Department has filed these two Misc. Applications under section 254(2) of Income-tax Act, 1961, in ITAT's order dated 9-11-2004, passed in ITA Nos. 1399 and 1400/Alld 1998 for assessment years 1995-96 and 1996-97. 2. Department has stated in above application that ITAT has dismissed appeals filed by Department in view of decision pronounced by Apex Court in case of Smt. Amiya Bala Paul v. CIT [2003] 262 ITR 407. It is stated in applications that reference to Valuation Cell on investment made by assessee in construction of property situated at 185-B, Dada Nagar, Kanpur, for determining cost of construction in property was proper and justified. Therefore, order of Tribunal requires rectification in dismissing appeals filed by Department on basis of above decision of Apex Court, namely, Smt. Amiya Bala Paul's case (supra). In applications, Department has placed reliance on following decisions:- (i) Addl. CIT v. India Tin Industries (P.) Ltd. [1987] 166 ITR 454 (Kar.). (ii)CIT v.S. Teja Singh [1959] 35 ITR 408 (SC). (iii)Maneklal Vallabhdas Parikh & Sons v. CIT [1969] 72 ITR 637 (Guj.). 3. During course of hearing of applications, ld. D.R. submitted that Assessing Officer was competent to make reference to Valuation Cell to ascertain value of investment in above property in view of section 142A of Income-tax Act, 1961. He submitted that said section has been inserted by Finance Act, 2004, effective from 15-11-1972. He submitted that order of Tribunal dated 9-11-2004, be recalled and additions made by Assessing Officer on basis of DVO's report be confirmed. On other hand, ld. Authorized Representative of assessee submitted that cases cited by Department in Misc. Applications are not relevant. H e further submitted that Assessing Officer made reference to DVO under section 131(1) of Income-tax Act, 1961, and Apex Court has held in case of Smt. Amiya Bala Paul (supra) that reference to DVO under section 131(1)(d) of Act is not legal. Hence addition made by Assessing Officer on basis of DVO's report is not justifiable. He further submitted that order passed by Tribunal is self-contained order and, therefore, there is no mistake, which could be rectified in applications filed by Department under section 254(2) of Income-tax Act, 1961. 4. We have carefully considered submissions of ld. Representatives of parties and have also perused earlier order of Tribunal dated 9-11- 2004, alongwith applications filed by Department and earlier orders of authorities below. We observe that above property No. 185-B-Dada Nagar, Kanpur, was under construction from December, 1994 to September, 1996, and total investment in said building was stated by assessee at Rs. 20,10,760. year-wise investment declared by assessee is as under:- Period Year-wise Investment 12/94 to 3/95 Rs. 10,13,662 4/95 to 3/96 Rs. 8,99,649 4/96 to 9/96 Rs. 97,449 Total Rs. 20,10,760 We observe that Assessing Officer made reference to DVO to value total cost in building and DVO estimated total cost of building at Rs. 27,91,300. year-wise estimate made by DVO is as under:- Period Estimated year-wise investment 12/94 - 3/95 14,07,281 4/95 - 3/96 12,48,848 4/96 - 9/96 1,35,171 Total 27,91,300 We observe that assessee also filed valuation report of Government approved valuer, who valued investment in said building at Rs. 17,08,000 from December, 1994 to 30-3-1996, i.e., in assessment years 1995-96 and 1996-97. We observe that Assessing Officer made addition o n basis of DVO's report was Rs. 3,93,620 for assessment year 1995-96 and addition at Rs. 3,49,149 in assessment year 1996-97 under section 69B of Act. said additions were made by Assessing Officer in assessment years 1995-96 and 1996-97 by taking difference in cost of construction disclosed by assessee and cost estimated by DVO. We further observe that First Appellate Authority reduced cost of investment in above premises to Rs. 21,83,330 as against Rs. 27,91,300 considered by Assessing Officer for all three assessment years i.e., assessment year in which investment was made by assessee for construction of above premises. We further observe that ld. CIT(A) has not given up break-up of investment in cost of construction of property for each of assessment year i.e., assessment years 1995-96, 1996- 97 and 1997-98, while estimating aggregated cost of investment in property at Rs. 21,83,330 as against Rs. 20,10,760 disclosed by assessee. 5. In appeals before Tribunal, Tribunal considered above facts and has held that reference made by Assessing Officer to DVO under section 131(1)(d) of Income-tax Act, 1961, to estimate cost of construction of above property is not legal as per decision of Apex Court in case of Smt. Amiya Bala Paul (supra). In above case, Apex Court has held that Departmental Valuer cannot be called upon by Assessing Officer to estimate cost of construction of property under section 131(1) of Act, and, if any, report is submitted by DVO, it cannot be relied upon by Assessing Officer in estimating cost of construction as said report cannot be said to be valid report. Tribunal has also relied upon decision of jurisdictional High Court in case of Dr. Avinesh Kumar Agarwal, 184 CTR 587, wherein also it was held that reference to DVO under section 131(1) of Act for estimating cost of construction was invalid reference. Tribunal has held that no addition can be made on basis of DVO's report, which has been obtained under section 131(1) of Act. In light of above findings of Tribunal, Department has filed application and has stated that in view of amendment made by Finance Act, 2004, by inserting