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ACIT, Central Circle-18, Room No-327, Ara Centre, E-2, Jhandewalan Extn., New Delhi-110055 Vs Rashmi Chaturvedi, 305, 3rd Floor, Bhanot Corner, Pamposh Enclave, G.K.-II, New Delhi.
April, 16th 2014
                IN THE INCOME TAX APPELLATE TRIBUNAL
                      DELHI BENCH: `F' NEW DELHI

               BEFORE SMT DIVA SINGH, JUDICIAL MEMBER
                                 AND
                SHRI T.S.KAPOOR, ACCOUNTANT MEMBER

                           I.T.A .No.-3760/Del/2011
                       (ASSESSMENT YEAR-2003-04)

            ACIT,                                   vs Rashmi Chaturvedi,
            Central Circle-18, Room No-327,            305, 3rd Floor,
            Ara Centre, E-2,                           Bhanot Corner, Pamposh
            Jhandewalan Extn.,                         Enclave, G.K.-II, New Delhi.
            New Delhi-110055                           PAN-AACPC1732D
            (APPELLANT)                                (RESPONDENT)

                       Appellant by:          Sh.M.B.Reddy, CIT DR
                       Respondent by:         Sh. Suresh Anantharaman, CA.

                                         ORDER
PER DIVA SINGH, JM

      This is an appeal filed by the Revenue against the order dated 13.05.2011 of
CIT(A)-III, New Delhi pertaining to 2003-04 assessment year on the following
grounds:-
      1. "On the facts and in the circumstances of the case, the CIT(A) has erred in
         law and on facts in deleting the addition Rs.1,60,11,000/- made by the
         Assessing Officer u/s 69 of the Income Tax Act, 1961 on account of
         unexplained investment in property.
      2. On the facts and in the circumstances of the case, the CIT(A) has erred in
         law and on facts in holding that no addition can be made by the Assessing
         Officer u/s 153A of the Income tax Act, 1961 by invoking the provisions of
         section 69 in the absence of incriminating material found during search u/s
         132 of the Income Tax Act, 1961.
      3. On the facts and in the circumstances of the case, the CIT(A) has erred in
         law and on facts in brushing aside evidentiary value of the Valuation Report
         of DVO which was based on scientific method approved by the Govt. and
         without rebutting the facts mentioned therein.
                                                2                       I.T.A .No.-3760/Del/2011


         4. On the facts and in the circumstances of the case, the CIT(A) has erred in
            law and on facts in deleting the addition made by the AO u/s 69 on the
            ground of absence of any actual evidence alleging or establishing that extra
            investment was made by the assessee, as it places an unfair burden on the
            department as availability of direct evidence is impossible in such type of
            cases as both parties gain by understating the real consideration of
            immovable property which is transferred.
         5. The order of the Ld. CIT(A) is erroneous and is not tenable on facts and in
            law.
         6. The appellant craves leave to add, alter or amend any/all of the grounds of
            appeal before or during the course of the hearing of the appeal."





2.       The relevant facts of the case are that the Search & Seizure operation u/s 132
was conducted on 23.02.2006 and again on 10.05.2007 in M/s Flex/Uflex Group of
cases.      In response to notice u/s 153A return declaring                    an income of
Rs.24,27,240/- was filed on08.02.2008. The record shows that the original return
of income in this case was filed on 29.09.2003 declaring an identical income. The
case was taken up for scrutiny. The source of income declared by the assessee was
found to salary derived from M/s Flex Industries Ltd. as a Director and income
from Capital Gains (Long Term Capital loss carried forward) and income from
other sources. The AO in his order passed by section 153A r.w.s 143 proceedings
observed that the assessee had purchased land measuring 4.4583 Acres situated in
Chhaterpur, Mehrauli, New Delhi through 7 separate sale deeds executed in the
month of July 2002. The particulars of the sellers of the land and the amounts
mentioned in the sale deeds as per record were as under :-
                     Name of the Sellers                Amount
              M/s Seth Brothers                     18,80,000/-
              Chand Seth HUF                        13,63,000/-
              Harish Seth HUF                       13,63,000/-
              Krishna Seth HUF                      13,63,000/-
              Amit Seth                             13,63,000/-
              Adhar Seth                            13,63,000/-
              Arjun Seth                            13,63,000/-
              Total                                 1,00,58,000/-
                                                3                      I.T.A .No.-3760/Del/2011


