Income Tax Appellate Tribunal - Ahmedabad
Bhagwati Caterers Pvt. Ltd.,, ... vs Department Of Income Tax on 17 March, 2010
IN THE INCOME TAX APPELLATE TRIBUNAL
AHMEDABAD BENCH " D "
Before Shri T.K.SHARMA, JUDICIAL MEMBER and
Shri N.S.SAINI, ACCOUNTANT MEMBER
Date of hearing : 17/03/2010 Drafted on: 17/03/2010
Sl. ITA No(s)/ Assessment Appeal(s) / CO(s) by
No(s). CO No(s) Year(s)
Appellant Respondent
1. 1446/Ahd/2007 1997-1998 DCIT M/s.Bhagwati
Ahmedabad Caterers Pvt.Ltd.
(Revenue) 73, White House
Panchwati,
Ahmedabad
( Assessee )
PAN:AAACB 7838 E
2. 1447/Ahd/2007 1998-1999 Revenue Assessee
3. 1448/Ahd/2007 1999-2000 Revenue Assessee
4. CO.144/Ahd/2007 1997-1998 Assessee Revenue
(o/o1446/Ahd/2007)
5. CO.145/Ahd/2007 1998-1999 Assessee Revenue
(o/o1447/Ahd/2007)
6. CO.146/Ahd/2007 1999-2000 Assessee Revenue
(o/o1448/Ahd/2007)
Assessee(s) by : Shri S.N. Divatia, A.R.
Revenue by : Shri C.K. Mishra, Sr. D.R.
ORDER
PER SHRI T.K.SHARMA, JUDICIAL MEMBER :
These three appeals by the Revenue and the Cross Objections by the Assessee against the common order dated 08/01/2007 passed by the Learned CIT(Appeals)-III, Ahmedabad for Assessment Years 1997-98, 1998-99 & 1999-2000.
2. Briefly stated the facts are that the assessee-company constructed a factory at 328 Chagodar Industrial Estate, Sanand in Ahmedabad ITA Nos.1446,1447 & 1448/A/2007 (By Revenue) And CO Nos.144 to 146/Ahd/2007 (By Assessee) DCIT vs. M/s.Bhagwati Caterers Pvt.Ltd.
Asst.Years - 1997-98 to 1999-2000 -2- District. The Assessing Officer sought report of the DVO and based on that report dated 25/02/2002 and revised report of DVO dated 31/03/2006 made additions for unexplained investments in this construction as under:-
Assessment Cost as per Cost of Assessed Amount Year assessee construction income added for as per A.O. difference in valuation 1997-1998 560470 653014 173500 92544 1998-1999 6883462 7941552 2310510 1058090 1999-2000 292854 340834 1648380 47580 Total 7736786 8935000 1198214
3. On appeal against the assessment order(s) dated 26/03/2004 in respect of all these three assessment years, the Learned CIT(Appeals) dismissed the same vide his order dated 10/09/2004. On further appeal, the ITAT vide its order dated 22/02/2005 set aside the matter of valuation directing the Assessing Officer "to readjudicate the matters after allowing adequate opportunity of being heard to the assessee. Needless to mention that the Assessing Officer will allow sufficient time to the assessee to produce any evidence to rebut the DVO's report".
3.1. Subsequently, the Assessing Officer provided opportunity to the assessee on 24/04/2005. The assessee furnished reply to the DVO's report alongwith a copy of the report of a Registered Valuer (Shri T.D. Patel) estimating the cost of construction of the factory at Rs.77,13,686/- as against the estimate of Rs.1,01,42,764/- of the DVO as per his report ITA Nos.1446,1447 & 1448/A/2007 (By Revenue) And CO Nos.144 to 146/Ahd/2007 (By Assessee) DCIT vs. M/s.Bhagwati Caterers Pvt.Ltd.