section 142A of Act, which is effective from 15-11- 1972, DVO's report, obtained by Assessing Officer under section 131(1) of Act be deemed to be valid report and as such addition made by Assessing Officer be confirmed. At outset, we may state that cases relied upon by Department, as mentioned in applications and stated hereinabove (supra), we observe that said cases are not relevant as facts and issues involved in all these cases are not before us. However, we are also of considered view that DVO's report obtained by Assessing Officer under section 131(1)(d) of Act, could not be said to be report obtained by Assessing Officer under section 142A of Act. section 142A of Act, which has been inserted by Finance (No. 2) Act, 2004 reads as under:- Estimate by Valuation Officer in certain cases: '142A. (1) For purposes of making assessment or reassessment under this Act, where estimate of value of any investment referred to in section 69 or section 69B or value of any bullion, jewellery or other valuable article referred to in section 69A or section 69B is required to be made, Assessing Officer may require Valuation Officer to make estimate of such value and report same to him. (2) Valuation Officer to whom reference is made under sub-section (1) shall, for purposes of dealing with such reference, leave all powers that he has under section 38A of Wealth-tax Act, 1957 (27 of 1957). (3)** ** ** On perusal of above section, it is evident that Assessing Officer for purposes of making assessment or reassessment under this Act to estimate, inter alia, value of immovable property can call upon estimate, inter alia, value of immovable property can call upon Valuation Officer to make estimate of such value and report same to him. Sub-section (2) further provides that Valuation Officer to whom reference is made under sub-section (1) shall for purposes of dealing with such reference have all powers that he has under section 38A of Wealth-tax Act, 1957. Thus, it is evident that to obtain valid DVO's report, it is necessary that reference must have been made by Assessing Officer to estimate value, inter alia, of immovable property for purpose of assessment or reassessment under Act as per section 142A(1) of Act, particularly when Apex Court has already held in case of Smt. Amiya Bala Paul (supra) that Assessing Officer has no valid power to call upon DVO under section 131(1) of Act, to estimate cost of construction of property and report, if any submitted by Departmental Valuation Officer on reference made to him under section 131(1) of Act, cannot be relied upon by Assessing Officer in estimating cost of construction, as said report is not valid report. similar view has also been taken by jurisdictional High Court in case of Dr. Avinesh Kumar Agarwal (supra). We further observe that section 142A of Act does not contain any provision that report obtained by Assessing Officer from DVO on reference under section 131(1) of Act could be deemed to be report obtained on reference made under section 142A(1) of Act. In view of above, we hold that addition made by Assessing Officer on basis of DVO's report obtained under section 131(1) of Act could not be relied upon by Assessing Officer for making addition in investment of property in question under section 69B of Income-tax Act, 1961, for both assessment years, as said report was invalid report. Accordingly, Tribunal has rightly decided appeals by confirming orders of CIT(A). Therefore, we hold that there is no mistake apparent from said order of Tribunal dated 9-11-2004, and accordingly, both miscellaneous applications filed by Department are rejected. 6. Before we part with these Misc. Applications, it may be stated that similar applications filed by Department on identical issues and facts have been considered by Tribunal in case of ITO v. Jag Mohan Agarwal [M.A. No. 32 (Luck.) of 2005 arising out of ITA No. 569/Luck./02 for assessment year 1998-99], in case of ITO v. Jagdish Kumar Agarwal [M.A. No. 50/Luck. of 2005 arising out of ITA No. 105/ Luck./02 for assessment year 1998-99] and also in case of Smt. Pramila Awasthi [M.A. Nos. 82 (Luck.) of 2005 d t e d 3-6-2005], and in case of Smt. Sunita Chaurasia [M.A. No. 77/Luck./2005 dated 20-5-2005], and same have been dismissed by Tribunal holding that Assessing Officer had not obtained valuation report under section 142A of Income-tax Act, 1961 but obtained valuation report on reference made under other provisions of Act and, therefore, Assessing Officer was not justified to make addition on basis of DVO's report as said report(s) was not legally obtained and as such no reliance could be placed thereon as per decision of Apex Court in case of Smt. Amiya Bala Paul (supra). 7. In result, both applications filed by Department are dismissed. Per S.V. Mehrotra, Accountant Member.-In these miscellaneous applications, Department has sought rectification of Tribunal's order dated 9- 11-2004 on ground that in view of insertion of section 142A with retrospective effect from 15-11-1972, reference made by Assessing Officer to DVO was proper and due to non-consideration of section 142A, mistake has crept into order of Tribunal. Ld. Judicial Member is of view that since section 142A of Act does not contain any provision that report obtained by Assessing Officer from DVO on reference under section 131(1) of Act could be deemed to be report obtained on reference made under section 142A(1) of Act, therefore, same could not be relied upon by Assessing Officer for making addition in investment of property in question under section 69B of Act as said report was invalid report. 