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TMI Blog2016 (6) TMI 649X X X X Extracts X X X X X X X X Extracts X X X X ..... e valuer of the stamp Act authority but same ipso facto cannot be said to be a valid ground to initiate the proceedings under Section 69 of the Act or to invoke power under Section 69 of the Act on the premise that additional consideration was paid or received. Further, if such could not be the basis, subsequent valuation report would also not a ground. In the absence of any independent material, the report of the valuer could not be the basis for making addition. Under such circumstances, we find that the addition made by the Assessing Officer and further modified by the CIT (Appeal) as well as by the Tribunal cannot be sustained.- Decided in favour of the assessee - ITA NO. 460/2010 - - - Dated:- 7-6-2016 - MR. JAYANT PATEL AND MR. B.SREENIVASE GOWDA JJ. For the Appellant: Sri. S. Parthasarathi, Adv. For the Respondent: Sri. K. V. Aravind, Adv. J U D G M E N T JAYANT PATEL J., The present appeal has been admitted on the following substantial question of law:- Whether the finding of the Tribunal that the valuation made by the District Registrar/Appellate Authority is more effective and realistic without assigning any reasons is perverse, arbitrary a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Tribunal found that the property in question was valued by the Departmental valuer, approved valuer of the assessee and also District Registrar/Appellate Authority for the stamp duty purpose and hence the Tribunal decided the value of the property at the value which was determined by the District Registrar/Appellate Authority for stamp duty purpose and dismissed the appeal on the said ground and determined the value of the land at ₹ 79,61,525/- and of the building at ₹ 21,60,000/-. Therefore, the Tribunal directed the assessing authority to re-compute the capital gain on the basis of the valuation decided by the District Registrar, Shimoga in the proceedings dated 18.05.2006. Under such circumstances, the appellant/assessee has preferred the present appeal. 6. We have heard Sri. S. Parthasarathi, learned counsel appearing for the appellant/assessee and Sri. K.V. Aravind learned counsel appearing for respondent/revenue. 7. It is true that at the time of the admission of the appeal, the appeal has been admitted on the question limited to the finding of the Tribunal on the basis of the valuation made by the District Registrar/Appellate Authority. As the appeal ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... O in the course of remand proceedings provided the appellant an opportunity to explain the discrepancy in the value shown by the DVO, if any. But, as per the AO the appellant could not point out any infirmity or defect in the valuation report of the DVO. Since, the value of the land has been determined on the basis of instances of actual sale transactions in the office of Sub-Registrar, Shimoga, therefore, I decline to interfere with the valuation of the land determined at ₹ 97,98,771/- by the DVO. However, coming to the valuation of the building it is seen from the submissions of dated 18.08.2009 of the appellant wherein in the last para, the appellant has pointed out certain deficiencies in the valuation of the building arriving at the excessive cost of ₹ 6,09,119/-. On careful examination of the facts, it appears that the deficiencies pointed out by the appellant in the valuation of the DVO as regards the valuation of building appears to be genuine therefore this sum of ₹ 6,09,119/- attributable to excessive valuation is required to be reduced from total valuation of the building of ₹ 20,26,793/. As a result the appellant gets a relief of ₹ 6,09,11 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Departmental valuer has valued the property at a different value, in his submission Section 69 of the Act could not be invoked by the revenue in the absence of any primary or independent material for the consideration received or paid then so stated in the registered sale deed. As per him, all the lower authorities including the Tribunal have lost sight of the aforesaid aspects and hence the order for addition may be quashed. 12. Whereas, learned counsel for the respondent-revenue contended that valuation made by the authority under the Stamp Act which is so accepted by the assessee for the purpose of payment of stamp duty can be considered as a basis for invoking Section 69 of the Act. In his submission, there is indirect admission on the part of the assessee when the additional stamp duty is paid on the premise that the value of the property for the purpose of stamp duty is correct. He submitted that thereafter in the present case the matter was also referred to the Departmental valuer who has assessed the value of ₹ 97,98,771/- net value of the land and of ₹ 20,26,797/- being value of the property. Even the assessee had submitted the valuation report wherein the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nue and it is only when such burden is discharged that it would be permissible to rely upon the valuation given by the District Valuation Officer. It was also held that the opinion of the Valuation Officer per se was not an information and could not be relied upon without the books of account being rejected which had not been done in that case. 9. The aforesaid principle of law has been reaffirmed in CIT v. Naveen Gera (2010) 328 ITR 516 (Delhi) stating that the opinion of the District Valuation Officer per se was not sufficient and other corroborated evidence is required. Mr. Maratha, learned counsel appearing for the Revenue submitted that the judgment of the Supreme Court in K.P. Varghese (1981) 131 ITR 597 (SC) has been explained by the Rajasthan High Court in the case of Smt. Amar Kumari Surana v. CIT (1997) 226 ITR 344 (Raj). 14. The aforesaid shows that the primary burden to prove the understatement or concealment of the income by way of unexplained investment is on the revenue and it is only when such burden is discharged, it would be permissible to rely upon the valuation given by the District Valuation Officer. Further, it was also held that if there was n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the primary burden of proof with regard to concealment of income was on the revenue and it was only when the said burden was discharged that reliance could be placed on the valuation report of the DVO. There are several other decisions of this Court in the same vein. One such cse being the case of CIT v. Vinod Singhal: (ITANo.482/2010 decided on 05.05.2010) where, again, reliance was placed on the very same decision of the Supreme Court in K.P.Varghese (supra) and also on a decision of this Court in CIT v. Smt. Shakuntala Devi: (2009) 316 ITR 46. It was observed that there must be a finding that the assessee had received an amount over and above the consideration stated in the sale deed and for this the primary burden was cast on the revenue. It is only when this burden is discharged by the revenue that it would be permissible to rely upon the value as given in the valuation report of the DVO. 5. The law seems to be well settled that unless and until there is some other evidence to indicate that extra consideration had flowed in the transaction of purchase of property, the report of the DVO cannot form the basis of any addition on the part of the revenue. In the prese ..... X X X X Extracts X X X X X X X X Extracts X X X X
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