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TMI Blog1983 (9) TMI 46X X X X Extracts X X X X X X X X Extracts X X X X ..... xhibits B and C) completed the assessments for the aforesaid years accepting the cost of construction as estimated by the registered valuer. On a reference made by the ITO on December 18, 1975, the official Valuation Officer of the Department by his report dated. September 26, 1976 (Exhibit E), reported that the cost of the construction of the theatre was Rs. 6,12,000 as against Rs. 4,79,050 as stated by the petitioner and supported by the registered valuer. On the basis of that report of the official valuer, the ITO treating the same as an information as to a fact, has issued notices on November 22, 1976, under s. 147(b) of the Act to the petitioner for reopening the concluded assessments and has called upon it to file its returns within the stipulated time, the validity of which are challenged by the petitioner in these petitions under art. 226 of the Constitution. Both sides are agreed that the impugned notices are issued on the basis of the report dated September 26, 1976, and on no other material, though they disagree on the question whether the same would constitute an information as to a fact. Sri G. Sarangan, the learned counsel for the petitioner, has contended that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... papers Society v. CIT [1977] 119 ITR 996, the Supreme Court while examining whether the opinion expressed by internal audit party of the Income-tax Department would constitute information as to law or fact, reiterated the 'principles stated in Maharaj Kumar Kamal Singh's and Raman's cases and expressed thus (p. 1001): "That definition has been reaffirmed in subsequent cases, and with it as the point of departure, we shall now proceed. In so far as the word " information " means instruction or knowledge concerning facts or particulars, there is little difficulty. By its inherent nature, a fact has concrete existence. It influences the determination of an issue by the mere circumstance of its relevance. It requires no further authority to make it significant. Its quintessential value lies in its definitive vitality". Bearing these principles, it is now necessary to examine the contention urged for the petitioner. The cost of construction would vary from person to person, from place to place, from time to time and the reports of valuers also would vary from valuer to valuer that the official valuer's report can be obtained on the " fair market value " for determining the capit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... On this opinion so expressed by Pendse J., I expressed thus in Kemptur's case : " The one and the only reason given by His Lordship in this case is that mere change of opinion of the succeeding officer was not enough to reopen the assessment. If that is so, which is also the settled legal position, that is undoubtedly correct. But that is not the position in the present case. In these cases, the WTO has proposed to reopen the assessments on the basis of an information as to a fact of the Valuation Officer under section 16A of the Act, which I have earlier examined and held was an information as to a fact within the meaning of that term occurring in section 17(1)(b) of the Act. In this view, the ratio in Tulsidas Kilachand's case [1980] 122 ITR 458 (Bom), does not bear on the point." Let me assume that the facts of these cases and the question that arises is similar to Tulsidas Kilachand's case [1980] 122 ITR 458 (Bom), and examine the same on that basis. Earlier I have held that the rulings of the Supreme Court in Simon Carves' case [1975] 105 ITR 212 (SC), does not bear, on the point. What have said in Simon Carves' case [1975] 105 ITR 212 (SC), is also true of CIT v. Din ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wing the assessee's writ petition on the point whether the WTO having completed the assessment accepting the assessee's valuation, can reopen the assessment on the basis of the departmental valuer's report, and whether the departmental valuer's valuation report constitutes 'information' within the meaning of s. 17(1)(b) of the W.T. Act, 1957: D. R. CHAWLA, WTO v. RAM DAS KILACHAND S.L.P. (Civil) No. 5663 of 1980". From this report it is difficult to hold that the Supreme Court has affirmed the ruling in Tulsidas Kilachand's case [1980] 122 ITR 458 (Bom), and laid down a binding principle to be followed. On this short ground hold that there are no grounds for me to follow the principles stated by the Bombay High Court in Tulsidas Kilachand's case. But, more important than the above reason, as pointed out by the Supreme Court in Daryao v. State of U.P., AIR 1961 SC 1457, the dismissal of a special leave petition by the Supreme Court at the admission stage without giving reasons, for a variety of reasons, does not lay down any binding principle under art. 141 of the Constitution to be followed by the High Courts. For these reasons, I do not find any ground to reconsider the views ..... X X X X Extracts X X X X X X X X Extracts X X X X
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