2. After deliberate consideration of issue, I am unable to persuade myself to agree with view taken by ld. Judicial Member and being in respectful disagreement with same, proceed to give my reasoning as under: 3. short point for consideration is whether report obtained by Assessing Officer can be relied upon or not in view of provisions of section 142A inserted by Finance (No. 2) Act of 2004 or not. Under Chapter IV of Income-tax Act, dealing with computation of capital gains, Assessing Officer is entitled to make reference to Valuation Officer under section 55A of Act with view to ascertaining fair market value of capital asset for purposes of this Chapter. Assessing Officer referred valuation of property to DVO by invoking his powers under section 131(1)(d) of Act. Hon'ble Supreme Court in case of Smt. Amiya Bala Paul (supra), inter alia, held that power of Assessing Officer under sections 131(1) and 133(6) is distinct from and does not include power to refer matter to Valuation Officer under section 55A. It was held that power to refer any dispute to Valuation Officer were already available in sections 131(1), 133(6) and 142(2), there was no need to specifically empower Assessing Officer to do so in certain circumstances under section 55A. It was held that section 55A having expressly set out circumstances under and purposes for which reference can be made to Valuation Officer, there was no question of Assessing Officer invoking general powers of enquiry to make reference under different circumstances and for other purposes. It was held that such reference cannot be supported by reference to section 131(1) of Act read with order XXVI, rule 9 of CPC, since consequence of reference to Valuation Officer under section 55A of Act and of commission issued under section 75 read with order XXVI rule 9 of Code are different. 4. Finance (No. 2) Act, 2004 with retrospective effect from 15-11-1972 inserted section 142A which reads as under: '142A. Estimate by Valuation Officer in certain cases.-(1) For purposes of making assessment or reassessment under this Act, where estimate of value of any investment referred to in section 69 or section 69B or value o f any bullion, jewellery or other valuable article referred to in section 69A or section 69B is required to be made, Assessing Officer may require Valuation Officer to make estimate of such value and report same to him. (2) Valuation Officer to whom reference is made under sub-section (1) shall, for purposes of dealing with such reference, have all powers that he has under section 38A of Wealth-tax Act, 1957 (27 of 1957). (3) On receipt of report from Valuation Officer, Assessing Officer may, after giving assessee 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 assessment made on or before 30-9-2004, and where such assessment has become final and conclusive on or before that date except in cases where reassessment is required to be made in accordance with provisions of section 153A.' 5. memorandum explaining provisions in Finance (No. 2) Bill, 2004, 268 ITR 198 (statute) reads as under: 'Estimates by Valuation Officer in certain cases: For determining cost of construction of properties, Assessing Officer has been taking assistance of Valuation Officer by exercising his power vested in him under section 131 of Income-tax Act, which provides that Assessing Officer shall have same powers as are vested in Court under Code of Civil Procedure, 1908, when trying suit. One such power is of 'issuing commission' provided under clause (d) of sub-section (1) of said section which inter alia empowers Court 'to make local investigation' and also 'to hold scientific, technical or expert investigation'. authority of Valuation Officer was created under Wealth-tax Act by Taxation Laws (Amendment) Act, 1972, with effect from 15-11-1972. scope of power under section 131 vested in Assessing Officer to make reference to Valuation Officer for estimating cost of construction of properties has been matter of different legal interpretation. With view to remove any doubt in this regard, it is proposed to insert new section 142A, with retrospective effect from 15-11-1972, so as to clarify that Assessing Officer has and always had power to make reference to Valuation Officer. Sub-section (1) of proposed section provides that where estimate of value of any investment referred to in section 69 or section 69B or value of any bullion, jewellery or other valuable article referred to in section 69A or section 69B is required for purposes of making any assessment or re- assessment, Assessing Officer may require Valuation Officer to make estimate of same and report to Assessing Officer. Sub-section (2) of proposed section provides that Valuation Officer to whom such reference is made under sub-section (1) shall, for purpose of dealing with such reference, have all powers that he has under section 38A of Wealth-tax Act, 1957. Sub-section (3) of proposed section provides that on receipt of report from Valuation Officer, Assessing Officer may after giving assessee opportunity of being heard, take into account such report in making such assessment or re-assessment. As intention of inserting new section 142A retrospectively is not to unsettle cases already decided (except in cases where re-assessment is required to be made under section 153A), it is proposed to provide proviso to new section to effect that provisions of same shall not apply in respect of assessment made on or before 30-9-2004 and where such assessment has become final and conclusive on or before that date. amendment will take effect retrospectively from 15-11-1972.' 