{"id":7650,"date":"2010-03-15T00:00:00","date_gmt":"2010-03-14T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/mr-krtikumari-rasilal-gandhi-vs-union-of-india-on-15-march-2010"},"modified":"2016-05-26T03:42:17","modified_gmt":"2016-05-25T22:12:17","slug":"mr-krtikumari-rasilal-gandhi-vs-union-of-india-on-15-march-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/mr-krtikumari-rasilal-gandhi-vs-union-of-india-on-15-march-2010","title":{"rendered":"Mr.Krtikumari Rasilal Gandhi. vs Union Of India on 15 March, 2010"},"content":{"rendered":"
Bombay High Court<\/div>\n
Mr.Krtikumari Rasilal Gandhi. vs Union Of India on 15 March, 2010<\/div>\n
Bench: F.I. Rebello, A.A. Sayed<\/div>\n
                                                                           \n                                          1\n\n             IN THE HIGH COURT OF JUDICUATURE AT MUMBAI\n\n\n\n\n                                                   \n                  ORDINARY ORIGINAL CIVIL JURISDICTION\n\n                     WRIT PETITION NO.   1305    OF 2009\n\n\n\n\n                                                  \n     Bhatia Nagar Premises Co-operative  )\n     Society Limited, a Society registered  )\n\n\n\n\n                                      \n     under the Maharashtra Co-operative  )\n     Societies Act, 1960, having its office  )\n                       \n     at Bhatia Nagar, Shantilal Modi Road,)\n     Kandivali (West), Mumbai-400 067. )\n     Represented through its Secretary  )\n                      \n     Mr.Krtikumari Rasilal Gandhi.           )..   ...      Petitioner.\n\n           Versus\n\n     1)    Union of India,                 )\n      \n\n            rd\n           3  Floor, Aykar Bhavan,         )\n           Maharshi Karve Road, Mumbai.)\n   \n\n\n\n                                           )\n     2)    Chief Commissioner of Income )\n           Tax,                            )\n           3rd Floor, Aykar Bhavan,        )\n\n\n\n\n\n           Maharshi Karve Road, Mumbai.)\n                                           )\n     3)    The State of Maharashtra,       )\n           Sachivalaya, Mumbai.            )\n                                           )\n\n\n\n\n\n     4)    Collector of Stamps, Borivli,  )\n           Mumbai, MMRDA Building,  )\n           1st Floor, Bandra Kurla Complex)\n           Bandra (East), Mumbai.          )\n                                           )\n     5)    Sub-registrar, Borivli, Mumbai, )\n           2nd Floor, Tehsildar Building,  )\n           Natakwala Lane, Mumbai-         )\n           400 092                         )...    ...      Respondents. \n\n\n\n\n                                                   ::: Downloaded on - 09\/06\/2013 15:43:08 :::\n                                                                                       \n                                                  2\n\n\n\n\n                                                              \n     Ms. Riddhi D. Shah for the Petitioner.\n     Mr. D. J. Khambatta, Addl.Solicitor General with \n     Mr. Amfroz Shah for Respondent No.1.\n     Mr. Suresh Kumar for Respondent No.2. \n\n\n\n\n                                                             \n     Mr. N. Pandit, AGP for Respondent Nos.3,4 and 5.\n\n\n                                              CORAM :          F. I. REBELLO & \n\n\n\n\n                                              \n                                                               A. A. SAYED, JJ. \n                             ig               DATED  :   15TH MARCH, 2010\n                           \n      J U D G E M E N T ( Per F. I. Rebello, J.)\n<\/pre>\n
                                                . :\n<\/p>\n
     1.     The prayer clause (a) as amended seeks the following relief:\n<\/p>\n
            “(a) This   Honourable   Court   be   pleased   to   issue   a   writ   of <\/p>\n
                      certiorari   or   a   writ   in   the   nature   of   certiorari   or   any <\/p>\n
                      other appropriate writ, order or directions under Article <\/p>\n
                      226 of the Constitution of India, calling for the records <\/p>\n
                      and   proceedings   of   Demand   Notice   dated   23-10-2008 <\/p>\n
                      issued by the Respondent No.4 under the Stamp Act and <\/p>\n
                      to quash and set aside the same being exhibit “A” hereto.<\/p>\n
            (aa) Section   50-C   of   the   Income   Tax   Act,   1961   be   held <\/p>\n
                      and\/or   declared   as   ultra   vires   of   the   Articles   of <\/p>\n
                      Constitution of India.”\n<\/p><\/blockquote>\n
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                                             3<\/span><\/p>\n
     2.     A few facts may be set out. The petitioner is a Co-operative <\/p>\n
     Society, which is the owner of the land on which stands a building, <\/p>\n
     which they have allowed Ankur Realty Private Limited, Mumbai, to <\/p>\n
     develop and sell under the Development Agreement. The Agreement <\/p>\n
     was sought to be registered as required under the provisions of the <\/p>\n
