GANPATI PLAZA, Jaipur V. ITO, BEHROR

ITA 466/JPR/2016

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 2078 (ITAT-JAIPUR)
• Duration Of Justice: 1 year(s) 9 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-02-2018
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Next Hearing Date: 19-07-2017
• Assessment Year: 2011-2012
• Appeal Filed On: 03-05-2016
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: A S NEHRA
• Keywords: Rejection of books of accounts; Unexplained investment; Loose papers; Additional evidence; Tangible material; Fair market value; Corroborative evidences; Valuation report; Reason to believe; Reassessment proceedings
• Section: 133A; 260A; 147; 131; 148

Judgement Text

``````````````````VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K; IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHE S, JAIPUR JH FOT; IKY JKO] U;KF;D LNL; ,OA JH FOE FLAG ;KNO] YS[KK LNL; DS LE{K BEFORE: SHRI VIJAY PAL RAO, JM & SHRI VIKRAM SINGH YADAV, AM VK;DJ VIHY LA- @ ITA NO. 466 & 467/JP/2016 FU/KZKJ.K O'K Z @ ASSESSMENT YEAR : 2011-12 & 2012-13 M/S GANPATI PLAZA NEAR POLICE STATION, COURT ROAD, BEHROR, ALWAR. CUKE VS. THE ITO, BEHROR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: AAJFG5801E VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT VK;DJ VIHY LA- @ ITA NO. 545/JP/2016 FU/KZKJ.K O'K Z @ ASSESSMENT YEAR : 2012-13 THE ITO, BEHROR. CUKE VS. M/S GANPATI PLAZA NEAR POLICE STATION, COURT ROAD, BEHROR, ALWAR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: AAJFG5801E VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ L S@ ASSESSEE BY : SHRI SATISH GUPTA (C.A.) JKTLO DH VKSJ LS @ REVENUE BY : SMT. A.S. NEHRA (JCIT) LQUOKBZ DH RKJH[ K@ DATE OF HEARING : 11/12/2017 MN?KKS'K.KK DH RKJH[ K@ DATE OF PRONOUNCEMENT: 16/02/2018 VKNS'K@ ORDER PER: VIJAY PAL RAO, J.M. THESE ARE TWO APPEALS BY THE ASSESSEE FOR THE ASS ESSMENT YEARS 2011-12 & 2012-13 AND CROSS APPEAL BY THE DEPARTMEN T FOR THE ITA NO.466,467& 545/JP/2016 M/S GANPATI PLAZA VS. ITO 2 ASSESSMENT YEAR 2012-13ARE AGAINST TWO SEPARATE ORD ERS OF THE LD. CIT(A) BOTH DATED 30.03.2016. THE ASSESSEE HAS RAIS ED COMMON GROUNDS IN BOTH APPEALS. THE GROUNDS RAISED FOR THE ASSESSMENT YEAR 2011-12 AS UNDER:- 1 ON THE FACTS & CIRCUMSTANCES OF THE CASE LD. LOW ER AUTHORITIES GROSSLY ERRED IN INITIATING REASSESSMENT PROCEEDING S U/S 147 OF THE INCOME TAX ACT, 1961, 2. ON THE FACTS & CIRCUMSTANCES OF THE CASE & IN LA W ALSO A.O. GROSSLY ERRED IN PASSING THE ASSESSMENT ORDER WITHO UT PROPER & UNLAWFUL SERVICE OF NOTICE U/S 148,143(2) OF THE AC T. 3. ON THE FACTS & CIRCUMSTANCES OF THE CASE LD CIT (A), ALWAR GROSSLY ERRED IN HOLDING THAT THE REFERENCE TO THE DVO U/S 142 OF THE ACT FOR ESTIMATING COST OF CONSTRUCTION WAS JUS TIFIED. 4. ON THE FACTS & CIRCUMSTANCES OF THE CASE LD CIT (A), ALWAR GROSSLY ERRED IN I. NOT ACCEPTING THE COST OF CONSTRUCTION DECLARED BY THE ASSESSEE IN THE BOOKS OF ACCOUNTS AS IN THE REMAND PROCEEDINGS LD A.O. VERIFIED THE BOOKS, VOUCHERS & SUPPORTING A ND WERE ACCEPTED AND NOTHING INCRIMINATING MATERIAL WAS FOU ND DURING THE COURSE OF SURVEY U/S 133 A OF THE ACT. II. TAKING THE TOTAL COST OF CONSTRUCTION AS PER PW D RATES AT RS 2,81,71,198/- AS AGAINST RS 2,65,33,114/- CALCULATE D BY ASSESSEE. III. NOT ALLOWING DEDUCTION FOR SELF SUPERVISION C HARGES. IV. NOT ALLOWING DEDUCTION FOR ELECTRICAL FITTINGS & PAINT COST INCURRED BY THE TENANTS. V. CONSIDERING THE COST OF PURCHASES OF LIFT IN A.Y . 2011-12 TO 2014-15 IGNORING THE FACT THAT THE SAID LIFT WAS PU RCHASED ON 07/01/2015 I.E PERTAINING TO A.Y. 2015-16. ITA NO.466,467& 545/JP/2016 M/S GANPATI PLAZA VS. ITO 3 VI. TAKING THE VALUE OF LIFT AT RS. 19,03,500/- AS ESTIMATED BY DVO AS AGAINST ACTUAL COST OF PURCHASES OF LIFT FOR RS. 3,78,420/-. VII. TAKING THE VALUE OF EXTRA ITEMS AT RS 20,02,13 0/- AS AGAINST THE VALUE OF EXTRA ITEMS TAKEN BY APPROVED VALUER A T RS 4,54,503/- VIII TAKING THE ARCHITECT FEES AT RS 3,20,768/- I.E .1% OF TOTAL COST AS AGAINST ACTUAL PAYMENT OF RS 2,00,000/- IX. ACCEPTING THE COST OF CONSTRUCTION FOR F.Y. 201 3-14 AT RS 10,19,596/- ONLY AS AGAINST RS 18,34,792/- DECLARED BY THE ASSESSEE. X. NOT ACCEPTING THE COST OF CONSTRUCTION DECLARED BY THE ASSESSEE IN F.Y. 2014-15 (A.Y. 2015-16) FOR RS 26,6 5,245/- IN THE BOOKS OF ACCOUNTS ESPECIALLY UNDER THE CIRCUMSTANCE S THAT THE PROPERTY WAS INSPECTED BY DVO ON DATED 09/03/2015 I .E AT THE END OF F.Y. 2014-15. MOREOVER THE DIVISION OF TOTAL COST SHOULD HAVE BEEN MADE IN 5 YEARS & NOT IN 4 YEARS. XI. HOLDING THAT NO BOOKS OF ACCOUNTS WERE PRODUCED BEFORE LD. AO DURING THE ASSESSMENT PROCEEDINGS. 