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TMI Blog2014 (12) TMI 754X X X X Extracts X X X X X X X X Extracts X X X X ..... sessee in the cost of construction of building in its books of account and cost estimated vide DVO's report being Rs. 20 lacs. 3. At the outset, it is noticed that on a number of occasion tribunal asked revenue to give the status report in respect of substantive addition in the hands of Siliguri Prabhupada International Research Society. The Tribunal vide order sheet entry dated 14.02.2013 at Sl. No. 23 directed as under: "Sl. No. 23- The Ld. DR is directed to verify where is the substantive addition and the latest status of the input assessment year in the case of 'Siliguri Prabhupada International Research Society'. Hence, the case is adjd. and block for 3 months. Both parties are informed in the Open court." Again on 25.06.2013 at Sl. No. 25 to produce assessment record and tell the status of substantive addition, as under: "Sl. No. 25 - 1. Heard the parties. 2. DR directed to produce assessment record of the assessee in whose hands substantive assessment was made. 3. Adj. to 19.07. for compliance to this requisition. Technically, p/h matter" Again on 19.07.2013 at Sl. No.27 to produce assessment record and tell the status of substantive addition and final opportunity was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ery where the substantive addition is made and what is the status as on date. The AO replied that till date they could not find the status of substantive addition and shown ignorance. As the revenue could not point out, where the substantive addition made and what happened to the same, we are unable to keep this appeal pending since 2010 and adjourned 36 times. We cannot keep this appeal as pending for ever for the fault of revenue. In term of the above, we delete the protective addition because the revenue is unable to bring on record what happened to substantive addition. In case, revenue is able to show us that substantive addition has been deleted in the hands of Siliguri Prabhupada International Research Society and there is a direction that this addition should be considered in the hands of the assessee, then they may get this order recalled as per the provisions of the Act. In term of the above, this appeal of assessee is allowed and protective addition is deleted. 5. Coming to ITA No. 1105/Kol/2010. The only issue in this appeal of assessee is against the order of CIT(A) confirming the action of AO in making addition of difference being the investment made in the cost of c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e completing assessment u/s. 143(3) of the Act. We have gone through the reassessment orders and assessment order framed u/s. 143(3) of the Act for Assessment Year 2002-03, there is no whisper about any discrepancy in books of account and there is no rejection of books of account by Assessing Officer. Once this is the position, what the Assessing Officer should have done. The Assessing Officer should not have referred the matter to the DVO for estimating cost of construction particularly when the cost of construction is fully described in the books of account. The basic principle is the same in law relating to income-tax as well as in civil law, namely, if there is no challenge to the transaction represented by the entries or to the genuineness of the entries, then it is not open to the revenue or other side to contend that what is shown by the entries is not the real state of affairs. When a return is furnished and accounts are put in, in support of that return, the accounts should be taken as the basis for assessment. They should not be rejected because they are complicated. The procedure of the Assessing Officer is of a judicial nature and in making assessment he should proceed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ters is not to be a subjective or arbitrary decision but a judicial decision and cannot be accepted if there is no material to support his findings. As in present case, the AO referred cost of construction to DVO without rejection of books of account, which is not as per established legal propositions. Hon'ble Apex Court in the case of Sargam Cinema Vs. CIT (2010) 328 ITR 513(SC) held as under:- "In the present case, we find that the Tribunal decided the matter rightly in favour of the assessee inasmuch as the Tribunal came to the conclusion that the assessing authority could not have referred the matter to the Department Valuation Officer (DV)) without the books of account being rejected. In the present case, a categorical finding is recorded by the Tribunal that the books were never rejected. This aspect has not been considered by the High Court. In the circumstances, reliance placed on the report of the DVO was misconceived." Further Hon'ble Rajasthan High Court in the case of CIT V Pratap Singh Amro Singh Rajendra Singh (1993) 200 ITR 788 (Raj) held as under:- "We have considered the matter. In respect of the investment which is made in the property, there can be only two me ..... X X X X Extracts X X X X X X X X Extracts X X X X
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