Income Tax Appellate Tribunal - Ahmedabad
Solitaire Fabrics Pvt.Ltd., Surat vs Department Of Income Tax
IN THE INCOME TAX APPELLATE TRIBUNAL
AHMEDABAD BENCH "C" AHMEDABAD
Before Shri N.S.SAINI, ACCOUNTANT MEMBER and
Shri MAHAVIR SINGH, JUDICIAL MEMBER
ITA No.2576/ Ahd/2009
Assessment Year:2006-07
Date of hearing:10.11.09 Drafted:24.12.09
Income Tax Officer, V/s. Solitaire Fabrics Pvt.
W ard-4(3), Range-4, Ltd., 130-131, Super
Room No.220, Aayakar Yarn market, Zampa
Bhavan, Surat Bazzar, Surat
PAN No. AAJCS5196B
(Appellant) .. (Respondent)
Appellant b y :- Shri M.C. Pandit, Sr.DR
Respondent by:- Shri Manaj Makhania, AR
ORDER
PER Mahavir Singh Judicial Member:-
This appeal by the Revenue is arising out of the order of Commissioner of Income-tax (Appeals)-III, Surat in appeal No. CAS/III/121/08-09 dated 20-07-2009. The assessment was framed by the Income-tax Officer, Ward-4(3), Range-4, Surat u/s. 143(3) of the Income-tax Act, 1961 (hereinafter referred to as 'the Act') vide his order dated 21-10-2008 for the assessment year 2005-06.
2. The only issue in this appeal of the Revenue is against the order of CIT(A) deleting the addition made by the Assessing Officer on account of unaccounted investment in purchased of land u/s.69B of the Act. For this, the Revenue has raised the following effective ground:-
"[1] On the facts and in the circumstances of the case and in Law, the Ld. CIT(A)-III, Surat has erred in deleting the addition of Rs.6,94,373/- made on account of unaccounted investment in purchase of land u/s.69B of the Act."ITA No.2576/Ahd/2009 A.Y. 2006-07
ITO Wd-4(3) Surat v. Solitaire Fabrics Pvt. Ltd. Page 2
3. The brief facts leading to the above issue are that the assessee-company is engaged in trading of yarn and filed its return of income for the assessment year 2006-07 on 22-12-2006. After processing return u/s.143(1) of the Act, the Assessing Officer issued notice u/s.143(2) r.w.s 142(1) of the Act. The assessee's accounts were audited and assessee produced books of account including the bills and vouchers, which are examined by the AO. The AO during the course of assessment proceedings noticed from the documents of land purchase at survey No.146/3 Block No.222 at Kamraj Dist. Surat for which the assessee paid Stamp Duty of Rs.58,744/- amounting to Rs.3,47,165/- as per document. The assessee-company paid extra stamp duty of Rs.87,494/- on account of stamp duty valuation of Rs.10,41,538/-. For that a show cause notice was issued on 05-09-2008, which reads as under:-
"During the course of assessment proceedings, it has been found that, you have invested in immovable property at Karanj, Tal: Mandvi, Dist. Surat, as details below:-
Sr Descriptio Consideratio Value as Differenc Amoun Amount Excess No n n as per per Stamp e t of of amount sale deed Duty 32 (Rs) Stamp addition of .
(Rs) "C" Duty al Stamp Stamp
valuation (Rs) Duty, as Duty
(Rs) per deed (Rs.)
(Rs)
1. S.No. 2,67,540/- 8,02,538/- 5,34,998/ 58,744/ 87,494/- 28,750/
146/3
- - -
Block
No.2 At
Karanj
2. -do- 11,375
34,200/- 22,824/-
3. -do- 68,250/- 2,04,800/- 1,36,550/
-
TOTAL 3,47,165/- 10,41,538 6,94,373/
/- -
From the above, it is evident that, you have paid excess stamp duty of Rs.28750/- on the difference in value of additional Jantri value, and consideration as per sale deed i.e. Rs.6,94,373/-. As you have not raised any objection nor have you disputed Jantry value or the additional Stamp Duty, it ITA No.2576/Ahd/2009 A.Y. 2006-07 ITO Wd-4(3) Surat v. Solitaire Fabrics Pvt. Ltd. Page 3 is held that total investment of Rs.7,23,03/- as not explained u/s.69B of the IT Act.
In this connection, you are hereby requested to show cause as to why the above sum of Rs.7,23,023/- should not considered as unexplained investment u/s.69B of the Act and added to the total income accordingly.