6. proviso to section 142A takes out from purview of this section all concluded assessments on or before 30-9-2004 and consequently it applies to all pending assessments. This section has been incorporated in Chapter XIV dealing with procedure for assessment. It is part of enquiry to be made before assessment is made. This is procedural section and since it has specifically been made retrospective in operation, it is deemed to be in existence for all times from 15-11-1972. 7. In this regard, I may quote from Principles of Statutory Interpretation by Hon'ble justice G.P. Singh, Eighth Edition 2001 wherein at page 405 it has been observed as under: '(iii) Statute dealing with procedure - In contrast to statutes dealing with '(iii) Statute dealing with procedure - In contrast to statutes dealing with substantive rights, statutes dealing with merely matters of procedure are presumed to be retrospective unless such construction is textually inadmissible. As stated by LORD DENNING: 'The rule that act of Parliament is not to be given retrospective effect applies only to statutes which affect vested rights. It does not apply to statutes which only alter form of procedure or admissibility of evidence, or effect which courts give to evidence.' If new Act affects matters of procedure only then prima facie it applies to all actions pending as well as future. In stating principle that 'a change in law of procedure operates retrospectively and unlike law relating to vested right is not only prospective, Supreme Court has quoted with approval reason of rule as expressed in MAXWELL: 'No person has vested right in any course of procedure. He has only right of prosecution or defense in manner prescribed for time being by or for Court in which case is pending, and if, by Act of Parliament mode of procedure is altered, he has no other right than to proceed according to altered mode'.' 8. In my opinion, non-reference of section 131(1)(d) in newly inserted section 142A is of no consequence because as already noted earlier, it is procedural section only. This section has been incorporated in Act in order of overcome consequences as obtaining after decision of Hon'ble Supreme Court in case of Smt. Amiya Bala Paul (supra). As noted earlier, in Amiya Bala Paul's case (supra) Hon'ble Supreme Court had held that since section 55A has specifically been incorporated, therefore, powers under section 131(1)(d) or 133(6) could not be utilized. In line with this reasoning of Hon'ble Supreme Court, Legislature introduced separate section in Chapter dealing with procedure of assessment in order to set at rest all legal disputes. But at same time, by inserting proviso also in section took out of its purview concluded assessments. 9. Here, principles of purposes construction as laid down in Heydon's case have to be applied. It has to be found out as to what was law before insertion of present section 142A and what was mischief or defect for which law did not provide. It has to be examined what was remedy that Act had provided and what is reason of remedy. rule is that Courts must adopt that construction which shall suppress mischief and advance remedy. It is well settled principles of judicial interpretation that interpretation which advances object of legislation is to be followed. If we apply these principles, it is clear that section 142A has been brought on statute in order to regularize references made by DVO in all pending proceedings. 10. In this regard, I may also refer to decision of Hon'ble Bombay High Court in case of CIT v. May & Baker India (P.) Ltd. [1991] 192 ITR 239. In this case question as framed before Hon'ble Bombay High Court was whether, on facts and in circumstances of case, Tribunal was justified in holding that amount of Rs. 5,34,000 (being difference between Rs. 8,65,000 and Rs. 3,31,000) also accrued as liability during previous year under payment of Gratuity Act, 1972. facts of case were that assessee was company. assessment year involved was 1973-74 for which previous year ended on 31-12-1972. Payment of Gratuity Act, 1972, came into force some time in October, 1972. According to assessee, it became liable to pay gratuity to its employees under statute for first time during previous year. It made provision of Rs. 8,65,000 in respect of its gratuity liability. break-up of amount was Rs. 3,31,000 as gratuity liability of previous year and remaining sum of Rs. 5,34,000 as liability of past years. assessee claimed aforesaid provision as deduction on revenue account. Assessing Officer allowed assessee's claim to extent of Rs. 3,31,000 only and disallowed claim for balance amount of Rs. 5,34,000. Following Allahabad High Court decision in case of Madho Mahesh Sugar Mills (P.) Ltd. v. CIT [1973] 92 ITR 503, Appellate Assistant Commissioner accepted assessee's claim that entire gratuity liability had accrued during previous year as liability had arisen under Payment of Gratuity Act, 1972, which had come into force during previous year only. Tribunal dismissed revenue's appeal for more or less identical reasons. Section 40A(7) was introduced in Income-tax Act, with retrospective effect from 1-4-1973, by Finance Act, 1975, on 12-5-1975. Since assessment order and appellate order of Appellate Assistant Commissioner were completed long before insertion of sub-section (7) in section 40A and even order of Tribunal was passed on 24-3-1975, this provision was not, rather could not have been considered by any of authorities