2.1.   A perusal of the record shows that the                assessee was found to have
constructed a farm house on this land which was started in the year relevant to
assessment year 2005-06. Reference was made u/s 142A to the Valuation Wing of
the department for assessing the value of investment in this property. Report of the
DVO dated 30.09.2009 was received. As per the said return investment on land
was worked out at Rs.260.110 lacs as against investment of Rs.100.580 lakhs
declared by the assessee. The AO observed that as per the Report of the DVO, the
fair market value of the subject land was based on comparative sale instance of
agricultural land in village-Satbari, Mehrauli. The sale instance of the property
had been cleared by the Appropriate Authority, Income Tax Department, New
Delhi. Copy of the said report was forwarded to the assessee for its objection and
as per record the following objections were summed up by the AO. The same are
extracted from page 3 of the AO hereunder:-
       "i.     That the payments to vendors have been made by way of pay orders and
               the total amount as per these pay orders is as decalred by the assessee.
       ii.     That as per sale deeds also, the total cost of land is Rs.100.580 lacs.
       iii.    That the DVO instead of independently making a fair market value of
               land was relied on the valued property by the Appropriate Authority
               presumably under Chapter-XX-C of the Act.
       iv.     That the comparative instance property was approved by the Authority
               on 3.4.2002 whereas the assessee acquired the Chhatarpur property on
               14.7.2002.
       v.      That chapter-XX-C of the Act became inapplicable w.e.f 1.7.2002.
       vi.     That the area of the instance property has seen much more residential
               and commercial development activities than the area in which property
               of assessee is located.
       vii.    That the notified circle rate for agricultural land as per Government
               records was much lower than the rate at which the assessee has
               purchased the land.
       viii.   The assessee has also furnished instances of two registered sale deeds in
               respect of property located at Chhatarpur in support of her
               contentions."

2.2.   The record shows that the AO rejected these objections on account of the
following reasoning:-
                                               4                      I.T.A .No.-3760/Del/2011


       "6.    I have carefully considered the contentions put forth on behalf of the
       assessee. However, I do not agree with these contentions on the following
       grounds:-
       i.     Payments made to vendors by way of pay orders at some point of time
              does not rule out the possibility of making additional separate payments
              either at that time or before or after such time towards purchase of the
              impugned land.
       ii.    It is common knowledge that in the transactions involving purchase of
              immovable property between private parties, the actual consideration is
              much more than the consideration reflected in the sale deeds the actual.
       iii.   For assessing the cost of land, the DVO had obviously to rely upon a
              comparable instance. Further, the case ngers when another authority
              i.e Appropriate Authority has also agreed to and approved the
              comparable instance.
       iv.    The land purchased by the assessee is subsequent to the transactions
              involved in the comparable instance. Therefore, the value of land
              should be more in the case of the assessee and it cannot be less except
              when any extra ordinary adverse circumstances could be present. No
              such extra ordinary adverse circumstances have been pointed out.
       v.     The mere fact that Chapter-XX-C of the Income Tax Act became in
              applicable w.e.f a certain date does not imply that the opinion of the
              Appropriate Authority on the comparable sale instance could not
              accepted.
       vi.    It is common knowledge that the area in which the land of the assessee
              is situated is a very post area and the value of property in this area is
              not less than the area of the instance property.
       vii.   As admitted on behalf of the assessee, there is definitely a difference
              between the rates of land as per Government records and the actual
              consideration for land transactions.
       viii. The instances of sale deeds quoted by the assessee are not comparable
              with the land transactions entered into by the assessee because of
              difference in the area and location of the instance properties."


2.3.   On account of the above facts, the AO made an addition of Rs.1,60,11,000/-.
The specific reasoning set out in para 7 of the AO reads as under:-
       "7.     In view of the foregoing discussion, it is crystal clear that the
       contentions put forth by the assessee are not satisfactory. On the other hand,
       the value of land calculated by the DVO is based upon more reliable and
       scientific facts particularly when another expert Authority has also agreed to
       and approved the instance property for the purpose of working out the cost of
       land purchased by the assessee.       Therefore, cost of land incurred by the
       assessee towards purchase of land (exclusive of stamp charges and misc.
       expenses) is assessed at Rs. 260.110 lacs as against Rs.100.580 lacs declared
       by the assessee. The valuation report clearly establishes that the value of the
                                                     5                         I.T.A .No.-3760/Del/2011


        land was much more than the value shown by the assessee. The sellers are in
        no way related to the assessee so that they would have given away their land at
        throwaway price out of natural love and affection. These have been
        transactions between independent prudent persons doing it at arm's length. In
        such a situation, the only inference which is to be drawn out of the facts of the
        case is that the assessee has paid the balance amount at unaccounted cash
        payment in order to avoid stamp duty, and to avoid higher investment of
        Accounted capital. The difference has been paid out of undisclosed sources.
        Accordingly an addition of Rs.1,60,11,000/- is made to the total income
        declared by the assessee as unexplained investment u/s 69 of the Income Tax
        Act, 1961."