Asst.Years - 1997-98 to 1999-2000 -3- dated 25/02/2002. The Assessing Officer also confronted the DVO with the reply of the assessee/report of the Registered Valuer. In his response, DVO vide letter/report dated 24/08/2005 stated that Registered Valuer's Report was not accompanied by calculation sheets/supporting documents/the basis for adopting rates. The DVO asserted that unlike the Registered Valuer's Report, the Plinth Area Rate (PAR) was adopted as approved by CBDT, was more objective and analytical and based on locally prevailing rate of material/labour and so did not need any revision. The assessee was provided with DVO's report dated 24/08/2005. After considering the comments of the assessee, DVO reinspected the factory on 28/03/2006 and revised his cost and its year- wise distribution. The DVO in his report of 31/03/2006 felt -
(a) that, certain items of work such as wire fencing, plaster of paris work has been excluded by the Registered Valuer,
(b) that, certain modification are done in rates of different its,
(c) that, 5% discount given for self-purchases.
3.2. The DVO also observed that building was a RCC framed structure with very good specifications and services and not a godown type structure with AC sheet roofing as averred by the Registered Valuer. The revised working was given by the DVO is enclosed by the Assessing Officer as Annexure-"A" in the assessment order. As per revised Valuation report dated 31/03/2006 break-up of the year-wise cost of construction comes as under:-
ITA Nos.1446,1447 & 1448/A/2007 (By Revenue) And CO Nos.144 to 146/Ahd/2007 (By Assessee) DCIT vs. M/s.Bhagwati Caterers Pvt.Ltd.
Asst.Years - 1997-98 to 1999-2000
-4-
Period of Declared Estimated Cost of Difference
construction cost of cost as per construction
construction original as per
Valuation revised
Officer's report dated
report 31/03/2006
1997-1998 5,60,470 7,46,334 653014 92544
1998-1999 68,83,462 90,08,567 7941552 1058090
1999-2000 2,92,854 3,87,863 340434 47580
Total 77,36,786 1,01,42,764 8935000 1198214
3.3. The Assessing Officer framed the assessment for all the three assessment years under appeal and made the addition of difference amount in three assessment years as worked out above.
4. On appeal before the Learned CIT(Appeals), it was contended that although the DVO had scaled down his initial estimate of Rs.1,01,42,764/- to Rs.89,35,000/- after considering some objections/Registered Valuer's Report, yet be the DVO has not adopted the PAR correctly and has not provided for deduction for own supervision and for self purchases. Before the Learned CIT(Appeals) it was also contended that DVO has overlooked the fact that the Registered Valuer had covered and accounted for all items such as plaster of paris, wire mesh, fence, etc. in the report dated 14/05/2005. The DVO's comments that it was not so, were casual and dismissive and incorrect. It was further contended that there is no evidence of expenditure in excess to what was disclosed was found in search. The Assessing Officer ITA Nos.1446,1447 & 1448/A/2007 (By Revenue) And CO Nos.144 to 146/Ahd/2007 (By Assessee) DCIT vs. M/s.Bhagwati Caterers Pvt.Ltd.
Asst.Years - 1997-98 to 1999-2000 -5- rejected the disclosed cost of construction in the books of account which were accepted by him is contrary to the judicial decisions reported in 94 TTJ (Ind.) 631 in the case of ITO vs. P.C. Soni and of M/s.Rohtas Prajats Ltd. 104 TTJ (LKN) 339 (TM).
4.1. Before the Learned CIT(Appeals) it was also contended that original bills/vouchers, etc. were maintained and produced before the Assessing Officer. No defect therein was found. Therefore, Assessing Officer ought to have accepted the cost of construction declared in the books of account.
