Smt. Nirmal Arora, Kanpur V. The CIT, Kanpur

ITA 287/LKW/2010

• Counselvise Citation: 28723714 RSA 2010
• Duration Of Justice: 4 year(s) 4 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-09-2014
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 22-07-2014
• Assessment Year: 2005-2006
• Appeal Filed On: 26-04-2010
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: P K KAPOOR
• Keywords: Search and seizure; Principle of natural justice; Valuation report; Assessment record
• Section: 143(3); 153A; 263

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH B, LUCKNOW BEFORE SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER AND SHRI A.K. GARODIA, ACCOUNTANT MEMBER ITA NOS.287 & 288/LKW/2010 ASSESSMENT YEARS:2005 - 06 & 2006 - 07 SMT. NIRMAL ARORA, 120/500(10), LAJPAT NAGAR, KANPUR. PAN:AALEA1311R VS. C.I.T. (CENTRAL), KANPUR. (APPELLANT) (RESPONDENT) APPELLANT BY SHRI P. K. KAPOOR, C.A. RESPONDENT BY SHRI RAJIV JAIN, CIT, D.R. DATE OF HEARING 22/07/2014 DATE OF PRONOUNCEMENT 1 7 /09/2014 O R D E R PER A. K. GARODIA, A.M. BOTH THESE APPEALS ARE FILED BY THE ASSESSEE WHICH ARE DIRECTED AGAINST TWO SEPARATE ORDERS PASSED U/S 263 OF THE ACT BY LEARNED CIT (CENTRAL), KANPUR DATED 31/03/2010 FOR THE ASSESSMENT YEARS 2005 - 06 & 2006 - 07. BOTH THE APPEALS WERE HEARD TOGETHER AND ARE BEING DISPOSED OF BY WAY OF THIS COMMON ORDER FOR THE SAKE OF CONVENIENCE. IN BOTH THESE YEARS, THE GROUNDS ARE SIMILAR AND HENCE, WE REPRODUCE THE GROUNDS FOR ASSESSMENT YEAR 2005 - 06 WHICH ARE AS UN DER: 1. BECAUSE THE 'CIT' HAS ERRED IN LAW AND ON FACTS IN HOLDING THAT 'THERE IS NO DISPUTE THAT THE IMPUGNED ASSESSMENT ORDER IS ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF REVENUE IN VIEW OF THE DECISION OF THE HON'BLE SUPREME COURT REFERRED TO ABOVE ' [CIT VS. SHREE MANJUNATHESWARE PACKING PRODUCTS AND CAMPHOR WORKS REPORTED IN (1998) 231 ITR 53] AND IN SETTING ASIDE THE ASSESSMENT ORDER DATED 31.12.2007 PASSED EARLIER BY THE ASSESSING OFFICER UNDER SECTION 153A/ 143(3) OF THE 'ACT', 2 ON THE POINT OF V ALUATION OF PROPERTY NO. 120/865, RANJEET NAGAR, KANPUR. 2. BECAUSE THE DECISION OF THE HON'BLE APEX COURT IN THE CASE OF SHREE MANJUNATHESWARE PACKING PRODUCTS AND CAMPHOR WORKS (SUPRA) IS DISTINGUISHABLE ON FACTS, IN AS MUCH AS VALIDITY OF 'REFERENCE' M ADE BY THE ASSESSING OFFICER WAS NOT THE 'ISSUE' RAISED THERE, AND ALSO ON OTHER COUNTS AND RELIANCE ON THE SAID DECISION BY THE 'CIT' IS WHOLLY MISPLACED, WITH THE CONSEQUENCE THAT THE IMPUGNED