Judgment 1. Both the appeals arise out of an identical order dated August 21, 2000, passed by the Patna Bench of the Income-tax Tribunal in I.T.A. (ss)47/Pat/1997 and I.T.A. (ss)49/Pat/1997 and as such, they were heard together and are being disposed of by this common judgment. 2. Search and seizure operations under Section 132(1) of the Income-tax Act was conducted on August 31, 1996 in the residential premises of Bimla Singh, appellant in M.A. No. 46 of 2002 and the late Bindeshwari Prasad Singh. On his death, M.A. No. 51 of 2002 is being pursued by his son Nawal Kishore Singh. During the search, it was found that the assessee had made huge investment in a house property at Alka Colony in the town of Patna. According to the assessees Bimla Singh and Bindeshwari Prasad Singh, they had invested a sum of Rs. 11,15,000 in construction of the house but according to the report of the valuer, cost of construction is Rs. 12,99,700. 3. The Assistant Commissioner of Income-tax (hereinafter referred to as "the Assessing Officer"), gave notice to both of them and assessed the undisclosed income under Section 158BB of the Income-tax Act (for short, "the Act") to the extent of Rs. 1,19,212 so far as the assessee Bimla Singh is concerned and added said income in her hands. The Assessing Officer, found undisclosed investment to the extent of Rs. 32,401 so far as the assessee Bindeshwari Prasad Singh is concerned and added the said amount in his hands. On these undisclosed investment, tax was assessed. 4. Aggrieved by the same, both filed appeals before the Patna Bench of the Income-tax Tribunal. It was contended before the Tribunal that the difference between the cost of construction estimated by the departmental valuer and the cost disclosed by them being less than 15 per cent, and same is fit to be ignored. In support of the submission, reliance was placed on a decision of the Supreme Court in the case of K. P. Varghese v. ITO. This submission of the assessee has been negatived by the Tribunal in the following words: 4. We find that the provision for margin of 15 per cent, being variation of market value for the purpose of capital gain was made in Sub-section (2) of Section 52 which was omitted with effect from this assessment year. This submission of the assessee has been negatived by the Tribunal in the following words: 4. We find that the provision for margin of 15 per cent, being variation of market value for the purpose of capital gain was made in Sub-section (2) of Section 52 which was omitted with effect from this assessment year. Similarly Section 269C second proviso referred to by the authorised representative as regards the margin of 15 per cent. it can be pointed that Section 269C, etc., in Chapter XX-A have been substituted by Chapter XX-C with effect from October 1, 1986. In the new Chapter there is no provision for the margin of 15 per cent. 5. It was further contended before the Tribunal that no incriminating paper having been found during the search, on the basis of the valuer report obtained later on, no concealed income is assessable under Section 158BB of the Act. This submission of the assessee also did not find favour with the Tribunal. It observed as follows: 4.2 Section 158BB dealing with the methodology of computation of undisclosed income also adds that the Assessing Officer can base the undisclosed income on such further material or information as are available with him. We had decided that such other materials will not mean any other material or all other materials. That it means any other materials which may be relevant, to the search. That information has a reference to the information mentioned in Section 132(1) available with the authority issuing the authorization for search. In other words, if the information on the basis of which the search was authorised, is available with the Assessing Officer, he can also utilize the same for computing the undisclosed income. 6. Aggrieved by the same, the assessee Bimla Singh has preferred M.A. No. 46 of 2002 and by order dated January 12, 2006, the appeal was admitted on the following questions of law: (1) Whether the Tribunal was justified in treating the estimate of valuation as a part of the search as an other material, recovered in course of search under Section 158(b)(c) (sic 158BB) of the Income-tax Act. (2) Whether the Tribunal was justified in adding the aforesaid amount as an undisclosed income when the excess amount determined by the Department is less than 15 per cent. of the total investment. 7. (2) Whether the Tribunal was justified in adding the aforesaid amount as an undisclosed income when the excess amount determined by the Department is less than 15 per cent. of the total investment. 7. M.A. No. 51 of 2002 has been preferred by the heir of Bindeshwari Prasad Singh and by order dated September 13, 2006, it was directed to be heard along with M. A. No. 46 of 2002. In view of aforesaid, we proceed on an assumption that both the appeals have been admitted for hearing on the aforesaid questions of law and we have heard the counsel on that assumption. 8. Mr. Ajay Kumar Rastogi, appearing on behalf of the assessee-appellants as also Mr. Rishi Raj Sinha appearing on behalf of Revenue pray for consideration of the second question of law formulated above at the first instance. 9. We concede to their request. 10. Mr. Rastogi submits that there is a difference of less than 15 per cent, between the amount disclosed by the assessee in construction of the house and the report of the valuer and in that view of the matter, the same was fit to be ignored. In support of the submission, he has placed reliance on the judgment of the Supreme Court in the case of K.P. Varghese and our attention has been drawn to the following passage from the said judgment (page 615): It is obvious that if the restrictive condition of a difference of 15 per cent, or more between the fair market value of the capital asset as on the date of the transfer and the consideration declared in respect of the transfer were not provided in Sub-section (2), many marginal cases would, having regard to the possibility of difference of opinion in subjective assessment of the fair market value, fall within the mischief of that sub-section and the statutory measure enacted in that sub-section for determining the consideration actually received by the assessee would be applicable in all its rigour in such cases. This condition of 15 per cent. This condition of 15 per cent. or more difference is merely intended to be a safeguard against the undue hardship which would be occasioned to the assessee if the inflexible rule of thumb enacted in Sub-section (2) were applied in marginal cases and it has 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. 11. Mr. Rishi Raj Sinha, however, contends that the assessee had not challenged the valuation report and in such circumstance, the Assessing Officer rightly added in their hands the undisclosed investment in the house property. He points out that the scope of Section 52 of the Act, was under consideration before the Supreme Court and the said provision having been deleted, the judgment of K.P. Vargheses case, is of no assistance. 12. Having appreciated the rival submission, we find substance in the submission of Mr. Rastogi. True it is that the judgment of the Supreme Court in K. P. Varghese is in relation to capital asset in the light of Section 52 of the Act and that provision is deleted. However, we are of the opinion that in valuation of the house property, bona fide difference is bound to occur. In the absence of any statutory provision, no hard and fast rule can be laid down in regard to the percentage of difference, which can be ignored. It is well known fact borne out of practical experience that the determination of value of the house property by a valuer is generally a matter of estimate based to some extent on guess and despite utmost bona fide the estimate of the value of the house is bound to vary. In the present case, we are concerned with the house property and the difference between the assessee and the valuer is less than 15 per cent. Not only this the construction of the house spread over a period of 7 years. In the facts of the present case, we are of the opinion that the difference between the plea of the assessee on the issue on investment on house property and valuers report is so meagre that one can assume it to be bona fide difference, fit to be ignored. 13. In the facts of the present case, we are of the opinion that the difference between the plea of the assessee on the issue on investment on house property and valuers report is so meagre that one can assume it to be bona fide difference, fit to be ignored. 13. We are of the opinion, the Assessing Officer as also the Tribunal were not justified in adding the difference of amount between the income disclosed by the assessee and found by the valuer as undisclosed income. 14. Accordingly, answer to the second question is in the negative and it is held that the Tribunal was not justified in adding the amount as undisclosed income when the difference between undisclosed income by the assessee and the valuer is meagre. 15. In view of our answer aforesaid, Mr. Rastogi submits that the first question of law is rendered academic and we need not answer the same. 16. In the result, the appeals are allowed. The impugned orders of the Assessing Officer as also of the Tribunal so far as it relates to the house property, are set aside. 17. There shall be no order as to costs.