5. THEREFORE LD CIT(A) GROSSLY ERRED IN CONFIRMING THE ADDITION OF RS. 4,17,339/- FOR THE YEAR UNDER CONSIDERATION ON ACCOUNT OF UNEXPLAINED INVESTMENT IN THE COST OF CONSTRUCTION. 2. GROUND NO. 1 IS REGARDING THE VALIDITY OF REOPEN ING ASSESSMENT. A SURVEY OPERATION U/S 133A OF THE ACT WAS CARRIED OU T AT THE BUSINESS PREMISES OF THE ASSESSEE FIRM ON 29-30/08/2013. DUR ING THE COURSE OF SURVEY PROCEEDINGS, STATEMENTS OF SHRI ANIL YADAV T HE PARTNER AND HUSBAND OF SMT. MADHU YADAV OTHER PARTNER WERE RECO RDED AND CERTAIN LOOSE PAPERS & DOCUMENTS WERE IMPOUNDED. NO BOOKS O F ACCOUNT WERE FOUND AT THE BUSINESS PREMISES OF THE ASSESSEE FIRM . SINCE, NONE OF THE ITA NO.466,467& 545/JP/2016 M/S GANPATI PLAZA VS. ITO 4 PARTNERS WERE PRESENT AT THE TIME OF SURVEY PROCEED INGS, THE STATEMENT OF PARTNERS WERE RECORDED U/S 131 OF THE ACT IN WHI CH THEY STATED THAT NO REGULAR BOOKS OF ACCOUNTS ARE MAINTAINED BY THE ASSESSEE FIRM. THE ASSESSEE DID NOT FILE ANY RETURN OF INCOME FOR THE YEAR UNDER CONSIDERATION. THE AO ISSUED NOTICE U/S 148 ON 28.1 1.2013 AFTER RECORDING THE REASONS FOR REOPENING OF THE ASSESSME NT. IN RESPONSE THE ASSESSEE FILED A COPY OF E RETURN DATED 12.03.2014 AND THE AO COMPLETED THE REASSESSMENT VIDE ORDER DATED 20.03.2 015 WHEREBY AN ADDITION WAS MADE ON ACCOUNT OF DIFFERENCE IN VALUA TION OF INVESTMENT IN SHOPPING COMPLEX. THE ASSESSEE CHALLENGED THE VA LIDITY OF THE INITIATION OF REASSESSMENT BEFORE THE LD. CIT(A) AN D SUBMITTED THAT THERE WAS NO REASON TO BELIEF THAT THE INCOME ASSES SABLE TO TAX HAS ESCAPED ASSESSMENT WAS NO INCRIMINATING DOCUMENTS O R MATERIALS WERE FOUND DURING THE COURSE OF SURVEY DISCLOSING ANY ES CAPEMENT OF INCOME. THE AO HAS REOPENED THE ASSESSMENT ONLY ON THE BASIS OF THE STATEMENT OF SHRI SUNIL YADAV RECORDED U/S 133A OF THE ACT. THUS, INITIATION OF REASSESSMENT PROCEEDING WAS SIMPLY ON THE BASIS OF SUSPICION AND NOT ON THE BASIS OF BELIEF. THE LD. C IT(A) DID NOT ACCEPT THE CONTENTION OF THE ASSESSEE AND UPHELD THE INITI ATION OF PROCEEDINGS U/S 147/148 OF THE ACT. ITA NO.466,467& 545/JP/2016 M/S GANPATI PLAZA VS. ITO 5 3. BEFORE US, THE LD. AR OF THE ASSESSEE HAS SUBMIT TED THAT AS PER THE REASONS RECORDED, THE AO HAS FORMED TO BELIEF O N THE BASIS OF THE STATEMENT OF SHRI SUNIL YADAV PARTNER OF GANPATI PL AZA RECORDED ON 02.09.2013 WHEREIN HE HAS STATED THAT A SUM OF RS. 17 LACS HAS BEEN INVESTED IN THE CONSTRUCTION OF SHOPPING COMPLEX. H OWEVER, SIMPLY THE INVESTMENT IN THE SHOPPING COMPLEX CANNOT BE CONSID ERED AS INCOME OF THE ASSESSEE FIRM. HE HAS FURTHER SUBMITTED THAT T HE SOURCE OF INVESTMENT WAS EXPLAINED IN THE STATEMENT AND WHEN THERE WAS NO TAXABLE INCOME DURING THE YEAR THEN, THERE WAS NO Q UESTION OF FILING THE RETURN OF INCOME. THUS, NON FILING OF RETURN OF INC OME CANNOT BE A REASON TO BELIEVE THAT THE INCOME CHARGEABLE TO TAX HAS ESCAPED ASSESSMENT. THE LD. AR HAS FURTHER CONTENDED THAT T HERE WAS NO BUSINESS ACTIVITY DURING THE YEAR AND THERE WAS NO INCOME EITHER ACCRUED OR RECEIVED BY THE FIRM DURING THE YEAR. NO N MAINTENANCE OF BOOKS OF ACCOUNTS ALSO CANNOT BE THE REASON TO BELI EVE THAT SOME INCOME CHARGEABLE TO TAX HAS ESCAPED ASSESSMENT. TH US, LD. AR HAS SUBMITTED THAT WHEN THERE WAS NO MATERIAL BEFORE TH E AO TO WHISPER IN THE FORM OF INVESTMENT IN CONSTRUCTION OF BUILDING THAN HOW A BELIEF WAS FORMED BY THE AO. HE HAS RELIED UPON THE DECISION OF HONBLE SUPREME COURT IN CASE OF CIT VS. KHADER KHAN 352 IT R 480 AND ITA NO.466,467& 545/JP/2016 M/S GANPATI PLAZA VS. ITO 6 SUBMITTED THAT THE STATEMENT MADE U/S 133A HAS NO E VIDENTIARY VALUE. THUS, THE STATEMENT RECORDED U/S 133A CANNOT BE A B ASIS FOR INITIATION OF REASSESSMENT PROCEEDINGS. FURTHER, THE AO HAS FR AMED THE ASSESSMENT ON THE BASIS OF THE OPINION OF THE DVO W HICH CANNOT BE THE BASIS FOR REOPENING U/S 147 AS HELD BY THE HONBLE SUPREME COURT IN CASE OF ACIT VS. DHARIYA CONSTRUCTION COMPANY 328 I TR 515. 