2017 (6) TMI 785 - HC - Income Tax

Reopening of assessment - reference to DVO - determination of value of property - Held that - . Since the Assessing Officer relies only on the DVO s report it is difficult to appreciate how he contends that the present petitioner had made any unaccounted investment in construction. If we peruse the reasons recorded by him more minutely, we find that a rather unconventional approach was adopted by the Assessing Officer to project the cost of construction over the entire span of financial year 2005-06. AO had to have tangible material at his command to enable him to form a belief that income chargeable to tax had escaped assessment. His belief is based on presumption of extrapolation even otherwise wholly impermissible on the basis of materials on record. To reiterate, according to the report of the DVO, the entire investment of ₹ 1.82 crores in construction was made before 01.07.2005. There was thereafter, no question of apportioning any portion thereof during the period after 20.09.2005. In any case, the same could not have been done without basis or further opinion available with the Assessing Officer. Only in the present case, we are concerned with the reopening of an assessment which was previously framed after scrutiny and whet her such notice is issued beyond a period of four years from the end of the relevant assessment year. - Decided in favour of assessee.

Summary

Issues:
1. Challenge to notice for reopening assessment for the assessment year 2006-07 based on valuation report.
2. Proper attribution of construction costs to the petitioner partnership firm.
3. Validity of Assessing Officer's approach in projecting cost of construction over financial years.
4. Compliance with statutory requirements for issuing notice beyond the prescribed period.

Analysis:

1. The petitioner challenged the notice for reopening the assessment for the year 2006-07 based on a valuation report indicating a total investment in construction higher than what was declared by the assessee. The Assessing Officer relied on this report to issue the notice, alleging an under-declaration of construction costs by the petitioner.

2. The petitioner partnership firm took over the under-construction hotel business on 20.09.2005. The Assessing Officer's contention was that the firm failed to declare the true value of investment in construction post this date. However, the court noted that the Assessing Officer's approach of projecting costs over financial years without concrete evidence was flawed. The total investment in construction, as per the valuation report, was made before 01.07.2005, making it unjustifiable to apportion any portion of it post 20.09.2005 without proper basis.

3. The court criticized the Assessing Officer's unconventional method of extrapolating construction costs over financial years based on declared costs and the valuation report. The officer's reliance on presumption and extrapolation without tangible evidence was deemed impermissible. The court emphasized the necessity of tangible material to form a belief that income had escaped assessment, which was lacking in this case.

4. Considering the statutory requirement for issuing a notice for reopening assessment beyond a specified period, the court found the notice dated 14.03.2013 invalid and set it aside. The judgment highlighted the importance of adhering to legal provisions when reopening assessments after scrutiny, especially concerning the timing and substantiation of claims made by the Assessing Officer.

Overall, the court allowed the petition, emphasizing the need for proper justification and compliance with legal standards when challenging assessment notices based on valuation reports and construction costs attribution.