Commissioner of Income Tax Vs. Chandni Bhuchar - Court Judgment

Excerpt:
- sections 100-a [as inserted by act 22 of 2002], 110 & 104 & letters patent, 1865, clause 10: [dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] letters patent appeal order of single judge of high court passed while deciding matters filed under order 43, rule1 of c.p.c., - held, after introduction of section 110a in the c.p.c., by 2002 amendment act, no letters patent appeal is maintainable against judgment/order/decree passed by a single judge of a high court. a right of appeal, even though a vested one, can be taken away by law. it is pertinent to note that section 100-a introduced by 2002 amendment of the code starts with a non obstante clause. the purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the non obstante clause. the legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. it is well settled that the definition of judgment in section 2(9) of c.p.c., is much wider and more liberal, intermediary or interlocutory judgment fall in the category of orders referred to clause (a) to (w) of order 43, rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. amended section 100-a of the code clearly stipulates that where any appeal from an original or appellate decree or order is heard and decided by a single judge of a high court, no further appeal shall lie. even otherwise, the word judgment as defined under section 2(9) means a statement given by a judge on the grounds of a decree or order. thus the contention that against an order passed by a single judge in an appeal filed under section 104 c.p.c., a further appeal lies to a division bench cannot be accepted. the newly incorporated section 100a in clear and specific terms prohibits further appeal against the decree and judgment or order of a single judge to a division bench notwithstanding anything contained in the letters patent. the letters patent which provides for further appeal to a division bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a single judge. it has to be kept in mind that the special statute only provide for an appeal to the high court. it has not made any provision for filing appeal to a division bench against the judgment or decree or order of a single judge. no letters patent appeal shall lie against a judgment/order passed by a single judge in an appeal arising out of a proceeding under a special act. sections 100-a [as inserted by act 22 of 2002] & 104:[dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] writ appeal held, a writ appeal shall lie against judgment/orders passed by single judge in a writ petition filed under article 226 of the constitution of india. in a writ application filed under articles 226 and 227 of constitution, if any order/judgment/decree is passed in exercise of jurisdiction under article 226, a writ appeal will lie. but, no writ appeal will lie against a judgment/order/decree passed by a single judge in exercising powers of superintendence under article 227 of the constitution. m.m. kumar, j.1. the instant petition filed by the revenue under section 260a of the it act, 1961 is directed against the order dt. 27th feb., 2009 passed by the income-tax appellate tribunal, delhi bench (for brevity the tribunal') in ita no. 1580/del/2008 for the asst. yr. 2004-05 in respect of assessee-respondent.2. there is categorical finding recorded by the commissioner of income-tax (appeals) [for brevity 'cit(a)'] holding that value adopted or assessed by any authority of the state government for the purpose of payment of stamp duty in respect of land or building cannot be taken as sale consideration received for the purpose of section 48 of the act. as against the purchase price disclosed in the sale deed at rs. 17,06,700, the ao has adopted the purchase price of the property at rs. 30,32,000, which is assessed for the purpose of paying the stamp duty. accordingly, it was held that the assessee must have paid rs. 13,25,300 over and above the purchase price disclosed in the sale deed and the ao made addition of this difference as income from unexplained sources. the cit(a) deleted this addition by holding that section 50c is a deeming provision for the purpose of bringing to tax the difference as capital gain. the cit(a) further held that in the absence of any legally acceptable evidence, valuation done for the purpose of section 50c would not represent actual consideration passed on to the seller. he placed reliance on the judgment of allahabad high court rendered in the case of cit v. smt. raj kumari vimla devi : (2005) 279 itr 360 (all). in that case allahabad high court has relied upon the observations made by hon'ble supreme court in the case of jawajee nagnatham v. revenue divisional officer : (1994) 4 scc 595 to hold that the basic valuation register prepared and maintained for the purpose of collecting stamp duty could not form the foundation to determine the market value of the acquired land under section 23 of the land acquisition act, 1894. the burden of proof is always on the claimant to prove such a fact and in each case the prevailing market value as on the date of notification published in the state gazette under section 4(1) of the act has to be proved. the tribunal also held that valuation done by any state agency for the purpose of stamp duty would not ipso facto substitute the actual sale consideration as being passed on to the seller by the purchaser in the absence of any admissible evidence. the ao is obliged to bring on record positive evidence supporting the price assessed by the state government for the purpose of stamp duty. the view of the tribunal is clear from para 7 of the its order, which reads thus:from a plain reading of this provision, it emerges out that the value adopted or assessed by any authority of a state government for the purpose of payment of stamp duty in respect of land or building or both, shall for the purpose of section 48 be deemed to be the full value of the consideration received or accruing as a result of transfer. it nowhere provides that the valuation done by the state government for the purpose of stamp duty etc. would ipso facto take place of the actual consideration as being passed on to the seller by the purchaser in the absence of any other evidence. the ao is required to bring positive evidence on record indicating the fact that assessee has paid anything more than the one disclosed in the purchase deed. the department has taken an argument in the grounds of appeal that ao should be directed to make a reference to the valuation officer under section 142a of the act. it also raised a plea that ao has wrongly made a reference of section 50c while making the addition, in fact, the addition is made under section 69b on account of unexplained investment in the property. we have taken cognizance of both these arguments. it is the ao who himself ought to have collected the evidence indicating the fact that assessee has paid more money than the one disclosed in the purchase deed. the tribunal while sitting in the second appeal is not supposed to give directions on the appeal of revenue that a reference to the valuation officer is to be made in order to substantiate the addition. the steps which ao could have taken, if not taken then that lacuna cannot be filled up at the end of the tribunal. in the absence of any evidence exhibiting the fact that assessee has made unexplained investment in the house property, no addition can be justified. learned first appellate authority has appreciated the facts and circumstances in right perspective. we do not find any error in the impugned order on this ground. thus, the ground of appeal raised by the revenue is rejected.3. having heard the learned counsel, we are of the considered view that the view taken by the tribunal while accepting the order of the cit(a) does not suffer from any legal infirmity.4. the argument of the learned counsel for the revenue that the tribunal should have asked the ao to make a reference to the valuation officer under section 142a of the act does not require any detailed consideration because cit(a) had sent the evidence produced by the assessee to the ao for his comments. he conducted an inquiry and asked the assessee-respondent to produce original bank statement. then he sent a reply to the cit(a) authenticating the whole transactions. thereafter the cit(a) and the tribunal have accepted sale consideration depicted in sale deed as fact. the assessee-respondent has discharged the burden of proving the sale consideration as projected in the sale deed. moreover, the learned counsel for the revenue has not been able to point out that the view taken by the allahabad high court in smt. raj kumari vimla devi's case (supra) has been challenged before hon'ble supreme court and the same has been rejected. the aforesaid view seems to have acceptance of the appellant. if that be so then the principle of consistency would require that the aforesaid view be followed as the correct view.5. accordingly, we are of the view that no question of law much less substantial question of law warranting admission of the appeal would arise for determination of this court. dismissed.