     Bombay   Stamp   Act,   1958   (hereinafter   referred   to   as   “the   Stamp <\/p>\n
     Act”). In terms of First Schedule entry 5(g-a) of the Stamp Act, the <\/p>\n
     agreement if relating to giving authority or power to a promoter or a <\/p>\n
     developer,   by   whatever   name   called,   for   construction   on, <\/p>\n
     development of or, sale or transfer (in any manner whatsoever) of, <\/p>\n
     any   immovable   property,   the   duty   chargeable   is   the   same   as   is <\/p>\n
     leviable on a conveyance under clauses (b), (c) or (d), as the case <\/p>\n
     may   be,   of   Article   25,   on   the   market   value   of   the   property.\n<\/p>\n
     Respondent No.4 by Demand Notice dated 23rd October, 2008 called <\/p>\n
     on the Developer to pay an amount of Rs.15,50,030\/- as stamp duty <\/p>\n
     as also a penalty in the sum of Rs.1,55,010\/-. The Developer paid the <\/p>\n
     said amount along with penalty.\n<\/p>\n
     3.     It is the  case of the  petitioner that though the demand was <\/p>\n
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                                               4<\/span><\/p>\n
     issued in the name of the Developer, the order adversely affects their <\/p>\n
     right   and   interest   as   valuation   worked   out   has   a   direct   nexus   to <\/p>\n
     Section   50C   of   the   Income   Tax   Act   which   adversely   affects   the <\/p>\n
     liability of the petitioner Society to the extent of Rs.1,91,90,568\/-  as <\/p>\n
     the   consideration   was   raised   from   Rs.4,85,00,000\/-   to <\/p>\n
     Rs.15,50,00,000\/- and as such the Capital Gain Tax  will have to be <\/p>\n
     paid accordingly.\n<\/p>\n
     4.     By the present petition, the challenge is to Section 50C of the <\/p>\n
     Income Tax Act, 1961 as introduced by the Finance Act, 2002 with <\/p>\n
     effect from 1st April, 2003. The grounds raised are as under:\n<\/p>\n
             (A)    Section 50C must have direct nexus and must emanate <\/p>\n
                    from the provisions of Section 45, which is the  charging <\/p>\n
                    Section of the Act. It is, therefore, submitted that what <\/p>\n
                    Section   45   brings   under   the   levy   is   profits   and   gains <\/p>\n
                    arrived or accrued and not the valuation of the Stamp <\/p>\n
                    Valuation Authority as arbitrarily determined and fixed <\/p>\n
                    under Section 50C of the Act.\n<\/p><\/blockquote>\n
             (B)    Section 50C does not start with a non-obstante clause <\/p>\n
                    and therefore the same cannot be construed to operate <\/p>\n
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                                      5<\/span><\/p>\n
           without due obedience and confirmation with the other <\/p>\n
           provisions  of the Act and in view of that Section 50C <\/p>\n
           cannot   be   read   into   Section   48   of   the   Act   which <\/p>\n
           prescribes   the   procedure   for   computation   of   capital <\/p>\n
           gains of the Assessee. Section 48 stipulates the full value <\/p>\n
           of the consideration received or accruing as a result of <\/p>\n
           the transfer of the capital asset and not the valuation of <\/p>\n
           the   Valuation   Officer   for   the   purpose   of   stamp   duty <\/p>\n
           determined under any some other law.\n<\/p><\/blockquote>\n
     (C)   Section 54 to 54ED provides for exemption on   Capital <\/p>\n
           Gain   Tax   of   Assessee.   The   Assessees,   who   have   been <\/p>\n
           assessed   as   per   the   valuation   as   prescribed   under <\/p>\n
           Section 50C of the Act cannot invest the excess amount <\/p>\n
           of   difference   which   is   not   received   or   receivable     by <\/p>\n
           them but is assumed to have been received under the <\/p>\n
           said section and thereby the Petitioner as well as such <\/p>\n
           Assessee affected by Section 50C of the Act cannot even <\/p>\n
           avail of the benefit of exemption upon Capital Gain Tax <\/p>\n
           as   available   under   Section   54   of   the   Act   and   as   such <\/p>\n
           Section 50C is not in consonance with other provisions <\/p>\n
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                                       6<\/span><\/p>\n
           of   the   Act   resulting   into   illegal   and   unreasonable <\/p>\n
           discrimination   without   any   justification.   Section   55A <\/p>\n
           provides   for   reference   to   the   Valuation   Officer   for <\/p>\n
           ascertaining the fair market value of the capital asset.\n<\/p>\n
           Therefore,   when   there   is   a   provision   prescribing   for <\/p>\n
           valuation   to   be   assessed   by   the   Valuation   Officer,   no <\/p>\n
           additional purpose will be served by introducing Section <\/p>\n
           50C of the Act. It is submitted that what can be checked <\/p>\n
           and controlled is evasion of tax and the remedy should <\/p>\n
           be proportionate and same cannot partake the nature of <\/p>\n
