2015 (4) TMI 832 - HC - Income Tax

Penalty imposed under Section 271(1)(c) - reopening of assessment - Held that - In the present case, the Assessing Officer made additions with respect to the difference in the cost of construction based upon and/or relying upon the DVO s report in the case of one M/s.Manjusha Estate Pvt.Ltd. from whom, the assessee subsequently got the project. It is true that in the present case, copy of the DVO s report was furnished to the assessee during the reassessment proceedings. However, it is required to be noted that except the DVO s report, there was no further tangible material before the Assessing Officer. Therefore, solely on the basis of the DVO s report which, as per the catena of decisions of the Hon ble Supreme Court as well as this Court, can be said to be the opinion of the DVO only, no addition can be made with respect to difference between the cost of construction determined by the DVO and shown by the assessee. Under the circumstances and in the facts and circumstances of the case, it cannot be said that the learned Tribunal has committed any error in deleting the additions made by the Assessing Officer on account of difference of the cost of construction which was solely based upon the DVO s report. No interference of this Court is called for and the present appeals deserve to be dismissed as no question of law, much less, any substantial question of law arises in the present appeals. Once the addition made by Assessing Officer is deleted, the necessary consequences would be to delete the penalty imposed under Section 271(1) (c) of the Act. - Decided in favour of assessee.

Summary

Issues involved:
Appeal against deletion of penalty under Section 271(1)(c) of the Income Tax Act based on difference in cost of construction for assessment years 2002-2003, 2003-2004, and 2004-2005.

Analysis:

1. Assessment Proceedings and Reassessment: The Assessing Officer initiated reassessment proceedings under Section 147 of the Income Tax Act based on the valuation report obtained from the District Valuation Officer. The reassessment orders were passed for the assessment years in question, leading to additions in the cost of construction based on the DVO's report.

2. Appeals and Tribunal Decision: The assessee appealed to the CIT(A) against the additions made by the Assessing Officer, which were confirmed. However, the penalty imposed under Section 271(1)(c) was deleted. Subsequently, the assessee and the Revenue appealed to the Tribunal. The Tribunal allowed the assessee's appeals, deleting the additions, and dismissed the Revenue's appeal against the deletion of the penalty.

3. Substantial Questions of Law: The Revenue raised substantial questions of law in separate tax appeals related to the cancellation of notices issued under Section 148, deletion of additions for unexplained investment, and deletion of penalties under Section 271(1)(c) by the Tribunal.

4. Revenue's Arguments: The Revenue contended that the Tribunal erred in deleting the additions based on the DVO's report, citing precedents where the Assessing Officer's discretion was emphasized in considering such reports. The Revenue argued that the reassessment proceedings were valid, and the Tribunal should not have deleted the additions.

5. Tribunal Decision Justification: The Tribunal justified its decision by highlighting that apart from the DVO's report, there was no substantial material before the Assessing Officer to support the additions. Therefore, solely relying on the DVO's report was not sufficient to make additions based on the difference in the cost of construction.

6. Court's Decision: The Court upheld the Tribunal's decision, stating that the Tribunal did not err in deleting the additions made by the Assessing Officer solely based on the DVO's report. Consequently, the appeals against the Tribunal's decision were dismissed, leading to the dismissal of the penalty imposed under Section 271(1)(c) as well.

7. Conclusion: The Court found no grounds for interference in the Tribunal's decision, as no substantial questions of law were raised. Therefore, all appeals were dismissed, and no costs were awarded.

This detailed analysis covers the issues, arguments presented, Tribunal's decision justification, and the Court's final decision regarding the deletion of penalties under Section 271(1)(c) based on the difference in the cost of construction for the specified assessment years.