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2017 (11) TMI 1705

ssing the order, Director of the company was not available and time was sought time. However, they have returned only on 8.1.2007 and the matter was concluded without giving proper opportunity to the assessee. - In that view of the matter, as observed explanation tendered under Rule 46A was found to be satisfactory. Therefore, the report of DVO was not considered valid and the same was not found acceptable in view of the explanation tendered by the assessee and others. Tribunal has given cogent reasons while passing the impugned judgment. We are in complete agreement with the view taken by the tribunal. - Decided in favour of the assessee - D.B. Income Tax Appeal No. 485/2009 - 7-11-2017 - Mr. K.S. Jhaveri And Mr. Vijay Kumar Vyas JJ. For the Appellant(s) : Mr. Daksh Pareek for Mr. Sameer Jain For the Respondent(s) : Mr. N.L. Agarwal JUDGMENT 1. By way of this appeal, the appellant has assailed the judgment and order of the tribunal whereby tribunal has dismissed the appeal preferred by the department and modified the order of CIT(A). 2. This court while admitting the appeal on 18.11.2009 framed following substantial questions of law:- (1) Whether the learned ITAT being a last .....

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rmer, air cooling system with denting and grills, fire fighting equipment, godrej vaults (safe), window air conditions, AC, water treatment plant, EPABX, CCTV, computers, Debenture and strong room door, security systems, furniture and fixtures, H.R. system, Tube wells with pumps, water pump control machines. 2. The above land values does not includes the expenditure on egistration fees, stamp duty, transfer charges and other expenditure incurred towards it. 3. As per the details submitted, expenditure to the tune of ₹ 9,32,399/- has been shown towards electrical fittings which has not been considered towards the declared cost by the assessee." As per the report of the District Valuation Officer, there is a difference of ₹ 98,87,076/- in the cost of construction of building in the F.Y. 2003-04. Likewise, there is a difference of ₹ 17,502/- in the valuation of land in the F.Y. 2003-04. In compliance to the above, the AR of the assessee vide his letter dated 25.12.2006 has stated that-"Both the directors of the company viz. Shri Siddik Hussain and Smt. Rabia Bi Shaikh had left for Haj Pilgrimage on 15th December, 2006 and they are expected to be back on 8th .....

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he could not have granted that much time to the assessee. Therefore, on these facts, it cannot be said that the AO had not given adequate opportunity to the assessee. In this regard, it may be relevant to mention that during the appellate proceedings, the ld. AR of the assessee filed application for admission of additional evidence under Rule 46A, on the ground that the necessary explanation and supporting evidence to show cause letter, dt. 19.12.2006 of the AO could not be given at the time of assessment proceedings because the appellant was prevented by sufficient cause from producing the same before the AO. After due consideration and obtaining the comments of the AO, the request of ld. AR for admission of the said additional evidences, under Rule 46A, was found acceptable. Accordingly, the ld. AR of the assessee was given opportunity to submit explanation and supporting evidences with reference to the difference in the value of land and building, as per the valuation report of the DVO and as shown by the assessee. Consequently, this ground of appeal is to be treated as partly allowed. 4.3 I have carefully considered the facts of the case and submissions of the ld. AR. I have a .....

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ets of ₹ 1,13,58,159/-, which included land and building amounting to ₹ 26,05,248/- and ₹ 85,91,261/- respectively. The AO has also observed that it was the first year of the company and it had not commenced any business in the year under consideration. Further, in para 4 of the assessment order, it is observed that the AO referred the valuation of the said property under section 142A to the DVO on 27.2.2006. The report of the DVO, dated 15.12.2006, was received by the AO and the AO found the following differences in the value of the land and building, as valued by the DVO and as declared by the assessee in the books of accounts. COST OF CONSTRUCTION OF THE BUILDING F.Y. Declared by the assessee Estimated by DVO 2003-04 72,94,742/- 1,71,81,818/- 2004-05 12,96,519/- 30,53,782/- Total 85,91,261/- 2,02,35,6000/- Land value 2003-04 26,05,248/- 26,22,750/- In view of the above, as there was a difference of ₹ 98,87,076/- in the cost of construction of the building and of ₹ 17,502/- in the value of the land in the financial year 2003-04, the AO issued a show cause letter dated 19.12.2006 to the assessee to explain as to why the said difference in the cost of .....

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as supported the order of the tribunal as well as CIT(A) and contended that in view of the observations made by the CIT(A) and tribunal in para no.4.2, the appeal deserves to be dismissed. 10. We have heard counsel for the parties. 11. It has come on record that before passing the order, Director of the company was not available and time was sought time. However, they have returned only on 8.1.2007 and the matter was concluded without giving proper opportunity to the assessee. 12. In that view of the matter, as observed hereinabove in para no.3.5, explanation tendered under Rule 46A was found to be satisfactory. Therefore, the report of DVO was not considered valid and the same was not found acceptable in view of the explanation tendered by the assessee and others. 13. While considering the observations of the tribunal in para no.4.3, we are of the considered opinion that the tribunal has given cogent reasons while passing the impugned judgment. 14. We are in complete agreement with the view taken by the tribunal. No case is made out. 15. In that view of the matter, both the issues are answered in favour of the assessee and against the department. 16. The appeal stands dismissed. - .....

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