Dr. Mahipatbhai Chimanbhai Patel, Visanagar v. The Income tax Officer,Patan Ward-3,, Mehsana

ITA 696/AHD/2008 | 1999-2000
Pronouncement Date: 13-08-2010 | Result: Allowed

Appeal Details

RSA Number 69620514 RSA 2008
Assessee PAN ABNPP8906G
Bench Ahmedabad
Appeal Number ITA 696/AHD/2008
Duration Of Justice 2 year(s) 5 month(s) 18 day(s)
Appellant Dr. Mahipatbhai Chimanbhai Patel, Visanagar
Respondent The Income tax Officer,Patan Ward-3,, Mehsana
Appeal Type Income Tax Appeal
Pronouncement Date 13-08-2010
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted B
Tribunal Order Date 13-08-2010
Date Of Final Hearing 22-07-2010
Next Hearing Date 22-07-2010
Assessment Year 1999-2000
Appeal Filed On 25-02-2008
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH B AHMEDABAD BEFORE SHRI N.S.SAINI ACCOUNTANT MEMBER AND SHRI MAHAVIR SINGH JUDICIAL MEMBER ITA NO.696-700/AHD/2008 ASSESSMENT YEAR: 1999-00 TO 2003-04 DATE OF HEARING:23.7.10 DRAFTED:11.8.10 DR. MAHIPATBHAI CHIMANLAL PATEL PROP: HETAL HEART HOSPITAL NR. B.ED. COLLEGE VISNAGAR-384315 PAN NO.ABNPP8906G V/S . INCOME TAX OFFICER PATAN WARD-3 MEHSANA (APPELLANT) .. (RESPONDENT) ASSESSEE BY :- SHRI S.N.DIVETIA AR REVENUE BY:- SHRI K. MADHUSUDAN SR-DR O R D E R PER MAHAVIR SINGH JUDICIAL MEMBER:- THESE FIVE APPEALS BY THE ASSESSEE ARE ARISING OUT OF THE ORDER OF COMMISSIONER OF INCOME-TAX(APPEALS)-GANDHINAGAR IN APPEAL NOS. CIT(A)/ GNR/133 132 134 & 169/2006-07 DATED 27-11-2007. THE ASSESSMENTS WERE FRAMED BY ITO WARD-3 MEHSANA U/S. 143(3) R.W.S. 147 OF THE INCOME-TAX ACT 1961 (HEREINAFTER REFERRED TO AS THE ACT) VIDE HIS DIF FERENT ORDERS DATED 23-03-2006 27- 12-2006 & 28-03-2006 FOR THE ASSESSMENT YEARS 1999- 00 TO 2003-04 RESPECTIVELY. 2. THE ASSESSEE HAS RAISED ADDITIONAL GROUNDS OF AP PEAL IN THESE APPEALS OF THE ASSESSEE WHICH READS AS UNDER:- 1.1 THAT IN THE FACTS AND CIRCUMSTANCES OF THE CAS E AS WELL AS IN LAW THE REFERENCE MADE TO VALUATION OFFICER U/S. 142A OF TH E ACT BY AO TO ESTIMATE THE COST OF CONSTRUCTION OF THE HOSPITAL BUILDING I S WHOLLY ILLEGAL UNLAWFUL AND WITHOUT JURISDICTION. 1.2 THE REFERENCE MADE TO VALUATION OFFICER U/S.142 A OF THE ACT WAS WITHOUT JURISDICTION AND UNLAWFUL BECAUSE THE ASSTT. HAD AL READY BECOME FINAL AND CONCLUDED BEFORE 1.10.2004. ITA NO.696-700/AHD/2008 A.YS. 99-00 TO 03-04 DR.MAHIPATBHAI C PATEL V. ITO PATAN WD-3 MEHSA NA PAGE 2 1.3 IT IS THEREFORE PRAYED THAT THE REFERENCE MADE TO THE VALUATION OFFICER AND THE CONSEQUENTIAL ADDITION MADE BY AO AND CONFIRMED BY CIT(A) MAY PLEASE BE CANCELLED. 3. AT THE OUTSET LD. COUNSEL FOR THE ASSESSEE STAT ED THAT ASSESSEE HAS RAISED MERELY THE GROUND RELATING TO THE AFORESAID ADDITIO N CONFIRMED IN APPEAL BY CIT(A) ON MERITS AND THE LEGAL GROUND OF APPEAL RELATING THE VALIDITY OF REFERENCE MADE TO DVO U/S.142A HAS BEEN LEFT OUT TO BE RAISE THROUGH OVER SIGHT AND INADVERTENCE. THEREFORE HE URGED THE BENCH TO ADMIT THE ADDITION AL GROUNDS RELATING TO THE VALIDITY OF THE REFERENCE MADE TO DVO U/S.142A OF THE ACT BY ASSESSING OFFICER TO ESTIMATE THE COST OF CONSTRUCTION OF THE HOSPITAL BUILDING. HE NARRATED THAT THE OMISSION TO RAISE THIS GROUND OF APPEAL IS NEITHER WILLFUL NOR DELIBERATE AND THE GROUND BEING RAISED IS PURELY LEGAL AND ALL FACTS NECESSARY FOR THE SAME ARE ON RECORD AND THEREFORE HE SHOULD BE PERMITTED TO RAISE THE SAME. RELIANCE IS PLACED ON THE DECISION IN THE CASE OF JUTE CORPORATION OF INDIA LTD. V. CIT (1991) 187 ITR 688 (SC) AND OF NATIONAL THERMAL POWER CO. LTD. V. CIT (1998) 229 ITR 383 (SC). HENCE THE FOLLOWING ADDITIONAL GROUND WHICH MAY PLEASE BE ALL OWED AND ADJUDICATED UPON IN THE INTEREST OF JUSTICE FAILING WHICH GRAVE INJUSTI CE WOULD BE CAUSED TO THE ASSESSEE FOR NO FAULT ON HIS PART. THE LD.SR-DR HAS NOT MADE SERIOUS OBJECTIONS TO THE ADMISSION OF ADDITIONAL GROUNDS AND HE MADE HIS SUB MISSIONS. 4. WE FIND THAT THIS IS PURELY LEGAL ISSUE AND NO NEW FACT IS NECESSARY FOR ADJUDICATION OF THE SAME. THE FACTS ARE ALREADY AVA ILABLE ON RECORD FOR ADJUDICATION OF THE SAME ACCORDINGLY THE SAME ARE ADMITTED. 5. THE FIRST LEGAL ISSUE IN THESE APPEALS OF THE AS SESSEE IS AS REGARDS TO REOPENING OF ASSESSMENT. THE RELEVANT ISSUE READS A S UNDER-: NOW THE ISSUE BEFORE US IS WHETHER RETURNS WHICH ARE PROCESSED U/S.143(1)(A) OR 143(1) OF THE ACT CAN BE CONSTRUED AS ASSESSMENT AND FURTHER WHETHER SUCH ASSESSMENTS MADE BEFORE 30-09 -2004 CAN BE SUBJECT- MATTER OF ASSESSMENT OR RE-ASSESSMENT PROCEEDINGS U /S 148 OF THE ACT ISSUED IN REGARD TO ESTIMATION MADE BY DVO FOR DETE RMINING COST OF CONSTRUCTION U/S.142A OF THE ACT IN THE GIVEN FACT S AND CIRCUMSTANCES OF THE CASE. 6. THE BRIEF FACTS LEADING TO THE ABOVE ISSUE ARE T HAT THE ASSESSEE IS A DOCTOR AND FOR THESE YEARS THE ASSESSEE FILED HIS RETURNS OF INCOME ON OR BEFORE DUE DATES ITA NO.696-700/AHD/2008 A.YS. 99-00 TO 03-04 DR.MAHIPATBHAI C PATEL V. ITO PATAN WD-3 MEHSA NA PAGE 3 OF FILING OF RETURNS U/S.139(1) OF THE ACT AND THE SAME WERE PROCESSED U/S.143(1)(A) OR 1431(1) OF THE ACT. THE BUSINESS OF THE ASSESSEE WAS SURVEY U/S133A OF THE ACT BY THE INCOME-TAX DEPARTMENT ON 13-01-2003 THEREBY THE ASSESSEE MADE A DISCLOSURE OF HIS UNDISCLOSED INCOME AT RS.9 LAKH U NDER VARIOUS HEADS ONLY IN RESPECT TO ASSESSMENT YEAR 2003-04. THE ASSESSEE HA S CONSTRUCTED A HOSPITAL NAMED HETAL HEART HOSPITAL AT VISHNAGAR GUJARAT FR OM FINANCIAL YEARS 1997-98 TO 2002-03. THE ASSESSING OFFICER NOTICED FROM THE RET URN OF INCOME FOR ASSESSMENT YEAR 2003-04 THAT THE UNDISCLOSED INCOME OFFERED BY THE ASSESSEE HAS NOT BEEN DECLARED IN THE RETURN OF INCOME AND ACCORDINGLY HE REFERRED TO THE COST OF CONSTRUCTION TO THE DISTRICT VALUATION OFFICER (DVO IN SHORT) FOR DETERMINING THE ACTUAL COST OF CONSTRUCTION. THE DVO DETERMINED THE COST O F CONSTRUCTION OF THE ABOVE SAID PROPERTY AT RS.46 86 049/- AS AGAINST THE DECLARED COST OF THE ASSESSEE IN HIS BOOKS OF ACCOUNT AT RS.23 40 523/-. THE