4. ON THE OTHER HAND, LD. DR HAS SUBMITTED THAT THE ASSESSEE IS ADMITTEDLY NOT MAINTAINING THE REGULAR BOOKS OF ACC OUNTS AND FURTHER THERE WAS NO RETURN OF INCOME FILED BY THE ASSESSEE FOR THE YEAR UNDER CONSIDERATION. DURING THE SURVEY PROCEEDINGS THE AS SESSEE HAS ESTIMATED THE INVESTMENT MADE IN CONSTRUCTION OF TH E BUILDING NAMELY GANPATI SHOPPING COMPLEX. THEREFORE, IN THE ABSENCE OF BOOKS OF ACCOUNT AND RETURN OF INCOME THE FACT FOUND ON THE GROUND AND ADMITTED BY THE ASSESSEE IN THE STATEMENT CONSTITUT E A TANGIBLE MATERIAL TO FORM THE BELIEF THAT THE INCOME ASSESSA BLE TO TAX TO THE EXTENT OF INVESTMENT IN THE BUILDING HAS ESCAPED AS SESSMENT. THE AO WAS HAVING SUFFICIENT REASONS TO BELIEF THAT THE IN COME ASSESSABLE TO TAX AS ESCAPED ASSESSMENT. HE HAS RELIED UPON THE O RDERS OF THE AUTHORITIES BELOW. ITA NO.466,467& 545/JP/2016 M/S GANPATI PLAZA VS. ITO 7 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AS WELL AS RELEVANT MATERIAL ON RECORD. A SURVEY U/S 133A OF THE ACT WA S CARRIED OUT AT THE BUSINESS PREMISES OF THE ASSESSEE FIRM ON 29-30/08/ 2013. UNDISPUTEDLY NO BOOKS OF ACCOUNTS WERE FOUND AT THE BUSINESS PRE MISES OF THE ASSESSES AS THE ASSESSEE DID NOT MAINTAIN THE REGUL AR BOOKS OF ACCOUNTS TILL THAT DATE. THEREFORE, IT IS APPARENT THAT DESPITE EXPIRY OF MORE TWO AND HALF YEARS FROM THE END OF THE FINANCI AL YEAR 2010-11 RELEVANT TO THE ASSESSMENT YEAR UNDER CONSIDERATION THE ASSESSEE DID NOT PREPARE AND MAINTAIN THE BOOKS OF ACCOUNTS OF T HE FIRM. FURTHER, NO ACCOUNTS WERE MAINTAINED BY THE ASSESSEE FIRM REGAR DING CONSTRUCTION OF THE SHOPPING COMPLEX NAMELY GANPATI PLAZA. THE S TATEMENTS OF THE PARTNERS OF THE ASSESSEE FIRM WERE RECORDED DURING THE COURSE OF SURVEY PROCEEDINGS AS WELL AS POST SURVEY INQUIRY. ON THE SPECIFIC QUESTION OF THE AMOUNT OF INVESTMENT IN CONSTRUCTIO N OF THE SHOPPING COMPLEX AND SOURCE OF THE INVESTMENT, THE PARTNER O F THE ASSESSEE FIRM IN HIS STATEMENT RECORDED U/S 131 OF THE ACT ON 02. 09.2013 HAD GIVEN ONLY ESTIMATED AND GENERAL REPLY REGARDING THE COST OF CONSTRUCTION/AMOUNT OF INVESTMENT IN THE CONSTRUCTI ON OF SHOPPING COMPLEX AND SOURCES OF THE SAID INVESTMENT. IT WAS ONLY A GENERAL STATEMENT WITHOUT GIVING SPECIFIC DETAILS OF SOURCE OF INVESTMENT AND ITA NO.466,467& 545/JP/2016 M/S GANPATI PLAZA VS. ITO 8 FURTHER WITHOUT ANY SUPPORTING DOCUMENTS. SHRI SUNI L YADAV PARTNER OF THE ASSESSEE FIRM HAS STATED THAT HE WILL FURNISH T HE RELEVANT RECORD SUBSEQUENTLY THIS IS NOT A CASE OF FORMING OF OPINI ON BY THE AO ON THE BASIS OF STATEMENT RECORDED U/S 133A OF THE ACT BUT THE STATEMENTS WERE RECORDED U/S 131 OF THE ACT ON THE SUBJECT MAT TER OF SHOPPING COMPLEX DID EXIST AT THE GROUND. THEREFORE, WHEN A TANGIBLE ASSET WAS FOUND IN EXISTENCE AND STATEMENTS WERE REGARDING TH E INVESTMENT AND SOURCE OF THE INVESTMENT THEN THE SAME CANNOT BE HE LD AS A MERE STATEMENT WITHOUT CORROBORATING EVIDENCE. WHERE THE FACTS OF CONSTRUCTION OF SHOPPING COMPLEX IS NOT UNDISPUTED OR IN DOUBT THEN, THE STATEMENT RECORDED ABOUT THE INVESTMENT AND SOU RCE OF INVESTMENT OF THE SHOPPING COMPLEX ALONG WITH PHYSICAL EXISTEN CE OF THE SHOPPING COMPLEX CONSTITUTE A TANGIBLE MATERIAL TO FORM THE BELIEF THAT THE INCOME TO THE EXTENT OF INVESTMENT MADE IN CONSTRUC TION OF SHOPPING COMPLEX HAS ESCAPED ASSESSMENT. IT IS NOT A MATTER OF CASE OF DISPUTE ABOUT THE QUANTUM OF INVESTMENT OR THE SOURCE OF IN VESTMENT BUT THE ASSESSEE HAS NEITHER MAINTAIN THE BOOKS OF ACCOUNTS OR ACCOUNTS OF THE CONSTRUCTION OF THE SHOPPING COMPLEX NOR HAS FILED THE RETURN OF INCOME FOR THE ASSESSMENT YEAR UNDER CONSIDERATION. THEREF ORE, ALL THESE FACTS ARE SUFFICIENT TO FORM THE BELIEF THAT THE INCOME A SSESSABLE TO TAX HAS ITA NO.466,467& 545/JP/2016 M/S GANPATI PLAZA VS. ITO 9 ESCAPED ASSESSMENT. AT THE STAGE OF INITIATION OF P ROCEEDINGS U/S 147/148 OF THE ACT WHAT IS REQUIRED IS PRIMA FACIE REASONS TO BELIEF THAT THE INCOME ASSESSABLE TO TAX HAS ESCAPED ASSESSMENT AND THE AO IS NOT REQUIRED TO ESTABLISH THE CORRECTNESS OF THE RE ASONS AT THIS STAGE. THEREFORE, WHEN THE ASSESSEE FIRM HAS FAILED TO PRO DUCE A SINGLE DOCUMENT DURING THE COURSE OF SURVEY PROCEEDINGS AN D POST SURVEY INQUIRY TO SHOW THE SOURCE OF INVESTMENT WHICH CANN OT BE TREATED AS INCOME OF THE ASSESSEE FIRM THEN, THE VAGUE STATEME NTS GIVING ESTIMATED DETAILS WITHOUT SUPPORTING EVIDENCE WOULD NOT HELP THE CASE