1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. D.B. INCOME TAX APPEAL NO.102/2007 Smt. Prem Kumari Mudria versus Asst. Commissioner of Income Tax. Date of Order : 18.07.2007. HON'BLE MR. P.B MAJMUDAR,J. HON'BLE MR.MUNISHWAR NATH BHANDARI,J. Mr. Anjay Kothari, for the appellants. By the Court (Per Mr.Majmudar,J.) We have heard the learned counsel for the appellant. By filing this appeal under Section 260A of the Income Tax Act, 1961, the assessee has challenged the judgment delivered by the Income Tax Appellate Tribunal, Jodhpur Bench, Jodhpur in appeal no. 347/2002 and 348/2002. The Tribunal dismissed both the appeals by common judgment . In the present tax appeal, the appellant has challenged the order of the Tribunal passed in Appeal No.348/2002 which relates to the assessment year 1995- 1996. 2 The appellant – assessee constructed a house in the city of Udaipur located at 9, Govindpura Colony. The construction was completed during the financial year 1993-1994 to 1997-1998. The said factual aspect has also been incorporated by the Commissioner of Income Tax (Appeals) in his order. The cost of construction was referred to Valuation Cell, Ajmer by the A.M. And the Valuation Officer has determined the cost of construction at Rs.65,54,555/-, as per the details given in para 2 of the judgment of the CIT (A) for assessment years 1994-1995, 1996-1997 and 1998-1999 as against the declared cost of Rs.39,50,000/-. The Assessing Officer has made additions in three assessment years on the basis of the difference between the cost of construction determined by the Valuation Officer and as declared by the appellant in the respective assessment year. Before the Commissioner of Income Tax (Appeals), the only ground which was pressed into service was regarding the addition made by the Assessing Officer on account of difference in the cost of construction as 3 indicated in the order of the Commissioner of Income Tax (Appeals). It was argued on behalf of the present appellant that the Valuation Officer has included the cost of construction on the basis of CPWD rates and has ignored the local PWD rates. It was argued before the Commissioner of Income Tax (Appeals) that if cost of construction is assessed on the basis of local PWD rates, there will not be any difference, for which reliance was made by the present appellant on the order of CIT (A), Udaipur dated 23.1.2001 in appeal No.1/IT/IDB/00-01 for assessment year 1997-1998. The Commissioner of Income Tax (Appeals) accepted the said submissions made on behalf of the present appellant and accordingly, 20% deduction was granted from the total cost of construction estimated by the Assessing Officer. The Commissioner of Income Tax accordingly, reduced Rs.3,61,158/- from the total addition of Rs.5,01,660/- and accordingly, granted relief of Rs.3,61,158/-. For the year i.e. 1995-1996, the said relief was given at Rs.4,67,732/-. The assessee thereafter challenged the said order before the Income Tax Appellate 4 Tribunal, Jodhpur Bench , Jodhpur in connection with two assessment years i.e. 1998-1999 and 1995-1996. The two appeals were preferred before the Tribunal. The Tribunal dismissed both the appeals by common judgment. It was argued before the Tribunal that the Assessing Officer was not entitled to reject the books of accounts and refer the matter to the DVO. The Tribunal has considered this aspect in para 4 of its judgment and it has been found that the Assessing Officer has already pointed out in para 6 of the order that the assessee had not maintained proper details for expenses relating to construction and had maintained only self-made vouchers and that too only for wood, labour, gitti, sand and bricks etc. and no supporting vouchers were available for such expenses. Under these circumstances, the Assessing Officer in order to find out the real value of cost of construction, referred the matter to the DVO and made addition on the basis of report of DVO. It is required to be noted that in the instant case, there was no evidence available in any manner regarding the cost of construction and, therefore, in order to find out the real value of cost of construction, the 5 Assessessing Officer adopted such course. It is required to be noted that on the basis of same, even the Commissioner (Appeals) upheld the only contention raised by the appellant in connection with granting 20% deduction from total value of cost of construction as estimated by the DVO. In fact, the only argument which was canvassed by the assessee before the Commissioner of Income Tax (Appeals) was in connection with the valuation on the basis of CPWD Rates. The First appellate authority i.e. Commissioner of Income Tax (Appeals) accepted the said submission and 20% deduction was also granted. However, before the Tribunal for the first time, the appellant argued that the initiation of re-assessment proceedings was not competent as this was not the proceedings initiated on the basis of search. The Tribunal has found that no such ground was raised at any point of time before the appellate authority nor any such issue was raised before the Commissioner (appeals). The Tribunal specially found in para 4 of the order that the CIT (A) has accepted the assessee's request with regard to the application of PWD rates and allowed deduction of 20% from the valuation made on the basis of CPWD rates to scale it down so as to be at part with the State PWD rates. The said procedure was found to be consistently followed 6 by the Jodhpur Bench of the Tribunal. It