All the appeals arise out of the common order made by the ITAT. The Revenue contends that the direction of the ITAT to delete the amounts sought to be brought to tax under Section 153A of the Income Tax Act was unjustified. The assessees had purchased eight different properties; they are related to each other. The search operations were conducted in the premises of M/s Mehra Art Palace and its partners Arun Mehra, Subhash Mehra and Sushil Mehra on 27.03.1996. Mehra Art Palace was used to export as well as sell handicrafts in the domestic market. The allegations made by the Revenue against the firm and its partners were that the high profit margins enjoyed by it were concealed and only modest amounts were disclosed in the ITRs. After issuing notice, the AO taking into consideration the materials brought on the record referred the properties for valuation to the District Valuation Officer under Section 142A of the Income Tax Act. Based upon the report received which was considered after hearing counsel for the assessee, the AO made additions. The AO concluded that a comparison between declared value and the value determined (by the DVO) disclosed serious discrepancy. He, therefore, added the difference and brought them to tax in the block assessment orders.
Held by ITAT
The ITAT considered the submissions and concluded that the AO could not have brought to tax the amounts that he ultimately did merely based upon the DVO’s report in the absence of any material pointing to under valuation.
Held by Hon’ble High Court
We have considered the submissions. As apparent from the factual narrative, the materials collected in the search operations impelled the AO to complete the block assessment in this case. Conspicuously, however, there was no material in the course of the search or collected during the proceedings post search, pointing to under valuation of the assessees’ properties which were ultimately held to have been the subject of under valuation. Again, significantly the assessees had at relevant time when the actual purchases were effected disclosed the transactional value of those assets; the AO has then unreservedly accepted them. Wealth Tax authorities too had accepted the valuation. In almost identical circumstances, this Court in Navin Gera (supra) recollected the previous rulings – including the judgment of the Supreme Court in K.P. Varghese v. ITO, (1981) 131 ITR 597 (SC) and held as follows: –
“9. We do not find merit in the submission made by Ms. Suruchi Aggarwal that the concealed income was detected during the course of search or any evidence was found which would indicate such concealment. The seized material containing the sale deeds of the properties, which have been relied upon to make reference to the DVO, had already been declared to the Revenue by the respondent-assessee under the VDIS. We are also in agreement with the submission made by Mr. Piyush Kaushik that 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 understatement or concealment of income. It is only when such burden has been discharged, would it be permissible to rely upon the valuation given by the DVO. Further, the opinion of the DVO, per se, is not an information and cannot be relied upon in the absence of other corroborative evidence (See K.P. Varghese v. ITO (1981) 131 ITR 597 (SC), Civil Appeal No.9468 of 2003 (Asstt. CIT v. Dhariya Construction Co. (2010) 328 ITR 5151 (SC) decided by the apex court on February 16, 2010, CIT v. Shakuntala Devi (2009) 316 ITR 46 (Delhi), CIT v. Ashok Khetrapal (2007) 294 ITR 143 (Delhi) and CIT v. Manoj Jain (2006) 287 ITR 285 (Delhi).”
Likewise in Bajrang Lal (supra), too it was held that “it is settled law that the primary burden to prove understatement or concealment of income is on the Revenue and it is only when such burden is discharged it would be permissible to rely upon the valuation given by the DVO.”
The decision in Lahsa Constructions (supra), which is of more recent vintage also rules to the same effect: –
“Whether an addition can be made solely and on the basis of the report of the Departmental Valuation Officer, is no longer res integra and is covered by the decisions of this court in CIT v. S.K. Construction Co. (2008) 167 Taxman 171, CIT v. Navin Gera (2010) 328 ITR516/(201 1) 198 Taxman 93 (Delhi), CIT v. Smt. Suraj Devi, (2010) 328 ITR 604/(2011) 197 Taxman 173 (Delhi) (Mag.), and CIT v. Bajrang Lal Bansal (2011) 335 ITR 572/200 Taxman 188 (Mag.)/12 Taxmann 88 (Delhi). It has been repeatedly held that addition cannot be justified solely relying upon the valuation report. Decision of the Supreme Court in the case of K.P. Varghese v. ITO (1981) 131 ITR 597/7 Taxman 13 has been followed.
In view of the above decisions, it is held that the question of law formulated has to be answered against the Revenue and in favour of the assessees.