ASSESSEE TO SUPPO RT ITS CLAIM SUBMITTED VALUATION REPORT FROM A REGISTERED VALUER WITH INCOME-TAX DEP ARTMENT WHO ESTIMATED COST OF CONSTRUCTION AT RS.22 15 100/-. THE ASSESSEE ALSO S UBMITTED ANOTHER VALUATION REPORT FROM ANOTHER REGISTERED VALUER WHO VALUED T HE PROPERTY AT RS.26 32 140/-. AS THE ASSESSEE HAS CONSTRUCTED THIS HOSPITAL BUILDING FROM FINANCIAL YEARS 1997-98 TO 2002-03 RELEVANT TO ASSESSMENT YEARS 1998-99 TO 200 3-04 THE AO INITIATED RE- ASSESSMENT PROCEEDINGS FOR ASSESSMENT YEARS 1999-00 TO 2003-04 BY ISSUING NOTICES U/S.148 OF THE ACT FOR THE RELEVANT ASSESSM ENT YEARS. THE AO HAS MADE THE ADDITION ONLY ON THE BASIS OF VALUATION REPORT OF D VO OF THE DEPARTMENT BY STATING THAT HE HAS POSITIVE INFORMATION IN HAND FROM AN EX PERT IN THE FIELD OF VALUATION OF COST OF CONSTRUCTION THAT THE VALUE AS SHOWN BY THE ASS ESSEE IN HIS BOOKS OF ACCOUNT IS SIGNIFICANTLY LOWER THAN THE NORMAL COST OF CONSTRU CTION AND ACCORDINGLY THE AO FORMED A REASONABLE BELIEF TO SCRUTINIZE THE ASSESS MENT. NOW THE ISSUE BEFORE US IS WHETHER RETURNS WHICH ARE PROCESSED U/S.143(1)(A) O R 143(1) OF THE ACT CAN BE CONSTRUED AS ASSESSMENT AND FURTHER WHETHER SUCH AS SESSMENTS MADE BEFORE 30- 09-2004 CAN BE SUBJECT-MATTER OF ASSESSMENT OR RE-A SSESSMENT PROCEEDINGS U/S 148 OF THE ACT IN REGARD TO ESTIMATION MADE BY DVO OF C OST OF CONSTRUCTION U/S.142A OF THE ACT IN THE GIVEN FACTS AND CIRCUMSTANCES OF THE CASE. 7. ON THESE FACTS THE LD. COUNSEL FOR THE ASSESSEE MADE HIS SUBMISSIONS THAT THE CONTENTION RAISED IN THE PRESENT APPEAL IS THAT THE REFERENCE TO THE VALUATION OFFICER FOR THE PURPOSE OF MAKING ASSESSMENT U/S.14 7 BY ASSESSING OFFICER IS INVALID ITA NO.696-700/AHD/2008 A.YS. 99-00 TO 03-04 DR.MAHIPATBHAI C PATEL V. ITO PATAN WD-3 MEHSA NA PAGE 4 AND ILLEGAL BECAUSE THE ASSESSMENT HAD BECOME FINAL AND CONCLUSIVE BEFORE 01-10- 2004. FURTHER THE AO HAD NO POWER TO MAKE REFERENC E TO VALUATION OFFICER IN VIEW OF THE FINALITY REACHED TO THE ASSESSMENT. LD. COUNSEL FOR ASSESSEE STATED THAT THE REVENUE WAS NOT JUSTIFIED INVOCATION OF SECTION 142 A OF THE ACT ON THE FOLLOWING GROUNDS:- (A) THE TERM ASSESSMENT APPEARING IN THE PROVISO TO THE SAID SECTION MEANS THE ASSESSMENT MADE U/S.143(3) OR 147 AND IT DOES NOT INCLUDE INTIMATION U/S.143(1)(A) OF THE ACT. (B) THE PROCESSING OF RETURN U/S.143(1)(A) DOES NOT AMOUNT TO ASSESSMENT IN VIEW OF THE JUDICIAL PRONOUNCEMENT IN THE CASE OF C IT V. RAJESH JHAVERI STOCK BROKERS PVT. LTD. (2007) 291 ITR 500 (SC) AND CIT VS. OM PRAKASH BAGRIA (HUF) 287 ITR 523 (MP). SECTION 147 PERMITS AO TO ASSESS OR REASSESS IF H E HAS REASON TO BELIEVE ABOUT ESCAPEMENT AND THE ADMISSION MADE AT THE TIME OF SURVEY BY THE APPELLANT WAS THE REASONS TO BELIEVE FOR ISSUING NO TICE U/S.147. 8. LD.SR-DR ON THE OTHER HAND CONTENDED THAT ASSES SEES COUNSEL STATED THE REFERENCE TO THE DISTRICT VALUATION OFFICER AND THE CONSEQUENT ASSESSMENT U/S.147 WAS NOT VALID IN VIEW OF THE PROVISO PLACED U/S.142 A AND ALSO AS PER THE JUDGMENT OF THE HONBLE ALLAHABAD IN THE CASE OF CIT V. JEEVANDEEP APARTMENTS PVT. LTD. (2010) 325 ITR 217 (ALL) AND THAT THE PROVISO TO SECTION 1 42A PROHIBITS REOPENING OF CASES IN WHICH THE ASSESSMENTS HAVE BECOME FINAL BEFORE 3 0-09-2004. ACCORDING TO HIM THE WORD USED IN THE PROVISO IS ASSESSMENT MADE A ND ASSESSMENT HAS BECOME FINAL IN THE CASE OF JEEVANDEEP APARTMENTS PVT. LTD. (SUPRA) WHERE THE HONBLE COURT HAS GIVEN A FINDING THAT IN THAT CASE ORIGIN AL ASSESSMENT WAS PASSED ON MARCH 21 2002 AND HAD BECOME FINAL BETWEEN THE PARTIES BE FORE 30 TH SEPTEMBER 2004 THEREFORE THE COURT HELD THAT PROVISO TO SECTION 14 2A WAS APPLICABLE AND THE REASSESSMENT WAS NOT VALID. HE STATED THAT THE FACT S IN THE CASE OF BEFORE THE TRIBUNAL ARE DIFFERENT AND THERE WAS NO ASSESSMENT U/S 143(3) OR U/S.147 IN ANY OF THE FOUR YEARS INVOLVED AYS 1999-00 TO 2002-03 AND IN ALL THE FOUR YEARS RETURNS WERE ACCEPTED U/S.143(1) AND PROCESSING OF A RETURN FILED AND SENDING INTIMATION TO THE ASSESSEE IS NOT AN ASSESSMENT AS HELD BY THE SU PREME COURT IN THE CASE OF RAJESH JHAVERI STOCKBROKERS PVT. LTD. (SUPRA) AND OMPRAKASH BAGRIA (HUF) (SUPRA) WHEREIN IN THE CASE OF RAJESH JHAVERI STOCKBROKERS (SUPRA) HONBLE SC WAS DEALING WITH ISSUE WHERE ASSESSMENT BY ISSUING NOTI CE U/S.148 CAN BE CONSIDERED AS CHANGE OF OPINION WHEN THE RETURN EARLIER WAS PRO CESSED U/S.143(1) OF THE ACT. THEREFORE ACCORDING TO LD. SR-DR IN THE PRESENT CA SE IT IS A FACT THAT ALL THE RETURNS ITA NO.696-700/AHD/2008 A.YS. 99-00 TO 03-04 DR.MAHIPATBHAI C PATEL V. ITO PATAN WD-3 MEHSA NA PAGE 5 OF THE ASSESSEE FOR THE IMPUGNED ASSESSMENT YEARS W ERE ACCEPTED BY THE REVENUE U/S.143(1) AND THERE WAS NO ASSESSMENT FOR ANY OF T HE ASSESSMENT YEARS. WHEN THERE WAS NO ASSESSMENT IT CANNOT BE SAID THAT IT HAD BECOME FINAL AND THEREFORE THE ASSESSMENTS MADE BY THE ASSESSING OFFICER ARE N OT HIT BY THE PROVISO TO SECTION 142A. HE FURTHER ARGUED THAT SECTION 147 ALLOWS AS SESSMENT AND REASSESSMENT AND AS STATED ABOVE ALL THE RETURNS WERE ACCEPTED U/S.143(1) EARLIER AND THE ASSESSING OFFICER ISSUED 148 NOTICES FOR MAKING AN ASSESSMENT OF THE INCOME ESCAPED. ACCORDING TO LD. SR-DR SECTION 147 PROVID ES ASSESSMENT AND REASSESSMENT OF A CASE WHENEVER ASSESSING OFFICER H AD REASON TO BELIEVE THAT INCOME HAS ESCAPED ASSESSMENT. SECTION 147 IS AS UN DER:- IF THE ASSESSING OFFICER HAS REASON TO BELIEVE TH AT ANY INCOME CHARGEABLE TO TAX HAS ESCAPED ASSESSMENT FOR ANY ASSESSMENT YEAR HE MAY SUBJECT TO THE PROVISIONS OF SECTIONS 148 TO 153 ASSESS OR REASSESS SUCH INCOME AND ALSO ANY OTHER INCOME CHARGEABLE TO TAX WHICH HAS E SCAPED ASSESSMENT AND WHICH COMES TO HIS NOTICE SUBSEQUENTLY IN THE COURS E OF THE PROCEEDINGS UNDER THIS SECTION OR RECOMPUTED THE LOSS OR THE D EPRECIATION ALLOWANCE OR ANY OTHER ALLOWANCE AS THE CASE MAY BE FOR THE AS SESSMENT YEAR CONCERNED (HEREAFTER IN THIS SECTION AND IN SECTIONS 148 