Asn v. Asn

IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.7214 OF 2013 Shri. Dhanrajmal Radhakisandas Nagpal...Petitioner.vs. Commissioner of Income Tax III,Pune and others...Respondent. WITH WRIT PETITION NO.7215 OF 2013 Shri. Laxmandas Radhakisandas Nagpal...Petitioner.vs. Commissioner of Income Tax III Puneand ors...Respondents. Mr. Jaydeep Deo for the Petitioners in both the petitions.Mr. Tejveer Singh for Respondent Nos. 1 and 2 in both the petitions. CORAM : M. S. SANKLECHA AND N.M.JAMDAR, JJ.DATE : O9 SEPTEMBER 2014 PC: At the request of the learned Counsel for the parties these petitions are taken for final disposal at the stage of admission. 2)By these two petitions under Article 226 of the Constitution of India, two separate orders dated 22 February 2013 passed by the Commissioner of Income Tax are assailed. The impugned orders dismissed the petitioners revision applications under Section 264 of the Income Tax Act, 1961 ("the Act') without considering the submissions made by the petitioners. The two petitioners are brothers who had jointly purchased a property in 1966 and sold it in 2006. 3)The petitioners had in their return of income for the A.Y. 2007-08 declared the value of their share of the property in 1981 at Rs.28.49 lakhs (50% share) on the basis of the valuation report. The Assessing officer made a reference to the Departmental Valuation Officer (DVO) under Section- 55A(a) of the Act to ascertain the value of the property in 1981. The DVO determined the value of the property in 1981 at Rs.20.90 lakhs (50% share) in respect of each of the petitioner and on that basis completed the capital gains in Assessment Order dated 28 December 2010. 4)The petitioners preferred a Revision Application under Section 264 of the Act to the Commissioner of Income Tax. In its application the petitioner submitted that a reference to DVO under Section-55A(a) of the Act could only be made where the Assessing Officer is of the opinion that the valuation of the capital assets claimed by the assessee (on the basis of an Registered Valuer's Valuation Report) is less than its fair market value and not where value as on 1 April1981 is more than fair market value. In support the petitioner placed reliance upon the decision of this Court in CIT vs. Daulat Mohta (HUF) in Income Tax Appeal No.1031/2008 decided on 22 September 2008. A copy of the aforesaid decision was also enclosed by the petitioners along with their revision applications under Section 264 of the Act. The aforesaid decision prima facie applies as the year in question is prior to the amendment made in Section 55A of the Act in 2012. 5)We find that the impugned orders by the Commissioner of Income Tax makes no reference to the above decision and without any discussion whatsoever dismissed the Revision application. We find that the impugned orders dated 22 February 2013 are non speaking orders and cannot stand judicial scrutiny. 6)In view of the above, we set aside both the impugned orders dated 22 February 2013. We restore both the revision applications to the Commissioner of Income Tax to enable him to pass a fresh order in accordance with law. 7)Both the petitions are disposed of in the above terms. No order as to costs. ( N. M. JAMDAR, J.) (M.S. SANKLECHA, J.)