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Income Tax Appellate Tribunal, MUMBAI BENCH “E”, MUMBAI
Before: SHRI ANIKESH BANERJEE & SHRI PRABHASH SHANKAR
O R D E R Per Bench:
The instant appeal of the assesse filed against the order of the National Faceless Appeal Centre (NFAC), Delhi [hereinafter, Ld. CIT(A)’] passed under section 250 of the Income-tax Act, 1961 (hereinafter, the “Act”) for Assessment year 2014- 15 & AY 2016-17, date of order 18/12/2023. The impugned orders emanated from the order of the Ld. Income-tax Officer, Ward 24(2)(1), Mumbai [hereinafter, the “Ld. AO”] passed under section 143(3), date of order 26/12/2016; under section 2 ITA 526 to 528/Mum /245 Hirji Parbat Gada 154, date of order 31/10/2017, for AY 2014-15 and order passed by the Ld. Assistant Commissioner of Income-tax, Circle 24(2), Mumbai [hereinafter, the “Ld. AO”] passed under section 143(3), date of order 28/12/2018 for AY 2016-17. All the appeals have same nature of facts and common issue; therefore, all the appeals were heard together and are disposed of by this consolidated order.
& 527/Mum/2024 are taken together. & 527/Mum/2024 2. The assessee, in individual capacity, filed the return and return was processed under section 143(1) of the Act. The case was selected for scrutiny under CASS and notices under section 143(2) was issued. It was noticed that the assesse had purchased House Property, which is below the stamp duty valuation. The stamp duty valuation of the property was Rs.9,98,65,550/- whereas the assessee’s purchase cost was Rs.3,06,00,000/-. So the difference amount of Rs.6,92,65,550/- was added back with the total income of the assesse. The assessee purchased three properties for two different agreements on dated 23/10/2013. The assessee vide letter dated 15/12/2016 has requested the Ld.AO to refer the case to the DVO. Accordingly, the case was referred to the DVO on dated 16/12/2016. But the assessment was completed before 31/12/2016. So, the Ld.AO completed the assessment and confirmed addition amount to Rs.5,40,10,760/-. Finally, the DVOs order was received on 26/02/2017 and the assesse filed an appeal before the Ld. CIT(A) for challenging the order passed under section 143(3) of the Act. As a alternet remedy, the assessee filed rectification application under section 154 before the Ld.AO for referring to the valuation report. The Ld.AO considering the report of the DVO under section 56(2)(vii)(b) of the Act, rectified the order passed U/s 143(3) of the Act and reduced the demand amount to Rs.1,85,65,000/-.
3 ITA 526 to 528/Mum /245 Hirji Parbat Gada Aggrieved assessee challenged the order of the Ld.AO passed under section 154 of the Act before the Ld. CIT(A). The Ld. CIT(A) rejected both the appeals of the assesse and upheld both the orders of the Ld.AO. Being aggrieved, assesse filed appeal before the Bench.
The Ld.AR argued and filed a paper book which is kept on the record. The Ld.AR first stated fact that the assessee is an individual and a regular dealer in land and other immovable properties holding a sizeable real estate portfolio. He is partner in M/s Priya Developers, which is in real estate business. In the course of regular trading activities as a dealer in plots, the assessee acquired various small parcels of the land in Malad, Mumbai by 3 Deeds of conveyance on 23/10/2013. The land parcels suffered from various deficiencies like in no development zone, no developed area, illegal buildings and slums and no access to road. So the assesse purchased these lands for lower than the market price but the assessment was completed under section 143(3) of the Act and the DVO’s report received later on. The assessee challenged the order passed under section 143(3) of the Act before the Ld.CIT(A). The Ld. CIT(A) concluded the appeal with following observations. The relevant paragraph is reproduced below:- “Considering the above mentioned facts & discussion and clear language of Section 43CA & 50C of Income Tax act 1961, this Appellate authority is of the view that the actual sale consideration for the transfer should be taken at stamp duty authority valuation which is Rs. 9,98,65,550, but the Appellant assessee has paid Rs.3,06,00,000/- in purchase agreement. Thus, the remaining amount of Rs. 6,92,65,550/- is considered as unexplained Investment u/s 69 of the Act. Further, the language of section 6 states as follows: "Where in the financial year immediately preceding the assessed year the assessee has made Investments which are not recorded in the books of account, if any, maintained by him for any source of income, and the assessee offers no explanation about the nature and source of the investments or the explanation offered by him is not in the opinion of the Assessing Officer, satisfactory the value of the investments may be deemed to be the income of the assessee of such financial year.”