ORDER (WHICH IS BASED ON THE SAID DECISION) ITSELF IS WHOLLY ERRONEOUS, AS BEING INCONSISTENT WITH THE PROVISIONS OF LAW AND FACTS OF THE PRESENT CASE. 3. BECAUSE IT IS NOT BORNE OUT EITHER FROM THE ASSESSMENT ORDER DATED 31.12.2007 OR EVEN FROM THE ASSESSMENT RECORDS FOR THE ASSESSMENT YEAR 2005 - 06 THAT THERE EXIS TED ANY MATERIAL WHICH COULD WARRANT A 'REFERENCE' UNDER SECTION 142A OF THE ACT' TO THE DISTRICT VALUATION OFFICER TO GIVE AN 'ESTIMATE' OF INVESTMENT IN PROPERTY IN QUESTION AND CONSEQUENTLY THE 'REFERENCE' ITSELF WAS INVALID AND THE REPORT OBTAINED THE REUNDER COULD NOT HAVE BEEN TREATED TO BE A PART OF THE 'RECORD' FOR THE PURPOSES OF INVOKING REVISIONARY JURISDICTION OF THE 'CIT' UNDER SECTION 263 OF THE 'ACT'. 4. BECAUSE IN ANY CASE, THE 'REFERENCE' SAID TO HAVE BEEN MADE BY THE ASSESSING OFFICER ON 25.10.2007 (AS BORNE OUT FROM THE DVO'S REPORT DATED 12.08.2008) CANNOT BE SAID TO BE RELATED TO THE YEAR UNDER REFERENCE AND THE SAME COULD NOT HAVE BEEN TREATED TO BE FORMING PART OF THE 'RECORD' AND THE 'CIT' ACTED ILLEGALLY IN INTERFERING WITH THE 'FIN ALITY' OF THE ASSESSMENT ORDER DATED 31.12.2007. 5. BECAUSE AFTER THE ASSESSMENT HAD BEEN MADE VIDE ORDER DATED 31.12.2007 PASSED UNDER SECTION 153A READ WITH SECTION 143(3), THE 'REFERENCE' SAID TO HAVE BEEN MADE ON 25.10.2007, HAD LAPSED AND THE DVO'S R EPORT DATED 18.08.2008 RECEIVED THEREAFTER COULD NOT HAVE BEEN TREATED TO BE THE PART OF THE 'RECORDS' SO AS TO CONFER JURISDICTION ON THE 'CIT' TO HOLD THE ASSESSMENT ORDER DATED 31.12.2007 TO BE 'ERRONEOUS AND PREJUDICIAL TO THE 3 INTEREST OF REVENUE' AND TO CANCEL THE SAME ON THE POINT OF VALUATION. 6. BECAUSE THE SEARCH AND SEIZURE ACTION THAT TOOK PLACE ON 01.09.2005, HAVING NOT YIELDED TO THE RECOVERY OF ANY INCRIMINATING MATERIAL WHICH COULD IMPINGE UP - ON THE APPELLANT'S VERSION OF INVESTMENT IN PROPE RTY IN QUESTION, NEITHER REFERENCE MADE TO THE DISTRICT VALUATION OFFICER WAS VALID NOR ON THE BASIS OF REPORT OBTAINED IN PURSUANCE OF SUCH A REFERENCE, ANY ADDITION COULD HAVE BEEN MADE IN THE ASSESSMENT OF THE 'APPELLANT' FOR THE ASSESSMENT YEAR 2005 - 06 , THAT HAD BEEN MADE BY ISSUE OF NOTICE UNDER SECTION 153A, AND SETTING ASIDE OF SUCH ASSESSMENT (ON THE ISSUE OF VALUATION) WAS AN EXERCISE IN FUTILITY WHICH DESERVES TO BE QUASHED. 