Satish Chandra, J. - (1.) THE present appeal has been filed by the appellant -Department under section 260A of the Income -Tax Act, 1961, against the judgment and order dated 23 -9 -2009, passed by the Income Tax Appellate Tribunal, Lucknow, in I.T.A. No. 365/Luc/2009, for the assessment year 2001 -2002.
(2.) ON 9 -3 -2010, a Coordinate Bench of this Court has admitted the appeal on the following substantial questions of law: - - 1. Whether the learned Income Tax Appellate Tribunal has been right in law and on facts in revising their considered view that reference under section 131(1)(d) of the I.T. Act to District Valuation Officer was justified. 2. Whether the learned Income Tax Appellate Tribunal has rightly deleted the additions made by the Assessing Officer on the ground that Assessing Officer had not rejected books of account of the assessee whereas rejection of books of account is not a necessary condition for addition under section 69 of the I.T.Act, 1961. The brief facts of the case are that the assessee has shown Nil income, but the assessing officer passed an order under section 143(3) of the Act and observed that the assessee has constructed a factory building by showing lesser investment. So, he referred the matter under section 142A of the Act to the DVO. After receiving report from the DVO, he made an addition of Rs.59,40,051/ - for the difference by treating the same as income from the undisclosed source, but the CIT(A) has deleted the said addition and the Tribunal has confirmed the same. Being aggrieved, the Department has filed the present appeal.
(3.) WITH this background, Sri Prashant Kumar, learned counsel for the Department has justified the order passed by the assessing officer He submits that the assessee has shown the lesser investment in the factory building. The Tribunal had upheld the validity of the reference made under section 131(1)(d) of the Act by observing that after insertion of Section 142A with retrospective effect from 15 -11 -1972, the reference made under section 131(1)(d) will be deemed to have been made under section 142 -A of the Act. He further submits that the issue relating to the validity of the reference to DVO was not before the CIT(A) and, therefore, both the orders passed by the appellate authorities, will have to be set aside.;