2014 (12) TMI 89

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.... documents not corroborated by cross examination or produced before the AO. (iii) Set aside the order of the CIT(A) and restore the matter back to the AO to re-examine fresh evidence in a holistic manner and as per law. The appellant craves the right to add any other ground of appeal. 3. The following grounds have been raised in ITA No. 2058/Del/2012 (A.Y. 2005-06):- (i) On the facts and circumstances of the case, the CIT(A) erred in deleting the addition of Rs. 13,88,590/- imposed u/s. 271(1)(c) of the I.T. Act, 1961. (ii) On the facts and circumstances of the case, the Ld. CIT(A) erred in accepting self serving documents not corroborated by cross examination or produced before the AO. (iii) Set aside the order of the CIT(A) and restore the matter back to the AO to re-examine fresh evidence in a holistic manner and as per law. The appellant craves the right to add any other ground of appeal. 4. The following grounds have been raised in ITA No. 2055/Del/2012 (A.Y. 2005-06):- (i) On the facts and circumstances of the case, the CIT(A) erred in deleting the addition of Rs. 42,19,375/- on account of unexplained investment. (ii) On the facts and circumstanc....

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.... Hon'ble High Court of Delhi in the case of CIT vs. Khoobsurat Resorts P Ltd. in ITA No. 776/2011 vide order dated 5.11.2012 and ITAT, Delhi Bench (to which, one of us the Judicial Member was the party) in the case of ITO vs. Smt. Himali Bansal in ITA No.3235/Del/2013 (AY 2008-09) vide order dated 13.8.2014. Ld. Counsel stated that assessee is a purchaser of property and not a seller of property. He also submitted that the addition in the hands of the assessee being a purchaser has been made only on the basis of difference between the circle rate of property and the price as per the registered sale deed. Based on the said addition penalty u/s. 271(1)(c) has also been imposed by the AO. Ld. Counsel of the assessee has also submitted that the aforesaid issue involved before the Bench is squarely covered by the decision of the Hon'ble Jurisdictional High Court and by the decision of the Co-ordinate Bench of the Delhi, ITAT. 10. Ld. DR on the other hand relied upon the order of the Assessing Officer. 11. We have heard both the counsel and perused the records, especially the orders of the lower authorities and judgments cited by the Ld. Counsel of the assessee. We find con....

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....elation to a reference made by the Assessing Officer under subsection (1) of section 16A of that Act. Explanation - For the purposes of this section "Valuation Officer" shall have the same meaning as in clause (r) of section 2 of the Wealth-tax Act, 1957 (27 of 1957). (3) Subject to the provisions contained in subsection (2), where the value ascertained under subsection (2) exceeds the value adopted or assessed by the stamp valuation authority referred to in subsection (1), the value so adopted or assessed by such authority shall be taken as the full value of the consideration received on accruing as a result of the transfer." 13. It is apparent from the above provision that a presumption that the sale price is higher can be drawn, if the circumstances spelt out in Section 50-C are fulfilled. This provision was challenged before the Madras High Court, in K.R.Palanisamy v. Union of India, [2008] 306 ITR 61 (Mad). The Court repelled the challenge, but nevertheless held that: "Sub-sections (2) and (3) of Section 50C provides further safeguard to the assessee, in the sense that if the assessee claims before the assessing officer that the value adopted by the stamp duty auth....

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....nothing to do with the question of burden of proof, for, the burden of establishing that there is an understatement of the consideration in respect of the transfer always rests on the revenue. The postulate underlying subsection (2) is that the difference between one honest valuation and another may range up to 15% and that constitutes the class of marginal cases which are taken out of the purview of sub-section (2) in order to avoid hardship to the assessee. It is, therefore, clear that sub-section (2) cannot be invoked by the revenue unless there is understatement of the consideration in respect of the transfer and the burden of showing that there is such understatement is on the revenue. Once it is established by the revenue that the consideration for the transfer has been understated or, to put it differently, the consideration actually received by the assessee is more than what is declared or disclosed by him, sub-section (2) is immediately attracted, subject of course to the fulfilment of the condition of 15% or more difference, and the revenue is then not required to show what is the precise extent of the understatement or in other words, what is the consideration actually r....

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....cluded in the statute book, to assess income on the basis of a similar fiction in the case of the assessee who acquires such an asset. No doubt, the declaration of a higher cost for acquisition for stamp duty might be the starting point for an inquiry in that regard; that inquiry might extend to analyzing sale or transfer deeds executed in respect of similar or neighbouring properties, contemporaneously at the time of the transaction. Yet, the finding cannot start and conclude with the fact that such stamp duty value or basis is higher than the consideration mentioned in the deed. The compulsion for such higher value, is the mandate of the Stamp Act, and provisions which levy stamp duty at pre-determined or notified dates. In the present case, the revenue did not rely on any objective fact or circumstances; consequently, the Court holds that there is no infirmity in the approach of the lower authorities and the Tribunal, granting relief to the assesse. This question is accordingly answered in favour of the assessee, and against the revenue." 12. We also find that force in the contention of the ld. Counsel of the assessee that the issue is also covered in favor of the assessee, i....