CONDITION PRECEDENT FOR MAKING THE REF ERENCE BY INVOKING THE PROVISIONS OF SECTION 142A THUS IS THA T THERE SHOULD BE SOMETHING ON RECORD TO SHOW THAT THE ASSESSEE IN THE FIRST PLACE HAS MADE SUCH INVESTMENT OUTSIDE THE BOOKS OR THE INVESTMENT SO MADE BY HIM IS NOT FULLY DISCLOSED IN THE BOOKS OF ACCOUNT AND ONCE THIS CONDITION IS SATISFIED, THE Q UANTUM OF SUCH INVESTMENT MADE CAN BE ASCERTAINED BY THE ASSESSING OFFICER BY MAKING A REFERENCE UNDER SECTION 142A IN ORDER TO M AKE THE ADDITION UNDER SECTION 69 OR 69B, WHICHEVER IS APPL ICABLE. IN THE PRESENT CASE, THE RELEVANT PROPERTY WAS PURCHASED B Y THE ASSESSEE DURING THE YEAR UNDER CONSIDERATION FOR RS . 15 LAKHS AND THE AMOUNT OF THE SAID CONSIDERATION WAS PAID O UT OF ITS DISCLOSED SOURCES AS ACCEPTED EVEN BY THE ASSESSING OFFICER IN THE REASSESSMENT. A PERUSAL OF THE ASSESSMENT ORDER , HOWEVER, SHOWS THAT THERE WAS NO REFERENCE WHATSOEVER MADE B Y THE ASSESSING OFFICER TO ANY MATERIAL/EVIDENCE/ INFORMA TION ON THE BASIS OF WHICH IT COULD BE SAID THAT THE SAID CONSI DERATION SHOWN BY THE ASSESSEE WAS UNDERSTATED AND THAT ANYTHING A BOVE WHAT WAS DISCLOSED BY THE ASSESSEE HAD ACTUALLY BEEN PAI D AS CONSIDERATION. THE CONDITION PRECEDENT FOR MAKING A REFERENCE TO THE DVO BY INVOKING THE PROVISIONS OF SECTION 142A THUS WAS NOT SATISFIED IN THE PRESENT CASE AND NEITHER THE SAID REFERENCE NOR THE ADDITION MADE ON THE BASIS OF REPORT OBTAINED F ROM THE DVO IN RESPONSE TO THE SAID REFERENCE, IN OUR OPINION, WAS SUSTAINABLE IN LAW AS RIGHTLY HELD BY THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS). IN THE CASE OF SUBHASH CHAND CHOPRA V. A SST. CIT [2005] 92 TT) 1087, THIS BENCH OF THE TRIBUNAL HAS HELD THAT NO MATERIAL OR EVIDENCE HAVING BEEN RECOVERED DURING T HE COURSE OF SEARCH SHOWING INVESTMENT IN CONSTRUCTION, THE ASSE SSING OFFICER WAS NOT COMPETENT TO MAKE A REFERENCE TO THE DVO UN DER SECTION 142A AND TO MAKE ADDITION ON THAT BASIS. IN THE CASE OF K.P. VARGHESE V. ITO [1981] 131 ITR 597 CITED BY LEARNED COUNSEL FOR THE ASSESSEE, THE HON'BLE SUPRE ME COURT HAD AN OCCASION TO CONSIDER A SIMILAR ASPECT IN THE CON TEXT OF COMPUTATION OF CAPITAL GAINS AND IT WAS HELD BY THE IR LORDSHIPS THAT THE BURDEN TO PROVE THAT THE CONSIDERATION FOR THE TRANSFER OF A CAPITAL ASSET HAS BEEN UNDERSTATED BY THE ASSESSE E OR IN OTHER WORDS THE FULL VALUE OF CONSIDERATION IN RESPECT OF THE TRANSFER IS SHOWN AT A LESSER FIGURE THAN THAT ACTUALLY RECEIVE D BY THE ASSESSEE AS ALLEGED, IS ON THE REVENUE. FOLLOWING T HE SAID DECISION OF THE HON'BLE SUPREME COURT IN THE CASE O F K.P. VARGHESE V. ITO [1981] 131 ITR 597, THE HON'BLE HIG H COURT OF DELHI HAS HELD IN THE CASE OF CIT V. GULSHAN KUMAR [2002] 257 ITR 703 THAT THERE BEING NO MATERIAL ON RECORD TO S HOW THAT THE SALE CONSIDERATION WAS SHRI BITHALNATH MALIA AY. 20 08-09 UNDERSTATED OR THAT THE ASSESSEE HAD RECEIVED ANYTH ING DIRECTLY OR INDIRECTLY OVER AND ABOVE THE DECLARED VALUE OF THE SHARES, THE GOLDEN REALITIES (SS)59 OF 2019 AND OTHERS 52 ADDITION MADE ON ACCOUNT OF DEEMED CAPITAL GAINS WA S NOT SUSTAINABLE.' 5.11.5] THAT HONBLE ITAT KOLKATA BENCH IN THE CASE OF BITHALNATH MALIA, ASANSOL VS DCIT [APPEAL NO ITA NO 15/ KOL/20 13 DATED 20- 02-2015] HAS HELD THAT:- 7. FROM THE ABOVE DISCUSSION ON THE FACTS OF THE C ASE AND CASE LAWS CONSIDERED BY US, WE ARE OF THE VIEW, THAT IN THE PRESENT CASE THE REVENUE COULD NOT ESTABLISH THAT THERE IS ANY MATERIAL SUGGESTING THAT THE ASSESSEE PAID ANY AMOUNT OVER A ND ABOVE THE DECLARED CONSIDERATION. IN TERM OF THE PROVISIO NS OF SECTION 142A OF THE ACT THE REFERENCE TO DVO CAN BE MADE ONLY W HEN THERE IS A REQUIREMENT BY THE AO FOR MAKING SUCH RE FERENCE AND SUCH REQUIREMENT WOULD ARISE WHEN THERE IS SOME MAT ERIAL WITH THE AO TO SHOW THAT WHATEVER ESTIMATE OR CONSIDERAT ION DECLARED BY ASSESSEE IS NOT CORRECT OR NOT RELIABLE. THE USE OF THE WORD 'REQUIRE' IS NOT SUPERFLUOUS BUT SIGNIFIES A DEFINI TE MEANING, WHEREBY FORMATION OF MIND EVEN PRELIMINARY ON OBJEC TIVE BASIS BY THE AO IS VERY MUCH NECESSARY. FROM THE BARE READIN G OF ASSESSMENT ORDER, IT DOES NOT SUGGEST THAT THERE IS ANY MATERIAL WHICH INDICATES THAT THE ASSESSEE HAS PAID ANY AMOU NT OVER AND ABOVE THE DECLARED CONSIDERATION FOR THE PURPOSE OF MAKING ADDITION OF UNEXPLAINED INVESTMENT U/S. 69 OR 69B O F THE ACT. IN THE ABSENCE OF THE SAME, THE CIT(A) HAS RIGHTLY DEL ETED THE ADDITION. WE CONFIRM THE SAME. THIS ISSUE OF REVENU E'S APPEAL IS DISMISSED. 5.11.6] THAT HONBLE DELHI HIGH COURT IN THE CASE O F CIT VS ANIL ARORA [ITA NO 340/2015] DATED 22-05-2015HAS HELD THAT: 'HAVING HEARD THE LD COUNSEL FOR THE REVENUE, WE FI ND THE CONTENTIONS ARGUED IN THE APPEAL TO BE WHOLLY MISPL ACED. IT IS FAIRLY CONCEDED (AT BAR) BY THE COUNSEL FOR THE REV ENUE THAT THE REFERENCE TO DVO FOR ESTIMATION OF THE MARKET VALUE OF THE PROPERTY IN PUNJABI BAGH WAS NOT BASED ON ANY MATERIAL DISCO VERED OR SEIZED DURING THE SEARCH OPERATIONS. THE COUNSEL, H OWEVER, REFERRED TO THE CASE OF ANOTHER PROPERTY IN DISTRIC T BADDI (HIMACHAL PRADESH), IN RESPECT OF WHICH DOCUMENTARY EVIDENCE INDICATED UNACCOUNTED CONSIDERATION PAID BY THE ASS ESSEE, REFERRED TO BY THE A.O. IN PARA 4.3 OF HIS ORDER. A T THE SAME TIME, LD. COUNSEL ALSO CONCEDED THAT NO ADDITION TO THE T AX LIABILITY OF THE ASSESSEE ON ACCOUNTS OF THE SAID OTHER PROPERTY HAS BEEN MADE. THERE IS NO NEXUS BETWEEN THE PROPERTY IN BAD DI (HIMACHAL PRADESH) AND THE PROPERTY IN PUNJABI BAGH (WEST). T HERE IS UNDOUBTEDLY NO MATERIAL AVAILABLE TO EVEN REMOTELY REFLECT THAT CONSIDERATION OVER AND ABOVE WHAT WAS SHOWN TO BE P AID IN THE REGISTERED SALE DEED OF THE WEST PUNJABI BAGH PROPE RTY WAS MADE GOLDEN REALITIES (SS)59 OF 2019 AND OTHERS 53 OVER TO THE SELLER. IN THESE CIRCUMSTANCES, IT WAS NOT FAIR IN THE FIRST PLACE TO REFER THE SAID PROPERTY FOR ESTIMATI ON OF ITS MARKET VALUE BY DVO.' 11. IN THE RESULT REVENUE'S APPEAL FOR THE A.Y. 20 05-06 IS DISMISSED.' 