THE COMMISSIONER OF INCOME TAX vs. SMT.S.VASANTHA

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE THE CHIEF JUSTICE MR.H.L.DATTU & THE HONOURABLE MR. JUSTICE A.K.BASHEER TUESDAY, THE 21ST OCTOBER 2008 / 29TH ASWINA 1930 I.T.A.No.109 of 2008 -----------------------------------

I.T.A.NO.1060/COCH//2005 OF THE INCOME TAX APPELLATE TRIBUNAL, COCHIN BENCH, COCHIN - ORDER DATED 13.07.2006. (ASSESSMENT YEAR 1995-96) .................... APPELLANT/RESPONDENT:- ------------------------------------------ THE COMMISSIONER OF INCOME TAX, THIRUVANANTHAPURAM. BY ADV.SRI.P.K.R.MENON,SR.COUNSEL, GOVERNMENT OF INDIA (TAXES), SRI.GEORGE K. GEORGE, SC FOR IT, SRI.JOSE JOSEPH, SC FOR INCOME TAX RESPONDENT/APPELLANT:- ------------------------------------------- SMT.S.VASANTHA, SANKARAVILASOM BUNGALOW, TKM COLLEGE P.O., KARICODE, KOLLAM.

THIS INCOME TAX APPEAL HAVING COME UP FOR ADMISSION ON 21/10/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:-

H.L.DATTU, C.J. & A.K.BASHEER, J.

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I.T.A.No.109 of 2008 ------------------------------------------ Dated, this the 21st day of October, 2008 JUDGMENT H.L.Dattu, C.J. This appeal arises out of an order passed by the Income Tax Appellate Tribunal, Cochin Bench in I.T.A.No.1060 of 2005 dated 13th July, 2006. (2) The assessee's business premises as well as the residential building were surveyed by the Department in exercise of their powers under Section 133-B of the Income Tax Act ('the Act' for short) sometime in the month of October, 1995. It was found that the assessee owns 10 cents of land with a double storeyed building. Since the assessee has no known source of income for investment in the construction of residential building, a notice under Section 148 of the Act came to be issued. In reply to the said notice the assessee had stated that the cost of construction of the double storeyed building is in a sum of Rs.9,25,000/- and the source of income was sale proceeds of the gold ornaments worth Rs.1,25,000/-, loan amounts of Rs.70,000/- and Rs.40,000/- borrowed from her two brothers and Rs.1,70,000/- advanced by her another brother by name Sasidharan. She had also stated that a sum of Rs.5,20,000/- was advanced by one Sri.Sundara Rajan.

I.T.A.No.109 of 2008 2 (3) The assessing authority while completing the proceedings under Section 148 of the Act had noticed that neither the assessee's brothers had appeared before him nor had they confirmed the payment of the loans to their sister. The assessing authority has further noticed that in addition to Rs.5,20,000/- said to have been advanced by Sri.Sundara Rajan another sum of Rs.1,67,500/- was also advanced by him which was adjusted from the amount given by Sri.Sasidharan. (4) The assessing authority has further noticed that as per the valuation report of the residential building done by the Assistant Valuation Officer of the Income Tax Department, the value of the building works out at Rs.15,03,200/-. This valuation report differs from the valuation report prepared by the registered valuer which was produced by the petitioner showing the cost of construction of the building as Rs.9,41,700/- and, therefore, the total source available to the assessee was Rs.8,77,500/- plus the agricultural income of Rs.75,000/-. Accordingly, the assessing officer was of the opinion that the balance amount of Rs.5,50,700/- was found to be undisclosed income, and accordingly had quantified the tax liability in a sum of Rs.1,95,280/- and also had levied interest under Sections 234A and 234B of the Act. Thus the total demand that was made was in a sum of Rs.6,14,960/-.

I.T.A.No.109 of 2008 3 (5) The assessee had called in question the orders passed by the assessing authority in exercise of his powers under Section 148 of the Act. The first appellate authority has granted partial relief to the assessee by giving a deduction of Rs.75,000/- keeping in view that the Kerala PWD rates and CPWD rates vary and, therefore, the assessing authority was not justified in relying upon the valuation report of the Valuation Officer of the Department who had valued the property taking into consideration the CPWD rates. (6) The assessee, being aggrieved by the orders passed by the first appellate authority, had carried the matter in second appeal before the Tribunal. The Tribunal, by its orders dated 13.7.2006, had remanded the matter to the assessing authority with a specific direction that the assessing authority will apply the PWD rates prevailing in the State of Kerala and quantify the tax liability. (7) Aggrieved by the said order passed by the Tribunal, the Department is before us in this Income Tax Appeal filed under Section 260A of the Act. (8) The Department has raised the following questions of law for our consideration and decision. They are as under:

I.T.A.No.109 of 2008 4 “(1) Whether on the facts and in the circumstances of the case and in the light of the contents in the annexures to the assessment order the Tribunal is right in law and fact in holding that the assessing officer has not given any reason for rejecting the valuation report and is not the finding perverse and without application of mind? (2) Whether on the fact and in the circumstances of the case the Tribunal is right in law in ignoring the detailed reasoning given in the assessment order and in directing the Assessing Officer to adopt the state PWD rate for valuation of the property and is not the order one without application of mind and hence perverse and nonest? (3) Whether on the fact and in the circumstances of the case did not the Tribunal erred in directing adoption of the state PWD rate for valuation based on decision of unspecified orders of the Tribunal and High Court in other case without examining the fact of the case in hand is not such direction in effect based on conjectures and surmises? (4) Whether on the fact and in the circumstances of the case did not the Tribunal erred in not upholding the order of the Commissioner of Income Tax (Appeals) confirming the order of the Assessing Officer?”

I.T.A.No.109 of 2008 5 (9) Sri.Jose Joseph, learned counsel appearing for the Revenue, in support of the questions of law framed by him, would submit that the Tribunal was not justified in directing the assessing authority to take only the PWD rates prevailing in the State of Kerala, and, therefore, the direction issued by the Tribunal to the assessing authority is arbitrary and violative of the statutory provisions. (10) The Tribunal while deciding the assessee's appeal has, in fact, relied upon number of case laws decided by various High Courts wherein the High Courts are of the opinion that there is variation between CPWD rates and PWD rates prevailing in the State and since the building that is constructed is within the State, naturally, the Department is expected to take into consideration the PWD rates prevailing in the State. Having come to that conclusion, as we have already noticed, the Tribunal had remanded the matter to the assessing authority. (11) In view of the settled legal position that it is only the PWD rates that can be taken into consideration for the purpose of valuation of the building, in our opinion, the Tribunal was justified in allowing the assessee's appeal and issuing a specific direction to the assessing authority. (12) We do not find any error in the orders passed by the Tribunal. Therefore, while answering the questions of law framed by the

I.T.A.No.109 of 2008 6 Revenue against the Revenue and in favour of the assessee, we reject this Income Tax Appeal. Ordered accordingly.

(H.L.DATTU) CHIEF JUSTICE

(A.K.BASHEER)

JUDGE vns