SPECIAL CIVIL APPLICATION NO. 6203 OF 2011

AKIL KURESHI AND A.J. SHASTRI, JJ.

J.P. Shah and Manish J. Shah, Advs. for the Petitioner.
Sudhir M. Mehta, Adv. for the Respondent.

JUDGMENT

A.J. Shastri, J. - The petitioner, by way of present petition, has challenged the legality and validity of the impugned action of respondent authority in making a reference to the Valuation Officer and consequently, he has also challenged the communications dated 10.3.2011 and 26.4.2011 respectively.

2. Brief facts are as under :

2.1 The petitioner is a purchaser of a property situated at Satyagrah Chhavani, Satellite, Ahmedabad. The petitioner purchased the same from one Ms. Ranjanben Dhirajlal Patel for an amount of Rs. 60 lacs through a registered sale deed dated 25.4.2007. The petitioner filed the return of income on 31.7.2008 for the Assessment Year 2008-09 declaring total income at Rs. 25,14,480/-. During the course of assessment proceedings, the petitioner received a notice under Section 142(1) of the Income-tax Act,1961 (for short 'the Act') asking the petitioner as to why an amount of Rs. 5 lacs should not be added to the purchase price of a property referred to above as the petitioner has got a loan of Rs. 55 lacs from ICICI Bank and incidentally, the amount of interest component to the extent of Rs. 3,97,334/- came to be disallowed on the aforesaid loan obtained by the petitioner. Of course the appeal proceedings were initiated by the petitioner but, since the same are not related to the controversy involved in the petition, no reference is made on that.

2.2 The petitioner says that regular scrutiny assessment came to be passed on 31.12.2010 under Section 148(3) of the Act wherein, the reference about this property is already taken into consideration and explanation with regard to that has also been submitted to the department by the petitioner. However, as per the say of the petitioner that after receipt of assessment order, he received a communication whereby, it has been noticed that on 29.12.2010 a reference is made by the Assessing Officer to Valuation Officer in respect of two properties; one situated at Ashawari Tower and secondly, a property purchased by the petitioner at Satyagrah Chhavani. On 8.3.2011, the valuation proceedings came to be dropped with respect to the property situated at Ashawari Tower as the same was not in the name of petitioner. Pursuant to the said reference, the petitioner was asked by the Valuation Officer under a communication dated 10.3.2011 requiring certain particulars from the petitioner so as to enable him to determine the cost of construction and also asked the particulars relating to expenditure on material used in the same. Subsequently, on 26.4.2011 also, the petitioner received a notice with respect to that very particulars and the petitioner requested to the Valuation Officer for a reasonable time to tender the particulars and therefore, time had been granted by the Valuation Officer on 10.5.2011. It is in the background of these facts, since the reference has been made by the Assessing Officer for estimating the cost of the property, according to the petitioner said reference being not in consonance with the settled proposition of law, the petitioner has invoked the jurisdiction of this Court by way of present petition for challenging the same.

3. Before dealing with the controversy involved in the petition, the reference which has been made by the Assessing Officer to the Valuation Officer is required to be referred which reads, thus;

'To

The Valuation Officer, Valuation Cell, Income-tax Department, Ahmedabad
Sub. : Estimating the cost of investment in the property belonging to Shri Anand Adukiya - Reg.
Sir,

Shri Anand Adukia has invested in the construction/renovation of the property as per details indicated below:
DETAILS :

	1.	Description of the assets/property giving exact location with complete address.	(1) B-202, Ashawari Tower, B/h Fun Republic, Satellite, Ahmedabad - 380 001. (2) Satyagrah Chhavani, Bungalow No. 126, Sub Plot No. 60, Lane No. 3, Sector No. 7, Satellite, Ahmedabad.
	2.	Name and complete address of the assessee with Telephone No. if any.	Shri Anand Adukia B-202, Ashawari Tower, B/h Fun Republic, Satellite, Ahmedabad - 380 001.
	3.	Name & complete address & Telephone No. of the CA/Lawyer or Assessee's Authorized Representative dealing with the case, if any.	Amal Datt & Association, C.A.s. "Vatsalya", 3, Brahman Mitra Mandal Society, Mangaldas Road, Ellisbridge, Ahmedabad - 380 006.
	4.	Amount declared by the assessee as filed in the return of income for the assessment year or as admitted during survey/search.	(1) Rs. 37 lacs (2) Rs. 60 lacs
	5.	Estimated cost of investment	(1) Rs. 60 lacs (2) Rs. 90 lacs
	6.	Cost estimated by the Registered value if any (copy of the valuer's report to be submitted if available)	N.A.
	7.	Whether valuation of Plant and Machinery is also required or whether a separate reference has been made directly to the Valuation Officer (M & P) or the same is attached with the reference.	N.A.
	8.	Period for which valuation is required (Date of commencement and completion be given)	1.4.2007 to 31.3.2008
	9.	Grounds on which the opinion of the assessing officer is based.	Cost of property shown by the Assessee is very law apparent to Market value. In the cases of my own assessee, cost of property in the same locality is shown as under : Atul Sanghvi-81, Shaligram - 29 lacs Shikha Gupta-Green Acres - 79.09 lacs Zahir Wykis-Shafal Parivesh-32.16 lacs Bhavin A. Shah - 426, Co.Op. Hous. Soc., 58.24 lacs