OF THE ASSESSEE. THE DECISION RELIED UPON BY THE LD . AR ARE NOT APPLICABLE IN THE FACTS OF THE CASE ON HAND BECAUSE THE INVESTMENT IN THE SHOPPING COMPLEX ITS. HENCE, IN THE FACTS AND C IRCUMSTANCES OF THE CASE, WE DO NOT FIND ANY ERROR OR ILLEGALITY IN THE INITIATION OF REASSESSMENT PROCEEDINGS IN THE CASE OF THE ASSESSE E. 6. GROUND NOS. 2 AND 3:- AT THE TIME HEARING, THE LEARNED COUNSEL FOR ASSESSEE STATED AT BAR THAT THE ASSESSEE DOES N OT PRESS GROUND NOS. 2 AND 3 AND THE SAME MAY BE DISMISSED AS NOT PRESSE D. THE LD. DR HAS RAISED NO OBJECTIONS IF GROUND NOS. 2 AND 3 OF THE ASSESSEES APPEAL ARE DISMISSED AS NOT PRESSED. ACCORDINGLY THE GROUND NO S. 2 AND 3 OF THE ASSESSEES APPEAL ARE DISMISSED BEING NOT PRESSED. ITA NO.466,467& 545/JP/2016 M/S GANPATI PLAZA VS. ITO 10 7. GROUND NO. 4 IS REGARDING THE COST OF CONSTRUCTI ON ADOPTED BY THE AO ON THE BASIS OF DVOS VALUATION REPORT AS AGAINST THE COST DECLARED BY THE ASSESSEE. THE ASSESSEE HAS DECLARED THE COST OF CONSTRUCTION FOR THE ASSESSMENT YEAR 2011-12 OF RS. 17,41,097/-. SIN CE, THE ASSESSEE DID NOT PRODUCE BOOKS OF ACCOUNTS IN SUPPORT OF THE CLAIM, THEREFORE, THE AO REFERRED THE VALUATION OF COST OF CONSTRUCTI ON TO THE DVO U/S 142A OF THE ACT. THE DVO ESTIMATED THE COST OF INVE STMENT AT RS. 52,336/- FOR THE ASSESSMENT YEAR 2011-12 AND ACCORD INGLY, THE AO MADE AN ADDITION OF THE DIFFERENTIAL AMOUNT OF RS. 34,11,239/-. ON APPEAL THE ASSESSEE PRODUCED THE BOOKS OF ACCOUNTS AND OTHER RECORDS IN SUPPORT OF THE COST OF INVESTMENT FOR CONSTRUCTI ON OF THE SHOPPING COMPLEX CONSEQUENTLY THE LD. CIT(A) FORWARDED THE A DDITIONAL EVIDENCE FILED BY THE ASSESSEE TO THE AO FOR EXAMINATION AND COMMENTS. THE AO SUBMITTED ITS REMAND REPORT AND POINTED OUT THAT DU RING THE COURSE OF REMAND PROCEEDINGS THE ASSESSEE PRODUCED THE BOOKS OF ACCOUNTS ALONG WITH SUPPORTING BILLS AND VOUCHERS. THE ASSES SEE ALSO PRODUCE THE AFFIDAVIT OF THE TENANTS TO SHOW THAT SOME WORK OF FINISHING AND FURNISHING OF SHOPS WERE DONE BY TENANTS. HOWEVER, THE AO OBSERVED AND STATED THAT THE ASSESSEE DID NOT PRODUCE THE CO MPLETE BOOKS OF ACCOUNT ALONG WITH SUPPORTING EVIDENCE DURING THE C OURSE OF ITA NO.466,467& 545/JP/2016 M/S GANPATI PLAZA VS. ITO 11 ASSESSMENT PROCEEDINGS DESPITE NUMEROUS OPPORTUNITI ES PROVIDED TO IT. AFTER CONSIDERING THE SAID REMAND REPORT THE LD. CI T(A) HAS GRANTED PART RELIEF TO THE ASSESSEE BY APPLYING STATE PWD RATE INSTEAD OF CPWD RATES ADOPTED BY THE DVO FOR THE PURPOSE OF DE TERMINING THE VALUE OF CONSTRUCTION OF SHOPPING COMPLEX. THUS, TH E LD. CIT(A) DID NOT ACCEPT THE CONTENTION OF THE ASSESSEE REGARDING THE COST OF CONSTRUCTION AS DECLARED BY THE ASSESSEE AND OTHER DEDUCTION AND REBATES CLAIMED BY THE ASSESSEE. 8. BEFORE US, THE LD. AR OF THE ASSESSEE HAS SUBMI TTED THAT THE BOOKS OF ACCOUNTS AND CONSTRUCTION ACCOUNTS ALONG W ITH VOUCHERS WERE FILED VIDE LETTER DATED 02.01.2015. THE ASSESSEE HA S ALSO SUBMITTED COPY OF BALANCE SHEET ALONG WITH BUILDING ACCOUNT O N 03.02.2015. THESE DOCUMENTS WERE AGAIN SUBMITTED BEFORE THE LD. CIT(A) AS AN ADDITIONAL EVIDENCE WHICH WERE EXAMINED BY THE ASSE SSING OFFICER IN THE REMAND PROCEEDINGS. THE AO AFTER VERIFICATION A ND EXAMINATION OF BOOKS OF ACCOUNTS ACCEPTED THE COMPLETE BOOKS OF AC COUNTS ALONG WITH SUPPORTING BILLS AND VOUCHERS. THUS, ONCE THE AO HA S NOT REJECTED THE BOOKS OF ACCOUNTS PRODUCE BY THE ASSESSEE, THE COST OF CONSTRUCTION AS DECLARED BY THE ASSESSEE IN THE BOOKS OF ACCOUNTS S HOULD HAVE BEEN ACCEPTED INSTEAD OF REFERRING THE VALUATION TO THE DVO AND ADOPTING THE ITA NO.466,467& 545/JP/2016 M/S GANPATI PLAZA VS. ITO 12 VALUE ESTIMATED BY THE DVO. HE HAS FURTHER CONTENDE D THAT THERE IS NO INCRIMINATING DOCUMENT FOUND DURING THE COURSE OF S URVEY PROCEEDINGS AND THEREFORE, THE INVESTMENT SHOWN IN THE BOOKS OF ACCOUNTS SHOULD HAVE BEEN ACCEPTED BY THE AUTHORITIES BELOW. HE HAS RELIED UPON THE DECISION OF HONBLE JURISDICTION HIGH COURT IN CASE OF CIT VS HOTEL JOSHI 242 ITR 478 AS WELL AS THE DECISION OF HONBLE HIGH COURT IN CASE OF PRATAP SHINGH AMRO SINGH RAJEDRA SINGH 200 ITR 788 AND CONTENDED THAT WHEN THE BOOKS OF ACCOUNT ARE NOT REJECTED THE ADDITION BASED ON VALUATION REPORT IS NOT SUSTAINABLE. THE LD. AR OF THE ASSESSEE HAS FURTHER CONTENDED THAT THE DVO HAS ADOPTED THE TOTA L COST BY APPLYING