Your explanation to this show cause notice may be sent to reach this office seven days from the receipt of the notice. In case of failure in your part to comply with this notice, it will be resumed that, you do not have any explanation or reply to offer."
4. The assessee replied to the show cause that so far as payment of additional duty to the Collectorate is concerned, it was worked out by the Revenue authorities based on Circular/Jantri on value of the land in that particular area or Circle. The assessee stated that there is no relation between purchase consideration of the land and the Circle/Jantri value arrived at by the Revenue authorities. It was stated that the additional duty of the land was paid but no objection has been raised due to the following reasons:-
"1) Sir, we had placed order at Korea to purchase second hand Imported Water jet Looms and applied for Term Loan and Cash credit facility from Bank of Baroda, Salabatpura Branch, Surat against Equitable Mortgage of land and building.
ii) Sir, on 16.03.2006, bank has sanctioned Term Loan of Rs.54.00 Lac and cash Credit facility of Rs.40.00 lac. To avail disbursement from bank, we have to deposit title documents of the property with the bank to create equitable mortgage.
iii) As per condition with the machine supplier, we have to make payment by letter of credit in March' 2006 through our Term Loan Account. To avail disbursement mentioned above, hence, we had release our Regd. Deeds of Land by paying Additional Stamp Duty on 28.03.2006.
iv) Sir, if, we raise any objection against the disputed jantary value of additional stamp duty, then, we couldn't create equitable mortgage, with the bank and unable to avail the disbursement of loan.
v) Hence, looking to the fixed cost of project and development of project, we had paid additional stamp duty without raising any objection of disputed jantary value."ITA No.2576/Ahd/2009 A.Y. 2006-07
ITO Wd-4(3) Surat v. Solitaire Fabrics Pvt. Ltd. Page 4 After considering the arguments of the assessee, the Assessing Officer made addition of undisclosed investments u/s.69B of the Act, by giving following finding in para-5 of his assessment order:-
"5. Considering the above fact and argument made by the assessee- company, is not satisfactory, it is open secret that in Immovable transaction one of the beigest mode investing black money. Non of the immovable property would be ever sold on fair market value specially in area like Surat and other Industrial area situated surrounding Surat city and within reachable distance, the price disclosed in the document that is sale deed apparently makes mockery of the rule of economy. In this case value of the immovable property i.e. open plot of land for the purpose of payment of was less than value adopted by the stamp valuation authority, the difference between the sale consideration shown in the sale deduction and the value adopted by the stamp valuation authority worked out of Rs.6,94,373/- (Rs.10,41,538/- 3,47,165/-) Considering the payment of stamp duty whether regular or additional the corresponding value come to Rs.10,41,538/- it is therefore believed that differed value for purchase of land amounting to Rs.6,94,373/- (Rs.10,41,538/- 3,47,165/-) were out of books of account i.e. on money, as company has not made any objection against the addition of valuation made by the stamp valuation office and also agree to pay extra stamp duty of Rs.28750 (Rs.87494 - Rs.58744/-), I therefore, made addition of Rs.6,94,373 (10,41,538 - 3,47,165) as unexplained investment u/s.69 of the I.T. Act and consequently initiated the Concealment penalty u/s.271(1)© for furnishing inaccurate particulars or cancel the Income separately."
5. Aggrieved, the assessee preferred appeal before CIT(A) and CIT(A) relying on the Tribunal's decision in the case of Bharatkumar N Patel v. ACIT in ITA No.1749/Ahd/2008 dated 29-08-2008 has deleted the addition by giving following finding in para-5 and 6 of his appellate order:-
"5. I have carefully considered the facts of the case, the submissions made by the learned AR and the judgment relied on by the Assessing Officer as well as by the learned AR. It is seen that the appellant's case is squarely covered by the order of Hon'ble ITAT, Ahmedabad dtd. 29.8.2008 in ITA No.1749/Ahd/2008 in the case of Bharatkumar N Patel Vs ACIT for the A.Y., 2005-06, wherein a similar addition made u/s.69B of the Act has been deleted by the Hon'ble jurisdictional Tribunal with the following observations:-
'10. After careful consideration of the rival submissions, facts and circumstances of the case, provisions of law as well as decision(s) of Hon'ble Supreme Court and various Benches relied upon by the parties, we are of the opinion that the CI(Appeals) was not justified in confirming the addition by drawing the analogical provisions of section 50C of the Act. The CIT(Appeals) confirmed the addition by observing that if this proposition is to be accepted, then the deeming provisions of section 50C of the Act will become inoperable. He, further, held that ITA No.2576/Ahd/2009 A.Y. 2006-07 ITO Wd-4(3) Surat v. Solitaire Fabrics Pvt. Ltd. Page 5 section 50C of the Act is applicable to the seller and provides that the valuation made by the Stamp Valuation Authority is to be deemed as the consideration received by the seller. Having said so, the CIT (Appeals) further held that "The converse will also have to be accepted as true, i.e. the valuation of the Stamp Valuation Authority will have to be deemed as the consideration paid by the purchaser of the property as well.' 10.1 We are unable to agree with the aforesaid analogy drawn by the CIT (Appeals) because had the legislature intended to it could have easily specified such a proposition in the provision itself.
