9911796707
TMI Blog1983 (4) TMI 74X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by him. The last common ground taken in these appeals is that having regard to the various contentions raised before the Valuation Officer by the assessees, the valuation disclosed by the appellants should have been accepted. 3. The assessee, Shri Vamanbhai Bhagwandas, is an individual. The assessment years involved in these appeals are 1970-71 to 1974-75, both inclusive. The other assessee, Shri Ravindra Bhagwandas, is also an individual. The assessment years involved in his case are also the same five assessment years as stated earlier in the case of Shri Vamanbhai Bhagwandas. These two assessees are joint owners, along with other parties, of certain immovable properties. The WTO did not accept the valuation of the immovable properties as returned by the assessee. He referred the question of valuation of those immovable properties to the Valuation Officer, who gave the valuation in his report dated 28-10-1975. The WTO completed the assessments adopting the valuation reported by the Valuation Officer. 4. The assessees appealed to the AAC, and raised several grounds as enumerated in the order of the AAC. The AAC observed that the appellants' appeals were fixed for hearing on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he expert opinion from Shri N. A. Palkhivala, have not been considered by the AAC. He further pointed out that the main ground relating to the excessive valuation of the immovable properties by the Valuation Officer has not been considered by the AAC. According to him, the assessee did not take the only ground as stated by the AAC in his order. In fact, the ground considered by the AAC was only one of the several grounds taken before him. In any case, he stated that the main ground regarding the reasonableness of the valuation adopted by the WTO has not been considered by the AAC. Hence, he submitted that the ex parte order of the AAC might be set aside and the matter may be decided on merits after hearing the assessee. 6. Shri R. N. Vaze, the learned representative for the department, no doubt, tried to support the order of the AAC. However, to a query put by us as to whether the AAC has heard the Valuation Officer as required under section 23(3A) of the Wealth-tax Act, 1957 ('the Act'), he replied in the negative. He fairly stated that if the Tribunal wanted to send back the case to the AAC for being decided afresh in accordance with law, he could have no valid objection in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tical purposes. Per Shri P. S. Dhillon, Judicial Member --- I have gone through the order of my learned brother, Shri Rotho, the Accountant Member, carefully and cautiously. But it is my misfortune that I fail to agree with him. Therefore, I say my say as under. 2. The preliminary issue to be determined in these matters is whether the AAC was justified in disposing of the appeals on 25-6-81 vide his consolidated order of even date as ex parte. It is an admitted position that the notice of hearing was served and received by the assessee for the date fixed on 25-6-1981 with the place and time. The assessee, in pursuance of the notice of hearing, engaged the firm of chartered accountants and one of the partners of this firm, Shri Sarkari, had to appear in these matters before the AAC on behalf of the assessee at the appointed time, place and date. It is an admitted fact that Shri Sarkari did not appear at the appointed time before the AAC on 25-6-1981. Shri Sarkari also admitted that he failed to do so as he was busy in the Tribunal in other matters, and he finished his work in the Tribunal at 12.00 noon and, thereafter, he went to take his lunch. After taking lunch, he went to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e have to see whether Shri Sarkari was prevented under sufficient cause or reason to appear before the AAC on the appointed day and time. The learned Accountant Member has relied on the application dated 25-6-1981, for the purpose. A bare reading of this application shows that the assessee and his representative have criticised the conduct of the AAC in deciding the matters as ex parte, which, too, is belied by the fact that the assessee has admitted that notice of hearing in these matters was served and received by the assessee. Therefore, it was the duty of the assessee or his representative to inform the AAC that on account of Shri Sarkari, being busy in the Tribunal, he should either adjourn the matters or hear these in the afternoon ; which is not done either by the assessee or by Shri Sarkari, who were bound to do it and very well in a position to do so ; as Shri Sarkari is belonging to a firm of chartered accountants. Moreover, the office of the Tribunal and that of the AAC are situated opposite to each other and in between there is a road, which can be crossed, within minutes to be in the office of the AAC. The time required from the office of the Tribunal, cannot be more t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on Officer or department and, as such, the assessee cannot raise it. Moreover, there is no occasion to look into it as the AAC, in disposing of the matters, as ex parte, has followed the valuation report of the Valuation Officer ; and being so, if there is no notice to the Valuation Officer as required under the law, then his ex parte order is not at all illegal. It cannot be taken likely, if Shri Vaze, the learned departmental representative, says so, stating that he has no objection for setting aside the order of the AAC on account of it, which concession is neither required to be recognised by law nor he is within his powers to do so, since he is supposed to act in the interest of the party to whom he represents, i. e., the department. 