below. For considering whether and to what extent provisions of section 40A(7) inserted with retrospective effect are attracted to assessee's claim for deduction, so many aspects of matter will require examination. This, according to him could not be legally done at reference stage. After considering detailed submissions, Hon'ble High Court observed as under: 'We have considered rival contentions carefully. It is not in serious dispute that liability in respect of gratuity has, both in respect of year under reference as well as for past year, accrued during previous year as Payment of Gratuity Act, under which liability arose, itself came on statute book in October, 1972, i.e., during previous year. only question that requires consideration, therefore, is whether Department can or cannot press into service provisions of section 40A(7) before this court in reference proceedings in support of its contention that provision for gratuity is not allowable deduction. In our judgment, it is not really necessary to go into larger question in this case. question of deduction in respect of gratuity liability was, admittedly, considered by departmental authorities and Tribunal under section 37. disallowance was made by Income-tax Officer on footing that gratuity liability for past years did not accrue or arise during previous year. disallowance was deleted by Appellate Assistant Commissioner and Tribunal also on sole ground that such liability had arisen during previous year. Having regard to facts and circumstances of case and in particular fact that provision came on statute book with retrospective effect after departmental authorities as well as Tribunal had passed their respective orders, question should be reframed to bring out real controversy before authorities below and then answered. It will then be for Tribunal to pass such orders as are necessary to dispose of case conformably to such judgment. proper question, in our opinion, is: 'Whether, on facts and in circumstances of case, Tribunal was justified in holding that amount of Rs. 5,34,000 (being difference between Rs. 8,65,000 and Rs. 3,31,000) also accrued as liability during previous year under Payment of Gratuity Act, 1972?' We reframe question accordingly. As stated by us above, there is not much dispute between parties that so far as liability is concerned, statute having come into force during previous year itself, it has to be held that entire liability including aforesaid amount of Rs. 5,34,000 accrued during previous year, Accordingly, we answer reframed question in affirmative and in favour of assessee.' 11. Thus, Hon'ble High Court though agreed that liability for payment of gratuity had accrued in view of provisions of Payment of Gratuity Act, it directed Tribunal to decide issue in accordance with law after taking into consideration certain provisions which had come on statute book which were applicable in year under reference. Therefore, if at reference stage, Hon'ble High Court held that if provision had been incorporated with retrospective effect it has to be given due effect. 12. In my humble opinion if it is held that non-reference of section 131(1)(d) will not validate references made earlier then proviso to section 142A will become redundant. It is well settled law that no law is brought in by legislation which is redundant. Therefore, in my humble opinion, it is to be held in all such cases where assessment have not attained finality, references to Valuation Officer will be deemed to be under section 142A and not under section 131(1)(d). 13. In view of aforementioned discussion, I am respectfully not in agreement with reasoning given by learned J.M. for dismissing miscellaneous applications filed by Department on this legal issue. I, therefore, allow these miscellaneous applications and hold that Assessing Officer was justified in considering DVO's report. REFERENCE UNDER SECTION 255(4) OF INCOME-TAX ACT, 1961 Since there is difference of opinion between Members of Bench, w e state following point of difference and refer same to Hon'ble President of Income-tax Appellate Tribunal, with request that following question may be referred to Third Member:- 'Whether on facts and in circumstances of case, ld. Judicial Member is justified in dismissing application(s) filed by Department for recall of order dated 9-11-2004, passed in ITA Nos. 1399 & 1400 Alld/1998 or ld. A.M. is justified in allowing application(s) filed by Department to recall order dated 9-11-2004, in above appeals?' Per S.V. Mehrotra, Accountant Member. - In my view following question be referred:- 'Whether on facts and in circumstances of case, in view of newly inserted provisions of section 142A with retrospective effect from 15-11- 1972 by Finance (No. 2) Act, 2004, order dated 9-11-2004, passed in ITA Nos. 1399 & 1400/Alld/1998 should not be recalled as held by ld. J.M. or be recalled as held by ld. A.M.?' THIRD MEMBER ORDER Per Pradeep Parikh, Vice President . - Since there is difference of opinion between members who heard these applications, matter was referred to Hon'ble President under section 255(4) of Income-tax Act, 1961 (the Act). Vide intimation dated 24-11-2005, Hon'ble President has been pleased to nominate me as Third Member and hence I proceed to resolve point/s of difference arising in said applications. point of difference as proposed by ld. J.M. is as follows:- 'Whether on facts and in circumstances of case, ld. Judicial Member is justified in dismissing application(s) filed by Department for recall of order dated 9-11-2004, passed in