7. BECAUSE THE OBJECTION OF THE 'APPELLANT' (TO THE VALIDITY OF INITIATI ON OF PROCEEDINGS UNDER SECTION 263 AS HAD BEEN RAISED BY WAY OF 'RESPONSE' TO SHOW CAUSE NOTICE) WAS REQUIRED TO BE PROBED INTO AND ADJUDICATION UPON BY THE 'CIT' HIMSELF, BEFORE EXERCISING HIS JURISDICTION UNDER SECTION 263, AND THE MATTER COULD NOT HAVE BEEN RELEGATED TO THE ASSESSING OFFICER, TO BE DETERMINED BY HIM IN THE SET ASIDE PROCEEDINGS. 8. BECAUSE IN ANY CASE THE SAID ASSESSMENT ORDER DATED 31.12.2007 ACCORDED FULLY WITH THE PROVISIONS OF LAW AND THE SAME COULD NOT HAVE BEEN TREATED TO BE 'ERR ONEOUS AND PREJUDICIAL TO THE INTEREST OF REVENUE' AS ENVISAGED IN SECTION 263, ON THE GROUND THAT AS PER DISTRICT VALUATION OFFICER'S REPORT DATED 18.08.2008 ESTIMATE OF INVESTMENT IN PROPERTY NO. 120/865, RANJEET NAGAR, KANPUR AMOUNTED TO RS.64,65,300 AS AGAINST THE DISCLOSED INVESTMENT OF RS.25,00,000. 9. BECAUSE THE ORDER APPEALED AGAINST IS CONTRARY TO THE FACTS, LAW AND PRINCIPLES OF NATURAL JUSTICE. 2. LEARNED A.R. OF THE ASSESSEE HAS SUBMITTED THE WRITTEN SUBMISSIONS AND THE MAIN OBJECTION OF LEARNED A.R. OF THE ASSESSEE IS THAT CIT WAS NOT JUSTIFIED IN HOLDING THAT THE ASSESSMENT ORDER IS ERRONEOUS AS WELL AS PREJUDICIAL TO THE INTEREST OF THE REVENUE BY FOLLOWING THE JUDGMENT OF 4 HON'BLE APEX COURT IN THE CASE OF COMMISSIONER OF INCOME - TAX VS SHREE MANJUNATHESWARE PACKING PRODUCTS AND CAMPHOR WORKS [1998] 231 ITR 53. THE ARGUMENTS OF LEARNED A.R. OF THE ASSESSEE IN THIS REGARD ARE CONTAINED IN PARA 5 & 6 OF THE WRITTEN SUBMISSIONS WHICH ARE REPRODUCED AS UNDER: SL. NO. FACTS OF THE CASE OF SHREE MANJUNATHESHWAR PACKING PRODUCTS FACTS OF THE CASE OF NIRMAL ARORA, THE APPELLANT IN THE PRESENT APPEAL (I) IT WAS A CASE RELATING TO ASSESSMENT YEAR 1977 - 78 AND DURING THE COURSE OF REGULAR ASSESSMENT PROCEEDINGS UNDER SECTION 143(3), THE INCOME - TAX OFFICER MADE A REFERENCE TO THE DEPARTMENTAL VALUATION OFFICER ON 2.2.1980 TO ASCERTAIN AND REPORT THE CORRECT COST OF CONSTRUCTION OF THEATRE. IT WAS NOT A SEARCH RELATED ASSESSMENT AND THERE EXISTED NO SEPARATE REGIME OF TAXATION IN SEARCH RELATED MATTERS AT THAT TIME. PRESENT IS THE CASE WHERE SEARCH AND SEIZURE ACTION UNDER SECTION 132(1) WAS CARRIED OUT ON 1.9.2005 AND THE ASSESSMENT (FOR THE ASSESSMENT YEAR 2005 - 06) GOT REOPENED BY INVOKING THE PROVISIONS OF SECTION 153A AND THEREAFTER, ASSESSMENT UNDER SECTION 153A(B) HAD DULY BEEN COMPLETED, AS PER THE SELF CONTAINED CODE OF THAT SECTION, ON 31.12.2007.FOR SETT ING SUCH AN ASSESSMENT (BY INVOKING THE PROVISIONS OF SECTION 263) IT WAS FIRST REQUIRED TO BE SHOWN AND ESTABLISHED THAT THE REFERENCE UNDER SECTION 142A WAS CALLED FOR, WHICH ALONE