5.11.7]THAT HONBLE ITAT CHENNAI BENCH IN THE CASE OF C R SELVARAJ, SALEM [ITA NO 100/ MDS/2015 DATED 22-05-2015] HAS D ISCUSSED THE SIMILAR ISSUE IN DETAIL AND HELD THAT: 13. THUS IN OUR OPINION, IN THIS CASE THE ASSESSEE MAINTAINED BOOKS OF ACCOUNTS AND DULY FURNISHED BEFORE THE ASS ESSING OFFICER AND HE HAS NOT APPRECIATED THE SAME AND ONLY ON PRE SUMPTION THAT COST OF CONSTRUCTION WAS VERY LOW, HE REFERRED THE MATTER TO DVO WITHOUT PROPERLY REJECTING THE BOOKS OF ACCOUNT S MAINTAINED BY THE ASSESSEE. IN OUR OPINION, REFERENCE TO DVO U /S.142A(3) OF THE ACT COULD BE MADE WHEN BOOKS OF ACCOUNTS ARE RE JECTED BY PINPOINTING DEFECT THEREIN. IN OTHER WORDS, IF THE BOOKS OF ACCOUNTS ARE FOUND TO BE CORRECT AND COMPLETE IN ALL RESPECT AND NO DEFECT IS POINTED OUT THEREIN AND THE COST OF CONSTRUCTION OF BUILDING IS RECORDED THEREIN, ADDITION REFERRED U/S.142A (2) IS NOT APPROPRIATE. ACCORDINGLY, WE ARE OF THE CONSIDERED VIEW THAT IN THE PRESENT CASE WHEN THE ASSESSING OFFICER HAS NOT REJECTED THE BOOKS OF ACCOUNT BY PIN POINTING ANY DEFECTS IN THE BOOKS OF ACCOUNT REFERENCE TO THE DVO IS NOT VALID AND, THER EFORE, DVO'S REPORT COULD NOT BE UTILIZED FOR FRAMING ASSESSMENT EVEN IF SUCH A REPORT IS CONSIDERED TO BE OBTAINED U/S.142 A OF THE ACT . SINCE REFERENCE TO DVO BEING HELD AS INVALID, THE ASSESSM ENT THEREAFTER BASED ON THAT DVO REPORT ALSO BE INVALID. 5.12] THAT FROM THE ABOVE DISCUSSION ,IT IS EVIDENT THAT THE ASSESSING OFFICER UTTERLY FAILED IN REFERRING THE MATTER TO T HE DVO WITHOUT POINTING OUT TOWARDS ANY INVESTMENT THAT WAS MADE B Y THE APPELLANT OVER AND ABOVE WHAT WAS DISCLOSED IN THE REGULAR BOOKS OF ACCOUNTS. 5.13] THAT IN VIEW OF THE ABOVE, THE ASSESSING OFFI CER WAS NOT JUSTIFIED IN REFERRING THE MATTER TO THE DVO FOR ES TIMATING THE COST OF CONSTRUCTION WITHOUT REJECTING THE BOOKS OF ACCOUNT S AS MAINTAINED BY THE APPELLANT AND WITHOUT POINTING OUT ANY DEFEC TS IN THE BOOKS OF ACCOUNTS OF THE APPELLANT. THE DIFFERENCE AS CALCUL ATED BY THE DVO WAS ALSO EXPLAINED PROPERLY AND THEREFORE THERE WAS NO JUSTIFICATION FOR MAKING ADDITION ON ACCOUNT OF DIFFERENCE IN THE COST OF CONSTRUCTION AS ESTIMATED BY THE DVO AND AS DECLARE D BY THE APPELLANT. THE ADDITION SO MADE REQUIRES TO BE DELE TED IN FULL. WITHOUT PREJUDICE TO THE ABOVE GOLDEN REALITIES (SS)59 OF 2019 AND OTHERS 54 5.14.1] THAT DURING THE COURSE OF SEARCH ASSESSMENT PROCEEDINGS, ADDITION WAS MADE ON ACCOUNT OF UNDISCLOSED INVESTE MENT IN CONSTRUCTION INCURRED IN THE PROJECT AS PER DVO REP ORT. THAT NOTHING INCRIMINATING WAS FOUND IN POSSESSION OF THE PERSON SEARCHED RELATED TO THE APPELLANT AND HENCE, NOTICE AS ISSUE D UNDER SECTION 153C OF THE ACT WAS NEITHER PROPER NOR LEGAL. MOREO VER, IN THIS CASE, ADDITION WAS MADE MERELY ON THE BASIS OF DVO REPORT WHICH IN ANY CASE IS NOT CONSIDERED AS PROPER. 5.14.2] THE APPELLANT FILED DETAILED OBJECTIONS DUR ING THE COURSE OF SEARCH ASSESSMENT PROCEEDINGS AGAINST THE VALUATION REPORT AS SUBMITTED BY THE DVO. HOWEVER, OBJECTIONS AS RAISE D BY THE APPELLANT WERE NOT DISPOSED OFF AND THE DIFFERENCE IN COST OF DEVELOPMENT/CONSTRUCTION EXPENSES AS ESTIMATED BY T HE DVO AND AS DECLARED BY THE APPELLANT IN ITS BOOKS OF ACCOUN TS WAS ADDED TO THE TOTAL INCOME OF THE APPELLANT. THE COST OF CONSTRUCTION/DEVELOPMENT AS ESTIMATED BY THE DVO WA S HIGHER THAN THE FAIR MARKET VALUE OF THE ASSETS AS PER THE GUID ELINE RATES. HENCE, IT IS CLEAR THAT THE COST OF CONSTRUCTION/DEVELOPME NT AS ESTIMATED WAS EXORBITANT AND REQUIRES TO BE IGNORED. 5.14.3] THE APPELLANT ON THE BASIS OF COST AS DECLA RED IN ITS BOOKS OF ACCOUNTS CALCULATED THE AMOUNT OF PROFIT AND ALSO P AID LEGITIMATE AMOUNT OF TAX DUE ON IT. THAT IF THE COST OF CONSTR UCTION/DEVELOPMENT AS ESTIMATED BY THE DVO IS CONSIDERED AS COST ACTUA LLY INCURRED BY THE APPELLANT, IN THAT CASE, CORRESPONDING PROFIT A S DECLARED BY THE APPELLANT IN THESE YEARS ALSO REQUIRES TO BE ADJUST ED AND CORRESPONDING DEMAND AS CREATED IN THE ASSESSMENT O RDER ALSO REQUIRES TO BE REDUCED ACCORDINGLY. 5.15.1] THE APPELLANTMAINTAINED DAY TO DAY BOOKS OF ACCOUNTS AND EXPENSES AS INCURRED WERE DULY INCORPORARTED IN ITS REGULAR BOOKS OF ACCOUNTS. THE AUTHORIZED OFFICER AT THE TIME OF SEA RCH AND THE ASSESSING OFFICER DURING THE COURSE OF SEARCH ASSES SMENT PROCEEDINGS FAILED TO PIN POINT ANY DEFECTS IN THE BOOKS OF ACCOUNTS AS MAINTAINED BY THE APPELLANT. HENCE, THERE WAS NO JUSTIFICATION TO REFER THE MATTER TO THE DVO FOR DETERMINATION OF TH E COST OF CONSTRUCTION. 5.15.2] HON'BLE SUPREME COURT IN THE CASE OF SARGAM CINEMA VS CIT [2010] 328 ITR 513 (SC) WHEREIN THEIR LORDSHIP HAS HELD AS UNDER: ' IN THE PRESENT CASE, WE FIND THAT THE TRIBUNAL DE CIDED THE MATTER RIGHTLY IN FAVOUR OF THE ASSESSEE INASMUCH AS THE T RIBUNAL CAME TO THE CONCLUSION THAT THE ASSESSING AUTHORITY COUL D NOT HAVE REFERRED THE MATTER TO THE DEPARTMENTAL VALUATION O FFICER (DVO) WITHOUT THE BOOKS OF ACCOUNT BEING REJECTED. IN THE PRESENT CASE, A CATEGORICAL FINDING IS RECORDED BY THE TRIBUNAL THA T THE BOOKS WERE NEVER REJECTED. THIS ASPECT HAS NOT BEEN CONSIDERED BY THE HIGH GOLDEN REALITIES (SS)59 OF 2019 AND OTHERS 55 COURT. IN THE CIRCUMSTANCES, RELIANCE PLACED ON THE REPORT OF THE DVO WAS MISCONCEIVED.' 5.16.1] THE APPELLANT IS ENGAGED IN THE REAL ESTATE BUSINESS AND CONSTRUCTED DUPLEX ROW HOUSES FOR SALE. THE COST OF CONSTRUCTION AS DECLARED BY THE APPELLANT WAS PROPERLY INCORPORATED IN ITS REGULAR BOOKS OF ACCOUNTS AND WAS DULY CONSIDERED FOR CALCU LATING THE PROFIT ON SALE OF THESE DUPLEX ROW HOUSES. 5.16.2] THE COST OF CONSTRUCTION AS ESTIMATED BY TH E DVO WAS EVEN MORE THAN THE SALE PRICE OF DUPLEX AS PER COLLECTOR /SUB-REGISTRAR GUIDELINES. HENCE, IT IS APPARENTLY CLEAR THAT THE COST OF CONSTRUCTION WAS ESTIMATED AT EXORBITANTLY HIGH RATES BY THE DVO IN HIS REPORT. 5.16.3] THAT THE APPELLANT CALCULATED THE AMOUNT OF NET PROFIT ON THE BASIS OF COST OF CONSTRUCTION AS SHOWN BY IT IN ITS REGULAR BOOKS OF ACCOUNTS. HOWEVER, IF THE COST OF CONSTRUCTION IS I NCREASED ON THE BASIS OF REPORT OF THE DVO, IN THAT CASE, PROFIT AS DECLARED BY THE APPELLANT ALSO REQUIRES TO BE ADJUSTED. 28. ON THE OTHER HAND, THE LD. DR SUPPORTED THE FIN DINGS OF LD. ASSESSING OFFICER. 29. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE RECORD PLACED BEFORE US AND ALSO GONE THROUGH THE JUDGMENTS AND DECISIONS REFERRED TO AND RELIED UPON BY THE LD. CO UNSEL FOR THE ASSESSEE. WE FIND THAT THE ASSESSEE WAS ENGAGED IN CONSTRUCTION OF DUPLEX ROW HOUSES FOR SALE IN VILLAGE PIPARIYA O F MADHYA PRADESH. THE ASSESSEE INCURRED AND SHOWED COST OF C ONSTRUCTION IN ITS BOOKS OF ACCOUNTS AT RS.23,69,68,970/- WHICH WAS CONSIDERED BY THE LD. ASSESSING OFFICER AT RS.22,25 ,64,347/- DESPITE THE FACT THAT IT WAS CATEGORICALLY SUBMITTE D DURING THE GOLDEN REALITIES (SS)59 OF 2019 AND OTHERS 56 COURSE OF ASSESSMENT PROCEEDINGS ITSELF THAT CORREC T AMOUNT OF COST OF CONSTRUCTION WAS OF RS.23,69,68,970/-. UNDE R THE GIVEN FACTS AND CIRCUMSTANCES OF THE CASE, WE ARE OF THE CONSIDERED VIEW THAT COST OF CONSTRUCTION SHOWN BY THE ASSESSE E OUGHT TO HAVE BEEN CONSIDERED AT RS.23,69,68,970/- ONLY AND THERE WAS NO BASIS FOR CONSIDERING THE COST SHOWN BY THE ASSE SSEE AT RS.22,25,64,347/-. FURTHER, DURING THE COURSE OF AS SESSMENT PROCEEDINGS, THE LD. ASSESSING OFFICER REFERRED THE MATTER TO THE DVO WHO VIDE HIS REPORT DATED 11.08.2017 SUBMITTED ON 17.08.2017 VALUED THE COST OF CONSTRUCTION AT RS.33 ,93,59,999/-. THE LD. ASSESSING OFFICER ACCORDINGLY MADE THE FOLL OWING ADDITIONS TO THE TOTAL INCOME OF THE ASSESSEE ON AC COUNT OF UNDISCLOSED INVESTMENT IN CONSTRUCTION OF PROJECT: ASSESSMENT YEAR EXCESS COST OF CONSTRUCTION INCURRED AS ESTIMATED BY DVO 2013 - 14 94,71,070 2014 - 15 2,02,26,080 2015 - 16 3,96,64,189 2016 - 17 3,28,86,624 DURING THE COURSE OF ASSESSMENT PROCEEDINGS AS WELL AS FIRST APPELLATE PROCEEDINGS, THE ASSESSEE POINTED OUT VAR IOUS GOLDEN REALITIES (SS)59 OF 2019 AND OTHERS 57 DISCREPANCIES AND RAISED OBJECTIONS FOR THE ALLEGED MISTAKES COMMITTED BY THE DVO THEREBY RESULTING IN EXCESSIVE VALUATION OF COST OF CONSTRUCTION. HOWEVER, THE ASSESSEE PARTLY SUCCEEDED AS THE LD. CIT(A) ALLOWED REBATE OF 25% ON ACCOUNT OF DIFFERENCE IN CPWD AND PWD RATES AND REBATE OF 5% ON ACCOUNT OF S ELF- SUPERVISION THEREBY RESULTING IN THE FOLLOWING: S.NO. AY ADDITIONS MADE BY THE LD. ASSESSING OFFICER RELIEF ALLOWED BY THE LD. CIT(A) ADDITIONS CONFIRMED BY THE LD. CIT(A) 1 2013 - 14 94,71,070 82,31,549 12,39,521 2 2014 - 15 2,02,26,080 1,70,14,750 32,11,330 3 2015 - 16 3,96,64,189 3,33,94,473 62,69,716 4 2016 - 17 3,28,86,624 2,92,18,917 36,67,707 30. WE FURTHER FIND THAT THE DURING THE COURSE OF H EARING, LD. COUNSEL FOR THE ASSESSEE DREW OUR ATTENTION TO THE FOLLOWING GLARING MISTAKES COMMITTED BY THE DVO IN HIS VALUAT ION REPORT WHICH IN OUR VIEW, ARE CORRECTLY POINTED OUT: S. NO REASONS 1 COST OF CONSTRUCTION WAS ESTIMATED AT RS 14,853/- P ER SQ MTR WHICH IN TERMS OF SQ FT CALCULATED COMES TO RS 1,380/- P ER SQ FT EVEN WHEN THE REGISTRAR OFFICE EXPECTS COST OF CONSTRUCT ION IN VILLAGE PIPARIA TO BE RS 8,500/- PER SQ MTR WHICH IN TERMS OF SQ FT CALCULATED COMES TO RS 790/- ONLY. HENCE, THE COST OF CONSTRUCTION AS ADOPTED BY DEPARTMENTAL VALUATION OFFICER WAS ME RELY ON THE GOLDEN REALITIES (SS)59 OF 2019 AND OTHERS 58 BASIS OF CPWD DSR-2012 AND DPAR-2012 WHICH WAS VERY EXCESSIVE 2 THE APPELLANT PROVIDED COMPLETE BILLS OF MATERIAL P URCHASED WHICH INCLUDED BILLS FOR CEMENT, STEEL, SAND AND OTHER MA TERIAL PURCHASED AND CONSUMED FOR DEVELOPMENT OF THE COLONY AND FOR CONSTRUCTION OF BUNGALOWS. HOWEVER, THE DEPARTMENTAL VALUATION OFFI CER TOTALLY IGNORED THE ENTIRE DETAILS AND SUPPORTING BILLS AND ADOPTED THE STANDARD RATE AS PRESCRIBED BY CPWD 3 THE GUIDELINE VALUE OF BUNGALOW AS SOLD BY THE APPE LLANT WAS ALSO LESS THAN THE COST AS ESTIMATED BY THE DEPARTM ENTAL VALUATION OFFICER 4 THE COST AS INCURRED BY THE APPELLANT IS DULY SUPPO RTED WITH ALL THE BILLS AND VOUCHERS AND THE SAME IS ALSO VERIFIABLE 5 THE MATERIAL AS PURCHASED BY THE APPELLANT I.E. STE EL, CEMENT, SAND, BRICKS ALL ARE DULY VOUCHED AND ARE ALSO VERIFIABLE 6.1 THE DVO IN HIS REPORT CONSIDERED AN AMOUNT OF RS 40,95,329/- INCURRED ON ACCOUNT OF LEVELING BUT ACTUALLY NO EXP ENSES WERE INCURRED BY THE APPELLANT FOR LEVELING SINCE THE LAND OF TH E APPELLANT WAS ALREADY LEVELED 6.2 THE EXPENSES AS INCURRED ON ACCOUNT OF SEWER WERE E STIMATED OF RS 23,70,980/- WHEREAS THE APPELLANT INCURRED AN AMOUN T OF RS 8,70,972/- ONLY ON ACCOUNT OF SEWER EXPENSES 6.3 THE DVO ESTIMATED STORM WATER DRAIN EXPENSES OF RS 9,16,060/- WHEREAS NO SUCH EXPENSES WERE ACTUALLY INCURRED BY THE APPELLANT SINCE THERE WAS NO SEPARATE STORM WATER DRAIN IN T HE COLONY OF THE APPELLANT 6.4 THE DVO ESTIMATED EXPENSES ON ACCOUNT OF HORTICULTU RE OF RS 8,62,175/- WHEREAS ACTUAL EXPENSES AS INCURRED BY T HE APPELLANT WERE OF RS 3,83,916/- 6.5 THE DVO ESTIMATED EXPENSES ON ACCOUNT OF INTER LOCK ING OF PAVER BLOCK OF RS 11,23,665/- WHEREAS ACTUAL EXPENSES AS INCURRED BY THE GOLDEN REALITIES (SS)59 OF 2019 AND OTHERS 59 APPELLANT WERE OF RS 5,49,090/- 6.6 THE DVO IN HIS REPORT ESTIMATED AN AMOUNT OF RS 71, 16,693/- ON ACCOUNT OF VITRIFIED FLOOR TILES. THAT WHEN CONSTRU CTION EXPENSES WERE CONSIDERED FOR 100% OR EVEN IN CASE OF PARTIAL CONS TRUCTION, THE COST OF TILES WAS ALREADY INCLUDED IN IT AND HENCE, SEPARATE ADDITION FURTHER MADE ON ACCOUNT OF ADDITIONAL COST FOR VITR IFIED TILES IS NOT JUSTIFIED. THE APPELLANT DID NOT INCUR SEPARATE EXP ENSES FOR VITRIFIED TILES AS THE SAME WAS INCLUDED IN THE CONSTRUCTION COST 6.7 THE DVO ESTIMATED ADDITIONAL EXPENSES ON ACCOUNT OF OVERHEAD TANK OF RS 25,00,000/- AND SUMP WELL OF RS 20,00,000/- TOTALING TO RS 45,00,000/- WHEREAS ACTUAL EXPENSES AS INCURRED BY THE APPELLANT WERE TO THE TUNE OF RS 16,00,000/- 6.8 THE DVO IN HIS REPORT ESTIMATED EXPENSES FOR BORE W ELL OF RS 7,50,000/- WHEREAS ACTUAL EXPENSES AS INCURRED BY T HE APPELLANT WERE OF RS 2,50,000/- ONLY 6.9 THE DVO IN HIS REPORT ALSO ESTIMATED AN AMOUNT OF R S 8,47,000/- ON ACCOUNT OF M S GATE WHICH WAS USED IN DUPLEX ROW HO USES AND HAD ALREADY BEEN CONSIDERED IN THE CONSTRUCTION COST AS ESTIMATED BY THE DVO. HENCE, SEPARATE ADDITION FOR MS GATE IS NOT JU STIFIED 6.10 THE DVO HAS ESTIMATED EXPENSES ON ACCOUNT OF CONSTR UCTION OF SWIMMING POOL OF RS 20,00,000/- WHEREAS ACTUAL EXPE NSES AS INCURRED BY THE APPELLANT WERE OF RS 15,00,000/-ONL Y 6.11 THE DVO IN HIS REPORT ALSO ADDED AN AMOUNT OF RS 1, 75,00,000/- AND RS 90,00,000/- ON ACCOUNT OF CONSTRUCTION OF BOUNDA RY WALL FOR FULL BRICK WORK AND ALSO FOR HALF BRICK WORK TOTALING TO RS 2,65,00,000/- WHEREAS ONLY 412 RUNNING SQ MTRS BOUNDARY WALL WAS CONSTRUCTED AND BY CONSIDERING THE RATE OF RS 3,000 /- PER RUNNING SQ MTRS, THE COST OF BOUNDARY WALL CALCULAT ED COMES TO RS 12,36,000/- AS AGAINST COST OF BOUNDARY WALL ESTIMATED BY THE VALUATION OFFICER OF RS 2,65,00,000/-. HENCE , ADDITIONAL COST OF RS 2,52,64,000/- WAS CONSIDERED BY THE DVO IN HIS GOLDEN REALITIES (SS)59 OF 2019 AND OTHERS 60 REPORT WHICH WAS NOT JUSTIFIED. MOREOVER, INDIVIDUA L BOUNDARY WALL OF THE ROW HOUSES HAS ALREADY BEEN CONSIDERED IN THE COST OF CONSTRUCTION OF ROW HOUSES. HENCE, SEPARATE ADDITION ON ACCOUNT OF BOUNDARY WALL OF RS 2,65,00,000/- AS SUG GESTED BY THE DVO WAS NOT JUSTIFIED 6.12 THE DVO IN HIS REPORT BASED ON HIS ESTIMATED COST O F CONSTRUCTION CALCULATED CONSULTANCY FEES OF RS 34,38,339/- WHERE AS ACTUAL EXPENSES AS INCURRED BY THE APPELLANT WERE OF RS 25 ,31,532/- ONLY 31. WE HAVE ALSO GONE