ITA Nos. 1399 & 1400/Alld/1998 or ld. A.M. is justified in allowing application(s) filed by Department to recall order dated 9-11-2004, in above appeals?' ld. A.M. has preferred to couch difference in following words:- 'Whether on facts and in circumstances of case, in view of newly inserted provisions of section 142A with retrospective effect from 15-11- 1972 by Finance (No. 2) Act, 2004, order dated 9-11-2004, passed in ITA Nos. 1399 & 1400/Alld/1998 should not be recalled as held by ld. J.M. or be recalled as held by ld. A.M.?' In substance, there is no difference in above two questions. However, since two learned members have not agreed on framing of question itself, I propose to reframe question as follows which will bring out point of difference quite succinctly:- 'Whether on facts and in circumstances of case, applications filed by Department should be dismissed or same should be allowed by recalling order of Tribunal in view of provisions of section 142A of Income-tax Act, 1961?' 2. brief background leading to above controversy will not be out of place here. assessee constructed building during period December, 1994 to September, 1996, in which total sum of Rs. 20,10,760 was shown to have been invested. Assessing Officer referred matter to Departmental Valuation Officer (DVO) who estimated cost of construction at Rs. 27,91,300. As result, Assessing Officer made addition of Rs. 3,93,620 in assessment year 1995-96 and of Rs. 3,49,149 in assessment year 1996-97 under section 69B of Act. In first appeal, CIT(A) reduced cost of construction to Rs. 21,83,330 and granted consequential relief to assessee. Being aggrieved by this reduction, department preferred appeals to Tribunal for two years under consideration. assessee did not prefer any appeal. Tribunal vide its order dated 9-11-2004, dismissed appeals of revenue holding that Assessing Officer cannot refer matter to valuation cell for estimating cost of construction. In doing so, Tribunal had followed judgment of Supreme Court in case of Smt. Amiya Bala Paul (supra). 3. Subsequently, section 142A was inserted in Act by Finance (No. 2) Act, 2004. Since said provision was given retrospective effect from 15-11- 1972, Department filed present miscellaneous applications under section 254(2) of Act contending that by virtue of said provision, since action of Assessing Officer to refer matter to valuation cell stands validated, order of Tribunal suffers from mistake apparent on record and hence needs rectification. ld. J.M. in his order proposed dismissal of departmental applications. gist of his reasoning is that to obtain valid report from DVO reference must have been made under section 142A. report obtained under section 131(1) cannot be deemed to have been obtained under section 142A and hence report obtained under section 131(1) cannot be termed as valid report as held in case of Smt. Amiya Bala Paul (supra). On other hand, ld. A.M. held reference made by Assessing Officer under section 131(1) to be valid. His reasoning is that 'non- reference' of section 131(1)(d) in newly inserted section 142A is of no consequence because it is merely procedural section. According to him, separate section was incorporated keeping in line with reasoning of Supreme Court as was case with section 55A. But at same time, by inserting proviso, it took out of its purview concluded assessments. ld. A.M. finally concluded that proviso to section 142A cannot be rendered redundant merely on account of non-reference of section 131(1)(d) in section 142A. 4. After apprising about facts, ld. D.R. stressed upon applicability of section 142A since it had retrospective operation with effect from 15-11-1972. It was contended that since appeals filed by department were pending as on 30-9-2004, assessment cannot be said to have been finalized and hence provision was applicable. In support of argument that assessment is deemed to pending till Tribunal decides appeal, ld. D.R. relied on judgment of Gujarat High Court in case of CIT v. Mayur Foundation [2005] 274 ITR 562. Further, it was contended that speech of Finance Minister can be relied upon to throw light on object and purpose of particular provisions introduced by Finance Bill. For this proposition, judgment of Supreme Court in case of Kerala State Industrial Development Corpn. Ltd. v. CIT [2003] 259 ITR 51 was relied upon. It was argued that Memorandum explaining provisions of Bill clearly spelt out object and purpose of section 142A as per which it was to be applicable to all assessments pending as on 30-9-2004 and hence section 142A was applicable to present case as well. 5. learned counsel firstly relied on judgment of Allahabad High Court in case of Dr. Avinesh Kumar Agarwal (supra) to contend that reference made under section 131(1) was not valid. Next judgment relied upon was that of Punjab & Haryana High Court in case of CIT v. Krishan Lal Dua [2005] 277 ITR 477 to contend that section 142A was inapplicable except in cases where reassessment was to be made under section 153A of Act. In substance, argument of learned counsel was that since reference was under section 131(1) and not under section 142A, latter had no applicability and hence in terms of ratio laid down in case of Amiya Bala Paul (supra) reference was invalid and hence order of Tribunal contained no mistake rectifiable under section 254(2) of Act. 6. Since it was important legal issue which was being debated, I also sought help of other counsel present in court as amicus curie. Shri Kanchan Kaushal extended his help for which I am thankful. His