9911796707
TMI Blog2024 (7) TMI 1176X X X X Extracts X X X X X X X X Extracts X X X X ..... ck to the assessee in any form. The supplier s bank account quoted by the assessing officer nowhere shows that cash has been withdrawn from these accounts. On the contrary, the payments have been made to the various parties. The appellant company has also submitted the detailed analysis of the stock register, yield, production, sale, complete quantitative details. Revenue has not doubted on quantitative details of sale declared by the appellant company which has also been accepted. The profit earned by the appellant company from these sales have also been taxed. CIT(A) has also endorsed above contention of the appellant company. However, the ld. CIT(A) having endorsed the entire contentions of the assessee erred in directing to apply gross profit rate on the purchases which defies logic. CIT(A) having not pointed out any defect in any of the document or explanation submitted by the assessee in respect of the purchases made by it, the entire addition has to be deleted. Assessee has duly discharged their onus relating to purchases made by it from those purchase which have not been doubted by the AO by submitting the necessary evidence in support thereof. Hence, we decline to interfer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e by AO and confirmed by CIT(A), in the absence of reference to the DVO is unsustainable and hence liable to be deleted. Decided in favour of assessee. - Dr. B. R. R. Kumar, Accountant Member And Sh. Sudhir Kumar, Judicial Member For the Assessee : Sh. Ved Jain, Adv. And Ms. Supriya Mehta, CA For the Revenue : Subhra J. Chakraborty, CIT-DR ORDER PER DR. B. R. R. KUMAR, ACCOUNTANT MEMBER: Since, the issue involved in all these appeals are similar, they were heard together and being adjudicated by a common order. The only difference is in amount involved. In ITA No. 2632/Del/2022 is taken as the lead case. Following grounds have been raised by the assessee: 1. On the facts and circumstances of the case, the order passed by the learned Commissioner of Income Tax (Appeals) [CIT(A)] is bad both in the eye of law and on facts. 2. On the facts and circumstances of the case, learned CIT (A) has erred, both on facts and in law, in rejecting the contention of assessee that the assessment order passed is bad in the eyes of law as the same was passed in violation of circular no. 19/2019 issued by CBDT which mandates that no order shall be passed without there being Valid Document Identificat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... profit (5.47% embedded in purchases out of total purchases of Rs. 8,00 23,080/- (ii) That the above said addition has been sustained ignoring detailed submissions and evidences submitted by the assessee with respect to such purchases (iii) That the addition of Rs. 43.77.262/- by applying gross profit rate of 5.47% over and above the gross profit rate of 5.47% declared and included in its income tantamount to double addition of gross profit rate. 10. That without prejudice to the above, the addition at the rate of 5.47% is otherwise too high 11. On the facts and circumstances of the case, the addition sustained by CIT(A) is untenable in the absence of rejection of books of accounts of the assessee. 12. On the facts and circumstances of the case, the learned CIT(A) has erred, both on facts and in law in conforming the action of the AO in wrongly charging interest under section 234B of the Income Tax Act. 2. These are four appeals filed by the assessee and three appeals filed by the Revenue arising from the order dated 21.09.2022 passed by ld. CIT(A) for the following assessment years: Appeals filed by the assessee: AY 2017-18 ITA No. 2632/Del/2022 AY 2018-19 ITA No. 2633/Del/2022 AY ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the purchases made from 19 parties in A.Y. 2017-18, A.Y. 2018-19, A.Y. 2019-20 A.Y. 2020-21. 9. A chart depicting the purchases made from each party which has been disallowed by the AO for respective AY is as tabulated below: S. No. Name AY 2017-18 AY 2018-19 AY 2019-20 AY 2020-21 i. M/s. S. K. Trading Co. 4,13,38,560 12,89,00,002 - - ii. M/s. Singh Enterprises 3,86,84,520 9,40,62,169 - - iii. M/s. Kumar Traders - 81,07,827 - - iv. M/s. Dheeraj Sales Corporation - 1,03,28,684 - - v. M/s. Kapil Enterprises - 1,74,19,152 - - vi. M/s. Gulshan Tradelink - 1,80,62,090 - - vii. M/s. Advance Retail - 88,55,098 - - viii. M/s. Shri Ganpati Traders - 3,06,15,810 - - ix. M/s. Ambika International - 14,89,52,322 - - x. M/s. Radiant Overseas - 18,59,83,259 - - xi. M/s. Royal Traders - 5,46,17,922 - - xii. M/s. Dev Infocom (P) Ltd. - 36,20,77,917 81,21,89,115 - xiii. M/s. At Your Door Step Services (P) Ltd. - 2,13,75,600 - - xiv. M/s. Rudrani Multi Trade - 2,13,75,600 - - xv. M/s. Sai Enterprises - 6,04,32,128 - - xvi M/s. Sai Enterprises - 5,85,95,852 - - xvii. M/s. Ghanshyam Enterprises - 1,78,11,882 - - xviii. M/s. Spark Infrapower (P) Ltd. - - 2,06,67,540 - xix. M/s. Jai Bhawani Enterprises ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the assessee company do not lead to any adverse inference with reference to the purchases made by the assessee and hence, AO was not justified in drawing adverse inference on the basis of these statements. iv. That the addition made on the basis of statement of Mr. Manoj Dudeja are otherwise untenable in the absence of any cross examination being allowed by Mr. Manoj Dudeja as is admitted by the assessing officer himself in the Assessment Order at the second last page Para 6(iii) (for AY 2017-18)/ 5th last page Para 6(iii) (for AY 2018-19)/ 3rd last page Para 6(iii) (for AY 2019-20, and 3rd last page Para 6(iii) (for AY 2020-21), of the respective Assessment Years. That in any case assessment cannot be framed u/s 153A by solely relying on the third party statement. v. On merits, the assessee filed detailed written submission explaining as under:- a) That the primary reason for making addition on account of bogus purchases is the statement of Manoj Dudeja recorded in August, 2020. b) Firstly, this statement of Mr. Manoj Dudeja is with reference to only two suppliers namely SK Trading and Singh Enterprises and purchases from these two parties are only in the A.Y. 2017-18 and 2018-1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... your relation with Vijay Kumar, proprietor of Singh Enterprises? Ans: I don t know anyone called Vijay Kumar nor Singh Enterprises. Q. 30. Please state your relation with Sanjeev Sharma, proprietor of SK Trading? Ans: I don t know anyone called Sanjeev Sharma nor SK Trading. Q. 51. Ans. 6 But as per me, I don t know to SK Trading Co. then how can I comment on same that in which type of business that company involved. . 7. But as I already stated in my last point no. 8 I don t know anything about SK Trading than how can I know about some Rajeev Sharma. .. 10. But I am not agree with him as he stated. I also don t know about sachin Singh Enterprises and also don t know about his business Q.55. You are once again accorded an opportunity to State your association with M/s SK Trading Co. Ans: I come to know about SK Trading Co. from the market that it is a bogus company used for accommodation entries. I had facilitated a very entries for some work. Q.56. You are once again accorded an opportunity to State your association with Singh Enterprises. Ans: I come to know about Singh Enterprises from the market that it is a bogus company used for accommodation entries. I had facilitated a very ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a total of 19 parties spread over a period of four years despite the fact that the statement of Mr. Manoj Dudeja was with reference to only two parties namely SK Trading and Singh Enterprises from whom purchases have been made only in A.Y. 2017-18 and AY 2018-19. Thus, the disallowance of purchases with respect of remaining 17 parties is arbitrary and without any basis. 24. Moreover, as regards the various other observations of the AO for holding that the purchases made by the assessee are not genuine, the assessee has submitted a point wise detailed rebuttal for each observation during the course of assessment proceedings as well as appellate proceedings. The same are as under: As regards the statement of Mr. Akshat Jain (Director of the company) (PB pg. 1-23) 25. The AO interpreted the statement of Mr. Akshat Jain to draw adverse inference. But vide reply letter dated 23.08.2021 before Asst. Director Income Tax Investigation, the assessee has given the following details: a) Ledgers account b) Copy of Invoices c) Transport Receipt/Bilty d) Form C e) Trip Sheet/E-way Bills f) Kanta Parchis g) Weighing Slips h) Bank statement showing payment to the suppliers. 26. Thereafter, no furt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng Officer relied on the statement of Mr. Ravnish Kumar recorded on 23.03.2021. It has been alleged that Mr. Ravnish Kumar has stated that no goods were received by the assessee on the premises located at 7/33, Ansari Road, Daryaganj, Delhi as per his knowledge. 