ITO, New Delhi v. Sh. Harvinder Singh Sahota, New Delhi

ITA 2412/DEL/2010 | 2004-2005
Pronouncement Date: 03-02-2012 | Result: Dismissed

Appeal Details

RSA Number 241220114 RSA 2010
Bench Delhi
Appeal Number ITA 2412/DEL/2010
Duration Of Justice 1 year(s) 8 month(s) 12 day(s)
Appellant ITO, New Delhi
Respondent Sh. Harvinder Singh Sahota, New Delhi
Appeal Type Income Tax Appeal
Pronouncement Date 03-02-2012
Appeal Filed By Department
Order Result Dismissed
Bench Allotted C
Tribunal Order Date 03-02-2012
Date Of Final Hearing 02-02-2012
Next Hearing Date 02-02-2012
Assessment Year 2004-2005
Appeal Filed On 21-05-2010
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH C DELHI) BEFORE SHRI G.D. AGRAWAL HONBLE VICE PRESIDENT AND SHRI A.D. JAIN JUDICIAL MEMBER ITA NO. 2412(DEL)2010 ASSESSMENT YEAR: 2004-05 INCOME TAX OFFICER SHRI HARVINDER SINGH SAHOTA WARD 10(1) NEW DELHI. V. F-484 VIKASPURI NE W DELHI. ITA NO. 3651(DEL)2010 ASSESSMENT YEAR: 2004-05 INCOME TAX OFFICER SMT. INDERPREET KAUR SAHOTA WARD 10(1) NEW DELHI. V. F-484 VIKASPURI NE W DELHI. (APPELLANT) (RESPONDENT) DEPARTMENT BY: SHRI SA LIL MISHRA SR. DR ASSESSEE BY: SHRI P.N. CHAWLA ADVOCATE ORDER PER A.D. JAIN J.M . THESE ARE DEPARTMENTS APPEALS FOR ASSESSMENT YEAR 2004-05 IN THE CASE OF TWO ASSESSES SHRI HARVINDER SINGH S AHOTA AND HIS WIFE SMT. INDERPREET KAUR SAHOTA. THE ISSUE IS BE ING SIMILAR THE FACTS FOR CONVENIENCE ARE BEING TAKEN FROM ITA NO . 2412(DEL)2010. 2. THE ONLY EFFECTIVE GROUND IS GROUND NO.2 WHICH STATES AS FOLLOWS:- ITA NOS. 2412&3651(DEL)2010 2 ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE LD. CIT(APPEALS) HAS ERRED IN DELETING ADDITION MADE OF ` 38 06 600/- U/S 69 B OF THE INCOME TAX ACT 1961 W HEN THE DISTRICT VALUATION OFFICER HAS VALUED THE PROPE RTY AT ` 50 56 600/- AGAINST THE DISCLOSED VALUE OF ` 12 50 000/-. 3. THE AO MADE ADDITION OF ` 38 06 600/- IN THE HANDS OF HARVINDER SINGH SAHOTA BASED ON THE REPORT OF DIST T.VALUATION OFFICER. WHILE DOING SO IT WAS OBSERVED INTER A LIA THAT THE VALUATION OFFICER VIDE VALUATION REPORT DATED 26.1 2.06 HAD ESTIMATED THE FAIR MARKET VALUE OF THE PROPERTY(NO. F-484 VIKASPURI NEW DELHI) AT ` 50 56.600/- AGAINST THE VALUE OF THE PROPERTY MENTIONED AT ` 12 50 000/- IN THE SALE DEED; THAT THE VALUATION REPORT OF THE GOVERNMENT APPROVED VALUER AS PRODUCED BY THE ASSESSEE HAD ESTIMATED THE PROPERTY AT ` 11 79 000/- ONLY; THAT THIS VALUE WAS LESS THAN THAT SHOWN IN THE SALE DEE D; THAT IT WAS THE VALUE GIVEN BY THE DISTT.VALUATION OFFICER WHICH W AS TO BE TAKEN AS THE FAIR MARKET VALUE OF THE PROPERTY AND THE DIFFE RENCE OF ` 38 06 600/- WAS TO BE TREATED AS THE DEEMED INCOME WITHIN THE MEANING OF SECTION 69 B OF THE I.T. ACT; THAT THE A SSESSEE HAS TAKEN THE PLEA THAT HE WAS THE OWNER OF 3/4 TH SHARE OF THE PROPERTY WHEREAS HIS WIFE WAS OWNER OF THE REMAINING 1/4 TH SHARE; THAT NO ITA NOS. 2412&3651(DEL)2010 3 DOCUMENTARY PROOF HAVE BEEN FILED; THAT IT WAS BEIN G CONCLUDED THAT IT WAS THE ASSESSEE HARVINDER SINGH SAHOTA WHO HAD PURCHASED THE PROPERTY AND THE ASSESSMENT OF THE DIFFERENCE OF ` 38 06 600/- WAS TO BE MADE IN HIS HANDS ONLY. 4. BY VIRTUE OF THE IMPUGNED ORDERS THE LD. CIT(A) DELETED THE ADDITIONS MADE IN THE HANDS OF BOTH THE ASSESSES. 