4 ITA 526 to 528/Mum /245 Hirji Parbat Gada Thus, considering the above-mentioned facts & discussion and language of Section 43CA, 50C & 69 of the income-Tax act 1961, this Appellate authority upholds the addition made by the Assessing Officer amounting to Rs 6,92,65,550, but with a slight change that, this amount be considered as unexplained investment made by the Appellant towards the said purchase of property. B. DECISION W.R.T THE GROUND OF APPEAL NO.-4: This ground of appeals without adjudication as it is of a general nature and doesn't necessitate further consideration. In the result, the appeal of the assessee is NOT ALLOWED”
The Ld.AR further invited our attention to assessment order, the observations of the Ld.AO which is reproduced as below:-
“4 The assessee during the year under consideration has earned Income from House property. Profits & Gains from Business and Profession, Capital Gains and Income from Other Sources. During the course of assessment proceedings, it was noted from the AIR information that the assessee has purchased certain properties wherein the purchase price of the properties were much below the Market price of the said properties. The detailed description of the properties purchased are reproduced below: -
Sr Date of Descripton Market price Purchase Difference No. agrement in Rs. cost 1 23/10/2013 CTS No 764/S No 84 & 2903 2,04,33,750 14,00,000 1,90,33,750 2 23/10/2013 CTS No 2648,2650 & 2372 3,47,33,200 2,28,00,000 1,19,33,200 3 23/10/2013 CTS No 2994, & 2995 1,11,40,800 7,00,000 1,04,40,800 4 23/10/2013 CTS No 3,35,57,800 57,00,000 2,78,57,800 2644,2659,3273,3485 & 3487 A show cause notice dated 18/11/2016 was issued to the assessee, by this office, giving the assessee an opportunity of being heard on 24/11/2016 and to explain these transactions amounts and why the difference between the market value price and the purchase price amounting to Rs 6,92,65,550/- (Rs. 1,90,33,750 Rs. 1,19,33,200 1,04,40,800 2,78,57,800) should not be added back to your total income under the head Income from Other Source for the year under consideration for which there was no compliance by the assessce nor was any submissions filed
5 ITA 526 to 528/Mum /245 Hirji Parbat Gada Further another show cause notice dated 09/12/2016 was issued by this office, giving the assessee a final opportunity of being heard.
The assessee vide his letter dated 15/12/2016 has requested this office to refer the case to the DVO. Accordingly the Case was referred to the DVO vide this office letter dated 16/12/2016. However as this office did not receive any reply from the DVO regarding this reference, till the date of this order, an addition of the said amount is being made on protective basis and accordingly an amount of Rs 6,92,65,550/- is added back to the total income of the assessee under the head income from other sources, for the year under consideration. As the matter is getting barred by limitation on 31.12.2016 the assessment is completed, and the order is passed subject to modification as if required as an when this office receives Valuation Report from the office of the District Valuation Officer. Penalty proceedings u/s 271(1)(c) is being initiated separately for filing inaccurate particulars and concealment of income.”
5. After getting the rectification order, the demand U/s 143(3) of the Act was reduced, but the said order was duly challenged before the Ld.CIT(A) and the Ld.CIT(A) took an observation that the issue is already settled in the order pursuant to the assessment order under section 143(3) of the Act. So the section 154 demand is upheld and the appeal petition is duly rejected. The observation of the Ld.CIT(A) is reproduced below: - “Considering the above facts and discussion and language of Section 43CA And 50C of the Income- tax Act,1961 this Appellate authority has already passed the decision in the same matter in Assessee's own quantum appeal against the AO's assessment Order u/s 143(3) for this very AY 2014-15. The order passed by this Appellate authority dated 18.12.2023 in the said quantum appeal matter, upholding the addition, has thus decided the matter in the favor of the department and against the Appellant assessee and has accepted the full value as per stamp valuation authority / government guidelines amounting to Rs 9,98,65,550/- which has been taken as consideration for the transfer of property in question in the case and accordingly addition of Rs 6,92,65,550/- has been confirmed. Hence, taking the same stand as this Appellate Authority has already upheld the original assessment of income at Rs. 6,92,65,550/-ie: the quantum addition.