TO 1 53 REFERRED TO AS THE RELEVANT ASSESSMENT YEAR. (EMPHASIS SUPPLIED) THE LD. SR-DR ARGUED THAT SECTION 147 AUTHORIZE AND PERMITS THE ASSESSING OFFICER TO ASSESS OR REASSESS SINCE CHARGEABLE TO TAX IF HE HAS REASON TO BELIEVE THAT INCOME FOR ANY ASSESSMENT YEAR HAS ESCAPED ASSESSME NT AND IN THE PRESENT CASE THE ASSESSING OFFICER HAS MADE AN ASSESSMENT BY ISS UING NOTICE U/S.148 BASED ON THE ASSESSEES OWN ADMISSION MADE AT THE TIME OF SU RVEY THAT HE HAD INVESTED RS.7.3 LAKHI MORE THAN WHAT HAD BEEN SHOWN IN THE B OOKS OF ACCOUNT. THIS INFORMATION WAS THE REASON TO BELIEVE FOR ISSUING NOTICE U/S.148 AND THE ASSESSING OFFICER HAD REFERRED THE CASE TO THE DVO FOR ASCERT AINING THE ESTIMATE OF INVESTMENT IN THE HOSPITAL BY THE ASSESSEE. HE ALSO PLACED REL IANCE ON SMT. KIRAN LATA V. ITAT (2009) 318 ITR 44 (UTTARAKHAND) 9. THE LD. COUNSEL FOR ASSESSEE FILED WRITTEN SUBMI SSIONS STATING THAT THE CONTENTIONS RAISED BY LD. SR-DR ARE WHOLLY UNJUSTIF IED AND UNTENABLE BOTH ON FACTS AND IN LAW. THE LD. COUNSEL FILED FOLLOWING WRITTEN OBJECTIONS IN REPLY TO ARGUMENTS OF LD. SR-DR:- (A) FIRSTLY THE TERM ASSESSMENT APPEARS AT DIFFE RENT PLACES IN THE ACT WITH DIFFERENT CONNOTATIONS IN THE CASE OF C.A. ABRAHAM V. ITO (1961) 41 ITR 425 ITA NO.696-700/AHD/2008 A.YS. 99-00 TO 03-04 DR.MAHIPATBHAI C PATEL V. ITO PATAN WD-3 MEHSA NA PAGE 6 249 (SC). THEREFORE IT HAS TO BE ASSIGNED CONTEXTUA L MEANING IN THE CASE OF A.N. LAKSHMAN SHENOY V. ITO (1958) 34 ITR 275 (SC). THUS IT SOMETIMES SIGNIFIES MERELY COMPUTATION OF INCOME SOMETIMES T HE WHOLE PROCESS FOR DETERMINING AND IMPOSING TAX LIABILITY. THE CORRECT CONNOTATION OF THE EXPRESSION ASSESSMENT IN A GIVEN PROVISION MUST B E DETERMINED ON AN EXAMINATION OF THE SAID PROVISION AND THE FACT THAT THE EXPRESSION HAS BEEN ELSEWHERE USED IN WIDER CONNOTATION WILL NOT MEAN T HAT IT IS TO USED DIN THE PARTICULAR PROVISION UNDER EXAMINATION. THEREFORE THE MEANING ASSIGNED TO THE EXPRESSION ASSESSMENT AS APPEARING IN SECTION 147 CANNOT BE MADE APPLICABLE TO THE SAID EXPRESSION APPEARING IN SECT ION 142A OF THE ACT. HONBLE SUPREME COURT IN THE CASE OF RAJESH JHAVERI STOCK BROKERS PVT. LTD. (SUPRA) WAS CALLED UPON TO DECIDE WHETHER THE INTIM ATION U/S.143(1)(A) WAS AN ORDER OF ASSESSMENT. EVEN WHILE EXAMINING THIS ISSU E THE HONBLE APEX COURT HELD THAT THERE IS A CONTEXTUAL DIFFERENCE BETWEEN THE EXPRESSIONS INTIMATION: AND ASSESSMENT ORDER. THUS THIS DECISION RELIED UPON BY THE LD. SR-DR IS NOT RELEVANT TO DECIDE THE ISSUE ARISING IN THE PRE SENT APPEALS. ON THE CONTRARY IT SUPPORTS THE CONTENTION OF THE ASSESSE E THAT THE TERM ASSESSMENT HAS DIFFERENT CONNOTATION AT DIFFERENT PLACES IN THE ACT THIS HAS BEEN EXPRESSLY SATED BY THE HONBLE COURT IN THIS D ECISION AND THERE IS A CLEAR DISTINCTION BETWEEN INTIMATION AND AN ORDER OF A SSESSMENT. (B) SECONDLY THE INTERPRETATION CANVASSED BY LD. S R-DEPARTMENTAL REPRESENTATIVE WOULD LEAD TO ABSURD RESULTS INASMUC H AS THE ASSESSMENT MADE U/S.143(3) OR 144 OR 147 PRIOR TO 30-09-2004 W OULD BE TREATED AS FINAL AND CONCLUSIVE BUT THE INTIMATION GIVEN U/S.143(1) (A) PRIOR TO 30-09-2004 WOULD NOT BECOME FINAL AND CONCLUSIVE. THEREFORE T HE ASSESSING OFFICER COULD MAKE REFERENCE TO THE VALUATION OFFICER IN AL L CASES FALLING IN THE CATEGORY OF INTIMATION BUT HE WOULD BE DEBARRED FRO M ALL CASES FALLING IN THE CATEGORY OF REGULAR ASSESSMENT OR REASSESSMENT MADE PRIOR TO THE SAID CUT OFF DATE. THIS WOULD RESULT INTO DISCRIMINATION AND CRE ATING TWO CLASSES OF CASES WITHOUT ANY INTELLIGENTSIA THIRDLY THE LEGISLATIVE INTENTION BEHIND ENACTME NT OF PROVISO OF SECTION 142A IS TO SEE THAT ALL THOSE CONCLUDED ASSESSMENTS ARE NOT DISTURBED BECAUSE OF THE RETROSPECTIVE AMENDMENT. THIS SECTIO N WAS INTRODUCED BY ITA NO.696-700/AHD/2008 A.YS. 99-00 TO 03-04 DR.MAHIPATBHAI C PATEL V. ITO PATAN WD-3 MEHSA NA PAGE 7 FINANCE NO.2 ACT 2004 W.E.F. 15-11-1972 SO AS TO S UPERSEDE THE DECISION OF HONBLE SUPREME COURT IN THE CASE OF AMIYA BALA PAUL V. CIT (2003) 262 ITR 407 (SC) WHEREIN IT WAS HELD THAT AO HAD NO POWER TO MAKE REFERENCE TO VALUATION OFFICER FOR ESTIMATE OF COST OF CONSTRUCT ION OF A PROPERTY. THEREFORE IF THE INTERPRETATION CANVASSED BY LD. SR-DR IS TAKEN AS INTIMATION HAS BEEN GIVEN AND NO ASSESSMENT U/S.143 OR 144 HAS BEEN M ADE. ON THE CONTRARY IT WAS THE INTENTION OF THE LEGISLATURE TO NOT TO DIST URB ALL THOSE ASSESSMENTS WHETHER BY WAY OF INTIMATION OR REGULAR WHICH HAVE BECOME FINAL AND CONCLUSIVE PRIOR TO 01-10-2004. (D) LASTLY EVEN ON THE PLAIN READING OF THE SAID P ROVISO IT IS APPARENT THAT THERE IS ONLY ONE EXCEPTION TO THIS RULE I.E. WHER E A REASSESSMENT IS REQUIRED TO BE MADE IN ACCORDANCE WITH THE PROVISIONS OF SEC TION153A THE FINALITY OR CONCLUSIVENESS OF ASSESSMENT WOULD BE DISTURBED TH OUGH IT WAS MADE PRIOR TO 01-10-2004. THIS ALSO INDICATES THAT HAD THE LEG ISLATURE INTENDED TO DISTURB EVEN ALSO THE CASES COVERED BY INTIMATION U/S.143(1 )(A) IT WOULD HAVE BEEN SO STATED EXPRESSLY. IF ALSO MEANS THAT ONLY THE RE ASSESSMENT REQUIRED TO BE MADE U/S.153A WILL BE DISTURBED AND ALL ANOTHER REA SSESSMENT SAY U/S.147 WOULD BE TREATED AS FINAL AND CONCLUSIVE. THERE IS A DISTINCTION BETWEEN ASSESSMENT U/S.153A AND ASSESSMENT REASSESSMENT U/S .147 OF THE ACT. IN VIEW OF THE ABOVE ARGUMENT THE LD. COUNSEL FOR T HE ASSESSEE STATED THAT THE REFERENCE MADE BY AO TO VALUATION OFFICER FOR ALL T HESE YEARS WAS NOT VALID AND LEGAL SO THAT THE AO WAS NOT JUSTIFIED IN TAKING ACCOUNT OF THE VALUATION OFFICER IN MAKING ASSESSMENT. 