9911796707
TMI Blog1996 (6) TMI 21X X X X Extracts X X X X X X X X Extracts X X X X ..... two references is as follows : " Whether, on the facts and in the circumstances of the case, the Appellate Tribunal was justified in cancelling the reassessment by holding that the assessee cannot be said to have failed to disclose fully and truly the material particulars necessary for completing the assessment ? It needs to be stated that in I. T. R. No. 203 of 1989, the assessment year is 1975-76, the previous year ending on March 31, 1975, whereas in I. T. R. No. 3 of 1990 the assessment year is 1974-75, the previous year ending on March 31, 1974. Similarly, in I. T. R. No. 203 of 1989 the notice under section 16(1)(a) was served on the assessee on March 26, 1980 (within four years), and in I. T. R. No. 3 of 1990 also notice was similarly served within the statutory period of four years. It would be seen from the orders of the lower authorities that it is held that the necessary material had been placed before the Gift-tax Officer at the time of the original assessment. In fact, the paragraph quoted in the statement of case from the order of the Tribunal would clearly show that the balance-sheets of the company were also filed before the Gift-tax Officer and in fact he ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the said statutory provision, this court is to decide the question referred to it. This court gets power to decide the question raised in the reference made by the Tribunal and is therefore only concerned with the statement of the case drawn up by the Tribunal in regard thereto. No doubt that if a point of law is implicit in or covered by the question referred by the Tribunal, and no additional facts are necessary to support that point, such a question may be raised for the first time before this court even though it was not considered as not raised before the Tribunal. However, a new point or plea which depends upon the factual situation needing investigation is normally not considered for the first time by this court and in this context it needs to be emphasised that the question sought to be raised, though outside the purview of the question referred, must be found to have been raised even by implication before the authorities below because this court does not get power with regard to the questions not in issue before the authorities below and therefore not decided by the Tribunal and at times such questions cannot be decided and should not be decided by this court even in a s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o believe that any taxable gift has escaped assessment, the provision can be resorted to. Although the statutory provision has to be further found in the text thereof, requires the Gift-tax Officer to serve on the assessee a notice in regard thereto, containing all or any of the requirements, the position is more than settled. The decision of the Patna High Court in CIT v. Surendra Kumar Bhadani [1987] 164 ITR 323, relying on the Full Bench decision of the Calcutta High Court in Smt. Nirmala Birla v. WTO [1976] 105 ITR 483, as well as the decision of the Punjab and Haryana High Court in CIT v. Ess Ess Kay Engineering Co. Pvt. Ltd. [1982] 137 ITR 446, settled the question that if the notice is issued within the period provided by the provision, resort can be had to either of the two clauses and it is not necessary that the two clauses are required to be invoked separately and independently by separate and distinct notices. The Patna High Court had before it a directly referred question to that effect as question No. II therein. Consequently, seeking help from the authoritative pronouncement of the Supreme Court in CIT v. Onkarmal Meghraj (HUF) [1974] 93 ITR 233, it is further rule ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ceedings initiated under section 34(1)(b) of the then Income-tax Act, 1922, the provisions of which are similar to section 16(1)(b) of the Gift-tax Act, 1958. Learned counsel invited our attention to reference to the decision of the Supreme Court in Maharaj Kumar Kamal Singh v. CIT [1959] 35 ITR 1, with regard to what is to be understood as information in the context of the situation. Learned counsel contended that when the Gift-tax Officer, on the basis of fact-finding arrived at by the lower authorities, accepted the balance-sheet filed by the assessee before him as well as the valuation report regarding the original valuation of the shares on the ground that they were based on latest available balance-sheet figures, the authorities have obviously acted contrary to law. In this context, learned senior tax counsel placed reliance on the decision of the Supreme Court in Bharat Hari Singhania v. CWT [1994] 207 ITR 1, in support of the submission that the apex court has laid down in detail the steps to be taken in the process of valuation in accordance with the concerned statutory provisions of the Act and the Rules. The apex court dealt with a batch of petitions under the Wealth-t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ompany other than an investment company or a managing agency company, it is the plain and unambiguous language employed in the rule that is to govern the situation. This is in the spirit of the approach of the court for an endeavour to make every part of the statute effective, harmonious and sensible. With anxiety we have deliberated and considered the above submissions in regard to which as position of law there may not be any dispute whatsoever. We must state that even a contemplation for a resort to the provisions of section 16(1)(b) of the Gift-tax Act is wholly conspicuous by its absence before the three authorities below. The two fact---finding authorities---the first appellate authority the Commissioner, and the Tribunal have been invited to deliberate not in the least with regard to the submission now sought to be placed before us for our consideration. We have already observed that even the question referred to us sets upon us inbuilt limitations to consider whether the assessee failed to disclose fully and truly the material particulars necessary for completing the assessment. We have already stated that not only that the question is closed by the finality of the fact- ..... X X X X Extracts X X X X X X X X Extracts X X X X
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