TaxTMI 
TaxTMI 
2005 (8) TMI 35
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.... the appellant, submits that in this case the assessment for the relevant assessment year 1993-94 was completed under section 143 of the Income-tax Act, 1961. There was nothing on record to show that there was any defect in the books of account produced in connection with the said assessment proceedings under section 143. The assessee had constructed a hotel building during 1991-92, 1992-93 and 1993-94, the cost of construction whereof incurred in the relevant assessment years was reflected in the return submitted for the concerned assessment year respectively. After a lapse of four years, section 147 was resorted to by the Assessing Officer on the allegation that income for the assessment year 1993-94 had escaped assessment. Admittedly, this was done after the expiry of four years from the end of the relevant assessment year. Therefore, section 147 could be resorted to only if there was a finding that the assessee had failed to disclose truly and correctly the income. Relying on the finding of facts arrived at by the learned Commissioner of Income tax (Appeals) and the learned Tribunal, Dr. Pal points out that there was no such finding and as such the embargo provided therein c....
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....n the books of account to substantiate the valuation given, it was under no obligation to furnish anything else. Without any other materials on record there was no occasion for the income-tax authority to conclude that the assessee failed to disclose truly and correctly its income. Dr. Pal then relies upon the decision in Indian Oil Corporation v. ITO [1986] 159 ITR 956 (SC), to contend that it was not possible to apprehend that in future there would be another valuation report at the time when the return was submitted in order to entangle the assessee within the sweep of the proviso to section 147. Dr. Pal on the second question, submits that, assuming but not admitting that the valuation report is an admissible evidence under section 45 of the Evidence Act, as suggested by Mr. Shome and that such an evidence could be brought on the record and looked into under section 75 of the Code of Civil Procedure, read with Order 26 rule 9 thereof, even then it would remain only a piece of evidence which without being corroborated or supported by other evidence could not supersede the evidence already on record on the basis of which the proceeding under section 143 was concluded, so as to....
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....s such cannot be overlooked. He then contends that this finding accepting the valuation report is a finding of fact. In the absence of any perversity this court cannot interfere with the same. According to him, section 131(1)(d) empowers the Assessing Officer to make a reference to obtain the valuation report in terms of Order 26, rule 9, Code of Civil Procedure. Therefore, this court should not interfere with the order appealed against. The scope: Section 147: If can be resorted to: After having heard learned counsel for the parties, the moot question that we are called upon to decide is as to whether the proviso to section 147 could be attracted in view of the fact that section 147 was resorted to after the expiry of four years from the end of the relevant assessment year. Section 147 can be resorted to up to the limit of six years even after the expiry of four years only in case the assessee fails to disclose truly and correctly his income. So far as clause (b) is concerned, it would not be attracted in this case since the valuation that has been made far exceeds Rs. 1 lakh which could be realised as tax. On the facts could this second valuation report be treated as ....
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....n Smt. Amiya Bala Paul [2003] 262 ITR 407 the apex court had held that in view of the existence of section 55A, section 131(1)(d) could not be resorted to for obtaining the power of exercising the power available under Order 26, rule 9, Civil Procedure Code for obtaining valuation of a capital asset. Section 55A uses the expression that a reference can be made for the purposes of valuation of a capital asset under this chapter namely, Chapter IV, which includes Part E dealing with capital gains, within which section 55A has been enacted; but that does not confine the application of section 55A only for the purpose of computation of capital gains. Capital asset has been defined in section 2(14) to include capital asset used in connection with business also. Therefore, valuation of a capital asset may be for the purpose of computing capital gains or for the purpose of computing income from business, both of which are dealt with under Chapter IV. Then again the use of the word "purposes" in the plural is significant to indicate that it is not made for one purpose, namely, for the purpose of computing capital gains alone, but for other purposes contemplated under Chapter IV. The Legisl....