M/s Anilesh Enterprises Pvt. Ltd, New Delhi v. ITO, New Delhi

ITA 2044/DEL/2010 | 2007-2008
Pronouncement Date: 09-07-2010 | Result: Allowed

Appeal Details

RSA Number 204420114 RSA 2010
Assessee PAN AABCA0735A
Bench Delhi
Appeal Number ITA 2044/DEL/2010
Duration Of Justice 2 month(s) 5 day(s)
Appellant M/s Anilesh Enterprises Pvt. Ltd, New Delhi
Respondent ITO, New Delhi
Appeal Type Income Tax Appeal
Pronouncement Date 09-07-2010
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted A
Tribunal Order Date 09-07-2010
Date Of Final Hearing 06-07-2010
Next Hearing Date 06-07-2010
Assessment Year 2007-2008
Appeal Filed On 04-05-2010
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH A DELHI BEFORE SHRI RAJPAL YADAV AND SHRI K.G. BANSAL ITA NO.2044(DEL)/2010 ASSESSMENT YEAR: 2007-08 M/S ANILESH ENTERPRISES PVT. INCOME-TAX OFFICER LTD. 13/1090 HARDHIAN SINGH RD. VS. WARD 1(4) NEW DELHI. KAROL BAGH NEW DELHI. PAN-AABCA0735A (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI R.S. SINGHVI C.A. RESPONDENT BY: SH RI AMRENDRA KUMAR SR. DR ORDER PER K.G. BANSAL : AM THIS APPEAL OF THE ASSESSEE EMANATES FROM TH E ORDER OF CIT(APPEALS-IV NEW DELHI PASSED ON 11.03.2010 I N I.T. APPEAL NO. 71/09-10 AND IT PERTAINS TO ASSESSMENT YEAR 2 007-08. THE CORRESPONDING ASSESSMENT ORDER WAS FRAMED BY THE ITO WARD 1( 4) NEW DELHI ON 30.12.2009 UNDER THE PROVISIONS OF SECTION 143(3 ) OF THE INCOME-TAX ACT 1961. THE ASSESSEE HAS TAKEN THE FOLLOWING GR OUNDS:- 1(I) THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE CIT(A) WAS NOT JUSTIFIED IN SUSTAINING ADDITION U/S 69 ON THE BASIS OF CIRCLE RATE IN TERMS OF PROVISIONS OF SECTION 50C OF THE INCOME-TAX ACT 1961. ITA NO. 2044(DEL)/2010 2 (II) THAT THE ASSESSEE HAS ACQUIRED INDUSTRIAL PLOT THROUGH LEGAL DOCUMENTS AND THERE IS NO DISPUTE ABOUT CORRE CTNESS OF THE PURCHASE PRICE AND AS SUCH PRESUMPTION ABOUT UNEX PLAINED INVESTMENT IS ILLEGAL ARBITRARY AND MISCONCEIVED . (III) THAT IN THE ABSENCE OF ANY EVIDENCE REGAR DING ANY UNEXPLAINED OR UNRECORDED INVESTMENT THERE IS NO CASE OF ANY HYPOTHETICAL ADDITION IN TERMS OF PROVISIONS OF SECTION 69C OF THE INCOME-TAX ACT. (IV) THAT THIS IS A CASE OF PURCHASE OF PROPERTY AND DEEMING PROVISIONS OF SECTION 50C WHICH IS IN THE CONTEX T OF COMPUTATION OF CAPITAL GAIN U/S 45 OF THE INCOME-T AX ACT ON SALE OF AN ASSET ARE NOT APPLICABLE FOR THE PURP OSE OF SEC. 69 AND AS SUCH WHOLE BASIS OF ANY ADDITION IS ILLEGA L AND INVALID. 