M/S. ATUL BUILDCON PVT.LTD. vs. ASSISTANT COMMISSIONER OF INCOME TAX,CENTRAL CIRCLE-2
What did the High Court hold?
The High Court held that the question involved in the present case was squarely covered by its earlier decision in Tax Appeal Nos. 1151 to 1153 of 2005, decided on 11/12/2014. In that decision, the Court had observed that the AO made a reference to the DVO without rejecting the books of accounts. The CIT(Appeals) also did not conclude that the books of accounts were rejected. The Tribunal had relied on the Supreme Court decision in Sargam Cinema, which held that unless the books of accounts are rejected, the AO cannot make a reference to the Valuation Officer. The High Court reiterated that the reference to the DVO, not being in consonance with the provisions of law, was invalid, and the report made pursuant to such an invalid reference could not be the basis for addition. Therefore, the question was answered in favour of the assessee and against the department. The appeals were allowed.
What were the facts?
The appeals were filed by M/s. Atul Buildcon Pvt. Ltd. against the judgment and order of the Income Tax Appellate Tribunal (ITAT) which had partly allowed appeals preferred by the revenue. The dispute pertains to additions made towards the cost of construction based on the report of the Departmental Valuation Officer (DVO). In Tax Appeal No. 926 of 2006, the addition was Rs. 8,49,695, and in Tax Appeal No. 927 of 2006, it was Rs. 2,28,677. The High Court admitted these appeals by framing substantial questions of law.
What were the issues?
1. Whether, on the facts, the Tribunal was right in interpreting Section 69C and cognate provisions for upholding the addition of Rs. 8,49,695 towards the cost of construction based on the report of the Departmental Valuation Officer (DVO)? (Question of law) 2. Whether, on the facts, the Tribunal was right in interpreting Section 69C and cognate provisions for upholding the addition of Rs. 2,28,677 towards the cost of construction based on the report of the Departmental Valuation Officer (DVO)? (Question of law) Assessee's Contention: The ITAT had deleted the entire addition, primarily on the ground that the Assessing Officer (AO) could not have made a reference to the DVO without rejecting the assessee's books of accounts. The Tribunal held that the addition was baseless as it was merely based on the estimation of the DVO, and there was no incriminating material found during the search to suggest that the assessee had incurred expenditure over and above the declared amount. The assessee relied on decisions in Goodluck Automobiles and Sargam Cinema. Revenue's Contention: The judgment does not explicitly record the revenue's contentions. However, the framing of the questions of law indicates that the revenue likely argued that the addition based on the DVO's report was justified.
Which sections of the Income-tax Act were involved?
AI-generated summary — verify with the full judgment below
Cause title — parties, addresses and appearances
ORAL JUDGMENT (PER : HONOURABLE MR.JUSTICE KS JHAVERI)
By way of these appeals, the appellant has challenged the judgment and order of the Tribunal, whereby, the Tribunal has partly allowed the appeals preferred by the revenue. While admitting the matters, this Court has framed following substantial questions of law: “In Tax Appeal No. 926 of 2006: Whether on facts the Tribunal is right in interpreting Section 69C and cognate provisions for upholding the addition of Rs.8,49,695/ towards cost of construction on the basis of report of the Departmental Valuation Officer?” In Tax Appeal No. 927 of 2006: Whether on facts the Tribunal is right in interpreting Section 69C and cognate provisions for upholding the addition of Rs.2,28,677/ towards cost of construction on the basis of report of the Departmental Valuation Officer?”
The question of law raised in these appeals, had come up for consideration before this Court in Tax Appeal Nos. 1151 to 1153 of 2005. This Court, while deciding the said identical case by judgment and order 11/12/2014, has held in paragraph Nos. 5 and 6 as under:
“5. We have gone through the materials on record. In our view, the substantial question of law raised in this matter would no longer survive and it is already answered by this Court in its earlier decision in the case of Commissioner of Income Tax v. Vijaykumar D. Gupta reported in [2014] 365 ITR 470 (Gujarat), wherein it was observed as under:
“3. From the record it emerges that the Assessing Officer after making a reference to DVO for ascertaining assessee’s investment in house property on the basis of such return added a sum of Rs.10,77,724/under section 69B of the Act being assessee’s unexplained investment.