5. After considering the rival submissions, in the impugned order, the Learned CIT(Appeals) observed that difference in DVO's Valuation and that by Registered Valuer's is mainly on account of the PAR taken for the main factory building, i.e. Rs.5,030/- per sq.metre by the DVO and Rs.3,500/- per sq.metre as per the average rate of Registered Valuers. Apart from this, there are minor differences in the valuation of parking, tiles, wooden partition, ground-floor and first-floor syntex tanks, etc. In some of these items, the valuation taken by the DVO is less as compared to the values taken for the corresponding items by the Registered Valuer and vice-versa. In the impugned order, the Learned CIT(Appeals) also observed that on a holistic consideration of the facts and circumstances and the reports of the approved valuers and the DVO, it would be appropriate to adopt the PAR at an average rate, i.e. the average of the PAR as per the approved valuers at Rs.3,500/- and Rs.5,030/- of the DVO. On this basis, it would be appropriate to take PAR at Rs.4,250/-
ITA Nos.1446,1447 & 1448/A/2007 (By Revenue) And CO Nos.144 to 146/Ahd/2007 (By Assessee) DCIT vs. M/s.Bhagwati Caterers Pvt.Ltd.
Asst.Years - 1997-98 to 1999-2000 -6- per sq. metre and to also allow deduction at 10% for self-purchase of cement and steel, instead of 5% deduction allowed by the DVO. This approach is considered to be justified since no defects have been found in the books of account of the assessee and a deliberate understatement of construction expenses would not have upheld the assessee, considering the sale tax exemptions to which it became entitled. By adopting the PAR at Rs.4,250/- and allowing deduction of 10% (instead of 5% allowed by the DVO) on self-purchase of cement and steel of Rs.16.11 lakhs, the cost of construction is worked out at Rs.81,07,776/- instead of Rs.77,36,786/- shown by the assessee, i.e. difference of Rs.3,70,889/-. This additional cost is attributed year-wise in proportion to the expenditure shown by the assessee, in the following manner:-
Period of Cost of Cost of Difference
construction construction construction
as per books as adopted
of the
appellant
1997-1998 5,60,470/- 5,87,327/- 26,857/-
1998-1999 68,83,462/- 72,13,488/- 3,30,026/-
1999-2000 2,92,854/- 3,06,860/- 14,006/-
Total 77,36,786/- 81,07,776/- 3,70,889/-
5.1. On the above basis, the Learned CIT(Appeals) restricted the addition to Rs.26,857/- for Assessment Year 1997-98, Rs.3,30,026/- for Assessment Year 1998-99 and Rs.14,006/- for Assessment Year 1999- 2000 and the balance is deleted.
6. Aggrieved by the order of the Learned CIT(Appeals), the Revenue is in appeals before us, by way of following common grounds:-
ITA Nos.1446,1447 & 1448/A/2007 (By Revenue) And CO Nos.144 to 146/Ahd/2007 (By Assessee) DCIT vs. M/s.Bhagwati Caterers Pvt.Ltd.
Asst.Years - 1997-98 to 1999-2000 -7-
1. The CIT(A) has erred in law and on facts in directing to adopt average rate of valuation on the basis of the reports of the DVO and Registered Valuer without any basis.
2. The CIT(A)has erred in law and on facts in ignoring the reasons mentioned by the DVO for higher valuation such as RCC structure with RCC slabs, etc.
7. The Assessee also filed cross objections and the only common ground raised therein reads as under:-
The Ld. CIT(A) has erred in law and/or on facts in confirming the addition(s) of Rs.26,857/- (For A.Y.1997-98), Rs.3,30,026/- (For A.Y. 1998-99) & Rs.14,006/- (For A.Y. 1999-2000) being difference between cost of construction as per books of the assessee and cost of construction adopted by the A.O.
8. At the time of hearing before us on behalf of Revenue, Shri C.K. Mishra, Learned Departmental Representative appeared by relying on the reasoning given by the Assessing Officer and contended that the Learned CIT(Appeals) ought to have accepted the DVO's Valuation. He, further submitted that after considering all the objections, DVO scaled down his initial estimation of Rs.1,01,42,764/- to Rs.89,35,000/- Therefore, order of the Learned CIT(Appeals) be reversed and addition(s) made by the Assessing Officer in the assessment order(s) be restored.
