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M/S MAHASHAY CHUNNILAL Vs. DY. COMMISSIONER OF INCOME TAX & ORS
March, 08th 2014
     *IN THE HIGH COURT OF DELHI AT NEW DELHI

%           Order reserved on :              04th October, 2013
            Order pronounced on:             05th February, 2014

+                 WPC No. 7514 of 2010

M/S MAHASHAY CHUNNILAL                                .... Petitioner

                         Through     Mr. Jainendra Maldahiyar
                                     and  Mr.   Amit Bhanot,
                                     Advocates

                              Versus

DY. COMMISSIONER OF INCOME TAX & ORS
                                  ...Respondents

                         Through     Mr. Abhishek Maratha, Sr
                                     Standing Counsel with Mr.
                                     Anshul Sharma Advocates
                                     for R ­ 1,

                                     Mr. Ruchir Mishra and Mr.
                                     Mukesh      K.       Tiwari,
                                     Advocates for R ­ 2.

CORAM:


HON'BLE MR. JUS TICE SANJIV KHANNA

HON'BLE MR. JUSTICE SANJEEV SACHDEVA


=======================================================================
WP(C) 7514/2010                                           Page 1 of 25
SANJEEV SACHDEVA, J.


1.    The    petitioner    has    filed   the    present     petition

      challenging the order dated 23.08.2010 rejecting the

      objections filed by the petitioner against two notices,

      both dated 30.03.2010, under Section 148 of the

      Income Tax Act,          1961 seeking to re-assess the

      income of the petitioner for the assessment years

      2005-06 and 2006-07.


2.    The petitioner is a charitable trust and runs hospitals

      and schools.


3.    The assessment for the assessment years 2005-06

      and 2006-07 was originally completed under Section

      153A/143(3) of the Income Tax Act, 1961 (hereinafter

      referred to, `the Act').


4.    For the assessment year 2005-06, the assessment

      was     framed      on     31.12.2008     at    a    loss    of


=======================================================================
WP(C) 7514/2010                                           Page 2 of 25
      Rs.1,77,03,110/- and for the assessment year 2006-07,

      the assessment was framed on 31.12.2008 at a loss of

      Rs.1,53,90,490/-.


5.    On 30.03.2010, i.e., before expiry of four years of the

      assessment year 2005-06 and 2006-07, notices were

      issued to the petitioner under Section 148 of the Act

      seeking to reassess the income of the Petitioner for

      the said assessment years.            In reply to the said

      notices, the petitioner stated that the original return of

      income may be treated as returns filed in response to

      the notice under Section 148 of the Act. The Petitioner

      further requested for the supply of reasons to believe

      recorded for issuance of the said notices.


6.    The following reasons were supplied for the respective

      assessment years:


      Assessment Year 2005 ­ 06



=======================================================================
WP(C) 7514/2010                                           Page 3 of 25
            "30.03.10.   REASONS       FOR    ISSUANCE      OF
            NOTICE UNDER SECTION 148 OF THE INCOME
            TAX ACT 1961 IN THE CASE OF M/s MAHASHAY
            CHUNNILAL CHARITABLE TRUST FOR THE A.Y.
            2005-06

            The assessment under section 153(A)/143(3) of
            the I.T. Act 1961 was completed in this case on
            31.12.2008 at assessed loss of Rs.1,77,03,110/-.
            The assessee had invested in Property "MDH
            School    Building",   Byadgi,   District   Haveri,
            Karnataka.     The property was referred for
            valuation u/s 142(A) to the Valuation Officer,
            Bangalore.

