T.M.S. Mohammed Abdul Kader vs Commissioner of Gift-Tax, Madras

Ramakrishan, J.—This tax case petition was filed u/s 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 intermediate 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 u/s 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 u/s 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. Counsels fee Rs. 150