CPWD RATES HOWEVER, THE LD. CIT(A) HAS ALSO NOT COM PUTED THE CORRECT COST OF CONSTRUCTION EVEN BY APPLYING THE STATE PWD RATES. HE HAS REFERRED TO THE STANDING ORDER OF STATE PWD RATES A PPLICABLE FOR THE YEAR UNDER CONSIDERATION AND SUBMITTED THAT DUE TO SOME CALCULATION MISTAKE THE VALUE HAS BEEN TAKEN ON HIGHER SIDE. FU RTHER, THE DEDUCTION ON ACCOUNT OF SELF-SUPERVISION CHARGES HAS NOT BEEN ALLOWED BY THE DVO AS WELL AS BY THE AUTHORITIES BELOW. THUS, THE LD. AR HAS SUBMITTED THAT THE ASSESSEE IS ENTITLED FOR DEDUCTION FOR 12% ON ACCOUNT OF SELF- SUPERVISION. IN SUPPORT OF HIS CONTENTION HE HAS RE LIED UPON THE DECISION OF THIS TRIBUNAL IN CASE OF ITO VS. NITESH MAHESHWA RI 138 TTJ 116 AND ITA NO.466,467& 545/JP/2016 M/S GANPATI PLAZA VS. ITO 13 SUBMITTED THAT THE TRIBUNAL HAS GRANTED 12% DEDUCTI ON FOR SELF- SUPERVISION. THE LD. AR HAS POINTED OUT THAT THE AS SESSEE PRODUCED THE AFFIDAVITS OF THE TENANTS AS WELL AS SOME OF THE TE NANTS WERE EXAMINED BY THE AO DURING THE COURSE OF REMAND PROCEEDINGS W HEREIN ALL THE TENANTS HAVE ACCEPTED THE FACT THAT THE ELECTRICAL INSTALLATIONS AND PAINT INSIDE THE SHOP WERE GOT DONE THE BY THEMSELVES AND ASSESSEE HAS NOT INCURRED ANY EXPENDITURE ON ELECTRICAL INSTALLATION AND INSIDE PAINTS OF THE SHOPS. SINCE, THE DVO WHILE DETERMINING THE COS T OF CONSTRUCTION HAS NOT TAKEN INTO CONSIDERATION THESE FACTORS. 9. THEREFORE, THE FAIR MARKET VALUE DETERMINED BY DVO CANNOT BE ALLOTTED THE NEXT DISPUTE IS REGARDING THE COST OF LIFT. THE LD. AR HAS SUBMITTED THAT THE ASSESSEE PRODUCE THE PURCHASE BI LL OF LIFT OF RS. 3,78,420/- WHEREAS THE DVO TOOK THE VALUES AS PER C PWD GUIDELINES RATE AT RS. 19,03,500/-. THEREFORE, IGNORING THE AC TUAL COST OF LIFT THE DVO HAS ADOPTED THE ARTIFICIAL RATES WHICH IS NOT J USTIFIED. THE DVO HAS TAKEN THE VALUE OF EXTRA ITEMS OF RS. 20,02,130/- A S AGAINST THE VALUE OF EXTRA ITEMS TAKEN BY THE APPROVED VALUER AT RS. 4,5 4,503/-. THE LD. AR OF THE ASSESSEE HAS SUBMITTED THAT SINCE THE LD. CI T(A) HAS ACCEPTED THE STATE PWD RATES INSTEAD OF CPWD RATE THEREFORE, THE COST OF EXTRA ITEMS SHOULD HAVE BEEN COMPUTED BY APPLYING THE S TATE PWD RATES. ITA NO.466,467& 545/JP/2016 M/S GANPATI PLAZA VS. ITO 14 THE LD. AR HAS THEN POINTED OUT THAT THE ASSESSEE H AS PAID THE ACTUAL FEE OF ARCHITECTURE OF RS. 2,00,000/- WHEREAS THE DVO HAS ADOPTED THE ARCHITECTURE FEE @ 1% OF TOTAL COST OF RS. 3,20,768 /-. THEREFORE, THE ACTUAL FEE PAID BY THE ASSESSEE HAS TO BE TAKEN INT O ACCOUNT INSTEAD OF ESTIMATION MADE BY THE DVO. THE LD. AR HAS FURTHER SUBMITTED THAT THE DVO HAS ALSO SIFTED THE COST OF CONSTRUCTION DECLAR ED IN THE BOOKS FOR THE ASSESSMENT YEAR 2014-15 AT RS. 18,34,792/- AND THE DIFFERENTIAL AMOUNT WAS ADDED FOR THE YEAR UNDER CONSIDERATION. FURTHER, THE DVO HAS DIVIDED TOTAL COST OF CONSTRUCTION IN 4 YEARS I NSTEAD OF 5 YEARS TAKEN BY THE ASSESSEE AND THEREBY INCREASE THE COST OF CO NSTRUCTION FOR THE YEAR UNDER CONSIDERATION. THUS, THE LD. AR HAS SUBM ITTED THAT WHEN THE BOOKS OF ACCOUNTS OF THE ASSESSEE WERE FOUND TO BE CORRECT, NO ADDITION IS CALLED FOR IN RESPECT OF COST OF CONSTRUCTION OF SHOPPING COMPLEX. 10. ON THE OTHER HAND, LD. DR HAS SUBMITTED THAT TH E ASSESSEE ADMITTEDLY IS NOT MAINTAINED THE BOOKS OF ACCOUNTS AS WELL AS THE BUILDING ACCOUNTS REGULARLY. IT WAS FOUND DURING TH E COURSE OF SURVEY PROCEEDINGS THAT THE ASSESSEE WAS NOT MAINTAINING T HE REGULAR BOOKS OF ACCOUNTS AND FURTHER NO RECORDS OR DETAILS WERE PRO DUCED BY THE ASSESSEE EVEN DURING THE COURSE OF ASSESSMENT PROCE EDINGS. ONLY DURING THE APPELLATE PROCEEDINGS BEFORE THE LD. CIT (A) THE ASSESSEE ITA NO.466,467& 545/JP/2016 M/S GANPATI PLAZA VS. ITO 15 PRODUCED EVIDENCES WHICH WERE FORWARDED TO THE AO F OR EXAMINATION. THUS, IT IS CLEAR THAT THE BOOKS OF ACCOUNTS PREPAR ED BY THE ASSESSEE WERE NOT BASED ON THE ACTUAL DETAILS OF EXPENDITURE BUT IT IS PREPARED AFTER GAP OF MORE THAN 3 YEARS AND THEREFORE, THE V ALUATION ADOPTED BY THE ASSESSEE IN THE BOOKS OF ACCOUNTS CANNOT BE ACC EPTED AS CORRECT. HE HAS RELIED UPON THE ORDERS OF THE AUTHORITIES BE LOW. 11. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AS WE LL AS RELEVANT MATERIAL ON RECORD. THOUGH THE ASSESSEE PRODUCED TH E BOOKS OF ACCOUNTS BEFORE THE AO DURING THE REMAND PROCEEDING S AND THE SAME WERE NOT FOUND TO BE INCORRECT BY THE AO HOWEVER, I T IS UNDISPUTED THAT THE BOOKS OF ACCOUNTS PRODUCE BY THE ASSESSEE WERE GOT PREPARED AFTER A GAP OF MORE THAN 3 YEARS FROM THE END OF THE FINA NCIAL YEAR RELEVANT TO THE ASSESSMENT YEAR UNDER CONSIDERATION. REJECTI ON OF THE BOOKS OF ACCOUNTS IS NOT A PRECEDENT OF CONDITION FOR REJECT ING THE COST OF CONSTRUCTION DECLARED BY ASSESSEE WHEN THE BOOKS OF ACCOUNTS WERE NOT MAINTAINED BY THE ASSESSEE REGULARLY BUT WERE PREPA RED ON A SUBSEQUENT DATE THAT TOO AFTER MORE THAN 3 YEARS. T HEREFORE, THE VALUE SHOWN BY THE ASSESSEE IN THE BOOKS OF ACCOUNTS, NEE D NOT NECESSARILY BE ACCEPTED AS CORRECT. THUS, IT WAS PROPER AND JUS TIFIED ON THE PART OF THE AO TO EXAMINE THE VALUATION OF COST OF CONSTRUC TION THROUGH ITA NO.466,467& 545/JP/2016 M/S GANPATI PLAZA VS. ITO 16 INDEPENDENT INQUIRY. FURTHER, THE REFERENCE TO THE DVO WAS MADE BY THE AO DURING THE ASSESSMENT PROCEEDINGS AND IN THE ABSENCE OF RELEVANT EVIDENCE AND BOOKS OF ACCOUNTS. THEREFORE, THE REPORT OF THE DVO WAS AVAILABLE BEFORE THE ADDITIONAL EVIDENCE FI LED BY THE ASSESSEE DURING THE PROCEEDINGS BEFORE THE LD. CIT(A). THUS, ONCE THE DVO HAS ALREADY DETERMINED THE VALUE OF COST OF CONSTRUCTIO N THEN, THIS OBJECTION OF THE ASSESSEE IS DEVOID OF MERITS. HOWEVER, WE FI ND THAT SOME OF THE ISSUES LIKE ALLOWING THE SELF SUPERVISION REBATED/D EDUCTION, THE COST OF ELECTRICAL INSTALLATIONS AND PAINT INSIDE THE SHOPS CLAIMED TO HAVE BEEN INCURRED BY THE TENANTS AS PER THE AFFIDAVITS FILED AS WELL AS STATEMENTS OF THE TENANTS RECORDED BY THE AO DURING THE REMAND PROCEEDINGS AND FURTHER, THE COST OF THE LIFT WAS ADOPTED BY THE DV O AS PER GUIDELINES VALUE OF CPWD RATES INSTEAD OF ACTUAL PURCHASE PRIC E CLAIMED BY THE ASSESSEE HAVE NOT BEEN CONSIDERED PROPERLY BY THE A UTHORITIES BELOW. FURTHER, THE ASSESSEE HAS SUBMITTED THAT THE COST O F EXTRA ITEMS WERE TAKEN BY APPLYING THE CPWD RATES INSTEAD OF STATE P WD RATES DESPITE IT WAS ACCEPTED BY THE LD. CIT(A). WE FIND THAT IT IS SETTLED PROPOSITION OF LAW THAT WHEN THE ASSESSEE HAS CLAIMED THE DEDUCTIO N ON ACCOUNTS OF SELF SUPERVISION THEN APPROPRIATE DEDUCTION OUGHT T O HAVE BEEN GIVEN ON THIS ACCOUNT WHILE DETERMINING THE COST OF CONS TRUCTION. FURTHER, ITA NO.466,467& 545/JP/2016 M/S GANPATI PLAZA VS. ITO 17 WHEN CERTAIN EXPENDITURE WERE INCURRED BY THE TENAN TS OF THE SHOPS AS CLAIMED IN THE AFFIDAVIT AS WELL AS IN THEIR STATEM ENTS THEN, THE SAID CLAIM SHOULD NOT HAVE BEEN DENIED WITHOUT BRINGING CONTRARY MATERIAL ON RECORD. SIMILARLY THE ASSESSEE HAS CLAIMED THAT THE LD. CIT(A) HAS ADOPTED INCORRECT STATE PWD PRESCRIBED RATES THEREF ORE, ALL THESE ASPECTS REQUIRE A PROPER VERIFICATION AND EXAMINATI ON AT THE TIME OF DETERMINATION OF COST OF CONSTRUCTION OF THE SHOPPI NG COMPLEX IN QUESTION. THE OTHER ISSUES RAISED BY THE ASSESSEE A RE ALSO REQUIRED TO BE CONSIDERED IN LIGHT OF THE RELEVANT EVIDENCE PRO DUCE BY THE ASSESSEE. THERE IS NO POINTS IN ADOPTING TWO SEPARATE RATES W HEN THE LD. CIT(A) HAS IMPERMISSIBLE ACCEPTED THE STATE PWD RATES OF D ETERMINING THE COST OF CONSTRUCTION THEN THE COST OF EXTRA ITEMS ARE AL SO BE DETERMINED BY APPLYING THE STATE PWD RATES. THE ASSESSEE HAS CLAI MED TO HAVE PAID ARCHITECTURE FEE OF RS. 2 LACS WHEREAS THE DVO HAS ADOPTED THE ESTIMATED FEE @ 1% OF TOTAL COST. WE ARE OF THE CON SIDERED VIEW THAT ESTIMATION OF FEE IS REQUIRED ONLY WHEN THE ASSESSE E HAS FAILED TO PRODUCE THE EVIDENCE IN SUPPORT OF THE ACTUAL FEE P AID. THUS, IF THE ASSESSEE HAS CLAIMED TO HAVE MADE THE PAYMENT OF RS . 2 LACS ONLY ON ACCOUNT OF ARCHITECTURE FEE THEN, WITHOUT EXAMINATI ON OF THE CORRECTNESS OF THE PAYMENT AND RELEVANT EVIDENCE, THE ESTIMATED VALUE CANNOT BE ITA NO.466,467& 545/JP/2016 M/S GANPATI PLAZA VS. ITO 18 ADOPTED. THEREFORE, THE ISSUE OF DETERMINATION OF C OST OF CONSTRUCTION IS REMITTED TO THE RECORD OF THE ASSESSING OFFICER TO EXAMINE AND DECIDE AFRESH AFTER CONSIDERATING VARIOUS OBJECTIONS AND R ELEVANT ASPECTS AS DISCUSSED IN THE FOREGOING PART OF THIS ORDER. THE OBJECTION OF THE ASSESSEE REGARDING DIVISION OF COST CONSTRUCTION IN 5 YEARS SHALL ALSO BE TAKEN INTO CONSIDERATION. NEEDLESS TO SAY THE ASSES SEE BE GIVEN AN APPROPRIATE OPPORTUNITY OF HEARING BEFORE PASSING T HE FRESH ORDER ON THIS ISSUE. 12. GROUND NO. 5 IS CONSEQUENTIAL TO THE GROUND NO. 4 AND NO SEPARATE ADJUDICATION IS REQUIRED. 