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Income Tax Appellate Tribunal, DELHI BENCH “A”: NEW DELHI
Before: SHRI PRASHANT MAHARISHI & SHRI K.N.CHARY
O R D E R PER PRASHANT MAHARISHI, A. M.
These are the appeals filed by the assessee emanating out of search carried out at the residence of Mr. Madan Kukreja on 10.11.2010. Only one issue emanating from the above search with respect to the assessment in the hands of the assessee is the subject matter of appeal before us for all these years. The issue involved is with respect to the addition made in the hands of the assessee for purchase of house property in assessment year 2006 – 07 and its construction for all these years based on the report of the District valuation Officer. Both the parties argued the same together raising common issues. Therefore, all these appeals disposed off by this common order. Assessment year 2006 – 07 is filed by the assessee for Assessment Year 2006-07 against the order passed by the ld CIT(A)-35, New Delhi dated 23.02.2017, wherein, the ld CIT(A) passed a common order for Assessment Year 2006-07 and 2008-09.
The ground of appeal raised by the assessee are as under:- “1) THAT in the facts and circumstances of the case, the Learned CIT(A) erred in confirming the decision of the Learned A.O. in initiating proceedings u/s 153C. 2) THAT in the facts and circumstances of the case, the Learned CIT(A) erred in confirming the decision of the Learned A.O. in initiating proceedings u/s 153 A. 3) THAT in the facts and circumstances of the case, the Learned CIT(A) erred in confirming the decision of the Learned A.O. to refer the matter to seek opinion of the Valuation Department regarding the Cost of acquisition of land by appellant. 4) THAT in the facts and circumstances of the case, the Learned CIT(A) erred in confirming the decision of the Learned A.O. to refer the matter to seek opinion of the Valuation Department regarding the cost of construction of residential house by the appellant 5) THAT in the facts and circumstances of the case, the Learned CIT (A) erred in confirming the decision of the Learned A.O. in not considering the cost of construction as mentioned in the Valuation Report obtained from Government Registered Valuer. 6) THAT in the facts and circumstances of the case, the Learned CIT(A) erred in confirming the decision of the Learned A.O. in not providing reasonable opportunity to the appellant. 7) THAT in the facts and circumstances of the case, the Learned CIT(A) erred in confirming the decision of the Learned A.O. in not considering the objections pointed out by the appellant. 8) THAT in the facts and circumstances of the case, Learned CIT(A) erred in confirming the decision of the Learned A.O. in not considering the details/dates of construction of the residential premise, over which construction was carried out. 9) THAT the Report pf the Valuation Officer suffers from serious infirmities including non-consideration of factum of construction of premises under supervision by assessee, comparing a more prime location of plot than that of appellant, and then proceeding to make arbitrary adjustments to such cost of land, used by him as a comparable instance. 10) THAT in the facts and circumstances of the case, the Learned CIT (A) erred in confirming the reference made by Learned A.O. and seeking opinion of Valuation Department u/s 142(2A) of cost of land.
11) THAT in the facts and circumstances of the case, the Learned CIT (A) erred in confirming the ad hoc addition of cost of land made by Learned A.O., without bringing on record evidence of any consideration that flowed from appellant for purchase of land. 12) THAT in the facts and circumstances of the case, the Learned CIT (A) erred in confirming the selection of comparable plot of land made by Learned A.O., which was situated over 4 kms from that of the appellant. 13) THAT in the facts and circumstances of the case, the Learned CIT (A) erred in confirming the decision of the Learned A.O. in not considering the factum of money for acquisition/construction of residential house has been made through receipts from the appellant’s spouse, Shri Madan Kukreja. 14) THAT in the facts and circumstances of the case, the Learned CIT (A) erred in confirming the decision of the Learned A.O. in taxing the investment in such residential property in the hands of appellant, and also again taxing the same in the hands of appellant’s spouse, Shri Madan Kukreja. 15) THAT in the facts and circumstances of the case, the Learned CIT (A) erred in confirming the addition of Rs. 1,11,71,941/- made by Learned A.O. 16) THAT the appellant craves leave to add, alter, amend or drop any of the above grounds at the time of hearing.”
