TMI Blog1999 (8) TMI 977X X X X Extracts X X X X X X X X Extracts X X X X ..... challenged in this Court. The argument raised was that if the ITO was to form an opinion and was to refer the matter to the Valuation Officer in terms of section 131(1)(d), then the respondent-petitioner should have been heard in the matter. As opportunity of hearing was not given by the appellant and as the principles 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. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ioner shall, for the purposes of this Act, have the same powers as are 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 purposes of this Chapter, the Assessing Officer may refer the valuation of capital asset to a Valuation Officer- (a )in a case where the value of the asset as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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 was acquired. For the purposes of this clause, the word held includes constructive or symbolic possession. Capital gains arising from the transfer of a capital asset are assessable under section 45 and transfer, in relation to a capital asset, is defined by section 2(47). - See the Law and Practice of Income-tax by the Kanga Palkhivala Eighth Edn., p. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Valuation Officer that the requirement to comply with the principles of natural justice would come into existence. It was precisely for this purpose, the assessee was informed that a commission is being issued. The assessee was being apprised of the steps taken by the assessing authority. This was done so that the assessee is not taken unawares. 7. We are of the view that so far as the initial step in issuing the commission and asking the Valuation Officer to make assessment is concerned, there was no necessity to call upon the assessee to put across its point of view. That point of view has already been put across by the assessee. It has placed on record its own valuation. It was only with a view to judge the correctness or otherwise o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... construction. In these circumstances, the reference made by the ITO to the Valuation Officer to ascertain the true value of the mill in question at the relevant time was found valid. In the notice, reference was made to section 55A of the Act, it was observed that merely because reference is being made to section 55A would not in any way affect the validity of the step taken by the ITO. It was observed that whatever an ITO can do directly in the exercise of his powers, can be done with the assistance of a Valuation Officer. The above issue was decided in a petition preferred under article 226 of the Constitution of India. The question which was there for determination before the Full Bench of the Punjab and Haryana High Court was as to whet ..... X X X X Extracts X X X X X X X X Extracts X X X X
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