           confiscatory   measure.   Section   50C   is   a   draconian <\/p>\n
           provision which is in absolute contrast to the objects and <\/p>\n
           purposes of the Income Tax Act, 1961.\n<\/p>\n
     (D)   That   the   Income   Tax   Act,   1961   is   a   law   made   under <\/p>\n
           Entry   82,   Schedule   VII   –   List   I   of   the   Constitution   of <\/p>\n
           India. As such considering Sections 4 and 5 of the Act, <\/p>\n
           which contemplate levy or tax upon all income and by <\/p>\n
           no   stretch   of   imagination   the   meaning   and   scope   of <\/p>\n
           `total income’ be substituted by “the Valuation assessed <\/p>\n
           by Stamp Valuation Authority for the purpose of stamp <\/p>\n
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                                      7<\/span><\/p>\n
           duty”.   The   meaning   of   `Income’,   therefore,   under <\/p>\n
           Section 50C is beyond what is stipulated under entry 82 <\/p>\n
           List I of Seventh Schedule of the Constitution.\n<\/p>\n
     (E)   Section 50C as introduced by the Finance Act does not <\/p>\n
           provide the rate of tax or manner of liability but in effect <\/p>\n
           substitutes   the   `valuation   of   the   Stamp   Valuation <\/p>\n
           Authority’ with the `total income’ of the Assessee while <\/p>\n
           assessing the liability of the income tax which amounts <\/p>\n
           to   alteration   of   the   subject   matter   of   Income   Tax   Act <\/p>\n
           itself. That the subject matter of the Act is income other <\/p>\n
           than agricultural income and the relevant Finance Act <\/p>\n
           by   introducing   Section   50C   seeks   to   change\/   alter\/ <\/p>\n
           substitute   the   subject   matter   of   the   Act   as   what   is <\/p>\n
           brought under the net of Income Tax is not all income <\/p>\n
           received or deemed to be received or accrues or arises or <\/p>\n
           is   deemed   to   accrue   or   arise   to   the   Assessee   but   the <\/p>\n
           Valuation   of   the   Stamp   Valuation   Authority,   which <\/p>\n
           evidently is beyond the provisions of the Constitution of <\/p>\n
           India.\n<\/p>\n
     (F)   The right of the Assessee to put forward the assessment <\/p>\n
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                                     8<\/span><\/p>\n
           of his income is arbitrarily and unilaterally taken away <\/p>\n
           by   enacting   Section   50C   without   any   reasonable <\/p>\n
           justification. Section 50-C, it is submitted, in effect alters <\/p>\n
           the very nature and concept of the `total income’ and <\/p>\n
           precisely   adopts   `the   stamp   duty   valuation   of   the <\/p>\n
           instrument’ and not `computation of total income’ as the <\/p>\n
           basis  or  subject of  the  Tax under  the  Income  tax Act, <\/p>\n
           which   is   patently   ultra   vires   the   Constitution   of   India <\/p>\n
           and the provisions of the income Tax Act.\n<\/p>\n
     (G)   The Indian Stamp Act (or the Bombay Stamp Act, 1958) <\/p>\n
           is a fiscal statute whose main object is to make available <\/p>\n
           certain dues and to collect revenue and all its provisions <\/p>\n
           must be construed as having in view the protection of <\/p>\n
           revenue and prevention of evasion of the revenue that it <\/p>\n
           imposes.\n<\/p>\n
     (H)   How   can   Section   50C     have   valid   operation   and <\/p>\n
           enforcement   as   what   is   implied   by   Section   50C   is <\/p>\n
           adoption   of   valuation   of   property   for   the   purpose   of <\/p>\n
           stamp   duty   upon   an   instrument   and   has   therefore   no <\/p>\n
           direct, proximate and reasonable nexus with the `total <\/p>\n
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                                     9<\/span><\/p>\n
           income’ of the Assessee which is the subject matter of <\/p>\n
           charge of tax and as such Section 50C is ultra vires to <\/p>\n
           the provisions of the Indian Constitution.\n<\/p>\n
     (I)   When   there   is   no   assessment   of   income   but   only   the <\/p>\n
           stamp   duty   upon   the   instrument   for   the   purpose   of <\/p>\n
           revenue   is   what   is   determined   by   the   Stamp   Duty <\/p>\n
           Officer,   how   could   Section   50C   to   that   extent   declare <\/p>\n
           such valuation as the income of the Assessee. It discloses <\/p>\n
           no reasonable classification or intelligible differentia to <\/p>\n
           justify the  operation  of  Section  50C  of  the  Act  and is <\/p>\n
           therefore violative of Article 14 and Article 300A of the <\/p>\n
           Constitution   of   India.  It is  a  direct  infringement upon <\/p>\n
           the   fundamental   right   to   carry   on   any   occupation   or <\/p>\n
           trade as guaranteed under Article 19 of the Constitution <\/p>\n