The assessment is likely to get time barred on 31.12.2010 for assessment year 2008-09. You are requested to submit the report at the earliest.

In order to elucidate the correctness of the cost of investment, I require and authorize you u/s. 142(A) of the Income-tax Act,1961 to inspect the property and to make such investigation and seek clarification and material from the assessee and other concerned persons as are considered necessary and take such measures as are deemed fit for determining the true and correct cost of investment of the said property.

You should send your Valuation Report to me in duplicate urgently and preferable at your earliest.
Copy of information, documents and details available is enclosed"

4. Learned counsel, Shri J.P. Shah appearing for the petitioner has challenged said action of the authority to make a reference by contending that the petitioner is a purchaser and cannot be made or subjected to such proceedings. While contending this, learned counsel for the petitioner has drawn attention to the statutory provisions contained in Section 50C which came to be introduced w.e.f. 1.4.2003 and by referring to the same, learned counsel submitted that this provision is meant to capital gain which will be taxed in the hands of seller on the basis of jantri price and therefore, the reference which has been made by Assessing Officer in case of petitioner, who is purchaser, is not just and proper. It was also contended by learned counsel that where the value of investment under Section 69 is to be estimated by the Assessing Officer for the purpose of assessment, the condition precedent of Section 69 of the Act is required to be satisfied before making a reference. As a matter of fact, learned counsel submitted that a reference is made just prior to two days from the date of passing an assessment order and as such would be of no avail and Section 142A of the Act can be resorted to, no doubt by the Assessing Officer but, not for the purpose for just making an inquiry with respect to cost of investment. Learned counsel while drawing the attention to the reference order has submitted that under a mistaken belief this reference appears to have been made in a hurried manner by assuming that the petitioner has invested the amount in construction/renovation, whereas in fact the petitioner has purchased the constructed property in as it is manner. The petitioner has categorically contended that beyond the amount of Rs. 60 lacs, the petitioner has not paid any amount and therefore, the very basis for estimating the value of the property to the extent of Rs. 90 lacs, there is no cogent material available with the Assessing Officer. Learned counsel further has drawn attention that while estimating the value of property to the extent of Rs. 90 lacs and the particulars which are mentioned in clause (9) of the said reference in abstract form relied upon and certain properties without any details have been narrated which would not give an exact idea about what material is based upon by Assessing Officer for resorting to Section 142A of the Act. It was also contended by learned counsel that the reference has been made on 29.12.2010 when the assessment was likely to get time barred after few days i.e. on 31.12.2010. He for the purpose of elucidating the correctness of cost of investment referred to Section 142A of the Act which is in view of settled position of law is simply not permissible. Learned counsel further submitted that under the scheme of the Act, before referring to the Valuation Officer, there must be some prima facie cogent material based upon which satisfaction must be arrived at by the Assessing Officer and only thereafter to re-ensure a reference can be made. But here learned counsel submitted that no such material even primarily available with the authority and therefore, the action referring the matter to the Valuation Officer is without authority of law. Learned counsel further submitted that later on, the Valuation Officer has made a communication to the petitioner and granted date on 10.5.2011, by that time the scrutiny assessment under Section 143(3) of the Act has already been done on 31.12.2010 and therefore, no useful purpose will be achieved by undertaking such exercise. Learned counsel has further submitted that the details have been provided by the petitioner during course of assessment proceedings and for that purpose, learned counsel has drawn attention of the Court by referring to the assessment order which is attached to the petition at Page-25. A specific reference under the head of 'Investment in Immovable Properties' is made with respect to property situated at Satyagrah Chhavani, over which an amount of Rs. 55 lacs is taken by way of loan from ICICI Bank and upon such inquiry, under a communication dated 24.12.2010, the investment to that query has already been explained and for that purpose, even the copy of purchase deed also submitted along with the detailed particulars with respect to payment of tax have been furnished. Learned counsel has therefore submitted that Section 142A of the Act cannot be resorted to just to inquire about the cost of investment before arriving at a satisfaction with respect to the doubt of valuation. Learned counsel has further submitted that in a similar situation in case of Me & Mummy Hospital v. Asstt. CIT [2014] 224 Taxman 65 (Mag.)/45 taxmann.com 248 (Guj.) this Court has considered the entire scheme of Section 142 and has analyzed that under which circumstances, such kind of reference can be made and here in the present case, learned counsel submitted that the ratio laid down by the said decision is squarely applicable and therefore, requested the Court to quash the valuation reference with respect to property in question. Learned counsel for the petitioner has further drawn the attention to the affidavit-in-reply filed by the revenue department in which also the same is in the line of the intention of Assessing Officer and the averments have been made with no other cogent particulars. Therefore, under this set of circumstance, learned counsel submitted that no such reference allowed to be proceeded with and therefore, requested the Court as prayed for in the petition.