The fact shows that on 10.11.2010 search was carried out at the residence of one Shri Madan Kukreja. Search warrant was also in the name of Madan Kukreja. Some jewellery and cash were found. Cash of Rs. 15.50 lakhs were seized. No seizure of the jewellery was made. Certain loose papers were also found and Panchanma were prepared in the name of Madan Kukreja.
For Assessment Year 2006-07 the assessee filed original return on 28.07.2006 and income declared of Rs. 43,230/-. Subsequently, on conclusion of search on 11.11.2010 certain book of account and cash was seized. The assessee was issued a notice u/s 153A on 08.02.2013. The assessment u/s 153A was passed wherein, there were an addition of Rs. 1,10,67,000/- on account of difference in the purchase of land during the year as well as a minor addition with respect to the construction cost of the house property.. The total income was assessed at Rs. 1,12,15,171/-. The assessee preferred an appeal before the ld CIT(A) who confirmed the addition. Therefore, the assessee filed appeal before us.
The brief facts of the addition was that the ld AO noted that there were substantial repair and alternation work was carrying out at the residence of the assessee C-59, Friends Colony (east), New Delhi. To ascertain the market value of the property, he referred the matter to the ld District Valuation Officer. The ld DVO noted that the land purchased by the assessee on 17.11.2005 having the transaction value at Rs. 3,10,00,000/- and its valuation as per DVO is Rs. 4,20,67,000/- and therefore, there is a difference of Rs. 1,10,67,000/-. The cost of construction of the property was also determined.
As per the assessee the construction was carried out from the assessment year 2006-07 to 2011-12. Assessee has shown total construction cost of Rs. 4,58,42,836/- whereas the DVO estimated the cost of construction at Rs. 6,17,04,000/- and therefore , as per DVO there were a difference of Rs. 1,58,61,166/- in the cost of construction declared by the assessee as well as the cost of construction estimated by ld DVO. The ld AO therefore, made an addition of Rs. 1,10,67,000/- with respect to difference of purchase value of land. He further made an addition of Rs. 1,04,941/- being the cost of construction shown by the assessee for this year at Rs. 3,24,898/- against the cost of construction estimated by the ld DVO at Rs. 4,29,839/- . 8. The assessee preferred an appeal before ld CIT(A) stating that on the basis of the valuation report no addition can be made as it is an assessment in case of search. Even otherwise the assessee submitted that there is no evidence available with the AO either during the course of search or during the course of post search enquiries with respect to unaccounted income invested in land as well as the cost of construction. The appellant has also contested against the initiation of proceedings u/s 153C of the Act. The ld CIT(A) dismissed the same. Even on the merits of the addition, she rejected the contention of the assessee for incorrect reference u/s 142A as well as infirmities pointed out in the valuation report. The assessee also pointed out comparative sale instances stating that DVO has taken double the rate of applicable rate in the area where the property is situated. The assessee also contested that the self supervision Page | 4 deduction in the cost of construction is also not granted. The ld CIT(A) rejected all these arguments except with case of minor reduction for self supervision, she upheld the addition. Against this, the assessee is in appeal before us.
The ld AR raised following arguments that Search took place on 10.11.2010, Assessment Year 2006-07 is concluded assessment, no incriminating material has been found during the course of search and therefore, no addition can be made in the hands of the assessee. He relied on the decision of the Hon'ble Delhi High Court in CIT Vs. Kabul Chawla 380 ITR 573. He stated that the statement u/s 132(4) couldn’t constitute an incriminating material in absence of any corroborative evidence.
On merits, The addition based on the DVO’s report cannot be sustained, and The reference to the DVO without finding an infirmity in the cost of construction and land acquisition cost disclosed by the assessee. Coming to the merits of the addition based on the report of the District valuation officer, He further pointed out several infirmities in the valuation report. Even otherwise he submitted a reconciliation of valuation shown by DVO as well as cost of construction incurred by the assessee. He submitted that for the stair case the valuer has estimated cost of Rs. 3 lakhs whereas the actual expenditure are only Rs. 1,16,000/-. Further, he submitted that there is no difference between the actual expenditure of architect of Rs. 2,23,113/- . He submitted that architect was also called by the ld CIT(A) and was examined. He further stated that sum of Rs 5 lakhs incurred for generator expenditure which are already accounted for on the basis of bills. He referred to page No. 19 of the order of the ld CIT(A) for this. He further stated that actual self supervision reduction @10% should have been allowed to the assessee whereas the ld CIT(A) has only considered 5%. He further stated that the amount of expenditure incurred by cheque is only been considered by the ld AO amounting to Rs. 1,48,42,836/- whereas the amount of cash withdrawal from bank of Rs. 22,75,000/- for construction expenditure is not at all considered. He submitted that if this infirmity are accepted then there is no difference and no addition could have Page | 5 been made. He further submitted that spouse of the assessee has further offered a sum of Rs. 1.87 crores and same is also settled in Vivaad Se Vishwas, which should also have been taken care for of investment in house property . He therefore, submitted that the addition made by the ld AO is also deserves to be deleted on the merits of the case.