COULD IMPART LEGITIMACY IF AT ALL THERE WAS ANY, T O THE DVO'S REPORT DATED 12.08.2008 (AFTER COMPLETION OF ASSESSMENT ON 31.12.2007) (II) ALTHOUGH IT IS NOT DISCERNABLE AS TO UNDER WHAT PROVISIONS OF LAW SUCH REFERENCE WAS MADE BY THE INCOME - TAX OFFICER, TO THE DISTRICT VALUATION OFFICER, BUT LOOKING TO THE DATE OF REFERENCE, IT SHOULD BE UNDER SECTION 131(L)(D) OF THE'ACT'. IN A DECISION DELIVERED SUBSEQUENTLY BY THE HON'BLE APEX COURT IN THE CASE OF SMT. AMIYA BALA PAUL VS. CIT (SC) REPORTED IN (2003) 262 ITR 407 IT HAS HELD THAT INCOME - TAX ACT DID NOT CONTAIN ANY ENABLING PROVISIONS TO REFER THE MATTER TO THE VALUATION CELL FOR ESTIMATING THE COST OF INVESTMENT. IN THE PRESENT DAY SITUATION, SUCH A 'REFERENCE' ITSELF WOULD HAVE BEEN INVALID AND THIS WOULD BE S O EVEN IN THE CASE OF 'REFERENCE' UNDER SECTION 142A AS DISCUSSED HEREINFORE. (III) THE PROVISIONS OF SECTION 142A (UNDER WHICH REFERENCE IN THE CASE OF NIRMAL ARORA HAD BEEN IN THE INSTANT CASE, REFERENCE HAD BEE N MADE UNDER SECTION 142A WHICH, IN ORDER TO SUCCEED, ITSELF 5 MADE) WAS NOT IN EXISTENCE AT THAT TIME. REQUIRES THAT THERE SHOULD EXIST SOME MATERIAL ON THE BASIS OF WHICH THE ASSESSING OFFICER COULD FEEL SATISFIED THAT ESTIMATE WAS REQUIRED TO BE MADE BY MAKING REFERENCE TO THE VALUATION CELL. AS HAS BEEN STATED IN THE EARLIER PART OF THE SUBMISSIONS, NO SUCH MATERIAL EXISTED IN THE PRESENT CASE, NOR IT HAS BEEN BROUGHT ON RECORD. (IV) IT WAS A NORMAL ASSESSMENT WHERE IN THE IN THE INSTANT CASE, IT WAS A SEARCH RELATED ASSESSM ENT, PROCEEDINGS INITIATED ASSESSMENT RELATED PROCEDURE WAS WHOLLY DIFFERENT THAN THE PROCEDURE APPLICABLE TO THE SEARCH RELATED CASES. IN THE INSTANT CASE, IT WAS A SEARCH RELATED ASSESSMENT, PROCEEDINGS INITIATED BY ISSUE OF NOTICE UNDER SECTION 153A(A) OF THE ACT. IN ANY CASE FOR MAKING REFERENCE' UNDER SECTION 142A, AN ALTOG AT HER NEW PROCEDURAL WAS REQUIRED TO BE FOLLOWED . IN THE ORDER SHEET ENTRIES, THERE IS NO MENTION THAT SEARCH AND SEIZURE ACTION, OR EVEN THE EXAMINATION CARRIED OUT BY THE ASSESSING OFFICER, LED TO THE RECOVERY OF ANY 'MATERIAL/INFORMATION' ABOUT UNDISCLOSED INVESTMENT IN THE CONSTRUCTION OF HO USE PROPERTY IN QUESTION. THEREFORE 'REFERENCE' ITSELF WAS INVALID AND REPORT OBTAINED IN PURSUANCE OF SUCH AN 'INVALID REFERENCE', DOES NOT CONSTITUTE THE MATERIAL (FOR THE PURPOSES OF MAKING ASSESSMENT) EVEN I F DVO'S REPORT HAD BECOME AVAILABLE TO THE ASSESSING OFFICER, BEFORE COMPLETION OF ASSESSMENT ON 31.12.2007. (V) IN THAT