3.      Aggrieved by this the assessee came in appeal before the CIT(A) raising the
following grounds :-
        "2.    The Ld. AO is wrong on facts as well as in law to add a sum of
        Rs.1,60,11,000/- on account of unexplained investment U/s 69 of the Income
        Tax Act, 1961 on the basis of Valuation Report of District Valuation Officer."

        3.     The addition made by Ld. AO in the Assessment U/s 153A is not qua
        search material, therefore, Ld. AO had no jurisdiction to make addition without
        any indiscriminating documents/material found during the search u/s 132."

3.1.    The objections of the assessee                   before the First Appellate Authority,
assailing the report of the DVO are recorded in para 3.1 the same is extracted
hereunder for ready-reference:-
        "3.1. During the Appellant Proceedings, the Appellant vide detailed
        submissions filed on 11.05.2011 inter-alia submitted as follows:-
        The DVO, while determining the market value of the land as 31st July 2002,
        without applying his mind to the location, size etc. of the land, has mechanically
        adopted the value cleared by the appropriate authority under Chapter XX-C of
        the Act in some other instances. The DVO at page 9 (relevant Page No.50 of
        Paper Book) of the valuation report notes as under:-
                 .. The subject property is built on agricultural land admeasuring 21
                 bighas 8 biswas (4.458 acres) to work out the fair market value of the
                 land of the subject property, the sale instance of comparative location
                 viz an agricultural land in Village Satbari, Mehrauli, New Delhi. The
                 sale instance has been cleared by the appropriate authority, [T.
                 Department, New Delhi, vide Registration No. R-7099 dated 3rd April
                 2002. "
       In the same valuation report dated 8.09.2010, the DVO determines the value of the land at
       Rs.61,73,913/- per acre and after making some adjustments determines the fair market
       value of land at Rs.2.60 crores. That the DVO has compared the appellant's property
       located Chhatarpur with another property at Village Satbari. The transaction of Satbari
       property took place on 3rd April 2002. The appellant's transaction took place in July
                                               6                          I.T.A .No.-3760/Del/2011


2002.
Attention is also invited to Section 269-UP falling under Chapter XX-C of the Act. The
said section reads as under:
"Chapter not to apply where transfer of immovable property effected after certain
date
269 UP. The provisions of this Chapter shall not apply to, or in relation to, the
transfer of any immovable property effected on or after the I" day of July, 2002.
"As stated above, the impugned land was acquired by the appellant in July 2002, during
which the provisions relating to Chapter XX-C were scrapped from the Act. It is thus
submitted that the reliance of the DVO on an order passed by the appropriate authority in
April 2002 is entirely erroneous and has no legs to stand on. That Chapter XX-C applies
on purchase of immovable properties by Central Government in certain cases of transfer.
That this Chapter gives pre-emptive right to Central Government to purchase immovable
properties in certain cases of transfer. Infact under this Chapter, if the consideration of
transfer        of         properties        between        two          parties        are
inadequate than Central Government has the preemptive power to purchase the property
at an agreed price between the parties. Thus, the Order under this Chapter by an
appropriate authority does not determine the fair market value but determined whether the
value adopted between seller and buyer of the property is adequate or not. This price need
not necessarily be a market price. Hence, adopting a price which in the opinion of
appropriate authority is not inadequate cannot be called as a fair market rate.
It was also submitted by the Appellant that during the course of assessment
proceedings, the assessee had furnished to the AO copies of two sale deeds in respect
of property located at Chhatarpur. These sale transactions were between independent
parties (other than Assessee). These two sale deeds were executed on 11th February
2002. These two sale deeds at placed at pages 167 to 213 of the Paper Book. As per
the first sale deed dated 11th February,2002 (Pages 167 to 189 of the Paper Book),
the sale price per bigha amounts to Rs.3,33,3801-.As per the second sale deed dated
11th February, 2002 (Pages 190 to 213 of the Paper Book),the sale consideration
amounts to Rs.3,33,742/- per bigha. The amount of Rs.1.13 crore as admitted by the
appellant ultimately translates into Rs 4.70 lakhs per bigha. In nutshell, it is submitted
that two comparable sale instances of property located at Chhatarpur itself wherein
the appellant's property is also located, the sale consideration amounts to Rs.3.33
lakhs per bigha. These comparable sale instances took place in February 2002. The
appellant's cost of acquisition is Rs4.70 lakhs per bigha.
The appellant referred to the copy of Notification dated 2nd August, 2001 issued of Lt.
Governor of Delhi in which the minimum rates of agricultural land in the National
Capital Territory of Delhi w.e.f. August, 2001 has been fixed at Rs.15,70,000/- per
acre which translates into a value of Rs.3,27,083/- per Bigha. It was contended by the
Appellant          that         the       consideration         paid          by        the
assessee being Rs4.70 lakhs per bigha is thus more than the value of comparable
properties located at Chhatarpur (as against a property located at Satbari Village by
the DVO) and the minimum circle rate as notified by the Lt. Governor of Delhi.
It was further submitted by the AR of the Appellant that the Appellant was subjected to
two search operations U/s 132 and that no incriminating material was found to
indicate that there could be a higher investment in the purchase of land than the value
declared by the Appellant.
It is also the argument of the appellant that Section 142A of the Act has been
introduced by the Finance (No.2) Act, 2004 with retrospective effect from15th
November 1972. Sub-section (1) provides that for the purposes of making the
assessment         or         re-assessment,         the        Assessing          Officer
                                                    7                         I.T.A .No.-3760/Del/2011