6 ITA 526 to 528/Mum /245 Hirji Parbat Gada Further, the said addition was also taxed as un-explained investment U/s. 69 of the Act by this Appellate authority in the said quantum appeal. Hence, there is no ground for re-considering the matter afresh and / or disturbing the assessed income. The Appellant has been given opportunity to be heard and file required details, submissions etc.. which it has not satisfactorily answered. The Appellant has also been granted a personal hearing. Hence, based on the facts of the case and discussions above and in law, the appeal of the Appellant assessee is not acceptable and thus rejected. B. DECISION W.R.T THE GROUND OF APPEAL NO.-5: This ground of appeal is dismissed without adjudication as it is of a general nature and doesn't necessitate further consideration. In the result, the appeal of the assessee is NOT ALLOWED.”
The Ld. DR vehemently argued and fully relied on the order of the revenue authorities.
We have heard the rival submissions and perused the material available on record. It is noted that the assessment was completed under section 143(3) of the Act without considering the report of the DVO. The DVO’s detailed report, which valued the property at a higher figure compared to the assessee’s computation, was received subsequently on 20.06.2017. The assessee, on the other hand, furnished a separate valuation report from a registered valuer, M/s Vadher & Associates, and placed full reliance upon it. A perusal of the assessment order reveals that the Ld. AO, while framing the assessment under section 143(3), had considered the assessee’s submissions and referred the matter to the DVO. However, the Ld. CIT(A) proceeded to adopt new facts and made the addition under section 69 of the Act, thereby invoking a provision different from that applied by the Ld. AO. Such an approach, in our considered view, is perverse, arbitrary, and amounts to an assumption of jurisdiction contrary to law.
7 ITA 526 to 528/Mum /245 Hirji Parbat Gada We place reliance on the judgment of the Hon’ble Delhi High Court in CIT v. Sadhna Gupta [2013] 32 taxmann.com 185 (Delhi), wherein it was held that: “4. The only point to be considered is whether the valuation rendered by the DVO is to be taken into account or not. It has been argued by the learned counsel for the revenue that the assessing officer was justified in referring the matter to the DVO for an opinion with regard to the fair market value of the property and once that opinion has been rendered, the same has to be taken into account and if that were to be so, the addition of Rs. 2,81,83,000/- would be fully justified. Consequently, it was submitted by the learned counsel for the revenue that the Tribunal had erred in deleting the addition. On the other hand the learned counsel for the respondent referred to a Division Bench decision of this Court in the case of CIT v. Puneet Sabharwal [2011] 338 ITR 485/16 taxmann.com 320/[2012] 204 Taxman 16 (Delhi) (Mag.). In that decision 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 CIT v. Smt. Suraj Devi [2010] 328 ITR 604/[2011] 197 Taxman 173 (Delhi) (Mag.) 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. 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.”
In the present case, the Ld. AO subsequently rectified the order under section 143(3) by passing an order under section 154. However, the findings recorded by 8 ITA 526 to 528/Mum /245 Hirji Parbat Gada the Ld. CIT(A) are erroneous, and the appellate order, having been passed by invoking an incorrect provision, is unjustified in law and liable to be quashed. We also draw support from the decision of the ITAT, Lucknow Bench (Third Member) in CIT v. Rohtas Projects Ltd. (2006) 100 ITD 113 (Luck.) (TM), wherein it was held that:- “7. We agree with the ld. Authorized Representative of the assessee that the Assessing Officer made the aforesaid addition of Rs. 1,43,094 based on the cost of investment estimated by the D.V.O. The Assessing Officer has not stated any reasons for not accepting the cost declared by the assessee and/or the Registered Valuer. Now the question arises as to whether the Assessing Officer is justified to make the addition merely on the basis of DVO’s report, particularly when the Assessing Officer has not pointed out any defects in the material produced by the assessee during the course of assessment proceedings. In this regard, it is relevant to state that the Hon’ble Supreme Court of India has held in the case of Smt. Amiya Bala Paul (supra) that reference to DVO, other than for the purpose of section 55A and section 269L was illegal. It was held by the Apex Court that the Assessing Officer cannot refer the matter to the Valuation Cell for estimating the cost of construction of the house property for the purpose of assessment. Since the Departmental Valuer could not be called upon by the Assessing Officer to estimate the cost of construction of the property, the report, if any, submitted by the Departmental Valuer cannot be relied upon by the Assessing Officer in estimating the cost of construction as the said report, in view of the above decision of the Apex Court, cannot be said to be a valid report. The Hon’ble Jurisdictional High Court in the case of Dr. Avinesh Kumar Agarwal (supra) has also held that the Assessing Officer does not have the power to refer a matter to the Valuation Cell under section 55A of the Act for making investigation under section 131(1)(d). Since the Assessing Officer merely made the above addition of Rs. 1,43,094 based on the DVO’s report, which, in view of the above decision could not be relied upon, we hold that there is no material on record to sustain the addition made by the Assessing Officer. Moreover, we observe that the ld. CIT(A) has considered the cost of investment in the property in question, in the light of the DVO’s report and has found that the difference in the cost declared by the assessee and the cost estimated based on DVO’s report is less than 10 per cent after considering the objection of the assessee and as such the same is to be ignored. The ld. D.R. has not brought any material even to dispute the above finding of the ld. CIT(A). In view of the above, we uphold the order of the ld. CIT(A) in deleting the said addition of Rs. 1,43,098 made by the Assessing Officer.
