JUDGMENT : AKIL KURESHI, J. 1. This petition is filed for challenging a notice dated 04.12.2012 issued by the respondent Assessing Officer to reopen the petitioner's assessment for the assessment year 2008-09. 2. Brief facts are as under. 3. Petitioner is an individual. For the assessment year 2008-09, the petitioner had filed the return of income which was taken in scrutiny by the Assessing Officer. Order of assessment under section 143(3) of the Income Tax Act, 1961 (‘the Act’ for short) was passed on 31.12.2010 During the period relevant to assessment year 2008-09, the petitioner had purchased a bungalow at ‘Satyagrah Chhavni’, Ahmedabad, on 25.07.2007 for a sale consideration of Rs. 60 lakhs. It appears that while registering the sale deed, the stamp duty authorities of the State Government had demanded and assessee had paid an additional stamp duty of Rs. 1,34,256/- for the said sale. In the order of assessment, the Assessing Officer made no addition on the premise that the assessee had invested amount larger than the reflected sale consideration of Rs. 60 lakhs. He however, on 29.12.2010 had made reference to the District Valuation Officer (‘DVO’ for short) under section 142A of the Act, calling for his opinion on the fair market value of the property in question. The valuer's report was submitted on 16.07.2012 in which, the fair market value as on the date of the sale was estimated at Rs. 1,71,94,072/-. 4. After receipt of the valuer's report, the Assessing Officer issued the impugned notice dated 04.12.2012 seeking to reopen the assessee's assessment for the assessment year 2007-08. For such purpose, he has recorded following reasons: “Reasons for re-opening assessment: In this case return of income was filed on 31/7/2008 declaring total income Rs. 25,14,480/-. The case was finalized u/s.143(3) of the I.T Act on 31/12/2010 determining total income of Rs. 31,91,750/-. The assessee is an employee of pantaloon retail (India Ltd.) and deriving an income from salary, house property and other sources. It was noticed during the course of assessment proceedings that the assessee had purchased a bungalow No. 126, Satyagraha Chhavani, Ramdevnagar, Satellite, Ahmedabad on 25/7/2007 for the consideration of Rs. 60,00,000/-. The investment in the said property was examined by the then assessing officer to the extent of Rs. 60,00,000/- but it was observed that the value shown in the purchase deed seems to be lower side. 60,00,000/-. The investment in the said property was examined by the then assessing officer to the extent of Rs. 60,00,000/- but it was observed that the value shown in the purchase deed seems to be lower side. Hence, a copy of purchase deed was obtained from assessee and found that the assessee has paid additional stamp duty of Rs. 1,34,256/- to the sub-registrar-Paldi, Ahmedabad over and above the stamp duty paid on Rs. 60 lacs which means the assessee had made an unaccounted investment in the purchase of property. As such, the sale value of the property was undervalued by both purchaser and seller. Therefore, the then A.O was in possession of evidence to the effect that investment in property was not correctly reported by the assessee. Moreover, due to lake of time being a time barring assessment, the reference was made u/s. 142A to the valuation cell on 29/12/2010 for determining the fair market value of the property in question. On the basis of the above reference, the valuation cell has submitted the report on 16/7/2012 determining fair market value of the property after taking in to account all the items exited/executed in the building as on date of inspection. The weighted average cost index is based on the year-wise expenditure details made available by the assessee. The fair market value determined by the valuation cell is Rs. 1,71,94,072/- as on 11/5/2007 where as the purchase deed was executed by the assessee of Rs. 60 lacs only. Hence, the assessee has undervalued the property to the extent of Rs. 1,11,94,072/- and violated the provisions of section 69 of the Act. In view of the above facts I am satisfied and have reason to believe that income chargeable to tax had escaped assessment to the extent of Rs. 1,11,94,072/- for which the assessee was failed to disclose fully and truly material facts of the property. Permission may kindly be accorded to issue the notice u/s.148 of the I.T Act 5. The assessee raised objections to the reopening of the assessment under a communication dated 08.01.2013 Such objections were however rejected by the Assessing Officer by an order dated 24.01.2013 Hence this petition. 6. Learned counsel Shri J.P Shah for the petitioner submitted that the Assessing Officer issued notice for reopening without the jurisdictional facts being established. The assessee raised objections to the reopening of the assessment under a communication dated 08.01.2013 Such objections were however rejected by the Assessing Officer by an order dated 24.01.2013 Hence this petition. 6. Learned counsel Shri J.P Shah for the petitioner submitted that the Assessing Officer issued notice for reopening without the jurisdictional facts being established. Payment of higher stamp duty would have no effect on the purchaser of the property considering the provisions of section 50C of the Act. He further submitted that the reference to the valuer itself was incompetent as was held by the Division Bench of this Court in judgment dated 20.10.2016 in Special Civil Application No. 6203 of 2011, in which, this assessee had challenged the reference to the valuer. 7. On the other hand, learned counsel Ms. Mauna Bhatt for the Revenue opposed the petition contending that the notice for reopening has been issued within a period of four years from the end of relevant assessment year. The question of actual investment made by the assessee in purchase of the said property was not examined by the Assessing Officer in the original assessment. Even if the reference to the DVO was invalid, report can be relied upon for the purpose of reopening of the assessment. In this context, she relied on the judgment of the Supreme Court in case of Pooran Mal v. Director of Inspection (Investigation) of Income-Tax, New Delhi, reported in (93) ITR 505. She also drew our attention to a judgment of Division Bench of this Court in case of Kanaiyalal Dhansukhlal Sopriwala v. District Valuation Officer, reported in 391 ITR 56, in which, considering the facts of the case, reference made by the Assessing Officer to the DVO for estimation of the property sold by the assessee came to be upheld. 