30. The relevant extract of the statement of Mr. Ravnish Kumar reads as under: Q. No. 14: I am showing you the purchase invoice found and seized as Annexure A-1 to Annexure A-10 in respect of M/s. Mahavir Transmission Limited (pertaining to FY 2017-18) during the course of search proceedings at 7/33, Ansari Road, Daryaganj, Delhi. Please acknowledge it and explain why these invoices are kept here. Ans: Yes, I acknowledge that purchase invoice in respect of M/s. Mahavir Transmission Limited (pertaining to FY 2017-18) have been found and seized during the course of search proceedings at 7/33, Ansari Road, Daryaganj, Delhi. I have no idea why these invoices have been kept here. Accountant Mr. Raman Sharma can explain about the same . Q. 15 Please state have the goods have been received here at 7/33, Ansari Road, Daryaganj, Delhi as the purchase invoices (found and seized as Annexure A-1 to Annexure A-10) which have been issued ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al Estate, Vikas Marg, Dehradun. 34. Accordingly, his statement was with reference to the activities at that premises i.e. 138, Industrial Estate, Vikas Marg, Dehradun which is also evident from his statement which reads as under:- Q. 14 Please state nature of your business transactions of following entities: 1. Kumar Traders, 2. SK Trading Company, 3. Singh Enterprises, 4. Advance Retails, 5. Dheeraj Sales, 6. Ghanshyam Enterprises, 7. Gulshan Tradelinks, 8. Kapil Enterprises, 9. Shri Ganpati Traders, 10. Dheeraj Sales Corporation? Please also produce their ledger accounts. Ans. Out of the entities stated by you Kumar Traders, Main Road Vikasnagar is a supplier of paint and packaging material to us. The annual transaction does not exceed 12,000/-. The other entities are not known to me. To the best of my knowledge this premise of Mahavir Transmission Limited had never dealt with any of them in business during last 4-5 years. Q. 15. Please state nature of your business transactions with Radhey Enterpirses? Ans. As informed earlier Radhey Enterpirses is a supplier of aluminium rod coil and steel to this factory. Q. 16 What else do you know anything else about Radhey Enterprises or i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssee company within a short time span to other firms. 36. The AO has quoted bank statement of the supplier with respect to the above observation. i. It is evident from the bank statement reproduced by the AO himself that the assessee has made purchases through banking channels only which have also been duly received by these suppliers. ii. There is no material or allegation that cash was withdrawn against these payments made by the assessee company. On the contrary, the bank statement confirms that these payments were applied to make further payment to other firms. iii. In fact in the show-cause notice dated 28.01.2022 issued to the assessee (PB Page 47 to 49), the assessing officer himself has stated that when the purchase and sale details of SK Trading was examined on GSTIN Portal it was found that SK Trading has purchased material from M/s. Advance Retail, M/s. Dheeraj Sales Corp. and M/s. Kumar Traders etc. Similarly, when the purchase and sale details of M/s. Singh Enterprises (PB Page 67) were examined on the GSTIN Portal, it was found that Ms. Singh Enterprises has purchased material from Advance Retail, Ganpati Traders etc. iv. Therefore, in fact the bank statements of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this regard it was also submitted that invoices are required to be issued in compliance to details as per the GST Portal. So, there was nothing wrong in not filing those fields/columns which were not relevant or applicable for the purpose of supplies made to the assessee company by the suppliers. These details being secondary and not relevant to the case under consideration cannot contribute to holding of any adverse inference against the assessee. 42. It was pointed out that all these invoices have been submitted by the suppliers to the GST Authorities and have also been accepted as is evident from the GSTR-2A return of the supplier available on the GST Portal. As regards the allegation that vehicle number stated on the invoice could not be verified. 43. It was submitted that the AO has ignored the detailed reply submitted by the assessee in response to the show-cause notice issued by him whereby it was clarified that information referred by the assessing officer is on the basis of private website Car Info . The App used by AO only states that it could not fetch the details of vehicle number from RTO. 44. In support of the case, the assessee submitted copies of the status of vehi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... these supplies. Further in respect of each of these suppliers, the assessee submitted detailed clarification which has been quoted by the Assessing Officer in the assessment order, but has not been rebutted by the AO. 49. It may be relevant to point out that later on during the course of assessment, the AO himself carried out the verification by issuing notices under section 133(6) and all such notices got duly served and even replies were received from 13 parties. Accordingly, the AO was not justified in drawing adverse inference on this account. 