9 ITA 526 to 528/Mum /245 Hirji Parbat Gada 8. Before we part with this appeal, we would also like to consider the submission of the assessee made in reply to a query of the Bench as to whether the matter could be restored to the Assessing Officer for his further investigation as the Assessing Officer, during the course of assessment proceedings, while making the addition relied on the DVO’s report and did not consider the cost of investment in the property independently. In this regard, we agree with the ld. Authorized Representative of the assessee that the Tribunal has held in the case of Raj Kumar Jain ( supra), that the Tribunal while deciding an appeal and the issue before it has to see whether the assessment framed by the Assessing Officer is in accordance with law and has been properly framed on the facts. It was further held that if there is no material to support it and when the additions made by the Assessing Officer could not be sustained, it is not for the Tribunal to start investigation suo motu and supply the evidence for the Department. It was further held that if the additions are not supported by evidence, only course open to the Tribunal is to delete the addition pointing out how the additions could not be sustained for want of adequate supporting material. It was further held that the Tribunal cannot order further inquiry with a view to sustain the addition. In the light of the above decision of the Tribunal (cited supra), we agree with the ld. Authorized Representative of the assessee that if the Assessing Officer has made the addition which is not based on sufficient material, the said addition could not be sustained and it would not be prudent for the Tribunal to direct the income-tax authorities to make an inquiry in a particular manner, as the Tribunal is an appellate authority and is required to decide the issue on the basis of the material before it.”
Applying the ratio of Sadhna Gupta (supra) and Rohtas Projects Ltd. (supra) to the facts of the present case, we hold that the Ld. AO had correctly applied the provisions of law while framing the assessment, whereas the Ld. CIT(A) erred in invoking section 69 to confirm the addition. We find no justification to sustain the impugned appellate order, which is accordingly quashed. Consequently, as the order passed under section 154 is entirely dependent upon the order under section 143(3), and the latter has been quashed, the rectification order under section 154 also fails and is hereby set aside. The Ld. DR has not cited any contrary judicial precedent to rebut the submissions of the Ld. AR. So, both the appeals of the assessee are succeeded.
10 ITA 526 to 528/Mum /245 Hirji Parbat Gada 8. In the result, the appeal of the assesse bearing & 527/Mum/2024 are allowed.
In the present appeal, the assessee had sold certain properties, and the report of the DVO was received at a later stage. The Ld. AR contended that the principles of natural justice were violated in the course of assessment proceedings, as the order was passed without considering the DVO’s report. The Ld. AR submitted that the assessee is engaged in the business of real estate and property dealings, and also operates in the service sector with income from cable and internet operations as well as the telecom sector. The return of income, declaring a net taxable income of Rs.39,41,310/-, was filed on 17.10.2016, and the applicable taxes were duly paid. During the year under consideration, the assessee sold two plots located in the Malad & Malavani area. There was a substantial variation between the actual sale consideration of the plots and the value determined by the Stamp Valuation Authority for stamp duty purposes. The Ld. AR explained that the stamp duty was paid on the value determined by the Stamp Valuation Authority, which was disproportionately high and irrational. Since the process of adjudication under the stamp duty law is time-consuming, the purchaser opted to pay the duty as per the Stamp Valuation Authority’s determination instead of the actual sale consideration or the realisable market value. In view of the substantial difference in valuations, the Ld. AO issued a show cause notice dated 25.12.2018, at the fag end of the scrutiny proceedings, which were due to be time-barred on 31.12.2018. The assessment was thereafter completed with additions made under section 43CA of the Act.