5. To oppose the petition, learned counsel, Mr. Sudhir Mehta appearing for the department has contended that the Assessing Officer has rightly made the reference to the Valuation Officer. He further contended that reference order came to be passed during the pendency of assessment proceedings and therefore, the same was well within the right of the Assessing Officer and therefore, learned counsel submitted not to entertain the petition. Learned counsel has further contended that reference was made by the Assessing Officer for determining the fair market value on the property and more so because the additional amount on stamp duty was required to be paid at Rs. 1,34,256/- and therefore, the Assessing Officer was justified in making reference so as to ascertain unaccounted investment in the purchase of property made by the petitioner. He further submitted that such value of the property has been shown undervalued by both the purchasers as well as the seller and therefore, the action of making reference is just and proper. While contending this, learned counsel has drawn the attention of this Court to a decision of the Andhra Pradesh High Court in case of Bharathi Cement Corpn. (P.) Ltd. v. CIT [2013] 33 taxmann.com 643 and contended that it is always open for the respondent authorities to make a reference and resort to Section 142A of the Act and therefore, by contending this, learned counsel submitted that since the undervalue is shown by both purchaser and seller, it is just and proper on the part of Assessing Officer to ascertain the correct market value of the property.

6. Learned counsel for the revenue has further drawn the attention of the Court that even during the passage of time, a valuation report has also come on record which indicates that the higher value as compared to what has been reflected by the petitioner and therefore, the reference was rightly made by the Assessing Officer and in view of that, the action is not required to be entertained as challenged by the petitioner. Learned counsel also submitted that there is an amendment took place under the provision of Section 69 of the Act as Section 69AB with retrospective effect and therefore, the conditions contained in Section 69 of the Act are satisfied, the Assessing Officer was well within power to resort to Section 142A of the Act. Learned counsel submitted that the reliance placed by the petitioner in case of Me and Mummy Hospital (supra) is not applicable in the present background of the fact. In the said decision, it has also been considered by the Court that a reference can be made during the pendency of the assessment proceedings and even after that and this has been done on 29.12.2010 prior to the date of scrutiny assessment and therefore, the case which is tried to be relied upon is not helpful to the petitioner and therefore, by contending this, learned counsel submitted to dismiss the petition.

7. Having heard the learned counsel appearing for the respective parties and having perused the materials on record, prima facie following facts are emerging :

