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TMI Blog2002 (9) TMI 794X X X X Extracts X X X X X X X X Extracts X X X X ..... essee was not entitled to file return at Delhi unless jurisdiction was transferred to Delhi through an order of the appropriate authorities as required under section 127(2) of the Income-tax Act, 1961. 3.That the learned CIT(A) has erred in deleting the addition of Rs.15,47,610 out of total addition of Rs. 26,85,600 on account of undisclosed investment in the construction of property at Delhi with the direction that the remaining addition of Rs. 11,38,990 pertaining to undisclosed investment in the construction of building is restored to the Assessing Officer for a final decision in accordance with the directions contained in the Appellate Order. 4.That it is prayed that the order of the learned CIT(A) may be vacated on the above points and that of the Assessing Officer be restored. 5.That the appellant craves leave to add or amend the grounds of appeal before the appeal is heard and disposed of." 3. The grievance of the department vide Ground Nos. 1 & 2 relates to the deletion of addition of Rs. 43,200. 3.1 The relevant facts of the case in brief are that a search was conducted at the residential premises of the assessee on 26-2-1997. The assessee filed the return of income o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessment year 1996-97 in Delhi and the said return was valid return. He further noted that as far as the period 1-4-1996 till date of search was concerned, the provisions of section 158BB(1)(b) were applicable and as such only that income would have to be excluded which was determined on the basis of entries recorded in the books of account and other documents maintained in the normal course. He, therefore, directed the Assessing Officer to delete the income of the assessee for the assessment year 1996-97 amounting to Rs. 43,200 disclosed in the return by her. 3.3 Being aggrieved, the department is in appeal before the Tribunal. At the time of hearing, the learned D.R. relied on the order of the Assessing Officer but failed to rebut the findings of the learned CIT(A). It was further stated that the return was not filed at Amritsar, who was having the jurisdiction, hence, the income was rightly treated as undisclosed income for the block period because the return filed at Delhi was non est. 3.4 In his rival submissions, the learned counsel for the assessee strongly supported the order of the learned CIT(A) and stated that nothing was found by the department during the cours ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... property vide her letter dated 28-1-1999 to the extent of Rs. 21,29,000 which was comprised of Rs. 15,60,000 as the original cost of property purchased and Rs. 5,69,000 as the cost of the construction. The assessee also furnished a copy of report of Authorised Valuation Officer who valued the property at Rs. 21,48,000. The Assessing Officer referred the valuation to the valuation officer for estimating the cost of construction/acquisition of the property, who determined the same at Rs. 48,15,600 which was comprised of the following :- 1. Cost of Construction Rs. 30,74,357 2. Cost of Land Rs. 17,41,210 Rs. 48,15,567 rounded off Rs. 48,15,600 The Assessing Officer declined to consider the valuation report submitted by the assessee on the ground that the report was not furnished by the assessee to the valuation officer. He, therefore, added a sum of Rs.26,86,600 to the income of the assessee on account of unexplained investment in the property. 4.2 Before the learned CIT(A), it was contended that the D.V.O.was not justified in assuming that the entire property had been constructed on a single day when the adequate evid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... T(A), the assessee purchased property for a total amount of Rs. 15,60,000 from Shri Naresh Chand Jain, who was assessed with ITO, Ward 20(V), New Delhi and that amount had been paid for land as well as construction undertaken on the said land by the previous owner upto January, 1997. The learned CIT(A) held that the total market value of the property in January, 1997, when it was purchased could not have been substituted for its stated consideration for the purpose of determining the actual investment made by the assessee. He, therefore, deleted the addition of Rs. 15,47,610 which was attributable to the purchase of land (being the difference between the market value estimated by the valuer and consideration disclosed by the assessee). The reliance was placed on the decision of this Bench of the Tribunal in the case of Gopi Krishan (supra) and also on the decision of the Hon'ble Supreme Court which was followed by the ITAT in the aforesaid case in the case of K.P. Varghese v. ITO [1981] 131 ITR 5971 (SC) wherein it has been held that :- "Sub-section (2) of section 52 of the Income-tax Act, 1961 can be invoked only where the consideration for the transfer of a capital asset has bee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecorded in the sale deed. The reliance was also placed on the decision of the Hon'ble Punjab & Haryana High Court in the case of CIT v. Satinder Kumar [2001] 250 ITR 484. The learned counsel for the assessee, Sh. Padam Bahl, C.A. further stated that in such type of cases no reference to valuation cell can be made for estimating the cost of construction because the same can be considered in the regular assessment but not during the Block Assessment proceedings. The reliance was placed on the various case laws, vis-a-vis :- (1)CIT v. Vinod Dhanchand Godhawat [2001] 247 ITR 448 (Bom.) (2)Agrawal Motors v. Asstt. CIT [1999] 68 ITD 407 (Jab.) (3)Atul Kumar Jain v. Dy. CIT [1999] 64 TTJ (Delhi) 786 (4)Essem Intra Port Services (P.) Ltd. v. Asstt. CIT [2000] 72 ITD 228 (Hyd.) (5)Indore Construction (P.) Ltd. v. Asstt. CIT [1999] 71 ITD 128 (Indore) (6)VVS Alloys Ltd. v. Asstt. CIT [2000] 66 TTJ (All.) 522 (sic.) (7)Mushtaq Ahmed v. Asstt. CIT [2000] 66 TTJ (Jp.) 305 (8)Vrishali Hotels (P.) Ltd. v. Asstt. CIT [2000] 66 TTJ (Pune) 692 . 4.7 After hearing the rival submissions of both parties and perusing the material available on the record, we are of the considered view that the l ..... X X X X Extracts X X X X X X X X Extracts X X X X
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