2018 (1) TMI 1285 - AT - Income Tax

Apportioning the cost of construction equally in all assessment years and treated the same as unexplained investment - Held that - A.R was unable to place any evidence to show the relevant cost of construction incurred by the assessee in respective assessment years so as to determine the unexplained investment towards cost of construction in proportion to the cost of construction incurred by the assessee in relevant to assessment years. Being so, we are not in a position to give any direction to the AO on the basis of argument of assessee s counsel. In view of lack of evidence on the cost of construction incurred by the assessee in each assessment year, this ground raised in all the assessment years stands dismissed. Interest u/s.234B - whether interest charged from the first day of assessment year till the completion of original assessment i.e 31.12.2009 and not the till the date of order passed u/s.143(3) r.w.s.147 of the Act r.w.s.263 of the Act i.e.20.03.2013? - Held that - In our opinion, the assessee s case falls under purview of Sec.234B(1) r.w.s.234B(4) only and not u/s.234B(3) and it would be even encountered that no interest is chargeable for that portion of the income forming part of the total income as determined by the ld.CIT in his order u/s.263, which was not earlier part of the income determined by the ld. Assessing Officer. The interest charged in terms of Sec.234B become payable on the income already disclosed in the return filed, together with the income determined by the AO in consequent to the order passed u/s.263 of the Act. The concerned interest shall be on the consolidated amount of income i.e. both determined in re-assessment order and income determined in consequent to revisional order passed u/s.263, when the reassessment order was subject to revision u/s.263 of the Act. Accordingly, we hold that the interest u/s.234B of the Act to be charged in these cases from the first day of each assessment year to relevant to assessment year till the date of the completion of assessment made i.e. 20.03.2013 and not to the date, the reassessment order was passed i.e.31.12.2009. - Decided against assessee.

Summary

Issues Involved:
1. Legality and sustainability of the assessment order.
2. Validity of re-opening of the assessment.
3. Apportionment of the cost of construction.
4. Levy of interest under section 234B of the Income Tax Act.
5. Valuation of property and unexplained investment.

Issue-wise Detailed Analysis:

1. Legality and Sustainability of the Assessment Order:
The assessee contended that the order of the Commissioner of Income-tax (Appeals) confirming the order of the Assessing Officer was illegal, arbitrary, and against the weight of evidence. However, this ground was deemed too general and was rejected by the Tribunal, stating it did not require adjudication.

2. Validity of Re-opening of the Assessment:
The appellant argued that the assessment made under section 143(3) read with section 147 of the Act was set aside by the Commissioner of Income-tax under section 263, and the Assessing Officer completed the set-aside assessment as per the directions. The Commissioner of Income-tax (Appeals) rejected various grounds of appeal on the basis that the assessment in appeal was not an order under section 147. This ground was not pressed by the appellant during the hearing and was dismissed.

3. Apportionment of the Cost of Construction:
The appellant challenged the Assessing Officer's decision to apportion the cost of construction equally across four assessment years, arguing that the major construction took place in the financial year 2004-05, relevant to the assessment year 2005-06, when the housing loan was obtained. The Tribunal noted that the appellant failed to provide evidence to show the relevant cost of construction incurred in each assessment year. Due to the lack of evidence, the Tribunal dismissed this ground.

4. Levy of Interest under Section 234B of the Income Tax Act:
The appellant contested the levy of interest under section 234B from the 1st day of the assessment year till the date of completion of the assessment on 20/03/2013, arguing that it should be levied only till the date of the original assessment completed on 31/12/2009. The Tribunal analyzed the provisions of section 234B, particularly sub-sections (1) and (4), which deal with the payment of interest on default in the payment of advance tax. The Tribunal concluded that the interest under section 234B should be charged from the first day of the assessment year till the date of the completion of the assessment made on 20/03/2013, as the reassessment order was subject to revision under section 263. The Tribunal rejected the appellant's reliance on the Ahmedabad Tribunal's decision in ACIT Vs. Sallaluddin M. Kadri, stating it was delivered on different facts.

5. Valuation of Property and Unexplained Investment:
The appellant argued that the value determined by the District Valuation Officer was on the high side and not in accordance with the prevailing market rate. This ground was not pressed by the appellant during the hearing and was dismissed. The Tribunal noted that the Assessing Officer had added a sum as unexplained investment under section 69 on a proportionate basis for four assessment years, which was confirmed by the Commissioner of Income-tax (Appeals).

Conclusion:
The Tribunal dismissed the appeals of the assessee for the assessment years 2003-04, 2004-05, 2005-06, and 2006-07. The order pronounced on 11th October 2017, at Chennai, upheld the actions of the Assessing Officer and the Commissioner of Income-tax (Appeals) regarding the apportionment of the cost of construction and the levy of interest under section 234B. The Tribunal found no merit in the appellant's arguments due to lack of evidence and the legal provisions governing the issues at hand.