           of India and in the process it violates Article 300A of the <\/p>\n
           Constitution of India.\n<\/p>\n
     (J)   “Market value” is defined under the Bombay Stamp Act <\/p>\n
           under   Section   2(na).   The   market   value   or   the   stamp <\/p>\n
           duty determined upon any instrument of transfer does <\/p>\n
           not   connote   the   consideration   received   upon   such <\/p>\n
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                                              10<\/span><\/p>\n
                    transfer   and   therefore   adopting   the   stamp   duty <\/p>\n
                    valuation as the income or consideration received by the <\/p>\n
                    Assessee   as   declared   under   Section   50C   of   the   Act   is <\/p>\n
                    wholly misconceived and the same is not in consonance <\/p>\n
                    with   the   Scheme   of   the   Income   Tax   Act.   The   Central <\/p>\n
                    Enactment   in   terms   of   Section   50C   is   superior   to   the <\/p>\n
                    State   Act   and   providence   of   Central   Enactment <\/p>\n
                    depending upon the outcome under the State Act, must <\/p>\n
                    be held as unconstitutional and ultra vires the provisions <\/p>\n
                    of the Constitution of India.\n<\/p>\n
     5.     Notice was issued to the Attorney General. Learned Additional <\/p>\n
     Solicitor General points out that the issue is covered by the Division <\/p>\n
     Bench   Judgment   of   the   Madras   High   Court   in   the   case   of  K.   R.\n<\/p>\n
     Palanisamy v\/s Union of India, reported in (2009) 180 Taxman 253  <\/p>\n
     (Madras).  The   Madras   High   Court,   it   is   submitted,   has   held   that <\/p>\n
     Section   50C   is   constitutionally   valid   and   the   various   arguments <\/p>\n
     raised have been rejected.  Placing reliance on Union of India & Anr.\n<\/p>\n
     v\/s   A.   Sanyasi   Rao   &   Ors.,  reported   in  AIR   1996   SC   1219,  it   is <\/p>\n
     pointed   out   that   the   valuation   taken   for   the   purpose   of   stamp <\/p>\n
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                                             11<\/span><\/p>\n
     valuation is only a measure for the purpose of levying tax and as <\/p>\n
     such the various contentions raised on that count must be rejected. It <\/p>\n
     is only a measure for levying tax and as such it will not alter the <\/p>\n
     nature and basis of levying the tax imposed as if is a tax on income.\n<\/p>\n
     6.     On behalf of the petitioner, learned Counsel sought to bring to <\/p>\n
     our   attention   an   unreported   judgment   of   the   Single   Judge   of   the <\/p>\n
     Madras High Court in the case of  N. Meenakshi v\/s The Assistant <\/p>\n
     Commissioner of Income Tax (Writ Petition No. 851 of 2009 decided  <\/p>\n
     on 11th September, 2009)  where the order in respect of the valuation <\/p>\n
     done by the Valuation Officer under Section 50C(2) of the Income <\/p>\n
     Tax   Act,   1961   and   the   assessment   thereto   was   challenged.   The <\/p>\n
     Assessing Officer had taken the value of the land determined for the <\/p>\n
     stamp duty purpose as the same value as no valuation report was <\/p>\n
     received from the Valuation Authority till the said date. The matter <\/p>\n
     was remanded. At the same time, the order notes that the petitioner <\/p>\n
     had also filed a petition challenging the vires of Section 50C which <\/p>\n
     was dismissed. The question of vires of the provision was left open.\n<\/p>\n
     7.     In the  instant case  no reply has  been filed on  behalf  of  the <\/p>\n
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                                               12<\/span><\/p>\n
     Union   of   India.   Learned  Addl.  Solicitor  General,   however,  submits <\/p>\n
     that considering the stand of Union of India before the Madras High <\/p>\n
     Court in the case of K. R. Palanisamy (supra), he is adopting the said <\/p>\n
     contention and the petition can be disposed of on that basis as no <\/p>\n
     new facts are involved.\n<\/p>\n
     8.<\/p>\n
            On behalf of respondent No.4, reply has been filed by Eknath <\/p>\n
     Marutirao Navle, the Collector of Stamps, Borivali. It is set out that <\/p>\n
     demand has been issued by the Collector pursuant to an order passed <\/p>\n
     under Section 31 of the Bombay Stamp Act on a reference made by <\/p>\n
     the   Developer   under   Section   31   of   the   Bombay   Stamp   Act   for <\/p>\n
     determination of the stamp duty payable. Against that order, there is <\/p>\n
     a remedy available under Section 53 of the Stamp Act. On this count <\/p>\n
     itself the petition ought not to be entertained.\n<\/p>\n
            The stamp duty, it is set out, has been correctly levied under <\/p>\n
     Schedule 1 Article 5(g-a) at the rate of 1%  on the market value. The <\/p>\n
     market value of the property in relation to any property which is the <\/p>\n