2. BEFORE US THE LD. COUNSEL FOR THE ASSESSEE REFERRED TO THE FINDINGS OF THE LD. CIT(APPEALS) WHICH READ AS UNDER:- AFTER GOING THROUGH THE FINDINGS OF THE ASSESSING OFFICER SUBMISSIONS OF THE AR OF THE APPELLANT AND THE F ACTS OF THE CASE THIS GROUND IS BEING DISPOSED OF AFTER M AKING THE FOLLOWING OBSERVATIONS:- (I) THE ASSESSING OFFICER HAS MADE THE ADDITION OF RS. 35 90 000/- U/S 69B OF THE INCOME-TAX ACT BY RELYING UPON THE REPORT OF THE APPROVED VALUER FROM SIDBI WHICH WAS FOR THE PURPOSE OF GRANT OF L OAN. THIS VALUATION WAS ALSO NOT PROVIDED TO THE APPELLANT FOR HIS COMMENTS OR FOR ANALYZING THE MANNER IN WHICH THE VALUATION HAD BEEN PREPARED . IT HAS FURTHER BEEN CONTENDED BY THE AR THAT T HIS REPORT HAD ITSELF NOT BEEN ACTED UPON ON THE VALUATION HAD NOT BEEN ACCEPTED BY SIDBI THAT GRANT OF LOAN. ITA NO. 2044(DEL)/2010 3 (II) THE PROVISIONS OF SECTION 69B WITH REGARD TO UNDISCLOSED INVESTMENT REQUIRES THAT THERE MUST BE MATERIAL EVIDENCE TO ESTABLISH THAT UNDISCLOSE D INVESTMENT HAD BEEN MADE BY THE ASSESSEE AND TH E SAME HAD NOT BEEN PROPERLY ACCOUNT FOR IN THE ACCOUNTS OF THE ASSESSEE. IT HAS ALSO BEEN HEL D BY A LARGE NUMBER OF JUDICIAL PRONOUNCEMENTS THAT MERELY RELIANCE ON SOME ESTIMATED VALUATION WITHOUT ANY SUPPORTING EVIDENCES OR CIRCUMSTANCES INDICATING THAT ANY SUCH UNDISCLOS ED INVESTMENT HAS ACTUALLY BEEN MADE BY THE ASSES SEE IT IS NOT FAIR TO CONCLUDE THAT ACTUAL UNDISC LOSED INVESTMENT HAD TAKEN PLACE MERELY BECAUSE THE MARKET VALUE OF THE PARTICULAR INVESTMENT IS AT VARIANCE WITH THE DISCLOSED AMOUNT OF INVESTMENT. (III) THE AR OF THE APPELLANT HAS ALSO RELIED UPON A LARGE NUMBER OF JUDICIAL PRONOUNCEMENTS INCLUDING K.P. VARGHESE VS. ITO 131 ITR (SC) CIT VS. GULSHAN KUMAR 257 ITR (DEL) CIT VS. SUSHILA MITTAL & ORS. 250 ITR (DEL) CIT VS. DEV KUMA R JAIN 309 ITR (DEL) & ORS. TO ARGUE THAT THE STAND TAKEN BY THE ASSESSING OFFICER FOR MAKING THE ADDITION WAS NOT JUSTIFIED. (IV) THE AR HAS FURTHER DIFFERENTIATED THE DE CISIONS OF HANEMP PROPERTIES (SUPRA) IN WHICH THE MATTER H AD BEEN RESTORED BACK TO THE ASSESSING OFFICER FOR RECONSIDERATION. THE AR HAS FURTHER DIFFERENTIAT ED THE CASE OF BHAWANI SHANKAR VYAS (SUPRA) WHERE THE ISSUE WAS RELATED TO REJECTION OF BOOKS OF ACCOUNT BEFORE REFERENCE TO VALUATION OFFICER. I N THE PRESENT CASE THE ISSUE IS DIFFERENT. (V) THE ASSESSING OFFICER HAS PRIMARILY BASED H IS ADDITION ON THE VALUATION REPORT OF SHRI S.K. AHU JA & ASSOCIATES WHICH IN ITSELF DOES NOT PROVIDE AN Y SPECIFIC INFORMATION OR DOCUMENTS TO INDICA TE THAT THE AMOUNT OF RS. 