TMI Blog2013 (7) TMI 938X X X X Extracts X X X X X X X X Extracts X X X X ..... aiswal Sr. DR ORDER These are assessee s six appeals against separate order of CIT(A), Dehradun, challenging confirmation of following amounts of penalty u/s 271(1)(c) of the Income-tax Act, 1961, qua the additions on account of difference in cost of construction of the house, relating to assessment years 1997-98 to 2001-02 and 2003-04, as under: Asstt. Yr. Penalty imposed u/s 271(1)(c) 1997-98 ₹ 36,332/- 1998-99 ₹ 72,506/- 1999-2000 ₹ 48,253/- 2000-01 ₹ 27,352/- 2001-02 ₹ 25,163/- 2003-04 ₹ 15,057/- 2. None put in appearance on behalf of the assessee at the hearing despite issue of notice. Ie proceed to dispose of these appeals ex parte, qua the assessee and in that process we have heard ld. DR and perused the relevant material available on record. 3. Brief facts are: The assessee lady carries on business in hilly area of Pithoragarh, Uttrakhand a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of 9.56% thereof should be considered as incurred in assessment year 1997-98 and to this, price index of assessment year 1997-98 should be applied to work out the value of construction for assessment year 1997-98. On the same basis, the value can be worked out for the remaining years, and if the same is in excess of the cost of construction declared by the assessee, addition can be made to that extent. Regarding extra addition made by DVO at ₹ 6,29,239/-, we find that the assessment is objecting to three items out of that. The first item being objected is the addition of ₹ 2,47,970/- including ₹ 89,920/- on account of electrification; ₹ 1,21,423/- on account of water supply and sanitary equipment and ₹ 36,737/- on account of extent services. The object of the assessee on this account should be considered and decided by the assessing officer after hearing Ld R of the assessee. The second objection is regarding addition of ₹ 11,595/- on account of cost of wire gauge shutter. The objection is that the PA rates for type-IV building are already including the cost of wire gauge shutter. The assessing officer should examine this claim as to whether ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... heral fixtures including rolling shutters whereas the PWD valuation officer and assessing officer have made separate addition for shutters. (v) Objections were raised on the manner in which the Executive Engineer PWD proposed the higher cost of construction. 3.5. On the basis of these facts it was pleaded that PWD valuation also was an estimate and no penalty can be imposed on the assessee on the basis of difference in estimates. Reliance was placed on: - CIT Vs. Sardar Bhagat Singh 142 ITR 836 (Pat); and - CIT Vs. Apsara Talkies 155 ITR 303 (Mad.). 3.6. The only addition made by assessing officer was on account of difference in cost of construction only on the basis of estimate. Trading results were accepted and books of account are not rejected. Therefore, it cannot be said that assessee concealed particulars of income or furnished inaccurate particulars. Merely because some other valuation agency comes to a different theoretical valuation, will not tantamount to either furnishing of inaccurate particulars or concealment of income. Reliance was placed on: - Addl. CIT Vs. Swatantra Confectionary Works 104 ITR 291; - Addl. CIT Vs. Kedar Nath Ram Nath 106 ITR 17 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Hon'ble High Court of Delhi] (2) Victor Electrodes (India) (P) Ltd. vs. ITO reported in 122 ITD 70 (Delhi) (3) J. Sumennal (HUF) vs ACIT reported in 344 ITR 618 (Kar.) However, the point to be stressed would still be that even the above cited 3 case laws rest on their peculiar facts and may only help in deciding this issue very generally. 4.2 Keeping in view the factual position and the case laws it is held that there is a case of concealment of income which merits levy of penalty U/S 271 (1)( c) of the Act since even the best and most liberal yardsticks have resulted in figures over and above those disclosed by the assessee. In view of this the action of Ld. AO is upheld. 4. I have heard the ld. DR and perused material available on record. As the facts emerge, the assessee s books of account are audited; returns are duly filed; and some assessments were reopened for the purpose of verifying the cost of construction. The matter was referred by assessing officer first to the CPWD valuation officer and the difference was added in all these years to assessee s income on spread over basis. ITAT held that CPWD rates will not be applicable to pithoragarh which is a r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be not good and second estimate given by UPPWD on which also assessee raised certain issues, which are not addressed by assessing officer. Be that as it may, to settle the matter, assessee accepted the difference. 4.2. Thus, the assessee s regular books over a period of time have not been found fault and the registered valuer s report which again is an expert s estimate supports the cost shown in books. The same is being rejected by the second estimate i.e. PWD of the department. 4.3. From these facts it can be easily discerned that the assessee did not furnish any inaccurate particulars or concealed its income and filed return of income on the basis of its books of account. Thus, all these details were filed along with the return of income. Her cost of construction is supported by registered valuer s certificate. In these circumstances, Hon ble Supreme Court judgment in the case of Reliance Petro Products 328 ITR 158 squarely applies to the case, which clearly holds that if the relevant particulars are filed along with the return of income, a subsequent addition or disallowance of any claim, cannot be held as to liable for penalty u/s 271(1)(c). 4.4. Recently the Hon ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