THROUGH THE VALUATION REPORT OF THE DVO, CPWD RATE BOOK AND VALUATION REPORT OBTAINED BY THE ASSESSEE FROM THE GOVERNMENT APPROVED REGISTERED VALUER. WE FIND THAT THERE WERE VARIOUS DISCREPANCIES IN THE VALUATION R EPORT SUBMITTED BY THE DVO WHICH HAVE ALSO BEEN DISCUSSED SUPRA. FURTHER, THE ADOPTION OF CPWD RATES BY DVO FOR VALU ING THE COST OF CONSTRUCTION OF PROJECT OF THE ASSESSEE AT VILLA GE PIPARIYA OF MADHYA PRADESH ALSO SEEMS TO BE VERY UNREASONABLE A ND FAR FROM REALITIES. WE FIND STRONG FORCE IN THE ARGUMEN TS OF THE LD. COUNSEL THAT VALUATION ADOPTED BY THE DVO WAS WAY T OO EXORBITANT AND COULD NOT HAVE BEEN CONSIDERED AS TH E BASIS FOR MAKING ADDITION TO THE TOTAL INCOME OF THE ASSESSEE SINCE THE COST OF CONSTRUCTION ESTIMATED BY THE DVO WAS EVEN HIGHE R THAN THE SALE PRICE AS PER GUIDELINE ISSUED BY THE SUB-REGIS TRAR. IT IS ALSO EVIDENT THAT THE DVO UNDERTOOK THE VALUATION EXERCI SE GOLDEN REALITIES (SS)59 OF 2019 AND OTHERS 61 CONSIDERING THE CPWD RATES FOR RESIDENTIAL BUNGALOW S COMPLETELY IGNORING THE FACT THAT THE ASSESSEE WAS ENGAGED IN CONSTRUCTION OF DUPLEX ROW HOUSES FOR SALE AND NOT IN CONSTRUCTION OF RESIDENTIAL BUNGALOWS. 32. WE ALSO NOTICE THAT THE LD. ASSESSING OFFICER M ADE ADDITION TO THE TOTAL INCOME OF THE ASSESSEE ON ACCOUNT OF U NDISCLOSED INVESTMENT IN CONSTRUCTION OF PROJECT SOLELY ON THE BASIS OF VALUATION REPORT OF THE DVO WHICH IN ITSELF IS UNSU STAINABLE IN LIGHT OF THE FACT THAT NO INCRIMINATING MATERIAL WA S FOUND DURING THE COURSE OF SEARCH THEREBY WARRANTING SUCH ADDITI ON TO THE TOTAL INCOME OF THE ASSESSEE. WE FIND THAT THE LD. CIT(A) DEALT WITH THE SAID ISSUE AT LENGTH BY OBSERVING AS FOLLO WS: CONSIDERING THE AFORESAID FACT AND CIRCUMSTANCES OF THE MATTER AND THE LAW AS INTERPRETED BY SEVERAL HIGH C OURTS AND THE HONBLE SUPREME COURT THE FINDINGS ON THIS IS SUE IN RESPECT OF PECULIAR FACTS OF THIS CASE ARE AS BELOW ; I) ADMITTEDLY, THE ASSESSEE COMPANY MAINTAINED ITS REGULAR BOOKS OF ACCOUNTS SUPPORTED BY BILLS/VOUCHERS AND O THER RECORDS WHICH WERE SUBJECTED TO AUDIT. THE AO HAS N EITHER POINTED OUT ANY DEFECT IN BOOKS NOR BROUGHT ANY POS ITIVE MATERIAL ON RECORD TO ESTABLISH ALLEGED UNACCOUNTED INVESTMENT IN PROJECT OF APPELLANT. MOST IMPORTANTL Y, AO HAS NOT EVEN REJECTED THE BOOKS OF ACCOUNTS EVEN AFTER RECEIPT OF VALUATION REPORT. IN VIEW OF THESE FACTS, VALUATION REPORT OBTAINED FROM DVO CANNOT FORM A FOUNDATION IPSO FAC TO FOR MAKING ADDITION TOWARDS ALLEGED SUPPRESSION OF COST OF INVESTMENT. NEITHER DVO NOR AO HAS POINTED OUT THAT CERTAIN EXPENDITURE ON CERTAIN ITEMS/CONSTRUCTION WAS INCUR RED WHICH WAS NOT RECORDED IN THE BOOKS MAINTAINED BY THE ASS ESSEE. GOLDEN REALITIES (SS)59 OF 2019 AND OTHERS 62 HENCE, ADDITIONS MADE BY AO IS NOT SUSTAINABLE IN L AW BEING BASED MERELY ON VALUATION REPORT RECEIVED FROM DVO. II) THE A.O. HAS NOT MENTIONED ANY REASON IN THE AS SESSMENT ORDER OR IN THE REFERENCE TO THE VALUATION, THAT HE HAD ANY INCRIMINATING MATERIAL WHICH LED TO FORM HIS BELIEF THAT THE APPELLANT HAD UNDER STATED THE COST OF CONSTRUCTION REFERRED FOR VALUATION. IT IS VERY RELEVANT TO UNDERSTAND THAT T HE APPELLANT WAS SUBJECTED TO SEARCH AND SEIZURE ACTION U/S 132 OF THE ACT WHICH APPARENTLY DID NOT YIELD TO SEIZURE OF ANY IN CRIMINATING PAPERS/DOCUMENTS SUGGESTING UNACCOUNTED INVESTMENT IN THE DIFFERENT PROJECTS OF APPELLANT. LACK OF ANY INCRIM INATING MATERIAL/EVIDENCE REGARDING UNDER REPORTING OF COST OF CONSTRUCTION BEING POINTED OUT BY THE A.O., IN SPIT E OF SEARCH AND SEIZURE ACTION ADDITION SIMPLY MADE ON THE BASI S OF DVOS REPORT IS EVEN MORE UNJUSTIFIED AND UNWARRANTED. III) DURING APPELLATE AS WELL AS ASSESSMENT PROCEED INGS, APPELLANT RAISED SEVERAL OBJECTIONS WITH REGARDS TO METHODOLOGY ADOPTED BY DVO AS WELL AS VALUATION ASP ECT, BUT AO HAS TOTALLY FAILED TO CONSIDER THE SAME. HE HAS MECHANICALLY ADOPTED THE ESTIMATE OF VALUE OF CONST RUCTION PROVIDED BY DVO. ONE SHOULD NOT LOSE SIGHT OF THE F ACT THAT AT THE END OF THE DAY, COST DERIVED BY DVO IN HIS REPO RT IS NOTHING BUT AN ESTIMATE WHICH IS BOUND OF HAVE SOME AMOUN T OF ESTIMATION, GUESS WORK & OPINION INVOLVED AND ESTIM ATE CANNOT BE EXACT. AFTER ALL IT IS AN ESTIMATE DONE BY AN EXPERT AND IT IS A POPULAR MAXIM TO ERR IS HUMAN. IT IS EVIDENT FROM THE VERY FACT THAT, APPELLANT HAS RAISED VARIOUS DI SCREPANCIES IN THE DVOS REPORT. HOWEVER, A.O. DID NOT FIND IT APPROPRIATE TO INVITE COUNTER COMMENTS OF DVO ON OBJECTIONS RAI SED BY THE ASSESSEE. ALTHOUGH, IT IS A SETTLED LEGAL POSITION THAT VALUATION REPORT SUBMITTED BY DVO IS NOT BINDING UPON AO, BUT IN THE PRESENT CASE AO HAS ADOPTED AND USED THE VALUATION REPORT AS IF IT IS BINDING ON HIM. APPELLANT HAS POINTED OUT SEVERAL GLARING MISTAKES AND OMISSIONS IN VALUATION REPORT, ON WHICH AO HAS MAINTAINED A CONSPICUOUS SILENCE WHICH IS UNBECOMING OF A QUASI-JUDICIAL AUTHORITY. IV) IT IS IMPORTANT TO NOTE THAT DVO HAS PREPARED H IS REPORT BASED ON DPAR-2012 AFTER APPLYING COST INDEX WITH B ASE 100. INTERESTINGLY, DVO HAS APPLIED SAME RATE FOR COST O F CONSTRUCTION OF THE PROJECT EVEN THOUGH THE INVESTM ENT IS SPREAD OVER MANY YEARS. AS PER APPELLANT, DVO SHOUL D HAVE ADOPTED MPPWD RATES AFTER MAKING CERTAIN ADJUSTMENT FOR THE CONSTRUCTION DONE BY THE ASSESSEE IN DIFFERENT ASSE SSMENT YEARS. HONBLE ALLAHABAD HIGH COURT IN THE CASE OF CIT V/S RAJ KUMAR 182 ITR 436 (ALL) HAS HELD THAT VALUE OF PROPERTY UNDER PWD RATES IS MUCH LOWER THAN THE COST OF VALU E OF PROPERTY AS PER CPWD RATES. SIMILARLY, IN THE CASE OF CIT V/S PREM KUMARA MURDIYA 296 ITR 508 (RAJ) WHEREIN HONBLE GOLDEN REALITIES (SS)59 OF 2019 AND OTHERS 63 COURT REFUSED TO INTERFERE IN THE ORDER OF ITAT HOL DING THAT APPROPRIATE TO BE TAKEN INTO CONSIDERATION WOULD BE PWD RATES AND HOLDING DIFFERENCE BETWEEN CPWD RATES AND PWD R ATES AT 20-25%. SIMILAR VIEWS HAVE BEEN EXPRESSED IN THE CA SE OF ITO V/S NILESH MAHESHWARI (2011) 53 DTR 43 (ITAT JAIPUR ) . IN VIEW OF THIS, A DIFFERENCE OF 20-25% BETWEEN COST S HOWN IN BOOKS AND ESTIMATED BY DVO FALLS WITHIN TOLERANCE BAND AS HELD BY VARIOUS COURTS. FURTHER, APPELLANT PURCHASE D MATERIAL ON WHOLESALE BASIS WHICH BRINGS ECONOMY OF SCALE INTO CONSTRUCTION COST WHICH AS PER APPELLANT WOULD RESU LT INTO SAVINGS UPTO 25-30%. AO HAS ACKNOWLEDGED THIS ASPEC T BUT DID NOT PROVIDE ANY RELIEF WHILE MAKING ADDITION. A PPELLANT HAS ALSO ARGUED ABOUT SAVINGS IN COST OF CONSTRUCTI ON FOR OTHER REASONS AS WELL I.E. SELF-SUPERVISION, CONSULTANCY CHARGES ETC. HOWEVER, AO FAILED TO