2014 (4) TMI 553 - AT - Income Tax

Unexplained investment u/s 69 of the Act Valuation report of DVO Held that - The CIT(A) gave a detailed finding of the order which has not been assailed on facts nor any contrary judgement has been brought so as to persuade as to upset the finding - 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 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 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. Relying upon KP Varghese Versus Income-Tax Officer, Ernakulam, And Another 1981 (9) TMI 1 - SUPREME Court - 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 - the DVO s report the reliance has been placed on the transaction at Satbari, Mehrauli whereas 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 - Apart from that the circle rate for the relevant period has also been taken into consideration by the CIT(A) which stand un assailed - None of the relevant findings have been assailed nothing is placed 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 Decided against Revenue. Jurisdiction of the AO to make addition Absence of any incriminating documents during search u/s 132 of the Act Held that - The decision in LMJ International Ltd. vs JCIT 2007 (12) TMI 237 - ITAT CALCUTTA-E followed - 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 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 thus, there was no infirmity in the order of the CIT(A) Decided against Revenue.

Summary

Issues Involved:
1. Deletion of addition made by the Assessing Officer (AO) under Section 69 of the Income Tax Act, 1961 for unexplained investment in property.
2. Legality of AO's addition under Section 153A in the absence of incriminating material found during a search under Section 132.
3. Evidentiary value of the Valuation Report of the District Valuation Officer (DVO).
4. Burden of proof on the department to establish actual evidence of extra investment by the assessee.

Issue-wise Detailed Analysis:

1. Deletion of Addition under Section 69:
The AO made an addition of Rs. 1,60,11,000/- under Section 69 for unexplained investment in property based on the DVO's valuation report, which assessed the value of the land at Rs. 260.110 lakhs against the declared Rs. 100.580 lakhs. The assessee objected, arguing that the DVO's valuation was based on an inappropriate comparison with a property in a different location (Satbari) and not independently determined. The CIT(A) deleted the addition, noting that the assessee's declared value was higher than the notified circle rate and comparable sales in the same vicinity. The CIT(A) emphasized that no incriminating evidence was found during the searches that indicated unrecorded payments.

2. Legality of Addition under Section 153A:
The CIT(A) held that the AO had no jurisdiction to make the addition under Section 153A without any incriminating documents/material found during the search under Section 132. The assessee's original return had been processed under Section 143(1) without any pending assessment proceedings, and no new evidence was found during the searches to justify the addition. This position was supported by various judicial precedents, including the judgments in the cases of Sun City Alloys P. Ltd., LMJ International Ltd., and Anil Kumar Bhatia.

3. Evidentiary Value of the DVO's Valuation Report:
The AO relied heavily on the DVO's report, which used a comparative instance property in Satbari, Mehrauli. The CIT(A) found this reliance misplaced, as the properties were not identically situated, and the DVO did not independently assess the fair market value. The CIT(A) noted that the DVO's valuation was not an absolute indicator of the fair market value, especially since the appropriate authority's approval under Chapter XX-C was not necessarily reflective of the market rate.

4. Burden of Proof on the Department:
The CIT(A) and the Tribunal both emphasized that the primary burden of proof to establish understatement or concealment of income lies with the Revenue. The AO must bring on record cogent and corroborative evidence to show that the assessee incurred further sums of money beyond what was declared. In this case, the AO failed to provide such evidence, relying solely on the DVO's report. The Tribunal cited the Supreme Court's judgment in K.P. Varghese vs. ITO, which established that mere valuation reports without supporting evidence cannot justify additions under Section 69.

Conclusion:
The Tribunal upheld the CIT(A)'s order, dismissing the Revenue's appeal. The Tribunal found no infirmity in the CIT(A)'s reasoning and noted that the Revenue failed to provide any contrary evidence or legal arguments to overturn the findings. The Tribunal concluded that the addition of Rs. 1,60,11,000/- was not justified, as it was based on an inappropriate valuation report and lacked corroborative evidence of unrecorded payments. The appeal was dismissed, reinforcing the principle that the burden of proof lies with the Revenue to establish actual evidence of unexplained investments.