10. WE HAVE HEARD THE RIVAL CONTENTIONS AND GONE TH ROUGH THE FACTS AND CIRCUMSTANCES OF THE CASE. FIRST OF ALL WE HAVE TO DECIDE WHETHER THE PROCESSING U/S.143(1)(A) OR 143(1) OF THE ACT IS ASSESSMENT IN THE GIVEN FACTS AND CIRCUMSTANCES OF THE CASE. WE FIND THAT THE ASSESSEE IS A DOCTOR AND FOR THESE YEARS THE ASSESSEE FILED HIS RETURNS OF INCOME ON OR BEFORE DUE DATES OF FILING OF RETURNS U/S.139(1) OF THE ACT AND THE SAME WERE PROCESSED U/S.143(1)(A) OR 14 31(1) OF THE ACT AND FURTHER THE BUSINESS OF THE ASSESSEE WAS SURVEY U/S133A OF THE ACT BY THE INCOME-TAX DEPARTMENT ON 13-01-2003 THEREBY THE ASSESSEE MADE A DISCLOSURE OF HIS UNDISCLOSED INCOME AT RS.9 LAKH UNDER VARIOUS HEADS ONLY IN RESPECT TO ASSESSMENT ITA NO.696-700/AHD/2008 A.YS. 99-00 TO 03-04 DR.MAHIPATBHAI C PATEL V. ITO PATAN WD-3 MEHSA NA PAGE 8 YEAR 2003-04. THE ASSESSING OFFICER NOTICED FROM TH E RETURN OF INCOME FOR ASSESSMENT YEAR 2003-04 THAT THE UNDISCLOSED INCOME OFFERED BY THE ASSESSEE HAS NOT BEEN DECLARED IN THE RETURN OF INCOME AND ACCOR DINGLY HE REFERRED TO THE COST OF CONSTRUCTION TO THE DISTRICT VALUATION OFFICER (DVO IN SHORT) FOR DETERMINING THE ACTUAL COST OF CONSTRUCTION. THE DVO DETERMINED THE COST O F CONSTRUCTION OF THE ABOVE SAID PROPERTY AT RS.46 86 049/- AS AGAINST THE DECLARED COST OF THE ASSESSEE IN HIS BOOKS OF ACCOUNT AT RS.23 40 523/-. AS THE ASSESSEE HAS C ONSTRUCTED THIS HOSPITAL BUILDING FROM FINANCIAL YEARS 1997-98 TO 2002-03 RELEVANT TO ASSESSMENT YEARS 1998-99 TO 2003-04 THE AO INITIATED RE-ASSESSMENT PROCEEDINGS FOR ASSESSMENT YEARS 1999-00 TO 2003-04 BY ISSUING NOTICES U/S.148 OF THE ACT FO R THE RELEVANT ASSESSMENT YEARS. WE FIND THAT THE HONBLE APEX COURT IN THE CASE OF RAJESH JHAVERI STOCK BROKERS P. LTD. (SUPRA) HAS DISCUSSED THE ISSUE OF INTIMATION OR A SSESSMENT U/S.143(1)(A) OR 143(1) QUA SECTION 147 OF THE ACT. THE RELEVANT DIS CUSSION BY HONBLE APEX COURT IN THE CONTEXT OF SECTION 143(1)(A) IS MADE AT PAGE-508 AT PLACITUM 13 AS UNDER:- ONE THING FURTHER TO BE NOTICED IS THAT INTIMATION UNDER SECTION 143(1)(A) IS GIVEN WITHOUT PREJUDICE TO THE PROVISIONS OF SECTIO N 143(2). THOUGH TECHNICALLY THE INTIMATION ISSUED WAS DEEMED TO BE A DEMAND NOT ICE ISSUED UNDER SECTION 156 THAT DID NOT PER SE PRECLUDE THE RIGHT OF THE ASSESSING OFFICER TO PROCEED UNDER SECTION 143(2). THAT RIGHT IS PRESERV ED AND IS NOT TAKEN AWAY. BETWEEN THE PERIOD FROM APRIL 1 1989 AND MARCH 3 1 1998 THE SECOND PROVISO TO SECTION 143(1)(A) REQUIRED THAT WHERE A DJUSTMENTS WERE MADE UNDER THE FIRST PROVISO TO SECTION 143(1)(A) AN IN TIMATION HAD TO BE SENT TO THE ASSESSEE NOTWITHSTANDING THAT NO TAX OR REFUND WAS DUE FROM HIM AFTER MAKING SUCH ADJUSTMENTS. WITH EFFECT FROM APRIL 1 1998 THE SECOND PROVISO TO SECTION 143(1)(A) WAS SUBSTITUTED BY THE FINANCE ACT 19997 WHICH WAS OPERATIVE TILL JUNE 1 1999. THE REQUIREMENT WAS TH AT AN INTIMATION WAS TO BE SENT TO THE ASSESSEE WHETHER OR NOT ANY ADJUSTMENT HAD BEEN MADE UNDER THE FIRST PROVISO TO SECTION 143(1) AND NOTWITHSTAN DING THAT NO TAX OR INTEREST WAS FOUND DUE FROM THE ASSESSEE CONCERNED. BETWEEN APRIL 1 1998 AND MAY 31 1999 SENDING OF AN INTIMATION UNDER SECTIO N 143(1)(A) WAS MANDATORY. THUS THE LEGISLATIVE INTENT IS VERY CLE AR FROM THE USE OF THE WORD INTIMATION AS SUBSTITUTED FOR ASSESSMENT THAT T OW DIFFERENT CONCEPTS EMERGED. WHILE MAKING AN ASSESSMENT THE ASSESSING OFFICER IS FREE TO MAKE ANY ADDITION AFTER GRANT OF OPPORTUNITY TO THE ASSE SSEE. BY MAKING ADJUSTMENTS UNDER THE FIRST PROVISO TO SECTION 143( 1)(A) NO ADDITION WHICH IS IMPERMISSIBLE BY THE INFORMATION GIVEN IN THE RETUR N COULD BE MADE BY THE ASSESSING OFFICER. THE REASONS IS THAT UNDER SECTIO N 143(1)(A) NO OPPORTUNITY IS GRANTED TO THE ASSESSEE AND THE ASSESSING OFFICE R PROCEEDS ON HIS OPINION ON THE BASIS OF THE RETURN FILED BY THE ASSESSEE. T HE VERY FACT THAT NO OPPORTUNITY OF BEING HEARD IS GIVEN UNDER SECTION 1 43(1)(A) INDICATES THAT THE ASSESSING OFFICER HAS TO PROCEED ACCEPTING THE RETU RN AND MAKING THE PERMISSIBLE ADJUSTMENTS ONLY. AS A RESULT OF INSERT ION OF THE EXPLANATION TO SECTION 143 BY THE FINANCE (NO.2) ACT OF 1991 WITH EFFECT FROM OCTOBER 1 ITA NO.696-700/AHD/2008 A.YS. 99-00 TO 03-04 DR.MAHIPATBHAI C PATEL V. ITO PATAN WD-3 MEHSA NA PAGE 9 1991 AND SUBSEQUENTLY WITH EFFECT FROM JUNE 1 199 4 BY THE FINANCE ACT 1994 AND ULTIMATELY OMITTED WITH EFFECT FROM JUNE 1 1999 BY THE EXPLANATION AS INTRODUCED BY THE FINANCE (NO.2) ACT OF 1991 AN INTIMATION SENT TO THE ASSESSEE UNDER SECTION 143(1)(A) WAS DEEMED TO BE A N ORDER FOR THE PURPOSES OF SECTION 246 BETWEEN JUNE 1 1994 AND MA Y 31 1999. IT IS TO BE NOTED THAT THE EXPRESSIONS INTIMATION AND ASSESS MENT ORDER HAVE BEEN USED AT DIFFERENT PLACES. THE CONTEXTUAL DIFFERENCE BETWEEN THE TWO EXPRESSIONS HAS TO BE UNDERSTOOD IN THE CONTEXT THE EXPRESSIONS ARE USED. ASSESSMENT IS USED AS MEANING SOMETIMES THE COMPUT ATION OF INCOME SOMETIMES THE DETERMINATION OF THE AMOUNT OF TAX P AYABLE AND SOMETIMES THE WHOLE PROCEDURE LAID DOWN IN THE ACT FOR IMPOS ING LIABILITY UPON THE TAX PAYER. IN THE SCHEME OF THINGS AS NOTED ABOVE THE INTIMA TION UNDER S. 143(1)(A) CANNOT BE TREATED TO BE AN ORDER OF ASSESSMENT. THE DISTINCTION IS ALSO WELL BROUGHT OUT BY THE STATUTORY PROVISIONS AS THEY STO OD AT DIFFERENT POINTS OF TIME. U/S.143(1)(A) AS IT STOOD PRIOR TO 1 ST APRIL 1989 THE AO HAD TO PASS AN ASSESSMENT ORDER IF HE DECIDED TO ACCEPT THE RETURN BUT UNDER THE AMENDED PROVISION THE REQUIREMENT OF PASSING OF AN ASSESSM ENT ORDER HAS BEEN DISPENSED WITH AND INSTEAD AN INTIMATION IS REQUIRE D TO BE SENT. VARIOUS CIRCULARS SEND BY THE CBDT SPELL OUT THE INTENT OF THE LEGISLATURE I.E. TO MINIMIZE THE DEPARTMENTAL WORK TO SCRUTINIZE EACH A ND EVERY RETURN AND TO CONCENTRATE ON SELECTIVE SCRUTINY OF RETURNS. THESE ASPECTS WERE HIGHLIGHTED BODY ONE OF US (D.K.JAIN J.) IN APOGEE INTERNATION AL LTD. VS. UNION OF INDIA (1997) 137 CTR (DEL) 93 : (1996) 220 ITR 248 (DEL). IT MAY BE NOTED ABOVE THAT UNDER THE FIRST PROVISO TO THE NEWLY SUBSTITUT ED S.143(1) W.E.F. 1 ST JUNE 1999 EXCEPTED AS PROVIDED IN THE PROVISION ITSELF THE ACKNOWLEDGEMENT OF THE RETURN SHALL BE DEEMED TO BE AN INTIMATION UNDE R S. 143(1) WHERE (A) EITHER NO SUM IS PAYABLE BY THE ASSESSEE OR (B) NO REFUND IS DUE TO HIM. IT IS SIGNIFICANT THAT THE ACKNOWLEDGEMENT IS SNOT DONE B Y ANY AO BUT MOSTLY BY MINISTERIAL STAFF. CAN IT BE SAID THAT ANY ASSESSM ENT IS DONE BY THEM? THE REPLY IS AN EMPHATIC :NO. THE INTIMATION UNDER S. 143(1)(A) WAS DEEMED TO BE A NOTICE OF DEMAND UNDER S. 156 FOR THE APPAREN T PURPOSE OF MAKING MACHINERY PROVISIONS RELATING TO RECOVERY OF TAX AP PLICABLE. BY SUCH APPLICATION ONLY RECOVERY INDICATED TO BE PAYABLE I N THE INTIMATION BECAME PERMISSIBLE. AND NOTHING MORE CAN BE INFERRED FROM THE DEEMING PROVISION. THEREFORE THERE BEING NO ASSESSMENT UNDER S. 143(1 )(A) THE QUESTION OF CHANGE OF OPINION AS CONTENDED DOES NOT ARISE. 