TaxTMI 
TaxTMI 
2016 (4) TMI 1041
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.... The order made by the Assessing Officer is neither erroneous nor prejudicial to the interest of the revenue. The order passed under sec. 263 is without jurisdiction should be annulled. 2. That the order under sec. 263 is bad in law as the CIT is not permitted to substitute his opinion in preference to judicial discretion of the Assessing Officer. The order under sec. 263 should be quashed. 3. That there is no error in the assessment as no discrepancy was found either by the Assessing Officer or even by CIT in spite of survey under sec. 133A, no rejection of accounts thus the reference under sec. 142A was illegal ab initio could not be relied on for making any addition, the order of Assessing Officer is perfectly valid in law could no....
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....ld have made enquiry about the justification of investment made by the assessee for the construction of building and referred the matter to the DVO after verifying the books of accounts in accordance with law. Therefore, in exercise of his powers under sec. 263 of the Act, he set aside the order for the Assessment Year 2009-10 and directing the Assessing Officer to complete the assessment afresh in the light of the observations made by him. 5. Authorized Representative of the assessee further submitted that the Assessing Officer received DVO's report on 26/12/2011 and passed the assessment order under sec. 143(3) on 26/12/2011 itself. Thus, the DVO's report was available with the Assessing Officer while passing the assessment order. It w....
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.... pointed out that the deductions given in the estimate for work not done and the plinth area, rates adopted are on the higher side instead of adopting the local PWD rates which should be applicable in such type of construction for running the college. The assessee trust furnished a valuation report as per which the cost of construction of the building is only Rs. 2,18,93,375/-. It was further submitted that the addition in fixed assets is application of funds for charitable purposes exempt under sec. 11. The cost of construction as shown by the assessee is supported with regular books of accounts maintained. The source of investment has also been explained. Having regard to the facts, no adverse inference is drawn in this regard." Thus h....
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....r of Income Tax under sec. 263 of the Act. 8. We have heard rival submissions and carefully perused the material available on record and the orders of the lower authorities. We find that in the instant case, notice dated 13/01/2014 under sec. 263 was issued by the Commissioner of Income Tax on the ground that the Assessing Officer failed to consider the report of the DVO, according to which the investment in construction made by the assessee during the year under review was Rs. 3,53,79,748/-, whereas as per the return of the assessee, the investment was Rs. 1,69,16,213/-. However, while passing the order under sec. 263 on 10/02/2014, the Commissioner of Income Tax has also set aside the order of the Assessing Officer inter alia on the gr....
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....s. D.N. Dosani (2006) 280 ITR 275 (Guj.). 9. Coming to the issue of investment in construction, we find that the construction was not completed during the year under consideration. The construction was continued in the next Financial Year relevant to the Assessment Year 2010-11 also. The Assessing Officer in the assessment made for the Assessment Year 2010-11 under sec. 143(3) on 14/03/2013, discussed his finding in respect of DVO's report as under:- "During the course of assessment proceedings, the assessee trust was specifically required to explain the difference in cost of construction as shown and that determined by the DVO. It was explained that the cost of construction as shown by the assessee trust is duly supported with regula....
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.... by the assessee for the year under consideration could be pointed out either by the Assessing Officer or by the Commissioner of Income Tax. In the above circumstances, the decision of the Hon'ble Supreme Court in the case of Sargam Cinema (supra), as pointed out by the Authorized Representative of the assessee, is found to be applicable. The Departmental Representative could not cite any reason as to why the said decision of the Hon'ble Apex Court is not applicable in the instant case. Therefore, respectfully following the said decision, in our considered view, the reference made to the DVO itself was not valid in the instant case. Still further, we find force in the contention of the Authorized Representative of the assessee that ....