1998 (11) TMI 93 - HC - Income Tax

Summary

Issues Involved:
1. Legality of the notice issued u/s 148 of the Income-tax Act, 1961.
2. Basis for reopening the assessment u/s 147 of the Income-tax Act, 1961.
3. Validity of using a valuation report as the basis for issuing a notice u/s 148.

Summary:

1. Legality of the Notice Issued u/s 148:
The petitioner challenged the notice dated April 7, 1995, issued by respondent No. 1 u/s 148 of the Income-tax Act for the assessment year 1992-93. The court initially found the notice illegal but later determined it was issued within four years from the end of the relevant assessment year, making the timing of the notice compliant with statutory requirements.

2. Basis for Reopening the Assessment u/s 147:
The notice u/s 148 was issued based on a report from the Valuation Officer regarding the value of the Soya Unit sold by the petitioner. The Assessing Officer believed that income (capital gain) had escaped assessment due to the higher valuation of the assets transferred. The petitioner argued that the reopening of the assessment was solely based on the valuation report, which cannot be a valid ground for such action.

3. Validity of Using a Valuation Report:
The court examined whether a valuation report could be the basis for issuing a notice u/s 148 read with section 147. It was noted that section 52(2), which allowed taxation based on fair market value, was omitted from the Act effective April 1, 1988. The court referenced the Supreme Court's decision in K. P. Varghese's case, stating that no capital gain can be taxed unless it is proven that there is an understatement of consideration. A valuation report is merely an opinion and does not prove any underhand dealing or additional consideration passing beyond what is disclosed by the assessee.

Conclusion:
The court concluded that the valuation report could not be used as a basis for reopening the assessment u/s 148, as no addition can be made on the basis of fair market value in the case of capital gains tax. Consequently, the notice dated April 7, 1995, issued u/s 148 was quashed, and the petition was allowed with no order as to costs. The request for a stay of the judgment's operation was refused.