9. On the other hand, Shri S.N.Divatia, Learned Authorised Representative of the assessee contended that since the Assessing Officer has not rejected the disclosed cost of construction in the books of ITA Nos.1446,1447 & 1448/A/2007 (By Revenue) And CO Nos.144 to 146/Ahd/2007 (By Assessee) DCIT vs. M/s.Bhagwati Caterers Pvt.Ltd.
Asst.Years - 1997-98 to 1999-2000 -8- account, therefore, entire addition(s) be deleted. The ld. counsel for the assessee also contended that it may be held that reference to DVO is bad in law because no reference to DVO can be made unless the books of account wherein assessee has disclosed the cost of construction are rejected.
10. Against this, the Learned Departmental Representative submitted that this plea cannot be taken as no such plea was taken before the Tribunal in the first round of litigation. He submitted that the Tribunal has restored the matter of valuation to the file of Assessing Officer to allow an opportunity to assessee only on matter of valuation. Therefore, this plea of ld. counsel for the assessee be rejected.
11. We have heard the rival submissions and carefully gone through the orders of lower authorities. It is pertinent to note that ITAT vide its order dated 22/02/2005 set aside the matter of valuation to the file of Assessing Officer. Therefore, while re-framing the assessment, the jurisdiction of Assessing Officer is restricted to look into the value adopted in the assessment order considering the objection of the assessee. Therefore, this plea of the ld. counsel for the assessee is rejected.
12. Coming to the merits of the case, the Learned CIT(Appeals) in the impugned order has analyzed both the valuation report, i.e. Valuation Report to DVO and assessee's Registered Valuer. Each and every objection of the assessee has been dealt with by the Learned CIT(Appeals) in the impugned order. Looking to the peculiar facts, the ITA Nos.1446,1447 & 1448/A/2007 (By Revenue) And CO Nos.144 to 146/Ahd/2007 (By Assessee) DCIT vs. M/s.Bhagwati Caterers Pvt.Ltd.
Asst.Years - 1997-98 to 1999-2000 -9- Learned CIT(Appeals) adopted the average rate of valuation on the basis of report of DVO and Registered Valuer. From the value so arrived, the Learned CIT(Appeals) has also allowed deduction of 10% (instead of 5% allowed by the DVO) on self-purchase of cement and steel of Rs.16.11 lacs, he worked out the cost of construction at Rs.81,07,776/- instead of Rs.77,36,786/- shown by the assessee. In this manner, the Learned CIT(Appeals) restricted the addition to addition in respect of all the assessment years to Rs.3,70,889/-. In our opinion, the Learned CIT(Appeals) has given cogent reason for adopting the said valuation. We, therefore, incline to uphold the common order of the Learned CIT(Appeals) in all the three assessment years.
Assessee's Cross Objection Nos.144, 145 & 146/Ahd/2007 arising out of ITA Nos.1446, 1447 & 1448/Ahd/2007 for A.Ys. 1997-98, 1998-99 & 1999-2000 respectively
13. In view of our above decision in Revenue's appeals(supra), the cross objections filed by the assessee are rendered infructuous and, therefore, the same are dismissed as such.
14. In the result, all the three appeals of the Revenue as well as cross objections filed by the Assessee are dismissed. Order signed, dated and pronounced in the Court on 19/03//2010.
Sd/- Sd/- ( N.S. SAINI ) ( T.K.SHARMA ) ACCOUNTANT MEMBER JUDICIAL MEMBER Ahmedabad; Dated 19/03/2010 T.C. NAIR
ITA Nos.1446,1447 & 1448/A/2007 (By Revenue) And CO Nos.144 to 146/Ahd/2007 (By Assessee) DCIT vs. M/s.Bhagwati Caterers Pvt.Ltd.
Asst.Years - 1997-98 to 1999-2000
- 10 -
Copy of the Order forwarded to :
1. The Appellant
2. The Respondent
3. The CIT Concerned
4. The ld. CIT(Appeals)-III, Ahmedabad
5. The DR, Ahmedabad Bench
6. The Guard File.
BY ORDER, स×याǒपत ूित //True Copy// (Dy./Asstt.Registrar), ITAT, Ahmedabad