ACIT, NEW DELHI vs. SMT ANJU GUPTA, NEW DELHI

8.3. With regard to Calculation of FMV without Rejection of books of accounts, the ld. A.R. submitted that the ld. CIT(A) has held that :- a) The A.O. has not rejected the books of account before resorting to estimate the fair market value. b) AO cannot resort to the valuation of fair market value of an immovable property unless he rejects the books of accounts. The CIT (A) has placed reliance upon various judgments i.e., Asst. CIT vs. Dhariya Construction co.

(2010) 236 CTR (SC) 226, ITO vs. Arasen Subiah (2009) 20 DTR (Mad) 113, & ors Asst. CIT Vs. M/s Satya Realtors Pvt. Ltd.

CIT vs. Partap Singh Amro Rajinder Singh (1993) 200 ITR 788 (Raj.), CIT vs. and Bajrang Ram Bansal (2011) 335 ITR 572. c) The Hon'ble Court in the said case of CIT vs. Bajrang Ran Bansal (Supra) has also quoted the decision of Hon'ble Supreme Court in the case of Asst.

CIT vs. Dhariya Construction Co. (2010) 236 CTR (SC) 226, wherein it has been held that the report of the valuation officer is not information per se.

Further, the Hon'ble Court in the same case (CIT vs Bajrang) has reiterated that it was settled law that the primary burden of proof to prove the understatement or concealment of income is on the revenue and it is only when such burden is discharged that it would be permissible to rely upon the valuation given by the Distt. Valuation Officer. d) The AO has no powers under the Act to resort to estimation of Fair Market Value without rejecting the books of accounts, as held in the case of Sargam Cinema V. CIT (2010) 328 ITR 513(SC).

8.4. With regard to addition made by AO citing wrong section 69 the ld. A.R. submitted that it is not in dispute that the assessee has duly accounted for the cheque portion of the purchase consideration of the property in the books of accounts in so far as the addition made in respect of purchase transactions is concerned. In such circumstances, it is section 69B of the Act, which would be applicable. Therefore, action of the AO in invoking section 69 of the & ors Asst. CIT Vs. M/s Satya Realtors Pvt. Ltd.

Act is incorrect. Further, insofar as the addition made in respect of sale transactions of properties is concerned, it is section 45 of the Act, which would be applicable. Therefore, action of the AO of invoking section 69 of the Act for sale transactions is incorrect.

8.5. The Ld. A.R. submitted that no incriminating document/material belonging or pertaining or relating to the assessee showing receipt/payment of on-money in any property transaction was found during the course of search. a) Search on the Assessees did not yield any incriminating material on the basis of which it can be said that the assessee was indulging in understatement of consideration for purchase or sale of properties. b) AO did not have any documentary evidence, statement or any incriminating material showing understatement of purchase or sale consideration in respect of the property in question. c) The documents on which the Assessing Officer has placed reliance, were seized from a different person and not from the impugned Assessees and do not relate to the year under consideration in which the impugned Assessees bought or sold the properties and that no nexus between that person and the assessee has been established beyond doubt. In such circumstances, the seized material cannot be used against the assessee. & ors Asst. CIT Vs. M/s Satya Realtors Pvt. Ltd. d) CIT(A) has referred to the decision of Hon'ble Delhi High Court in the case of CIT v. Lachman Das Bhatia (ITA No. 1731, 1733, 1734/2010), wherein the Hon'ble jurisdictional High Court of Delhi laid down that the search on the assessee did not yield any incriminating material on the basis of which it can be said that the assessee was indulging in under-invoicing or suppression of sales. The documents on which the Assessing Officer has placed reliance, were seized from a different person and not from the assessee and that no nexus between that person and the assessee has been established beyond doubt. Further, the documents upon which the Assessing Officer placed reliance relate to a subsequent period and not to the year under consideration. In such circumstances, it has been held that the seized material cannot be used against the assessee.

8.6. The ld. A.R. submitted that no power bestowed by legislature upon AO to calculate FMV without finding any direct positive evidence of understatement of consideration by assessee, and Sec. 69B of the Act and Sec. 45 of the Act talk of actual consideration and not FMV and do not allow substitution of actual consideration by FMV. a) Relying upon the order of the Hon'ble High Court of Delhi in the case of CIT v. Dinesh Jain (HUF) (2013) 352 ITR 629 (Del) and CIT v. Agile Properties Pvt. Ltd. (ITA No. 176/2014), CIT(A) held that in order to invoke S. 69B, AO has to & ors Asst. CIT Vs. M/s Satya Realtors Pvt. Ltd. first "find" that the assessee has actually "expended" an amount which has not been fully recorded in his books of accounts. The burden is on the AO to prove that there is some amount that has been expended over and above what is recorded in the conveyance deed. The "finding" obviously should rest on evidence. Section 69B does not permit an inference to be drawn from the circumstances surrounding the transaction that the purchaser of property must have paid more than what was actually recorded in his books of accounts. Such action is not permitted for the simple reasons that such an inference could be very subjective and could involve the dangerous consequences of a notional income being brought to tax contrary to the strict provisions of Article 265 of' the Constitution of India and the Seventh Schedule thereto which deals with "taxes on income other than the agriculture income. b) The CIT(A) held that the jurisdictional Hon'ble Court of Delhi has come down heavily against resorting to estimation of Fair Market Value to the application of section 69B of the Income Tax Act. The AO is required to find out the real and actual consideration paid by the assessee and to see whether such consideration has been recorded in the books. c) It is clear that AO can disturb the value recorded in the conveyance deed only and only if he has positive evidences of extra consideration having changed hands in the transaction. Page 15 of 22 & ors Asst. CIT Vs. M/s Satya Realtors Pvt. Ltd. d) In the present case, the very fact that AO has resorted to estimation of excess consideration, itself, would show that AO did not have any positive evidence that any cash was exchanged in the purchase or sale of the property in question. AO is only assuming that there must have been exchange of unaccounted cash, because the group had done so in respect of two other properties and the group was allegedly involved in booking bogus expenditure and illegal payments in CWG (common wealth games project). e) The wordings of Section 69 are such that they, in fact, do not permit any assumption of understatement of amount; rather it requires AO to exactly point out the precise amount paid or received. AO is not only required to prove understatement of purchase price, but also to show precise extent of the understatement. There is no authority given by the section to adopt some reasonable yardstick to measure the extent of understatement. f) In the absence of any direct evidence to the effect that the price settled between the parties is anything other than the agreed consideration as appearing on the sale documents or any other instrument, "full value of consideration" or "cost of investment" cannot be substituted by the fair market value, except in the case falling within the purview of Sec. 50C and Sec. 56(l)(vi)/(vii), which lays down the statutory fiction that the circle rate of property shall be substituted for the recorded transaction if the former is found to be more than the latter; however, in this case, the consideration as Page 16 of 22 & ors Asst. CIT Vs. M/s Satya Realtors Pvt. Ltd.

