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IN THE HIGH COURT OF JUDICUATURE AT MUMBAI
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO. 1305 OF 2009
Bhatia Nagar Premises Co-operative )
Society Limited, a Society registered )
under the Maharashtra Co-operative )
Societies Act, 1960, having its office )
at Bhatia Nagar, Shantilal Modi Road,)
Kandivali (West), Mumbai-400 067. )
Represented through its Secretary )
Mr.Krtikumari Rasilal Gandhi. ).. ... Petitioner.
Versus
1) Union of India, )
rd
3 Floor, Aykar Bhavan, )
Maharshi Karve Road, Mumbai.)
)
2) Chief Commissioner of Income )
Tax, )
3rd Floor, Aykar Bhavan, )
Maharshi Karve Road, Mumbai.)
)
3) The State of Maharashtra, )
Sachivalaya, Mumbai. )
)
4) Collector of Stamps, Borivli, )
Mumbai, MMRDA Building, )
1st Floor, Bandra Kurla Complex)
Bandra (East), Mumbai. )
)
5) Sub-registrar, Borivli, Mumbai, )
2nd Floor, Tehsildar Building, )
Natakwala Lane, Mumbai- )
400 092 )... ... Respondents.
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Ms. Riddhi D. Shah for the Petitioner.
Mr. D. J. Khambatta, Addl.Solicitor General with
Mr. Amfroz Shah for Respondent No.1.
Mr. Suresh Kumar for Respondent No.2.
Mr. N. Pandit, AGP for Respondent Nos.3,4 and 5.
CORAM : F. I. REBELLO &
A. A. SAYED, JJ.
ig DATED : 15TH MARCH, 2010
J U D G E M E N T ( Per F. I. Rebello, J.)
. :
1. The prayer clause (a) as amended seeks the following relief:
“(a) This Honourable Court be pleased to issue a writ of
certiorari or a writ in the nature of certiorari or any
other appropriate writ, order or directions under Article
226 of the Constitution of India, calling for the records
and proceedings of Demand Notice dated 23-10-2008
issued by the Respondent No.4 under the Stamp Act and
to quash and set aside the same being exhibit “A” hereto.
(aa) Section 50-C of the Income Tax Act, 1961 be held
and/or declared as ultra vires of the Articles of
Constitution of India.”
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2. A few facts may be set out. The petitioner is a Co-operative
Society, which is the owner of the land on which stands a building,
which they have allowed Ankur Realty Private Limited, Mumbai, to
develop and sell under the Development Agreement. The Agreement
was sought to be registered as required under the provisions of the
Bombay Stamp Act, 1958 (hereinafter referred to as “the Stamp
Act”). In terms of First Schedule entry 5(g-a) of the Stamp Act, the
agreement if relating to giving authority or power to a promoter or a
developer, by whatever name called, for construction on,
development of or, sale or transfer (in any manner whatsoever) of,
any immovable property, the duty chargeable is the same as is
leviable on a conveyance under clauses (b), (c) or (d), as the case
may be, of Article 25, on the market value of the property.
Respondent No.4 by Demand Notice dated 23rd October, 2008 called
on the Developer to pay an amount of Rs.15,50,030/- as stamp duty
as also a penalty in the sum of Rs.1,55,010/-. The Developer paid the
said amount along with penalty.
3. It is the case of the petitioner that though the demand was
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issued in the name of the Developer, the order adversely affects their
right and interest as valuation worked out has a direct nexus to
Section 50C of the Income Tax Act which adversely affects the
liability of the petitioner Society to the extent of Rs.1,91,90,568/- as
the consideration was raised from Rs.4,85,00,000/- to
Rs.15,50,00,000/- and as such the Capital Gain Tax will have to be
paid accordingly.
4. By the present petition, the challenge is to Section 50C of the
Income Tax Act, 1961 as introduced by the Finance Act, 2002 with
effect from 1st April, 2003. The grounds raised are as under:
(A) Section 50C must have direct nexus and must emanate
from the provisions of Section 45, which is the charging
Section of the Act. It is, therefore, submitted that what
Section 45 brings under the levy is profits and gains
arrived or accrued and not the valuation of the Stamp
Valuation Authority as arbitrarily determined and fixed
under Section 50C of the Act.
