JUDGMENT
1. In the aforesaid appeals similar controversy has been raised therefore, they are connected and decided by a common judgment.
2. These appeals under Section 260A of the IT Act, 1961, have been filed by the Revenue against the order passed by the Tribunal on 6th July, 2004.
3. In short the facts giving rise to the present appeal are that the assessee filed return for the assessment years, i.e., for four years namely : 1993-94, 1994-95, 1995-96 and 1996-97. In the assessment proceedings for the year 1998-99, her case was taken up for scrutiny under Section 143(3) of the IT Act where the AO referred the matter to the DVO for assessing the cost of the construction. On the cost/value determined by the DVO, the AO proceeded to make the assessment. Separate appeals were filed with respect to separate assessment years, whereas the present appeals are filed for the asst. yr. 1998-99.
The appellate authority relying upon the judgment in the case of Smt. Amiya Bala Paul v. CIT of the apex Court and also relying upon the judgment of the High Court in the case of Dr. Avinesh Kumar Agarwal v. Asstt. Director of IT (Inv.) (2003) 184 CTR (All) 587 held that the AO was having no power to refer the value point to the DVO. The appeal was thus allowed and the second appeal preferred before the Tribunal was dismissed, upholding the aforesaid finding.
4. Sri D.D. Chopra, relying upon a Division Bench judgment in which one of us (Pradeep Kant, J.) was a Member, CIT v. Rohtas Projects Ltd. (IT Appeal No. 26 of 2006, decided on 23rd Feb., 2006) [reported at (2006) 204 CTR (All) 139 Ed.] submitted that the Tribunal has failed to consider the meaning and import of the amended provision of Section 142A of the IT Act, which gives jurisdiction and power to refer the matter to DVO for assessing the cost/value of the construction.
5. In response, Sri Jai Deep Narain Mathur has drawn our attention to the proviso annexed to the aforesaid provision of Section 142A which reads as under and urged that in view of the fact that the assessment proceedings in the present case were concluded much before 30th Sept., 2004, therefore, the said provision of Section 142A would not be applicable, despite its retroactivity:
142A. Estimate by Valuation Officer in certain cases.--(1) For the purposes of making an assessment or reassessment under this Act, where an estimate of the value of any investment referred to in 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 AO may require the Valuation Officer to make an estimate of such value and report the same to him.
(2) The Valuation Officer to whom a reference is made under Sub-section (1) shall, for the purposes of dealing with such reference, have all the powers that he has under Section 38A of the WT Act, 1957.
(3) On receipt of the report from the Valuation Officer, the AO may, after giving the assessee an opportunity of being heard, take into account such report in making such assessment or reassessment:
Provided that nothing contained in this section shall apply in respect of an assessment made on or before 30th Sept., 2004, and where such assessment has become final and conclusive on or before that date, except in cases where a reassessment is required to be made in accordance with the provisions of Section 153A.
6. Sri D.D. Chopra, while making an attempt to overcome the aforesaid proviso submitted that the appeal under Section 260A is also a continuance of the assessment proceedings and it has to be treated as such within the meaning of the aforesaid proviso and since the appeals before the High Court are still pending which could not be finalised before 30th Sept., 2004, therefore, the case would not stand excluded from the applicability of the provisions of Section 142A of the IT Act.
7. Section 260A of the IT Act is a provision of appeal to High Court only on the satisfaction of the High Court that the case involves substantial question of law. It is not an appeal under the statute giving a vested right to challenge the assessment order after the assessment proceedings had crossed the stage of Tribunal. Even otherwise without any further detailed discussion it is to be kept only look into the substantial question of law and would not enter into question of fact or re-appreciation of evidence unless the findings recorded are perverse. The order in the instant case passed by the Tribunal cannot be said to be bad in law nor it can be said that it suffers from any such error which raises any substantial question of law. If the Tribunal while considering the appeals has correctly stated the facts and has rightly applied the law as was applicable on the date of consideration of the appeals, the same cannot be said to be faulty on any ground, which was not available to the Tribunal on the date of decision.
8. The order passed by the Tribunal cannot be said to be erroneous also on the ground that on the date when the appeals under Section 260A of the IT Act are being decided some other view could be taken, if these appeals are taken as continuance of the assessment proceedings.
9. We are unable to accept the plea that the appeal under Section 260A is continuance of the assessment proceedings within the meaning of the term used in the proviso to Section 142A of the IT Act and that the assessment does not stand finally concluded, on the order being passed by the Tribunal.
10. In the case in hand, the Tribunal applied the law as is existed on the date of decision. The Tribunal passed the order in the assessment proceedings on 6th July, 2004, i.e., much before the cut-off date 30th Sept., 2004, date prescribed under the proviso. That being so, the appeals do not raise any substantial question of law to be decided by the High Court. The appeals are devoid of force, hence dismissed.
The aforesaid appeals are dismissed.