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T. M. S. Mohammed Abdul Kader Vs. Commissioner of Gift-tax, Madras. - Court Judgment

LegalCrystal Citation
SubjectDirect Taxation
CourtChennai High Court
Decided On
Case NumberTax Case Petition No. 41 of 1966
Reported in[1968]70ITR237(Mad)
AppellantT. M. S. Mohammed Abdul Kader
RespondentCommissioner of Gift-tax, Madras.
Cases ReferredV. Ramaswami Iyengar v. Commissioner of Income
Excerpt:
- .....basis of local enquiries adopted the value of rs. 1,200 per acre. the petitioner appealed to the appellate assistant commissioner and the appellant authority accepted the assessees valuation of rs. 900 per acre. against this last-mentioned decision, the department took the matter on further appeal to the income-tax appellate tribunal, madras bench. this tribunal by an order which it described as a remand order, passed on 30th of october, 1964, referred to a contention put forward before it, that the sale deed on the basis of which the appellate assistant commissioner had fixed the value of the land at rs. 900 per acre, was really a will and that it could not be relied upon for supporting the valuation. the tribunal observed that the matter required further investigation, because the.....
Judgment:

RAMAKRISHAN J. - This tax case petition was filed under section 26 (3) of the Gift-tax Act, 1958. The petitioner made a gift of a certain extent of land to his daughter and grandchildren. The question arose before the gift-tax authorities about estimating the value of the gift, and for that purpose, the assessee had estimated the value at Rs. 900 per acre. But the Gift-tax Officer, Nagapattinam, considered this valuation to be extremely law land on the basis of local enquiries adopted the value of Rs. 1,200 per acre. The petitioner appealed to the Appellate Assistant Commissioner and the appellant authority accepted the assessees valuation of Rs. 900 per acre. Against this last-mentioned decision, the department took the matter on further appeal to the Income-tax Appellate Tribunal, Madras Bench. This Tribunal by an order which it described as a remand order, passed on 30th of October, 1964, referred to a contention put forward before it, that the sale deed on the basis of which the Appellate Assistant Commissioner had fixed the value of the land at Rs. 900 per acre, was really a will and that it could not be relied upon for supporting the valuation. The Tribunal observed that the matter required further investigation, because the attach thus made upon the nature of the document would affect the very basis of the Appellate Assistant Commissioners decision fixing the value. It therefore called for a fresh finding from the Appellate Assistant Commissioner after taking fresh evidence on the question of the valuation of the land granted two months time from the date of the receipt of the order for the purpose of submitting a fresh finding on the basis of the additional evidence taken.

A report was accordingly sent by the Appellate Assistant Commissioner to the Appellate Tribunal to the effect the rate of Rs. 1,200 per acre adopted by the gift-tax Officer in the first instance, was to preferred in the light of the data adduced before the authorities. The Tribunal took this report into consideration, heard the parties and passed the order now challenged holding that the proper valuation for the land would be Rs. 1,200 per acre, and that the order of the Appellate Assistant Commissioner fixing the value at Rs. 900 was not correct and required to be set aside.

The learned counsel appearing for the petitioner before us, urged that the passing of a remand order of the kind mentioned above in this case, was beyond the jurisdiction of the Appellate Tribunal. For this purpose, he referred to rule 28 of the Income-tax Appellate Tribunal Rules 1963, which states that where the Tribunal is of the opinion that the case should be remanded, it may remand it may remand it to the Appellate Assistant Commissioner or the Income-tax Officer with such directions as the Tribunal may think fit. According to the learned counsel for the petitioner, this rule would simply that the Income-tax Appellate Tribunal can remand a matter for fresh disposal only after setting aside the impugned decision, if it finds that relevant evidence had not been considered by the Appellate Assistant Commissioner. In other words, if the learned counsels argument is to be accepted, the scope of the power of the Appellate Tribunal defined in section 23 (5) of the Gift-tax Act, 1958 which says that the Appellate Tribunal, after giving the parties to the appeal an opportunity of being heard, may pass 'such orders thereon as it thinks fit' should be restricted to the power of an outright remand after setting aside the decision and should not include the power to make an interrmediate direction for the taking of additional evidence or for the giving of a fresh finding on the taking of such evidence, by the subordinate authorities, in order to enable the Tribunal to dispose of the appeal before it on receipt of such finding or the receipt of a report after the taking of evidence. It appears to us that this view of the scope of the appeal before it on receipt of such finding or the receipt of a report after the taking of evidence. It appears to us that this view of the scope of the Appellate Tribunals powers under section 23(5) places an unduly narrow construction upon it. The term 'such orders as thinks fit' appears to us to be sufficiently wide, to include a power to direct the lower authorities to collect fresh evidence and submit findings on such evidence, if necessary, pending the disposal of the main appeal. A reference to rule 29 of the Appellate Tribunal Rules shows that it is with in the power of the Tribunal to take additional evidence before it if it considers it to be necessary and under rule 30 it can also direct the Income-tax Officer or the Appellate Assistant Commissioner to receive evidence of such documents or of such witnesses as the Tribunal may direct. In the present case, thought the order of the Tribunal purports to be a remand order, a perusal of its terms shows that it is in essence an interim order directing the lower authorities to take evidence on a specified point, and submit a finding on that point; it is not final disposal of the appeal by a remand. In our opinion, an interim order of this kind which directs the lower authorities to take fresh evidence and submit a finding to the Tribunal pending the disposal of an appeal before the Tribunal, as it will fall within the scope of the power granted under section 23 (5) of the Act, for the disposal of the appeal before it.

Learned counsel for the petitioner referred us to a decision of a Bench of this court in V. Ramaswami Iyengar v. Commissioner of Income-tax But the decision, we find after a reference to it, does not at all deal with the point now raised before us.

In conclusion, learned counsel for the petitioner urged that there were no data at all before the Appellate Tribunal to determine the valuation of the land at Rs. 1,200 per acre. A reference to the order in question shows that the Tribunal has considered the effect of several documents relating to sale of properties in the neighbourhood for fixing the value of the land at Rs. 1,200 per acre and has rejected the evidence afforded by the petitioner in support of his valuation, because it has not been properly vouched by the production of the necessary documents. This is a decision by the Tribunal entirely on a question of fact based on the appreciation of evidence must it cannot be disturbed by us within the scope of a reference.

We therefore see no ground to call upon the Tribunal to submit any questions for our determination and dismiss the partition. The petitioner will pay the respondents costs. Cousels fee Rs. 150


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