TMI Blog1999 (7) TMI 33X X X X Extracts X X X X X X X X Extracts X X X X ..... he District Valuation Officer, Income-tax Department, New Delhi, for determining the fair market value of the property as on the date of its transfer. The Valuation Officer has intimated the same at Rs. 18,31,000. I have carefully examined the report of the Valuation Officer and I am in agreement with it. Accordingly, I adopt the fair market value of the property at Rs. 18,31,000." The competent authority thereafter proceeded in the matter and issued notices under section 269D(2) of the Income-tax Act (for short the "Act") to the transferor and the transferee on October 10, 1980. The date of publication of the notice under section 269D(1) of the Act in the Official Gazette is November 15 1980. The competent authority after hearing the objections ordered the acquisition of the property. The transferor and the transferee filed appeals. The Income-tax Appellate Tribunal Chandigarh Bench allowed the appeals of the transferor and the transferee by a common order and set aside the order of the competent authority. Hence these appeals by the Commissioner of Income-tax under section 269H of the Act. Income-tax Appeal No. 14 of 1982 is against the transferor whereas Income-tax Appeal No. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e transferor and the transferee on July 30, 1973, whereas it was published in the Official Gazette on August 11, 1973, though it was sent for publication on July 26, 1973. The Division Bench after elaborately discussing the matter came to the following conclusion (page 15) : "In the result, it must be held that the notice served on the transferor and the transferee on July 30, 1973, before it was published in the Official Gazette was illegal and all subsequent proceedings including the order acquiring the property under section 269F(6) of the Act stood vitiated. We, therefore, uphold the impugned order of the Tribunal, setting aside the order of the competent authority." The contention of the Revenue that even if the order of the competent authority stood vitiated on the ground that the notice was served on the transferor and the transferee before the proceedings were validly initiated. the case should be remanded to the competent authority for proceedings afresh because the proceedings had been validly initiated on August 11, 1973, and that thereafter the said authority can proceed to pass a fresh order in accordance with law was also not accepted by the Bench in Des Raj's ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ommissioner dismissed the appeal. On further appeal the Tribunal remanded the case to the Income-tax Officer with directions to cross-examine a witness. On the appeal from the order passed on remand the assessee contended that the reassessment proceedings were not validly initiated. The Appellate Assistant Commissioner examined the original order sheet and found that no reasons had been recorded by the Income-tax Officer as required by section 148(2) of the Act. He further found that the Income-tax Officer had not specified the clause of section 147 under which the assessment had been reopened. He, therefore annulled the order of reassessment. The Tribunal however held that once the Tribunal passed an order the matter became final and that the order restoring the case to the file of the Income-tax Officer with clear instructions only to cross-examine a witness meant that the only point that was left open was in respect of the sum and not the legal or jurisdictional aspect, viz., whether the reassessment proceedings were correctly initiated. On a reference, after restating the conditions precedent for initiating reassessment proceedings under section 147 of the Act and after exami ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ting the status in which the return had to be filed. It was further pointed out that even if there was a defect the same stood cured by the applicability of section 292B of the Act. The Bench after noticing the said contention of counsel for the Revenue in the petition under section 256(2) of the Act only directed the Tribunal to refer the following question of law along with the statement of the case for the opinion of this court : "Whether, on the facts and in the circumstances of the case and also in the light of the provisions of section 292B of the Income-tax Act, 1961, notice issued under section 148 of the Act was not invalid specially when the assessee had consciously and intentionally waived his right to object to the defect in the notice ?" Mr. Sawhney learned counsel appearing for the Revenue then submitted that even if it be assumed that the notice was issued to the transferor and the transferee before its publication in the Official Gazette even then the proceedings for acquisition are not vitiated. Learned counsel in that behalf placed reliance on Pratipal Kaur (Smt.) vs Inspecting Assistant Commissioner of Income-tax (Acquisition Range) [1984] 145 ITR 19 (All) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unsel for the Revenue is concerned it was based on an incorrect reading of the Full Bench judgment of this court in Amrit Sports Industries' case [1983] 144 ITR 113 and was specifically dissented from by a Division Bench of this court in Des Raj's case [1996] 220 ITR 7 by observing as follows (page 15) : In our opinion, the Full Bench in Amrit Sports Industries' case [1983] 144 ITR 113 (P H), did not hold that even where the notice is served under sub-section (2) prior to its publication under sub-section (1), the error committed by the competent authority is only procedural and not jurisdictional. Such a defect is one of jurisdiction and the competent authority cannot proceed to make an order acquiring the property. We do not, therefore, in all respect agree with the view taken by the Karnataka High Court in A. Premchand's case [1985] 153 ITR 774 and B. M. Marappa's case [1986] 160 ITR 642 (Kar). In B. M. Marappa's case [1986] 160 ITR 642 the Karnataka High Court reiterated its earlier view while placing reliance on A. Premchand's case [1985] 153 ITR 774. In the case of Lalita Todi [1980] 123 ITR 40 (Patna) relied upon by learned counsel for the Revenue notices were issued under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ey must, therefore, be said to have waived the benefit conferred on them by the aforesaid statutory provisions. I thus find no substance in this point of learned counsel for the appellants." We do not agree with the aforesaid view taken by the Patna High Court because a Full Bench of this court in Amrit Sports Industries' case [1983] 144 ITR 113 has held that the publication of the notice in the Official Gazette under sub-section (1) of section 269D has to precede the service thereof on the transferor the transferee and all other persons concerned under sub-section (2). Until and unless proceedings for acquisition come into existence by initiation thereof on the publication of the notice in the Official Gazette service of the notice inter alia on the transferor and the transferee under sub-section (2) of section 269D will be meaningless and an exercise in futility. Moreover the view taken by the Patna High Court runs counter to the view taken by this court in two Division Bench cases relied upon by learned counsel for the respondents and already noticed in the earlier part of this judgment. We are not only bound by these two Division Bench decisions of this court but we also feel ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