CASE, IT DID NOT COME UP FOR CONSIDERATION AS TO WHETHER THE DVO'S REPORT CAN BE CONSIDERED AS A 'MATERIAL', E VEN THOUGH THE APPELLANT'S VERSION OF INVESTMENT STOOD SUPPORTED FROM THE ENTRIES APPEARING IN THE BOOKS OF ACCOUNT THAT HAD BEEN FOUND TO BE TRUE AND CORRECT AND HAD BEEN MADE THE BASIS OF ASSESSMENT. IN THE PRESENT CASE, NOT ONLY THE BOOKS 01 ACCOUNT CON TAINING THE APPELLANT'S VERSION OF INVESTMENT HAVE BEEN MAINTAINED, THE SAME HAVE BEEN ACCEPTED ALSO BY THE ASSESSING OFFICER FOR THE PURPOSES OF MAKING ASSESSMENT UNDER SECTION 153A/143(3). THIS IS THE LAW EXISTING AT ALL TIMES, AS HAS NOW BEEN FORMALLY I NTERPRETED EVEN BY THE HON'BLE APEX COURT IN THE CASE OF SARGAM CINEMA VS. 6 CIT REPORTED IN (2010) 328 ITR 513(SC) THAT, WITHOUT REJECTING THE BOOKS OF ACCOUNT, NO ADDITION CAN BE MADE ON THE BASIS OF DVO'S REPORT. THEREFORE THE DVO'S REPORT DID NOT HAVE AN Y PURPOSE TO SERVE FOR MAKING ASSESSMENT, AND EVEN AFTER 'SET ASIDE 1 NO ADDITION COULD BE MADE IN THE INSTANT CASE, ON THE BASIS OF DVO'S REPORT RECEIVED BY THE ASSESSING OFFICER, AFTER COMPLETION OF ASSESSMENT. THEREFORE DVO'S REPORT RECEIVED ON 18.08.200 8 COULD NOT HAVE BEEN CONSIDERED AS 'MATERIAL' MUCH LESS RELEVANT MATERIAL, FOR THE PURPOSE OF TAKING ACTION UNDER SECTION 263. 16. IN VIEW OF THE DISSIMILARITY OF FACTS AND THE LAWS THAT CAME TO BE PROPOUNDED SINCE THEN, THE CASE OF SHREE MANJUNATHESWARE PACKING PRODUCTS WAS NO LONGER APPLICABLE IN THE PRESENT CASE. BY RELYING UPON THE SAID CASE LAW, THE ID. 'CIT' HAS EVEN VIOLATED THE 'RULE OF FOLLOWING A PRECEDENCE' AS LAID DOWN BY THE HON'BLE APEX COURT IN LARGE NUMBER OF CASES. SUFFICE IT TO REFER THE CASE OF CIT VS. SUN ENGINEERING WORKS (P) LTD REPORTED IN (1992) 198 ITR 297 WHEREIN AT PAGE 321, THEIR LORDSHIPS HAVE OBSERVED AND HELD AS UNDER : - ' IT IS NEITHER DESIRABLE NOR PERMISSIBLE TO PICK OUT A WORD OR A SENTENCE FROM THE JUDGMENT OF THIS COURT, DIVORCED FROM THE CONTEXT OF THE QUESTION UNDER CONSIDERATION AND TREAT IT TO BE THE COMPLETE 'LAW' DECLARED BY THIS COURT. THE JUDGMENT MUST BE READ AS A WHOLE AND THE OBSERVATIONS FROM THE JUDGMENT HAVE TO BE CONSIDERED IN THE LIGHT OF TH E QUESTIONS WHICH WERE BEFORE THIS COURT. A DECISION OF THIS COURT TAKES ITS COLOUR FROM THE QUESTIONS INVOLVED IN THE CASE IN WHICH IT IS RENDERED AND WHILE APPLYING THE DECISION TO A LATER CASE, THE COURTS MUST CAREFULLY TRY TO ASCERTAIN THE TRUE PRINCIP LE LAID DOWN BY THE DECISION OF THIS COURT AND NOT TO PICK OUT WORDS OR SENTENCES