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TMI Blog2023 (4) TMI 555X X X X Extracts X X X X X X X X Extracts X X X X ..... in the books of account. The factum of the assesses having made investment should be first proved by the AO, only then the burden shifts on the assessee to prove the source of investment. Such investment outside the books of account must be positively proved by the AO and not only inferred from the attending facts. If such an investment outside the books is not proved, the assessee cannot be called upon to prove the source of such a hypothetical investment. Adverting to the facts of the instant case, we find that apart from relying on the DVO's report, the AO has not brought anything on record or any other material to indicate that the assessee did make investment in purchase of property over and above that declared in the books of acco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 27.02.2015. The survey was consequent to the information that the assessee purchased an immovable property at Deshpandenagar, Hubballi for Rs.90 lakhs. In the course of survey, the statement of the assessee was recorded on 27.02.2015. In that statement, the assessee voluntarily declared a sum of Rs.25,44,400/- for Assessment Year 2014-15 in addition to his normal income. The assessee purchased land and building under sale deed dated 06.05.2013 for Rs.90 lakhs together with Smt. Sarojini Aithal. It is not in dispute that the Senior Sub- Registrar, Hubballi, registered the property with valuation as equivent to sale consideration of Rs.90 lakhs and that valuation was as per the valuation for registration of documents as prescribed by the Stat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oresaid sum to the total income of the assessee as unexplained income under section 69 of the Act. 7. Aggrieved by the order of the AO, assessee preferred appeal before the CIT(A) (NFAC). Before the NFAC, the assessee contended that the conditions to be fulfilled for invoking Section 69 are not at all evident in this case. Firstly, the assessee should have made an investment, which are not recorded in the books if any maintained. The assessee has made an investment of his share in Rs. 90 lakhs and the same is recorded in the statement of affairs submitted to the Assessing Officer. The assessee had invested Rs. 47,67,308/-out of Rs 90 laths and he had explained the sources for the said Investment to the satisfaction of the Assessing Offic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ought to income tax Rs. 5,90,900/-under Section 69 as unexplained investment to the declared income on the basis of valuation report. The assessment done by adding Rs. 5,90,900/- u/s. 69 of the Act on the basis of valuation report is void ab initio since it has no valid legal ground and against the provisions of the Income Tax Act, 1961. 8. The NFAC, however, did not address the issue as to whether reference could be made under section 142A of the Act in the facts and circumstances of the case but went to hold that the DVO s report can be relied upon by the AO for making addition. The NFAC referred to the decision of the Hon ble Supreme Court in the case of Amia Vs. CIT, Shillong, Appeal (civil) 4657 of 2000 dated 07/07/2003. In that cas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve made investments which are not recorded in the books of account. The factum of the assesses having made investment should be first proved by the AO, only then the burden shifts on the assessee to prove the source of investment. Such invesment outside the books of account must be positively proved by the AO and not only inferred from the attending facts. If such an investment outside the books is not proved, the assessee cannot be called upon to prove the source of such a hypothetical investment. Adverting to the facts of the instant case, we find that apart from relying on the DVO's report, the AO has not brought anything on record or any other material to indicate that the assessee did make investment in purchase of property over an ..... X X X X Extracts X X X X X X X X Extracts X X X X
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