(B) Section 50C does not start with a non-obstante clause
and therefore the same cannot be construed to operate
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without due obedience and confirmation with the other
provisions of the Act and in view of that Section 50C
cannot be read into Section 48 of the Act which
prescribes the procedure for computation of capital
gains of the Assessee. Section 48 stipulates the full value
of the consideration received or accruing as a result of
the transfer of the capital asset and not the valuation of
the Valuation Officer for the purpose of stamp duty
determined under any some other law.
(C) Section 54 to 54ED provides for exemption on Capital
Gain Tax of Assessee. The Assessees, who have been
assessed as per the valuation as prescribed under
Section 50C of the Act cannot invest the excess amount
of difference which is not received or receivable by
them but is assumed to have been received under the
said section and thereby the Petitioner as well as such
Assessee affected by Section 50C of the Act cannot even
avail of the benefit of exemption upon Capital Gain Tax
as available under Section 54 of the Act and as such
Section 50C is not in consonance with other provisions
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of the Act resulting into illegal and unreasonable
discrimination without any justification. Section 55A
provides for reference to the Valuation Officer for
ascertaining the fair market value of the capital asset.
Therefore, when there is a provision prescribing for
valuation to be assessed by the Valuation Officer, no
additional purpose will be served by introducing Section
50C of the Act. It is submitted that what can be checked
and controlled is evasion of tax and the remedy should
be proportionate and same cannot partake the nature of
confiscatory measure. Section 50C is a draconian
provision which is in absolute contrast to the objects and
purposes of the Income Tax Act, 1961.
(D) That the Income Tax Act, 1961 is a law made under
Entry 82, Schedule VII – List I of the Constitution of
India. As such considering Sections 4 and 5 of the Act,
which contemplate levy or tax upon all income and by
no stretch of imagination the meaning and scope of
`total income’ be substituted by “the Valuation assessed
by Stamp Valuation Authority for the purpose of stamp
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duty”. The meaning of `Income’, therefore, under
Section 50C is beyond what is stipulated under entry 82
List I of Seventh Schedule of the Constitution.
(E) Section 50C as introduced by the Finance Act does not
provide the rate of tax or manner of liability but in effect
substitutes the `valuation of the Stamp Valuation
Authority’ with the `total income’ of the Assessee while
assessing the liability of the income tax which amounts
to alteration of the subject matter of Income Tax Act
itself. That the subject matter of the Act is income other
than agricultural income and the relevant Finance Act
by introducing Section 50C seeks to change/ alter/
substitute the subject matter of the Act as what is
brought under the net of Income Tax is not all income
received or deemed to be received or accrues or arises or
is deemed to accrue or arise to the Assessee but the
Valuation of the Stamp Valuation Authority, which
evidently is beyond the provisions of the Constitution of
India.
(F) The right of the Assessee to put forward the assessment
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of his income is arbitrarily and unilaterally taken away
by enacting Section 50C without any reasonable
justification. Section 50-C, it is submitted, in effect alters
the very nature and concept of the `total income’ and
precisely adopts `the stamp duty valuation of the
instrument’ and not `computation of total income’ as the
basis or subject of the Tax under the Income tax Act,
which is patently ultra vires the Constitution of India
and the provisions of the income Tax Act.
(G) The Indian Stamp Act (or the Bombay Stamp Act, 1958)
is a fiscal statute whose main object is to make available
certain dues and to collect revenue and all its provisions
must be construed as having in view the protection of
revenue and prevention of evasion of the revenue that it
imposes.
(H) How can Section 50C have valid operation and
enforcement as what is implied by Section 50C is
adoption of valuation of property for the purpose of
stamp duty upon an instrument and has therefore no
direct, proximate and reasonable nexus with the `total
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income’ of the Assessee which is the subject matter of
charge of tax and as such Section 50C is ultra vires to
the provisions of the Indian Constitution.