     subject   of   the   instrument   is   the   price   of   the   property   which   such <\/p>\n
     property would have fetched if sold in open market or consideration <\/p>\n
     stated   in   the   instrument,   whichever   is   higher.   After   considering <\/p>\n
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                                             13<\/span><\/p>\n
     various aspects, it was held that the sum total of all the Development <\/p>\n
     Agreement comes to Rs.15 crores, on which the stamp duty of 1% <\/p>\n
     has been calculated and has been levied and accordingly demanded.\n<\/p>\n
     Thus   the   consideration   to   be   received     by   the   Society   under   the <\/p>\n
     Agreements in terms of money has been taken to be the market value <\/p>\n
     of the property.\n<\/p>\n
     9.     For   the   purpose   of   discussion,   we   may   gainfully   reproduce <\/p>\n
     Sections 45, 48 and 50C of the Income Tax Act, which read as under:\n<\/p>\n
            “45. Capital gains.- (1)  Any profits or gains arising from the <\/p>\n
            transfer of a capital asset effected in the previous year shall,
\n            save as otherwise provided in sections 53, 54 and 54B, 54D, <\/p>\n
            54E, 54EA, 54EB, 54F, 54G and 54H, be chargeable to income-
\n            tax under the head `Capital Gains’, and shall be deemed to be
\n            the   income   of   the   previous   year   in   which   the   transfer   took
\n            place.\n<\/p><\/blockquote>\n
            48. Mode of Computation.- The income chargeable under the
\n            had `Capital Gains’ shall be computed by deducting from the
\n            full value of the consideration received or accruing as a result
\n            of   the   transfer   of   the   capital   asset   the   following   amounts, <\/p>\n
            namely:-\n<\/p><\/blockquote>\n
                    (i)    expenditure   incurred   wholly   and   exclusively   in
\n                           connection with such transfer;\n<\/p><\/blockquote>\n
                    (ii)   the cost of acquisition of the capital asset and the
\n                           cost of any improvement thereto.\n<\/p><\/blockquote>\n<\/blockquote>\n
            50C. Special provision for full value of consideration in certain <\/p>\n
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                                        14<\/span><\/p>\n
     cases.-  (1) Where the consideration received or accruing as a <\/p>\n
     result of the transfer by an assessee of a capital asset, being
\n     land   or   building   or   both,   is   less   than   the   value   adopted   or
\n     assessed by any authority of a State Government (hereafter in
\n     this Section referred to as the `stamp valuation authority’) for <\/p>\n
     the   purpose   of   payment   of   stamp   duty   in   respect   of   such
\n     transfer,   the   value   so   adopted   or   assessed   shall,   for   the
\n     purposes of section 48, be deemed to be the full value of the
\n     consideration received or accruing as a result of such transfer.\n<\/p><\/blockquote>\n
     (2) Without prejudice  to the provisions  of sub-section (1),
\n     where –\n<\/p>\n
            (a)      the   assessee   claims   before   any   Assessing   Officer <\/p>\n
                     that the value adopted or assessed by the stamp
\n                     valuation authority under sub-section (1) exceeds
\n                     the   fair   market   value   of   the   property   as   on   the
\n                     date of transfer;\n<\/p><\/blockquote>\n
            (b)      the   value   so   adopted   or   assessed   by   the   stamp
\n                     valuation authority under sub-section (1) has not <\/p>\n
                     been   disputed   in   any   appeal   or   revision   or   no
\n                     reference   has   been   made   before   any   authority,
\n                     court or the High Court.\n<\/p><\/blockquote>\n
     The  Assessing   Officer  may refer  the  valuation  of  the  capital
\n     asset to a Valuation Officer and where any such reference is
\n     made, the provisions of sub-sections (2), (3), (4), (5) and (6)
\n     of section 16A, clause (I) of sub-section (1) and sub-sections
\n     (6)   and   (7)   of   section   23A,   sub-section   (5)   of   section   24, <\/p>\n
     section 34AA, section 35 and section 37 of the Wealth-Tax Act,
\n     1957 (27 of 1957), shall, with necessary modifications, apply
\n     in   relation   to   such   reference   as   they   apply   in   relation   to   a
\n     reference made by the Assessing Officer under sub-section (1)
\n     of section 16A of that Act.\n<\/p>\n
     (3) Subject to the  provisions  contained in  sub-section  (2),
\n     where the value ascertained under sub-section (2) exceeds the
\n     value   adopted   or   assessed   by   the   stamp   valuation   authority <\/p>\n
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                                              15<\/span><\/p>\n
            referred to in sub-section (1), the value so adopted or assessed <\/p>\n
            by   such   authority   shall   be   taken   as   the   full   value   of   the
