2017 (11) TMI 1705 - HC - Income Tax

Addition towards construction of factory as unexplained investment - addition on the basis of Valuation Officer s report given u/s 142A invalid - Held that - 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. 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

Summary

Issues Involved:
1. Deletion of addition towards construction of factory as unexplained investment based on the Valuation Officer’s report.
2. Justification of the Assessing Officer’s directions to examine the issue in the hands of the directors.

Issue-wise Detailed Analysis:

1. Deletion of Addition Towards Construction of Factory as Unexplained Investment:
The appellant challenged the tribunal's decision, which dismissed the department's appeal and modified the CIT(A)'s order. The substantial question was whether the ITAT erred in deleting the addition of ?99,04,578/- towards the construction of the factory as unexplained investment based on the Valuation Officer’s report under Section 142A, which was not rebutted by any evidence during the assessment.

The facts reveal that the assessee, a private limited company incorporated on 7.8.2003, had no business activity during the year under consideration and declared a total income of NIL. The AO referred the case to the Valuation Officer for property valuation, resulting in a report indicating significant differences between the declared and estimated costs of construction and land value. The AO added the differences as unexplained investment to the assessee’s income.

The CIT(A) found that the AO had given the assessee adequate opportunity to explain the discrepancies, but the directors were unavailable due to pilgrimage. The CIT(A) admitted additional evidence under Rule 46A and concluded that since the company had not commenced business, it had no income source for unexplained investments. The CIT(A) held that any addition should be made in the hands of the directors, not the company, citing the Supreme Court decision in CIT vs. Smt. P.K. Noor Jahan.

The tribunal agreed with the CIT(A), noting that the assessee maintained complete records of construction expenses with no defects pointed out by authorities. The tribunal found no reason for the AO to refer the matter to the DVO, especially since the company had no income during the year. Thus, the tribunal upheld the deletion of the addition but disagreed with the CIT(A)'s direction to examine the issue in the directors' hands.

2. Justification of the Assessing Officer’s Directions:
The second issue was whether the ITAT was justified in observing that the AO was not justified in directing the examination of the issue in the hands of the directors. The tribunal concluded that the AO was not justified in making any addition based on the DVO's report, given the circumstances and facts of the case. The tribunal dismissed the revenue's ground and allowed the assessee's grounds, finding no justification for the AO's directions.

Conclusion:
The High Court agreed with the tribunal's reasoning, noting that the directors were unavailable before the order was passed, and proper opportunity was not given to the assessee. The explanation under Rule 46A was satisfactory, and the DVO's report was not valid. The court found the tribunal's observations cogent and upheld the decision, answering both issues in favor of the assessee and against the department. The appeal was dismissed.