ALLOW ANY BENEFIT TO THE ASSE SSEE ON ANY OF THE COUNT WHICH IS NOT JUSTIFIED. V) I AM OF THE VIEW THAT AS A CONSEQUENCE OF SUCH U NDER REPORTING, THE AO IS REQUIRED TO REJECT THE BOOKS O F ACCOUNTS OF THE ASSESSEE. IN THE CASE OF THE APPELLANT THE AO HAS NEITHER REJECTED THE BOOKS OF ACCOUNTS BEFORE MAKING A REFE RENCE TO DVO FOR VALUATION OF PROPERTY NOR HE DID AFTER RECE IPT OF VALUATION REPORT FROM DVO. APART FROM THE CASE LAWS REFERRED IN PARA 4.2.6 OF THIS ORDER, IT IS PERTINENT TO REF ER TO THE DECISION OF ITO V/S DREAMLAND ENTERPRISES 80 TAXMAN 143 (ITAT ABD) WHEREIN IT WAS HELD THAT WHEN THE COST OF CONSTRUC TION DECLARED BY THE ASSESSEE WAS SUPPORTED BY REGULAR B OOKS OF ACCOUNTS AND VOUCHERS, CORRECTNESS OF WHICH WAS NOT DISTURBED BY THE AO OR DVO BY BRINGING ANY SPECIFIC MATERIAL ON RECORD, THE CIT(A) WAS FULLY JUSTIFIED IN HOLDIN G THAT NO ADDITION COULD BE VALIDLY MADE ON ACCOUNT OF ANY UNDERSTATEMENT OF COST OF CONSTRUCTION MERELY BECAU SE OF DIFFERENCE AS ESTIMATED BY THE DVO. HENCE, ON THIS COUNT, I AM OF THE VIEW THAT ADDITION MADE MERELY ON THE BASIS OF DVOS REPORT IS NOT SUSTAINABLE. VI) THE VALUATION REPORT OF DVO IS NOT BINDING ON T HE AO BECAUSE IT IS MERELY AN OPINION OF AN EXPERT. IN TH E CONTEXT OF THE CONTROVERSY IN ISSUE, IT MAY ALSO BE GERMANE TO NOTICE THE EXPRESSION USED BY LEGISLATURE I.E. ESTIMATE. THU S, RESORT CAN BE MADE TO THE SAID PROVISION BY THE AO FOR THE PUR POSE OF ESTIMATING THE VALUE OF ANY INVESTMENT, BULLION, JEWELLERY OR ANY VALUABLE ARTICLE ETC. HOWEVER, THIS IS SETTLED LEGAL POSITION THAT ADDITION CANNOT BE MADE SOLELY ON THE BASIS OF VALUATION REPORT WHICH IS ONLY GIVE AN ESTIMATE AS HELD BY VA RIOUS HIGH COURTS, DISCUSSED EARLIER. VII) IT IS APPARENT FROM RECORD THAT ASSESSING OFFI CER HAS NOT BROUGHT ANY MATERIAL ON RECORD TO ESTABLISH THA T THE ASSESSEE HAD MADE ANY UNACCOUNTED INVESTMENT IN CONSTRUCTION OF THE BUILDINGS IN QUESTION AND THAT BOOKS OF GOLDEN REALITIES (SS)59 OF 2019 AND OTHERS 64 ACCOUNTS DO NOT REFLECT THE CORRECT COST OF CONSTRU CTION. IT IS EVIDENT THAT ONLY REASON FOR MAKING THE ADDITION U/ S 69B OF THE ACT IS THAT THERE IS A DIFFERENCE IN THE COST O F CONSTRUCTION AS ESTIMATED BY THE VALUATION OFFICER AND AS SHOWN BY THE ASSESSEE IN ITS BOOKS OF ACCOUNTS. 4.2.8 IT IS INTERESTING TO NOTE THAT VALUATION OF THE PRO PERTY UNDER CONSIDERATION WAS DONE BY THE DVO AFTER APPLY ING COST INDEX ON THE BASIS OF DPAR-2012 (AS BASE). IT IS SE TTLED LAW THAT DPAR RATES ADOPTED BY DVO ARE HIGHER THAN PWD RATES. HONBLE HIGH COURT OF RAJASTHAN IN THE CASE OF CIT V/S PREM KUMARI MURDIYA 296 ITR 344 (RAJ) REFUSED TO INTERFERE IN THE ORDER OF ITAT HOLDING THAT APPROPRIATE RATE TO BE TAKEN INTO CONSIDERATION WOULD BE PWD RATES AND HOLDING DIFFER ENCE BETWEEN CPWD RATES AND PWD RATES AT 20-25%. SIMILAR LY, IN THE CASE OF ITO V/S NILESH MAHESHWARI (2011) 53 DTR 43 (ITAT JAIPUR) HELD AFTER RELYING ON THE DECISION OF TEK CHAND V/S ITO 51 TTJ (JPR) 607 THAT THERE IS VARIATION IN LOCAL PWD RATES AND CPWD RATE BY MARGIN OF 20-25%. IT HAS BEE N HELD IN THE CASE OF CIT V/S LAHSA CONSTRUCTION (P) LTD (2013) 357 ITR 671 (DELHI) THAT NO ADDITION CAN BE MADE SOLELY ON THE BASIS OF VALUATION REPORT OF DVO. LD AR ALSO PLACED RELIANCE ON THE DECISION OF CIT V/S VS PRATAP SINGH AMRO SINGH (1993) 200 ITR 788 (RAJ) THAT ADDITION TO INCOME COULD NOT BE MADE ON THE BASIS OF THE REPORT OF THE VALUATION OFFICER . 4.2.9 IN ADDITION TO ABOVE, APPELLANT HAS ALSO PLACED REL IANCE ON THE FOLLOWING JUDGMENTS:- DCIT VS ANAND BANWARILAL ADHUKIA 75 TAXMANN.COM 302 (2016) ITO VS RAJESHWAR NATH GUPTA (APPEAL NO 4295/DEL/2005 DATED 04.05.2008) DCIT VS ROHTAS PROJECTS LTD (2010) 133 TTJ 89 (LUCKNOW)(UO) CIT VS ANIL ARORA (ITA NO 340/2015 DATED 22.05.2015 ) (DELHI HC) DCIT VS BITHALNATH MALIA (ITA NO 15/KOL/2013 DATED 20.02.2015) KOL ITAT) ITO VS CR SELVARAJ (ITA 100/MDS/2015 DATED 22.05.2015) (ITAT CHENNAI) 4.2.10 IN VIEW OF THE ABOVE DISCUSSION, THE COMPARATIVE PICTURE OF INVESTMENT SHOWN BY THE ASSESSEE AND THA T ESTIMATED BY THE DVO AFTER ALLOWING MARGIN OF 30% ( 25% FOR DIFFERENCE IN CPWD AND PWD RATES AND 5% FOR SELF SUPERVISION) COMES OUT AS UNDER:- A.Y. DECLARED BY ASSESSEE (RS.) 70% OF ESTIMATE MADE BY THE DVO DIFFERENCE GOLDEN REALITIES (SS)59 OF 2019 AND OTHERS 65 2013- 14 17967427 19206948 1239521 2014- 15 36489754 39701084 3211330 2015- 16 71650723 77920439 6269716 2016- 17 64509766 68177473 3667707 THUS, FROM THE ABOVE THE DIFFERENCE IN INVESTMENT A S MENTIONED IN THE ABOVE TABLE ARE CONFIRMED. HENCE, THE ADDITIONS MADE BY THE AO AMOUNTING TO RS. 12,39,521/- IN AY 2013-14, RS. 32,11,330/- IN AY 2014-15, RS. 62,69,716/- IN AY 2015-16 AND RS. 36,67,707/- IN AY 2016- 17 ARE CONFIRMED AND THE APPELLANT GETS RELIEF OF RS. 82,31,549/- IN AY 2013-14, RS. 1,70,14,750/- IN AY 2014- 15, RS. 3,33,94,473/- IN AY 2015-16 AND RS. 2,92,18,917/- IN AY 2016-17. THEREFORE, APPEAL ON THESE GROUNDS I S PARTLY ALLOWED. 33. IN VIEW OF THE FACTUAL MATRIX OF THE CASE, WE A RE OF THE CONSIDERED VIEW THAT ADDITION MADE TO THE TOTAL INC OME OF THE ASSESSEE DURING THE COURSE OF PROCEEDINGS U/S 153C OF THE ACT SOLELY ON THE BASIS OF VALUATION REPORT OF THE DVO AND THAT TOO IN ABSENCE OF ANY INCRIMINATING MATERIAL FOUND DURING THE COURSE OF SEARCH WAS NOT JUSTIFIABLE AND DESERVES TO BE DELET ED. EVEN ON MERITS OF THE CASE, OUR ATTENTION WAS DRAWN TO THE DEDUCTION GIVEN BY THE LD. CIT(A) TOWARDS CPWD/PWD RATES ADOP TED FOR VALUATION. THE LD. COUNSEL FOR THE ASSESSEE REFERRI NG TO VARIOUS JUDGMENTS OF THE TRIBUNAL SUBMITTED THAT DEDUCTION U P TO 30% HAD BEEN PROVIDED IN SIMILAR TYPE OF CASES WHEREAS THE LD. CIT(A) HAD GIVEN ONLY 25% DEDUCTION. SIMILARLY, AS REGARDS SELF- GOLDEN REALITIES (SS)59 OF 2019 AND OTHERS 66 SUPERVISION CHARGES, IT WAS CONTENDED THAT DEDUCTIO N UPTO 10- 12.5% HAD BEEN PROVIDED IN SIMILAR TYPE OF CASES WH EREAS THE LD. CIT(A) HAD GIVEN ONLY 5% DEDUCTION. THE LD. COUNSEL RELIED UPON THE FOLLOWING JUDGMENTS IN SUPPORT OF HIS CONTENTION : S. NO REFERENCE 1. CITATION REBATE ALLOWED FOR 3. 4. SUPERVISION CPWD RATE 1 ITO VS NITESH MAHESHWARI 138 TTJ 116 (JP) 12% 20% 2 RAJEEV MEWARA 35 SOT 001 (INDORE) 10% 25% 3 ITO VS PRAKASH CHAND SONI 94 TTJ 0631 (INDORE) 25% 4 SHRI JAGMOHAN JAISWAL (2008) 10 ITJ 187 (TRIB- INDORE) 10% 30% 5 KALPANA SURANA (2016) 28 ITJ 277 (TRIB.