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TMI Blog2011 (8) TMI 1284X X X X Extracts X X X X X X X X Extracts X X X X ..... er s. 142A and not considering the objection of the appellant. 4.That in the facts and circumstances of the case, the learned CIT(A) has erred in confirming the arbitrarily making an addition after applying provisions of s. 69B. 5.Without prejudice to the above, the learned CIT(A) has erred in not striking down the order of the AO, who accepted the estimate of the Valuation Officer, without giving reasonable opportunity to the appellant, even though the Valuation Officer had pointed out that the appellant s objections had not been considered by him, and had required the AO to consider appellant s objections, the Valuation Officer had not allowed reasonable opportunity before finalizing his estimates. 6.That in the facts and circumstances of the case, the learned CIT(A) has erred in confirming the action of AO in relying only on an estimate and, to hold that appellant had made an undisclosed investment, without bringing any other material on record. 7.That in the facts and circumstances of the case, the learned CIT(A) has erred in ignoring the facts and explanations furnished by the appellant. 8.That in the facts and circumstances of the case, the appellant craves lea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he assessee that s. 69B was not applicable. However, based upon the valuation report, the AO added the amount of ₹ 24,59,300 to the income of the assessee being difference in the investment shown by the assessee and as valued by the DVO. 3. In an appeal filed before CIT(A), apart from challenging the addition, the assessee challenged the invocation of s. 142A as, according to the assessee, to initiate reference under s. 142A, it was necessary that the case of the assessee should fall under s. 69B which use the word found. It was submitted that there was no material whatsoever found according to which it could be said that the assessee had made any investment in excess of what was shown to be invested. The assessee also challenged the comparable instance. It was submitted that comparable instance taken by the DVO being N-6, Green Park Main, New Delhi was not comparable at all with the property of the assessee and more appropriate comparable was sale instance of property No. X-1, Green Park Main, New Delhi which is exactly opposite to the property of the assessee i.e., across the road. The size of the plot is same and the construction was also same. It was submitted that r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 69 or 69B, whichever is applicable. In the present case, the relevant property was purchased by the assessee during the year under consideration for ₹ 15 lakhs and the amount of the said consideration was paid out of its disclosed sources as accepted even by the AO in the reassessment. A perusal of the assessment order, however, shows that there was no reference whatsoever made by the AO to any material/evidence/information on the basis of which it could be said that the said consideration shown by the assessee was understated and that anything above what was disclosed by the assessee had actually been paid as consideration. The condition precedent for making a reference to the DVO by invoking the provisions of s. 142A thus was not satisfied in the present case and neither the said reference nor the addition made on the basis of report obtained from the DVO in response to the said reference, in our opinion, was sustainable in law as rightly held by the learned CIT(A). In the case of Subhash Chand Chopra v. Asstt. CIT [2005] 92 TTJ (Del) 1087, this Bench of the Tribunal has held that no material or evidence having been recovered during the course of search showing investment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l, 2009 in ITA No. 1619/Del/2008 (copy placed at pp. 43-44 of the paper book) wherein the addition was made to the income of the assessee on account of difference worked out in the amount shown by the assessee and as value estimated by the DVO. The reference was made under s. 142A and it was held that in the absence of material the reference to the Valuation Officer under s. 142A could not be made. 8. It was also submitted by the learned Authorised Representative that another half of the property was purchased by the husband of the assessee and no addition whatsoever has been made in the case of the husband of the assessee and the Department cannot take a different view in the case of the assessee and, to support such contention he relied upon the following decisions : (i) CIT v. Bhagirath Aggarwal Lex Id 396134 (Delhi High Court-copy placed at p. 54 of the paper book). (ii) K.J. Arora v. Dy. CIT [2009] 180 Taxman 131 (Del)(Mag) (Tribunal Del-copy placed at pp. 55-57 of the paper book). 9. In this manner, the learned Authorised Representative has concluded his arguments to contend that the addition has wrongly been sustained and it should be deleted. 10. On the other ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... operty has been computed at ₹ 61,61,613. The assessee s share being 50 per cent thereof, the estimated investment by the assessee has been computed at ₹ 30,80,807 (rounded off to ₹ 30,80,800). 12. It is the case of the assessee that comparison, if it has to be made, should be made with the like comparable. The Department is wrong in comparing a property which is not the like property. To substantiate such factor copy of map of Green Park has been submitted at p. 64 of the paper book and it has been shown that N-6 is far away from W-19 purchased by the assessee. The transaction for N-6 plot had taken place in 1999. The assessee in the sale instance comparable has relied upon the sale transaction of X-1 plot which is across the road to the plot of the assessee and the area is also similar. The construction of the said house is also new in comparison to the construction of the assessee s property which is old one. The date of transaction is also nearer to the transaction entered into by the assessee as the date of transaction in X-1 property is 23rd Jan., 2002 as against the date of transaction of the assessee which is 4th day of September, 2002 and, thus, it is t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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