       may require the DVO to make an estimate of the fair market value of any property
       referred to in Section 69 of the Act. It is thus submitted that the DVO's report is
       only for the purpose of making an assessment or re-assessment, That the AO, in
       addition         to        the        valuation         report,          has         to
       bring on record cogent and corroborative evidence to be satisfied that the
       assessee has incurred further sums of money in addition to the amount admitted as
       incurred for acquisition of the property.
       That in the case of the appellant, it can be seen that the DVO has mechanically
       relied on the value approved by the appropriate authority for a property located at
       Satbari Village, whereas the appellant's property is located at Village Chhatarpur.
       That        the       DVO         has        not,      while        valuing         the
       impugned property, independently applied his mind to determine the fair market
       value of impugned land. The AO also had mechanically applied his mind to
       determine the fair market value and has totally abdicated his responsibility in
       giving concrete findings as required by Section 69 of the Act. It is trite law that the
       appellant cannot prove an inactive fact."

3.2. The assessee further assailed the application of section 69 on facts. Reliance
was also placed upon the judgement of the Apex Court in the case of K.P.Varghese
vs ITO 131 ITR 597 (SC) for the proposition that corroborative evidences needs
to be brought on record to indicate that a larger amount has been spend on the
acquisition of the property. It was submitted that although the said judgement was
in the context of capital gains however it would apply in equal force to the
provisions of section 69 as the principle was that "what in fact never accrued or
was never received cannot be computed as capital gain".
3.3.    Reliance was also placed upon CIT vs Mahesh Kumar 2010-TIOL-606-HC-
DEL-IT and in the case of Smt. Suraj Devi 2010-TIOL-596-Del-IT.
4.        Considering these arguments the CIT(A) qua Ground No-2 raised before
him directed the AO to delete the said addition vide para 4. Qua Ground No.-3
before him he further confirmed his view vide para 5 and decided the issue in
assessee's favour.
4.1. Aggrieved by this the Revenue is in appeal before us.
5.        Ld. CIT DR, Mr.M.B.Reddy inviting attention to the assessment order
submitted that it is a matter of record that the assessee was subjected to search and
                                          8                    I.T.A .No.-3760/Del/2011