(1)	That petitioner is a purchaser of a property and has made a clear assertion that he has not paid any amount beyond Rs. 60 lacs and the same is reflected from the sale deed itself which has been attached to the petition.
(2)	It is also reflected from the record that vide letter dated 20.12.2010, the petitioner was required to supply information and explanation about the loan of Rs. 55 lacs from ICICI Bank which was taken with respect to very property under Section 142(1) of the Act and in compliance to this, a communication issued under Section 142(1) of the Act. On 24.12.2010 a clarification has been made with respect to this very controversy and the scrutiny assessment has taken note of this particular submitted by the petitioner and passed an assessment order on 31.12.2010.
(3)	It is also reflecting from the record that just before 2 days prior to the final order of assessment on 31.12.2010, a reference is made under Section 142A of the Act only on 29.12.2010 mainly appearing to be on the premise to evaluate and elucidate the investment made by the petitioner in respect of this property. It is also reflecting from the record that ex-facie there appears no cogent material available with the Assessing Officer to arrive at an estimate of Rs. 90 lacs and it appears that just for the purpose of making an inquiry about correct value of the property, in a casual manner, the reference is straightway made under Section 142A of the Act.
(4)	It is also emerging from the record that Valuation Officer while calling for certain information from the petitioner on 10.3.2011 as well as a later communication dated 26.4.2011, has assumed that certain expenditure has been incurred in making construction of the property and for that purpose, the particulars with respect to material being used is also inquired from. Whereas in case on hand the constructed property in as it is manner has been purchased by the petitioner which is reflected from the sale deed.
(5)	It is also emerging further from the record that even the revenue department which has filed an affidavit is also reflecting to have been filed to the tune of stand taken by the Assessing Officer while making reference and nothing much has reflected except bare assertion contained in the affidavit-in-reply and therefore, in the background of aforesaid facts which are emerging from the record, we deem it proper to refer to certain relevant statutory provisions which are required to be considered which is reproduced hereinafter :

"'50C. [Special provision for full value of consideration in certain cases. (1) Where the consideration received or accruing as a result of the transfer by an assessee of a capital asset, being land or building or both, is less than the value adopted or assessed [or assessable] by any authority of a State Government (hereafter in this section referred to as the "stamp valuation authority" ) for the purpose of payment of stamp duty in respect of such transfer, the value so adopted or assessed [or assessable] shall, for the purposes of section 48, be deemed to be the full value of the consideration received or accruing as a result of such transfer.

(2) Without prejudice to the provisions of sub-section (1), where—

(a)	the assessee claims before any Assessing Officer that the value adopted or assessed[or assessable] by the stamp valuation authority under sub-section (1) exceeds the fair market value of the property as on the date of transfer;
(b)	the value so adopted or assessed [or assessable] by the stamp valuation authority under sub-section (1) has not been disputed in any appeal or revision or no reference has been made before any other authority, court or the High Court,
	the Assessing Officer may refer the valuation of the capital asset to a Valuation Officer and where any such reference is made, the provisions of sub-sections (2), (3), (4), (5) and (6) of section 16A, clause (i) of sub-section (1) and sub-sections (6) and (7) of section 23A, sub- section (5) of section 24, section 34AA, section 35 and section 37 of the Wealth-tax Act, 1957 (27 of 1957), shall, with necessary modifications, apply in relation to such reference as they apply in relation to a reference made by the Assessing Officer under sub-section (1) of section 16A of that Act.

[Explanation 1].—For the purposes of this section, "Valuation Officer" shall have the same meaning as in clause (r) of section 2 of the Wealth-tax Act, 1957 (27 of 1957).

[Explanation 2.—For the purposes of this section, the expression "assessable" means the price which the stamp valuation authority would have, notwithstanding anything to the contrary contained in any other law for the time being in force, adopted or assessed, if it were referred to such authority for the purposes of the payment of stamp duty.]

(3) Subject to the provisions contained in sub-section (2), where the value ascertained under sub-section (2) exceeds the value adopted or assessed [or assessable] by the stamp valuation authority referred to in sub-section (1), the value so adopted or assessed [or assessable] by such authority shall be taken as the full value of the consideration received or accruing as a result of the transfer.]"

"69A. Unexplained money, etc. Where in any financial year the assessee is found to be the owner of any money, bullion, jewellery or other valuable article and such money, bullion, jewellery or valuable article is not recorded in the books of account, if any, maintained by him for any source of income, and the assessee offers no explanation about the nature and source of acquisition of the money, bullion, jewellery or other valuable article, or the explanation offered by him is not, in the opinion of the Assessing Officer, satisfactory, the money and the value of the bullion, jewellery or other valuable article may be deemed to be the income of the assessee for such financial year.

69B. Amount of investments, etc., not fully disclosed in books of account.- Where in any financial year the assessee has made investments or is found to be the owner of any bullion, jewellery or other valuable article, and the Assessing Officer finds that the amount expended on making such investments or in acquiring such bullion, jewellery or other valuable article exceeds the amount recorded in this behalf in the books of account maintained by the assessee for any source of income, and the assessee offers no explanation about such excess amount or the explanation offered by him is not, in the opinion of the Assessing Officer, satisfactory, the excess amount may be deemed to be the income of the assessee for such financial year.'

"142A. [Estimation of value of assets by Valuation Officer. (1) The Assessing Officer may, for the purposes of assessment or reassessment, make a reference to a Valuation Officer to estimate the value, including fair market value, of any asset, property or investment and submit a copy of report to him.