11. FURTHER THE HONBLE APEX COURT WHILE DEALING WI TH FINANCE ACT (XXV OF 1950) AND SECTION 31(1) OF THE INCOME-TAX ACT 1922 IN T HE CASE OF A.N. LAKSHMAN SHENOY V. ITO (1958) 34 ITR 275 (SC) DEFINED THE WORD ASSESSMEN T AT PAGE-291 AS UNDER:- THIS BRIEF RESUME OF THE RELEVANT PROVISIONS OF TH E INCOME-TAX ACT CLEARLY ESTABLISHES THAT THE WORD ASSESSMENT AS TO BE UND ERSTOOD IN EACH SECTION WITH REFERENCE TO THE CONTEXT IN WHICH IT HAS BEEN USED. IN SOME SECTIONS IT HAS A COMPREHENSIVE MEANING AND IN SOME A SOMEWHAT RESTRICTED MEANING TO BE DISTINGUISHED FROM A RE-ASSESSMENT OR EVEN A FRESH ASSESSMENT. ITA NO.696-700/AHD/2008 A.YS. 99-00 TO 03-04 DR.MAHIPATBHAI C PATEL V. ITO PATAN WD-3 MEHSA NA PAGE 10 NOW THE QUESTION IS IN WHAT SENSE HAS THE WORD ASS ESSMENT BEEN USED IN SECTION 13(1) OF THE FINANCE ACT 1950. TWO CIRCUMS TANCES MAY BE NOTICED AT ONCE. THE LONG TITLE SAYS THAT THE FINANCE ACT 195 0 IS AN ACT TO GIVE EFFECT TO THE FINANCIAL PROPOSALS OF THE CENTRAL GOVERNMENT F OR THE YEAR BEGINNING ON APRIL L 1950 AND IN SECTION 13(1) THE COLLECTION OF WORDS IS LEVY ASSESSMENT AND COLLECTION OF INCOME-TAX. IN OUR OPINION BOTH THESE CIRCUMSTANCES POINT TOWARDS A COMPREHENSIVE MEANING; FOR IT COULD NOT H AVE BEEN INTENDED AS PART OF THE PROPOSAL OF THE CENTRAL GOVERNMENT THA T THOSE WHOSE INCOME HAD TOTALLY ESCAPED ASSESSMENT SHOULD BE LIABLE BUT THO SE WHO HAD BEEN UNDER ASSESSED SHOULD GO SCOT FREE. WE CAN SEE NOTHING IN THE WORDS OF THE SECTION WHICH WOULD JUSTIFY SUCH A DISTINCTION; WE SAY THIS QUITE APART FROM THE ARGUMENT THAT SECTION 13(1) SHOULD BE INTERPRETED I N CONSONANCE WITH THE FINANCIAL AGREEMENT ENTERED INTO BETWEEN THE RAJPRA MUKH AND THE PRESIDENT AN ARGUMENT TO WHICH WE SHALL PRESENTLY ADVERT. MOR EOVER THE COLLECTION OF THE WORDS LEVY ASSESSMENT AND COLLECTION. INDICA TES THAT WHAT IS MEANT IS THE ENTIRE PROCESS BY WHICH THE TAX IS ASCERTAINED DEMANDED AND REALIZED. FURTHER THE HONBLE APEX COURT DEALING WITH SECTIO N 28 AND 44 OF 1922 INCOME-TAX ACT HAS DEFINED THE EXPRESSION ASSESSMENT IN THE CASE OF C.A. ABRAHAM V. ITO (1961) 41 ITR 425 (SC) AS UNDER:- THE EXPRESSION ASSESSMENT USED IN THE SECTIONS O F CHAPTER IV OF THE INCOME-TAX ACT IS NOT USED MERELY IN THE SENSE OF C OMPUTATION OF INCOME AND WHEN SECTION 44 DECLARES THAT THE PARTNERS OR MEMBE RS OF THE FIRM OR ASSOCIATION SHALL BE JOINTLY AND SEVERALLY LIABLE I N ASSESSMENT IT REFERS TO THE LIABILITY TO COMPUTATION OF INCOME UNDER SECTION 23 AS WELL AS THE APPLICATION OF THE PROCEDURE FOR DECLARATION AND IMPOSITION OF TAX LIABILITY AND THE MACHINERY FOR ENFORCEMENT THEREOF. NOR HAS THE EXPR ESSION ALL THE PROVISIONS OF CHAPTER IV SHALL SO FAR AS MAY BE APPLY TO SUCH ASSESSMENT A RESTRICTED CONTENT; IN TERMS IT SAYS THAT ALL THE PROVISIONS O F CHAPTER IV SHALL APPLY SO FAR AS MAY BE TO ASSESSMENT OF FIRMS WHICH HAVE DISCON TINUED THEIR BUSINESS .BY SECTION 28 THE LIABILITY TO PAY ADDITIONAL TAX WHI CH IS DESIGNATED PENALTY IS IMPOSED IN VIEW OF THE DISHONEST CONTUMACIOUS CONDU CT OF THE ASSESSEE. THE LIABILITY ARISES ONLY IF THE INCOME-TAX OFFICER IS SATISFIED ABOUT THE EXISTENCE OF THE CONDITIONS WHICH GIVE HIM JURISDICTION AND THE QUANTUM THEREOF DEPENDS UPON THE CIRCUMSTANCES OF THE CASE. THE PENALTY IS NOT UNIFORM AND ITS IMPOSITION DEPENDS UPON THE EXERCISE OF DISCRETION BY THE TAXING AUTHORITIES; BUT IT IS IMPOSED AS A PART OF THE MACHINERY FOR AS SESSMENT OF TAX LIABILITY. THE USE OF THE EXPRESSIONS SO FAR AS MAY BE IN THE LA ST CLAUSE OF SECTION 44 ALSO DOES NOT RESTRICT THE APPLICATION OF THE PROVISIONS OF CHAPTER IV ONLY TO THOSE WHICH PROVIDE FOR COMPUTATION OF INCOME. BY THE USE OF THE EXPRESSION SO FAR AS MAY BE IT IS MERELY INTENDED TO ENACT THAT THE PROVISIONS IN CHAPTER IV WHICH FROM THEIR NATURE HAVE NO APPLICATION TO FIRM S WILL NOT APPLY THERETO BY VIRTUE OF SECTION 44. IN EFFECT THE LEGISLATURE HA S ENACTED BY SECTION 44 THAT THE ASSESSMENT PROCEEDINGS MAY BE COMMENCED AND CON TINUED AGAINST A FIRM WHOSE BUSINESS IS DISCONTINUED AS IF DISCONTIN UANCE HAS NOT TAKEN PLACE. IT IS ENACTED MANIFESTLY WITH A VIEW TO ENSURE CONT INUITY IN THE APPLICATION OF ITA NO.696-700/AHD/2008 A.YS. 99-00 TO 03-04 DR.MAHIPATBHAI C PATEL V. ITO PATAN WD-3 MEHSA NA PAGE 11 THE MACHINERY PROVIDED FOR ASSESSMENT AND IMPOSITIO N OF TAX LIABILITY NOTWITHSTANDING DISCONTINUANCE OF THE BUSINESS OF T HE FIRM. 12. AFTER CONSIDERING THESE JUDGMENTS OF HONBLE AP EX COURT WE ARE OF THE VIEW THAT THE MEANING OF ASSESSMENT IS TO BE UNDERSTOO D FOR EACH SECTION WITH REFERENCE TO THE CONTEXT IN WHICH IT HAS BEEN USED AND ITS ME ANING IN SOME SECTIONS IT IS COMPREHENSIVE AND IN SOME A SOMEWHAT RESTRICTED T O BE DISTINGUISHED FROM A RE- ASSESSMENT OR EVEN A FRESH ASSESSMENT. NOW THE M EANING OF ASSESSMENT IS TO BE UNDERSTOOD IN THE CONTEXT OF THE PROVISO TO SECT ION 142A OF THE ACT AS INSERTED BY THE FINANCE (NO.2) ACT 2004 W.R.E.F. 15-11-1972 WHICH READS AS UNDER:- ESTIMATE BY VALUATION OFFICER IN CERTAIN CASES. 