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TMI Blog2015 (10) TMI 2848X X X X Extracts X X X X X X X X Extracts X X X X ..... hri Ankur D. Shah ORDER PER BENCH: Revenue is in appeal before us against the order of the ld.CIT(A)- II dated 17.6.2009 for the Asstt. Year 2004-05. 2. On receipt of notice in the Revenue's appeal, the assessee has filed cross-objections bearing no.CO No. 236/Ahd/2009. The Revenue has taken twelve grounds of appeal, but the grievance revolves around a single issue whereby it has pleaded that the ld.First Appellate Authority has erred in deleting the addition of Rs. 6,31,300/- made by the AO on account of unexplained investment made by the assessee in construction of residential building. 3. The brief facts of the case are that a search operation under section 132 of the Income Tax Act was carried out at the premises of Colourtex Group of Surat on 26.7.2006. The assessee is a member of this group and his premises were also searched on 26.7.2006. A notice under section 153A was issued upon the assessee. To this notice, the assessee has filed his return of income on 31.3.2007 declaring total income at Rs.63,45,634/-. The case of the assessee was selected for scrutiny assessment and notice under section 143(2) of the Income Tax Act dated 3.3.2008 was issued and served upon the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ne. Further, there is no evidence on record that the assessee made unaccounted investment. As a result, deeming provision of the section 69/69B of the Act in regard to unexplained investment, is not applicable. This view is also supported by the decision of Gujarat High Court in the case of Ushakant N. Patel v. CIT (282 ITR 553). There is no deeming provision in Income Tax Act to tax the alleged difference in valuation for the purpose of section 69/69B as contained in section 50C for the purpose of taxing capital gain by enhancing consideration as envisaged in section 48 of the Act. The reliance is placed on decision of Rajasthan High Court in the case of Krishna Kumar Rawat & Ors. V. Union of India & Ors. 210 CTR 553 (Raj) wherein it is categorically held that section 5OC has application for purposes of section 48 only and has no application in case of pre-emptive purchases under chapter XX-C. Now, when Government was the purchaser (under chapter XX-C), in that case, it was made clear that provision of section 50C was not applicable. Thus, applying the same logic section 50C cannot be applied when the assessee is a purchaser. In view of the above facts and the ratio of the v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a specific question had been raised as to whether the Income Tax Appellate Tribunal was right in holding that notwithstanding the report of the DVO the revenue had to prove that the assessee had received extra consideration over and above the declared value of the same. That question was answered by this Court in favour of the assessee and against the revenue. The Division Bench in the case of Puneet Sabharwal (supra) had also placed reliance on the decision of Supreme Court in K. P. Varghese (supra) as also on another decision of a Division Bench of this Court in CITv. Smt. Suraj Devi [2010] 328 ITR 604 wherein this Court held 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 case being the case of CIT v. Vinod Singhal (IT Appeal No.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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g to the question of addition towards purchase of land, the Commission of Income-Tax (Appeals) as well as the Tribunal both have examined the issue on the basis of the material available on record. It is noted that the assessee had made no disclosure towards the purchase of land in his statement during the search proceedings. The addition was made merely on the basis of the DVO's report without there being any other material. Moreover, the DVO had also substantially relied on jantri rates and had made other reference's for arriving at the valuation." 10. Both the issues are based primarily on factual aspects. No question of law, therefore, these appeals are dismissed." 10. Similarly, in the case of CIT Vs. Berry Plastics P. Ltd., (2013) 35 taxmann.com 296 (Guj), the Hon'ble Gujarat High Court has made following observations: "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 there being ..... X X X X Extracts X X X X X X X X Extracts X X X X
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