seizure operations u/s 132 twice on 23.02.2006 and 10.05.2007. It was also his
submission that the addition has been based on the DVO's Report and no doubt it
is a fact that nothing incriminating was found in the course of the search. However
it was his stand that reference to the DVO was made as a result of this search and
based on the DVO's Report duly confronted to the assessee, the addition has been
made wherein the comparison of assessee's purchase was made with the sale price
of identical situated agricultural land. It was submitted that qua the material used
the objections of the assessee had been invited which have been considered
accordingly he would be placing reliance upon the assessment order.
6.    Ld. AR on the other hand placed heavy reliance upon the impugned order. It
was his submission that the point at issue is fully covered in assessee's favour by
virtue of the judgement of the Jurisdictional High Court in the case of Smt. Suraj
Devi, copy of which is placed at page 29 to 31 relied upon by the CIT(A) and
judgement of the Delhi High Court in the case of CIT vs Mahesh Kumar, copy
placed at pages-23-25 in the paper book. It was his submission that facts remained
identical. Apart from that attention was also invited to the latest decisions of Delhi
High Court in the case of 335 ITR 572 and 328 ITR 516 and order dated
28.06.2013 in the case of MGF Automobiles vs ACIT in ITA No-4212 &
4213/Del/2011, copy placed at pages 122-142 in the Paper Book.                  It was
submitted that this order has been rendered by the Delhi Benches and has been
authored by one of us (Ld. AM).
7.    We have heard the rival submissions and perused the material available on
record. The judgements cited in the orders and relied upon before us have also
been considered. On a consideration of the entire factual and legal aspect of the
case, we find ourselves unable to come to a contrary finding in the absence of any
argument assailing the action of the CIT(A). It is seen that considering Ground
                                               9                        I.T.A .No.-3760/Del/2011


No-2 before him the CIT(A) gave a detailed finding in para 4 of his order which
has not been assailed on facts nor any contrary judgement has been brought to our
notice so as to persuade as to upset the finding. It may not be out of place to
reproduce Ground No-2 before the CIT(A) and his finding thereon for a proper
appreciation of the view being taken :-
      "2.    The Ld. AO is wrong on facts as well as in law to add a sum of
      Rs.1,60,11,000/- on account of unexplained investment U/s 69 of the
      Income Tax Act, 1961 on the basis of Valuation Report of District Valuation
      Officer."
      4.     Finding on Ground No.-2

               I have carefully considered the observation of the AO, submissions
      made and judicial pronouncements relied upon by the Appellant. It is a fact
      on record that the appellant was subjected to two consecutive searches U/s
      132 and the present assessment order passed U/s 153A read with Section
      143(3) has been a result of these searches. The observation of the AO does not
      refer to any incriminating evidence found during the search or even otherwise
      indicating that any additional/unrecorded payment other than what is paid
      and disclosed in the sale deed executed between the Appellant and Sellers has
      passed hands.
      The two independent instances of sales in the same vicinity in which the land
      purchased by the appellant is situated have also been perused from which it is
      apparent that the price paid by the Appellant is more than the consideration
      in the two sales instances in the property located in Chhatarpur itself, on
      which reliance has been placed by the appellant.
      Further the circle rate as notified by the Lt. Governor of Delhi vide
      Notification dated 2nd August, 2001 is also less than the consideration paid by
      the Appellant.
      Moreover, the instance adopted by the DVO & relied upon by. AO, though
      cleared and approved by the Appropriate Authority can also be not adopted
      as such as the fair market value, because as per Chapter - XX-C, the power
      has been given to Appropriate Authority to buy the property in case the
      consideration between buyer and seller is inadequate. Hence, the instance
      cited by the DVO is not an absolute indicator that the price mentioned in this
      case is also the fair market value. Rather, it is quite possible that even in a
      case       of     lesser     consideration      than     in     the      instance
      relied upon, in the same area and during the same period, the Appropriate
      Authority could still have taken a view for not making pre-emptive purchase of
      such property. In such a situation as this it cannot be held with certainty that
      the price is also the fair market value. To further elaborate the argument, it is
      only if the sale consideration in appellant's case was found to be less than that
      of a similar property, in which the pre-emptive purchase has been made by the
                                         10                       I.T.A .No.-3760/Del/2011