142A PROVIDED THAT NOTHING CONTAINED IN THIS SECTION SH ALL APPLY IN RESPECT OF AN ASSESSMENT MADE ON OR BEFORE THE 30 TH DAY OF SEPTEMBER 2004 AND WHERE SUCH ASSESSMENT HAS BECOME FINAL AND CONCLUSIVE ON OR BEFORE THAT DATE EXCEPT IN CASES WHERE A REASSESSMENT IS REQUIRED TO BE MADE IN ACCORDANCE WITH THE PROVISIONS OF SECTION 153A. THIS PROVISO WAS EXPLAINED IN THE NOTES ON CLAUSES FINANCE (NO.2) BILL 2004 AS UNDER:- [FROM (2004) 268 ITR 144 (STATUTES)] CLAUSE 31 OF THE BILL SEEKS TO INSERT A NEW SECTIO N 142A OF THE INCOME-TAX ACT RELATING TO ESTIMATE BY VALUATION OFFICER IN CE RTAIN CASES. SUB-SECTION (1) OF THE PROPOSED NEW SECTION 142A PR OVIDES HAT WHERE AN ESTIMATE OF THE VALUE OF ANY INVESTMENT REFERRED TO IN SECTION 69 OR SECTION 69B OR THE VALUE OF ANY BULLION JEWELLERY OR OTHER VALUABLE ARTICLE REFERRED TO IN SECTION 69A OR SECTION 69B IS REQUIRED FOR THE PURP OSE OF MAKING AN ASSESSMENT OR REASSESSMENT UNDER THIS ACT THE ASSE SSING OFFICER MAY REQUIRE THE VALUATION OFFICER TO MAKE AN ESTIMATE O F SUCH VALUE AND REPORT THE SAME TO HIM. SUB-SECTION (2) OF THE PROPOSED NEW SECTION 142A PR OVIDES THAT THE VALUATION OFFICER TO WHOM A REFERENCE IS MADE UNDER SUB-SECTI ON (1) MAY FOR THE PURPOSES OF DEALING WITH SUCH REFERENCE HAVE ALL T HE POWERS THAT HE HAS UNDER SECTION 38A OF THE WEALTH-TAX ACT 1957. SUB-SECTION (3) OF THE PROPOSED NEW SECTION 142A PR OVIDES THAT THE ASSESSING OFFICER MAY ON RECEIPT OF THE REPORT FRO M THE VALUATION OFFICER AND AFTER GIVING THE ASSESSEE AN OPPORTUNITY OF BEING H EARD TAKE INTO ACCOUNT SUCH REPORT IN MAKING SUCH ASSESSMENT OR REASSESSME NT. THE PROVISIONS CONTAINED IN THE PROPOSED NEW SECTIO N 142A SHALL NOT APPLY IN RESPECT OF ASSESSMENT MADE ON OR BEFORE 30 TH SEPTEMBER 2004 AND WHERE SUCH ASSESSMENT HAS BECOME FINAL AND CONCLUSIVE ON OR BEFORE THAT DATE ITA NO.696-700/AHD/2008 A.YS. 99-00 TO 03-04 DR.MAHIPATBHAI C PATEL V. ITO PATAN WD-3 MEHSA NA PAGE 12 EXCEPT IN CASES WHERE REASSESSMENT IS REQUIRED TO B E MADE UNDER SECTION 153A. IT IS PROPOSED TO PROVIDE IN THE EXPLANATION THAT T HE DEFINITION OF THE EXPRESSION VALUATION OFFICER SHALL HAVE THE SAME MEANING AS IN CLAUSE OF SECTION 2 OF THE WEALTH-TAX ACT 1957. THIS AMENDMENT WILL TAKE EFFECT RETROSPECTIVELY FRO M 15 TH NOVEMBER 1972. FURTHER THIS PROVISO WAS EXPLAINED IN THE MEMORANDU M EXPLAINING PROVISIONS IN THE FINANCE (NO.2) BILL 2004 AS UNDER:-[FROM (2004) 26 8 ITR 198 (STATUES)] FOR DETERMINING THE COST OF CONSTRUCTION OF PROPER TIES AN ASSESSING OFFICER HAS BEEN TAKING THE ASSISTANCE OF A VALUATION OFFIC ER BY EXERCISING HIS POWER VESTED IN HIM UNDER SECTION1 131 OF THE INCOME-TAX ACT WHICH PROVIDES THAT THE ASSESSING OFFICER SHALL HAVE THE SAME POWERS AS ARE VESTED IN A COURT UNDER THE CODE OF CIVIL PROCEDURE 1908 WHEN TRYIN G A SUIT. ONE SUCH POWER IS OF ISSUING COMMISSION PROVIDED UNDER CLAUSE (D ) OF SUB-SECTION (1) OF THE SAID SECTION WHICH INTER ALIA EMPOWERS THE COURT T O MAKE A LOCAL INVESTIGATION AND ALSO TO HOLD A SCIENTIFIC TECH NICAL OR EXPERT INVESTIGATION:. THE AUTHORITY OF VALUATION OFFICER WAS CREATED UNDE R THE WEALTH-TAX ACT BY TAXATION LAWS(AMENDMENT) ACT 1972 WITH EFFECT FRO M 15-11-1972. THE SCOPE OF POWER UNDER SECTION 131 VESTED IN AN ASSES SING OFFICER TO MAKE A REFERENCE TO THE VALUATION OFFICER FOR ESTIMATING T HE COST OF CONSTRUCTION OF PROPERTIES HAS BEEN A MATTER4 OF DIFFERENT LEGAL IN TERPRETATIONS. WITH A VIEW TO REMOVE ANY DOUBT IN THIS REGARD IT IS PROPOSED TO INSERT A NEW SECTION 142A WITH RETROSPECTIVE EFFECT FROM 15-11- 1972 SO AS TO CLEARLY THAT ASSESSING OFFICER HAS AND ALWAYS HAD THE POWER TO M AKE A REFERENCE TO THE VALUATION OFFICER. SUB-SECTION (1) OF PROPOSED SECTION PROVIDES THAT W HERE AN ESTIMATE OF THE VALUE OF ANY INVESTMENT REFERRED TO IN SECTION 69 O R SECTION 69B OR THE VALUE OF ANY BULLION JEWELLERY OR OTHER VALUABLE ARTICLE RE FERRED TO IN SECTION 69A OR SECTION 69B IS REQUIRED FOR THE PURPOSES OF MAKING ANY ASSESSMENT OR REASSESSMENT THE ASSESSING OFFICER MAY REQUIRE THE VALUATION OFFICER TO MAKE AN ESTIMATE OF THE SAME AND REPORT TO THE ASSE SSING OFFICER. SUB-SECTION (2) OF THE PROPOSED SECTION PROVIDES TH AT THE VALUATION OFFICER TO WHOM SUCH A REFERENCE IS MADE UNDER SUB-SECTION (1) SHALL FOR THE PURPOSE OF DEALING WITH SUCH REFERENCE HAVE ALL THE POWERS THAT HE HAS UNDER SECTION 38A OF THE WEALTH-TAX ACT 1957. SUB-SECTION (3) OF THE PROPOSED SECTION PROVIDES TH AT ON RECEIPT OF THE REPORT FROM THE VALUATION OFFICER THE ASSESSING OFFICER M AY AFTER GIVING THE ASSESSEE AN OPPORTUNITY OF BEING HEARD TAKE INTO A CCOUNT SUCH REPORT IN MAKING SUCH ASSESSMENT OR REASSESSMENT. ITA NO.696-700/AHD/2008 A.YS. 99-00 TO 03-04 DR.MAHIPATBHAI C PATEL V. ITO PATAN WD-3 MEHSA NA PAGE 13 AS THE INTENTION OF INSERTING NEW SECTION142A RETRO SPECTIVELY IS NOT TO UNSETTLE THE CASES ALREADY DECIDED (EXCEPT IN CASES WHERE A REASSESSMENT IS REQUIRED TO BE MADE UNDER SECTION 153A) IT IS PROPOSED TO P ROVIDE A PROVISION TO THE NEW SECTION TO THE EFFECT THAT THE PROVISIONS OF TH E SAME SHALL NOT APPLY IN RESPECT OF AN ASSESSMENT MADE ON OR BEFORE THE 30 TH DAY OF SEPTEMBER 2004 AND WHERE SUCH ASSESSMENT HAS BECOME FINAL AND CONC LUSIVE ON OR BEFORE THAT DATE. THIS AMENDMENT WILL TAKE EFFECT RETROSPECTIVELY FRO M 15 TH NOVEMBER 1972. 13. WE FIND FROM THE MEMORANDUM EXPLAINING THE PROV ISIONS HAS CLEARLY BROUGHT THE INTENTION FOR INSERTING THE NEW SECTION 142A RE TROSPECTIVELY NOT TO UNSETTLE THE CASES ALREADY DECIDED EXCEPT IN CASES WHERE RE-ASS ESSMENT U/S.153A IS TO BE MADE IN CONSEQUENT TO SEARCH & SEIZURE PROCEEDINGS. THE PROVISO WAS PROVIDED IN THE NEW SECTION FOR THE REASON THAT THIS SECTION WI LL NOT APPLY IN RESPECT OF ASSESSMENT MADE ON OR BEFORE 30-09-2004 AND SUCH AS SESSMENT HAD BECOME FINAL AND CONCLUSIVE ON OR BEFORE THIS DATE. THE PROVISI ONS OF SECTION 142A WAS BROUGHT IN THE ABSENCE OF A SPECIFIC PROVISION FOR REFERENC E TO THE DVO FOR ESTIMATING COST OF CONSTRUCTION OF A PROPERTY AS THE ASSESSING OFFICE RS WERE USING POWERS U/S 131 133 AND 142(1) OF THE ACT AND EVEN SECTION 55A. HONBLE SUPREME COURT RULING OUT THE AVAILABILITY OF ANY SUCH POWER UNDER LAW IN AMIYA B ALA PAUL V CIT (2003) 263 ITR 407 (SC) AND THIS DECISION WAS NEUTRALIZED BY RETR OSPECTIVE AMENDMENT TO SECTION 142A OF THE ACT WITH EFFECT FROM 15.11.1972 BUT RET ROSPECTIVITY WAS LIMITED TO SUCH ASSESSMENTS WHICH HAD BECOME FINAL AND CONCLUSIVE B EFORE 30-09-2004 EXCEPT IN CASES WHERE RE-ASSESSMENT IS PENDING UNDER SECTION 153A OF THE ACT. THE OBJECT WAS THAT THE AMENDMENT SHOULD APPLY FOR PENDING AND FUTURE ASSESSMENTS ONLY. ASSESSMENTS COMPLETED ON OR BEFORE 30-09-2004 WILL BE HIT BY THE PROVISO AND THE ASSESSING OFFICER CANNOT MAKE REFERENCE TO DVO FOR VALUATION OF COST OF CONSTRUCTION OF PROPERTY IN RESPECT TO SUCH ASSESSMENT MERELY TO GIVE FURTHER LIFE. WE ARE OF THE VIEW THAT THE ASSESSING OFFICER HAS NO POWER TO CAL L FOR VALUATION REPORT IN RESPECT OF ASSESSMENTS COMPLETED ON OR BEFORE THAT DATE WHICH HAD BECOME FINAL AND CONCLUSIVE. 