The ld DR vehemently supported the orders of the lower authorities.
We have carefully considered the rival contentions and perused the orders of the lower authorities. We also considered several judicial precedents relied upon by the learned authorised representative.
The first argument of the learned authorised representative is that assessment year 2006 – 07 is a concluded assessment on the date of the search and no addition could have been made in the hands of the assessee in absence of any incriminating material found during the course of search. It is also the claim of the learned authorised representative that the addition has been made merely on the basis of the report of the District valuation Officer. For Assessment Year 2006-07 the assessee filed her return of income on 28.07.2006. The search took place on 10.11.2010, therefore, at the time of search the assessment for this assessment year was a concluded assessment. Same could have been only disturbed if there would have been any incriminating material found during the course of search. In the order of the ld AO as well as the ld CIT(A), we do not find that any incriminating material found during the course of search which even remotely shown that assessee has made a payment beyond what is recorded in her books of account for purchase of land and shown in the purchase deed of the property. The total addition of Rs. 1,10,67,000/- is made by the ld AO based on the report of the DVO. Further, the addition on account of cost of construction was also made on the basis of estimation of DVO determining the cost of construction. The Hon'ble Delhi High Court in CIT Vs. Kabul Chawla 380 ITR 573 categorically stated that in concluded assessment no addition could have been made in the hands of the assessee in absence of any incriminating material found during the course of search. The ld CIT(A) also Page | 6 called for remand report where the ld AO records that no incriminating material was found during the course of search. In view of this, as per ratio laid down by the Hon'ble Delhi High Court, we delete the addition made by the ld AO to Rs. 1,10,67,000/- on account of purchase price of land as well as the addition of Rs. 1,04,941/- on account of cost of construction for the reason that there is absence of any incriminating material found during the course of search supporting the above addition.
Accordingly, filed by the assessee and subsequently ground No. 1 and 2 of the assessee are allowed.
As we have held that there is no incriminating material found during the course of search the addition made by the ld AO is deleted hence other grounds does not deserve to be adjudicated.
Accordingly, appeal of the assessee for Assessment Year 2006-07 is allowed. Assessment Year 2007-08 17. Appeal for Assessment Year 2007-08 is against the addition made by the ld AO wherein, the ld AO has made an addition of Rs. 6,67,538/- towards the cost of construction based on the report of DVO.
The assessee filed her return of income was filed on 28/7/2007 and income declared at Rs. 3,44,480/- . The return of income was processed u/s 143 (1) of the act and no notice u/s 143 (2) of the act was issued to the assessee till 30/9/2008. The search took place on 10/11/2010. Assessment u/s 153A read with Section 143 (3), The ld AO assessed on 28 March 2013 at Rs. 10,02,019/- making the above addition of Rs. 6,57,538/-on account of cost of construction based on the report of DVO. In the present case also the facts are similar to Assessment Year 2006-07 where the addition has been made pursuant to search dated 10.11.2010 wherein, no incriminating material was found supporting by above addition. Honourable delhi high court in case of Chintels Idia Ltd V Deputy Commissioner Of Income Tax [2017] 84 taxmann.com 57 (Delhi)/[2017] 249 Taxman 630 (Delh) in paragraph number 21 and 22 has held as Under :- Page | 7
In the present case, the facts speak for themselves. The Assessee filed its return on 21st October, 2008. The return was processed under Section 143(1) of the Act on 27th March, 2010. It has held by this Court in Indu Lata Rangwala (supra) that the mere processing of a return under Section 143(1) of the Act and the sending of an intimation to the Assessee will not make it an 'assessment'. At the same time, the consequences of the Department not issuing a notice under Section 143(2) of the Act within the time stipulated as far as the filing of the return in normal course is concerned was not examined either in Kabul Chawla (supra) or Indu Lata Rangwala (supra). As notice by the Punjab & Haryana High Court in Vipan Khanna (supra), the CBDT circular makes it abundantly clear that once an Assessee does not receive a notice under Section 143(2) of the Act within the period stipulated then such an Assessee "can take it that the return filed by him has become final and no scrutiny proceedings are to be started in respect of that return."