45 00 000/- HAD BEEN INVEST ED ITA NO. 2044(DEL)/2010 4 BY THE APPELLANT. FROM THE FACTS IT APPEARS THA T THIS VALUATION REPORT HAD BEEN PREPARED BY THE VALUE R WITH THE IDEA OF OBTAINING A HIGHER LOAN FROM SIDBI. THE CREDIBILITY OF VALUATION REPORT IS NOT ESTABLISHED ALSO BECAUSE SIDBI ITSELF HAS NOT ACCEPTED THIS VALUATION REPORT FOR THE SANCTION OF LOAN TO THE ASSESSEE. (VI) ON THE OTHER HAND THE ASSESSING OFFICER HAD ISSUED A SHOW CAUSE TO THE APPELLANT TO EXPL AIN AS TO WHY THE CIRCLE RATE FOR THE AREA SHOULD NOT BE CONSIDERED WHILE ARRIVING AT THE ACTUAL INVEST MENT PERTAINING TO THE INDUSTRIAL PLOT. ON THE BAS IS OF THE DOCUMENTS AND THE CIRCLE RATE THE VALUE OF THE PLOT WOULD BE HIGHER THAN THE AMOUNT SHOWN BY T HE APPELLANT. THE ASSESSING OFFICER AT BEST WOUL D BE JUSTIFIED IN MAKING A FAIR ESTIMATION OF THE ACTUAL INVESTMENT BY RELYING UPON THE CIRCLE RATE FOR THE AREA INSTEAD OF RELYING UPON THE VALUATION REP ORT PREPARED FOR SIDBI. AS PER THE APPELLANTS OWN CONTENTIONS THE VALUATION OF THE INDUSTRIAL PLO T AS PER THE CIRCLE RATE WOULD COME TO RS. 15 00 000 /- AGAINST THE DECLARED VALUE OF RS. 10 00 000/-. FURTHER OTHER CHARGES OF RS. 4 90 000/- HAVE ALSO BEEN SPENT BY THE APPELLANT IN RESPECT OF TRANS FER FEE ETC. IN VIEW OF THE CIRCLE RATE FOR THE AREA IN MY OPINION THE ASSESSING OFFICER WOULD BE JUSTIFIED IN ARRIVING AT THE ACTUAL AMOUNT OF INVESTMENT ON THE BASIS OF THIS CIRCLE RATE AND THE SAME HAS BEEN COMPUTED BY THE APPELLANT AT RS 15 00 000/-. THE ASSESSING OFFICER IS DIRECTED TO VERIFY THE ACTUAL INVESTMENT BASED ON THE CIRCLE RATES CLAIMED TO BE AT RS. 15 00 000/- BY THE APPELLANT. FURTHER THE OTHER CHARGES OF RS. 4 90 000/- MAY ALSO BE VERIFIED. THE ASSESSING OF FICER IS DIRECTED TO CONSIDER THIS AMOUNT AS A TOTAL INVES TMENT AND ACCORDINGLY THE DIFFERENCE BETWEEN THE DECLARE D INVESTMENT AND THE TOTAL INVESTMENT MAY BE TREATED AS UNDI SCLOSED INVESTMENT U/S 69 OF THE INCOME-TAX ACT. ITA NO. 2044(DEL)/2010 5 2.1 FURTHER HE RELIED ON THE DECISION OF AHMED ABAD BENCH OF THE TRIBUNAL IN THE CASE OF ITO VS. HARLEY STREET PHA RMACEUTICALS LTD. (2010) 38 SOT 486 WHICH IS IN CONTRADICTION WITH THE FINDINGS OF THE LD. CIT(APPEALS). IN THAT CASE IT HAS BEEN HELD THA T A FICTION CREATED U/S 50C FOR SUBSTITUTION OF ACTUAL CONSIDERATION THAT TH E TRANSFER CONSIDERATION DETERMINED BY THE REGISTRAR FOR THE PURPOSE OF L EVY OF STAMP DUTY CANNOT BE CARRIED OVER TO THE CASE OF THE BUYER AS IT IS RESTRICTED ONLY FOR THE PURPOSE OF COMPUTATION OF