2017 (12) TMI 1389

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....e sake of convenience. 2. At the time of hearing before us, the assessee did not press the cross- objections bearing CO Nos. 25 & 26/Rjt/2011; hence, they are dismissed being not pressed. 3. So far as the appeals of the Revenue are concerned, at the outset, the learnedcounsel for the assessee points out that the appeals of the Revenue need to be dismissed on account of low tax effect in view of the CBDT Circular No.21 of 2015 dated 10.12.2015. The learned Departmental Representative fairly admitted that the tax effect is less than the limit prescribed by the aforesaid CBDT Circular. 4. Having heard the rival contentions and having perused the material on record, we find that prima-facie the appeals of the Revenue are not maintainable in view of CBDT Circular No. 21/2015 in F.No.279/Misc. 142/2007-ITJ (Pt) dated 10th December 2015, vide which it has been provided that if the tax effect by virtue of the Commissioner of Income-tax (Appeals)'s order is below Rs. 10 lacs, then that order would not be challenged before the Tribunal in further appeal. The Board has provided exemptions at clause (8) of the Instructions wherein it has been provided that these instructions will not ....

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....wing judgments in this regard:- i. Krishna Textiles vs. CIT, 310 ITR 227 (Guj) Where the revenue contends that any amount found with another person belongs to assessee, the burden was on revenue to prove that the same by brining proper evidence on record which the revenue has failed to discharged, therefore, addition under section 69C could not be made. Held : the burden was on the department to show that the money belonged to the assessee by brining proper evidence on record and the assessee could not be expected to call T and N in evidence to help the department to discharge the burden that lay upon it. The Apex Court, therefore, held that there was no evidence on the basis of which the Tribunal could come to the finding that the sum of Rs. 1,07,350 was remitted by the assessee and that it represented the undisclosed income of the assessee. [para 14] So far as alternative contention is concerned, we are at pains to observe that the Tribunal has very cursorily dealt with the alternative contention of the assessee. If it is presumed that the payments by demand drafts were made by the assessee to GMDC, then as a natural corollary, further presumpt....

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....rther placed reliance on the judgment of Hon'ble jurisdictional High Court in the case of CIT vs. Star Builders, reported in [2007] 294 ITR 338 (Gujarat), wherein it was held as under:- "Section 69 of the Income-tax Act, 1961 - Unexplained investments - Reference can be made to Valuation Officer for purpose of sections 55(A), 131, 133(6) and not for purpose of finding out Held that assuming but not accepting that some unexplained income had been invested in the construction, the fact remained that the business of the assessee was construction. If one added on account of unexplained income in the investment, that would give rise to the cost of construction and the result would remain the same i.e., "zero". Even otherwise also, the addition had been made on the basis of the Valuation Officer's report. The Supreme court has considered the issue "whether reference can be made to any Valuation Officer to find out the cost". They have taken the view in the case of Smt. Amiya Bala Paul v. CIT [2003] 262 ITR 407 (SC) that reference can be made to the Valuation Officer for the purpose of Section 55(A), 131, 133(6), 142(2) and not for the purpose of finding out the cost. Th....

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....- i. Sargam Cinema vs. CIT, 328 ITR 513 (SC) "In the present case, we find that the Tribunal decided the matter rightly in favour of the assessee inasmuch as the Tribunal came to the conclusion that the assessing authority could not have referred the matter to the Departmental Valuation Officer (DVO) without the books of account being rejected. In the present case, a categorical finding is recorded by the Tribunal that the books were never rejected. This aspect has not been considered by the High Court. In the circumstances, reliance placed on the report of the DVO was misconceived." ii. Goodluck Automobiles (P) Ltd vs. ACIT, 359 ITR 306 (Guj.) "12. The facts of the present case may be examined in the light of the statutory scheme discussed hereinabove as well as the decision of the Supreme Court in Sargam Cinema (supra). In this regard, a perusal of the assessment order reveals that the Assessing Officer has categorically recorded a finding to the effect that the accounts are duly audited and complete details are available. From the tenor of the order of the Assessing Officer, it is apparent that he has made the reference to the Valuation Office....