50. It was further submitted that the assessee has made purchases from hundreds of parties during the relevant year, out of which purchases from 19 parties have been doubted by the AO without any tangible/rational basis (including 2 parties referred in statement of Mr. Manoj Dudeja). 51. It was also submitted by the assessee that in respect of the purchases from all the impugned 19 parties, the appellant had filed consolidated submissions/reply dated 22.03.2022 before the AO explaining the genuineness of purchases made by the assessee along with documentary evidence therefor. The same reply and documentary evidences were submitted before ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t from non-foundry operations), such as melting of material in furnaces, alloying in molten metal, degassing fluxing, continuous casting, rolling mill etc. In these processes there is loss of material is shape of burning loss. 56. It is an undisputed fact that no doubt has been casted on quantitative details and value of sales and stock as declared/maintained by the assessee and duly disclosed in the tax audit report(s) and income tax returns. 57. In this regard, it is pertinent to point out that: i. Complete stock details were filed during the assessment proceedings and the same have not been doubted by assessing officer nor any discrepancy has been pointed out by the assessing officer. ii. The sales as declared by the assessee stands accepted. The quantity of products sold and the value of sale transactions have not been doubted; iii. Stock records have been accepted as recorded in the books; iv. Profit earned by the appellant on the entire sales and offered to tax stands accepted; v. There is no allegation of any sales made outside the books of accounts; vi. The yield of the products has not been disputed. 58. We find that the ld. CIT(A) duly took note of the above submissions m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s invoices to the assessee company. Infact, in the statement, he names the owner of these two concerns which have been quoted by the assessing officer in the Assessment Order itself. The Assessing Officer, being aware of the fact that Mr. Manoj Dudeja is not the owner of these two concerns and some other persons are the owners of these two concerns, no efforts were made to take statement of owners of these two concerns. Further the assessee company during the course of search as well as during the course of the assessment proceedings categorically rebutted the allegation levied against it on the basis of the statement of Mr. Manoj Dudeja. In fact the appellant company insisted for the cross examination of Mr. Manoj Dudeja/Gopal even if the statement is to be considered to be adverse to the assessee. 62. The Assessing Officer has admitted in the assessment order at the second last page (AY 2017-18)/ 5th last page (AY 2018-19)/ 3rd last page (AY 2019-20, AY 2020-21), Para 6(iii)of the Assessment Order that it has failed to provide the cross-examination as Mr. Manoj Dudeja/ Gopal did not appear in response to the summon issued to him. The allegation of AO was based on the statement of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . In respect of the material being stored at Daryaganj, the appellant company categorically stated that the person Mr. Ravnish Kumar was only house-keeping boy and he was not there at the time when these purchases were made and he was allowed to reside at that premises only in February 2020 onwards which is much after the date when these purchases were made. 65. Similarly, with regard to the statement of Mr. Anil Chander Jain at Dehradun, the appellant company has duly explained that he was looking after the production unit at 138, Industrial Estate, Vikas Marg, Dehradun and these purchases were related to the other units which is located at KH No. 1684, Line Jeevan Gudh, Vikas Nagar, Dehradun. On-going through the statement of Mr. Anil Jain, it is apparent that what he has stated was with reference to the unit at 138, Industrial Estate, Vikas Marg, Dehradun and accordingly, there was no reason to draw adverse inference on that basis. 