2012 (7) TMI 280 - AT - Income Tax

Tribunal rules against AO, burden of proof on Revenue, additions deemed unsustainable

Deputy Commissioner of Income Tax, Central Circle-20, Versus Mr. Abhinav Kumar Mittal  

The Tribunal upheld the CIT(A)'s findings, ruling that the AO's reference to the DVO under Section 142A was unjustified due to the lack of evidence ... Difference in the investment as shown by the assessee and as ascertained by DVO - CIT(A)deleted the addition considering disregard of legal provision of section 142A - Held that:- Provisions of section 142A can be invoked only where the assessee is first found to have made investment outside the books of accounts or where any such investment made by him is not fully disclosed in the books of accounts. It is only once this condition is satisfied, then the AO is entitled to make a reference u/s 142A to ascertain the quantum of such investment for making the addition u/s 69 or 69B. In the instant case however, there is nothing to suggest that any incriminating document was found and seized during the course of search or survey in the premises of the aforesaid groups and no reference whatsoever has been made by the AO to any material/evidence/information on the basis of which he could have found that the consideration shown by the assessee was less than the amount actually paid by him. Thus the condition precedent for making a reference to the DVO is not satisfied in the instant case - 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 DVO - in favour of assessee. Issues Involved:1. Validity of the CIT(A)'s order in law and facts.2. Deletion of addition of Rs. 59,78,938/- based on DVO's valuation.3. Legality of CIT(A)'s disregard for Section 142A provisions.4. Jurisdictional validity of AO's reference to DVO.Issue-wise Detailed Analysis:1. Validity of the CIT(A)'s Order in Law and Facts:The Revenue contends that the CIT(A)'s order is incorrect both legally and factually. The CIT(A) deleted additions made by the AO based on the DVO's valuation, arguing that the AO failed to provide any material evidence justifying the understatement of purchase consideration by the assessee. The CIT(A) emphasized that no incriminating material was found during the search to suggest that the assessee had made any investment over and above the declared amount.2. Deletion of Addition of Rs. 59,78,938/- Based on DVO's Valuation:The CIT(A) deleted the addition of Rs. 59,78,938/- made by the AO under Section 69 of the Income Tax Act. The AO had referred the valuation of certain properties to the DVO, who determined a higher value than what was declared by the assessee. The assessee argued that the DVO's comparable instances were outdated and not relevant to the period when the properties were purchased. The CIT(A) accepted the assessee's contention, stating that the AO did not provide any justifiable reason for the reference to the DVO and that no evidence was found during the search to indicate any understatement of purchase consideration.3. Legality of CIT(A)'s Disregard for Section 142A Provisions:The Revenue argued that the CIT(A) disregarded the legal provisions of Section 142A, which allows the AO to refer property valuations to the DVO. However, the CIT(A) held that Section 142A could only be invoked if there was material evidence suggesting that the investment was not fully disclosed in the books. The CIT(A) cited several case laws, including the decisions in Rajeshwar Nath Gupta (HUF) and Sunil Kumar Jain, to support the view that a reference under Section 142A requires preliminary evidence of undisclosed investment.4. Jurisdictional Validity of AO's Reference to DVO:The CIT(A) concluded that the AO's reference to the DVO was invalid as there was no material evidence to suggest that the purchase consideration was understated. The CIT(A) noted that the AO failed to provide any reasons for not accepting the valuation report submitted by the assessee. The CIT(A) also found that the DVO's valuation was based on incomparable sales instances, which were neither proximate in time nor characteristics.Conclusion:The Tribunal upheld the CIT(A)'s findings, stating that the AO's reference to the DVO under Section 142A was unjustified in the absence of any material evidence suggesting undisclosed investment. The Tribunal emphasized that the burden of proof lies with the Revenue to show that the real investment exceeds the declared amount. Since no such evidence was found during the search, the additions made by the AO were not sustainable. Consequently, the Tribunal dismissed the Revenue's appeal.