(2)	The Assessing Officer may make a reference to the Valuation Officer under sub-section (1) whether or not he is satisfied about the correctness or completeness of the accounts of the assessee.
(3)	The Valuation Officer, on a reference made under sub-section (1), shall, for the purpose of estimating the value of the asset, property or investment, have all the powers that he has under section 38A of the Wealth-tax Act, 1957 (27 of 1957).
(4)	The Valuation Officer shall, estimate the value of the asset, property or investment after taking into account such evidence as the assessee may produce and any other evidence in his possession gathered, after giving an opportunity of being heard to the assessee.
(5)	The Valuation Officer may estimate the value of the asset, property or investment to the best of his judgment, if the assessee does not co-operate or comply with his directions.
(6)	The Valuation Officer shall send a copy of the report of the estimate made under sub-section (4) or sub- section (5), as the case may be, to the Assessing Officer and the assessee, within a period of six months from the end of the month in which a reference is made under sub-section (1).
(7)	The Assessing Officer may, on receipt of the report from the Valuation Officer, and after giving the assessee an opportunity of being heard, take into account such report in making the assessment or reassessment.

Explanation. — In this section, "Valuation Officer" has the same meaning as in clause (r) of section 2 of the Wealth- tax Act, 1957 (27 of 1957).]'

8. From the bare reading of aforesaid statutory provisions, it appears that Section 50C of the Act which has been introduced is applied to a seller and not to the purchaser and therefore, ascertaining an amount of capital gain, it will be the tax in the hands of seller on the basis of jantri price and making a reference and inquiring from the petitioner is of no avail and to this, learned counsel has rightly relied upon a decision of this Court in case of CIT v. Sarjan Realities Ltd. [2014] 220 Taxman 112/[2013] 40 taxmann.com 398. The relevant extract of the said decision reads as under :—

"6. As is well known, section 50C of the Act makes special provision for full value of consideration in certain cases. Sub-section (1) thereof provides that where the consideration received or accruing as a result of the transfer by an assessee of a capital asset, being land or building or both, is less than the value adopted or assessed or assessable by any authority of a State Government for the purpose of stamp duty in respect of such transfer, such value shall for the purpose of section 48, be deemed to be the full value of the consideration received or accruing as a result of such transfer.

7. Clearly thus, section 50C of the Act by a deeming fiction substitutes the consideration received on sale of a capital asset by stamp duty valuation. Such deeming fiction, however, is applicable only in case of a seller for the purpose of section 48 of the Act."

9. From the aforesaid decision, it is quite clear that provision of Section 50C would apply to a seller only and not the purchaser and therefore, to make reference casually in case of petitioner, who is purchaser, is not just and proper.

10. The other relevant statutory provision which is required to be considered is Section 69 of the Act. Section 69 of the Act pertains to unexplained investment, whereas Section 69A pertains to unexplained money etc. and likewise, Section 69B pertains to amount of investment etc. not fully disclosed in books of accounts and therefore, these statutory provisions are related to a case where assessee had made certain investment or expenditure or is found to be the owner of any bullion, jewellery etc. and the same are not properly recorded in the books of account. This Court in a decision in case of Me and Mummy Hospital (supra), while referring to these statutory provisions read with Section 142A of the Act, has held that unless there is prima facie application of Section 69 of the Act, reference to the valuer under Section 142A of the Act is simply not permissible. It is only when there is some material before the Assessing Officer to hold that in case of an assessee falls under Section 69, as the case may be, that he can, to estimate the value of such unexplained investment or expenditure in bullion, jewellery, etc. and can call for the report of the valuer and therefore, the Division Bench of this Court has observed that initial starting point for triggering a reference to the valuer, therefore, has to be invocation of Section 69 of the Act and therefore, unless and until such contingencies are reflecting on the record, reference under Section 142A of the Act cannot be resorted to. Relevant paragraphs of the said decision which have analyzed entire scheme of Section 142A of the Act are required to be reproduced hereinafter :

"10. Power of the Assessing Officer for making a reference to the Valuation Officer seeking the estimate flows from sub-section (1) of section 142A. It provides that for the purposes of making assessment or reassessment under the 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 or fair market value of any property referred to in sub-section (2) of section 56 is required to be made, such reference to make an estimate of such value can be made to the Valuation Officer.

