THE COMMISSIONER OF INCOME TAX, PANAJI-GOA. vs. SHRI DOMNIC DIAS, MARGAO-GOA.

IN THE HIGH COURT OF BOMBAY AT GOA

TAX TAX TAX APPEAL NOS.1, 2, 3 AND 4 OF 2003 APPEAL NOS.1, 2, 3 AND 4 OF 2003 APPEAL NOS.1, 2, 3 AND 4 OF 2003 The Commisioner of Income Tax, Panaji- Goa.

Mrs. Theresa Dias,

Mrs. Ninette Dias, Meera Pajifond,

Shri Domnic Dias, C/o. Hotel La Flor,

Mr. S. R. Rivonkar and Ms. A. Fadte, Advocate for the

Shri Richard Dias, Meera, Pajifond,

CORAM: F. I. REBELLO &

P. V. HARDAS, JJ.

DATED: 24TH JUNE, 2003.

ORAL JUDGMENT ORAL JUDGMENT 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:-

can be relied on being

arbitrary.

rebut the legal presumptions

that value in the gift deed is

not the correct market value.

available before the Bench to

determine the value as on

1-4-81.

matter on valuation to the

Departmental Valuation Officer

under 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 and

in the circumstances of the

case and in law, the value of

the land mentioned in the gift

deed dated 11-9-1981 could be

assumed as fair market value as

on 1-4-1981, subject to

rebuttal, if any, as held by

the Judicial Member OR the

value of the land mentioned in

the aforesaid gift deed could

not be considered as market

value at all for determining

the value of land as on

1-4-1981 merely because the

transaction of the gift was a

family arrangement as held by

the Accountant Member?

the circumstances of the case,

and in law, the value of land

as on 1-4-1981 can be accepted

at Rs.6480 lakhs as held by the

Accountant Member OR the matter

of valuation be restored to the

file of the AO as held by the

Judicial Member?

"Whether on the facts and

circumstances of the case the

ITAT was justified in directing

the Assessing Officer to refer

the matter of valuation to a

District Valuation Officer

taking recourse to Section 55A

of the IT Act, ignoring the

fact that the assessment was

already 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 these Appeals which is accordingly disposed of.

P. V. HARDAS, J.

F. I. REBELLO, J.