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TMI Blog1986 (12) TMI 91X X X X Extracts X X X X X X X X Extracts X X X X ..... y the fair market value of this property would be Rs. 9 lakhs. It is on this finding of fair market value that he had passed an order of acquisition. 2. The property situated in Bellary Road had a frontage of 44 ft. It extends to 176 ft. On the road front, there are 5 shops. In the rear, there are number of rooms which are also let out as shops. The first floor consists of number of rooms, a lodge is run here. The second floor is open terrace with two rooms in the rear. There are in all 19 shops and the lodge consists of 30 rooms. The shops have been let out to a number of persons. It appears that the previous owner Rajendrapal Singh had filed eviction suits to get vacant possession of some of the shops. At the time of transfer of the pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by Sri Ranganathachari. Sro Ranganathahari's first submission is that the notice of acquisition has not been issued to all the 12 transferees and therefore the proceedings are ab initio void. For this submission, he referred to the decision of the Andhra Pradesh High Court in the case of Mohammed Mahboob Ali Saheb v. IAC [1978] 113 ITR 167. Sri Padmanabhan for the department, however, submitted that this is not factually correct and there is evidence to show that notices have been issued to all the transferees. He placed before us the records and we find that 12 notices have been placed in one cover and had been issued for service on all the transferees. Sri Chari submitted that all the 12 notices were placed in one cover and the address ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ether as a matter of fact, these requirements have been compiled with, we would not like to rest our decision on this technical point. 7. Sri Chari then submitted that there was a delay in the availability of the Gazette publication and therefore the proceedings are already barred by limitation. He, however, was unable to state on what date the gazette was available to the public. On the other hand, it has been categorically stated that the notification for acquisition was gazetted on 4-10-1981. Sri Chari submitted that Gazette notification was available on 10-10-1981 even then nothing turns on these two different dates and we are satisfied that proceedings are not barred by limitation. 8. The next objection, also technical, was that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n is based on the rents received from the shops. Therefore, even before the proceedings were started, the competent authority was aware that the property is tenanted and in occupation of tenants. 9. As already stated the decision of the Andhra Pradesh High Court in the case of Mohammed Mehboob Ali Saheb has laid down that the notices must be served on all the persons mentioned is section 269D(2). Sri Padmanabhan for the department fairly admitted that the notices have not been served on those who are in occupation of the shops. But, he submitted that this objection can be taken only by those tenants and proceedings as far as the tenants are concerned must be void but this objection will not be available to those on whom notices were serve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t in the case of IAC v. National Flag Perfumery Works [1986] 159 ITR 737. They had stated that an acquisition under the Income-tax Act, 1961 can be made by the Inspecting Assistant Commissioner of Income-tax on evidence that an stand the test of scrutiny by the appellate authority under the Act and not on assumptions and presumptions. The power has to be exercised with full responsibility, circumspection, earnestness and not casually. Keeping this in mind, we would be very slow in discarding the valuation of two experts, i.e., the departmental valuer and the approved valuer and rely on the valuation made by the Inspector and the competent authority. We totally agree with Sri Padmanabhan that the Valuation Officer's report is not binding on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt features of the business and equates it to mere income from property. This is not correct. The profits from a business can be attributed to management, capital, services, goodwill etc. In order to equate the return from a business with the return from the building in which the business is carried on, it will be necessary to show that the income from business is only due to the building and none of the other elements of business had contributed to it. On the materials placed before us, it is very difficult for us to say that the receipt estimated at Rs. 1.5 lakhs from lodging business was entirely due to the building alone. A lodging business had been conducted in these very premises by the transferor. It is an accepted position that the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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