16. The Valuer's report under section 142A of the Act is for the purpose of estimating value of such 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 of the Act. Unless, therefore, there is prima facie application of sections 69, 69A and 69B of the Act, reference to the valuer is simply not permissible. It is only when there is some material before the Assessing Officer to hold that in case of an assessee falls under sections 69, 69A and 69B as the case may be, that he can, to estimate the value of such unexplained investment or expenditure in bullion, jewellery etc., call for the report of the Valuer. Initial starting point for triggering a reference to the Valuer, therefore, has to be invocation of sections 69,69A or 69B of the Act. It is only when any of these provisions come into play that the Assessing Officer can resort to section 142A for estimating the value of such investment or expenditure. Sequence cannot be put in the reverse. In other words, the Assessing Officer would have no authority to call for the report of the Valuer under section 142A to judge whether there has been any unexplained investment or expenditure as referred to in sections 69, 69A and 69B of the Act. It would only amount to fishing inquiry and not investigation under section 142A of the Act. In our opinion, the scheme of the provisions when read harmoniously would lead to a situation where in case the Assessing Officer, during the pendency of assessment or reassessment, is of the opinion that sections 69, 69A and 69B of the Act can be invoked; in order to estimate such unexplained investment or expenditure in acquisition of bullion, jewellery or valuable article, he can resort to valuation by the Valuation Officer in terms of sub-section (1) of section 142A of the Act. In the present case, no such material emerges from the record. To the contrary, neither from the order of reference nor from any other material, the respondent could point out that the Assessing Officer had invoked the provisions of sections 69,69A or 69B of the Act and in the process desired to obtain the estimate of unexplained investment or expenditure and for which purpose DVO's report was called. He simply gave no reasons in the order. No independent reasons, either flowing from the file or even in the form of an affidavit assuming the same would be permissible, are brought to our notice. Thus quite apart from the petitioner's grievance that the Assessing Officer merely acted under the directives of the superior and did not, on his own application of mind, desire to call for the report, in absence of any valid reasons for making a reference, in our opinion, the order must fail."

11. Considering the aforesaid proposition of law laid down by this Court, it appears that here also, the Assessing Officer had no cogent material available nor to satisfy himself about the requirement of Section 69 of the Act and therefore, in the absence of it, the reference could not have been made under Section 142A of the Act. Simply because prior to 2 days the reference order came to be made, it cannot be said that the action of making reference during the period of assessment is justified. In fact, no purpose would be served to make such reference especially when the contingencies reflected hereinabove are not satisfied on the background of present facts. Therefore, considering this set of circumstance, we are of the opinion that the action of making reference is not tenable.

12. As against that, learned counsel for the revenue has heavily relied upon a decision in case of Bharathi Cement Corpn (P.) Ltd. (supra). We have gone through the said decision and found that the case of Bharathi Cement Corpn (P.) Ltd. (supra) was altogether on a different set of circumstance from the present one. In that case, the Assessing Officer was of the view that despite several reminders, the assessee had not produced any material and just dragged on the time so as to see that the final assessment cannot be undertaken and therefore, in the background of that particular case, the issue was dealt with of Section 142A of the Act. Again, in the said decision, there was a civil construction work was also undertaken by the assessee, whereas in the present case the property has been purchased by the petitioner in as it is manner. It is also reflecting from the said decision that well before time, the assessment period is getting over, reference came to be made by issuing notice in the month of November,2011 and therefore, the background of the facts is quite distinct from that of case on hand. Therefore, we are of the opinion that no much reliance is possible to be made on the proposition of the said decision. No doubt, it is true that Section 142A of the Act can be resorted to even during the assessment or after assessment but, at the same time, while making said reference, the officer has to satisfy the conditions precedent which are be reflected in relevant statutory provisions, which in the present case are completely missing and therefore, we are of the opinion that no such action is permissible in law. We are of the opinion further that ratio laid down by this Court in case of Me and Mummy Hospital (supra) is squarely covering the issue and almost in similar set of circumstance, this Court has taken a view, hence we see no reason to deviate from the proposition laid down by the said decision and therefore, the impugned action initiated by the authorities deserves to be quashed.

13. Upon considering the materials on records and the contentions raised by respective parties and in view of the aforesaid proposition of law laid down by the cases which have been referred, we are of the opinion that the action of making reference is not sustainable in the eye of law and therefore, we hereby quash and set aside the communication dated 29.12.2010 as also the consequent communication dated 10.3.2011 and 26.4.2011 respectively. The petition is allowed to the aforesaid extent. Rule is made absolute.