11. In view of the settled proposition of law that the Appellate Authority has no right either to add or to delete any word from the provisions of law unless and until the same are found to be having some ambiguity, we are unable to sustain the stand of the CIT (Appeals), there being no ambiguity in the section 50C of the Act, we are of the opinion that these provisions are not applicable to the purchaser."
6. In the aforesaid facts and circumstances of the case and the legal position in the matter, respectfully following the decision of Hon'ble ITAT, Ahmedabad in the case of Shri Bharatkumar N Patel (Supra), the addition of Rs.8,39,325/- made u/s.69B is deleted. This ground of appeal is allowed."
Before us the Ld. Counsel for the assessee relied on the order of CIT(A) and also on decision in the case of Shri Bharatkumar N Patel (supra). On the other hand, Ld. Sr. Departmental Representative relied on the assessment order.
6. We have heard the rival contentions and gone through the facts and circumstances of the case. We have also perused the case records including the assessment order as well as the order of CIT(A). Now the only issue in this appeal of the Revenue is that, whether the provision of Section 50C of the Act applies to purchaser or not. For this, we have to go to the relevant provision of Section 50C of the Act as introduced by Section 24 of the Finance Act, 2002 with effect from 1-4- 2003, for and from assessment year 2003-04, namely:-
"S.50C. Special provision for full value of consideration in certain cases, - (1 Where the consideration received o accruing as a result of the transfer by an assessee of a capital asset, being land or building or both, is less than the value adopted or assessed by any authority of a State Government (hereinafter in this section referred to as the "stamp valuation authority") for the purpose of payment of stamp duty in respect of such transfer, the value so adopted or assessed shall, for the purposes of section 48, be deemed to be ITA No.2576/Ahd/2009 A.Y. 2006-07 ITO Wd-4(3) Surat v. Solitaire Fabrics Pvt. Ltd. Page 6 the full value of the consideration received or accruing as a result of such transfer.
(2) Without prejudice to the provisions of sub-section (1), where -
(a) the assessee claimed before any Assessing Officer that the value adopted or assessed by the stamp valuation authority under sub-
section (1) exceeds the fair market value of the property as on the date of transfer;
(b) the value so adopted or assessed by the stamp valuation authority under sub-section (1) has not been disputed in any appeal or revision or no reference has been made before any other authority, court or the High Court, the Assessing Officer may refer the valuation of the capital asset to a Valuation Officer and where any such reference is made, the provisions of sub-sections (2), (30, (4), (5) and (6) of section 16A, clause (i) of sub-section (1) and sub-sections (6) and (7) of section 23A, sub-section (5) of section 24, section 34AA, section 35 and section 37 of the Wealth-tax Act, 1957 (27 of 1957), shall, with necessary modifications, apply in relation to such reference as they apply in relation to a reference made by the Assessing Officer under sub-section (1) of section 16A of that Act.
Explanation - For the purposes of this section "Valuation Officer" shall have the same meaning as in clause ® of section 2 of the Wealth-tax Act, 1957 (27 of 1957).
(3) Subject to the provisions contained in sub-section (2), where the value ascertained under sub-section (2) exceeds the value adopted or assessed by the stamp valuation authority referred to in sub-section (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."
7. The relevant provision of Section 50C of the Act was explained and elaborated in the following portion of the Departmental Circular No.8 of 2002 dated 27-08-2002, as under:-
"37. Computation of capital gains in real estate transactions, - 37.1 The Finance Act, 2002 has inserted a new section 50C in the Income-tax Act to make a special provision for determining the full value of consideration in cases of transfer of immovable property.
