TMI Blog2003 (8) TMI 184X X X X Extracts X X X X X X X X Extracts X X X X ..... (3) of the W.T. Act was completed on4-2-1992determining net wealth at Rs. 23,22,500 which included the value of the immovable property at plot No. 266 Greater Kailash-II,New Delhiestimated by the WTO at Rs. 16,50,000 as against Rs. 6 lakhs declared by the assessee. So far as the estimation of the value of plot is concerned the WTO has made following observation in the assessment order: "Value of Plot No. S-266, Greater Kailash-II, N. Delhi was declared at Rs. 6,00,000 as against Rs. 4,50,000 in the last year. In the assessment year 1987-88, the value of this plot was taken at Rs. 15,32,400 as valued by the Valuation Officer. As the market value of land increasing day by day, I take the value of this plot at Rs. 16,50,000 during the year." 6. It may also be pointed out that before completion of the assessment for the aforesaid year the WTO had referred the valuation of the said plot to the valuation officer, Income-tax Department. The Departmental Valuation Officer ("DVO in short) vide his report dated5-3-1991determined the value of the plot at Rs. 34,25,000. Since the WTO did not accept the valuation determined by the DVO but adopted the value at Rs. 16.50 lakhs by estimate, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o 6 of the paper book; the objections of the assessee dated 30th August; the report of the Valuation Officer; the order of the CIT(A) for assessment year 1981-82 to 1983-84, available at pages 20 to 22 of the paperbook; the order of the ITAT dated 3-8-2002 rendered in WTA No. 661/Delhi/94 for assessment year 1987-88 and also other documents, copies of which have been filed on record. The learned counsel also made reference to the ratio of decision of Hon'ble Supreme Court in the case of Malabar Industrial Co. Ltd. v. CIT [2000] 243 ITR 83. 10. On the other hand the learned Sr. D.R. supported the order of learned CWT. 11. We have carefully considered the facts and circumstances relating to this matter and the rival submissions, including the entire material on record. 12. In ground Nos. 2 3 the validity of the order passed by the learned CWT is challenged on the ground that the CWT had not initiated the proceedings on his own initiative but upon the suggestion of the subordinate authorities. In this regard objection was also taken by the assessee in reply dated8th February, 1994a copy of which is available at pages 3 to 6 of the paper book. It is found that on28-1-1994a noti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... risdiction to proceed under section 25(2). The question of giving an adequate opportunity to the assessee has no impact on the question of the jurisdiction of the Commissioner to pass an order under section 25(2). The question of adequate opportunity will affect only the question of legality of the order of the Commissioner. In such a case, the tribunal undoubtedly, has jurisdiction to remand the matter to the Commissioner and to direct him to dispose of the proceedings under section 25(2) afresh, after giving due opportunity to the assessee." 14. It was also argued that the mind of CWT was influenced by his subordinate officer, who originally initiated the proceedings. In the case of CIT v. Bhagat Shyam Co. [1991] 188 ITR 608 (All.), the facts as brought out on record were that the ITO approached the Commissioner and asked him to invoke his powers under section 263 and the Commissioner initiated proceedings under section 263. The objection of the assessee was that the Commissioner had initiated the proceedings under section 263 without applying his mind to the facts of the case and without being satisfied that the facts of the case did not warrant the exercise of powers under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... neither erroneous nor prejudicial to the interest of Revenue. A perusal of the impugned order dated 11-3-1994, shows that the order was found to be erroneous and prejudicial to the interest of Revenue because the Assessing Officer had not considered and followed the report of the Valuation Officer dated 5-3-1991 determining the value of the property in question at Rs. 34,25,000. According to the CWT, the WTO was required to adopt the valuation of the property as determined by the Valuation Officer for assessment purposes in accordance with law and since this was not done, the order was erroneous in so far as it was prejudicial to the interest of Revenue. 18. We have considered the entire material on record placed before us by the learned counsel for the assessee. The Assessing Officer made reference to the Valuation Officer for determining the value of the property. The Valuation Officer took the valuation date as31-3-1988and determined fair market value at Rs. 34,25,000. During the process of determining the value, he provided full opportunity to the assessee. The assessee filed a detailed submission dated28-2-1991, a copy of which is available at pages 16 to 19 of the paper bo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the value declared in the return made by assessee under section 16 or 15, he shall serve a notice on the assessee intimating the value which he proposes to estimate and give the assessee an opportunity to state his objection etc. This is to be done in view of the procedure laid own in sub-clause (4) of section 16A. As per the procedure laid down in sub-clause (5), the Valuation Officer has to provide hearing to the assessee and has to pass order in writing estimating the value of the asset. A copy of this order is to be sent to the WTO and to the assessee. The order so passed by the Valuation Officer is to be adopted while making assessment order in view of sub-clause (6), which is as under: "(6) On receipt of the order under sub-section (3) or sub-section (5) from the Valuation Officer, the Assessing Officer shall, so far as the valuation of the asset in question is concerned, proceed to complete the assessment in conformity with the estimate of the Valuation Officer." 21. In view of the above referred provision, it is clear that the ova passed order after following the procedure laid down in section 16A and the assessment is to be completed in conformity with the estimate of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case of Swarup Vegetable Products Industries Ltd. (No.1) v. CIT [1991] 187 ITR 412 it has been held by the Hon'ble Allahabad High Court that if the Assessing Officer had accepted the contention of the assessee erroneously and that too without making proper enquiry, the Commissioner had power to set aside the assessment order and send the matter for fresh assessment if he was satisfied that further enquiry was necessary and that the order of ITO was prejudicial to the interest of Revenue. 25. In the case of Malabar Industrial Co. Ltd. it has been held that the prerequisite for the exercise of jurisdiction by the Commissioner suo motu under section 263 (which is similar to section 25B of Wealth-tax Act) is that the order of the Income-tax Officer is erroneous in so far as it is prejudicial to the interests of the Revenue. It was further observed that the Commissioner has to be satisfied of twin conditions, namely-(i) the order of the Assessing Officer sought to be revised is erroneous; and (ii) it is prejudicial to the interests of the Revenue. The, Hon'ble Supreme Court has also observed that the phrase prejudicial to the interests of Revenue is not an expression of art and is not ..... X X X X Extracts X X X X X X X X Extracts X X X X
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