5. CHALLENGING THE IMPUGNED ORDERS THE LD. D R HAS CONTENDED THAT WHEREAS THE AO HAD MADE THE ADDITIONS U/S 69 B OF THE ACT THE LD. CIT(A) HAS NOT EVEN AS MUCH AS MADE ANY ADDITIO N OF SUCH PROVISION AND HAS INSTEAD INVOKED THE PROVISIONS OF SECTION 50 C OF THE ACT AND THAT THEREFORE THE MATTER TO BE REMITT ED TO THE FILE OF THE CIT(A) TO BE DECIDED AFRESH IN ACCORDANCE WITH LAW ON TAKING THE ASSESSMENT ORDER IN DUE CONSIDERATION VIS--VIS THE INVOCATION OF THE PROVISION OF SECTION 69 B OF THE ACT BY THE AO. 6. THE LEARNED COUNSEL FOR THE ASSESSEE ON THE OTH ER HAND HAS SUBMITTED THAT THE LD. CIT(A) HAS DELETED THE ADDIT IONS ON PERFECTLY WELL REASONED FINDINGS OF FACT; THAT THE AO HAD MER ELY RELIED ON DVOS REPORT TO MAKE THE ADDITION DESPITE THE FACT THAT THERE WAS NO MATERIAL ON RECORD TO SUGGEST THAT NOTHING MORE THA N THE AMOUNT STATED IN THE SALE DEED HAD EXCHANGED HANDS; THAT N OT EVEN THE ITA NOS. 2412&3651(DEL)2010 4 STATEMENT OF THE SELLER HAD BEEN RECORDED; THAT BES IDES THE ASSESSEE HAD GIVEN COMPARABLE PREVALENT RATE WHICH WAS WRON GLY IGNORED BY THE AO; THAT FURTHER MORE THE PROPERTY WAS LATEST SOLD FOR ` 32 00 000/- VIDE SALE DEED [COPY AT PAGES 40 TO 81 OF THE ASSESSEES PAPER BOOK (APB FOR SHORT)] WHICH TRANSACTION HA S BEEN ACCEPTED BY THE DEPARTMENT ITSELF VIDE ASSESSMENT ORDER DATE D 30.8.2011 FOR ASSESSMENT YEAR 2009-2010 PASSED U/S 143(3) OF THE I.T. ACT IN THE CASE OF HARVINDER SINGH SAHOTA (COPY PLACED ON RECO RD). 7. THE LEARNED COUNSEL FOR THE ASSESSEE HAS SOUGHT TO PLACE RELIANCE ON THE FOLLOWING CASE LAWS:- 1. CIT V. PUNEET SABHARWAL 338 ITR 485(DEL); 2. CIT V. SMT. SURAJ DEVI 328 ITR 604(DEL); AND 3. CIT V. NAVEEN GERA 328 ITR 516(DEL). 8. WE HAVE HEARD THE PARTIES AND HAVE PERUSED THE MATERIAL ON RECORD. THE ISSUE IS AS TO WHETHER THE LD. CIT(A) HAS RIGHTLY DELETED THE ADDITIONS MADE BY THE AO. 9. UNDISPUTABLY THE AO MADE THE ADDITION SINGULAR LY ON THE BASIS OF THE DVOS REPORT. THE VALUE OF THE PROPE RTY AS GIVEN IN THE SALE DEED WAS ` 12 50 000/-. NO MATERIAL WHATSOEVER WAS BROUGHT ON RECORD BY THE AO TO THE EFFECT THAT ANY FURTHER AMOUNT HAD PASSED ITA NOS. 2412&3651(DEL)2010 5 HANDS IN THE DEAL. IN SUCH A SCENARIO OBVIOUSLY THERE WAS NO OCCASION TO ACCEPT THE DVOS REPORT AS A GOSPEL TRU TH. THE ASSESSEE HAD CITED COMPARABLE CASES WHICH UNDISPUT ABLY REMAINED UNREBUTTED IN THE REMAND REPORT FILED BY THE ASSESS EE BEFORE THE LD. CIT(A). K.P. VARGHESE V. ITO ERNAKULAM 131 IT R 597(SC) IS THAT THE SHADOW OF A DOUBT THE CORNER STONE OF THE PROPOSITION THAT IT IS THE AO WHO MUST BRING ON RECORD EVIDENCE TO PROV E THAT SOME EXTRA EXPENDITURE PASSED IN SUCH A TRANSACTION OF P ROPERTY. IN THE PRESENT CASE NOTHING TO THIS EFFECT HAS COME ON R ECORD HAS CORRECTLY APPRECIATED BY THE LD. CIT(A). THE COMPARABLE CASE GIVEN BY THE ASSESSEE WAS FOR REASONS BEST KNOWN TO HIM IGNORE D BY THE AO. SOFAR AS REGARDS THE VALUATION OFFICER IT WAS BASE D ON THE FACT AND NOT DISPUTED BEFORE US THAT HE HAD TAKEN INTO CONSI DERATION ONE PROPERTY WHICH WAS BETTER LOCATED THAN THE PROPERTY HAD NOT AND SO IT WAS NOT COMPARABLE TO THE PROPERTY OF THE ASSESSEE. 