The inevitable conclusion, therefore, in the present case, is that the ITAT was in error in holding that the assessment for AY 2008-09 should be treated as 'pending' whereas in terms of the above CBDT circular it should be treated as final in respect of which no scrutiny are to be started.
Thus it is apparent that on the date of search i.e. 10/11/2010, no notice u/s 143 (2) of the act was issued to the assessee before the expiry of the time available for issue of such notice, therefore, the assessment for assessment year 2007 – 08 was a concluded assessment and could have been disturbed only on the basis of the incriminating material found during the course of search.
The ld CIT(A) confirmed the above addition as per order dated 28.02.2018. 21. As the argument of all these were same, the assessment for assessment year 2007 – 08 is a concluded assessment on the date of search, we hold that on the date of search and therefore, the additions could not have been made in the hands of the assessee in absence of incriminating material. Accordingly, appeal of the assessee for Assessment Year 2007-08 is allowed.
Assessment Year 2008-09 22. CIT(A)-35, New Delhi dated 23.02.2017. The original return was filed by the assessee on 20.07.2008 declared income of Rs. 3,08,260/- . The return was Page | 8 processed u/s 143 (1) of the act. The due date for issue of any notice u/s 143 (2) of the act was available till 30/9/2009. The notice u/s 153A of the act was issued on 8 February 2013, Which was assessed by the ld AO of Rs. 26,21,679/- by order dated 28.03.2013 wherein, the addition of Rs. 23,13,420/- was made on account of difference in the cost of construction of house property based on the report of the DVO.
The ld CIT(A) confirmed the same.
We find that for Assessment Year 2008-09 order is also concluded assessment at the time of search on 10.11.2010 as notice u/s 143 (2) of the act would have been issued to the assessee only till 30/9/2009. Therefore the addition only could have been made for the assessee on the basis of the incriminating material found during the course of search. As the facts shown for Assessment Year 2006-07 that no incriminating material was found during the course of search. With respect to the above addition therefore, for the reason given by us for Assessment Year 2006-07 and 2007-08, the addition made in the hands of the assessee for this reason deserved to be deleted.
Accordingly, field by the assessee Assessment Year 2008-09 is allowed.
Assessment Year 2009-10 26. is filed for Assessment Year 2009-10 by the assessee against the order of the ld CIT(A)-42, New Delhi dated 28.02.2018.
The assessee filed her original return of income on 11.07.2009 declaring total income of Rs. 7,27,090/- . This return was processed u/s 143 (1) of the act. Admittedly, no notice u/s 143 (2) of the act was issued to the assessee. It was submitted that such notices could have been issued to the assessee by 30/9/2010. The search took place on 10/11/2010.
The learned assessing officer issued notice u/s 153A of the act on 8/2/2013. The assessment order u/s 153A was passed on 28.03.2013 pursuant to search dated 10.11.2010 wherein, the addition of Rs. 15,03,474/- was made on account of cost of construction or house repair based on the report of DVO.
The ld CIT(A) confirmed the above addition.
As the assessee has filed return of income on 11.07.2009, the time limit for issuance of notice u/s 132 expired on 30.09.2010 and the search took place on 10.11.2010 therefore those assessment year also is concluded assessment which could have been disturbed by the ld AO only on account of any incriminating material found during the course of search. Admittedly, the addition has been made by the ld AO merely on the basis of the valuation report of DVO therefore, in this assessment year the addition has been made by the ld AO and confirmed by the ld CIT(A) deserves to be deleted. Accordingly, appeal of the assessee for Assessment Year 2009-10 for the reason given by us for Assessment Year 2006-07 and 2008-09 the appeal of the assessee is allowed. Assessment Year 2010-11 31. ITA 3157/Del/2018 is filed by the assessee for ay 2010-11 raising the following grounds of appeal:- “1. THAT in the facts and circumstances of the case, the Learned CIT(A) erred in confirming the decision of the Learned A.O. in initiating proceedings u/s 153C.
