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2016 (9) TMI 29 - GUJARAT HIGH COURT

2016 (9) TMI 29 - GUJARAT HIGH COURT - TMI - Powers of Commissioner to revise orders of subordinate authorities - Held that:- As twice at the instance of the assessee, Commissioner, in exercise of powers under sub section (1) of Section 25, had directed the Assessing Officer to carry out fresh valuation of the lands of the petitioner on the basis of the directions given by CWT (Appeals) in case of the assessee himself for the assessment year 1992-93. It was pursuant to such directions that the A .....

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25. - TAX APPEAL NO. 587 of 2016 TO TAX APPEAL NO. 597 of 2016 - Dated:- 19-8-2016 - MR. AKIL KURESHI AND MR. A.J. SHASTRI, JJ. FOR THE APPELLANT : MR PRANAV G DESAI, ADVOCATE ORAL JUDGMENT (PER : HONOURABLE MR.JUSTICE AKIL KURESHI) 1. These tax appeals have been filed by the Revenue challenging the judgement of the Income Tax Appellate Tribunal. Following questions have been presented for our consideration: (a) Whether in the facts of the case and in law, the Hon'ble Income Tax Appellate T .....

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ht to revise the order of the AO passed u/s. 16(3) r.w.s. 17 r.w.s. 25(1) of the Wealth Tax Act, 1957 and not that passed under section 16(3) r.w.s. 17 r.w.s. 25(2) of the Act. (c) Whether, in the facts of the case and in law, the Hon'ble Income Tax Appellate Tribunal is justified in holding that the Commissioner of Wealth Tax has no power to revise u/s. 25(2) of the Act, his own directions given u/s. 25(1) of the Wealth Tax Act, 1957, particularly when the Commissioner of Wealth Tax has rev .....

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s. 25(1) of the Wealth Tax Act, 1957 and whether the order passed by the Hon'ble Income Tax Appellate Tribunal is a perverse finding of fact. (e) Whether in the facts of the case and in law, the order passed by the AO was erroneous and prejudicial to the interests of the revenue in view of the errors pointed out by the Commissioner of Wealth Tax in the order passed by the Assessing Officer, and was thus liable to be revised u/s. 25(2) of the Wealth Tax Act, 1957 and as such the Commissioner .....

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#8377; 594.22 per sq.mtr. Against such order, the assessee filed a petition under Section 25(1) of the Wealth Tax Act ['the Act' for short] before the Commissioner of Wealth Tax, who directed the Assessing Officer to recompute the wealth of the assessee on the basis of directions given by the Appellate Commissioner in the assessee's own case for the assessment year 1992-93. Even on re-computation, the Assessing Officer adopted the same value of ₹ 594.22 per sq.mtr. The assessee .....

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of powers under Section 25(2) of the Act. The assessee, upon notice, contended inter alia that once the powers under Section 25(1) of the Act were already exercised, the Commissioner, thereafter, could not exercise power under Section 25(2) of the Act. The Commissioner ignored such pleas and passed an order dated 20.03.2014 and directed the Assessing Officer to carry out fresh valuation by making following observations: 1. The revision sought to be made u/s. 25(2) of the W.T.Act is on the basis .....

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9-90 and 1991-92 in the assessee's own case. Thus the basis of initiation of current proceedings u/s. 25(2) of the W.T.Act are different from the basis of initiation of proceedings u/s. 25(2) of the W.T. Act earlier. It cannot therefore be said that there is a charge of opinion by the CWT since the basis for the earlier proceedings and basis for the present proceedings are different and hence not comparable. 2. As per section 50C(1) of the I.T.Act where the consideration received or accruing .....

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n still be a guiding factor to evaluate the actual market value of a property in any locality. The property of the assessee is in a prime location in Jamnagar and the rate of ₹ 24.57 per sq.meter as adopted by the AO is by no stretch of imagination the correct rate of valuation. 3. Uniform value has been adopted by the AO for all the ten assessment years which is not adequate. The valuation should have been done separately for every assessment year and separate valuation rate should have b .....

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visory in nature should have been judged in proper perspective taken into account any other relevant aspect in the facts and circumstances of the case in order to reach at the correct and practically acceptable price of the land. 5. The AO should have gathered information from the stamp valuation authority, the prices at which properties in identical type of location in Jamnagar have been sold during the relevant periods to have an idea of the actual existing market prices in Jamnagar for such p .....

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see is in a prime location is Jamnagar and the rate of ₹ 24.57 per sq.mtr as adopted by the AO is by no stretch of imagination the correct rate of valuation. In view of the above facts, the assessment made in respect ofthe AYs. 1999-2000 to 2009-10 are hereby cancelled and the AO is directed to make fresh assessment in the cases of these assessment years in accordance with the above discussions. 4. This order of the Commissioner gave rise to the assessee filing appeals before the Tribunal. .....

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irtually come to an end. 5. Relevant portion of Section 25 of the Act reads as under: 25 Powers of Commissioner to revise orders of subordinate authorities. (1) The Commissioner may, either of his own motion or on application made by an assessee in this behalf, call for the record of any proceeding under this Act in which an order has been passed by any authority subordinate to him, and may make such inquiry, or cause such inquiry to be made, and, subject to the provisions of this Act, pass such .....

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has not waived his right of appeal; (b) where the order is the subject of an appeal before the [Deputy Commissioner (Appeals)] [or the Commissioner (Appeals)] or the Appellate Tribunal; (c) where the application is made by the assessee for such revision, unless- (i) the application is accompanied by a fee of twenty-five rupees; and (ii) the application is made within one year from the date of the order sought to be revised or within such further period as the Commissioner may think fit to allow .....

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sioner declining to interfere shall be deemed not to be an order prejudicial to the assessee. (2) Without prejudice to the provisions contained in subsection (1), the Commissioner may call for and examine the record of any proceeding under this Act, and if he considers that any order passed therein by [an Assessing Officer] is erroneous insofar as it is prejudicial to the interests of revenue, he may, after giving the assessee an opportunity of being heard, and after making or causing to be made .....

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fter carrying out such inquiry, as may be necessary, pass such order as he thinks fit, not being an order prejudicial to the assessee. Thus, under sub section (1) of section 25, the Commissioner has revisional powers with limitation that any order that he may pass in exercise of such powers, would not be prejudicial to the assessee. On the other hand, under sub section (2) of Section 25, the Commissioner has the power to call for and examine record of any proceeding and after carrying out such i .....

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ub section (2) of Section 25 are entirely different. Under sub section (1), the Commissioner has power to revise the order either of his own motion or at the instance of the assessee but the same would not be prejudicial to the interest of the assessee. Under sub section (2) of Section 25, subject to fulfillment of the requirements of the order being erroneous insofar as it is prejudicial to the interest of the Revenue, the Commissioner has wide power of revision which would include setting asid .....

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