13. FOR THE ASSESSMENT YEAR 2012-13 THE ASSESSEE H AS RAISED THE FOLLOWING GROUNDS:- 1 ON THE FACTS & CIRCUMSTANCES OF THE CASE LD. LOWE R AUTHORITIES GROSSLY ERRED IN INITIATING REASSESSMENT PROCEEDING S U/S 147 OF THE INCOME TAX ACT, 1961, 2. ON THE FACTS & CIRCUMSTANCES OF THE CASE & IN LA W ALSO A.O. GROSSLY ERRED IN PASSING THE ASSESSMENT ORDER WITHO UT PROPER & UNLAWFUL SERVICE OF NOTICE U/S 148,143(2) OF THE AC T. 3. ON THE FACTS & CIRCUMSTANCES OF THE CASE LD CIT (A), ALWAR GROSSLY ERRED IN HOLDING THAT THE REFERENCE TO THE DVO U/S 142 OF THE ACT FOR ESTIMATING COST OF CONSTRUCTION WAS JUS TIFIED. 4. ON THE FACTS & CIRCUMSTANCES OF THE CASE LD CIT (A), ALWAR ITA NO.466,467& 545/JP/2016 M/S GANPATI PLAZA VS. ITO 19 GROSSLY ERRED IN I. NOT ACCEPTING THE COST OF CONSTRUCTION DECLARED BY THE ASSESSEE IN THE BOOKS OF ACCOUNTS AS IN THE REMAND PROCEEDINGS LD A.O. VERIFIED THE BOOKS, VOUCHERS & SUPPORTING A ND WERE ACCEPTED AND NOTHING INCRIMINATING MATERIAL WAS FOU ND DURING THE COURSE OF SURVEY U/S 133 A OF THE ACT. II. TAKING THE TOTAL COST OF CONSTRUCTION AS PER PW D RATES AT RS 2,81,71,198/- AS AGAINST RS 2,65,33,114/- CALCULATE D BY ASSESSEE. III. NOT ALLOWING DEDUCTION FOR SELF SUPERVISION C HARGES. IV. NOT ALLOWING DEDUCTION FOR ELECTRICAL FITTINGS & PAINT COST INCURRED BY THE TENANTS. V. CONSIDERING THE COST OF PURCHASES OF LIFT IN A.Y . 2011-12 TO 2014-15 IGNORING THE FACT THAT THE SAID LIFT WAS PU RCHASED ON 07/01/2015 I.E PERTAINING TO A.Y. 2015-16. VI. TAKING THE VALUE OF LIFT AT RS. 19,03,500/- AS ESTIMATED BY DVO AS AGAINST ACTUAL COST OF PURCHASES OF LIFT FOR RS. 3,78,420/-. VII. TAKING THE VALUE OF EXTRA ITEMS AT RS 20,02,13 0/- AS AGAINST THE VALUE OF EXTRA ITEMS TAKEN BY APPROVED VALUER A T RS 4,54,503/- VIII TAKING THE ARCHITECT FEES AT RS 3,20,768/- I.E .1% OF TOTAL COST AS AGAINST ACTUAL PAYMENT OF RS 2,00,000/- IX. ACCEPTING THE COST OF CONSTRUCTION FOR F.Y. 201 3-14 AT RS 10,19,596/- ONLY AS AGAINST RS 18,34,792/- DECLARED BY THE ASSESSEE. X. NOT ACCEPTING THE COST OF CONSTRUCTION DECLARED BY THE ASSESSEE IN F.Y. 2014-15 (A.Y. 2015-16) FOR RS 26,6 5,245/- IN THE BOOKS OF ACCOUNTS ESPECIALLY UNDER THE CIRCUMSTANCE S THAT THE ITA NO.466,467& 545/JP/2016 M/S GANPATI PLAZA VS. ITO 20 PROPERTY WAS INSPECTED BY DVO ON DATED 09/03/2015 I .E AT THE END OF F.Y. 2014-15. MOREOVER THE DIVISION OF TOTAL COST SHOULD HAVE BEEN MADE IN 5 YEARS & NOT IN 4 YEARS. XI. HOLDING THAT NO BOOKS OF ACCOUNTS WERE PRODUCED BEFORE LD. AO DURING THE ASSESSMENT PROCEEDINGS. 5. THEREFORE LD CIT(A) GROSSLY ERRED IN CONFIRMING THE ADDITION OF RS. 11,47,583/- FOR THE YEAR UNDER CONSIDERATION ON ACCOUNT OF UNEXPLAINED INVESTMENT IN THE COST OF CONSTRUCTION. 14. GROUND NO. 1 IS REGARDING THE VALIDITY OF INITI ATION OF PROCEEDINGS AND OTHER GROUNDS OF THE ASSESSEE ARE COMMON TO THE GROUNDS RAISED FOR THE ASSESSMENT YEAR 2011-12. THEREFORE, THE APP EAL FOR THE ASSESSMENT YEAR 2011-12 IS DISPOSED OFF IN THE SAME TERMS AS WE HAVE DECIDED THE APPEAL OF THE ASSESSEE FOR THE ASSESSME NT YEAR 2011-12. 15. IN THE CROSS APPEAL FOR THE ASSESSMENT YEAR 201 2-13 THE REVENUE HAS RAISED THE FOLLOWING GROUND:- 1. THAT THE LD. COMMISSIONER OF INCOME TAX (APPEALS ), ALWAR HAS ERRED ON THE FACTS AND CIRCUMSTANCES OF THE CAS E IN RESTRICTING THE ADDITION OF RS. 93,80,094/- TO RS. 11,47,583/- MADE BY AO ON ACCOUNT OF UNDISCLOSED INVESTMENT ON THE BASIS OF DIFFERENCE FOUND IN THE COST OF CONSTRUCTION AS SHOWN BY THE ASSESSEE AND AS DETERMINED IN DVOS REPORT. 16. WE HAVE HEARD THE LD. DR AS WELL AS LD. AR AND CONSIDERED THE RELEVANT MATERIAL ON RECORD. THIS ISSUE IS COMMON T O THE ISSUE RAISED BY THE ASSESSEE REGARDING THE ESTIMATION OF COST OF CO NSTRUCTION BY ITA NO.466,467& 545/JP/2016 M/S GANPATI PLAZA VS. ITO 21 ADOPTING STATE PWD RATE BY THE LD. CIT(A) INSTEAD O F CPWD RATES ADOPTED BY DVO. WE FIND THAT THIS ISSUE IS COVERED BY THE VARIOUS DECISIONS OF THIS TRIBUNAL AS WELL AS THE DECISION OF HONBLE HIGH COURT RELIED UPON BY THE LD. CIT(A) AS HELD IN PARA 7.22 AND 7.23 AS UNDER:- 7.22 THE APPELLANT HAS PLACED RELIANCE ON THE JUDI CIAL DECISIONS OF HONBLE RAJASTHAN HIGH COURT IN THE CASE OF CIT VS. HOTEL HOSHI ( 242 ITR 478), CIT VS. ELEGANT HOMES PVT LTD ( 259ITR232). IT IS FURTHER SUBMITTED BY THE APPELLAN T THAT HONBLE ITAT JAIPUR HAVE IN THE CASE OF SH NIRMAL KUMAR AGA RWAL IN ITA NO. 828, 829/JP/2013 VIDE ORDER DATED 15-01-2014, H ELD AFTER CONSIDERING A NUMBER OF DECISIONS OF THE JURISDICTI ONAL HIGH COURT THAT STATE PWD RATES HAVE TO BE APPLIED FOR ESTIMAT ING THE VALUE OF CONSTRUCTION. 