per registered conveyance deeds is invariably higher than valuation as per circle rate. AO has not brought on record any evidence which would allow him to substitute the recorded consideration by any other figure as permitted under the law, to arrive at "full value of consideration". g) Obviously, AO did not have any documentary evidence, statement or any incriminating material showing understatement of purchase or sale consideration in respect of the property in question; therefore, he could not have jumped to the step of ascertaining the fair market value. There is no allegation of the value recorded in the conveyance deed being less than the circle rates. In fact, the consideration is higher than the value as per circle rates. h) During course of hearing before Hon'ble Tribunal, besides relying upon the order of CIT (A), the Assessee has further relied upon the case of PCIT v.

Shivakami Co. Pvt. Ltd (1986) 159 ITR 71 (SC), Hon'ble Supreme Court has Page 17 of 22 & ors Asst. CIT Vs. M/s Satya Realtors Pvt. Ltd. held that unless there is evidence that more than what was stated was received, no higher price can be taken to be the basis for computation of capital gains.

8.7. The Ld. A.R. submitted that value as per registered sale deed is higher than circle rate: a) Just like section 50C authorizing substitution of declared sales consideration by circle rate value in case of sale of property, analogues provision for purchase of property lies in section 56(2)(vi)/(vii). The section lays down that even if fair market value of a property exceeds circle rate, the purchase consideration in the case of purchase of property or full value of consideration in case of sale of property cannot exceed circle rate value. Thus, there is no provision in the Act in the nature of deeming fiction authorizing the AO to substitute any value higher than circle rate value in place of actual consideration. There is no room for FMV exceeding circle rate value. b) Hence, Assessing Officer has no authority or power under the Act to substitute fair market value to the value declared by the assessee in duly registered conveyance deed which in itself is higher than the circle rate notified by the Government.

8.8. The ld. A.R. submitted that complete assessment cannot be disturbed without any nexus with seized material: & ors Asst. CIT Vs. M/s Satya Realtors Pvt. Ltd. a) The CIT(A) relied upon the decision of the Hon'ble Delhi High Court in the case of CIT vs. Kabul Chawla (2015] 61 Taxmann 412 (Delhi) dated 28.08.2015, in which Hon'ble Court held that completed assessment can be interfered with by the Assessing officer while making the assessment under section 153A only on the basis of incriminating material pertaining to the person searched upon unearthed during the course of search or undisclosed income or property discovered in the course of search which were not produced or not already disclosed or made known in the course of original assessment. b) CIT(A) held that there is no incriminating documents relating to the impugned Assessees which has been unearthed by the department during the search and seizure action. c) Pertinently, the above order in the case of Kabul Chawla (supra) has been affirmed by Hon'ble Supreme Court in PCIT v. Abhisar Buildwell Pvt. Ltd. (Civil Appeal No. 6580 of 2021).

8.9. Finally, the ld. A.R. submitted that the ld. CIT(A) held that it is clear that the AO has travelled beyond his powers to make addition u/s 69 in respect of purchase or sale of property.

Act on 28.10.2010. The ld. AO compared the value mentioned in the sale deed of these properties with the fair market value of these properties calculated by him making strange assumptions and brought the difference between these two as undisclosed incomes of the assessee. However, these additions are not based on any corroborative materials to suggest that there was payment or receipt of money over and above the sale deed. In other words, these Assessees have registered properties with the registration authorities as applicable valuations for the purpose of registration. In order to make addition as undisclosed income in these cases, the burden is on the revenue to prove that the Assessees herein have invested in any property or sold the property over and above what is in the sale deeds. It is noted that there is nothing on record to show that the Assessees herein had made any investment or recived consideration in addition to what has been disclosed in the sale deeds. In our opinion, no addition could be made in the hands of present Assessees on the basis of presumption when the valuation mentioned in the sale deed has been accepted by the registration authorities.

make enquiry under the Act from such sellers and buyers, the AO for the reasons best known to him did not make any such enquiry. Thus, the onus on the department to prove that investment was made by Assessees or sale consideration received by the Assessee, as the case may be was in fact more than that depicted in the sale deed did not get discharged at all. In our opinion, the Ld. CIT (A) has rightly held that ld. AO cannot substitute the apparent consideration mentioned in the sale deed so as to adopt the market value without bringing any material on record to show that consideration disclosed in the sale deed is in excess of the value adopted by the assessee and in our opinion, the ld. AO cannot simply make additions on the basis of fair market value of the property. Being so, we do not find any infirmity in the orders of ld. CIT(A) and we uphold the same. The grounds raised by revenue in the captioned appeals are dismissed.