37.2 It provides that where the consideration declared to be received or accruing as a result of the transfer of land or building or both, is less than the value adopted or assessed by any authority of a State Government for the purpose of payment of stamp duty in respect of such transfer, the value so ITA No.2576/Ahd/2009 A.Y. 2006-07 ITO Wd-4(3) Surat v. Solitaire Fabrics Pvt. Ltd. Page 7 adopted or assessed shall be deemed to be the full value of the consideration, and capital gains shall be computed accordingly under section 48 of the Income-tax Act.
37.3 It is further provided that where the assessee claims that the value adopted or assessed for stamp duty purposes exceeds the fair market value of the property as on the date of transfer, and he has not disputed the value so adopted or assessed in any appeal or revision or reference before any authority or Court, the Assessing Officer may refer the valuation of the relevant asset to a Valuation Officer in accordance with section 55A of the Income-tax Act. If the fair market value determined by the Valuation Officer is less than the value adopted for stamp duty purposes, the Assessing Officer may take such fair market valu9e to be the full value of consideration. However, if the fair market value determined by the Valuation Officer is more than the value adopted or assessed for stamp duty purposes the Assessing Officer shall not adopted such fair market value and shall take the full value of consideration to be the value adopted or assessed for stamp duty purposes.
37,4 This amendment will take effect from 1st April, 2003, and will, accordingly, apply in relation to the assessment year 2003-04 and subsequent years [Section 4]".
8. We further find that this provision was elaborated in the Notes on clauses and Memo. Explaining Provisions in the Finance Bill, 2002 as under:-
Notes on Clauses:-
"Clause 24 seeks to insert a new section 50C in the Income-tax Act to provide for a special provision for full value of consideration in certain cases.
The proposed sub-section (1) of the said section seeks to provide that where the consideration received or accruing as a result of the transfer by an assessee of a capital asset, being land or building or both, is less than the value adopted or assessed by any authority of a State Government for the purpose of payment of stamp duty in respect of such transfer, the value so adopted or assessed shall be deemed to be the full value of the consideration received or accruing as a result of such transfer.
The proposed sub-section (2) of the said section seeks to provide that where the assessee claims before any Assessing Officer that the value adopted or assessed by the authority under sub-section (1) exceeds the fair market value of the property as on the date of transfer and the value so adopted or assessed by the authority under sub-section (1) has not been disputed in any appeal or revision or no reference has been made before any other authority, court or a High Court, the Assessing Officer may refer the valuation of the capital asset to a Valuation Officer, and where any such reference is made, the provisions of sub-sections (2), (3), (4), (5) and (6) of section 16A, clause
(i) of sub-section (1) and sub-sections (6) and (7) of section 23A, sub-section ITA No.2576/Ahd/2009 A.Y. 2006-07 ITO Wd-4(3) Surat v. Solitaire Fabrics Pvt. Ltd. Page 8 (5) of section 24, section 34AA, section 35 and section 37 of the Wealth-tax Act, 1957, shall, with the necessary modifications, apply in relation to such reference as they apply in relation to a reference made by the Assessing Officer under sub-section (1) of section 16A of that Act. The Valuation Officer shall be the Valuation Officer as defined in clause ® of section of the Wealth-
tax Act, 1957.
The proposed sub-section (3) provides that where the value ascertained under sub-section (2) exceeds the value adopted or assessed by the authority referred to in sub-section (1), the value so adopted or assessed by the authority shall be taken as the full value of the consideration received or accruing as a result of the transfer.
This amendment will take effect from 1st April, 2003, and will, accordingly, apply in relation to the assessment year 2003-2004 and subsequent years."
Memorandum Explaining Provisions of Section 50C in the Finance Bill, 2002, as under:-
" The Bill proposes to insert a new section 50C in the Income-tax Act to make a special provision for determining the full value of consideration in cases of transfer of immovable property.
It is proposed to provide that where the consideration declared to be received or accruing as a result of the transfer of land or building or both, is less than the value adopted or assessed by any authority of a sate Government for the purpose of payment of stamp duty in respect of such transfer, the value so adopted or assessed shall be deemed to be the full value of the consideration, and capital gains shall be computed accordingly under section 48 of the Income-tax Act.