7.23 I HAVE GONE THROUGH THE DECISIONS OF THE JURIS DICTIONAL HONBLE HIGH COURT AND OF HONBLE ITAT, JAIPUR BENC H CITED BY THE APPELLANT AND FIND THAT IT HAS BEEN CATEGORICAL LY HELD THAT FOR THE PURPOSES OF VALUATION OF PROPERTY, THE RATES OF VALUATION AS PROVIDED BY THE STATE PWD HAVE TO BE APPLIED APART FROM THE FACTUAL MATRIX OF EACH CASE. THEREFORE, FOLLOWING T HE SAME, AS THESE DECISIONS ARE FOUND TO BE APPLICABLE TO THE F ACTS OF THE PRESENT CASES, I HOLD THAT FOR THE PURPOSES OF VALU ATION OF PROPERTY, STATE PWD RATES HAVE TO BE APPLIED TO THE PLINTH AREA OF CONSTRUCTION FOR EACH FLOOR AS GIVEN BY THE DVO IN THE REPORT. HAVING HELD THAT, IT WOULD ALSO TAKE CARE OF THE OB JECTIONS OF THE APPELLANT ON THE ISSUE OF SUPERVISION EXPENSES, NO DISCOUNTING IN THE VALUATION GIVEN BY THE DVO FOR THE COST OF WIND OWS, ALMIRAHS, SANITARY FITTINGS, ELECTRIC FITTINGS, PAI NTING, FALSE CEILING, FINISHING ETC. AS THE EXPENSES ON THESE ITEMS WERE NOT INCURRED BY THE APPELLANT AND ALSO THE FACT THAT CONSTRUCTIO N MATERIAL HAS BEEN SOURCED LOCALLY. ITA NO.466,467& 545/JP/2016 M/S GANPATI PLAZA VS. ITO 22 EVEN THE HONBLE SUPREME COURT IN CASE OF CIT VS. S UNITA MANSINGHA 393 ITR 121 HAS HELD IN PARA 1 TO 3 AS UNDER:- 1. WE HAVE HEARD THE LEARNED COUNSEL FOR THE PARTIES AND PERUSED THE IMPUGNED JUDGMENT AND ORDER DATED 2ND M ARCH, 2005 PASSED BY THE HIGH COURT OF JUDICATURE FOR RAJ ASTHAN AT JODHPUR IN INCOME TAX APPEAL NO. 3 OF 2005 AS ALSO THE ORDER PASSED BY THE INCOME TAX APPELLATE TRIBUNAL DATED 2 0TH MAY, 2004. 2. FROM THE ORDER OF THE TRIBUNAL WE FIND THAT THE TR IBUNAL HAS EVEN THOUGH HELD THAT THE REFERENCE TO THE DEPARTME NTAL VALUATION OFFICER IN QUESTION IS NOT VALID, IN VIEW OF THE DECISION OF THIS COURT IN THE CASE OF AMIYA BALA PAUL V. CIT [2003] 262 ITR 407/130 TAXMAN 511 , BUT IT HAS ALSO HELD THAT IT IS SETTLED PRINCIPLE OF LAW THAT IN PLACE OF CENTRAL PUBLIC WO RKS DEPARTMENT RATES LOCAL PUBLIC WORKS DEPARTMENT RATES ARE TO BE APPLIED AND ADOPTED TO DETERMINE THE COST OF CONSTRUCTION. IN V IEW OF THE FACT THAT SECTION 142A WAS INSERTED BY FINANCE (NO.2) AC T, 2014 (23 OF 2004) W.E.F. 15TH NOVEMBER, 1972 AND SUBSEQUENTL Y AGAIN SUBSTITUTED BY FINANCE ACT, 2010 (14 OF 2010) W.E.F . 1ST JULY, 2010 AND FINANCE (NO.2) (225 OF 2014) W.E.F. 1ST OC TOBER, 2014, AS THE PROVISO TO SUB-SECTION (3) OF SECTION 142A A S IT EXISTED DURING THE RELEVANT PERIOD, REFERENCE TO THE DEPART MENTAL VALUATION OFFICER CAN BE MADE BECAUSE ASSESSMENT IN THE PRESENT CASE HAD NOT BECOME FINAL AND CONCLUSIVE BECAUSE TH E APPEAL PREFERRED BY THE REVENUE UNDER SECTION 260A OF THE INCOME TAX ACT, 1961 WAS PENDING BEFORE THE RAJASTHAN HIGH COU RT. 3. HOWEVER, IN VIEW OF THE FINDING RECORDED BY THE TR IBUNAL THAT THE LOCAL PUBLIC WORKS DEPARTMENT RATES ARE TO BE A PPLIED AND ADOPTED IN PLACE OF CENTRAL PUBLIC WORKS DEPARTMENT RATES, WE DO NOT FIND ANY GOOD GROUND TO INTERFERE IN THE IMPUGN ED JUDGMENT ON THIS ISSUE ON MERITS. THE APPEAL FAILS AND IS DI SMISSED. ITA NO.466,467& 545/JP/2016 M/S GANPATI PLAZA VS. ITO 23 THEREFORE, IN VIEW OF THE ABOVE DECISION OF HONBLE SUPREME COURT WE DO NOT FIND ANY ERROR OR ILLEGALITY IN THE ORDER OF THE LD. CIT(A) QUA THIS ISSUE. IN THE RESULT, THE APPEALS OF THE ASSESSEE ARE PART LY ALLOWED FOR STATISTICAL PURPOSES AND APPEAL OF THE REVENUE FOR THE ASSESSMENT YEAR 2012-13 IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 16/02/2018 SD/- SD/- FOE FLAG ;KNO FOT; IKY JKO (VIKRAM SINGH YADAV) (VIJAY PAL RAO) YS[KK LNL;@ ACCOUNTANT MEMBER U;KF;D LNL;@ JUDICIAL MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 16/02/2018. * SANTOSH. VKNS'K DH IZFRFYFI VXZSFKR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- M/S GANPATI PLAZA, BEHROR, ALWAR. 2. IZR;FKHZ@ THE RESPONDENT- ITO, BEHROR. 3. VK;DJ VK;QDR@ CIT 4. VK;DJ VK;QDR@ CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR. 6. XKMZ QKBZY@ GUARD FILE {ITA NO. 466, 467 & 545/JP/2016} VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASST. REGISTRAR