(I) When there is no assessment of income but only the
stamp duty upon the instrument for the purpose of
revenue is what is determined by the Stamp Duty
Officer, how could Section 50C to that extent declare
such valuation as the income of the Assessee. It discloses
no reasonable classification or intelligible differentia to
justify the operation of Section 50C of the Act and is
therefore violative of Article 14 and Article 300A of the
Constitution of India. It is a direct infringement upon
the fundamental right to carry on any occupation or
trade as guaranteed under Article 19 of the Constitution
of India and in the process it violates Article 300A of the
Constitution of India.
(J) “Market value” is defined under the Bombay Stamp Act
under Section 2(na). The market value or the stamp
duty determined upon any instrument of transfer does
not connote the consideration received upon such
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transfer and therefore adopting the stamp duty
valuation as the income or consideration received by the
Assessee as declared under Section 50C of the Act is
wholly misconceived and the same is not in consonance
with the Scheme of the Income Tax Act. The Central
Enactment in terms of Section 50C is superior to the
State Act and providence of Central Enactment
depending upon the outcome under the State Act, must
be held as unconstitutional and ultra vires the provisions
of the Constitution of India.
5. Notice was issued to the Attorney General. Learned Additional
Solicitor General points out that the issue is covered by the Division
Bench Judgment of the Madras High Court in the case of K. R.
Palanisamy v/s Union of India, reported in (2009) 180 Taxman 253
(Madras). The Madras High Court, it is submitted, has held that
Section 50C is constitutionally valid and the various arguments
raised have been rejected. Placing reliance on Union of India & Anr.
v/s A. Sanyasi Rao & Ors., reported in AIR 1996 SC 1219, it is
pointed out that the valuation taken for the purpose of stamp
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valuation is only a measure for the purpose of levying tax and as
such the various contentions raised on that count must be rejected. It
is only a measure for levying tax and as such it will not alter the
nature and basis of levying the tax imposed as if is a tax on income.
6. On behalf of the petitioner, learned Counsel sought to bring to
our attention an unreported judgment of the Single Judge of the
Madras High Court in the case of N. Meenakshi v/s The Assistant
Commissioner of Income Tax (Writ Petition No. 851 of 2009 decided
on 11th September, 2009) where the order in respect of the valuation
done by the Valuation Officer under Section 50C(2) of the Income
Tax Act, 1961 and the assessment thereto was challenged. The
Assessing Officer had taken the value of the land determined for the
stamp duty purpose as the same value as no valuation report was
received from the Valuation Authority till the said date. The matter
was remanded. At the same time, the order notes that the petitioner
had also filed a petition challenging the vires of Section 50C which
was dismissed. The question of vires of the provision was left open.
7. In the instant case no reply has been filed on behalf of the
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Union of India. Learned Addl. Solicitor General, however, submits
that considering the stand of Union of India before the Madras High
Court in the case of K. R. Palanisamy (supra), he is adopting the said
contention and the petition can be disposed of on that basis as no
new facts are involved.
8.
On behalf of respondent No.4, reply has been filed by Eknath
Marutirao Navle, the Collector of Stamps, Borivali. It is set out that
demand has been issued by the Collector pursuant to an order passed
under Section 31 of the Bombay Stamp Act on a reference made by
the Developer under Section 31 of the Bombay Stamp Act for
determination of the stamp duty payable. Against that order, there is
a remedy available under Section 53 of the Stamp Act. On this count
itself the petition ought not to be entertained.
The stamp duty, it is set out, has been correctly levied under
Schedule 1 Article 5(g-a) at the rate of 1% on the market value. The
market value of the property in relation to any property which is the
subject of the instrument is the price of the property which such
property would have fetched if sold in open market or consideration
stated in the instrument, whichever is higher. After considering
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various aspects, it was held that the sum total of all the Development
Agreement comes to Rs.15 crores, on which the stamp duty of 1%
has been calculated and has been levied and accordingly demanded.
Thus the consideration to be received by the Society under the
Agreements in terms of money has been taken to be the market value
of the property.