\n            consideration received or accruing as a result of the transfer.”\n<\/p>\n
     10.    A perusal therefore reveal that under Section 50C the value <\/p>\n
     adopted by Stamp Valuation Authority or assessed for the purpose of <\/p>\n
     Section 48, shall be deemed to be the full value of the consideration <\/p>\n
     received or accruing as a result of the transfer. Apart from that under <\/p>\n
     sub-section   (2)   where   the   assessee   claims   before   any   Assessing <\/p>\n
     Officer that the value adopted or assessed, exceeds the fair market <\/p>\n
     value  of  the  property as  on  the  date  of  transfer and the  value  so <\/p>\n
     adopted by the Stamp Valuation Authority has not been disputed by <\/p>\n
     any appeal or revision or no reference has been made before any <\/p>\n
     authority, Court or High Court, the Assessing Officer may refer the <\/p>\n
     valuation of the capital assets to the Valuation officer.   Thus, even <\/p>\n
     though, if an appeal has not been preferred and in the instant case <\/p>\n
     reference was sought by the Developer and not the petitioner, the <\/p>\n
     petitioner has a remedy of calling on the Assessing Officer to appoint <\/p>\n
     the valuer for the purpose of determinating the fair market value. We <\/p>\n
     may   also   note   that   under   Section   50C,   the   value   so   adopted   or <\/p>\n
     assessed by any Authority of the state Government, referred to as the <\/p>\n
                                                          ::: Downloaded on – 09\/06\/2013 15:43:08 :::<\/span><\/p>\n
                                             16<\/span><\/p>\n
     Stamp   Valuation   Authority   is   only   a   measure   of   tax   and   not   the <\/p>\n
     subject matter of a tax. For that principle, we may gainfully refer to <\/p>\n
     the   observation   of   the   Supreme   Court   in  A.   Sanyasi   Rao   &   Ors.\n<\/p>\n
     (supra)  which   was   a   judgment   arising   from   the   judgment   of   the <\/p>\n
     Andhra Pradesh High Court. Before the Andhra Pradesh High Court <\/p>\n
     there was a challenge to the Constitutional validity of Sections 44AC <\/p>\n
     and   206C   of   the   Income   Tax   Act.   After   considering   various <\/p>\n
     contentions, the learned Division Bench of the Andhra Pradesh High <\/p>\n
     Court was pleased to hold that Section 44AC is an adjunct to Section <\/p>\n
     206C. Tax was to be computed based on the purchase price. Both the <\/p>\n
     Assessee   and   the   Revenue   Authority   preferred   appeal   to   the <\/p>\n
     Honourable   Supreme   Court   independently.   There   were   some <\/p>\n
     petitions   under   Article   32   of   the   Constitution   of   India.   While <\/p>\n
     considering the appeal in the matter of levying tax on purchase price, <\/p>\n
     this is what the Honourable Supreme Court observed:\n<\/p>\n
            “. . . . . In this context, we should bear in mind that there is a
\n            clear distinction between the subject matter of a tax and the
\n            standard   by   which   the   amount   of   tax   is   measured.   Having
\n            regard to the past difficulties in making a normal assessment
\n            and collection in the case of certain categories of assessees, for
\n            convenience   sake,   the   legislature   has   chosen   to   make
\n            appropriate provision for collection of tax at an anterior stage
\n            by adopting the purchase price as the measure of tax. In  our <\/p>\n
                                                         ::: Downloaded on – 09\/06\/2013 15:43:08 :::<\/span><\/p>\n
                                              17<\/span><\/p>\n
           view, this is permissible and the standard by which the amount <\/p>\n
           of tax is measured, being the purchase price, will not in any
\n           way alter the nature and basis of levy viz. that the tax imposed
\n           is a tax on income. It cannot be labeled as a tax on purchase of
\n           goods.”\n<\/p><\/blockquote>\n
     It is, therefore, clear that the valuation rule of the Stamp Act is for <\/p>\n
     the purpose of computation of income which is only a standard of <\/p>\n
     measure for imposing tax.\n<\/p>\n
     11.    With   that   we   will   now   consider   the   various   arguments <\/p>\n
     advanced at the Bar. It may be mentioned that the petition as earlier <\/p>\n
     filed, apart from the bald averments that Section 50C of the Income <\/p>\n
     Tax Act be declared as ultra vires, no grounds to that effect were <\/p>\n
     raised   which   have   been   subsequently   pleaded   by   way   of   an <\/p>\n
     amendment.   Additional   prayer   clause   has   also   been   included   to <\/p>\n
     challenge   the   demand   notice   dated   23rd  October,   2008   issued   by <\/p>\n
     respondent No.4 under the Stamp Act and to set aside and quash the <\/p>\n
     same.\n<\/p>\n
     12.    In   so   far   as   prayer   clause   (a),   as   now   substituted   by   the <\/p>\n
     amendment is concerned, we are clearly of the opinion that as the <\/p>\n
