2015 (10) TMI 803 - AT - Income Tax

Addition u/s. 69B - undisclosed investment in purchase of (1/2 share) property - CIT(A) deleted the addition by admitting additional evidence - Held that - It is not the case, where the AO has brought on record any contrary material to substantiate that assessee or her mother Smt. Sudha Garg has paid any other amount as has been mentioned in the sale deed executed before the Registrar of properties. It is also not the case of the AO that there is any other contrary or supportive evidence which corroborates the stand taken by the AO except the value adopted by the Registrar of properties for purposes of stamp valuation. We find that Ld. CIT(A) has stated in his order that no inquiry was conducted by the AO before invoking the provisions of section 69B of the Act and no evidence is brought on record by the AO that some extra consideration was paid by the assessee for acquiring the property over and above the amount of sales consideration as shown in the sale deed. It is not understood as to why the value taken by the Registrar of properties for purpose of stamp duty payable can be considered as the sole consideration, and not any amount higher or lower than that. Payment of stamp duty cannot be sole criteria to presume that assessee must have paid that much amount for purchase of the property. We find that Ld. CIT(A) has rightly observed that in case, there was any doubt to the AO, he should have referred the matter to the Valuation Officer for valuation of the property before invoking the provisions of section 69B of the Act. We find that Ld. CIT(A) also in agreement with the Ld. AR that even the provisions of section 50C cannot be invoked in the case of the assessee, as assessee is one of the purchaser of the property, and provisions of section 50C applies to the Seller of property. We find that Ld. CIT(A) has rightly observed that Ld. AO has also not brought on record to show that any contrary view was taken by the Assessing officer of the Seller for the said property. CIT(A) has rightly get support from the judgment of the Hon ble SC in the case of KP Varghese Vs ITO (1981 (9) TMI 1 - SUPREME Court) and therefore, the addition made by the AO for an amount of ₹ 13,58,550/- was rightly deleted by the Ld. CIT(A). - Decided in favour of assessee. Investment made in purchase of property out of advance taken by the mother (Smt. Sudha Garg) of the assessee against sale of her property is investment of the assessee from undisclosed sources - CIT(A) delted the addition - Held that - Neither it is a case of the AO that Smt. Sudha Garg is not the mother of the assessee, nor it is disputed that the amount of ₹ 11,00,000/- was not received by Smt. Sudha Garg on the dates mentioned above. We find that it is also seen from the impugned order, that there is no discussion by the AO that Smt. Sudha Garg or the purchaser of the property Shri Ram Prasad was ever called by him before taking any contrary view or to disbelieve the agreement to sellJn the present case, assessee never said that she had made any payment for purchase of the plot which has been purchased by her mother in joint name of the assessee, against a sale consideration of ₹ 10,00,000/-. Since no payment is claimed to have made by the appellant to make investment in the plot purchased by her mother in her joint name, and no contrary evidences are brought on record by the AO before concluding that assessee made any investment out of undisclosed sources, and what those sources are, Ld. CIT(A) did not find any reason to sustain the addition made by the AO for an amount of ₹ 5,00,000/- which is not supportive by any corroborative evidence. Therefore, Ld. CIT(A) has rightly deleted the addition of ₹ 5,00,000/-. - Decided in favour of assessee.

Summary

Issues involved:
1. Addition made under section 69B of the Income Tax Act for undisclosed investment in property.
2. Addition made for investment from undisclosed sources in property purchase.

Detailed Analysis:
Issue 1:
The case involved an appeal by the Revenue against the order of the Ld. Commissioner of Income Tax (Appeals-XXX) concerning the assessment year 2008-09. The Assessing Officer (AO) observed that the assessee, along with her mother, purchased a plot for a total consideration of &8377;10,00,000, while the stamp valuation placed it at &8377;34,09,000. The AO concluded that the assessee had made an investment of &8377;13,58,550 in the property and invoked section 69B of the Act. However, the Ld. CIT(A) deleted the additions after considering the submissions made by the assessee. The Ld. CIT(A) found that no contrary material was provided by the AO to substantiate that additional consideration was paid for the property. The Ld. CIT(A) also noted that no inquiry was conducted before invoking section 69B and that the stamp duty valuation alone cannot be the sole criterion to determine the actual investment. The Ld. CIT(A) relied on various judgments, including the case of KP Varghese Vs ITO, to support the deletion of the addition. The ITAT upheld the Ld. CIT(A)'s decision, stating that the AO failed to provide any supportive evidence for the additional investment, and hence, the addition was rightly deleted.

Issue 2:
The second issue involved an addition of &8377;5,00,000 on account of investment made in property purchase from undisclosed sources. The Ld. CIT(A) considered the submissions and evidence presented by the assessee, which included an Agreement to Sell between the mother of the appellant and the buyer. The agreement showed that the mother received &8377;11,00,000 in cash for the property sale. The ITAT noted that the AO did not present any contrary evidence or call the parties involved before concluding that the investment was made from undisclosed sources. Since the appellant did not claim to have made any payment for the property in question, and no supporting evidence was provided by the AO, the Ld. CIT(A) rightly deleted the addition of &8377;5,00,000. The ITAT upheld this decision, stating that the AO failed to provide any corroborative evidence for the undisclosed investment, leading to the deletion of the addition.

In conclusion, the ITAT dismissed the Revenue's appeal based on the detailed analysis and findings on both issues, upholding the decisions of the Ld. CIT(A) in deleting the additions made by the AO.