CAPITAL GAINS. FOR THE SAKE OF READY REFERENCE PARAGRAPH 7 OF THE ORDER IS REPRODUCED BELOW:- 7. IN VIEW OF THE ABOVE PROVISION AND EXPLA INING THE PROVISION WE ARE OF THE VIEW THAT THE LAW UNDER SECTION 50C HAD BEEN PROVIDED ADEQUATE PROTECTION TO THE T AX-PAYERS AGAINST ADOPTION OF ARBITRARY VALUES FOR THE CO MPUTATION OF CAPITAL GAINS AND THE FOLLOWING PRECAUTIONARY ARE PROVIDED:- THE VALUE WHICH IS CONSIDERED AS THE PROPER VALU E OF THE PROPERTY AS FIXED BY THE AUTHORITY FOR REGIST RATION FOR STAMP DUTY PURPOSES IS PRESUMED TO BE THE FAIR MARKE T VALUE FOR THE PURPOSES OF COMPUTATION OF CAPITAL GAINS ON THE SALE OF PROPERTY. IT IS OPEN TO THE TAX-PAYER TO PLEAD THAT SUC H STAMP VALUE IS ABNORMAL AND CONTEST THE SAME IN APPEAL UNDE R THE STAMP LAW REQUIRING ADOPTION OF REDUCED VALUE. IF SUCH VALUE IS REDUCED IN APPEAL UNDER THE PROVISIONS OF THE R ELEVANT STAMP LAW SUCH REDUCED VALUE WOULD ALONE BE ADOPT ED. ITA NO. 2044(DEL)/2010 6 WHERE SUCH STAMP VALUE IS NOT DISPUTED IT IS O PEN TO THE ASSESSEE TO REQUIRE THE ASSESSING OFFICER TO REFER THE VALUATION TO THE VALUATION OFFICER WHO SHALL FIX THE VALUATION BY ADOPTION OF THE PROCEDURE PRESCRIB ED UNDER SECTION 16A OF THE WEALTH-TAX ACT. IT IS SUCH V ALUE WHICH WILL BE ADOPTED BY THE ASSESSING OFFICER. WE FURTHER FIND FROM THE MEMORANDUM EXPLAINING THE PROVISION OF SECTION 50C IN THE FINANCE BILL 2 002 WHICH CLEARLY STATES THAT WHERE THE CONSIDERATION DECLARED TO BE RECEIVED OR ACCRUING AS A RESULT OF TRANSFER OF LAND OR BUILDING OR BOTH IS LESS THAN THE VALUE ADOPTED OR ASSESSED BY ANY AUTHORITY OF A STATE GOVERNMENT FOR THE P URPOSES OF PAYMENT OF STAMP DUTY IN RESPECT OF SUCH TRANS FER THE VALUE SO ADOPTED OR ASSESSED SHALL BE DEEMED TO BE T HE FULL VALUE OF THE CONSIDERATION AND CAPITAL GAINS SHALL BE COMPUTED ACCORDINGLY UNDER SECTION 48OF THE ACT. IN CAS E THE VALUE ADOPTED OR ASSESSED FOR STAMP DUTY PURPOSES IS REVISED IN ANY APPEAL REVISION OR REFERENCE THE ASSE SSMENT MADE SHALL BE AMENDED TO RE-COMPUTE THE CAPITAL GAI NS BY TAKING THE REVISED VALUE AS THE FULL VALUE OF CONSID ERATION. ACCORDINGLY WE ARE OF THE VIEW THAT THE PROVISIO NS OF SECTION 50C ARE APPLICABLE ONLY FOR THE COMPUTATI ON OF CAPITAL GAINS IN REAL ESTATE TRANSACTION IN RESPECT T O SELLER ONLY AND NOT FOR THE PURCHASER. WE FIND FROM SECTION 50 C OF THE ACT THAT IT CREATES A LEGAL FICTION THEREBY APP ARENT CONSIDERATION IS SUBSTITUTED BY VALUATION DONE BY STAMP VALUA TION AUTHORITIES AND CAPITAL GAINS ARE CALCULATED ACCORDINGLY. LEGAL