TMI Blog1987 (6) TMI 18X X X X Extracts X X X X X X X X Extracts X X X X ..... had been submitted by the Valuation Officer, Unit VIII, Calcutta, recording that the fair market value of the said property had been determined by him at Rs. 7,65,543 and, accordingly, the fair market value of 1/5th share thereof was Rs. 1,53,108 which exceeded the declared consideration of Rs. 90,000 by more than 25%. Asha Devi Agarwal, the respondent, filed her written objection before the Inspecting Assistant Commissioner in the said proceedings under section 269D(1) of the said Act contending, inter alia, that the proceedings were barred by limitation as the said notice under section 269D(1) of the said Act had been published after nine months from the date of the execution and registration of the deed of conveyance. The said notice, it was contended, was not duly served on the respondent who received only a copy thereof certified by some, other officers to be a true copy and the same did not bear the signature of the authority issuing the said notice. The fair market value of the said property, it was contended, was only Rs. 87,360 as certified by the licensed valuer of the respondent in his report which was dated August 11, 1978, and if payments made on account of regis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ses as contended by the respondent. The fair market value of the said property, it was held, had been rightly determined at Rs. 1,53,100. It was held that the fair market value of the said property exceeded the apparent consideration for which the same had been sold by more than 70%, that the consideration for such transfer had not been truly stated in the instrument of transfer with objects as referred to in clauses (a) and (b) of section 269C(1) of the said Act, and, therefore, the property was liable to be acquired under Chapter XXA of the said Act. With the previous approval of the Commissioner of Income-tax, West Bengal II, Calcutta, it was ordered that the said property would stand acquired under section 269F(6) of the said Act with effect from the date of the service of his order upon the vendors and the transferee. Being aggrieved by the order of the Inspecting Assistant Commissioner of Income-tax, the assessee preferred an appeal therefrom before the Income-tax Appellate Tribunal. It was reiterated on behalf of the assessee before the Tribunal that the proceedings under Chapter XXA of the Income-tax Act, 1961, were barred by limitation on the grounds noted hereinbefore ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unt the agreements of tenancy of the various occupiers of the said premises and that the Valuation Officer had taken into consideration other disadvantages also of the said premises. The Tribunal held that on the totality of the facts and circumstances, the contentions of the assessee should be accepted. The case of the assessee, it was held, was supported further by the fact that litigation involving the said premises was pending and that the same was admittedly in the occupation of a number of persons some of whom may not be authorised persons. The report of the Valuation Officer of the Department, it was held, could not be taken to be conclusive The contention of the respondent that the notice under section 269D(1) of the said Act had not been received by her, was not accepted by the Tribunal which held that the provision for service of such notice were merely directory and procedural. The fact that the subsequent notice served on the transferee was not signed was also an irregularity and would not vitiate the proceedings nor affect the assumption of jurisdiction by the Inspecting Assistant Commissioner. The appeal of the respondent was allowed. The present appeal by the R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eeding was whether a notification of the Reserve Bank of India was in force and in operation on the date on which an accused was supposed to have committed a violation of the same. It was found that the said notification had been published in the Official Gazette prior to the date of the alleged offence. The Supreme Court observed as follows (p. 593 of 35 Comp Cas): " Where there is a statutory requirement as to the mode or form of publication and they are such that, in the circumstances, the court holds it to be mandatory, a failure to comply with those requirements might result in there being no effective order the contravention of which could be the subject of prosecution, but where there is no statutory requirement, we conceive the rule to be that it is necessary that it should be published in the usual form, i.e., by publication within the country in such media as generally adopted to notify to all the persons concerned the making of rules. In most of the Indian statutes, including the Act now under consideration, there is provision for the rules made being published in the Official Gazette. It, therefore, stands to reason that publication in the Official Gazette, viz., the Ga ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stant case were barred by limitation. He submitted that the decision of the Supreme Court in Mayer Hans George [1965] 35 Comp Cas 557 ; AIR 1965 SC 722, was in a criminal proceeding where the question involved was whether the statutory notification had come into operation or not by publication in the Official Gazette. In the instant case, the question involved was the determination of the actual date of publication of a notice under section 269D(1) of the Income-tax Act, 1961. The Supreme Court, it was contended, had subsequently pronounced on the meaning of the expression " publication " and had held that a mere communication of a matter to the Government Department concerned would not be a valid publication if the matter was not brought to the notice of the parties interested or affected. Learned advocate for the respondent, however, invited us to determine this appeal on merits and not on the technical point of limitation particularly when there were conflicting decisions of the High Courts on the question. On the question of valuation of the said property, learned advocate for the respondent submitted that the Tribunal had taken into consideration all the material facts and e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hese facts, it was held by a Division Bench of the Allahabad High Court following its earlier decision in the case of U. S. Awasthi [1977] 107 ITR 796, that the publication of such a notice was complete only when the Gazette containing the notification became available to the public. In the facts, the publication was made beyond the period prescribed under section 269D and, therefore, the proceedings for acquisition of the property under Chapter XXA were without jurisdiction. (c) CIT v. Trilokinath [1984]147 ITR 613 (MP). This decision of a Division Bench of the Madhya Pradesh High Court was cited for the following observations (headnote) It is well recognised that the determination of fair market value of a capital asset is generally a matter of estimate based, to some extent, on guess work and despite the utmost bona fides, the estimate of the fair market value is bound to vary from individual to individual. Therefore, unless a clear error of law is discernible in the finding reached by the Tribunal on the question of fair market value, no interference can be made in an appeal under section 269H which lies on a point of law alone." Learned advocate for the respondent also d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... U. S. Awasthi's case [1977] 107 ITR 796 (All) and in Kishan Lal's case [1983] 142 ITR 312 (All), the Allahabad High Court has taken the view that publication of such a notice would be complete only when the Gazette containing the notice would be made available to the public. The Gujarat High Court in Shilaben Kanchanlal Rana's case [1980] 124 ITR 420 (Guj), following the Supreme Court in Mayer Hans George's case [1965] 35 Comp Cas 557 ; AIR 1965 SC 722, has taken the view that the date of publication would be as appearing in the Official Gazette as prescribed in the statutes and whether the same was made available or brought to the notice of the persons concerned was not of any relevance. A learned judge of the Karnataka High Court has taken the same view as that of the Gujarat High Court in Girnar Builders (P.) Ltd.'s case [1985] 156 ITR 403 (Kar). On consideration of the decisions cited above, we are inclined to take the same view as that of the Gujarat High Court but as we intend to dispose of this appeal on merits, we do not express a final opinion on this point. We next take up for consideration whether the Tribunal erred in law in accepting the contentions of the respond ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and the value of such property in the hands of the owner or transferee, if calculated on the rental basis, would have to be determined by the rent which is available to them for collection and not on the rent which is being collected by the tenants on their own from the sub-tenants. No authority was cited on behalf of the appellant for the proposition that in valuing a tenanted property on rental basis, the rent collected by the tenants from their sub-tenants would have to be taken into account. Apart from the aforesaid, the Tribunal has taken into account the other facts and circumstances relevant to the question of valuation as also the various disadvantages pertaining to the said property and has arrived at its own conclusion. It cannot be said that the decision of the Tribunal is perverse or based on non-relevant evidence. On the same facts, it may be possible for us to come to a different conclusion but we should not be called upon to do so in an appeal on a question of law. For the reasons as above, we see no reason to interfere with the order of the Tribunal and we affirm the same. We also note that in the circular of the Central Board of Direct Taxes referred to here ..... X X X X Extracts X X X X X X X X Extracts X X X X
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