COMMISSIONER OF INCOME TAX Vs. V T RAJENDRAN

JUDGEMENT

(1.) THE above tax case appeals are directed against the common order of the Income-tax Appellate Tribunal in ITA Nos. 1286, 1287 and 1288/mds/2004 dated 28. 10. 2005 for the assessment years 1996-97, 1997-98 and 1998-99 respectively.

(2.) 1. The brief facts are that the assessee constructed a kalayana Mandapam known as'trg Kalyana Mandapam'. The cost of the construction falls within the assessment years 1996-97 to 1999-2000. The total investment declared by the assessee for the above assessment years was Rs. 90,17,190/ -. The assessing Officer, of course, before completing the scrutiny assessment for the said assessment years, referred the matter to the Departmental Valuation officer. But, however, before receiving the valuation report, he completed the assessment. Thereafter, the Departmental Valuation Officer estimated the cost of construction at Rs. 1,23,46,000/ -. After allowing certain deductions from the estimate made by the valuation officer, the assessing officer reduced the cost of construction at Rs. 1,08,51,700/ -. Accordingly, based on the above difference in the cost of the construction of the Kalyana Mandapam, the assessing officer reopened the assessment for the said assessment years under Section 143 (3) read with Section 147 of the Income-tax Act on the ground that he had reason to believe that there was escaped assessment due to the failure of the assessee to declare the investment made by him in the construction of the Kalyana Mandapam. Hence, a notice was issued under Section 148 of the Act and thereafter, the assessing officer also assessed the value to the effect that there is difference in the cost of construction as shown in the respective assessment orders, viz. , for the assessment year 1996-97 at Rs. 3,02,258/-, for the assessment year 1997-98 at Rs. 4,23,162/- and for the assessment year 1998-99 at rs. 4,23,162/ -. 2. 2. Even before the scrutiny, the assessee was given a notice and required to furnish the books of accounts and vouchers maintained for the construction of the Kalyana Mandapam. Since the assessee could not produce the same, the assessing officer came to the conclusion that there is substantial difference in the cost of construction as per the Departmental valuation Report and accordingly, held the difference as an unexplained investment and added the same under Section 69 of the Income Tax Act by respective assessment orders dated 27. 3. 2002. 2. 3. Aggrieved by the said assessment orders, the assessee preferred appeals before the Commissioner of Income-tax (Appeals), who dismissed the appeals, by order dated 12. 3. 2004, aggrieved by which, the assessee again preferred appeals before the Income Tax Appellate Tribunal. The appellate Tribunal, by a common order dated 28. 10. 2005, allowed the appeals and hence, the present appeals by the Revenue raising the following substantial questions of law:- "1. Whether on the facts and in the circumstances of the case, the Income Tax Tribunal is right in holding that the reopening of the assessment under 147 of the Income Tax Act on the basis of valuation report is not proper ? 2. Whether on the facts and in the circumstances of the case, the Income Tax Tribunal is right in holding that the addition on account of cost of construction as per the report of the valuation officer is not proper in spite of the fact that there is a vast difference in cost of construction disclosed and the cost determined by the valuation officer ? "

(3.) THAT apart, we do not hesitate to hold that the report of the Departmental Valuation Officer cannot be a basis because the valuation cannot be an arithmetical appreciation of the materials used for the construction nor the expenses incurred by the assessee in that regard, as the variations are bound to be there, as fairly conceded by the learned counsel appearing for the Revenue that there is variation in the value of the construction between Central PWD rates and State PWD rates themselves.