The assessee carried the matter in appeal. The CIT (Appeals) on facts analysed the case of the assessee again and retained part of the addition, but granted partial relief. This order of CIT (Appeals) gave rise to two appeals to the Tribunal. The Tribunal deleted entire addition primarily on the ground that the Assessing Officer could not have made reference to the DVO without reference to the books of accounts and such reliance on the DVO’s books of accounts was not justified. The Tribunal held and observed as under : “12.1 Admitted factual position is that the AO had not referred any incriminating evidence which was found during the course of search. Although the Revenue Department had found the existence of a building but there was no evidence that the assessee had in fact incurred expenditure on construction of the said property over and above the amount already declared in the books of accounts. This is not an assessment which was made in the ordinary course of proceedings but admittedly a search under Section 132 was carried therefore it is expected that the addition consequent thereupon should be corroborated with evidence detected at the time of search. As far as the books of accounts of the assessee and the recording of the investment in the construction of the house were concerned, the AO had not found any discrepancy. For this legal proposition, a decision of jurisdictional High Court pronounced in the case of Goodluck Automobiles, 26 Taxman.com 264 has been cited wherein the Court has held that unless the books of accounts are rejected the AO cannot make a reference to the Valuation Officer. An another case law relied upon was Sargam Cinema, 197 Taxman 203 [328 ITR 513 (SC)]. of DVO was baseless; hence, deserves to be deleted. We hold accordingly. The part addition sustained by learned CIT (A) is hereby deleted.”
It is undisputed that the Assessing Officer made a reference to the DVO without rejecting the books of accounts. While retaining part of the additions even the CIT (Appeals) did not come to the conclusion that the Assessing Officer had rejected the books of accounts of the assessee. It was in this background that the Tribunal relied on the decision of the Supreme Court in the case of Sargam Cinema v. Commissioner of Incometax, reported in (2010) 328 ITR 513 (SC). This Court in the case of Goodluck Automobiles Pvt. Ltd. v. Assistant Commissioner of Incometax, reported in 359 ITR 306, in the context of this issue referring to the decision of the Supreme Court in the case of Sargam Cinema (supra) had observed as under:
“12. The facts of the present case may be examined in the light of the statutory scheme discussed hereinabove as well as the decision of the Supreme Court in Sargam Cinema (supra). In this regard, a perusal of the assessment order reveals that the Assessing Officer has categorically recorded a finding to the effect that the accounts are duly audited and complete details are available. From the tenor of the order of the Assessing Officer, it is apparent that he has made the reference to the Valuation Officer merely to seek expert advice regarding the cost of construction. There is nothing in the assessment order to suggest that the Assessing Officer had any doubt regarding the cost of construction or that he was not satisfied regarding the correctness or completeness of the books of account. Before making the reference to the Valuation Officer for ascertaining the fair price of construction, the Assessing Officer does not appear to have ascertained the correctness or otherwise of the cost of construction shown by the assessee in its books of account. Thus, prior to making the reference to the Valuation Officer, the Assessing Officer has not ascertained as to what was the defect in the cost of construction disclosed by the assessee in its returns of income. Moreover, it is apparent that the only reason for making the addition under section 69 of the Act is that there is a difference in the cost of construction as determined by the Valuation Officer and as shown by the assessee. At no stage of the assessment proceedings does the Assessing Officer appear to have mentioned that the books of account are defective or that the cost of construction as shown in the books of account is not the true cost of construction. Thus, while making the reference to the Valuation Officer, the Assessing Officer has not recorded any defect in the books of account nor has he rejected the same. Except for the difference in the estimated cost determined by the Valuation Officer and the actual cost as shown by the assessee, the Assessing Officer has not brought any material on record to establish that the assessee had made any unaccounted investment in the construction of the building in question and that the books of account do not reflect the correct cost of construction. Under the circumstances, there was no occasion for the Assessing Officer to make a reference to the Valuation Officer. As held by the Supreme Court in the case of Sargam Cinema (supra), unless the books of accounts are rejected, the Assessing Officer cannot make a reference to the Valuation Officer. The reference made to the Valuation Officer, not being in consonance with the provisions of law, was, therefore, invalid. Accordingly, the report made by the Valuation Officer pursuant to such an invalid reference could not have been made the basis for addition under section 69 of the Act.”
The question involved in the present case is squarely covered by the observations of this Court in the aforesaid decision. In view of above, we are in complete agreement with the view taken by the tribunal and the question raised in these appeals is answered against the department and in favour of the assessee. Accordingly, all these appeals are dismissed.”
There is no dispute amongst both the learned counsels that the aforesaid decision will apply in the facts of this case also, as the facts and the question of law raised, are identical and therefore, we are not giving elaborate reasons.
Accordingly, the question, “Whether on facts the Tribunal is right in interpreting Section 69C and cognate provisions for upholding the addition towards cost of construction on the basis of report of the Departmental Valuation Officer?” is answered in favour of the assessee and against the department. The appeals stand allowed accordingly. [ K. S. Jhaveri, J. ] [ K. J. Thaker, J. ] hiren
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