9911796707
TMI Blog1998 (2) TMI 166X X X X Extracts X X X X X X X X Extracts X X X X ..... r consideration, the return of income was filed on 24th June, 1988, disclosing income of Rs. 18,200. The assessment was completed under section 143(1) on 19th September, 1989. The Assessing Officer issued commission under section 131(1)(a) to the Departmental Valuation Officer on 4-6-1990 for determination of the cost of construction of the building. The Departmental Valuation Officer estimated the cost of construction at Rs. 2,25,000. During the course of assessment proceedings, it was explained by the assessee that the D.V.O. had included some portions of the building, which was constructed later on i.e. during the accounting period relevant to assessment year 1990-91. It was also explained that the building was constructed after dismantl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issue of commission to the D.V.O. on 4-6-1990 was not in accordance with law, because no assessment proceedings were pending on 4-6-1990. He pointed out that the assessment was already completed under section 143(1) on 19-9-1989. After the completion of assessment under section 143(1), no assessment proceedings was pending before the Assessing Officer until the issuance of notice under section 143(2). Notice under section 143(2) was issued only on 19-2-1991. Therefore, the commission issued on 4-6-1990 cannot be said to be a commission for the purpose of assessment proceedings, but it could at the most, be for the purpose of making inquiry. He, therefore, submitted that the commission issued on 4-6-1990 was illegal and not in accordance wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Assessing Officer has also allowed rebate for the user of old material. Therefore, he submitted that the assessment order is quite fair and reasonable. The same should be upheld. 6. We have considered the arguments of both the sides and have perused the records placed before us. Section 131(1) of the Income-tax Act, 1961, as it stood at the relevant time, reads as under: "131(1) The (Assessing) Officer, (Dy. Commissioner (Appeals)), (Dy. Commissioner), (Commissioner (Appeals)) and (Chief Commissioner or Commissioner) shall, for the purposes of this Act, have the same powers as are vested in a Court under the Code of Civil Procedure, 1908 (5 of 1908), when trying a suit in respect of the following matters, namely:--- (a) discovery and in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sessee that the commission could have been issued only during the course of continuation of assessment proceedings. Section 131(1) gives the powers to the Assessing Officer, which are vested in a Court "when trying a suit". The words "when trying a suit" are in continuous tense. It means, the trial of the suit is in progress. Thus, when the similar power is being utilized by the Assessing Officer, it must be during the continuation of the assessment proceedings and neither before the start of the assessment proceedings nor after the completion of the assessment proceedings. In the case under appeal before us, the return was filed on 24th June, 1988. Assessment was completed under section 143(1) on 19-9-1989. Commission under section 131(1) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... become entitled to invoke section 131(1). Therefore, the impugned summons was liable to be quashed." 7. In view of the above, we hold that the DVO's report cannot be utilized against the assessee. However, the assessee himself has submitted a report from the approved valuer, who estimated the cost of construction at Rs. 1,22,300 in respect of the construction carried on by the assessee during the year under consideration. The ld. counsel for the assessee could not put forward any plausible explanation for difference between the value estimated, by approved valuer and the cost of construction shown by the assessee. He only claimed that the rebate for the user of old material allowed is very less. We find that the approved valuer has estimat ..... X X X X Extracts X X X X X X X X Extracts X X X X
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