9. For the purpose of discussion, we may gainfully reproduce
Sections 45, 48 and 50C of the Income Tax Act, which read as under:
“45. Capital gains.- (1) Any profits or gains arising from the
transfer of a capital asset effected in the previous year shall,
save as otherwise provided in sections 53, 54 and 54B, 54D,54E, 54EA, 54EB, 54F, 54G and 54H, be chargeable to income-
tax under the head `Capital Gains’, and shall be deemed to be
the income of the previous year in which the transfer took
place.48. Mode of Computation.- The income chargeable under the
had `Capital Gains’ shall be computed by deducting from the
full value of the consideration received or accruing as a result
of the transfer of the capital asset the following amounts,namely:-
(i) expenditure incurred wholly and exclusively in
connection with such transfer;(ii) the cost of acquisition of the capital asset and the
cost of any improvement thereto.
50C. Special provision for full value of consideration in certain
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cases.- (1) Where the consideration received or accruing as a
result of the transfer by an assessee of a capital asset, being
land or building or both, is less than the value adopted or
assessed by any authority of a State Government (hereafter in
this Section referred to as the `stamp valuation authority’) forthe purpose of payment of stamp duty in respect of such
transfer, the value so adopted or assessed shall, for the
purposes of section 48, be deemed to be the full value of the
consideration received or accruing as a result of such transfer.
(2) Without prejudice to the provisions of sub-section (1),
where –
(a) the assessee claims before any Assessing Officer
that the value adopted or assessed by the stamp
valuation authority under sub-section (1) exceeds
the fair market value of the property as on the
date of transfer;
(b) the value so adopted or assessed by the stamp
valuation authority under sub-section (1) has notbeen disputed in any appeal or revision or no
reference has been made before any authority,
court or the High Court.
The Assessing Officer may refer the valuation of the capital
asset to a Valuation Officer and where any such reference is
made, the provisions of sub-sections (2), (3), (4), (5) and (6)
of section 16A, clause (I) of sub-section (1) and sub-sections
(6) and (7) of section 23A, sub-section (5) of section 24,
section 34AA, section 35 and section 37 of the Wealth-Tax Act,
1957 (27 of 1957), shall, with necessary modifications, apply
in relation to such reference as they apply in relation to a
reference made by the Assessing Officer under sub-section (1)
of section 16A of that Act.
(3) Subject to the provisions contained in sub-section (2),
where the value ascertained under sub-section (2) exceeds the
value adopted or assessed by the stamp valuation authority
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referred to in sub-section (1), the value so adopted or assessed
by such authority shall be taken as the full value of the
consideration received or accruing as a result of the transfer.”
10. A perusal therefore reveal that under Section 50C the value
adopted by Stamp Valuation Authority or assessed for the purpose of
Section 48, shall be deemed to be the full value of the consideration
received or accruing as a result of the transfer. Apart from that under
sub-section (2) where the assessee claims before any Assessing
Officer that the value adopted or assessed, exceeds the fair market
value of the property as on the date of transfer and the value so
adopted by the Stamp Valuation Authority has not been disputed by
any appeal or revision or no reference has been made before any
authority, Court or High Court, the Assessing Officer may refer the
valuation of the capital assets to the Valuation officer. Thus, even
though, if an appeal has not been preferred and in the instant case
reference was sought by the Developer and not the petitioner, the
petitioner has a remedy of calling on the Assessing Officer to appoint
the valuer for the purpose of determinating the fair market value. We
may also note that under Section 50C, the value so adopted or
assessed by any Authority of the state Government, referred to as the
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Stamp Valuation Authority is only a measure of tax and not the
subject matter of a tax. For that principle, we may gainfully refer to
the observation of the Supreme Court in A. Sanyasi Rao & Ors.