            The Valuation Report of the said property has
            been received vide letter dt. 19.06.09 received
            in this office on 29.06.09. The valuation officer
            has worked out the value of the property at
            Rs.75,86,800/- against the declared value of
            Rs.24,41,776/- lakhs as shown in the balance
            sheet as on 31.03.06.      since the breakup of
            expenditure year wise was not submitted by


=======================================================================
WP(C) 7514/2010                                           Page 4 of 25
            the assessee, the Valuation Officer estimated
            the overall expenditure spent by the assessee
            in the proportionate amount in the ratio of
            47.8% i.e. Rs.36,26,490/- in the F.Y.2004-05
            relevant   to   A.Y.2005-06    and   52.2.%,   i.e.,
            Rs.39,60,310/- in the F.Y.2005-06 relevant to
            the A.Y.2006-07.

            The assessee was asked the following details as
            per questionnaire:

      1.    At Sl. No.3 of the questionnaire --Copy of
            Return of Income for the A.Y.2005-06 with all
            Annexures as was filed u/s 139(1) of the I.T.Act.

      2.    At Sl.No.17 of the questionnaire -- Please file
            details of investments made and also confirm
            that the investments have been made in the
            specified assets mentioned in section 11(5) of
            the I.T.Act.




            On perusal of record it is seen that assessee
            has not shown any amount of investments
            made during the year in school at Byadgi. The


=======================================================================
WP(C) 7514/2010                                           Page 5 of 25
            valuation of school at Byadgi by Valuation
            Officer in his report the property has been
            shown at Rs.36,26,490/- as against NIL shown
            by assessee.      Therefore the investment of
            Rs.36,26,490/- has escaped assessment.

            In view of the above, I have reason to believe
            that by reason of failure on the part of
            assessee    to   fully   disclose   investment   in
            property No. "MDH School Building", Byadgi,
            Distt. Haveri, Karnataka, income to the tune of
            Rs.36,26,490/- has escaped assessment for the
            assessment year 2005-06.

      Assessment Year 2006 ­ 07

            30.03.10.    REASONS       FOR      ISSUANCE     OF
            NOTICE UNDER SECTION 148 OF THE INCOME
            TAX ACT 1961 IN THE CASE OF M/s MAHASHAY
            CHUNNILAL CHARITABLE TRUST FOR THE A.Y.
            2006-07

            The assessment under section 153(A)/143(3) of
            the I.T.Act 1961 was completed in this case on


=======================================================================
WP(C) 7514/2010                                           Page 6 of 25
            31.12.2008 at assessed loss of Rs.1,77,03,110/-.
            The assessee had invested in Property "MDH
            School     Building",    Byadgi,    District   Haveri,
            Karnataka.       The property was referred for
            valuation u/s 142(A) to the Valuation Officer,
            Hubli.

            The Valuation Report of the said property has
            been received vide letter dt. 19.06.09 received
            in this office on 29.06.09. The valuation officer
            has worked out the value of the property at
            Rs.75,86,800/- against the declared value of
            Rs.24,41,776/- lakhs as shown in the balance
            sheet as on 31.03.06.           Since the breakup of
            expenditure year wise was not submitted by
            the assessee, the Valuation Officer estimated
            the overall expenditure spent by the assessee
            in the proportionate amount in the ratio of
            47.8% i.e. Rs.36,26,490/- in the F.Y.2004-05
            relevant    to   A.Y.2005-06       and   52.2.%,   i.e.,
            Rs.39,60,310/- in the F.Y.2005-06 relevant to
            the A.Y.2006-07.         On perusal of record the
            assessee      has       shown      an    amount      of

=======================================================================
WP(C) 7514/2010                                           Page 7 of 25
            Rs.24,41,776/- in the assets side of balance
            sheet under the head `School building' of
            Byadgi unit.      Hence, as per books of the
            assessee    and    the   information    given   by
            Valuation Officer in his report the property has
            been    undervalued      by   the   assessee    by
            Rs.51,45,024/- (75,86,800/- Minus 24,41,776/-)
            in its return of income.         The income of
            Rs.36,26,490/- has been held, on the basis of
            details filed by the assessee, to have escaped in
            the A.Y.05-06.    Thus, the balance amount of
            Rs.15,18,534/- (51,45,024/- minus 36,26,490/-)
            has escaped assessment in this year.

