2020 (10) TMI 1285 - AT - Income Tax

Appeal allowed as assessment reopening lacked evidence, based on assumptions. Addition from Valuation Officer report unjustified.

The Tribunal allowed the assessee's appeal, ruling that the reopening of the assessment under Section 147 was invalid as it lacked concrete evidence and ... Reopening of assessment u/s 147 - notice after the expiry of 4 years from the end of relevant Assessment Year - addition of estimated addition of alleged unaccounted investment - Addition on the basis of Valuation Report of DVO - CIT(A) while deleting the estimated addition recorded that there is no evidence with AO for such estimated additions and he directed the AO to obtain a report of DVO under section 142A - HELD THAT:- The onus was on the AO to bring evidence on record to prove that the assessee has paid more amounts while purchasing these three pieces of land, than what has been recorded in his books of account. The AO has neither recorded such averments in the reasons recorded nor raised any question the assessee during the assessment. The AO directly came on the conclusion on the basis of the report of DVO that assessee made investment which is not recorded in the books of assessee. The AO without discharging his onus directly concluded on unexplained investment. In our view section 142A merely speaks about the estimate of the valuation of investments. Estimate cannot take the place of actual investment. The Hon’ble Rajasthan High Court in Sardar Kehar Singh [1990 (11) TMI 32 - RAJASTHAN HIGH COURT] also held that it is well established that reopening of assessment on the basis of subsequent valuation report is not justified inasmuch as the report is nothing more than a mere opinion. Such a report by itself does not lead to a reasonable belief of concealment of income justifying action under clause (a) of section 147, nor does it constitute 'information' justifying action under clause (a) of the said section and quashed the notice under section 147. We are of the view that once the assessment under section 143(3) was completed and the AO has already made addition on the same issue, and on appeal it was deleted by ld CIT(A), the reopening of the assessment on the same issue on basis of report of DVO in not valid. Therefore, all subsequent action thereto is void-ab initio. Thus, the assessee succeeds on the legal issue. Even on merit we note that Hon’ble Jurisdictional High Court in Gayatri Enterprises [2019 (9) TMI 777 - GUJARAT HIGH COURT] held that unless it was established on record by department that as a matter of fact, consideration as alleged by department did pass to seller from purchaser, it could not be said that department had any right to make any additions. It was further held that as per section 69B, no addition could be made under said section merely on basis of presumption. We have noted that the AO has not brought any material on record that the assessee has paid/invested money in purchase of these three plots, which is not recorded in the books of the assessee. Thus, in view of the above discussions the assessee also succeeds on merit. - Decided in favour of assessee. Issues Involved:1. Validity of reopening of assessment under Section 147 after four years.2. Validity of reopening based on the District Valuation Officer (DVO) report.3. Legality of additions based on the DVO valuation report.4. Jurisdictional authority of the Assessing Officer (AO) in reopening the assessment.5. Legality of additions ignoring the market value of adjacent properties.Detailed Analysis:1. Validity of Reopening of Assessment under Section 147 after Four Years:The assessee contested the reopening of the assessment under Section 147, arguing it was time-barred as it was initiated after four years from the end of the relevant assessment year. The assessee claimed there was no failure on their part in disclosing all material facts necessary for the assessment. The AO's reopening was based on the DVO's valuation report, which was received after the initial assessment. The Tribunal found merit in the assessee's argument, noting that the AO did not provide evidence that the assessee had paid more than what was recorded in the books. The Tribunal concluded that the reopening was invalid as it was based on hypothetical assumptions without concrete evidence.2. Validity of Reopening Based on the DVO Report:The Tribunal examined whether the DVO's report could serve as a valid basis for reopening the assessment. It was noted that the initial assessment under Section 143(3) had already considered the investment in the three plots, and the CIT(A) had deleted the estimated additions due to lack of evidence. The Tribunal emphasized that a DVO's report is merely an opinion and cannot be the sole basis for reopening an assessment. Citing precedents from the Hon'ble Jurisdictional High Court and the Rajasthan High Court, the Tribunal held that reopening based on the DVO's report was not justified.3. Legality of Additions Based on the DVO Valuation Report:The assessee argued that the provisions of Section 50C, which deal with the valuation of capital assets, were not applicable to the purchaser. The Tribunal agreed, stating that the AO's reliance on the 2008 Jantri rates was misplaced as the relevant period was the assessment year 2006-07. The Tribunal also noted that the AO did not bring any material evidence to show that the assessee had paid more than what was recorded. Consequently, the Tribunal held that the additions based on the DVO's valuation were not valid.4. Jurisdictional Authority of the AO in Reopening the Assessment:The assessee contended that the AO lacked jurisdiction to reopen the assessment as the reference to the DVO was made by the CIT(A) after the completion of the initial assessment. The Tribunal found that the AO's reopening was beyond the four-year period and was based on the DVO's report, which was obtained after the initial assessment. The Tribunal concluded that the AO did not have the jurisdiction to reopen the assessment on this basis.5. Legality of Additions Ignoring the Market Value of Adjacent Properties:The assessee argued that the AO ignored the market value of adjacent properties while making the additions. The Tribunal noted that the AO relied on the DVO's valuation without considering the actual market conditions and the Jantri rates applicable during the relevant period. The Tribunal held that the AO's approach was flawed and that the additions were not justified.Conclusion:The Tribunal allowed the assessee's appeal, holding that the reopening of the assessment under Section 147 was invalid, the additions based on the DVO's report were not justified, and the AO lacked jurisdiction to reopen the assessment. The Tribunal emphasized the importance of concrete evidence and adherence to the relevant legal provisions and precedents. The appeal was allowed in favor of the assessee.