7. The impugned order of the AAC cannot be set aside on the ground that he has not considered all the grounds in appeal, as he is not supposed to do so, particularly in ex parte decision as in such situation, he is to rely on the case record before him and the assistance rendered by the respondent and vice versa. The sum and substance of the order shows that he has considered all the grounds and rejected these, as he has confirmed the order of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arned Accountant Member held that in making an ex parte decision, the AAC was too rigid and hyper-technical. On the merits of the decision itself, he held that the AAC not having heard the Valuation Officer as required under sub-clause (a) of section 23(3A), his decision suffered from a legal disability. The grounds before the AAC clearly questioned the propriety of the valuation adopted by the WTO. The AAC, however, confined himself to a limited ground, viz., whether the right in the property should have been valued by an actuary or any one else and thus according to the learned Accountant Member all the grounds had not been adjudicated upon by the AAC at all. He vacated the order of the AAC and restored the appeals to his file for being decided afresh in accordance with law after giving a reasonable opportunity of being heard to the parties. 3. The learned Judicial Member on the contrary held that in spite of the notice having been served on the assessee and appointment having been fixed at 12.30 pm on 25-6-1981, the assessee's learned representative appeared before the AAC only at 2.30 pm. According to the learned Judicial Member, the non-appearance on the date and time of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hereto have all been done. According to the learned counsel, apart from the fact that even with two complete hearings earlier, the department has not made up its mind and passed an order of assessment. It was absolutely unfair, to say the least, for the succeeding AAC to have given an appointment with three days notice and even there when the learned representative has presented himself though a little late on account of reasons beyond his control, to inform him that an exparte assessment was already made. According to the learned counsel, even though the appointment was at 12.30 pm he did his best to attend as early as possible. On account of the short notice granted to him he could well have taken the stand that he would not be able to attend on that day. It is also pointed out that there was no justification for the AAC to decide the appeals ex parte, when on two earlier occasions the assessee having attended the office, and the department did not take care to decide them. 5. On merits it is pointed out that the assessees are one of the co-owners of the property to be valued along with 13 others. Both assessments as well as appeals have been properly made in those cases. There ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eipt of the notice and the date of the hearing. In a case where an assessee is represented by an advocate or a professional, it is necessary to give him sufficient time to enable the professional to be contacted, etc. The professional representative also would require time to arrange his affairs so as not to conflict with his pre-fixed appointments. All these require grant of a reasonable notice to the assessee. Serving the notice of appointment on 22-6-1981 and asking the assessees to be present on 25-6-1981 cannot be said to be grant of reasonable opportunity. The assessee, it is true, acknowledged the receipt of the notice and made an earnest effort to attend the office. The time for hearing was 12.30 pm but the assessees' representative attended at 2.30 pm stating that he was free from his pre-fixed appointment at the Tribunal only after the morning session of the Tribunal and immediately thereafter he rushed to be present before the AAC. In my view, this does not smack of lack of diligence on the part of the assessees' representative. On the contrary it indicates care taken by the assessees to fulfil their obligations even though it could have been very easy for them to have n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the conclusion that the AAC erred in making an ex parte decision. I agree with the learned Accountant Member on this point. 10. The facts also indicate that even in making an ex parte decision, the AAC did not follow the correct principles of law. Section 23(3A)(a) mandated an opportunity to the Valuation Officer. Whether the department wanted this or not, non-compliance with this mandatory provision of law would make the AAC's order erroneous and for this reason itself his order should be quashed. It is no excuse to say that the opportunity to the Valuation Officer is for the benefit of the department and the assessees could not challenge it in their appeals. Even this, in my view, is erroneous because the best way to support their case as to valuation would, as far as the assessees are concerned, be to show that the Valuation Officer's stand was untenable. This they could do only if the Valuation Officer was present. The AAC has also not taken into account the various details which the assessees had produced before him by way of evidence such as the legal opinion of a jurist, other factual material, etc. The assessees are part owner along with 13 other persons of this asset ..... X X X X Extracts X X X X X X X X Extracts X X X X
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