            Therefore, in view of the above, I have reason
            to believe that by reason of failure on the part
            of assessee to fully disclose investment in
            property No."MDH School Building", Byadgi,
            Distt. Haveri, Karnataka, income to the tune of
            Rs.15,18,534/- has escaped assessment for the
            assessment year 2006-07. "




=======================================================================
WP(C) 7514/2010                                           Page 8 of 25
7.    The petitioner filed objections to the notices under

      Section    148    of   the   Act    vide   objections    dated

      10.05.2010.      The objections filed by the petitioner

      were rejected vide impugned order dated 23.8.2010.

      The initiation of the proceedings by issuances of

      notices under Section 148 of the Act and the order

      dated 23.08.2010 is challenged by the Petitioner.


8.    The petitioner had objected to the proposed re-

      assessment       primarily   on    the   ground   that   if   an

      assessment was framed under Section 153A pursuant

      to search then the assessment so framed was not an

      assessment under Section 143(3) and as such was

      beyond the purview of re-assessment under Section

      147/148.     The contention of the petitioner is that

      Section 147 refers to an assessment framed under

      Section 143(3) and not an assessment framed under

      Section 153A of the Act. The second objection raised

      by the petitioner was that the basis or reason for

=======================================================================
WP(C) 7514/2010                                           Page 9 of 25
      issuance of notices, primarily was the report of the

      Valuation Officer of the Income Tax Department and

      the report of the Valuation Officer per se cannot be a

      basis of issuance of notice under Section 148 of the

      Act. Another ground raised by the petitioner was that

      the entire material was before the assessing officer at

      the time of original assessment and the assessing

      officer had applied his mind to the same and hence

      issuance of notice amounted to change of opinion

      which was not permissible under law.           The petitioner

      had further raised the objection the petitioner Trust,

      was registered under Section 12A of the Act and as

      such    any     income     that    was    applied     towards

      construction of the school building was an application

      of income towards charitable object and would be

      exempt from levy of income tax under Section 11 of

      the Act so there was no question of any escapement

      of income and even if the investment in the building


=======================================================================
WP(C) 7514/2010                                           Page 10 of 25
      were to be taken at a higher figure, it would amount to

      an application of income and would in any case be

      exempt from levy of tax.


9.    Having heard learned counsels for the petitioner and

      the respondent we are of the view that the Writ

      Petition has merit and the reassessment proceedings

      initiated by the respondent are nor sustainable, for the

      reasons set out below.


10.   The original assessment orders under Section 153A

      for both the assessment years 2005 ­ 06 and 2006 ­

      07 are identical in their wording except for the amount

      of loss assessed.       For the purposes of record, we

      would refer to one of the two assessment orders. The

      assessment order framed under Section 153A for the

      assessment year 2005 ­ 06 reads as under:


                   "ASSESSMENT ORDER



=======================================================================
WP(C) 7514/2010                                           Page 11 of 25
      A search & seizure action u/s 132 of the Income-tax
      Act was conducted on the premises of the assessee
      on 22.11.2006.      Accordingly, notice u/s 153A was
      issued and duly served upon the assessee requiring
      him to file the return for the AY 2005-06.

      The assessee filed return u/s 153A declaring loss of
      Rs.1,77,03,110/- on 17.03.2008. Notice u/s 143(2) &
      142(1)     dated   24/09/08   were   served   upon   the
      assessee to file the requisite details. In response to
      statutory notices Mr. Pradeep Dhingra CA and
      Authorized representative of the assessee attended
      the proceedings and filed details and documents
      called for from time to time.