                                                          ::: Downloaded on – 09\/06\/2013 15:43:09 :::<\/span><\/p>\n
                                              18<\/span><\/p>\n
     Developer   had   sought   a     reference   on   which   the   Competent <\/p>\n
     Authority under the Stamp Act had given the valuation and pursuant <\/p>\n
     thereto paid the duty as also the penalty imposed, that challenge will <\/p>\n
     not be available to the petitioner in this petition as there is no longer <\/p>\n
     a demand notice to be complied with.\n<\/p>\n
     13.<\/p>\n
            We shall therefore confine ourselves to consider prayer clause <\/p>\n
     (aa) by which it is prayed that Section 50C of the Income Tax Act be <\/p>\n
     declared as ultra vires the Constitution of India. Learned Counsel on <\/p>\n
     behalf   of   the   petitioner   had   sought   to   draw   our   attention   to   the <\/p>\n
     judgment of the  Supreme Court in  Commissioner of Income Tax, <\/p>\n
     Bombay City-I v\/s Khatau Makanji Spinning and Weaving Co. Ltd., <\/p>\n
     1960   Vol.   XL   Income   Tax   Reports   page   189,  to   the   following <\/p>\n
     observations, namely, that under Section 3 of the Income Tax Act, <\/p>\n
     income tax is a tax on the income of the previous year and it would <\/p>\n
     not cover something which is not the income of the previous year, or <\/p>\n
     made fictionally so. Section 45 provides for the mode of computation <\/p>\n
     of income chargeable under the head `Capital Gains’. Section 50C is <\/p>\n
     a measure provided to bridge the gap as it was found that assessees <\/p>\n
     were not correctly declaring the full value of the consideration or in <\/p>\n
                                                          ::: Downloaded on – 09\/06\/2013 15:43:09 :::<\/span><\/p>\n
                                               19<\/span><\/p>\n
     other words resorting to the practice of undervaluation. The Madras <\/p>\n
     High Court in K. R. Palanisamy (supra) has noted that the legislative <\/p>\n
     history reveals that prior to the insertion of the impugned provision, <\/p>\n
     section 52(2) was there in the statute which was also meant to check <\/p>\n
     the   avoidance   of   capital   gain   tax.   After   the   deletion   of   the   said <\/p>\n
     proviso, Chapter XX-A was introduced empowering the government <\/p>\n
     to acquire immovable property in specific cases. Thereafter, Chapter <\/p>\n
     XX-C   was   introduced.   All   these   provisions   were   directed   only   to <\/p>\n
     check   and   prevent   the   evasion   of   tax   by   undervaluing   the <\/p>\n
     consideration of the transfer of capital assets.\n<\/p>\n
     14.    We   may   now  deal   with   the   contention   as   formulated   under <\/p>\n
     grounds   (A),   (B),   (E),   (F),   (G),   (H),   (I)   and   (J)   of   paragraph   4 <\/p>\n
     above. Section 45 treats income under the head as deemed income of <\/p>\n
     the previous year in which the transfer took place. Section 50C is a <\/p>\n
     special provision for providing the measure of tax for assessing the <\/p>\n
     income under the head capital gain. Consequently it must be read <\/p>\n
     with Section 45. The submission that what Section 45 brings under <\/p>\n
     the levy is profits and gains arrived or accrued and not the valuation <\/p>\n
     of the Stamp Valuation Authority as arbitrarily determined and fixed <\/p>\n
                                                           ::: Downloaded on – 09\/06\/2013 15:43:09 :::<\/span><\/p>\n
                                               20<\/span><\/p>\n
     under Section 50C of the Act is also misplaced. As noted, Section 50C <\/p>\n
     is only a standard of measure for computation of the tax which is <\/p>\n
     chargeable under Sections 4 and 5 of the Income Tax Act. The tax is <\/p>\n
     only   computed   in   the   manner   laid   down   under   those   provisions <\/p>\n
     referred to earlier.\n<\/p>\n
     15.<\/p>\n
            Section  45  itself  notes   the  provision  of   Section  54   to  54EB.\n<\/p>\n
     Therefore,   the   income   received   by   way   of   capital   gain   would   be <\/p>\n
     subject   to   the   provisions   of   Sections   54   to   54EB.   The   income   is <\/p>\n
     deemed to have been received and that is the point of time on which <\/p>\n
     the income has to be assessed. It therefore, cannot be the case that <\/p>\n
     the assessee would not be entitled to the benefit of exemption. It also <\/p>\n
     cannot   be   said   that   such   a   classification   would   be   arbitrary   or <\/p>\n
     unreasonable   and\/or   discriminatory.   Section   50C   has   been <\/p>\n
     specifically   introduced   with   a   view   to   prevent   evasion   of   tax   and <\/p>\n
     under valuation of the transaction. It is in that context that Section <\/p>\n
     45,   Section   48   and   Section   50C   must   be   read.   The   classification, <\/p>\n
     therefore,  is   in   respect   of   an   identifiable   group  of  assessees.  Both <\/p>\n
     classes   have   to   pay   capital   gains   tax.   Insofar   as   Section   50C   is <\/p>\n