66. As regards the non-filing of the tax returns, it is a matter on record that the AO has issued notices to all these 19 parties under section 133(6) and all notices have been duly delivered and in fact replies have been received from 13 parties conf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... carried on by the AO and quoted in the Assessment Order where the status of inactive is much after the year in which purchases have been made from these suppliers. 69. In any case the AO himself has recorded in the assessment order that he has issued notice under section 133(6) to all these 19 parties and he has received replies from 13 parties. In respect of remaining six parties, it is not the case of the AO that replies have not been received. If that be so, then appellant company cannot be faulted if these suppliers have not responded to the notices issued by the assessing officer. The reliance being placed by Revenue upon the judgment of Gujarat High Court in the case of N. K. Industries in respect of addition sustained by the ld. CIT(A) on the basis of gross profit rate is not relevant as in the present case the purchases itself are genuine as the assessee has produced sufficient evidences including the movement of goods of the purchases made by it. The revenue s observations that the assessee is engaged in the job work activity taken for Government Bodies is factually incorrect. The appellant company is engaged in the manufacturing as well as supplying of Aluminium Conducto ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ccounts. On the contrary, the payments have been made to the various parties. The appellant company has also submitted the detailed analysis of the stock register, yield, production, sale, complete quantitative details. The Revenue has not doubted on quantitative details of sale declared by the appellant company which has also been accepted. The profit earned by the appellant company from these sales have also been taxed. The ld. CIT(A) has also endorsed above contention of the appellant company. However, the ld. CIT(A) having endorsed the entire contentions of the assessee erred in directing to apply gross profit rate on the purchases which defies logic. The ld. CIT(A) having not pointed out any defect in any of the document or explanation submitted by the assessee in respect of the purchases made by it, the entire addition has to be deleted. 71. The assessee has duly discharged their onus relating to purchases made by it from those purchase which have not been doubted by the AO by submitting the necessary evidence in support thereof. Hence, we decline to interfere with the order of the ld. CIT(A) to the extent of deletion of addition made on account of alleged bogus purchases. 72 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of such valuation report is placed at PB Pg.399-404. The AO rejected the explanation of the assessee and made an addition of Rs. 2,35,98,600/- on account of the difference in purchase price (i.e. Rs. 1,04,17,400/-) and the stamp duty value (i.e. Rs. 3,40,16,000/-) of the property by invoking the provision of section 50C. 77. Aggrieved by the order passed by the AO, the assessee company preferred an appeal before the ld. CIT(A). 78. During the course of appellate proceedings before the ld. CIT(A), it was contended by way of written submission (PB Pg. 460-521) that: i. The AO has failed to consider the valuation report submitted by the assessee. ii. No cogent material/concrete evidence has been brought on record by the AO to doubt the validity and sanctity of the valuation report. iii. It was incumbent on the AO to refer the matter to the DVO in case the valuation report submitted by the assessee was to be ignored by the AO and in the absence of such reference, the addition made by the AO is unsustainable and liable to be deleted. iv. It was pointed out that Section 50C is not applicable on the assessee company as the assessee company is not the seller of the property but the purchas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unt of consideration, or a part thereof, has been received by way of an account payee cheque or account payee bank draft or by use of electronic clearing system through a bank account, on or before the date of the agreement for transfer. Following third proviso shall be inserted after the second proviso to sub-section (1) of section 50C by the Finance Act, 2018, w.e.f. 1-4- 2019 : Provided also that where the value adopted or assessed or assessable by the stamp valuation authority does not exceed one hundred and five per cent of the consideration received or accruing as a result of the transfer, the consideration so received or accruing as a result of the transfer shall, for the purposes of section 48, be deemed