      The assessee is a trust and the main objects are to
      establish hospital, clinic, laboratories for providing
      medical relief to needy and poor persons and also to
      establish educational institutions and other related
      objects.    There is a hospital by the name of M/s.
      Mata Channan Devi Hospital and four schools Mata
      Dharam Pal Vidya Mandir, Shishu Vibhag, Mata Vidya
      Mandir (Bal Vibhag), MDH International School


=======================================================================
WP(C) 7514/2010                                           Page 12 of 25
      (LKG/UKG),       MDH    International      School    (I/VIII).
      Requisite documents were called for and produced
      for verification. After discussion, assessed at a loss
      of Rs.1,77,03,110/-. This order issues with the prior
      approval of Addl. Commissioner of Income-tax,
      Central Range-I, New Delhi. "

11.   The     Deputy     Commissioner      of    Income     Tax        while

      rejecting    the    objections     has     recorded     that       the

      documents        relating   to   undisclosed       income    being

      invested in construction of school at Byadgi were

      found during the search and the assessing officer

      came to the conclusion that the value of the school

      declared by the assessee was less than the actual

      value     and,     therefore,     during     the     assessment

      proceedings, the assessing officer referred the matter

      of valuation of the school to the District Valuation

      Officer (DVO).




=======================================================================
WP(C) 7514/2010                                           Page 13 of 25
12.   Perusal of the assessment order above shows that the

      assessing officer while framing the said assessment at

      a loss Rs.1,77,03,110/- had issued notice to the

      assessee requiring the assessee to file the requisite

      details and documents from time              to time.      The

      assessing officer after perusal and verification of the

      documents had passed the assessment order.


13.   The    Assessing      Officer   at   the    time   of   original

      assessment was fully conscious and aware of the

      construction undertaken, the extent of construction

      and the expenditure declared/claimed.              In case of

      doubt, he should have obtained valuation report before

      the assessment order was passed. He did not obtain

      the valuation report and completed the assessment,

      without making any addition on the said ground. The

      valuation    report   was    received      subsequently    and

      became the sole ground for reopening.






=======================================================================
WP(C) 7514/2010                                           Page 14 of 25
14.   A Division Bench of DELHI HIGH C OURT               IN   SHRI BAWA

      ABHAI SINGH     VS .   DY. C OMMISSIONER        OF   INCOME TAX

      (2002) 253 ITR 83 (DEL) had observed that valuation

      report received after assessment can constitute a valid

      basis for initiation of reassessment proceedings after

      1989 amendment.              It was held that information,

      however, must be more than mere rumour, gossip or a

      hunch and there should be some material which may

      be regarded as justification for action under Section

      147.    At this stage, meticulous examination is not

      required as in-depth enquiry has to be made, post

      issue of notice. The Assessing Officer must examine

      the    information     and     realise   its    implications    to

      determine whether the said facts or material can

      constitute    basis     for    initiation      of    proceedings.

      Subsequent decision of the Supreme Court in Dhariya

      Construction (supra) observes and holds that the

      reasons to believe recorded by the Assessing Officer


=======================================================================
WP(C) 7514/2010                                           Page 15 of 25
      under Section 147 must disclose due application of

      mind by the Assessing Officer after he receives the

      valuation report and the valuation report should not

      become     an   automated      exercise    or   a   blind   and

      undiscerning consequence. Application of mind by the

      Assessing Officer, who records reasons, should be

      demonstrable and satisfied. The valuation report is a

      starting point for application of mind and one can

      advert to the same, but the exercise and examination

      of the relevant aspects by the Assessing Officer

      should be palpable and perceivable.


15.   In the present case, the valuation report is per se

      tentative and vague.       It stands observed that State

      PWD plinth area rate after the year 1985 had not been

      published. No cost index was worked out or approved

      by the competent authority but cost indexes had been

      approved by the competent authority, Central Board of

      Direct Taxes (CBDT) every year for important places

=======================================================================
WP(C) 7514/2010                                           Page 16 of 25
      in the State of Karnataka. It is also stated that CBDT