(supra) which was a judgment arising from the judgment of the
Andhra Pradesh High Court. Before the Andhra Pradesh High Court
there was a challenge to the Constitutional validity of Sections 44AC
and 206C of the Income Tax Act. After considering various
contentions, the learned Division Bench of the Andhra Pradesh High
Court was pleased to hold that Section 44AC is an adjunct to Section
206C. Tax was to be computed based on the purchase price. Both the
Assessee and the Revenue Authority preferred appeal to the
Honourable Supreme Court independently. There were some
petitions under Article 32 of the Constitution of India. While
considering the appeal in the matter of levying tax on purchase price,
this is what the Honourable Supreme Court observed:
“. . . . . In this context, we should bear in mind that there is a
clear distinction between the subject matter of a tax and the
standard by which the amount of tax is measured. Having
regard to the past difficulties in making a normal assessment
and collection in the case of certain categories of assessees, for
convenience sake, the legislature has chosen to make
appropriate provision for collection of tax at an anterior stage
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view, this is permissible and the standard by which the amount
of tax is measured, being the purchase price, will not in any
way alter the nature and basis of levy viz. that the tax imposed
is a tax on income. It cannot be labeled as a tax on purchase of
goods.”
It is, therefore, clear that the valuation rule of the Stamp Act is for
the purpose of computation of income which is only a standard of
measure for imposing tax.
11. With that we will now consider the various arguments
advanced at the Bar. It may be mentioned that the petition as earlier
filed, apart from the bald averments that Section 50C of the Income
Tax Act be declared as ultra vires, no grounds to that effect were
raised which have been subsequently pleaded by way of an
amendment. Additional prayer clause has also been included to
challenge the demand notice dated 23rd October, 2008 issued by
respondent No.4 under the Stamp Act and to set aside and quash the
same.
12. In so far as prayer clause (a), as now substituted by the
amendment is concerned, we are clearly of the opinion that as the
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Developer had sought a reference on which the Competent
Authority under the Stamp Act had given the valuation and pursuant
thereto paid the duty as also the penalty imposed, that challenge will
not be available to the petitioner in this petition as there is no longer
a demand notice to be complied with.
13.
We shall therefore confine ourselves to consider prayer clause
(aa) by which it is prayed that Section 50C of the Income Tax Act be
declared as ultra vires the Constitution of India. Learned Counsel on
behalf of the petitioner had sought to draw our attention to the
judgment of the Supreme Court in Commissioner of Income Tax,
Bombay City-I v/s Khatau Makanji Spinning and Weaving Co. Ltd.,
1960 Vol. XL Income Tax Reports page 189, to the following
observations, namely, that under Section 3 of the Income Tax Act,
income tax is a tax on the income of the previous year and it would
not cover something which is not the income of the previous year, or
made fictionally so. Section 45 provides for the mode of computation
of income chargeable under the head `Capital Gains’. Section 50C is
a measure provided to bridge the gap as it was found that assessees
were not correctly declaring the full value of the consideration or in
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other words resorting to the practice of undervaluation. The Madras
High Court in K. R. Palanisamy (supra) has noted that the legislative
history reveals that prior to the insertion of the impugned provision,
section 52(2) was there in the statute which was also meant to check
the avoidance of capital gain tax. After the deletion of the said
proviso, Chapter XX-A was introduced empowering the government
to acquire immovable property in specific cases. Thereafter, Chapter
XX-C was introduced. All these provisions were directed only to
check and prevent the evasion of tax by undervaluing the
consideration of the transfer of capital assets.
14. We may now deal with the contention as formulated under
grounds (A), (B), (E), (F), (G), (H), (I) and (J) of paragraph 4
above. Section 45 treats income under the head as deemed income of
the previous year in which the transfer took place. Section 50C is a
special provision for providing the measure of tax for assessing the
income under the head capital gain. Consequently it must be read
with Section 45. The submission that what Section 45 brings under
the levy is profits and gains arrived or accrued and not the valuation
of the Stamp Valuation Authority as arbitrarily determined and fixed
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under Section 50C of the Act is also misplaced. As noted, Section 50C
is only a standard of measure for computation of the tax which is
chargeable under Sections 4 and 5 of the Income Tax Act. The tax is
only computed in the manner laid down under those provisions
referred to earlier.
15.
Section 45 itself notes the provision of Section 54 to 54EB.
