TaxTMI 
TaxTMI 
2009 (8) TMI 256
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....re of cost of construction of Yusuf Sarai Project at Rs. 19,99,559 as against rs. 39,69,440 declared by the assessee? (b) Whether the Income-tax Appellate Tribunal was correct in law in holding that the reference made by the Assessing Officer to the DVO for determining the cost of construction was not justified even after insertion of section 142A by the Finance (No. 2) Act, 2004, with retrospective effect from November 15, 1972?" 3. Learned counsel for the parties are ready to argue. Accordingly, we heard the arguments. 4. The assessee is a construction company. It had taken up three projects in the earlier years to the assessment year in question, i.e., 1998-99. These these projects are as Yusuf Sarai Project, Jaina Tower II and ....
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....bunal on this aspect: "The next point to be determined is whether the Assessing Officer is justified in referring to the DVO for computing the cost of construction claimed as revenue expenditure. Prior to the insertion of section 142A by the Finance (No. 2) Act, 2004, with retrospective effect from November 15, 1972, the reference to the DVO in assess ment proceedings other than as permissible under section 55A was held to be invalid as held by the hon'ble Supreme Court in the case of Amiya Bala Paul [2003] 262 ITR 407. Section 142A was inserted with retrospective effect from November 15, 1972, however, even under section 142A, a reference can be made for assessment or reassessment where an estimate of value of any investment referred to....
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....arrived at by the DVO. In view of the above discussion, the addition of Rs. 19,69,881 is directed to be deleted." 7. We are in agreement with the aforesaid interpretation given by the Tribunal to section 142A of the Income-tax Act Our discussion on this aspect proceeds as under: 8. Section 142A is to the following effect: "142A. For the purposes of making an assessment or reassessment under this Act, where an estimate of the value of any investment referred to f section 69 or section 69B or the value of any bullion, jewellery or other valuable article referred to in section 69A or section 69B is required to be made, the Assessing Officer may require the Valuation Officer to make an estimate of such value and report the same to him.....
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....12. Her submission was that the "expenditure" incurred should be considered as coming within the .expression "investment". 13. We cannot agree with this submission of learned counsel for the Revenue. If investments could include within its fold the expenditure as well which is incurred by a businessman during the course of his business, there was no necessity of having a separate provision under section 69C of the Act which deals with unexplained "expenditure" and reads as under: "69C. Where in any financial year an assessee has incurred any expenditure and he offers no explanation about the source of such expenditure or part thereof, or the explanation, if any, offered by him is not, in the opinion of the Assessing Officer, satisfact....
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.... counsel for the assessee has drawn our attention to the Central Board of Direct Taxes circular issued by it explaining the Finance (No. 2) Bill, 2004, which specifically omits the word "expenditure" well as section 69C. It is on this basis that section 142A was inserted in the form as it appears on the statute book now. If the intention was to itude unexplained expenditure as contemplated in section 69C of the Act well this provision should have been specifically mentioned in section 142A of the Act. 16. From the reading of sub-section (1) of section 141A, it is dear that the Legislature referred to the provisions of section 69, 69A and 698 but specifically excluded section 69C. The principle of causus omissus becomes applicable in a si....