- INDORE) 25% 6 NANDU ATMARAM RAJPUT VS. DCIT, PUNE ITA NO.1036 TO 1041/ PN/2014 DT05.08.2016 12.5% 20% 7 BISWA MITRA SINGH VS DY. CIT (2014) 23ITJ 413, (INDORE BENCH) 25% 8 DCIT VS ANIL KATARIA IT(SS)A NOS 177,178,179/IND/2016 DT 31-05-2018 10% 25% 9 SOCIETY FOR ADVANCEMENT OF ITA NO. 537/LUC/09 DATED 23.02.2010. 25% GOLDEN REALITIES (SS)59 OF 2019 AND OTHERS 67 ENVIRONMENTAL SERVICES VS. ADDL. CIT AS OBSERVED BY US IN THE PRECEDING PARAGRAPHS WHERE IN FACTS EMANATING OUT OF THE SUBMISSIONS MADE BY THE LD. CO UNSEL FOR THE ASSESSEE, VALUATION REPORT PREPARED BY THE GOVE RNMENT APPROVED REGISTERED VALUER AS WELL AS BY THE DVO CL EARLY DEPICT THAT THE VALUATION OF INVESTMENT IN CONSTRUCTION OF THE PROJECT HAS BEEN OVERSTATED AND LOOKING TO THE FACT THAT TH E IMPUGNED ROW HOUSES ARE SITUATED IN VILLAGE PIPARIYA, RATES TAKEN FOR THE PURPOSE OF VALUATION ARE QUITE EXCESSIVE. 34. WE ALSO FIND THAT THE HONBLE JURISDICTIONAL BENCH IN THE CASE OF SHRI ANIL KATARIA, RATLAM VS. DCIT (CENTRAL )-1, INDORE [IT(SS)A NOS. 163, 164 & 165/IND/2016] HAS CATEGORICALLY DISCUSSED THE SIMILAR ISSUE AT LENGTH AND HAS HELD THAT: 22.APART FROM THE ABOVE FOUR MISTAKES POINTED O UT BY THE LEARNED COUNSEL FOR THE ASSESSEE, OUR ATTENTION WAS ALSO DRAWN TO THE DEDUCTION GIVEN BY THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) TOWARDS CPWD/PWD RATES ADOPTED FOR VALUAT ION. THE LEARNED COUNSEL FOR THE ASSESSEE REFERRING TO VARIO US JUDGMENTS OF THE TRIBUNAL SUBMITTED THAT DEDUCTION UP TO 30% HAS BEEN PROVIDED IN SIMILAR TYPE OF CASES WHEREAS THE LEARNED COMMIS SIONER OF INCOME TAX (APPEALS) HAS GIVEN ONLY 15% DEDUCTION. SIMILARLY, AS REGARDS SUPERVISION CHARGES IN THE DECISIONS OF THE TRIBUNAL DEDUCTION UPTO 12.5% OF SELF SUPERVISION CHARGES WA S HELD TO BE JUSTIFIED WHEREAS THE DEPARTMENTAL VALUATION OFFIC ER HAS GIVEN DEDUCTION OF 2.5% ONLY. GOLDEN REALITIES (SS)59 OF 2019 AND OTHERS 68 23. AS OBSERVED BY US IN THE PRECEDING PARAGRAPHS W HEREIN FACTS EMANATING OUT OF THE SUBMISSIONS MADE BY THE LEARNE D COUNSEL FOR THE ASSESSEE, MULTIPLE VALUATION REPORTS PREPARED B Y THE REGISTERED VALUER AS WELL AS DEPARTMENTAL VALUATION OFFICER CL EARLY DEPICT THAT THE VALUATION OF INVESTMENT IN CONSTRUCTION OF THE BUILDING HAS BEEN OVERSTATED AND LOOKING TO THE FACT THAT THE IMPUGNE D BUILDING IS SITUATED IN RATLAM, RATES TAKEN FOR THE PURPOSE OF VALUATION ARE EXCESSIVE. WE, THEREFORE, IN THE GIVEN FACTS AND CI RCUMSTANCES OF THE CASE, FIND IT JUSTIFIED TO CALCULATE THE VALUATION OF THE BUILDING AFTER GIVING RELIEF/DEDUCTION/RELAXATION, AS DISCUSSED AB OVE, AGAINST THE TOTAL VALUATION MADE BY THE DEPARTMENTAL VALUATION OFFICER. 35. WE, THEREFORE, IN THE GIVEN FACTS AND CIRCUMSTA NCES OF THE CASE AND RESPECTFULLY FOLLOWING THE JUDGMENT OF THE HONBLE JURISDICTIONAL BENCH (SUPRA), FIND IT JUSTIFIED TO C ALCULATE THE VALUATION OF COST OF CONSTRUCTION AFTER GIVING REBA TE OF 25% ON ACCOUNT OF CPWD/PWD RATES AND REBATE OF 10% ON ACCO UNT OF SELF-SUPERVISION CHARGES AGAINST TOTAL VALUATION MA DE BY THE DVO IN THE FOLLOWING MANNER: S. NO PARTICULARS AMOUNT [RS] AMOUNT [RS] 1 VALUATION OF COST OF CONSTRUCTION AS CONSIDERED BY THE DVO 33,93,60,000 ADD SUPERVISION CHARGES CREDIT ALLOWED BY DVO 79,11,805 2 CORRECT VALUATION AS PER REPORT OF DVO PLUS SUPERVISION CHARGES BEFORE ALLOWING REBATE FOR CPWD/ PWD RATES AND SELF-SUPERVISION CHARGES 34,72,71,805 LESS DEDUCTION FOR SUPERVISION CHARGES @ 10% (AVERAGE OF PERCENTAGE HELD TO BE JUSTIFIED BY THE COORDINATE BENCH) 3,47,27,181 DEDUCTION ON ACCOUNT OF DIFFERENCE IN 8,68,17,951 12,15,45,132 GOLDEN REALITIES (SS)59 OF 2019 AND OTHERS 69 CPWD/PWD RATES @25% (LOOKING TO THE PLACE OF CONSTRUCTION AS WELL AS PERCENTAGE OF DEDUCTION HELD TO BE JUSTIFIED BY VARIOUS COORDINATE BENCHES CONSISTENTLY) 3 CORRECT VALUATION AFTER CONSIDERING REBATE ON ACCOUNT OF DIFFERENCE IN CPWD/ PWD RATES @ 25% AND ON ACCOUNT OF SELF-SUPERVISION CHARGES @ 10% 22,57,26,673 4 CORRECT COST OF CONSTRUCTION SHOWN BY THE ASSESSEE 23,69,68,970 5 DIFFERENCE ON ACCOUNT OF UNEXPLAINED INVESTMENT IN CONSTRUCTION OF PROJECT NIL 36. WE ACCORDINGLY HOLD THAT NO ADDITION WAS JUSTIFI ED TO THE TOTAL INCOME OF THE ASSESSEE ON ACCOUNT OF UNDISCLO SED INVESTMENT IN CONSTRUCTION OF PROJECT. WE, THUS, VA LUE THE COST OF CONSTRUCTION AT THE ACTUAL COST OF RS.23,69,68,970/ - SHOWN BY THE ASSESSEE. ACCORDINGLY, WE SET ASIDE THE FINDING S OF LD. CIT(A) TO THE EXTENT THE LD. CIT(A) CONFIRMED THE ADDITION ON ACCOUNT OF UNDISCLOSED INVESTMENT IN CONSTRUCTION OF PROJECT. HENCE, THE ASSESSEE GETS FURTHER RELIEF IN AYS 2013-14 TO 2016 -17 WHICH IS OVER AND ABOVE THE RELIEF ALREADY ALLOWED BY THE LD . CIT(A) AND THEREFORE, THE ASSESSEE GETS RELIEF OF RS.12,39,521 /- IN AY 2013- 14, RS.32,11,330/- IN AY 2014-15, RS.62,69,716/- IN AY 2015- 16 AND RS.36,67,707/- IN AY 2016-17. ACCORDINGLY, G ROUND NOS. 5 TO 9 OF THE ASSESSEES APPEAL ARE ALLOWED. GOLDEN REALITIES (SS)59 OF 2019 AND OTHERS 70 37. GROUND NO. 10 RAISED BY THE ASSESSEE CHALLENGES THE ACTION OF THE LD. CIT(A) IN UPHOLDING THE CHARGEABILITY OF INTEREST U/S 234A AND 234B OF THE ACT. THE LD. COUNSEL FOR THE A SSESSEE DID NOT PRESS THIS GROUND OF APPEAL DURING THE COURSE O F HEARING SINCE CHARGEABILITY OF INTEREST UNDER THESE SECTION S IS CONSEQUENTIAL AND MANDATORY IN NATURE. ACCORDINGLY, GROUND NO. 10 OF THE ASSESSEES APPEAL IS DISMISSED AS NOT PRE SSED. 38. IN THE RESULT, APPEAL OF THE ASSESSEE VIDE IT(S S)A NO. 62/IND/2019 FOR AY 2016-17 IS PARTLY ALLOWED. SINCE , APPEALS OF THE ASSESSEE VIDE IT(SS)A NO. 59/IND/2019 FOR AY 20 13-14, IT(SS)A NO. 60/IND/2019 FOR AY 2014-15 AND IT(SS)A NO. 61/IND/2019 FOR AY 2015-16 CONTAIN SIMILAR GROUNDS OF APPEAL, OUR ABOVE ORDER PASSED IN IT(SS)A NO. 62/IND/2019 F OR AY 2016- 17 SHALL PREVAIL THESE APPEALS TOO FILED BY THE ASS ESSEE. ACCORDINGLY, OTHER AFORESAID PRESENT APPEALS OF THE ASSESSEE HAVING SIMILAR SET OF FACTS/GROUNDS ARE ALSO PARTLY ALLOWED. DEPARTMENTAL APPEALS 39. NOW WE TAKE UP REVENUES APPEALS I.E. IT(SS)A N O. 80/IND/2019, IT(SS)A NO. 81/IND/2019 AND IT(SS)A NO . 82/IND/2019. GROUND NO. 1 OF THESE APPEALS RAISED B Y THE GOLDEN REALITIES (SS)59 OF 2019 AND OTHERS 71 REVENUE CHALLENGES THE ACTION OF THE LD. CIT(A) IN DELETING THE ADDITION MADE BY THE LD. ASSESSING OFFICER ON ACCOU NT OF UNDISCLOSED INVESTMENT U/S 69B OF THE ACT. WE HAVE ALREADY ADJUDICATED THIS ISSUE AT LENGTH WHILE DECIDING GRO UND NOS. 5-9 OF THE ASSESSEES APPEAL IN IT(SS)A NO. 62/IND/2019 WHEREIN WE HAVE HELD THAT NO ADDITION WAS JUSTIFIABLE TO THE TO TAL INCOME OF THE ASSESSEE ON ACCOUNT OF UNDISCLOSED INVESTMENT U /S 69B OF THE ACT. HENCE, WE HAVE NO HESITATION IN HOLDING TH AT THE ADDITION MADE BY THE LD. ASSESSING OFFICER ON ACCOUNT OF UND ISCLOSED INVESTMENT U/S 69B OF THE ACT WAS RIGHTLY DELETED B Y THE LD. CIT(A). ACCORDINGLY, GROUND NO. 1 OF THE REVENUES APPEALS IN IT(SS)A NO. 80/IND/2019, IT(SS)A NO. 81/IND/2019 AN D IT(SS)A NO. 82/IND/2019 ARE DISMISSED. 