Therefore, the income received by way of capital gain would be
subject to the provisions of Sections 54 to 54EB. The income is
deemed to have been received and that is the point of time on which
the income has to be assessed. It therefore, cannot be the case that
the assessee would not be entitled to the benefit of exemption. It also
cannot be said that such a classification would be arbitrary or
unreasonable and/or discriminatory. Section 50C has been
specifically introduced with a view to prevent evasion of tax and
under valuation of the transaction. It is in that context that Section
45, Section 48 and Section 50C must be read. The classification,
therefore, is in respect of an identifiable group of assessees. Both
classes have to pay capital gains tax. Insofar as Section 50C is
concerned, it pertains to a class of capital assets being land or
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building. We therefore do not find that the classification as being
unreasonable and consequently discriminatory considering the object
being, to tax the income arising from capital gains. Those grounds
enumerated earlier, therefore, have no merit and are consequently
rejected.
16.
We may next deal with the argument that the Income Tax Act
is a law made under Entry 82, Schedule VII – List I of the
Constitution of India and consequently the valuation assessed by the
Stamp Valuation Authority is illegal as such a provision would be
beyond the field of legislation under Entry 82 List I of 7th Schedule
and as such beyond the competency of Parliament. In our opinion,
this argument has to be rejected. Similar contention was raised in the
case of A. Sanyasi Rao & Anr (supra) by contending that the tax
levied there was on the purchase price and not the tax on income. In
that case, as we have noted earlier, what was under consideration
was Section 44AC of the Income Tax Act which was a special
provision for computing profits and gains from the business of
trading of certain goods. The measure there was the purchase price.
Argument sought to be contended was that the Parliament would not
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have competence to legislate as it would be beyond Entry 82 of List
1. After considering the various judgments and noting that purchase
price were only a standard of measure, the Honourable Supreme
Court was pleased to hold that it was within legislative competence,
by observing that the charge for the levy of income accrued or arose
as laid down by the charging sections 4 and 5 and not by virtue of
Section 44AC or Section 206C. In our opinion, the ratio of that
judgment would clearly apply to the facts of the present case. A
similar argument was advanced also before the Andhra Pradesh High
Court. After considering the test for interpretation of taxing statute
the Honourable Court noted that the tax was within legislative
competence.
17. Thus the two contentions raised before us, namely, (1) that
Section 50C is beyond the legislative competence and (2) that it is
violative of Article 14 of the Constitution of India, in our opinion are
devoid of merits.
18. We have not referred to any judgments on the rules of
interpretation as in our opinion the judgment of the Supreme Court
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in A. Sanyasi Rao (supra) and the judgment of the Madras High
Court in K. R. Palanisamy v/s Union of India, (2009) 180 Taxman
253 (Mad) has made reference to the judgments on the rules of
interpretation.
19. Our attention was also invited to another judgment of the
learned single Judge of the Madras High Court in N. Meenakshi v/s
The Assistant Commissioner of Income Tax, 2009 LawSuit (Mad)
1653. That petition was directed against the Assessment Order of
respondent. In that case reference has been made to the Valuation
Officer. However, before the report was received, the assessment was
done by taking the value of the land as determined for stamp duty.
The petitioner had filed the petition challenging the vires of Section
50C of the Act which was dismissed. The assessee approached the
Supreme Court which rejected the Special Leave Petition and
directed the petitioner to approach the authority by keeping open the
question of vires of the provisions. This judgment, in our opinion,
could be of no assistance as the only issue left open for consideration
was the vires of the act.
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20. It is not the case of the petitioner that the valuation could not
have been done under the provisions of the Bombay Stamp Act, 1958
and/or that the Collector acted contrary to law in levying stamp duty
under Schedule I Article 5(ga). Even otherwise as noted earlier, in
the process of assessment it will be open to the assessee to invoke the
provisions of Section 66 by asking on the Assessing Officer to refer
the matter to the Valuation Office and that would be within the
jurisdiction of the Valuation Officer. We are in agreement with the
view taken by the Madras High Court in K. R. Palanisamy (supra).
21. For the aforesaid reasons, there is no merit in this writ petition.
Rule accordingly discharged. There shall be no order as to costs.
Sd/-
(F.I. REBELLO,J.)
Sd/-
(A. A. SAYED, J.)
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