FROM THE JUDGMENT, DIVORCED FROM THE CONTEXT OF THE QUESTIONS UNDER CONSIDERATION BY THIS COURT., TO SUPPORT THEIR REASONINGS. IN MADHAV RAO JIVAJI RAO SCINDIA BAHADUR VS. UN ION OF INDIA (1971) 3 SCJR 9; AIR 1971 SC 530, THIS COURT CAUTIONED (AT PAGE 578 OF AIR 1971 SC): 7 'IT IS NOT PROPER TO REGARD A WORD, A CLAUSE OR A SENTENCE OCCURRING IN A JUDGMENT OF THIS SUPREME COURT, DIVORCED FROM ITS CONTEXT, AS CONTAINING A FULL EXP OSITION OF THE LAW ON A QUESTION WHEN THE QUESTION DID NOT EVEN FALL TO BE ANSWERED IN THAT JUDGMENT.' 3. VARIOUS OTHER SUBMISSIONS ARE ALSO MADE BY THE LEARNED A.R. OF THE ASSESSEE AS PER PARA 7 TO 26 OF THE WRITTEN SUBMISSIONS BUT IN THESE PARAS , THE MAIN CONTENTION OF THE LEARNED A.R. OF THE ASSESSEE IS THAT IN THE PRESENT CASE , REFERENCE MADE BY ASSESSING OFFICER U/S 142A ITSELF IS NOT VALID AND THEREFORE, THE REPORT OF THE D.V.O. CANNOT BE CONSIDERED BY CIT FOR THE PURPOSE OF REVISION U/S 263 O F THE ACT. THE SECOND CONTENTION OF THE LEARNED A.R. OF THE ASSESSEE IS THAT EVEN IF THE REFERENCE IS HELD VALID, NO ADDITION ON THE BASIS OF D.V.O. REPORT CAN BE MADE. BUT WE WILL CONSIDER THOSE ARGUMENTS IF WE FIND THAT CIT WAS NOT JUSTIFIED IN PASSING THE IMPUGNED ORDERS BY FOLLOWING THE JUDGMENT OF HON'BLE APEX COURT RENDERED IN THE CASE OF SHREE MANJUNATHESWARE PACKING PRODUCTS AND CAMPHOR WORKS (SUPRA) . HENCE, THESE PARAS ARE NOT BEING REPRODUCED AT THIS STAGE. 4. LEARNED D.R. OF THE REVENUE SUPPO RTED THE ORDER OF LEARNED CIT. 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. FIRST OF ALL , WE NOTE DOWN THE FACTS IN THE CASE OF SHREE MANJUNATHESWARE PACKING PRODUCTS AND CAMPHOR WORKS (SUPRA). IN THAT CASE ALSO, THE ASSESSEE HAD CONSTRUCTED A CINEMA THEATRE AND THE ASSESSEE DECLARED COST OF CONSTRUCTION AT RS.20,28,498/ - . THE ASSESSING OFFICER WROTE TO D.V.O. ON 02/02/80 TO ASCERTAIN AND REPORT THE CORRECT COST OF CONSTRUCTION OF THE THEATRE. THE VALUATION OFFICER EXPRESSED HIS INABILITY TO GIVE REPORT BY THE DATE BEFORE WHICH, THE ASSESSMENT WAS TO BE COMPLETED. UNDER THESE FACTS, THE ASSESSING OFFICER COMPLETED THE ASSESSMENT WITHOUT WAITING FOR HIS REPORT AND ACCEPTED THE VALUATI ON MENTIONED BY THE ASSESSEE IN THE RETURN. SUBSEQUENTLY, THE D.V.O. SUBMITTED REPORT ON 16/12/2009 AND REPORTED THE 8 COST OF CONSTRUCTION AT RS.34,58,600/ - AS AGAINST RS.20,28,298/ - DECLARED BY THE ASSESSEE. UNDER THESE FACTS, CIT ISSUED NOTICE U/S 263 O F THE ACT AND PASSED A REVISION ORDER BY SETTING ASIDE THE ASSESSMENT ORDER AND