Appropriate Authority, then only the department could have a prima -facie
case to hold the view that the purchase consideration is understated .
However,          in       such      a      situation     too,      it      was
incumbent upon the DVO to have reasonably and independently estimated the
F.M.V.
Moreover, despite two searches on the assessee, nothing was found indicating
any such unaccounted payment made to the seller for the subject land.
Accordingly ,the principle laid down by Hon'ble Supreme Court in the case of
K.P. Varghese vs. ITO in the context of Sec. 52(2) applicable to Capital
Gains, clearly applies in the case of the appellant and accordingly, the onus is
on the AO to show that not only the fair market value of the capital assets as
on the date of transfer exceeds the full value of consideration declared by the
assessee, but also that the consideration is understated and the assessee has
actually paid more than what is declared by him.
That these are the twin conditions, which have to be satisfied while invoking
Sec. 142A and Sec. 69 of the Act. The AO except adopting the value estimated
by DVO has done nothing more to discharge his onus in order to satisfy these
two conditions.
The reliance placed by the appellant on the judgments in the two cases of the
jurisdictional High Court viz. CIT vs. Mukesh Kumar reported in 201O-TIOL-
606-HC-DEL-IT & CIT vs. Smt. Suraj Devi 2010-TIOL-596-DEL-IT have
also been examined. In Mahesh Kumar's case, search operations were
conducted u/s 132 of the Act, reference was made u/s 142A and Section 69
was applied for determining the income and the High Court after noticing the
judgment in the case of K.P. Varghese vs. ITO, 131 ITR 597 held as under:
       "8. It is settled law that the primary burden of proof to prove
       understatement or concealment of income is on the revenue
       and it is only when such burden is discharged that it would be
       permissible to rely upon the valuation given by the DVO. (See
       K.P. Varghese vs. ITO, 131 ITR 597, CIT vs. Shakuntala Devi,
       (2009) 316 ITR 46 and ITA No. 482/2010 decided by this
       Court on 5th May, 2010).
       9. Further the Supreme court in its order dated 16th February,
       2010 in Civil Appeal No. 9468/2003 has held as under:
       "Having examined the record, we find that in this case, the
       Department sought reopening of the assessment based on the
       opinion given by the District Valuation officer (DVO).
       Opinion of the DVO per se is not an information for the
       purposes of reopening assessment under section 147 of the
       Income Tax Act, 1961. The AO has to apply his mind to the
       information, if any, collected and must form a belief thereon.
       In the circumstances, there is no merit in the Civil Appeal.
       The
       Department was not entitled to reopen the assessment. Civil
       Appeal is, accordingly, dismissed. No order as to costs.
       10. Moreover, in the present case, no evidence much less
                                               11                      I.T.A .No.-3760/Del/2011


               incriminating evidence was found as a result of the search to
               suggest that the assessee had made any payment over and
               above the consideration mentioned in the registered sale
               deeds. In any event, the final fact finding authority, namely,
               the Tribunal has arrived at a finding that the instances of the
               sale taken into account by the Valuation Officer were not
               comparable as they were situated far away from the location
               of the plots purchased by the respondent-assessee.
               Consequently, we .find that no substantial question of law
               arises in these two appeals which, bereft of merit, are
               dismissed in limine. "
     In Suraj Devi's case also, Sections 69, 132 and 142A were sought to be applied.
     The Delhi High Court held as under:
               "4. It is settled law that the primary burden of proof to prove
               understatement or concealment of income is on the Revenue
               and it is only when such burden is discharged that it would be
               permissible to rely upon the valuation given by the D Va. (See
               K.P. Varghese vs. ITO, 131 ITR 597 = (2002-TIOL-128-SC-
               IT), CIT vs. Shakuntala Devi, (2009) 316 ITR 46 = (2009-
               TIOL-341-HC-DEL-IT) and ITA No.-482/2010 decided by this
               Court on 5th May, 2010."
       It is thus clear from the above two judgement of the Jurisdictional High Court
       that apart from the valuation report, much more information, evidences and
       material was required to be brought on record by the AO to make an addition
       U/s 69 of the Act. Therefore, respectfully following the judgements of Hon'ble
       Delhi High Court in the above two cases, and in view of the above discussion
       the AO is directed to delete the addition of Rs.1,60,11,000/- and accordingly
       Ground of Appeal No.2 is allowed in favour of the assessee."

8.    A perusal of the above finding shows that the impugned order has been
passed on the reasoning that despite being subjected to two consecutive searches
nothing has been found and the assessment u/s 153A read with section 143(3) the
department even before us has failed to refer to any incriminating evidence found
during the search indicating any unrecorded payment having been paid apart from
the payment made in the disclosed sale deed. No such effort has been made before
us. Similarly qua the two independent sales in the same vicinity wherein the price
paid by the assessee is more than the consideration paid in the two instances cited
by the assessee in Chhatarpur itself stands unrebutted on record. Qua the DVO's
report the reliance has been placed on the transaction at Satbari, Mehrauli whereas
                                                12                       I.T.A .No.-3760/Del/2011