      approved plinth area and cost index method were

      more authentic than PWD rates. At the same time, it

      was observed that since the standard weightage for

      labours and materials were given, the cost index at the

      specific place of construction could be worked out, if

      assessee produces bills and vouchers.           In paragraph

      8.0 it was mentioned that the assessee has not

      submitted any details of expenditure vouchers for

      purchased material, labour payment, transportation

      charges.     It was stated that the plinth area rate of

      01.01.1992 as base 100 was approved by the CBDT

      vide circular No. 1671 and as per instructions dated

      13.12.1998 for working out basic cost of building. This

      cost has to be enhanced on the basis of weighted

      average cost index worked out of the locality based on

      then prevailing rate of men and materials and also

      bills/ vouchers produced by the assessee. On this


=======================================================================
WP(C) 7514/2010                                           Page 17 of 25
      basis, weighted average cost index was taken as 210

      and by this method cost of construction of building on

      local    market   rate    was    arrived.   The    period    of

      construction as per valuation report was between

      May,2004 to March,2006 and as per the break-up

      furnished, 47.8% of the construction cost was incurred

      in the financial year 2004-2006 and 52.2% of the

      expenditure was incurred in the financial year 2005 -06.


16.   The valuation report of this nature requires some

      statement or an averment by the Assessing Officer as

      to what was the basis and why he should proceed on

      the valuation report, its contents and why he should

      rely on the same while recording reasons to believe.

      This in the present case is lacking and absent.


17.   The     contention   of   the   Revenue     that   the   report

      submitted by the District Valuation Officer was material

      on the basis of which the reopening proceedings could


=======================================================================
WP(C) 7514/2010                                           Page 18 of 25
      be initiated in the facts of the present case is not

      sustainable.


18.   In the case of C OMMISSIONER            OF INCOME      TAX V. PUNEET

      SABHARWAL; (2011) 338 ITR 485 (DELHI), a Division

      Bench    of     this    Court      relying    on     the   decision   of

      COMMISSIONER           OF   INCOME T AX      VS .   SMT. SURAJ DEVI;

      (2010) 328 ITR 604 (DELHI) held that the primary

      burden     of     proof       to    prove      understatement         or

      concealment of income is on the revenue and it is only

      when such burden is discharged that it would be

      permissible to rely upon the valuation given by the

      DVO. It was further held that the opinion of valuation

      officer, per se, was not an information and could not

      be relied upon without the books of accounts being

      rejected which had not been done in that case.                      The

      Division Bench also referred to the decision in CIT                   V.

      NAVEEN GERA (2010) 328 ITR 516 (DEL) to hold that

      opinion of the District Valuation Officer                  per se   was

=======================================================================
WP(C) 7514/2010                                           Page 19 of 25
      not sufficient and other corroborated evidence was

      required.


19.   The    Supreme      Court    in    the   case     of    A SSISTANT

      COMMISSIONER        OF      INCOME       T AX      VS     DHARIYA

      CONSTRUCTION        C O.    2010     (328)      ITR     515      (SC)

      observed:-


            "Having examined the record, we f IND            THAT IN

            THIS CASE, THE   D EPARTMENT   SOUGHT REOPENING OF

            THE ASSESSMENT BASED ON THE OP inion      given by the
            District Valuation Officer (DVO). The opinion of
            the DVO per se is not an information for the
            purposes    of    reopening    assessment         under
            section 147 of the Income Tax act, 1961. The
            Assessing Officer has to apply his mind to the
            information, if any, collected and must form a
            belief thereon. In the circumstances, there is
            no merit in the civil appeal. The Department
            was not entitled to reopen the assessment."




=======================================================================
WP(C) 7514/2010                                           Page 20 of 25
20.   The ratio discernible from the aforesaid decision is

      that the Assessing Officer has to apply his mind to any

      information in form of the valuation report and must

      form a belief thereon that there is escapement of

      income. The opinion of the DVO is per se not an

      information    for   the   purpose    of   reopening    of   an

      assessment. The Assessing Officer has to apply his

      mind to     the report of the DVO and only if on

      application of mind, if he forms a belief that there is

      escapement of income, he can seek to reopen the

      assessment under section 147 of the Act.


