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TMI Blog2011 (12) TMI 361X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessee disclosed the cost of construction at Rs. 38,92,848 whereas upon reference to the Departmental Valuation Officer, Ajmer (DVO) in accordance with provision of s. 142A of the Act of 1961 inserted by Finance Act No. 2 of 2004 with retrospective effect from 15th Nov., 1972, the said DVO on 22nd Dec., 2009 estimated the cost of construction of the hotel building at Rs. 1,17,92,000. Thus, to assess the difference amount of Rs. 78,99,152 vide Annex. 6 (Rs. 1,17,92,000 - Rs. 38,92,848) as undisclosed income under s. 69B of the Act of 1961, the assessing authority initiated the impugned reassessment proceedings. 3. The notice under s. 148 of the Act for the said purpose was issued to the petitioner-assessee vide Annex. 4 dt. 24 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d also sought further time; however, the said assessing authority passed the impugned assessment order under s. 143 (3)/147 of the Act of 1961 on 27th Dec., 2010 imposing tax on the said undisclosed income representing the difference between valuation of the hotel building as assessed by the DVO and the value disclosed by the assessee, as undisclosed income of the assessee. By seeking amendment in the writ petition, the assessee also challenged the said reassessment order also in the present writ petition. The connected writ petition (S.B. Civil Writ Petn. No. 7752 of 2011) was filed challenging the penalty order under s. 271(1)(c) of the Act imposing penalty upon the assessee to the extent of Rs. 26,70,935 being 100 per cent of the tax eva ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of natural justice is alleged, submitted that the assessing authority had reserved the right to reopen the assessment even while passing the original assessment order itself on 30th Dec., 2008; and after giving the notice under s. 147/148 of the Act itself vide Annex. 4 dt. 24th Feb., 2010, the assessing authority constantly gave the opportunities of hearing to the assessee in the matter and vide Annex. 6 reasons for reopening the assessment were supplied, then vide Annex. 7 on 6th Sept., 2010, the formal notice under ss. 143(2) and 142(1) along with valuation report of DVO were given to the assessee on 15th Sept., 2010 and with the rejection of preliminary objections vide Annex. 9 dt. 23rd Nov., 2010 again the assessee was asked to appea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the vires of the Act or rules are under challenge, (ii) if there is a breach of principles of natural justice, or (iii) if the impugned notice or order is without jurisdiction of the authority concerned. 11. The two of such exceptions are not even invoked in the present case and only the third ground, namely, the breach of principles of natural justice is alleged by the petitioner in the present case. 12. From the sequence of dates, noted above, this Court is of the opinion that even this ground of breach of principles of natural justice is not established in the present case. The reopening on the ground of valuation of hotel building in the present case was the right reserved by the assessing authority even ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e show-cause notices were issued to the respondent-assessing authority by a Co-ordinate Bench of this Court on 29th Nov., 2010, however, no stay was granted to the assessee petitioner against the impugned reassessment proceedings and accordingly when on 29th Nov., 2010, the assessee did not file his reply or objections on merits of his contentions, the assessing authority passed the impugned assessment order after about 28 days on 27th Dec., 2010. For this interregnum period, neither the assessee bothered to file his objections before the assessing authority nor it appears that the assessing authority again gave a fixed date to the assessee after 29th Nov., 2010. However, no blame can be laid at the doors of the respondent-assessing authori ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... As far as merits of the contentions of the assessee as to whether such difference in valuation of hotel building could be taxed as concealed income of the assessee under s. 69B of the Act is concerned, the same is a mixed question of fact and law, which can certainly be raised before the appellate forums provided under the Act and such appellate authorities have all necessary powers to examine/re-examine the validity of impugned reassessment order as well as penalty order. Their powers are not only comprehensive but co-extensive with that of the assessing authority and, therefore, the challenge to reassessment sought to be raised in the present writ petition, could have been very well raised before the appellate forums also. 18. The ..... X X X X Extracts X X X X X X X X Extracts X X X X
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