is required to be noted that against the order of CIT (A), even the Revenue had also preferred appeals as the Revenue was not satisfied with the order of CIT (A) in connection with granting deduction of 20% in the cost of construction. The appeals of the Department came for hearing before Jodhpur Bench of the Tribunal in connection with assessment years 1995-1996, 1996-1997 and 1998-1999. The Jodhpur Bench of the Tribunal vide order dtd.23.7.2004 came to the following conclusion: “The only dispute involved in these revenue appeals is relating to the relief allowed by the ld. CIT (A) in respect of cost of construction. The ld. CIT (A) has held that the revenue was not justified in applying the CPWD rates in comparison to PWD rates. A deduction of 20% has thus been directed to be allowed. The issue is covered in favour of the assessee by the decision of the Hon'ble Rajasthan High Court in the case of CIT V/s. Dinesh Talwar 265 ITR 344. Respectfully following the decision of the Hon'ble Jurisdictional High Court, the appeals of the revenue are hereby dismissed.” It is not in dispute that the appeals of the revenue were dismissed after hearing the present appellant who was respondent in the aforesaid appeals whereby the order in favour of the assessee was confirmed. It is surprising to 7 note that at the time of hearing of the appeal, the assessee had not pointed out that there were cross-appeals which are required to be heard together. We are of the opinion that when there are two cross appeals, pending before the different authority or Tribunal or the Court, the efforts should be made to see that such appeals are heard together so that by a common judgment, the same can be decided. Be that as it may, it is not in dispute that against the very impugned order of CIT (A), the Revenue preferred three appeals for different assessment orders which were dismissed by holding that deduction of 20% has been rightly given in favour of the assessee. It is required to be noted that there is no material on record to show that any request was made by the present appellants that his cross-appeals should be heard and decided together and the appellant allowed the Tribunal to decide revenue's appeals which were decided prior in time and the same were dismissed and the order of the CIT (A) was confirmed. In any case we are not dismissing this appeal on the aforesaid ground as we are convinced that reasoning given by the Tribunal in the impugned order is based on finding of fact and it is a well reasoned order. The CIT (A) has categorically found that the only point which was argued by the assessee was taken into consideration 8 and the relief as prayed for by the appellant before the CIT (A) was granted by the Commissioner of Income Tax (Appeals). It is true that before the Tribunal the appellant can raise question of law for the first time i.e. question of law can be raised at any stage. However, when on finding of fact, the appellate authority i.e. CIT (A) as well as the Tribunal has found that valuation made on the basis of giving deduction of 20% from the valuation made by the DVO is the correct valuation and such findings of fact cannot be disturbed by this Court as this tax appeal can be entertained only on a substantial question of law. In this connection reference is required to be made to the Division Bench judgment of this Court in the case of Commissioner of Income Tax V/s Dinesh Talwar reported in 265 ITR 344. .In the aforesaid judgment, it has been held by the Division Bench as under: “The Tribunal has valued the property adopting the rate of PWD. What should be thevalue of the construction, is basically a question of fact and that depends upon the material used, the location and the quality of construction. Therefore, straightway, applying the PWD rate or CPWD rate is not justified in case of each house. What should be the cost of construction, the Tribunal has applied the rate of PWD that is on the facts and circumstances of this case, which is part of the finding of fact. No interference is called for.” 9 The question of valuation is essentially a question of fact and even at the cost of repetition, we may say that even that finding has been properly given by the authorities below by giving cogent reasons. We see no reason to take different view in the matter. In our view, the impugned orders do not suffer from any infirmity. NO question of law much less any substantial question of law arises for the determination of this Court as the Commissioner of Income Tax (Appeals) has decided the appeals on the basis of evidence and material on record and on the basis of submission of the appellant before it. It has taken just and proper decision. In fact, the Revenue which was also aggrieved by the said decision has challenged the same and as stated above, the Tribunal dismissed the appeals of the Revenue by accepting the view taken by the CIT (A). Considering the aforesaid aspect of the matter as well as considering the question regarding consistency in the orders in connection with the same assessee, in view of dismissal of Revenue's appeals and upholding the decision of CIT (A) as well as considering the fact that the finding arrived at by the Commissioner of Income Tax (Appeals) as well as the Tribunal is a finding of facts, no interference of this Court is called for in this appeal. No other points were canvassed 10 before this Court. Accordingly, the present appeal is dismissed. No order as to costs. (MUNISHWAR NATH BHANDARI)J. (P.B. MAJMUDAR)J. SS/- 11