14. EXACTLY ON SIMILAR FACTS WHERE ASSESSMENT WAS COMPLETED U/S 143(1)(A) OF THE ACT HONBLE PUNJAB AND HARYANA HIGH COURT IN T HE CASE OF CIT V. KRISHANLAL DUA (2005) 277 ITR 488 ( P & H) CONSIDERED THE FACTS A S UNDER:- ITA NO.696-700/AHD/2008 A.YS. 99-00 TO 03-04 DR.MAHIPATBHAI C PATEL V. ITO PATAN WD-3 MEHSA NA PAGE 14 WHETHER THE INCOME-TAX APPELLATE TRIBUNAL (DELHI B ENCH SMC-I DELHI) (FOR SHORT THE TRIBUNAL) WAS JUSTIFIED IN DELETING TH E ADDITIONS MADE BY THE ASSESSING OFFICER ON ACCOUNT OF DIFFERENCE BETWEEN THE COST OF CONSTRUCTION SHOWN BY THE ASSESSEE AND THE ONE ASSESSED BY THE D EPARTMENTAL VALUATION OFFICER IS THE QUESTION OF WHICH DETERMINATION HAS BEEN SOUGHT BY THE APPELLANT IN THIS APPEAL FILED UNDER SECTION 260A O F THE INCOME-TAX ACT 1961 (FOR SHORT THE ACT). FOR THE ASSESSMENT YEAR 1993-94 THE RESPONDENT FIL ED A RETURN DECLARING AN INCOME OF RS.27 660. BY AN ORDER DATED MARCH 31 19 95 THE ASSESSING OFFICER COMPLETED THE ASSESSMENT UNDER SECTION 143( 1)(A) OF THE ACT. THAT ORDER WAS NOT CHALLENGED BY THE REVENUE BY FILING A PPEAL ETC. DURING THE COURSE OF ASSESSMENT PROCEEDINGS FOR THE ASSESSMENT YEAR 1994- 95 THE ASSESSING OFFICER NOTED THAT THE ASSESSEE H AD CONSTRUCTED A BUILDING ON PLOT NO.20- VEER SAVARKAR MARG SHAKURPOR DELH I IN THE FINANCIAL YEARS 1992-93 AND 1993-94 RELEVANT TO THE ASSESSMENT YEAR S 1993-94 AND 1994-95 AT A COST OF RS.9 65 250. HE DID NOT FEEL CONVINCED WITH THE VALUE PROJECTED BY THE RESPONDENT AND REFERRED THE MATTER TO THE VALUA TION OFFICER NEW DELHI FOR DETERMINING THE COST OF CONSTRUCTION. THE LATTER VA LUED THE COST OF THE BUILDING AT RS.12 53 900/-. AFTER CONSIDERING THE OBJECTIONS FILED BY THE RESPONDENT THE ASSESSING OFFICER DETERMINED THE DIFFERENCE IN THE COST OF CONSTRUCTION AT RS.2 39 243. HE ALSO OBSERVED THAT 69.38 PER CENT CONSTRUCTION WAS MADE IN THE FINANCIAL YEAR 1992-93 (ASSESSMENT YEAR 1993-94 ) AND THE BALANCE WAS CONSTRUCTED IN THE FINANCIAL YEAR 1993-94 (ASSESSME NT YEAR 1994-95). ACCORDINGLY HE DETERMINED THE AMOUNT OF DIFFERENCE IN THE COST OF CONSTRUCTION FOR THE ASSESSMENT YEAR 1993-94 AT RS. 1 65 984 AND INITIATED PROCEEDINGS UNDER SECTION 147 OF THE ACT. IN RESPON SE TO THE NOTICE DATED MAY 29 1997 ISSUED UNDER SECTION 148 OF THE ACT THE RESPONDENT FILED REPLY DATED JULY 3 1997. AFTER CONSIDERING THE SAME THE ASSESSING OFFICER VIDE HIS ORDER DATED DECEMBER 6 1999 REASSESSED THE INCOME OF THE RESPONDENT FOR THE ASSESSMENT YEAR 1993-94 AT RS.1 99 881 WHICH IN CLUDED THE ALLEGED UNEXPLAINED INVESTMENT IN THE PROPERTY AMOUNTING TO RS.1 65 984. THE COMMISSIONER OF INCOME TAX (APPEALS) ROHTAK (FOR S HORT THE CIT(A))) ALLOWED THE APPEAL FILED BY THE RESPONDENT AND DELE TED THE ADDITION OF RS.1 65 984 MADE BY THE ASSESSING OFFICER. HOWEVER HE MAINTAINED SOME OTHER ADDITION S MADE BY THE ASSESSING OFFICER. FEELING DISSATISFIED WITH THE ORDER OF THE COMMISSI ONER OF INCOME-TAX (APPEALS) THE RESPONDENT FILED FURTHER APPEAL BEFO RE THE TRIBUNAL. HE FILED ANOTHER APPEAL AGAINST THE ORDER PASSED IN RELATION TO THE ASSESSMENT YEAR 1994-95. THE TRIBUNAL RELIED ON THE JUDGMENT OF TH E SUPREME COURT IN SMT. AMIYA BALA PAUL V. CIT [2003] 262 ITR 407 AND DECLA RED THAT THE ASSESSING OFFICER DID NOT HAVE THE JURISDICTION TO MAKE ADDIT ION ON THE BASIS OF THE DEPARTMENTAL VALUATION OFFICERS REPORT. PARAGRAPH 3 OF THE TRIBUNALS ORDER READS AS UNDER:- AFTER CONSIDERING THE RIVAL SUBMISSIONS I FIND THA T THE RATIO OF THE DECISION ON OF THE SUPREME COURT IN THE CASE OF SMT . AMIYA BALA ITA NO.696-700/AHD/2008 A.YS. 99-00 TO 03-04 DR.MAHIPATBHAI C PATEL V. ITO PATAN WD-3 MEHSA NA PAGE 15 PAUL V CIT [2003] 262 ITR 407 IS SQUARELY APPLICABL E ON THE FACTS OF THE PRESENT CASE AS IN VIEW OF THE DECISION OF THE APEX COURT THE DEPARTMENTAL AUTHORITIES HAVE NO POWER TO REFER THE MATTER TO THE DVO FOR THE PURPOSE OF VALUING THE COST OF CONSTRUCTION IN THE HOUSE PROPERTY. THEREFORE THE ADDITION DON THE BASIS OF THE DVOS REPORT CANNOT BE SUSTAINED. ACCORDINGLY I DELETE ALL THE ADDITIONS MADE BY THE ASSESSING OFFICER ON THE BASIS OF THE DVOS REPORT. THIS GROUND OF THE ASSESSEE IS ALLOWED. HONBLE HIGH COURT AFTER DISCUSSING THE FACTS AS AB OVE AND THE PROVISO OF SECTION 142A OF THE ACT HELD AS UNDER:- A READING OF THE PROVISION REPRODUCED ABOVE SHOWS THAT WHILE THE ESTIMATE OF VALUE OF THE PROPERTY ETC. MADE BY THE VALUATION OFFICER HAS BEEN TREATED AS RELEVANT FOR THE PURPOSE OF MAKING ASSESSMENT BY V IRTUE OF THE PROVISO APPEARING BELOW SUB-SECTION (3) THE SAME HAS BEEN MADE INAPPLICABLE IN RESPECT OF AN ASSESSMENT MADE ON OR BEFORE THE 30 TH DAY OF SEPTEMBER 2004 WHERE SUCH ASSESSMENT HAD BECOME FINAL AND CO NCLUSIVE EXCEPT WHERE REASSESSMENT IS REQUIRED TO BE MADE UNDER SECTION 1 53A. IN THE CASE BEFORE US THE ASSESSMENT HAD BECOME FI NAL ON MARCH 31 1995. IT IS NOT THE APPELLANTS CASE THAT THE SAID ORDER IS LIABLE TO BE REVISED AND REASSESSMENT IS REQUIRED TO BE MADE UNDER SECTION 1 53A OF THE ACT. THEREFORE SECTION 142A CANNOT BE PRESSED INTO SERV ICE FOR SUSTAINING THE ADDITION MADE BY THE ASSESSING OFFICER ON THE BASIS OF THE VALUATION REPORT PREPARED BY THE VALUATION OFFICER. 