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January, 25th 2013

%                                      Judgment delivered on: 23.01.2013

+       ITA 42/2013

COMMISSIONER OF INCOME TAX                               ... Appellant


ABHINAV KUMAR MITTAL                                     ... Respondent
Advocates who appeared in this case:
For the Appellant            : Mr Sanjeev Rajpal
For the Respondent           : None




1.      This appeal has been filed by the revenue against the order dated

29.06.2012 passed by the Income Tax Appellate Tribunal in ITA

4460/Del/2010 pertaining to the assessment year 2006-07.

2.      The facts are that the respondent/ assessee had filed a return

declaring an income of ` 39,90,410/- on 18.07.2006. Subsequently, a

search was conducted under Section 132 of the Income Tax Act, 1961

ITA 42/2013                                                              Page 1 of 5
(hereinafter referred to as `the said Act') on 26.04.2007 as also a survey

operation under Section 133A in the premises of A. K. Capital Services

Limited and its group companies as also in the premises of the Directors

of those companies and their relatives. Thereafter, a notice under Section

153C of the said Act was issued on 07.10.2009. A response was issued

by the assessee by their letter dated 13.10.2009 and the return already

filed on 18.07.2006 was requested to be treated as the return in response

to the said notice under Section 153C.

3.      The Assessing Officer, in the course of the assessment

proceedings, considered the valuation of three properties which had been

purchased by the assessee in the relevant year. The three properties

included two office premises at Ahmedabad and one commercial property

at Kolkata. The Assessing Officer referred the question of valuation of

the said properties to the District Valuation Officer (DVO). The DVO

submitted his report on 14.12.2009 in respect of the Ahmedabad

properties and on 24.12.2009 in respect on the Kolkata property. As per

the said report, the DVO has valued the said properties as under:-

ITA 42/2013                                                     Page 2 of 5
     Sl. Address     of   the      Value          Value       Difference
     No. property               determined     declared by      [in ` ]
                                 by DVO        the assessee
                                  [in ` ]         [in ` ]
      (i) 101,        Kaivana 44,00,600/-     18,00,000/-     26,00,600/-
           Building Malkans,
           Near    Polytechnic
     (ii) 102,        Kaivana 41,57,300/-     17,36,000/-     24,21,300/-
           Building Malkans,
           Near    Polytechnic
     (iii) Commercial          43,19,800/-    32,11,680/-     11,08,120/-

4.      The difference in the values, as declared by the assessee and as

opined by the DVO, amounted to ` 50,21,900/- in respect of the

properties at Ahmedabad and an amount of ` 9,57,038/- was the

difference in respect of the Kolkata property. These additions were made

by the Assessing Officer under Section 69 of the said Act.

5.      Being aggrieved by the said additions, the assessee preferred an

appeal before the Commissioner of Income Tax (Appeals), who deleted

the additions. The Income Tax Appellate Tribunal confirmed the said

deletion. The issue that is sought to be raised here is that the deletion was

ITA 42/2013                                                       Page 3 of 5
not in accordance with law. However, we find that the Income Tax

Appellate Tribunal as well as the Commissioner of Income Tax (Appeals)

had concluded, on facts, that there was no material found during the

search to justify the reference to the DVO for his valuation of the said

properties. The Tribunal held that there must be some material to show

that the investment made by the assessee was outside the books. This,

according to the Tribunal, was a condition precedent for making a

reference to the DVO. The Tribunal also held that, in any event, the

DVO's report was based on incomparable sales and, therefore, could not

be relied upon.    The Tribunal also held that the burden was on the

revenue to show that the real investment in the said properties was greater

than the apparent investment, as disclosed by the respondent/ assessee.

The Tribunal held, on facts, that the said burden had not been discharged

by the revenue. Consequently, the Tribunal held in favour of the assessee

and against the revenue and found that the reference to the DVO itself

was not in accordance with law.

6.      We have no reason to differ from the view taken by the Tribunal,

particularly, as no material was found in the search and seizure

ITA 42/2013                                                      Page 4 of 5
operations, which would justify the Assessing Officer's action in

referring the matter to the DVO for his opinion on valuation of the said

properties. If that be the case, then the valuation arrived at by the DVO

would be of no consequence. In any event, the Tribunal has also, on

facts, held that the DVO's valuation was based on incomparable sales,

which is not permissible in law.

7.      For these reasons, no question of law arises for our consideration.

The appeal is dismissed. There shall be no order as to costs.

                                       BADAR DURREZ AHMED, J

                                               R.V.EASWAR, J
JANUARY 23, 2013

ITA 42/2013                                                      Page 5 of 5
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