11 ITA 526 to 528/Mum /245 Hirji Parbat Gada The assessee, through its authorised representative, filed a detailed reply to the said show cause notice on 26.12.2018, requesting that the matter be referred to the DVO for determination of the correct market value of the plots sold. The Ld. AO accepted this request and referred the matter to the DVO. However, while passing the assessment order, the AO made an addition representing the difference between the market value and the actual sale consideration under the head “Income from Business or Profession,” subject to rectification under section 154 upon receipt of the final DVO report. The assessee challenged the said assessment order before the Ld. CIT(A), who upheld the addition and confirmed the impugned demand. Being aggrieved, the assessee has preferred the present appeal before us.
The Ld.AR invited our attention on the observations of the Ld.CIT(A). The relevant part of the said order is reproduced as below:- “vi. It is pertinent to mention here that, the Appellant Assessee has not provided any of the sale deed or purchase papers of the said property to this Appellate authority. vii. Further, no copy of the said DVO report have been filed by the assessee before this Appellate authority. It had been questioned to the Appellant that the AO has mad additions us 43CA of the Act. And that made to understand that, the sale of immovable property is one which is not a capital asset. Further. Phat the assessment order is subject to the DVO's report and which does not seem to have been received during the assessment proceedings. It was also queried whether any father orders may have been passed by the AO in this case (AY) s. 155(15) rw section 154 of the Act. No satisfactory responses were filed by the Appellant assessment. Further even the AO was asked to file its response towards these queries, but no such replies were received till date of this order. viii. The Assessing Officer on page no-2 of its Assessment Order stated that, the income tax Act is very clear in its Section 43CA and does not leave room for any o leading to price of a property being lower than the stamp valuation as per government guidelines The Language of Section 43CA of Income Tax Act 1901 is as follows
12 ITA 526 to 528/Mum /245 Hirji Parbat Gada
(1) Where the consideration received or accruing at out of the tracer by an assessee of an another than a capital asset) being land or building or bath is less than the valve adopted or assessed or assessable by any authority of a State Government for the purpose of payment of stamp duty in respect of such transfer, the value so adopted or assessed or assessable shall, for the purposes of computing profits and gains from transfer of such asset, be deemed to be the full value of the consideration received or accruing as a result of such transfer:
Provided that where the value adopted or assessed or assessable by the authority for the purpose of payment of stamp duty does not exceed one hundred and ten 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 computing profits and gains from transfer of such asset, be deemed to be the full value of the consideration.
[Provided further that in case of transfer of an asset, being a residential unit, the provisions of this proviso shall have the effect as if for the words "one hundred and ten per cent", the words "one hundred and twenty per cent had been substituted, if the following conditions are satisfied, namely:-
(the transfer of such residential unit takes place during the period beginning from the 12th day of November, 2020 and ending on the 30th day of June, 2021
(i) such transfer is by way of first time allotment of the residential unit to any person, and (ii) the consideration received or accruing as a result of such transfer does not exceed two crore rupees] ix. The Appellant Assessee in its submissions has asked for VC, in favor of natural justice. and the same was duly held on 18.12.2023 and the Appellant ignored it and did not appear Considering the above mentioned facts & discussion and language of Section 43CA of Income Tax act 1961, this Appellate authority is in the view that Assessing Officer has correctly invoked section 43CA and the addition made by the Assessing officer amounting to Rs 5,40,10,760/- is Upheld.”
The Ld.DR argued and relied on the order of the revenue authorities.
13 ITA 526 to 528/Mum /245 Hirji Parbat Gada 12. We have heard the rival submissions and examined the material available on record. On perusal, we find that the Ld. CIT(A) made erroneous observations in the appellate order. The DVO’s report was a crucial piece of evidence that ought to have been considered while passing the assessment order. However, the said report was not available before the Ld. AO at the time of framing the assessment. Subsequently, the DVO’s report was received and made available to both parties. In the interest of justice, we deem it appropriate to remit the matter back to the file of the Ld. AO with a direction to consider the DVO’s report and thereafter pass a speaking order giving effect to such report. The assessee shall be afforded reasonable opportunity of being heard, and any documentary evidence or material that the assessee seeks to file in the set-aside proceedings shall be admitted in accordance with law. Accordingly, the appeal of the assessee is allowed for statistical purposes.