10. THE OBJECTION OF THE DEPARTMENT REGARDING INVO CATION OF THE PROVISIONS OF SECTION 50 C OF THE ACT DESPITE THE AO HAVING INVOKED SECTION 69 B IS ALSO NOT OF ANY AID TO THE REVENUE. IN CIT V. PUNEET SABHARWAL (SUPRA) THE FACTS ARE EXACTLY SIMILAR TO THOSE PRESENT HERE. THEREIN THE ADDITION WAS MADE U/S 69 B OF THE ACT. ITA NOS. 2412&3651(DEL)2010 6 THE ADDITION WAS BASED SOLELY ON THE REPORT OF THE DVO. THE MATTER WAS DECIDED IN FAVOUR OF THE ASSESSEE BY THE HONBLE HIGH COURT OBSERVING THAT THE AO HAD SOLELY RELIED ON T HE REPORT OF THE DVO APART FROM WHICH THERE WAS NO EVIDENCE TO CON CLUDE THAT THE ASSESSEE HAD PAID EXTRA CONSIDERATION OVER AND ABOV E WHAT WAS STATED IN THE SALE DEED AND SO THE ADDITION WAS NO T JUSTIFIED. SIMILAR ARE THE DECISIONS IN CIT V. SMT. SURAJ DEVI (SUPR A) AND CIT V. NAVEEN GERA (SUPRA). 11. APROPOS AMAR KUMARI SURANA (SMT) V. CIT 22 6 ITR 344(RAJ) SOUGHT TO BE RELIED ON BY THE LD. DR. TH IS DECISION ALSO TO OUR MINDS DOES NOT GO TO MAKE THE CASE OF THE DEPA RTMENT ANY BETTER. THE LD. DR HAS STRESSED ON THE OBSERVATIO NS MADE THEREIN TO THE EFFECT THAT:- ALTHOUGH ON THE BASIS OF THE VALUATION REPOR T AND THE FAIR MARKET VALUE NO ADDITION CAN BE MADE AFTER OBTAINING THE VALUATION REPORT THE PLOT OF LAND NOT ICED HAD BEEN GIVEN TO THE ASSESSEE TO SHOW CAUSE AS TO WHY THE VALUE OF THE PLOT OF LAND IN QUESTION SHOULD NOT BE TAKEN AS PER THE VALUATION REPORT AND ON THE BASIS OF COMPARABLE CAS ES. THE ASSESSEE HAD NOT GIVEN ANY REASON AS TO WHY THE PRO PERTY HAD BEEN SOLD TO THE ASSESSEE FOR ROUGHLY THE PREVALE NT MARKET RATE. IN THE ABSENCE OF THAT THE ONLY INFERENCE TH AT COULD BE DRAWN WAS THAT THE ASSESSEE HAD IN FACT CONCEALED THE ACTUAL CONSIDERATION PAID TO THE SELLER. THE ADDITION MA DE U/S 69B WAS JUSTIFIED. ITA NOS. 2412&3651(DEL)2010 7 12. IN THIS REGARD IT IS FIRSTLY SEEN THAT THIS D ECISION AT THE OUTSET RECOGNIZES THE SETTLED LEGAL PROPOSITION AS IN THE CASE LAW DISCUSSED ABOVE THAT MERELY ON THE BASIS OF THE VALUATION RE PORT AND THE FAIR MARKET VALUE NO ADDITION CAN BE MADE. THEN THE FACTS IN THE PRESENT CASE DO NOT TALLY WITH THOSE IN THE PRESENT CASE THE COMPARABLE CASES CITED BY THE ASSESSEE WERE NEVER T AKEN INTO CONSIDERATION WHEREAS THOSE RELIED ON WERE NOT COM PARABLE AT ALL. IN THESE FACTS AND CIRCUMSTANCES RELYING ON THE JU RISDICTIONAL HIGH COURT DECISIONS (SUPRA) THE LD. CIT(A)S ORDERS AR E TO BE CONFIRMED AND WE ORDER ACCORDINGLY. 13. IN THE RESULT BOTH THE APPEALS OF THE DEPARTM ENT ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 03.02.2012. SD/- SD/- (G.D. AGRAWAL) (A.D. JAIN) VICE PRESIDENT JUDICIAL MEMBER DATED: 03.02.2012 *RM COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) ITA NOS. 2412&3651(DEL)2010 8 5. DR TRUE COPY BY ORDER ASSISTANT REGISTRAR