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1999 (8) TMI 977 - JAMMU AND KASHMIR HIGH COURT

1999 (8) TMI 977 - JAMMU AND KASHMIR HIGH COURT - TMI - LPA (W) NO. 425 OF 1997 - Dated:- 4-8-1999 - T.S. DOABIA AND ARUN KUMAR GOEL, JJ. ORDER 1. Heard the learned counsels for the parties. 2. Taken up for final disposal. 3. The ITO, Ward No. 4, Jammu, who figures as appellant in this appeal, sought elucidation with regard to the cost of erection and machinery from respondent-writ petitioner, namely, Prem Hotel, Katra, who was represented by Sh. Romesh Chander. The respondent Nos. 2 and 3 in th .....

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nciples of natural justice were found to be attracted to the facts, the communication by which the Valuation Officer was appointed was set aside leaving the appellant to give fresh order after affording opportunity of hearing to the respondent-writ petitioner. It is this view expressed by a learned Single Judge of this Court, which is the subject-matter of challenge in this appeal preferred under clause 12 of Letters Patent. 4. The learned counsel for the appellant submits that the appellant- as .....

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n approved by the Ministry of Finance, Government of India. It is, accordingly, submitted that in these circumstances, there was no justification to issue a commission, and in any case, it is urged that if this was to be done, then opportunity of hearing should have been allowed to the respondent-writ petitioner. 5. It be seen that the power of the ITO to get the assistance of the Valuation Officer in terms of section 131(1)(d) is not being disputed. What is being disputed is that the ITO should .....

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e vested in a Court under the Code of Civil Procedure, 1908 (5 of 1908), when trying a suit in respect of the following matters, namely:- (a )discovery and inspection; (b)enforcing the attendance of any person, including any officer of a banking company and examining him on oath; (c)compelling the production of books of account and other documents; and (d)issuing commissions. 55A. Reference to Valuation Officer.-With a view to ascertaining the fair market value of a capital asset for the purpose .....

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ssee by more than such percentage of the value of the asset as so claimed or by more than such amount as may be prescribed in this behalf; or (ii)that having regard to the nature of the asset and other relevant circumstances, it is necessary so to do, and where any such reference is made, the provisions of sub-sections (2), (3) (4), (5) and (6) of section 16A, clauses (ha) and (i) of sub-section (1) and sub-sections (3A) and (4) of section 23, sub-section (5) of section 24, section 34AA, section .....

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are in a firm, a route permit, a manufacturing licence, a leasehold right, the contractual right to obtain conveyance of property, and the right to subscribe for shares of a company. The definition expressly excludes stock-in-trade, personal effects, some agricultural lands in India, Gold Bonds and Special Bearer Bonds. The question whether an asset is a capital asset within this clause is to be decided having regard to the facts prevailing at the time it is transferred and not at the time it wa .....

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d) are vested with the same powers as are vested in a Court under the Code of Civil Procedure, 1908. Issuing of commission is a power which is vested in the courts trying civil proceedings under the Code of Civil Procedure. This power can be exercised when any of the party wants a commission to be issued and at the same time, nothing prevents the Court from passing an order at its own level. If the Court forms an opinion on facts of the necessity to issue a commission and this issuance is with a .....

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view to arrive at a proper decision. Respondent-writ petitioner had relied upon the evaluation as given by its own evaluator. Whether it is correct or not, was an issue which was to be examined by the assessing authority. For this purpose, he sought assistance of Valuation Officer. This is an in-house procedure. It is only when some assessment is made by the Valuation Officer that the requirement to comply with the principles of natural justice would come into existence. It was precisely for thi .....

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It has placed on record its own valuation. It was only with a view to judge the correctness or otherwise of the valuation made by the assessee s own evaluator that the Valuation Officer came to be appointed. 8. It be seen that the proceedings under section 131 are to be exercised for achieving the purpose of the Act. The power to call for the information which would be useful or relevant to any proceeding under the Act is implicit. If the Assessing Officer was of the view that the facts and fig .....

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ion Officer is appointed with a view to effectuate that purpose, then it cannot be said that the procedure so followed is not in accordance with the law. Reference in this regard be made to a Full Bench decision of the Punjab and Haryana High Court in the case of Jindal Strips Ltd. v. ITO [1979] 116 ITR 825 . In the above case, in consequence of the search, the Intelligence Wing of the Department processed the collected material from which it was found that large amounts of unaccounted money had .....

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