to be the full value of the consideration. (2) Without prejudice to the provisions of sub-section (1), where (a) the assessee claims before any Assessing Officer that the value adopted or assessed or assessable by the stamp valuation authority under sub-section (1) exceeds the fair market value of the property as on the date of transfer; (b) the value so adopted or assessed or assessable by the stamp valuation authority under sub-section (1) has not been disputed in any app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng fifty thousand rupees, the stamp duty value of such property as exceeds such consideration: Following item (B) shall be substituted for the existing item (B) of subclause (b) of clause (x) of sub-section (2) of section 56 by the Finance Act, 2018, w.e.f. 1-4-2019 : (B) for a consideration, the stamp duty value of such property as exceeds such consideration, if the amount of such excess is more than the higher of the following amounts, namely: (i) the amount of fifty thousand rupees; and (ii) the amount equal to five per cent of the consideration: Provided that where the date of agreement fixing the amount of consideration for the transfer of immovable property and the date of registration are not the same, the stamp duty value on the date of agreement may be taken for the purposes of this sub-clause : Provided further that the provisions of the first proviso shall apply only in a case where the amount of consideration referred to therein, or a part thereof, has been paid by way of an account payee cheque or an account payee bank draft or by use of electronic clearing system through a bank account, on or before the date of agreement for transfer of such immovable property: Provid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eanings as respectively assigned to them in the Explanation to clause (vii).] Following clause (xi) shall be inserted after clause (x) of sub-section (2) of section 56 by the Finance Act, 2018, w.e.f. 1-4-2019: (xi) any compensation or other payment, due to or received by any person, by whatever name called, in connection with the termination of his employment or the modification of the terms and conditions relating thereto. 85. Provisions of Section 142A are as under: Estimation of value of assets by Valuation Officer. 142A. (1) The Assessing Officer may, for the purposes of assessment or reassess- ment, make a reference to a Valuation Officer to estimate the value, including fair market value, of any asset, property or investment and submit a copy of report to him. (2) The Assessing Officer may make a reference to the Valuation Officer under sub-section (1) whether or not he is satisfied about the correctness or completeness of the accounts of the assessee. (3) The Valuation Officer, on a reference made under sub-section (1), shall, for the purpose of estimating the value of the asset, property or investment, have all the powers that he has under section 38A of the Wealth-tax Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing assessee s appeal learned Commissioner (Appeals), though, has accepted assessee s contention that the addition cannot be made under section 68 of the Act, however, he made the addition under section 69A of the Act. On a reading of section 68 as well as 69A of the Act, it becomes very much clear, while section 68 speaks of any sum found credited in the books of assessee in a particular year the source of which cannot be explained can be treated as unexplained cash credit, section 69A speaks of a situation where the assessee is found to be the owner of any money, bullion, jewellery or other valuable article which is not recorded in the books of accounts maintained for any source of income and the assessee offers no explanation regarding the nature and source of such money, bullion etc. then it shall be deemed to be the income of the assessee. Thus, the conditions and situations for applicability of section 68 and section 69A of the Act are different. Therefore, unless the conditions of the specific provision are fulfilled, no addition can be made. In the facts of the present appeal, the first appellate authority has accepted that conditions of section 68 of the Act are not fulfil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he coordinate bench of the Tribunal in the case of M/s Toffee Agricultural Farms P. Ltd. (supra), I hold that the addition made by the AO u/s 69 of the Act cannot be converted into Sec. 69C of the Act by the Ld. CIT(A) while upholding the addition. Action of the Ld. CIT(A) in this regard cannot be held as valid and sustainable being bad in law. Therefore, ground no. 1 2 of assessee