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TMI Blog2015 (7) TMI 734X X X X Extracts X X X X X X X X Extracts X X X X ..... tives, we gave gone through the records carefully. 4. Brief facts of the case, as emerge out from the assessment orders are that (Vishnuprasad S. Agrawal), this assessee has filed return of income electronically on 10.3.2009 declaring total income at Rs. 4,79,150/-. The case of the assessee selected for scrutiny assessment and notice under section 143(2) was issued on 1.9.2009, which was duly served upon the assessee on 6.9.2009. On scrutiny of the accounts, it revealed to the AO that Shri Vishnuprasad S. Agrawal) has been drawing income from share of profit from the firm viz. M/s.Jalaram & Co., interest income and rental income He has also shown long term capital gains from sale of plot of land. The learned AO further found that the assessee has sold six plots during the year. Since there is no dispute between parties with regard to computation of capital gain, therefore, we do not deem it proper to note these facts in detail. The assessee has purchased nine plots during the year. The learned AO has noted details of all the purchases in tabular form at page no.9 and 10 of the impugned assessment. According to the AO, out of total nine plots, the assessee has half shares in plot s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... out the quality of evidence possessed by the AO for concluding that the assessees have made unexplained investment which deserves to be added in the total income under section 69B of the Act, we deem it pertinent to take note of section 69B of the Act. It reads as under: "Amount of investments, etc., not fully disclosed in books of account - Where in any financial year the assessee had made investments or is found to be the owner of any bullion, jewellery, or other valuable article, and the A.O. finds that the amount expended on making such investments or in acquiring such bullion, jewellery or other valuable article exceeds the amount recorded in this behalf in the books of account maintained by the assessee for any source of income, and the assessee offers no explanation about such excess amount or the explanation offered by him is not, in the opinion of the A.O.. satisfactory, the excess amount may be deemed to be the income of the assessee for such financial year." 8. A perusal of the section would reveal that section 69B of the Income Tax Act, authorizes the AO to deem unexplained investment, if he find that the assessee had made investments or owner of any bullion, jewelle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The factual position in the present case is that during the year the assessee had purchased agricultural land. The purchase cost of a sq. mtrs. of land was shown to be Rs. 74/- per sq. mtr. The A.O. was of the view that the purchase price shown by the assessee was quite low as compared to the prevailing market rate of the land. According to the A.O. the purchase price should have been Rs. 510/- per sq. mtr. He taking into consideration the prevailing jantry price and the auction price of SUDA, estimated the undisclosed investment at Rs. 97,41,000/-.After adjusting for the value disclosed in the books of accounts of Rs. 14,13,000/- added Rs. 83,27,600/-as the net undisclosed income. The A.O. has thus relied on the jantry price and auction price of SUDA and on that basis presumed that the amount expended is more than the amount recorded in the books. The A.O. has failed to bring on record any material to support his estimated price. 12. Section 50C is a deeming provision where under the stamp duty rate is treated as full value of consideration for the purpose of computing capital gain under section 48. It is applicable in the case of a seller of property and therefore cannot be inv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enue is dismissed. 18. In the result, appeal of the Revenue is dismissed." 9. Similarly, the Hon'ble Gujarat High Court in the case of Berry Plastics P. Ltd., 35 taxmann.com 296 and Jayendra N. Shah, 27 taxmann.com 306 made following observations: "8. Before us counsel for the Revenue vehemently contended that there was considerable gap between the valuation disclosed in the sale deed, which was also adopted for the purpose of assessee's books and what was estimated by the Stamp Duty Authority for the purpose of collecting stamp duty. He submitted that the Assessing Officer, on the basis of DVO's report, found that the investment was much greater than what was reflected in the books made by the assessee in purchase of such property. Counsel placed heavy reliance under Section 142A of the Act in support of his contention. 9. We are of the opinion that CIT(Appeals) as well as the Tribunal committed no error in deleting the additions made by the Assessing Officer. It is undisputed that the sole basis for making the addition was the DVO's report. DVO's report may be a useful tool in the hands of the Assessing Officer, nevertheless it is an estimation and without ..... X X X X Extracts X X X X X X X X Extracts X X X X
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