2. THAT in the facts and circumstances of the case, the Learned CIT(A) erred in confirming the decision of the Learned A.O. in initiating proceedings u/s 153 A.
3. THAT in the facts and circumstances of the case, the Learned CIT (A) erred in confirming the reference made by Learned A.O. and seeking opinion of Valuation Department u/s 142(2A) of cost of land and cost of construction of building.
4. THAT in the facts and circumstances of the case, the Learned CIT(A) erred in confirming the decision of the Learned A.O. to refer the matter to seek opinion of the Valuation Department regarding the cost of construction of residential house by the appellant.
5. THAT in the facts and circumstances of the case, the Learned CIT (A) erred in confirming the decision of the Learned A.O. in not considering the cost of construction as mentioned in the Valuation Report obtained from Government Registered Valuer.
6. THAT in the facts and circumstances of the case, the Learned CIT (A) erred in holding that A.O. had referred the matter to valuation officer, after duly recording his satisfaction of the same.
7. THAT in the facts and circumstances of the case, the Learned CIT (A) erred in confirming the action of the Learned A.O. making reference and seeking opinion of valuation Department u/s 142(2A) of cost of land and building. 8. THAT in the facts and circumstances of the case, the Learned CIT (A) erred in not considering the objections in DVO’s Valuation pointed out by the assessee. 9. THAT in the facts and circumstances of the case, the Learned CIT(A) erred in confirming the decision of the Learned A.O. in not providing reasonable opportunity to the appellant. 10. THAT the CIT(A) erred in not considering entire evidence placed on record. 11. THAT the CIT(A) erred in confirming the action of the DVO/A.O in not considering the amount of expenditure in cash by the assessee. 12. THAT in the facts and circumstances of the case, Learned CIT(A) erred in confirming the decision of the Learned A.O. in not considering the details/dates/period over which construction of the residential premise was carried out. 13. THAT the Report of the Valuation Officer suffers from serious infirmities including non-consideration of factum of construction of premises under self supervision by assessee. 14. THAT the CIT(A) erred in allowing Self Supervision allowance only to the extent of 5% of the cost of construction. 15. THAT the CIT(A) erred in confirming the A.O/Valuation Officer view that expenditure had been incurred on horticulture of Rs. 2,00,000/-. 16. THAT the CIT(A) erred in not considering rates of purchase of marble paid by appellant, but confirmed the application of arbitrary rates for purchase of marble, other items. 17. THAT the CIT(A) erred in confirming the action of the DVO/A.O/ in not considering the amount of expenditure on the acquisition of Generator by company in which assessee’s spouse is director. 18. THAT in the facts and circumstances of the case, the Learned CIT (A) erred in confirming the decision of the Learned A.O. in not considering the factum of money for acquisition/construction of residential house has been made through receipts from the appellant’s spouse, Shri Madan Kukreja.
19. THAT in the facts and circumstances of the case, the Learned CIT (A) erred in confirming the decision of the Learned A.O. in taxing the investment in such residential property in the hands of appellant, and also again taxing the same in the hands of appellant’s spouse, Shri Madan Kukreja.
20. THAT in the facts and circumstances of the case, the Learned CIT (A) erred in confirming the addition of Rs. 85,595/- made by Learned A.O. 21. THAT the appellant craves leave to add, alter, amend or drop any of the above grounds at the time of hearing.”
32. The brief facts of the case shows that the assessee filed her return of income on 30.07.2010 declaring income of Rs. 5,82,240/- which was processed u/s 143 (1) of the act. The notice u/s 153A of the act was issued on 8/2/2013. Assessment was made at Rs. 6,67,838/- wherein, the addition of Rs. 85,595/- was made with respect to cost of construction pursuant to search dated 10.11.2010 based on the report of DVO. The ld CIT(A) confirmed the above addition.