15. WE FIND FROM THE ABOVE THAT THE TERM ASSESSMEN T APPEARS AT DIFFERENT PLACES IN THE ACT WITH DIFFERENT CONNOTATIONS AND IT HAS TO BE ASSIGNED CONTEXTUAL MEANING AS HELD BY HONBLE APEX COURT IN THE CASE OF C.A. ABRAHAM (SUPRA) AND OF A.N. LAKSHMAN SHENOY (SUPRA). THUS WE MEAN THAT IT SOMETIMES SIGNIFIES MERELY COMPUTATION OF INCOME SOMETIMES THE WHOLE PROCESS FOR DETERMINING AND IMPOSING TAX LIABILITY BUT THE CORRECT CONNOTATION OF THE EX PRESSION ASSESSMENT IN A GIVEN PROVISION MUST BE DETERMINED ON AN EXAMINATION OF T HE SAID PROVISION AND THE FACT THAT THE EXPRESSION HAS BEEN ELSEWHERE USED IN WIDE R CONNOTATION WILL NOT MEAN THAT IT IS TO BE USED IN PARTICULAR PROVISION. THEREFORE THE MEANING ASSIGNED TO THE EXPRESSION ASSESSMENT AS APPEARING IN SECTION 147 CANNOT BE MADE APPLICABLE TO THE SAID EXPRESSION APPEARING IN SECTION 142A OF TH E ACT. HONBLE SUPREME COURT IN THE CASE OF RAJESH JHAVERI STOCK BROKERS PVT. LTD. (SUPRA) WAS CALLED UPON TO DECIDE WHETHER THE INTIMATION U/S.143(1)(A) WAS AN ORDER O F ASSESSMENT AND WHILE EXAMINING THIS ISSUE THE HONBLE APEX COURT HELD T HAT THERE IS A CONTEXTUAL DIFFERENCE BETWEEN THE EXPRESSIONS INTIMATION: AND ASSESSME NT ORDER. THUS THIS DECISION ITA NO.696-700/AHD/2008 A.YS. 99-00 TO 03-04 DR.MAHIPATBHAI C PATEL V. ITO PATAN WD-3 MEHSA NA PAGE 16 RELIED UPON BY THE LD. SR-DR IS NOT RELEVANT TO DEC IDE THE ISSUE ARISING IN THE PRESENT APPEALS. ON THE CONTRARY IT SUPPORTS THE C ONTENTION OF THE ASSESSEE THAT THE TERM ASSESSMENT HAS DIFFERENT CONNOTATION AT DIFF ERENT PLACES IN THE ACT THIS HAS BEEN EXPRESSLY SATED BY THE HONBLE COURT IN THIS D ECISION AND THERE IS A CLEAR DISTINCTION BETWEEN INTIMATION AND AN ORDER OF A SSESSMENT. ACCORDINGLY THE INTERPRETATION CANVASSED BY LD. SR-DEPARTMENTAL REP RESENTATIVE WOULD LEAD TO ABSURD RESULTS INASMUCH AS THE ASSESSMENT MADE U/S. 143(3) OR 144 OR 147 PRIOR TO 30-09-2004 WOULD BE TREATED AS FINAL AND CONCLUSIVE BUT THE INTIMATION GIVEN U/S.143(1)(A) PRIOR TO 30-09-2004 WOULD NOT BECOME FINAL AND CONCLUSIVE. THEREFORE THE ASSESSING OFFICER COULD MAKE REFERENCE TO THE V ALUATION OFFICER IN ALL CASES FALLING IN THE CATEGORY OF INTIMATION BUT HE WOULD BE DEBARRED FROM ALL CASES FALLING IN THE CATEGORY OF REGULAR ASSESSMENT OR REASSESSMENT MADE PRIOR TO THE SAID CUT OFF DATE. THIS WOULD RESULT INTO DISCRIMINATION AND THI S IS NOT THE INTENTION OF THE AMENDMENT I.E. THE PROVISO TO SECTION 142A OF THE A CT. WE ARE OF THE VIEW THAT THE LEGISLATIVE INTENTION BEHIND ENACTMENT OF PROVISO O F SECTION 142A IS TO SEE THAT ALL THOSE CONCLUDED ASSESSMENTS ARE NOT DISTURBED BECAU SE OF THE RETROSPECTIVE AMENDMENT AS THIS SECTION WAS INTRODUCED BY FINANCE NO.2 ACT 2004 W.E.F. 15-11- 1972 SO AS TO SUPERSEDE THE DECISION OF HONBLE SUP REME COURT IN THE CASE OF AMIYA BALA PAUL (SUPRA) WHEREIN IT WAS HELD THAT AO HAD NO POWER TO MAKE REFERENCE TO VALUATION OFFICER FOR ESTIMATE OF COST OF CONSTRUCTION OF A PROPERTY. THEREFORE IF THE INTERPRETATION CANVASSED BY LD. SR -DR IS TAKEN AS INTIMATION HAS BEEN GIVEN AND NO ASSESSMENT U/S.143 OR 144 HAS B EEN MADE. ON THE CONTRARY IT WAS THE INTENTION OF THE LEGISLATURE NOT TO DISTURB ALL THOSE ASSESSMENTS WHETHER BY WAY OF INTIMATION OR REGULAR WHICH HAVE BECOME FINA L AND CONCLUSIVE PRIOR TO 01-10- 2004. WE FURTHER FIND FROM THE PLAIN READING OF THE SAID PROVISO THAT THERE IS ONLY ONE EXCEPTION TO THIS RULE I.E. WHERE A REASSESSMENT I S REQUIRED TO BE MADE IN ACCORDANCE WITH THE PROVISIONS OF SECTION153A THE FINALITY OR CONCLUSIVENESS OF ASSESSMENT WOULD BE DISTURBED THOUGH IT WAS MADE P RIOR TO 01-10-2004. THIS ALSO INDICATES THAT HAD THE LEGISLATURE INTENDED TO DIST URB EVEN ALSO THE CASES COVERED BY INTIMATION U/S.143(1)(A) IT WOULD HAVE BEEN SO STA TED EXPRESSLY. IF ALSO MEANS THAT ONLY THE REASSESSMENT REQUIRED TO BE MADE U/S.153A WILL BE DISTURBED AND ALL ASSESSMENTS OR REASSESSMENT SAY U/S.147 WOULD BE T REATED AS FINAL AND CONCLUSIVE. THERE IS A DISTINCTION BETWEEN ASSESSMENT U/S.153A AND ASSESSMENT OR REASSESSMENT U/S.147 OF THE ACT. THE POLICY OF LAW IS THAT THERE MUST BE A POINT OF ITA NO.696-700/AHD/2008 A.YS. 99-00 TO 03-04 DR.MAHIPATBHAI C PATEL V. ITO PATAN WD-3 MEHSA NA PAGE 17 FINALITY IN ALL LEGAL PROCEEDINGS THAT STALE ISSUE S SHOULD NOT BE REACTIVATED BEYOND A PARTICULAR STAGE AND THAT LAPSE OF TIME MUST INDUCE REPOSE IN AND SET AT REST JUDICIAL AND QUASI JUDICIAL CONTROVERSIES AS IT MUST IN OTHE R SPHERES OF HUMAN ACTIVITY. THE ESSENTIAL PRINCIPLE AS TO THE RULE OF FINALITY OF A N ASSESSMENT IS THAT THE ASSESSING OFFICER CANNOT CHANGE HIS MOOD AND TRY TO REOPEN A CLOSED STATE OF AFFAIRS. THERE IS A WELL SETTLED PRINCIPLE AGAINST INTERFERENCE WITH RE STED RIGHTS BY SUBSEQUENT LEGISLATION UNLESS THE LEGISLATION HAS MADE RETROSP ECTIVE EXPRESSLY OR BY NECESSARY APPLICATION. IF AN ASSESSMENT HAS ALREADY BEEN MADE AND COMPLETED THE ASSESSEE CANNOT BE SUBJECTED TO RE-ASSESSMENT UNLESS THE STA TUE PERMITS THAT TO BE DONE. SIMILARLY THE PROVISO TO SECTION 142A PROVIDES ONE EXCEPTION TO THIS RULE I.E. WHERE A REASSESSMENT IS REQUIRED TO BE MADE IN ACCORDANCE WITH THE PROVISIONS OF SECTION153A THE FINALITY OR CONCLUSIVENESS OF ASSE SSMENT WOULD BE DISTURBED THOUGH IT WAS MADE PRIOR TO 01-10-2004. IN VIEW OF THE ABOVE FACTS AND CIRCUMSTANCES AND LEGAL POSITION AS DISCUSSED ABOV E WE ALLOW THIS ISSUE OF THE ASSESSEES APPEALS 16. IN THE RESULT ASSESSEES APPEALS ARE ALLOWED. ORDER PRONOUNCED IN OPEN COURT ON 13/08/2010 SD/- SD/- (N.S.SAINI) (MAHAVIR SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD DATED : 13/08/2010 *DKP COPY OF THE ORDER FORWARDED TO : 1. THE ASSESSEE. 2. THE REVENUE. 3. THE CIT(APPEALS)-GNR 4. THE CIT CONCERNS. 5. THE DR ITAT AHMEDABAD 6. GUARD FILE. BY ORDER /TRUE COPY/ DEPUTY / ASSTT.REGISTRAR ITAT AHMEDABAD