are allowed and AO is directed to delete the addition. Since, the grievance of assessee has been allowed in view of findings recorded by me in the earlier part of this order. Therefore, other grounds of assessee on merits are not being adjudicated upon as having become academic. Smt. Sarika Jain Vs. CIT, Bareilly and Another 2017 (7) TMI 870 - Allahabad High Court Dated: - 18-7-2017 In the present case, it is apparent that the subject matter of the dispute all through before the Tribunal in appeal was only with regard to the addition of alleged amount of the gift received by the appellant-assessee as his personal income under Section 68 of the Act and not whether such an addition can be made under Section 69-A of the Act. In view of the above, it can safely be said that the Tribunal travelled beyond the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e property to the Valuation Officer and having failed to do so, the addition made by the AO is unsustainable and liable to be deleted. There are a number of judgments on this issue wherein it has been held that once the assessee has disputed the stamp duty value and has submitted the valuation report, the AO is duty bound to refer the valuation to DVO in case he proposes to make an addition. Having failed to do so, the addition is not sustainable and liable to be deleted. 90. Reliance is placed on the following judicial pronouncements in this regard: DCIT CIRCLE-6 Jaipur Vs. Shri Goverdhan Prasad Singhal and (Vice- Versa) 2022 (7) TMI 1202 - ITAT Jaipur Dated: - 7-6-2022 13. In the present case, it is noted that the Assessing officer neither discussed the contentions of the assessee for taking actual consideration as fair market value of the property sold nor referred the matter to the DVO as was required u/s 50C (2) of the Act despite specific prayer made by the assessee at the first stage. The AO and the CIT(A) have also not found or alleged that the assessee received any excess amount over the sale consideration mentioned in the deeds. In the light of these facts and particularl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... u/s. 144/147 of the Act in the absence of the assessee. Only when the matter carried to first appellate stage, the assessee objected to the value adopted by the AO without referring the matter to the DVO by giving the detailed reasons as to why the sale consideration was lesser amount. Hence, the decision relied by ld. DR is distinguishable on facts. In view of above, we do not find any infirmity in the findings of the ld. CIT(A) to interfere and, accordingly, dismiss the grounds of the revenue. Neelavara Sanjeeva Rao Vs. Income Tax Officer, Ward-7 (2) (1), Bangalore 2021 (12) TMI 1203 - ITAT Bangalore Dated: - 29-11- 2021 22. In the present case before us also, the AO completely ignored the valuation report of the registered valuer submitted by the assessee and submissions made thereon. The AO mechanically applied the provisions of section 56(2)(vii) to bring the difference of stamp duty valuation and actual sale consideration paid by the assessee, without making any efforts to find out the actual cost of property, when in fact the assessee stated that the property when purchased was under litigation and pending before the Civil Court, the AO was not bothered about these impedime ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs and the purchasers and ultimately the builder was abandoned the project and left. The assessee also stated that what was purchased as per the agreement is different than what was given to him as the property was sold to two persons. So there is dispute in the area acquired by the assessee also. In such circumstances, it was all the more necessary for the Assessing Officer to refer it to the Valuation Officer which he miserably failed. Even at the stage of appellate proceedings when the assessee produced Valuation Officer s report who valued Flat No. 601 in the very same Building at ₹.1,00,76,000/- the ld. CIT(A) should have called for remand report and in turn the Valuation Officer s report which the ld. CIT(A) failed to do so. In such circumstances the addition made by the Assessing Officer is totally unjustified and cannot be sustained. We are also of the opinion that the revenue cannot be allowed a second inning by sending the matter back to the Assessing Officer to prove before the Assessing Officer that the sale consideration was the fair market value of the property purchased by the assessee when the assessee was all along disputing valuation of the property and the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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