contention was that section 142A was applicable only for purpose of estimating value of assets referred to in sections 69,69A and 69B of Act. Hence, before applying section 142A, it was incumbent that conditions for applying provisions of sections 69,69A or 69B are fulfilled. Unless conditions mentioned in those sections are fulfilled, section 142A cannot have any applicability. It was further contended that proviso has to be applied in toto and that it cannot be split. Therefore, contention was that proviso to section 142A was applicable only in case of reassessment to be made under section 153A and not otherwise. It was also his contention that since there was no reference to section 131 in section 142A, latter was not applicable where reference was made under section 131 of Act. Mr. Kaushal's final argument was that if section 131 has to be read in section 142A, then it was moot question as to why new provision was made applicable only with effect from 15-11-72 even when section 131 was on statute book prior to 15-11-1972. 7. I have duly considered rival contentions and have carefully perused proposed orders of my two learned brothers. After due consideration, I am inclined to agree with view taken by ld. Accountant Member (A.M.). At outset, it may be mentioned that I am in total agreement with reasoning of ld. A.M. However, in addition, I proceed to give additional reasons and also to elaborate reasons given by ld. A.M. 8. First, let me deal with decisions relied upon on behalf of assessee. first decision relied upon is that of Allahabad High Court in case of Dr. Avinesh Kumar Agarwal (supra). This judgment was rendered in September, 2003, i.e., before insertion of section 142A, and hence, law declared in case of Amiya Bala Paul (supra) was followed. There cannot be any dispute over that. However, in present case we are concerned with issue whether law laid down in case of Amiya Bala Paul (supra) still applies in light of insertion of section 142A. In my view, judgment of Allahabad High Court cannot help us to resolve controversy with which we are presently concerned. 9. next judgment relied upon is that of Punjab & Haryana High Court in case of Krishan Lal Dua (supra). In this case, assessment was completed under section 143(1)(a) on 31-3-1995. There was no appeal against this assessment, nor was there any further assessment under section 143(3) of Act. It was in light of this fact that High Court held that as per proviso to section 142A, since assessment had become final before 30-9- 2004, section 142A could not be pressed into service. No doubt, in case before Punjab & Haryana High Court, case was reopened under section 147 on basis of DVO's report by issuing notice on 29-5-1997. Further, section 142A can be used for both, for assessment as well as for reassessment. But two situations have to be distinguished. Once when case is reopened under section 147, for purpose of making reassessment, Assessing Officer can refer matter of valuation to DVO after reopening assessment. This is one aspect of matter. On other hand, in case of Krishan Lal Dua (supra), case was reopened on basis of DVO's report. This is altogether different aspect of matter where section 142A cannot be pressed into service, and hence judgment of Punjab & Haryana High Court. Therefore, this judgment is of no avail to assessee. 10. Another argument raised in connection with same judgment was t h t section 142A cannot be used except for purpose of making reassessment under section 153A. argument to this effect was also separately raised by Mr. Kaushal stating that entire proviso has to be read in totality and that it cannot be split into pieces. I do agree that proviso has to be applied in toto. However, only for purpose of understanding true purport of proviso, let us split it in following manner: 'Provided that- nothing contained in this section shall apply in respect of assessment made on or before 30-9-2004, and where such assessment has become final and conclusive on or before that date, except in cases where reassessment is required to be made in accordance with provisions of section 153A.' straight proposition of Mr. Kaushal is that section 142A can be applied only where reassessment is to be made under section 153A, and according to him that is what High Court has also said. In my view, Mr. Kaushal has misread provision and consequentially observations of High Court also. What proviso provides for is that section 142A will not disturb those assessments which have become final on or before 30-9-2004. But section 142A can certainly disturb those cases where reassessments are to be made under section 153A even where assessments have become final and conclusive on or before 30-9-2004. As illustration, if in given case, assessment has become final, say on 1-9-2004, then section 142A cannot be pressed into service. Now in same case, if search has taken place, say on 1-10-2004, which entails reassessment, then section 142A can certainly be pressed into service and assessee cannot take shelter of proviso by contending that assessment in his case had become final before 30-9-2004. This, in my opinion, is true purport of proviso and High Court has also meant same thing. Thus, to say that section 142A applies only in case of reassessments under section 153A is too much over-simplification of provision. Accordingly, this argument is rejected. Neither of judgments relied upon by assessee can help resolve controversy. 