It is further proposed to provide that where the as claims that the value adopted or assessed for stamp duty purposes exceeds the fair market value of the property as on the ate of transfer, and he has not dispute the value so adopted or assessed in any appeal or revision or reference before any authority or Court, the Assessing Officer ma refer the valuation of the relevant asset to a Valuation Officer in accordance with section 55A of the Income-tax Act. If the fair market value to be the full value of consideration. However, if the fair market value determined by the Valuation Officer is more than the value adopted or assessed for stamp duty purposes, the Assessing Officer shall not adopt such fair market value and will take the full value of consideration to be the value adopted or assessed for stamp duty purposes.
It is also proposed to provide that if the value adopted or assessed for stamp duty purposes is revised in any appeal, revision or reference, the stamp duty purposes is revised in any appeal, revision or reference, the assessment made shall be amended to re-compute the capital gains by taking the revised value as the full value of consideration.ITA No.2576/Ahd/2009 A.Y. 2006-07
ITO Wd-4(3) Surat v. Solitaire Fabrics Pvt. Ltd. Page 9 These amendments will take effect from 1st April, 2003, and will, accordingly, apply in relation to the assessment year 2003-2004 and subsequent years. [Clauses 24 and 59]"
9. In view of the above provision and explaining the provision, we are of the view that the law u/s. 50C had been provided adequate protection to the tax-payers against adoption of arbitrary values for the computation of capital gains and the following precautionary are provided:-
(i) The value which is considered as the proper value of the property as fixed by the authority for registration for stamp duty purposes is presumed to be the fair market value for the purposes of computation of capital gains on the sale of property.
(ii) It is open to the taxpayer to plead that such stamp value is abnormal and contest the same in appeal under the stamp law requiring adoption of reduced value. If such value is reduced in appeal under the provisions of the relevant stamp law, such reduced value would alone be adopted.
(iii) Where such stamp value is not disputed, it is open to the assessee to require the Assessing Officer to refer the valuation to the Valuation Officer, who shall fix the valuation by adoption of the procedure prescribed under section 16A of the Wealth-tax Act. It is such value, which will be adopted by the Assessing Officer.
We further find from the Memorandum Explaining the provision of Section 50C in the Finance Bill, 2002, which clearly states that where the consideration declared to be received or accruing as a result of transfer of land or building or both is less than the value adopted or assessed by any authority of a Sate Govt. for the purposes of payment of stamp duty in respect of such transfer, the value so adopted or assessed shall be deemed to be the full value of the consideration and capital gains shall be computed accordingly u/s.48 of the Act. In case the value adopted or assessed for stamp duty purposes is revised in any appeal, revision or reference, the assessment made shall be amended to re-compute the capital gains by taking the revised value ITA No.2576/Ahd/2009 A.Y. 2006-07 ITO Wd-4(3) Surat v. Solitaire Fabrics Pvt. Ltd. Page 10 as the full value of consideration. Accordingly, we are of the view that the provisions of section 50C are applicable only for the computation of capital gains in real estate transaction in respect to seller only and not for the purchaser. We find from Section 50C of the Act that it creates a legal fiction thereby apparent consideration is substituted by valuation done by Stamp Valuation Authorities and capital gains are calculated accordingly. Legal fiction cannot be extended any further and has to be limited to the area for which it is created. Hon'ble Andhra Pradesh High Court in Addl. CIT v. Durgamma P. (1987) 167 1TR 776 (AP) held that it is not possible to extend the fiction beyond the field legitimately intended by the statute. The Hon'ble court was dealing with the provisions of sec. 171(1) of the I.T.Act in the context of which it was held that joint family shall be deemed to continue for the limited purpose of assessing cases of joint families which have been hitherto assessed as such. It Is not possible to extend that fiction to other cases. Similar view was taken by the Hon'ble Kerla High Court in CIT v. Kar Valves Ltd. (1987) 168 ITR 416 (Ker.) wherein it is held that legal fiction is limited to the purpose for which they are created and could not be extended beyond that legitimate frame, Hon'ble Kerala High Court was dealing with the case where assessee sought to take advantage of sec.41(2) by submitting that if liabilities are not liquidated and outstanding are not collected, then business could be deemed to continue. Hon'ble Allahabad High Court in Controller of estate Duty v. Krishna Kumar Devi (1988) 173 ITR 561 (All) held that in interpreting the legal fiction the court should