C I T JODHPUR vs. M/S ARIHANT BUILDERS

ORDER ----- BY THE COURT (PER HON'BLE GUPTA, J.)

These two appeals arise out of the judgment of the learned Tribunal dated 15.3.2004, with respect to two different assessment years being 1994-95 and 1995-96, and have been admitted on 11.4.2005, by framing following substantial question of law: “Whether in the facts and circumstances of the present case, in spite of order of the assessment as well as of the Tribunal having been passed before 30th Sept., 2004 but the period of appeal under Section 260A having not expired, it is open for the revenue to 2. rely on the provisions of Section 142A on the ground that it would apply to the present case because the assessment has not become final and conclusive.” The necessary facts are, that the assessee filed return for the two assessment years on 17.7.1995 and 20.7.1995 respectively, along with the requisite information. However, no action was taken under Section 143(1)(a), as it then existed. Obviously, the time permissible for taking action under Section 143(1)(a) had expired. It appears that the assessment for the earlier year, being 1993-94 was also completed. It is only after the expiry of the time permissible for issuance of notice under Sections 143(2) and 143(3), that the Assessing Officer issued notice under Section 148 on 16.10.96, as before that date, though after the expiry of the time permissible for issuance of notice under Sections 143(2) and 143(3), the Assessing Officer had received valuation report prepared by the District Valuation Officer dated 20.5.95, according to which, the Assessing Officer felt, that the income shown in the return was not correct, and treated it to be escapement of income. The assessee filed a reply thereto, and the Assessing Officer made assessment vide order dated 31.3.1999, which was set aside by the Commissioner (Appeals) vide order dated 21.9.99, mainly relying upon the judgment of Calcutta High Court, in I.T.O. Vs. James Josaph O' Graman, reported

With these facts, it is not in dispute, that the reason to believe, entertained by the learned Assessing Officer was, only on the basis of the valuation report obtained from the departmental valuation officer by the learned Assessing Officer, which is dated 16.10.96, and for that purpose, support is sought from the provisions of Section 131(1)(d), which came up for consideration before the Hon'ble Supreme Court, in the case of Smt. Amiya Bala Paul Vs. Commissioner of Income-Tax, reported in 2003 Vol. 262 I.T.R. 407, wherein, the provisions of Section 131(1), 133 (6) and 142(2) were considered, and it was found, that this power does not include the power in the Assessing Officer, to refer the matter to the Valuation Officer. Even, the power under Section 142A was held to be not including the power to refer the matter to the Valuation Officer, for the enquiry by the Valuation Officer.