FICTION CANNOT BE EXTENDED ANY FURTHER AND HAS TO BE LIMITED TO THE AREA FOR WHICH IT IS CREATED. HONBLE ANDHRA PRADESH HIGH COURT IN THE CASE OF ADDL. CIT VS. D URGAMMA [1987] 166 ITR 776 HELD THAT IT IS NOT POSSIBLE TO EXTEND THE FICTION BEYOND THE FIELD LEGITIMATELY INTENDED BY THE STATUTE. THE HONBLE COURT WAS DEALING WITH THE PROVISI ONS SECTION 171(1) OF THE INCOME-TAX ACT IN THE CONTEXT OF W HICH IT WAS HELD THAT JOINT FAMILY SHALL BE DEEMED TO CONT INUE FOR THE LIMITED PURPOSE OF ASSESSING CASES OF JOINT FAMILIES WHICH HAVE BEEN HITHERTO ASSESSED AS SUCH. IT IS NOT POSSIBLE TO EXTEND THAT FICTION TO OTHER CASES. SIMILAR VIEW WAS TAKEN BY THE HONBLE KERALA HIGH COURT IN CIT V. KAR VALVES LTD. ITA NO. 2044(DEL)/2010 7 [1987] 168 ITR 416 WHEREIN IT IS HELD THAT LE GAL FICTION IS LIMITED TO THE PURPOSE FOR WHICH THEY ARE CREATE D AND COULD NOT BE EXTENDED BEYOND THAT LEGITIMATE FRAME HONBLE KERALA HIGH COURT WAS DEALING WITH THE CASE WH ERE ASSESSEE SOUGHT TO TAKE ADVANTAGE OF SECTION 4 1(2) BY SUBMITTING THAT IF LIABILITIES ARE NOT LIQUID ATED AND OUTSTANDING ARE NOT COLLECTED THEN BUSINESS COUL D BE DEEMED TO CONTINUE. THE HONBLE ALLAHABAD HIGH COURT IN T HE CASE OF CED VS. SMT. KRISHNA KUMAR DEVI [1988] 173 ITR 561 HELD THAT IN INTERPRETING THE LEGAL FICTION THE COURT SHOULD ASCERTAIN THE PURPOSE FOR WHICH IT WAS CREATED A ND AFTER DOING SO ASSUME ALL FACTS WHICH ARE LOGICAL TO GIVE EFFECT TO THE FICTION HONBLE SUPREME COURT IN CIT VS. MOTHER INDIA REFRIGERATION INDUSTRIES (P) LTD. [1985] 155 ITR 7 11 HELD THAT LEGAL FICTIONS ARE CREATED ONLY FOR SOME DEF INITE PURPOSE AND THEY MUST BE LIMITED TO THAT PURPOSE AND SHOULD NOT BE EXTENDED BEYOND THAT LEGITIMATE FIELD. IN CIT VS. BHARANI PICTURES [1981] 129 ITR 244 (MAD.) IT IS HELD THA T LEGAL FICTIONS ARE FOR A DEFINITE PURPOSE AND ARE LIMITED TO THE PURPOSE FOR WHICH THEY ARE CREATED AND SHOULD N OT BE EXTENDED BEYOND ITS LEGITIMATE FIELD. THE STAT UTORY FICTION INTRODUCED IN ONE ENACTMENT CANNOT BE INCORPOR ATED IN ANOTHER ENACTMENT. THE POINT THAT LEGAL FICTION CANNOT BE EXTENDED TO A NEW FIELD WAS HIGHLIGHTED BY HON BLE MADRAS HIGH COURT IN CIT V. T.S. RAJAM [1980] 125 ITR 20 7 WHEREIN IT IS HELD THAT SECTION 41(2) CREATES A LEGAL F ICTION UNDER WHICH THE BALANCING CHARGE IS CREATED AS BUSINESS INC OME CHARGEABLE TO TAX BUT WHEN THIS AMOUNT IS DISTR IBUTED TO SHAREHOLDERS THEN IT WOULD NOT BECOME DEEMED DI VIDEND AND IT WOULD BE ONLY A CAPITAL RECEIPT AND NOT DIST RIBUTION OF ACCUMULATED