40. GROUND NO. 2 RAISED BY THE REVENUE IN IT(SS)A N O. 80/IND/2019 AND IT(SS)A NO. 81/IND/2019 CHALLENGES THE ACTION OF THE LD. CIT(A) IN DELETING THE ADDITION OF RS.2, 53,555/- AND RS.3,74,000/- MADE BY THE LD. ASSESSING OFFICER ON ACCOUNT OF UNEXPLAINED CASH RECEIVED FROM SMT. SUNITA RAI IN T HESE YEARS RESPECTIVELY. GOLDEN REALITIES (SS)59 OF 2019 AND OTHERS 72 41. LD. DR VEHEMENTLY SUPPORTED THE ORDER OF LD. AS SESSING OFFICER. PER CONTRA LD. COUNSEL FOR THE ASSESSEE SU PPORTED THE FINDINGS OF LD. CIT(A). 42. WE HAVE HEARD RIVAL CONTENTIONS AND PERUSED THE RECORDS PLACED BEFORE US. REVENUE IS AGGRIEVED WITH THE FIN DING OF LD. CIT(A) IN DELETING THE ADDITION OF RS.2,53,555/- AN D RS.3,74,000/- MADE BY THE LD. ASSESSING OFFICER ON ACCOUNT OF UNEXPLAINED CASH RECEIVED FROM SMT. SUNITA RAI IN T HESE YEARS RESPECTIVELY. WE FIND THAT THE IMPUGNED ADDITION WA S DELETED BY LD. CIT(A) OBSERVING AS FOLLOWS: 4.3.2 I HAVE CONSIDERED THE FACTS OF THE CASE, MATERIAL EVIDENCE ON RECORD AND FINDINGS OF THE AO. DURING THE COURSE OF SEARCH LOOSE PAPERS BEARING NO 4 TO 6 OF LPS-1 WERE FOUND AND SE IZED. AS ALLEGED THE SEIZED PAPER CONTAIN DETAILS OF CASH RECEIPT BY THE APPELLANT FROM SMT SUNITA RAI. APPELLANT DURING THE COURSE OF APPE LLATE PROCEEDINGS HAS STRONGLY CONTENDED THAT THE CASH RECEIPT FROM S MT SUNITA RAI WAS AGAINST THE AGREEMENT FOR PURCHASE OF DUPLEX BU ILD AT PLOT NO 77 BY SMT SUNITA RAI. THE APPELLANT HAS ALSO TAKEN AN ALTERNATE PLEA THAT AMOUNT RECEIVED AS ADVANCE FROM CUSTOMER IS NOT TAXABLE AS INCOME OF THE APPELLANT UNTIL AND UNLESS SALE IS ACTUALLY EXECUTED. AFTER CONSIDERING THE ENTIRE FACTUAL MATRIX AND EVI DENCE/MATERIAL ON RECORD INTER ALIA WRITTEN SUBMISSIONS FILED, I REAC H TO CONCLUSION THAT IMPUNGED ADDITION WAS MADE ON THE BASIS OF ASSUMPTI ON AND PRESUMPTION WHICH NEITHER SUSTAINABLE ON FACTS NOR IN LAW. THE AO HAS REACHED TO CONCLUSION THAT APPELLANT HAS RECEIV ED THE CASH OF RS. 2,53,555/- IN AY 2014-15 AND RS. 3,74,000/- IN AY 2015-16 FROM SMT SUNITA RAI AGAINST PURCHASE OF DUPLEX NO 7 7. APPELLANT DURING APPELLATE PROCEEDINGS HAS STRONGLY CONTENTED THAT THE DEAL WITH SMT SUNITA RAI DID NOT MATERIALIZED AND THE AD VANCE RECEIVED FROM SMT SUNITA RAI WAS ADJUSTED AGAINST THE CEMENT AND STEEL INVOICES OF THE FIRM OF SMT SUNITA RAI. THE AMOUNT AS SHOWN PAYABLE AGAINST THE PURCHASE OF MATERIAL BY THE FIRM WAS PA ID SEPARATELY. THESE DOCUMENTS HAVE BEEN SCANNED ON PAGE 5 OF ASSE SSMENT ORDER. ON A PLAIN AND CURSORY LOOK WOULD MAKE IT AM PLY CLEAR THAT GOLDEN REALITIES (SS)59 OF 2019 AND OTHERS 73 THIS PAPER IS RELATING TO RECEIPT OF CASH FROM SMT SUNITA RAI. APPELLANT HAS ARGUED THAT THE SAID TRANSACTION HAS NEVER TAKEN PLACE. SMT SUNITA RAI WAS IN A DEAL WITH APPELLANT FOR PURCHASE OF DUPLEX AT PLOT NO 77, HOWEVER, THE DEAL DID NOT MAT ERIALIZED AND THE SAME WAS CANCELLED. THE ENTIRE ADDITIONS HAVE BEEN MADE ON THE BASIS OF ASSUMPTION AND PRESUMPTION WITHOUT CONSIDE RING THE CORRECT FACTS OF THE CASE. FURTHER NEITHER THE APPELLANT NO R SMT SUNITA RAI HAS EVER STATED THAT THE SALE OF DUPLEX NO 77 WAS E XECUTED 4.3.6 IN VIEW OF THE ABOVE DISCUSSION, MATERIAL EVIDENCES OF RECORD AND CASE LAWS CITED, FIRSTLY, THE AO OUGHT TO HAVE EXAMINED SMT SUNITA RAI IN ORDER TO ASCERTAIN TRUE AND CORRECT F ACT OF THE CASE. SECONDLY, THE AO OUGHT TO HAVE BROUGHT SOME OTHER C OGENT EVIDENCE IN SUPPORT OF HIS ALLEGATION. THIRDLY, THE AO SHOUL D HAVE CONDUCTED INDEPENDENT ENQUIRY FROM OTHER GOVERNMENT AGENCIES SUCH AS REGISTRAR OFFICE, WHETHER THE DUPLEX WAS ACTUALLY S OLD OR NOT. MY FINDINGS ON THE ISSUE UNDER CONSIDERATION ARE BASED ON THE VARIOUS CONCLUSIONS DRAWN BY ME WHICH HAVE BEEN DISCUSSED I N THE ABOVE PARAS. THEREFORE, THE AO WAS NOT JUSTIFIED IN MAKIN G ADDITION OF RS. 2,53,555/- IN AY 2014-15 AND RS. 3,74,000/- IN AY 2015-16 AS UNEXPLAINED CASH. THUS, THE ADDITION MADE BY THE AO AMOUNTING TO RS. 2,53,555/- IN AY 2014-15 AND RS. 3,74,000/- IN AY 2015-16 IS DELETED. THEREFORE APPEAL ON THESE GROUNDS IS ALLOWED. 43. THE ABOVE DETAILED FINDING OF LD. CIT(A) HAS NO T BEEN CONTROVERTED BY THE LD. DR BY BRINGING ANY CONTRARY MATERIAL ON RECORD. THE FACTS DISCUSSED ABOVE SQUARELY REVEAL T HAT THE ASSESSEE DULY EXPLAINED THE NATURE OF LOOSE PAPER O N THE BASIS OF WHICH THESE ADDITIONS WERE MADE TO THE TOTAL INCOME OF THE ASSESSEE. THE ASSESSEE HAD CATEGORICALLY EXPLAINED THAT THE DEAL DID NOT MATERIALIZE AND THAT THE DUPLEX WAS NEVER R EGISTERED IN THE NAME OF SMT. SUNITA RAI AND THE AMOUNT OF ADVAN CE WAS ADJUSTED AGAINST THE MATERIAL SUPPLIED BY THE ASSES SEE TO THE FIRM GOLDEN REALITIES (SS)59 OF 2019 AND OTHERS 74 OF SMT. SUNITA RAI WHICH WAS DULY RECORDED IN THE B OOKS OF ACCOUNTS. THE LD. ASSESSING OFFICER NEITHER EXAMINE D SMT. SUNITA RAI NOR DID HE CONDUCT ANY INDEPENDENT INQUI RY FROM OTHER GOVERNMENT AGENCIES TO ESTABLISH THE VERACITY OF HIS CONTENTION. WE THEREFORE DO NOT FIND ANY INFIRMITY IN THE FINDING OF LD. CIT(A) AND THE SAME NEEDS TO BE CONFIRMED. I N THE RESULT, GROUND NO. 2 OF THE REVENUES APPEAL IN IN IT(SS)A NO. 80/IND/2019 AND IT(SS)A NO. 81/IND/2019 STANDS DISM ISSED. 44. GROUND NO. 2 RAISED BY THE REVENUE IN IT(SS)A N O. 82/IND/2019 CHALLENGES THE ACTION OF THE LD. CIT(A) IN TREATING THE ADDITIONAL INCOME OF RS.2,95,00,000/- ADMITTED BY THE ASSESSEE DURING THE COURSE OF SURVEY UNDER THE HEAD INCOME FROM OTHER SOURCES WHEREAS THE ASSESSING OFFICER H AD RIGHTLY TAXED THE ADDITIONAL INCOME ADMITTED BY THE ASSESSE E DURING THE COURSE OF SURVEY U/S 69B OF THE ACT. 45. LD. DR VEHEMENTLY SUPPORTED THE ORDER OF LD. AS SESSING OFFICER. PER CONTRA LD. COUNSEL FOR THE ASSESSEE SU PPORTED THE FINDINGS OF LD. CIT(A). 