DIRECTING THE ASSESSING OFFICER TO PASS FRESH ASSESSMENT ORDER IN THE LIGHT OF THE OBSERVATIONS MADE BY HIM IN THE ORDER U/S 263 OF THE ACT. WHEN THE ASSESSEE CARRIED THE MATT ER IN APPEAL BEFORE THE TRIBUNAL, THE TRIBUNAL SET ASIDE THE ORDER OF THE CIT. THEREAFTER, THE DEPARTMENT CARRIED THE MATTER IN APPEAL BEFORE THE HON'BLE KARNATAKA HIGH COURT AND THE DECISION OF HON'BLE HIGH COURT WAS ALSO IN FAVOUR OF THE ASSESSEE AND TH EREFORE, THE REVENUE FILED AN APPEAL BEFORE HON'BLE APEX COURT. IT WAS HELD BY HON'BLE APEX COURT UNDER THESE FACTS THAT THE REVISION ORDER PASSED BY CIT U/S 263 IS VALID. 6. IN THE PRESENT CASE ALSO, THE FACTS ARE IDENTICAL EXCEPT THAT IN THE PRESENT C ASE , A SEARCH HAS ALSO BEEN CARRIED OUT IN THE CASE OF THE ASSESSEE ON 01/09/2005 . IN THE PRESENT CASE, REFERENCE WAS MADE TO D.V.O. FOR VALUATION U/S 142A OF THE ACT ON 25/10/2007. THE ASSESSMENT ORDER WAS PASSED BY THE ASSESSING OFFICER U/S 153A OF THE ACT ON 31/12/2007 AND THE D.V.O. PREPARED HIS REPORT ON 12/08/2008. IN THE REPO RT OF THE D.V.O., THE VALUE OF THE PROPERTY IN QUESTION WAS DETERMINED BY HIM AT RS.64,65,300/ - AS AGAINST THE INVESTMENT SHOWN BY THE ASSESSEE AT RS.25 LAC. IN THE PRESENT CASE ALSO, THE ASSESSMENT WAS COMPLETED BY THE ASSESSING OFFICER WITHOUT WAITING F OR VALUATION REPORT OF THE D.V.O. BECAUSE ASSESSMENT WAS GETTING TIME BARRED. HENCE, IT IS SEEN THAT THE FACTS IN THE PRESENT CASE ARE IDENTICAL TO THE FACTS OF SHREE MANJUNATHESWARE PACKING PRODUCTS AND CAMPHOR WORKS (SUPRA). IN THIS REGARD, THE FINDING OF CIT IS THAT THIS ARGUMENT OF LEARNED A.R. OF THE ASSESSEE REGARDING VALIDITY OF REFERENCE U/S 142A IS NOT RELEVANT BECAUSE THE ONLY ISSUE TO BE DECIDED BY HIM IS THAT AS TO WHETHER THE ORDER PASSED BY THE ASSESSING OFFICER U/S 153A/143(3) IS ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF THE REVENUE OR NOT. HE HAS HELD 9 THAT THERE IS NO DISPUTE THAT THE IMPUGNED ASSESSMENT ORDER IS ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF REVENUE IN VIEW OF THE DECISION OF HON'BLE APEX COURT FOLLOWED BY CIT AND THEREF ORE, HE SET ASIDE THE ASSESSMENT ORDER IN BOTH THE YEARS ON THE POINT OF VALUATION OF THE PROPERTY AND DIRECTED THE ASSESSING OFFICER TO EXAMINE THE ISSUES RAISED BY THE ASSESSEE AND TAX THE CORRECT AMOUNT OF THE INCOME . IN OUR CONSIDERED OPINION ALSO, TH IS OBJECTION OF THE ASSESSEE REGARDING THE VALIDITY OF REFERENCE TO D.V.O. IS NOT VALID. AS PER THE PROVISION OF SECTION 142A , FOR THE PURPOSE OF MAKING AN ASSESSMENT