PROFITS. THUS A LEGAL FICTION WAS INVOKED IN THE HANDS OF THE ASSESSEE-COMPANY AND WAS NOT EXTE NDED IN THE HANDS OF THE SHAREHOLDERS. IN THE PRESENT CASE SECTION 50C CREATES A LEGAL FICTION FOR TAXING CAPITAL GAIN S IN THE HANDS OF THE SELLER AND IT CANNOT BE EXTENDED FOR TAX ING THE DIFFERENCE BETWEEN APPARENT CONSIDERATION AND V ALUATION DONE BY STAMP VALUATION AUTHORITIES AS UNDISCLO SED INVESTMENT UNDER SECTION 69. IN FACT SECTION 69 ITSELF IS A LEGAL FICTION WHEREBY INVESTMENT INTO AN ASSET IS TREATED AS INCOME IF IT IS NOT DISCLOSED IN THE REGULAR BOO KS OF ACCOUNT. ITA NO. 2044(DEL)/2010 8 NO FURTHER LEGAL FICTION FROM ELSEWHERE IN THE STATUTE CAN BE BORROWED TO EXTEND THE FIELD OF SECTION 69. IT IS FOR THE LEGISLATURE TO INTRODUCE LEGAL FICTION TO OVERCOM E DIFFICULTY IN TAXING CERTAIN RECEIPTS OR EXPENDITURE WHICH OTHERWISE WAS NOT POSSIBLE UNDER NORMAL PROVISIONS OF THE ACT. IT IS WITH THIS PURPOSE THAT WHEN IT WAS FOUND DIFFICULT TO PREVENT TAX EVASION BY UNDERSTANDING APPARENT SALE CONSIDERA TION AS COMPARED TO THE VALUATION MADE BY STAMP VALUATION AUTHORITIES FOR THE PURPOSES OF LEVYING STAMP DU TY THEN IT WAS THOUGHT NECESSARY TO INTRODUCE SECTION 50C FOR SUBSTITUTING APPARENT SALE CONSIDERATION BY VALUA TION DONE BY STAMP VALUATION AUTHORITIES. THIS FACTION CANNOT BE EXTENDED ANY FURTHER AND THEREFORE CANNOT BE INVOKED BY ASSESSING OFFICER TO TAX THE DIFFERENCE IN THE H ANDS OF THE PURCHASER. HONBLE MADRAS HIGH COURT IN CGT VS. R. DAMODARAN [2001] 247 ITR 698 HELD THAT STAMP VA LUATION AUTHORITIES HAVE THEIR OWN METHOD OF EVALUATING THE PROPERTY. MERELY BECAUSE FOR THE PURPOSE OF STAMP DUTY PR OPERTY IS VALUED AT HIGHER COST IT CANNOT BE SAID THA T ASSESSEE HAS MADE MORE PAYMENT THAN WHAT IS STATED IN THE S ALE DEED. THE HONBLE ALLAHABAD HIGH COURT IN DINESH KUMAR MITTAL VS. ITO [1992] 193 ITR 770 QUASHED THE ORDER OF AUTHORITIES BELOW WHEREIN HALF OF THE DIFFERENCE BETWEEN THE AMOUNT PAID AND THE VALUE FOR PURPOSES OF STAMP DUTY W AS ADDED AS INCOME OF THE ASSESSEE BY THE ASSESSING OFFICER . IT IS HELD THAT THERE IS NO RULE OF LAW TO THE EFFECT THAT T HE VALUE DETERMINED FOR THE PURPOSES OF STAMP DUTY IS T HE ACTUAL CONSIDERATION PASSED BETWEEN THE PARTIES TO THE SALE. IN THE PRESENT CASE THE ASSESSING OFFICER HAS APPLIED THIS PROVISION OF SECTION 50C FOR THE COMPUTATION OF UNEXPLAINE D INVESTMENT UNDER SECTION 69B OF THE ACT AND WHIC H IS NOT PERMISSIBLE UNDER THE ACT. APART FROM THE STAMP DUTY VALUATION THERE IS NOTHING ON RECORD WHICH