the assessee's transaction was at Chhatarpur the properties cannot be said to be
identically situated in the absence of any factual arguments by the Revenue qua
their similarity. Moverover the instance cited was in the context of the power
given to Appropriate Authority to buy the property under chapter XXC as such not
necessary an exact indicator with certainly as to the fair market price. Apart from
that the circle rate for the relevant period has also been taken into consideration by
the CIT(A) which stand unassailed. None of these relevant findings have been
assailed nothing is placed before us to show that on the dissimilarity in the
property considered by the DVO and the similarity in the 2 instances cited by the
assessee in support of its claim is wrong on facts. In the above cumulative factual
background the legal principles relied upon fully support the view taken.
8.1.   It is also seen that qua Ground No-3 before the CIT(A) the detailed finding
in para 5 and 5.1 of his order remains unassailed on facts and law. For ready-
reference we deem it appropriate to reproduce the ground and the finding thereon
hereunder:-
       5.     Ground No-3
       "The ground No.3 of the Appellant reads as under :-
       The addition made by Ld. AO in the Assessment U/s 153A is not qua search
       material, therefore, Ld. AO had no jurisdiction to make addition without
       any indiscriminating documents/material found during the search u/s 132.

       In this ground of appeal, the appellant has inter alia submitted that the
       impugned transaction for purchase of land from the vendors has been duly
       reflected in the books of accounts and shown in the return of income for AY
       03-04 which was filed on 29.08.03. This return was processed u/s 143(1) on
       24.03.04 and that no notice u/s 143(2) was issued within the statutory time
       limit which expired on 30.09.2004. Thus there was no pending assessment
       proceedings for AY 03-04 in appellant's case. The appellant has further
       submitted that as per the ratio of decisions in cases of Sun City Alloys P. Ltd.
       124 TTJ 674 (Jodhpur); LMJ International Ltd. vs JCIT 22 SOT 315 (ITAT
       Kolkata) followed by the latest decisions in cases of Anil Kumar Bhatia vs
       ACIT ITA No. 2260 to 2665/Del/2009 and the judgement of Hon'ble ITAT
       Mumbai Bench reported in 2010 TIOL 177, the crux of which is that where
       the return of income has been processed u/s 143(1) or an assessment has been
       completed u/s 143(3) it cannot be said that the assessments are pending and
                                               13                       I.T.A .No.-3760/Del/2011


       in such cases if no incriminating material has been found during the search
       then additions based on items which were disclosed in the return of income
       already filed cannot be subjected to further scrutiny, leading to addition to
       income, in a proceeding under section 153A/153C of the Act.
       The appellant while relying on the above decisions has submitted that the
       issue on addition of Rs.1,60,11,000/- on account of unexplained investment u/s
       698 of the IT Act based on the valuation of the land purchased during the
       relevant assessment year cannot be subjected to further adjudication and
       consequent addition in face of the fact that no incriminating
       document/material with reference to the said purchases have been found
       during the course of the two searches conducted on the appellant.
       5.1.    Finding on Ground No-3
       I have carefully perused the decisions relied upon by the appellant which are
       squarely applicable to the facts of the appellant's case. Therefore, while on
       merits the addition has already been directed to be deleted in Ground No.2 it
       is additionally held that even on this technical ground there is no case for
       making an addition to income. Accordingly the appellant succeeds in Ground
       No.3."

8.2.   Thus in view of the fact where the factual position has not been disputed by
the Revenue the ground raised deserves to be dismissed as no infirmity in the
reasoning has been pointed out to upset the conclusion.                   Accordingly facts
remaining unassailed and no contrary decision having been cited we find ourselves
unable to come to a contrary finding.
8.3.   Accordingly for the reasons given hereinabove the grounds raised by the
Revenue are rejected.
9.     In the result the appeal of the Revenue is dismissed.
       The order is pronounced in the open court on 11th of April 2014.

      Sd/-                                                                 Sd/-
(T.S.KAPOOR)                                                           (DIVA SINGH)
ACCOUNTANT MEMBER                                                 JUDICIAL MEMBER

Dated: 11/04/2014
*Amit Kumar*
                     14        I.T.A .No.-3760/Del/2011



Copy forwarded to:
1.   Appellant
2.   Respondent
3.   CIT
4.   CIT(Appeals)
5.   DR: ITAT
                          ASSISTANT REGISTRAR
                                ITAT NEW DELHI

 
 
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