OR REASSESSMENT UNDER THIS ACT, IF AN ESTIMATE IS REQUIRED TO BE MADE OF ANY INVESTMENT REFERRED TO IN SECTION 69, 69A OR 69B OF THE ACT, THE ASSESSING OFFICER MAY REQUIRE DOCUMENTS NECESSARY TO MAKE ESTIMATE OF SUCH VALUE AND REPORT TO HIM. IN THE PRESENT CASE, THE REFERENCE WAS MADE IN COURSE OF ASSESSMENT PROCEEDINGS U/S 153A AND HENCE, W E DO NOT FIND ANY INFIRMITY IN THIS REFERENCE BY THE ASSESSING OFFICER TO D.V.O. MOREOVER, WE ALSO FIND FORCE IN THE STAND TAKEN BY CIT THAT AT THE PRESENT STAGE , THE ONLY DECISION TO BE MADE IS THAT AS TO WHETHER THIS JUDGMENT OF HON'BLE APEX COURT RENDE RED IN THE CASE OF SHREE MANJUNATHESWARE PACKING PRODUCTS AND CAMPHOR WORKS (SUPRA) IS APPLICABLE OR NOT BECAUSE REFERENCE TO DVO WAS MADE BY THE A.O. IN COURSE OF ASSESSMENT PROCEEDINGS AND NO OBJECTION WAS RAISED BY THE ASSESSEE FOR SUCH REFERENCE TO DVO DURING THAT PROCEEDINGS OR AFTERWARDS BY FILING APPEAL BEFORE CIT (A) AGAINST SUCH REFERENCE TO DVO. HE NCE, SUCH REFERENCE HAS ATTAINED FINALITY. . AT LEAST, NOTHING HAS BEEN BROUGHT BEFORE US OR BEFORE CIT IN COURSE OF SECTION 263 PROCEEDINGS THAT ANY OBJECTION IN ANY MANNER WAS RAISED BY THE ASSESSEE AT RELEVANT POINT OF TIME AGAINST REFERENCE TO DVO. IN OUR OPINION, NO SUCH OBJECTION CAN BE RAISED NOW. WE HAVE SEEN THAT THE FACTS OF THE PRESENT CASE AND THAT CASE ARE IDENTICAL AND THEREFORE, THIS JUDGMENT IS SQUARELY APPLICABLE AND AS PER THIS JUDGMENT, THE ASSESSMENT ORDERS FOR BOTH THE YEARS ARE ERRONE OUS AND PREJUDICIAL TO THE INTEREST OF THE REVENUE AND 10 THEREFORE, ORDER PASSED BY CIT IS VALID ORDER IN BOTH THE YEARS. HENCE, WE DO NOT FIND ANY REASON TO INTERFERE IN THE ORDER OF CIT IN BOTH THE YEARS BY RESPECTFULLY FOLLOWING THIS JUDGMENT OF HON'BLE APEX COURT. 7. IN VIEW OF OUR DECISION IN ABOVE PARA , THE OTHER GROUNDS RAISED BY THE ASSESSEE REGARDING VALIDITY OF REFERENCE TO D.V.O. BY ASSESSING OFFICER ETC. ARE NOT RELEVANT FOR THE PURPOSE OF DECIDING THIS APPEAL. HENCE, THESE GROUNDS AND WRITTEN SUBMISSIONS IN THIS REGARD ARE NOT PRODUCED HERE AND THE SAME ARE REJECTED AS NOT RELEVANT. 8. IN THE RESULT, BOTH THE APPEALS OF THE ASSESSEE STAND DISMISSED. (ORDER WAS PRONOUNCED IN THE OPEN COURT ON THE DATE MENTIONED ON THE CAPTION PAGE) SD/. SD/. (SUNIL KUMAR YADAV) ( A. K. GARODIA ) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 1 7 /09/2014. *C.L.SINGH COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT. 3. CONCERNED CIT 4. THE CIT(A) 5. D.R., I.T.A.T., LUCKNOW ASSTT. REGISTRAR