Commissioner Of Income Tax ... vs M/S. Jaipur Golden Transport Co. ...
2010 Latest Caselaw 4170 Del

Citation : 2010 Latest Caselaw 4170 Del
Judgement Date : 9 September, 2010

Delhi High Court

Commissioner Of Income Tax ... vs M/S. Jaipur Golden Transport Co. ... on 9 September, 2010

Author: Manmohan

                                                                                     #46
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*       IN THE HIGH COURT OF DELHI AT NEW DELHI


+       ITA 1387/2010


COMMISSIONER OF INCOME TAX DELHI-III ..... Appellant
                  Through: Ms. Suruchii Aggarwal, Advocate

                        versus

M/S. JAIPUR GOLDEN TRANSPORT
CO. (REGD.)                                                        ..... Respondent

Through: None.

% Date of Decision: 09th September, 2010

CORAM:

HON'BLE THE CHIEF JUSTICE HON'BLE MR. JUSTICE MANMOHAN

1. Whether the Reporters of local papers may be allowed to see the judgment? No.

2. To be referred to the Reporter or not? No.

3. Whether the judgment should be reported in the Digest? No.

MANMOHAN, J:

CM No.16222/2010 (exemption)

Allowed, subject to all just exceptions.

Accordingly, the application stands disposed of.

CM No.16223/2010

This is an application for condonation of delay in refiling the

appeal.

For the reasons stated in the application, delay in refiling the

appeal is condoned.

Accordingly, the application stands disposed of.

ITA 1387/2010

1. The present appeal has been filed under Section 260A of the

Income Tax Act,1961 (hereinafter referred to as "Act") challenging the

order dated 27th November, 2003 passed by the Income Tax Appellate

Tribunal (in short "Tribunal") in ITA No. 784/Del/2009 for the

Assessment Year 2004-2005.

2. Ms. Suruchii Aggarwal, learned counsel for the revenue

submitted that in the absence of transfer documents, Assessing Officer

(in short, "AO") could resort to fair market value of the property for the

purpose of Section 50 of the Act.

3. However, we find that the Tribunal has rejected the said

argument by observing as under:-

"44. We have heard both the parties and gone through the material available on record. From the order of CIT(A) it is clear that AO has worked out the difference in assets by making a reference to DVO. The AO had not brought any material on record to prove that assessee had received consideration more than what was mentioned in the sale deed. In the absence of any such evidence the value of assests transferred cannot be enhanced by making a reference to DVO. Accordingly in our considered opinion ld. CIT(A) has rightly deleted the addition......"

4. We are in agreement with the Tribunal as it is settled law that in

the absence of any incriminating evidence that anything has been paid

over and above than the stated amount, the primary burden of proof is

on the Revenue to show that there has been an under-statement or

concealment of income. It is only when such burden has been

discharged, it would be permissible to rely upon the valuation given by

the DVO (See K.P. Varghese Vs. ITO, (1981) 131 ITR 597 (SC), CIT

Vs. Shakuntala Devi, (2009) 316 ITR 46, CIT Vs. Ashok Khetrapal,

(2007) 294 ITR 143 (Del.) and Commissioner of Income Tax Vs.

Manoj Jain, (2006) 287 ITR 285 (Del.)).

5. In any event, the opinion of the DVO, per se, is not an

information and cannot be relied upon. The Supreme Court in its order

dated 19th October, 2009 in Civil Appeal No. 6973/2009 has held as

under:-

"Delay condoned.

Leave granted.

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 (AO) could not have referred the matter to the Departmental Valuation Officer (DVO) without books of accounts 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.

For the above reasons, the impugned judgment of the High Court is set aside and the order passed by the Tribunal stands restored to the file. Accordingly, assesee succeeds.

Civil Appeal is allowed. No order as to costs."

6. Further the Supreme Court in its order dated 16th February, 2010

in Civil Appeal No. 9468/2003 has held as under:-

"Having examined the record, we find that in this case, the Department sought reopening of the assessment based on the opinion given by the District Valuation Officer (DVO). Opinion of the DVO per se is not an information for the purposes of reopening assessment under Section 147 of the Income Tax Act, 1961. The AO has to apply his mind to the information, if any, collected and must form a belief thereon. In the circumstances, there is no merit in the Civil Appeal. The Department was not entitled to reopen the assessment.