8. From the record, it emerges that the sole basis for reopening of the assessment is a belief of the Assessing Officer that in purchasing the bungalow at ‘Satyagrah Chhavni’, the assessee had made investment in excess of Rs. 60,00,000/- which was the declared sale consideration. In this context, in the reasons recorded, the Assessing Officer has referred to two separate factors. First is the fact that the assessee had paid an additional stamp duty of Rs. 1,34,256/- for registration of the sale deed. 60,00,000/- which was the declared sale consideration. In this context, in the reasons recorded, the Assessing Officer has referred to two separate factors. First is the fact that the assessee had paid an additional stamp duty of Rs. 1,34,256/- for registration of the sale deed. According to the Assessing Officer, this would mean that the assessee had made an unaccounted investment in the purchase of the property. The second factor relied upon by the Assessing Officer is that the valuer's report dated 16.07.2012, in which, the fair market value of the property as on the date of purchase was estimated at Rs. 1,71,94,072/-. 9. We may address the second of the two facts first. As pointed out by the counsel for the assessee, the reference to the DVO by the Assessing Officer made on 29.12.2010 came to be challenged by the assessee in Special Civil Application No. 6203 of 2011. The Division Bench by the judgment dated 20.10.2016, concluded as under: “13. Upon considering the materials on records and the contentions raised by respective parties and in view of the aforesaid proposition of law laid down by the cases which have been referred, we are of the opinion that the action of making reference is not. sustainable in the eye of law and therefore, we hereby quash and set aside the communication dated 29.12.2010 as also the consequent communication dated 10.3.2011 and 26.4.2011 respectively. The petition is allowed to the aforesaid extent. Rule is made absolute.” 10. Thus, the very reference to the DVO was held to be invalid. We are not required to go into the reasons why the Court came to such a conclusion since it is not the case of the Revenue that this judgment has not attained finality. That being the position, we must proceed on the basis that the reference to the DVO which eventually led to the DVO making his report dated 16.07.2012 itself was found to be invalid. Once a reference was found to be invalid, there is thereafter no sanctity of any consequential steps that the DVO might have taken in the meantime. Merely because by the time the Court struck down the reference to the DVO as being incompetent or invalid, the DVO in absence of an injunction of the Court made his assessment and submitted his report, would not mean that such report would have any validity. Merely because by the time the Court struck down the reference to the DVO as being incompetent or invalid, the DVO in absence of an injunction of the Court made his assessment and submitted his report, would not mean that such report would have any validity. In plain terms, the report of the DVO cannot have the validity beyond that of the reference itself. The decision of the Supreme Court in case of Pooran Mal (supra) was referred in entirely different set of facts and circumstances. It was the case where while considering the validity of the provisions of section 132 and 132A of the Act, pertaining to search and seizure, the Court held that information gathered from the documents seized, during such seizure, would not become inadmissible, merely because the search itself was declared illegal. 11. We may now revert to the first factor relied by the Assessing Officer for reopening the assessment. In this context, in the reasons recorded, he has noted that the Assessing Officer during the original assessment had found that the assessee had purchased the said bungalow at ‘Satyagrah Chhavni’ for a consideration of Rs. 60 lakhs. He was however of the opinion that the declared sale consideration was on the lower side. Upon obtaining a copy of the sale deed the Assessing Officer noticed that the assessee had paid an additional stamp duty of Rs. 1,34,256/- for registration of sale deed which means that the assessee had made an unaccounted investment in purchase of the property. 12. For two reasons, this information would not permit the Assessing Officer to reopen the assessment. Firstly, there is no presumption in law that whenever the Stamp Duty authority collects duty higher than what would be payable on the declared sale consideration, it would automatically mean that the purchaser had paid a sum in excess of the reflected sale consideration. The statutory presumption flowing from section 50C of the Act is in relation to the capital gain to be assessed in the hands of the seller. This presumption is also rebuttable if the assessee disputes the stamp duty valuation. In any case, there cannot be an automatic presumption that a purchaser of the property had paid consideration higher thank the sale consideration reflected in the sale deed, the moment the stamp valuation authority of the State Government demanded and the parties paid higher stamp duty. This presumption is also rebuttable if the assessee disputes the stamp duty valuation. In any case, there cannot be an automatic presumption that a purchaser of the property had paid consideration higher thank the sale consideration reflected in the sale deed, the moment the stamp valuation authority of the State Government demanded and the parties paid higher stamp duty. This may be one of the factors which may prompt the Assessing Officer to probe further. This leads us to the second reason viz. this information that the assessee had purchased an immovable property for a declared sale consideration of Rs. 60 lakhs and that at the time of registration of the sale deed, he was asked to pay additional stamp duty of Rs. 1,34,256/- was very much before the Assessing Officer even during the original assessment as can be seen from the reasons recorded for reopening the assessment. The same information which was noticed by the Assessing Officer, but which did not prompt him to make any addition or make any other attempt to make addition except for calling of DVO's report, by itself cannot be the ground for reopening of the assessment. 13. For such combined reasons, impugned notice is quashed. Petition is allowed and disposed of.