21.   In the reasons recorded for the year 2005 ­ 06 the

      Assessing Officer has recorded that the valuation

      officer has worked out the value of the property at

      Rs.75,86,800/-       against    the   declared     value     of

      Rs.24,41,776/- lakhs as shown in the balance sheet as

      on 31.03.06. The A.O. has further recorded that on

      perusal of record it is seen that assessee has not

=======================================================================
WP(C) 7514/2010                                           Page 21 of 25
      shown any amount of investments made during the

      year in school at Byadgi and that the valuation of

      school at Byadgi by Valuation Officer in his report the

      property has been shown at Rs.36,26,490/- as against

      NIL shown by assessee. The A.O. has thus recorded

      that the investment of Rs.36,26,490/- has escaped

      assessment.


22.   In the reasons recorded for the year 2006 ­ 07 the

      Assessing Officer has recorded that the valuation

      officer has worked out the value of the property at

      Rs.75,86,800/-      against     the   declared     value     of

      Rs.24,41,776/- lakhs as shown in the balance sheet as

      on 31.03.06. The A.O. has further recorded that on

      perusal of record the assessee has shown an amount

      of Rs.24,41,776/- in the assets side of balance sheet

      under the head `School building' of Byadgi unit and

      that as per books of the assessee and the information

      given by Valuation Officer in his report the property

=======================================================================
WP(C) 7514/2010                                           Page 22 of 25
      has    been     undervalued             by     the     assessee      by

      Rs.51,45,024/- (75,86,800/- Minus 24,41,776/-)                    in its

      return of income. The A.O. has thus held that the

      income of Rs.36,26,490/- has been held, on the basis

      of details filed by the assessee, to have escaped in the

      A.Y.05-06      and    that        the        balance     amount      of

      Rs.15,18,534/- (51,45,024/- minus 36,26,490/-) has

      escaped assessment in this year.


23.   For the report of the Valuation Officer to become a

      basis for the reopening, the Assessing Officer should

      have applied his mind to the report of the Valuation

      Officer. The Assessing officer has clearly not applied

      his mind to the report of the Valuation Officer. Perusal

      of the Balance Sheet of the Assessee for the year

      ending 31.03.2005 shows that the Assessee has

      shown     an    amount       of    Rs.        21,95,849/-    as      an

      expenditure of capital nature on the Bayadgi Unit

      towards the School building. The Assessing Officer

=======================================================================
WP(C) 7514/2010                                           Page 23 of 25
      has taken the amount shown as nil. For the year

      ending    31.03.2006     the   Assessee     has   shown     an

      investment of Rs. 2,45,927/- as expenditure of capital

      nature on the Bayadgi unit and the value of the school

      building as on 31.03.2006 at Rs. 24,41,776/-. The

      reasons recorded are contradictory to the record.


24.   In view of the above we are of the considered opinion

      that the assessing officer has merely intended to

      revisit the said concluded assessment and it is a clear

      case of change of opinion which is not permissible in

      law. The Impugned order dated 23.08.2010 is hereby

      set aside and the proceedings initiated pursuant to the

      two impugned notices dated 30.03.2010 are hereby

      quashed. The Writ Petition is allowed with no orders

      as to costs.


25.   Since we have held that the Assessing Officer has not

      applied his mind to the valuation report and has simply


=======================================================================
WP(C) 7514/2010                                           Page 24 of 25
      accepted     the   same     and   made    it    the   basis   for

      reopening which is not permissible in terms of the law

      as laid down by the Supreme Court in D HARIYA

      CONSTRUCTION C O. (SUPRA) and have quashed the

      reassessment. We have not gone into the plea raised

      by the Petitioner that as the assessment was framed

      under    Section     153A     pursuant     to    search,      the

      assessment was beyond the purview of re-assessment

      under Section 147/148. The said question is left open.

      No Costs.


                                        SANJEEV SACHDEVA, J.




FEBRUARY 05, 2014                           SANJIV KHANNA, J.
SV




=======================================================================
WP(C) 7514/2010                                           Page 25 of 25

 
 
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