46. WE HAVE HEARD RIVAL CONTENTIONS AND PERUSED THE RECORDS PLACED BEFORE US. REVENUE IS AGGRIEVED WITH THE FIN DING OF LD. GOLDEN REALITIES (SS)59 OF 2019 AND OTHERS 75 CIT(A) IN TREATING THE ADDITIONAL INCOME OF RS.2,95 ,00,000/- ADMITTED BY THE ASSESSEE DURING THE COURSE OF SURVE Y UNDER THE HEAD INCOME FROM OTHER SOURCES AS AGAINST TAXABIL ITY OF SUCH INCOME BY INVOKING OF THE PROVISIONS OF SECTION 69B OF THE ACT. WE FIND THAT THE LD. CIT(A) OBSERVED AS FOLLOWS: I HAVE CONSIDERED THE FACTS OF THE CASE PLEA RAISE D BY THE APPELLANT AND ASSESSMENT ORDER . IT IS AN UNDISPUTED FACTS THE APPELLANT HAS MADE DISCLOSURE OF ADDITIONAL INCOME OF RS. 2,95,00 ,000/- ON ACCOUNT OF CONSTRUCTION MATERIAL AND THE SAME WAS A LSO SHOWN WHILE FILING RETURN OF INCOME FOR AY 2016-17. THE A O HAS MADE RECLASSIFICATION OF INCOME OF THE ASSESSEE SIMPLY R ELYING TO THE PROVISIONS OF SECTION 69B. I FIND IT NECESSARY TO Q UOTE THE PROVISIONS OF SECTION 69B WHICH STATES AS UNDER:- 69B. WHERE IN ANY FINANCIAL YEAR THE ASSESSEE HAS MADE INVESTMENTS OR IS FOUND TO BE THE OWNER OF ANY BULL ION, JEWELLERY OR OTHER VALUABLE ARTICLE, AND THE ASSESSING OFFICE R FINDS THAT THE AMOUNT EXPENDED ON MAKING SUCH INVESTMENTS OR IN AC QUIRING SUCH BULLION, JEWELLERY OR OTHER VALUABLE ARTICLE E XCEEDS THE AMOUNT RECORDED IN THIS BEHALF IN THE BOOKS OF ACCO UNT MAINTAINED BY THE ASSESSEE FOR ANY SOURCE OF INCOME, AND THE A SSESSEE OFFERS NO EXPLANATION ABOUT SUCH EXCESS AMOUNT OR THE EXPL ANATION OFFERED BY HIM IS NOT, IN THE OPINION OF THE ASSESS ING OFFICER, SATISFACTORY, THE EXCESS AMOUNT MAY BE DEEMED TO BE THE INCOME OF THE ASSESSEE FOR SUCH FINANCIAL YEAR. 4.4.1 PROVISIONS OF SECTION 69B CLEARLY STATES THAT ANY I NVESTMENT MADE IN BULLION, JEWELLERY OR OTHER VALUABLE ARTICL E IS FOUND IN POSSESSION OF APPELLANT AND THAT TO IN EXCESS OF AM OUNT RECORDED IN BOOKS OF ACCOUNT WHICH WAS NOT IN THE CASE OF APPEL LANT. THE AO HAS NOT SPECIFICALLY COMMENTED ON THE FACT THAT WHETHER THE ADDITIONAL INCOME DECLARED WAS PART OF REGULAR BOOKS OF ACCOUN T OR NOT. THE RECLASSIFICATION OF INCOME U/S 69B CAN ONLY BE DONE FOR INCOME NOT FULLY DISCLOSED IN BOOKS OF ACCOUNT AND NOT TO THE INCOME ALREADY SHOWN IN BOOKS OF ACCOUNT. HONBLE JURISDICTIONAL T RIBUNAL IN THE CASE OF MUKESH SANGLA HUF VS DCIT (2016) 27 ITJ 172 (TRIB INDORE) HAS STATED THAT SECTION 69B OF THE ACT IS APPLICABL E ON CUMULATIVE SATISFACTION OF THE FOLLOWING CONDITIONS (I) THE ASSESSEE SHOULD HAVE MADE THE INVESTMENTS OR IS FOUND TO BE THE OWNER OF ANY BULLION, JEWELLERY OR VALUABLE ART ICLES; (II) BASED ON THE MATERIAL FACTS, THE AO FINDS THAT THE AMOUNT EXPENDED ON SUCH INVESTMENT ACTUALLY EXCEEDS THE AM OUNT RECORDED IN THE BOOKS OF ACCOUNT GOLDEN REALITIES (SS)59 OF 2019 AND OTHERS 76 (III) THE ASSESSEE EITHER OFFERS NO EXPLANATION ABOUT THE NATURE AND SOURCE OF INVESTMENT OR THE EXPLANATION OFFERED IS NOT SATISFACTION IN THE OPINION OF THE AO; (IV) THE SATISFACTION OF THE AO CAN NOT BE ARBITRARY AN D SUBJECTION BUT HAS TO BE BASED ON THE RELEVANT MATE RIAL. THE INVESTMENT MADE BY THE ASSESSEE HAVE BEEN DULY SHOWN IN THE BOOKS OF ACCOUNT AND THE FINDINGS OF THE AO ARE ARB ITRARY AND NOT SUBJECTIVE AND ARE ALSO NOT BASED ON RELEVANT MATER IAL. THE AO OUGHT TO HAVE STRESSED UPON SOME INDEPENDENT AND AR BITRARY MATERIAL WHICH COULD ESTABLISH THAT THE INCOME OFFE RED BY THE APPELLANT IS NOT FULLY RECORDED IN BOOKS OF ACCOUNT . THE ONLY POINT WHICH LIES IN THE FAVOUR OF THE AO IS THAT HE HAS A LLEGED THAT APPELLANT FAILED TO PROVIDE ANY SATISFACTORY EXPLAN ATION REGARDING THE INVESTMENT. APPELLANT DURING THE COURSE OF SURV EY HAS DISCLOSED ADDITIONAL INCOME ON ACCOUNT OF CONSTRUCTION MATERI AL. 4.4.2 THE AO IN HIS ASSESSMENT ORDER HAS SIMPLY STATED TH AT THE EXPLANATION OFFERED BY THE ASSESSEE IS NOT SATISFAC TORY, WHICH CANNOT BE ANY BASIS FOR RECLASSIFICATION OF INCOME OF ASSESSEE. THE AO SHOULD HAVE ELABORATELY EXPLAINED THAT THE INCOM E DISCLOSED BY THE ASSESSEE WAS NOT EARNED FROM BUSINESS OR THE IN COME SHOWN WAS NOT RELATED TO BUSINESS OF THE ASSESSEE. THE AO HAS ALSO NOT POINTED OUT WHETHER THE APPELLANT HAS BEEN DOING SO ME OTHER BUSINESS APART FROM THE DISCLOSED SOURCE OF INCOME. THUS, THE AO HAS NO LOCUS TO RECLASSIFY INCOME OF THE APPELLANT WITHOUT HAVING ANYTHING INCRIMINATING ON RECORD. THE SATISFACTION OF THE AO SHOULD BE ON SOME SPECIFIC FINDING, WHICH IS MISSING IN TH E CASE OF APPELLANT. THUS, THE FINDINGS OF THE AO LACKS MERIT AND ARE NOT SPECIFIC. IN VIEW OF THE ABOVE DISCUSSION AND FOLLO WING THE DECISION OF HONBLE ITAT INDORE IN THE CASE OF MUKESH SANGLA HUF VS DCIT (SUPRA) THE AO WAS NOT JUSTIFIED IN RECLASSIFICATIO N OF DECLARED INCOME OF THE ASSESSEE U/S 69B OF THE ACT. THE AO I S DIRECTED TO TREAT THE INCOME OF THE APPELLANT AS INCOME FROM OT HER SOURCES AS DECLARED BY THE ASSESSEE IN REGULAR RETURN OF INCOM E. THEREFORE, APPEAL ON THIS GROUND IS ALLOWED. 47. THE ABOVE DETAILED FINDING OF LD. CIT(A) HAS NO T BEEN CONTROVERTED BY THE LD. DR BY BRINGING ANY CONTRARY MATERIAL ON RECORD. THE FACTS DISCUSSED ABOVE SQUARELY REVEAL T HAT THE ASSESSEE MADE VOLUNTARY DISCLOSURE OF UNDISCLOSED I NVESTMENT IN CONSTRUCTION TO THE TUNE OF RS.2,95,00,000/- IN AY 2016-17 GOLDEN REALITIES (SS)59 OF 2019 AND OTHERS 77 WHICH WAS ALSO OFFERED FOR TAX WHILE FILING RETURN OF INCOME FOR AY 2016-17. THE ASSESSEE CONTENDED THAT PROVISIONS OF SECTION 69B OF THE ACT WOULD NOT BE APPLICABLE SINCE IT WAS NOT FOUND IN POSSESSION OF ANY BULLION, JEWELLERY OR OTHER VALUA BLE ARTICLE AS STATED U/S 69B OF THE ACT. THE LD. ASSESSING OFFICE R ALSO DID NOT SPECIFICALLY COMMENT WHETHER THE ADDITIONAL INCOME DECLARED WAS A PART OF REGULAR BOOKS OF ACCOUNTS OR NOT MORE SO WHEN SECTION 69B OF THE ACT CAN BE INVOKED ONLY FOR INCOME WHICH IS NOT FULLY DISCLOSED IN BOOKS OF ACCOUNTS AND NOT IN RESPECT O F INCOME WHICH IS ALREADY INCORPORATED IN THE BOOKS OF ACCOU NTS. IN VIEW OF THE DETAILED FINDINGS OF THE LD. CIT(A) AND RELIANC E PLACED ON THE DECISION OF THE HONBLE JURISDICTIONAL BENCH IN THE CASE OF MUKESH SANGLA HUF VS DCIT, WE DO NOT FIND ANY INFIR MITY IN THE FINDING OF LD. CIT(A) AND THE SAME NEEDS TO BE CONF IRMED. IN THE RESULT, GROUND NO. 2 OF THE REVENUES APPEAL IN IN IT(SS)A NO. 82/IND/2019 STANDS DISMISSED. 48. GROUND NO. 3 OF THESE APPEALS IS GENERAL IN NAT URE AND REQUIRES NO ADJUDICATION. GOLDEN REALITIES (SS)59 OF 2019 AND OTHERS 78 49. IN THE RESULT, REVENUES APPEALS IN IT(SS)A NO. 80/IND/2019 FOR AY 2014-15, IT(SS)A NO. 81/IND/2019 FOR AY 2015 -16 AND IT(SS)A NO. 82/IND/2019 FOR AY 2016-17 ARE DISMISSE D. 50. FINALLY, APPEALS FILED BY THE ASSESSEE ARE PART LY ALLOWED WHEREAS THAT FILED BY THE REVENUE ARE DISMISSED. THE ORDER PRONOUNCED AS PER RULE 34 OF ITAT RULES, 1963 ON 04.10.2021. SD/- SD/- (RAJPAL YADAV) (MANISH BORAD) VICE PRESIDENT ACCOUNTANT ME MBER / DATED : 04.10.2021 !VYAS! COPY TO: THE APPELLANT/RESPONDENT/CIT CONCERNED/CIT (A) CONCERNED/ DR, ITAT, INDORE/GUARD FILE. BY ORDER, ASSTT.REGISTRAR, I.T.A.T., INDORE