SUG GESTS THAT THE REVENUE HAS PROVED THAT THE ASSESSEE HAS ACCEPT ED OVER AND ABOVE WHAT HAS BEEN RECORDED AS PURCHASE CONSI DERATION OF THE LAND IN THE INSTRUMENT I.E. THE SALE DEED . WE ARE IN FULL AGREEMENT WITH THE ARGUMENTS OF THE ASSESSEE TH AT SECTION 50C IS NOT APPLICABLE IN THE CASE OF PURCHASER A ND THIS PROVISION BEING A DEEMING PROVISION WILL APPLY FOR DETERMINING THE FULL VALUE OF CONSIDERATION AS A RESULT OF ITA NO. 2044(DEL)/2010 9 TRANSFER OF CAPITAL ASSETS FOR THE PURPOSES OF COM PUTATION OF CAPITAL GAINS UNDER SECTION 48 OF THE ACT. WE FURTHER FIND THAT THERE IS NO EVIDENCE ON RECORD TO SHOW THAT THE CONSIDERATION OVER AND ABOVE WHAT HAS BEEN RECOR DED IN THE SALE DEED HAS BEEN MADE BY THE ASSESSEE AND IN THE ABSENCE OF THE SAME NO ADDITION OF UNDISCLOSED INVESTM ENT CAN BE MADE BY INVOKING THE PROVISION OF SECTION 69B OF THE ACT. ACCORDINGLY WE CONFIRM THE ORDER OF CIT(A) DELE TING THE ADDITION AND THIS ISSUE OF THE REVENUES APPEAL IS DISMISSED. 3. IN REPLY THE LD. DR SUBMITTED THAT THE CI RCLE RATE REPRESENTS THE FAIR MARKET VALUE OF THE PROPERTY AND IT WILL BE INCONCEIVABLE THAT ANY ONE WILL SELL THE PROPERTY TO THE ASSESSEE AT LESS T HAN THE CIRCLE RATE. 4. WE HAVE CONSIDERED THE FACTS OF THE CASE AND SUBMISSIONS MADE BEFORE US. IT IS CLEAR THAT A FICTION CREATED U /S 50C IS APPLICABLE ONLY FOR THE PURPOSE OF COMPUTATION OF CAPITAL GAINS IN THE CASE OF TRANSFEROR. THIS FICTION IS NOT APPLICABLE TO THE CASE OF A BUYE R IN THIS YEAR. THE ISSUE STANDS COVERED BY THE DECISION OF THE TRIBUNAL IN THE CASE OF HARLEY STREET PHARMACEUTICALS LTD. (SUPRA). FOLLOWING THIS DE CISION IT IS HELD THAT THE PROVISIONS CONTAINED IN SECTIONS 69 AND 69B CANN OT BE INVOKED IN THE CASE OF THE ASSESSEE UNLESS SPECIFIC EVIDENCE OF NON-DISCLOSURE OF ANY PART OF THE INVESTMENT IS BROUGHT ON RECORD. SUCH AN EVIDENCE DOES NOT EXIST IN THIS CASE. THEREFORE WE ARE UNABLE TO CONCUR WITH THE LD. CIT(A) IN THIS MATTER. RELYING ON THE DECISION IN THE CASE OF HARLEY ITA NO. 2044(DEL)/2010 10 STREET PHARMACEUTICALS LTD. IT IS HELD THAT NO A MOUNT COULD BE ADDED TO THE INCOME OF THE ASSESSEE U/S 69 OR 69B. 5. IN THE RESULT THE APPEAL IS ALLOWED. THIS ORDER WAS PRONOUNCED IN THE OPEN COURT ON 9TH JULY 2010. SD/- SD/- (RAJPAL YADAV) (K.G.BANSAL) JUDICIAL MEMBER ACCOUNTANT MEMBER DATE OF ORDER: 9TH JULY 2010. SP SATIA COPY OF THE ORDER FORWARDED TO:- ANILESH ENTERPRISES PVT. LTD. NEW DELHI. ITO WARD 1(4) NEW DELHI. CIT(A) CIT THE DR ITAT NEW DELHI. ASSISTANT REGISTRAR.