Panaji- Goa v. Mrs. Theresa Dias

TAX APPEAL NOS.1, 2, 3 AND 4 OF 2003 TAX APPEAL NO.1 OF 2003 TAX APPEAL NO.1 OF 2003 The Commisioner of Income Tax, having Office at Aayakar Bhavan, Patto Plaza, Panaji- Goa. ... Appellant.versus... Respondent. Mrs. Theresa Dias, Margao-Goa. Mr. S. R. Rivonkar and Ms. A. Fadte, Advocates for the Appellant. Mr. M. P. Almeida, Advocate for the Respondent. TAX APPEAL NO.2 OF 2003 TAX APPEAL NO.2 OF 2003 The Commissioner of Income Tax, having Office at Aayakar Bhavan, Patto Plaza, Panaji-Goa. ... Appellant.versus... Respondent. Mrs. Ninette Dias, Meera Pajifond, Margao-Goa. Mr. S. R. Rivonkar and Ms. A. Fadte, Advocates for the Appellant. Mr. M. P. Almeida, Advocate for the Respondent. - 2 - TAX APPEAL NO.3 OF 2003 TAX APPEAL NO.3 OF 2003 The Commissioner of Income Tax, having Office at Aayakar Bhavan, Patto Plaza, Panaji-Goa. ... Appellant.versusShri Domnic Dias,... Respondent. Mr. S. R. Rivonkar and Ms. A. Fadte, Advocate for the Mr. M. P. Almeida, Advocate for the Respondent.TAX APPEAL NO.4 OF 2003... Appellant.versusShri Richard Dias,... Respondent. C/o. Hotel La Flor, Margao-Goa. Mr. S. R. Rivonkar and Ms. A. Fadte, Advocate for the Appellant. Mr. M. P. Almeida, Advocate for the Respondent. TAX APPEAL NO.4 OF 2003 The Commissioner of Income Tax, having Office at Aayakar Bhavan, Patto Plaza, Panaji-Goa. Shri Richard Dias, Meera, Pajifond, Margao-Goa. Mr. S. R. Rivonkar and Ms. A. Fadte, Advocates for the Appellant. Mr. M. P. Almeida, Advocate for the Respondent. CORAM: F. I. REBELLO &P. V. HARDAS, JJ.DATED: 24TH JUNE, 2003. ORAL JUDGMENT(PER F.I.REBELLO, J.) These are Appeals by the Revenue under Section 260-A of the Income Tax Act, 1961. It is not necessary to go into the facts involved except to refer to the questions formulated for decision. The Members constituting the Income Tax Appeals, Pune, deferred in their opinion. The Non Judicial Member, partly allowed the Appeals. While so holding in paragraph 29 directed the A.O.to adopt the fair market of the subject land as on 1st April, 1981 at Rs.48,000/- and as determined by the valuer Nagarsekar as expressly required by the A.O. after rejecting the report of valuation of approved valuer. The Judicial Member while summarising his discussion in paragraph 32 has held as under:- 1. Neither of the valuation reportcan be relied on beingarbitrary.can be relied on beingarbitrary. 2. The assessee has been able torebut the legal presumptionsthat value in the gift deed isnot the correct market value.rebut the legal presumptionsthat value in the gift deed isnot the correct market value. 3. No factual data or material isavailable before the Bench todetermine the value as on1-4-81.available before the Bench todetermine the value as on1-4-81. 4. It is necesdsary to refer thematter on valuation to theDepartmental Valuation Officerunder Section 55A.matter on valuation to theDepartmental Valuation Officerunder Section 55A. In view of that, the learned Judicial Member directed that Order be set aside and the matter be restored to the file of A.O. to refer the matter of valuation to a Senior District Officer and then to adjudicate the matter after taking into consideration such report and all other material which may be brought on record by the assessee or gathered by him. 2. As there was a difference, the following questions were formulated to be referred to a third Member:- 4. It is necesdsary to refer thematter on valuation to theDepartmental Valuation Officerunder Section 55A.matter on valuation to theDepartmental Valuation Officerunder Section 55A. In view of that, the learned Judicial Member directed that Order be set aside and the matter be restored to the file of A.O. to refer the matter of valuation to a Senior District Officer and then to adjudicate the matter after taking into consideration such report and all other material which may be brought on record by the assessee or gathered by him. 2. As there was a difference, the following questions were formulated to be referred to a third Member:- "1. Whether on the facts andin the circumstances of thecase and in law, the value ofthe land mentioned in the giftdeed dated 11-9-1981 could beassumed as fair market value ason 1-4-1981, subject torebuttal, if any, as held bythe Judicial Member OR thevalue of the land mentioned inthe aforesaid gift deed couldnot be considered as marketvalue at all for determiningthe value of land as on1-4-1981 merely because thetransaction of the gift was afamily arrangement as held bythe Accountant Member? 2. Whether on the facts and inthe circumstances of the case,and in law, the value of landas on 1-4-1981 can be acceptedat Rs.6480 lakhs as held by theAccountant Member OR the matterof valuation be restored to thefile of the AO as held by theJudicial Member? 3. By the Order dated 21st February, 2002, the third Member agreed with the view by the Judicial Member and accordingly directed that the matter should be restored to the file of the A.O. for valuation. It was specifically contended before the third Member on behalf of Revenue that Section 55A is not applicable. It was specifically answered by holding that Section 55A had not been referred and consequently the controversy could not be decided by him. 4. At the hearing of these Appeals, the principle question formulated on behalf of the Revenue is as under:- "Whether on the facts andcircumstances of the case theITAT was justified in directingthe Assessing Officer to referthe matter of valuation to aDistrict Valuation Officertaking recourse to Section 55Aof the IT Act, ignoring thefact that the assessment wasalready completed on 12-2-98? 5. Learned Counsel for the Appellants contend that in the instant case, the issue of referring the matter under Section 55A could have only arisen if one of the situation contemplated by the Section was satisfied. It is pointed out that it is not the position and once that be the case, the Order referring the matter to the Assessing Officer is without jurisdiction and consequently liable to be set aside. 6. We have perused the impugned Orders. The entire argument of the Revenue is based on the Gift Deed dated 11th September, 1981 and that Gift Deed was rejected both by the Non Judicial Member as also the Judicial Member. The reference of the third Member was not on that aspect but only on the aspect as to what should be the correct method of valuation or referring/removing the matter to the Assessing Officer. As pointed out earlier before the third Member also this contention of non applicability of Section 55A was taken and the third Member in paragraph 25 while specific reference be made has held that the issue was not referred. Even otherwise, on the record both the Judicial Member and Non Judicial Member were unanimous on the fact that the Gift Deed dated 11th September, 1981 could not be relied upon for reasons given by them in their Orders. That is purely a finding of facts. There is no substantial question of law involved in this case where this Court could entertain Section 6 of the Income Tax Act. 7. In the light of that, there is no merit in correct method of valuation or referring/removing the matter to the Assessing Officer. As pointed out earlier before the third Member also this contention of non applicability of Section 55A was taken and the third Member in paragraph 25 while specific reference be made has held that the issue was not referred. Even otherwise, on the record both the Judicial Member and Non Judicial Member were unanimous on the fact that the Gift Deed dated 11th September, 1981 could not be relied upon for reasons given by them in their Orders. That is purely a finding of facts. There is no substantial question of law involved in this case where this Court could entertain Section 6 of the Income Tax Act. 7. In the light of that, there is no merit in these Appeals which is accordingly disposed of.