JUDGMENT S. K. Seth J. In this petition, only point for consideration is whether, respondents were justified in issuing commission in exercise of powers conferred by section 131(1)(d) of Income-tax Act, 1961. relevant facts in brief are as under. petitioner-company is builder and developer. In course of its business, petitioner-company constructed and developed multi storied building in Indore known as Chetak Chambers on R. N. Marg. Construction of said building commenced in year 1985 and was completed by March, 1994. It is case of petitioner, that all expenses and receipts were shown in returns of income as account books of relevant accounting years from 1984-85 onwards and from time to time assessment orders were passed. It is admitted position that to ascertain cost of construction during its progress as on March 31, 1992, then Assessing Officer had issued commission under section 131(1)(d) of Income-tax Act, 1961. As per report of District Valuation Officer ( DVO ) dated February 9, 1995, valuation was Rs. 2,87,68,500. matter was taken in appeal and valuation report submitted by District Valuation Officer was not accepted not only by Commissioner of Income-tax (Appeals) vide order dated March 31, 1995, but also by Income-tax Appellate Tribunal vide its order dated August 30, 2000, (annexure P-1) and that was end of matter. Thus, assessments were made up to accounting year 1997-98 and no assessment proceeding or appeal were pending on May 22, 2001, when Deputy Commissioner of Income-tax, Circle-I (1), Indore under section 131(1)(d) once again issued commission to District Valuation Officer to ascertain cost of construction of Chetak Chambers with copy endorsed to petitioner (annexure P-2). petitioner objected to issuance of commission to District Valuation Officer and in background of details of expenses and receipts as shown in reply (annexure P-3) requested to drop proceedings. It seems that before reply of petitioner could reach authorities, District Valuation Officer very next day i.e., May 23, 2001, issued notice (annexure P-4) to petitioner. By registered notice dated June 18, 2001, (annexure P-5), petitioner gave legal notice before filing present petition to challenge order dated May 22, 2001, (annexure P-2) and consequent notice dated May 23, 2001, (annexure P-4). respondents have filed their counter-affidavit to justify issuance of commission and consequent notice basically on ground that against order of Income-tax Appellate Tribunal dated August 30, 2000, Revenue had preferred appeal under section 260A of Act before this court on August 28, 2001, and in support of this contention respondents have replied upon notice of appeal-annexure R-1 filed along with reply. Thus, according to implication proceedings were pending to justify issuance of commission under section 131(1)(d) of Act. After having heard rival submissions of learned counsel for parties, this court is of view that this petition deserves to be allowed on short ground that respondents have failed to show that any assessment proceeding was pending before Assessing Officer on May 22, 2001, when Deputy Commissioner of Income-tax Circle-1, Indore issued commission under section 131(1)(d) of Act to District Valuation Officer. controversy is no longer res integra in view of recent Division Bench decision of this court in CIT v. Nevendram Ahuja reported in [2005] 197 CTR 462 (MP); [2007] 290 ITR 453. Chief Justice, R. V. Raveendran (as his Lordship then was), in elaborate decision, after considering various authorities, held that when no proceeding relating to assessment year 1990-91 in that case was pending as on November 29, 1989, reference by way of commission made to District Valuation Officer under section 131(1)(d) of Act was invalid. In that case, commission was issued long prior to commencement of assessment proceeding relating to assessment year 1990-91 and in that back drop considering scope and ambit of section 131(1)(d) of Act, it was held that: Section 131(1)(d) of Act provides that Assessing Officer shall have same powers as are vested in civil court under Code of Civil Procedure, 1908, when trying suit, in respect of matters enumerated including issue of commission. What is significant is use of words'when trying suit'. court can issue commission only during pendency of suit. As powers vested in Assessing Officer are same powers as are vested in court, it follows that Assessing Officer can issue commission only if proceeding is pending before him. (emphasis is added by us). above decision applies on all fours to question posed for decision in this petition. As pointed above, to ascertain cost of construction as on March 31, 1992, Assessing Officer sought on commission District Valuation Officer report and made certain additions in cost of construction, which were deleted by Commissioner of Income-tax (Appeals) and confirmed by Income-tax Appellate Tribunal in appeal preferred by Revenue. Thus, it is clear that no assessment proceeding was pending before Assessing Officer when Deputy Commissioner of Income-tax issued commission. Division Bench decision even answers plea taken by respondents to justify issuance of commission on pendency of so called appeal under section 260A of Act, though there is no material on record to show as to when such appeal was filed and what was its fate. Reliance placed on annexure R-1 is of no consequence because it does not indicate any thing, except date of appearance on September 18, 2001. respondents have not even cared to file substantial question of law on which their appeal was said to have been admitted. In absence of any cogent material, we have no hesitation to hold that reference by way of commission in exercise of powers under section 131(1)(d) of Act, in facts and circumstances of case in hand and consequent notice issued by District Valuation Officer, were without jurisdiction and as such could not be sustained. With result, this petition is allowed however, parties are left to bear their own costs. *** CHOUDHARY BUILDERS (P) LTD. v. PRINCIPAL SECRETARY, UNION OF INDIA & ORS.