33. We find that the above Assessment order is abated at the time of search, which took place on 10.11.2010. In view of this the addition is deserves to be considered on the merit of the case as learned assessing officer could have made an addition irrespective of any incriminating material found during the course of search. The assessee has submitted that addition has only been made based on report of DVO. In the present case, the addition is with respect to the cost of construction of residential property number C – 59, Friends Colony East, New Delhi during the period of construction of 2005 – 06 to 2010 – 11. The learned assessing officer has referred the cost of construction to the District valuation Officer New Delhi that was referred to the District valuation Officer on 02 – 01 – 2013. The learned DVO submitted the report on 22 March 2013. The assessee has declared the cost of construction at ₹ 45,842,836 whereas the learned DVO valued the same at ₹ 61,704,000. The learned valuation officer has categorically mentioned that that the valuation report has been prepared from the expenditure flow statement given by the assessee who has not been verified by the valuation Officer and the same needs to be verified by the assessing officer. In addition, in case it was also stated that any variation is found by the AO in respect of expenditure flow statement, the learned AO must once again refer the matter to the valuation Officer. The property was inspected on 8 February 2013. There is no purchase of land during this assessment year and therefore the issue with respect to only cost of construction is required to be examined. The assessee has disclosed the total construction cost of Rs. 148,42,836/–. Before the District valuation, Officer assessee submitted valuation report of its registered valuer who has calculated the construction cost of the building based on length area rate, which was rejected. The learned DVO calculated the plinth area rate is based on CP WD PAR 1959 and duly enhanced with the cost index. The respective rate for other miscellaneous items was also included. The learned assessing officer determine the cost of construction of buildings spread over in six different years at Rs 1 96,37,000/–. The assessee has pointed out several infirmities and one of the glaring mistakes that was pointed out by the assessee that the generator valued at ₹ 5 lakhs was included in the cost of construction whereas the assessee purchased an old generator and bill was also submitted before the lower authorities for the reference where the actual cost was only ₹ 402,000. The assessee also objected that the horticultural work has been valued at ₹ 2 lakhs which was merely a small page of grass on the open area and some flowerpots. Assessee also claims that there are cash withdrawals from syndicate bank by the assessee amounting to ₹ 2,275,000 which was invested in the construction of house only in such details were also placed at page number 99 of the paper book, assessee claims that the above amount of expenditure has not been considered by the learned District valuation Officer. With respect to the expenditure on staircase, it was submitted that the actual bill of such expenditure is, only ₹ 116,000 where the valuer is estimated the same at ₹ 3 lakhs. The architect fee which was valued by the ld DVO at ₹ 510,193 against the actual expenditure incurred by the assessee of only ₹ 287,080/–. In fact the architect was called by the learned CIT – A who filed its reply before the learned CIT – A confirming the above facts. Thus the only difference that Page | 13 remains is that the self-supervision was claimed by the assessee at the rate of 10% of the total cost incurred whereas the learned CIT – A agreed at the rate of 5% only. If all these adjustments are made to the valuation derived by the learned district valuation Officer the net valuation comes to Rs 1 65,66,117 only. Whereas the actual expenditure incurred by the assessee by cheque at Rs 1 48,42,836 and expenditure incurred by withdrawal from the bank account was ₹ 2,275,000 which totals at Rs 1 71,17,836. Therefore, it is apparent that assessee has incurred in fact hire some then what is the estimated cost of construction by the DVO subject to the above adjustment. The above adjustment was also produced by the assessee before the lower authorities, however, the same was not rejected, but the valuation made by the learned district valuation Officer was accepted. It is also apparent that the assessee’s spouse has already offered to tax and additional sum of Rs 187,76,223/– as is additional income. In view of the above facts, we do not find that there is any difference between the cost of construction determined by the learned district valuation Officer and the cost of construction incurred by the assessee.
34. The assessee relied on the decision of the Hon'ble Delhi High Court in CIT Lahasa Construction Pvt. Ltd 357 ITR 671, CIT Vs. Sadhana Gupta 352 ITR 595 for this proposition. During the course of appellate proceedings before the learned CIT – A, remand report was submitted by the AO on 15/7/2015 wherein para number 2.2 it was specifically stated that the reference to the valuation Officer for determining the cost of construction was made only on the basis that some substantial repair and alteration work was being carried out by the assessee at the time of search. Therefore, it is apparent that reference to learned DVO was made without first verifying the cost of construction shown by the assessee and without first making a specific observation that assessing officer does not have any confidence in the cost of construction submitted by the assessee. Unless the assessee is found to have incurred some additional expenditure which are not recorded in the books of accounts or for which source of withdrawal from the bank or the cash available with the assessee is Page | 14