11. next important argument of assessee is that section 142A can b e applied only when reference is made under that section and not where reference is made under section 131(1). absence of reference to section 131 in section 142A has lead to this argument. This is quite superficial way to read provision. It cannot be disputed that section 142A is procedural provision. It does not affect any vested right of assessee. It only deals with powers of Assessing Officer to make enquiry for purpose of assessment. doubt was whether as part of such enquiry, whether Assessing Officer had power to make reference to Valuation Officer. In case of Amiya Bala Paul (supra), Supreme Court held that section 131 cannot be said to include such power because where required, like section 55A, specific provision was made. With view to remove this doubt, Legislature enacted section 142A and gave it retrospective effect from 15-11-1972. This only means that section 142A is deemed to be on statute book from 15-11- 1972. In other words, right from fifteenth day of November, 1972, Assessing Officer had power to make reference to Valuation Officer. Obviously, since section 142A was not actually on statute book till it was inserted by Finance Act, 2004, power could not have been exercised by making specific reference to section 142A, but now when section 142A is inserted and when Legislature has clarified that said provision is deemed to be on statute book since 15-11-1972, exercise of power by Assessing Officer by reference to any other section does not affect any of vested rights of assessee. To further clarify point, after insertion of section 142A with retrospective effect, it cannot be disputed that Assessing Officer had power since 15-11-1972. If same power is exercised with reference to section 131, action of Assessing Officer cannot be held to be invalid. Five-Judge Constitution Bench of Supreme Court in case of L. Hazari Mal Kuthiala v. ITO [1961] 41 ITR 12 observed at page 16 of report that exercise of power will be referable to jurisdiction which confers validity upon it and not to jurisdiction under which it will be nugatory. Similarly, in case of Pournami Oil Mills v. State of Kerala [1987] 165 ITR 57 Supreme Court at page 61 of report observed that it is well-settled principle of law that where authority making order has power conferred upon it by statute to make order made by it and order is made without indicating provision under which it is made, order would be deemed to have been made under provision enabling making of it. In my opinion, same rule will apply with regard to exercise of power also. Thus, I agree with ld. A.M. that though power of reference may have been exercised under section 131 and though section 142A does not refer to section 131, still section 142A shall operate since it has retrospective operation from 15-11-1972. 12. next argument that why it is effective from 15-11-1972 even though section 131 was on statute book prior to that date is hardly relevant. simple reason is that under sub-section (2) of section 142A, reference has to be made to Valuation Officer who exercises powers under section 38A of Wealth-tax Act, 1957. This authority was created from 15-11-1972. Hence, effect of section 142A from 15-11-1972 and not before that. 13. remaining argument about conditions of sections 69,69A etc. to be fulfilled prior to applying section 142A is not at all relevant. Firstly, that is not part of difference I am called upon to resolve. Secondly, those sections are mere rules of evidence and do not in any way affect substantial rights of parties. 14. In final analysis, I agree with view taken by ld. A.M. matter may now be placed before regular Bench to dispose it of in accordance with majority opinion. ORDER B.R. Mittal, Judicial Member. - There was difference of opinion between Members of Bench and following question was referred to Third Member for his opinion:- By Judicial Member: 'Whether on facts and in circumstances of case, ld. Judicial Member is justified in dismissing application(s) filed by department for recall of order dated 9-11-2004, passed in ITA Nos. 1399 and 1400/Alld/1998 or ld. A.M. is justified in allowing application(s) filed by department to recall order dated 9-11-2004 in above appeals?' By Accountant Member: By Accountant Member: 'Whether on facts and in circumstances of case, in view of newly inserted provisions of section 142A with retrospective effect from 15-11- 1972 by Finance (No. 2) Act, 2004, order dated 9-11-2004, passed in ITA Nos. 1399 & 1400/Alld/1998 should not be recalled as held by ld. J.M. or be recalled as held by ld. A.M.?' 2. However, ld. Third Member has reframed question to ring out point of difference between Members constituting Division Bench as under:- 'Whether on facts and in circumstances of case, applications filed by department should be dismissed or same should be allowed by recalling order of Tribunal in view of provisions of section 142A of Income-tax Act, 1961?' 3. Hon'ble Vice President, Shri Pradeep Parikh, sitting as Third Member, by his opinion dated 29-6-2006 has concurred with view of Accountant Member who has allowed miscellaneous applications filed by department. 4. Therefore, in accordance with majority view, issue stands declared in favour of department. Accordingly, both miscellaneous applications filed by department are allowed. 5. In view of above, we recall Tribunal's order dated 9-11-2004 passed in ITA Nos. 1399 & 1400/Alld/1998 for assessment years 1995-96 and 1996-97 and direct Registry to fix aforesaid appeals for hearing before Bench after giving notices to both parties. *** DEPUTY COMMISSIONER OF INCOME TAX v. SHUBHAM INDUSTRIES