ascertain the purpose for which it was created 2nd after doing so assume all facts which are logical to give effect to the fiction, Hon'ble Supreme Court in CIT v. Mother India Refrigeration Pvt. Ltd. (1985) 155 ITGR 711 (SC) held that legal fictions are created only for some definite purpose and they must be limited to that purpose and should not be extended beyond that legitimate field. In CIT v, Bharani Pictures (1981) 129 ITR 244 (Mad,) it is held that legal fictions are for a definite purpose and are limited to the purpose for which they are created and should not be extended beyond its legitimate field. The statutory fiction introduced in one enactment cannot be incorporated in another enactment. The point that legal fiction cannot be extended to a new field was highlighted by Hon'ble Madras High Court in CIT v. Rajam T.S, (19SS) 125 ITR 207(Mad,) wherein it is held that section 41(2) creates a legal fiction under which the balancing charge is treated as business income chargeable to tax but when this amount is distributed to shareholders then it would not become ITA No.2576/Ahd/2009 A.Y. 2006-07 ITO Wd-4(3) Surat v. Solitaire Fabrics Pvt. Ltd. Page 11 deemed dividend and it would be only a capital receipt and not distribution of accumulated profits. Thus, a legal fiction was invoked in the hands of the assessee company and was not extended in the hands of the shareholders. In the present case, section 50C creates a legal fiction for taxing capital gains in the hands of the seller and it cannot be extended for taxing the difference between apparent consideration and valuation done by Stamp Valuation Authorities as undisclosed investment U/s 69. In fact, section 69 itself is a legal fiction whereby investment into an asset is treated as income if it is not disclosed in the regular books of account. No further legal fiction from elsewhere in the statute can be borrowed to extend the field of section 69. It is for the legislature to introduce legal fiction to overcome difficulty in taxing certain receipts or expenditure which otherwise was not possible under normal provisions of the Act. It is with this purpose that when it was found difficult to prevent tax evasion by understating apparent sale consideration as compared to the valuation made by Stamp Valuation Authorities for the purposes of levying stamp duty then it was thought necessary to introduce section 50C for substituting apparent sale consideration by valuation done by Stamp Valuation Authorities. This fiction cannot be extended any further and, therefore, cannot be invoked by Assessing Officer to tax the difference in the hands of the purchaser. Hon'ble Madras High Court in CGT v, R. Damodaran (2001) 247 ITR 698 held that Stamp Valuation Authorities have their own method of evaluating the property. Merely because for the purpose of stamp duty, property is valued at higher cost, it cannot be said that assesses has made more payment than what is stated in the sale deed. Hon'ble Allahabad High Court in Dinesh Kurnar Mittal v. ITO (1992) 193 ITR 770 (All.) quashed the order of authorities below, wherein half of the difference between the amount paid and the value for purposes of stamp duty was added as income of the assessee by the Assessing Officer. It is held that there is no rule of law to the effect that the value determined for the purposes of stamp duty is the actual consideration passed between the parties to the sale. In the present case the Assessing Officer has applied this provision of Section 50C for the computation of unexplained investment u/s.69B of the Act and which is not permissible under the Act. Apart from the stamp duty valuation, there is nothing on record which suggests that the Revenue has proved that the assessee has accepted over and above, what has been recorded as purchase consideration of the land in the instrument i.e. the sale deed. We are in full agreement with the arguments of the ITA No.2576/Ahd/2009 A.Y. 2006-07 ITO Wd-4(3) Surat v. Solitaire Fabrics Pvt. Ltd. Page 12 assessee that Section 50C is not applicable in the case of purchaser and this provision being a deeming provision will apply for determining the full value of consideration as a result of transfer of capital assets for the purposes of computation of capital gains u/s.48 of the Act. We further find that there is no evidence on record to show that the consideration over and above, what has been recorded in the sale deed, has been made by the assessee and in the absence of the same, no addition of undisclosed investment can be made by invoking the provision of Section 69B of the Act. Accordingly, we confirm the order of CIT(A) deleting the addition and this issue of the Revenue's appeal is dismissed.
10. In the result, Revenue's appeal is dismissed.
Order pronounced in Open Court on 08/01/2010
Sd/- Sd/-
(N.S.Saini) (Mahavir Singh)
Accountant Member Judicial Member
Ahmedabad,
Dated : 08/ 01/2010
*Dkp
Copy of the Order forwarded to :
1. The Appellant.
2. The Respondent.
3. The CIT(Appeals)-III, Surat
4. The CIT concerns.
5. The DR, ITAT, Ahmedabad
6. Guard File.
BY ORDER,
/True copy/
Deputy/Asstt.Registrar
ITAT, Ahmedabad