     concerned,   it   pertains   to   a   class   of   capital   assets   being   land   or <\/p>\n
                                                           ::: Downloaded on – 09\/06\/2013 15:43:09 :::<\/span><\/p>\n
                                             21<\/span><\/p>\n
     building. We   therefore do not find that the classification as being <\/p>\n
     unreasonable and consequently discriminatory considering the object <\/p>\n
     being, to tax the income arising from capital gains. Those grounds <\/p>\n
     enumerated earlier, therefore, have no merit and are consequently <\/p>\n
     rejected.\n<\/p>\n
     16.<\/p>\n
            We may next deal with the argument that the Income Tax Act <\/p>\n
     is   a   law   made   under   Entry   82,   Schedule   VII   –   List   I   of   the <\/p>\n
     Constitution of India and consequently the valuation assessed by the <\/p>\n
     Stamp   Valuation   Authority  is  illegal   as   such  a  provision  would  be <\/p>\n
     beyond the field of legislation under Entry 82 List I of 7th  Schedule <\/p>\n
     and as such beyond the competency of Parliament. In our opinion, <\/p>\n
     this argument has to be rejected. Similar contention was raised in the <\/p>\n
     case   of  A.   Sanyasi   Rao  &  Anr  (supra)  by   contending   that   the   tax <\/p>\n
     levied there was on the purchase price and not the tax on income. In <\/p>\n
     that case, as we have noted earlier, what was under consideration <\/p>\n
     was   Section   44AC   of   the   Income   Tax   Act   which   was   a   special <\/p>\n
     provision   for   computing   profits   and   gains   from   the   business   of <\/p>\n
     trading  of certain goods. The measure there was the purchase price.\n<\/p>\n
     Argument sought to be contended was that the Parliament would not <\/p>\n
                                                         ::: Downloaded on – 09\/06\/2013 15:43:09 :::<\/span><\/p>\n
                                              22<\/span><\/p>\n
     have competence to legislate as it would be beyond Entry 82 of List <\/p>\n
     1. After considering the various judgments and noting that purchase <\/p>\n
     price   were   only   a   standard   of   measure,   the   Honourable   Supreme <\/p>\n
     Court was pleased to hold that it was within legislative competence, <\/p>\n
     by observing that the charge for the levy of income accrued or arose <\/p>\n
     as  laid down by the charging sections 4 and 5 and not by virtue of <\/p>\n
     Section   44AC   or   Section   206C.   In   our   opinion,   the   ratio   of   that <\/p>\n
     judgment   would   clearly   apply   to   the   facts   of   the   present   case.   A <\/p>\n
     similar argument was advanced also before the Andhra Pradesh High <\/p>\n
     Court. After considering the test for interpretation of taxing statute <\/p>\n
     the   Honourable   Court   noted   that   the   tax   was   within   legislative <\/p>\n
     competence.\n<\/p>\n
     17.    Thus  the   two  contentions  raised  before  us,  namely, (1)  that <\/p>\n
     Section 50C is beyond the legislative competence and (2) that it is <\/p>\n
     violative of Article 14 of the Constitution of India, in our opinion are <\/p>\n
     devoid of merits.\n<\/p>\n
     18.    We   have   not   referred   to   any   judgments   on   the   rules   of <\/p>\n
     interpretation as in our opinion the judgment of the Supreme Court <\/p>\n
                                                          ::: Downloaded on – 09\/06\/2013 15:43:09 :::<\/span><\/p>\n
                                             23<\/span><\/p>\n
     in A. Sanyasi Rao (supra)   and the judgment of the Madras High <\/p>\n
     Court in K. R. Palanisamy v\/s Union of India, (2009) 180 Taxman <\/p>\n
     253   (Mad)   has   made   reference   to   the   judgments   on   the   rules   of <\/p>\n
     interpretation.\n<\/p>\n
     19.    Our   attention   was   also   invited   to   another   judgment   of   the <\/p>\n
     learned single Judge of the Madras High Court in N. Meenakshi v\/s <\/p>\n
     The Assistant Commissioner of Income Tax,  2009 LawSuit (Mad) <\/p>\n
     1653.  That   petition   was   directed   against   the   Assessment   Order   of <\/p>\n
     respondent. In that case reference has been made to the Valuation <\/p>\n
     Officer. However, before the report was received, the assessment was <\/p>\n
     done by taking the value of the land as determined for stamp duty.\n<\/p>\n
     The petitioner had filed the petition challenging the vires of Section <\/p>\n
     50C of the Act which was dismissed. The assessee approached the <\/p>\n
     Supreme   Court   which   rejected   the   Special   Leave   Petition   and <\/p>\n
     directed the petitioner to approach the authority by keeping open the <\/p>\n
     question of vires of the provisions. This judgment, in our opinion, <\/p>\n
     could be of no assistance as the only issue left open for consideration <\/p>\n
     was the vires of the act.\n<\/p>\n
                                                        ::: Downloaded on – 09\/06\/2013 15:43:09 :::<\/span><\/p>\n
                                              24<\/span><\/p>\n
     20.    It is not the case of the petitioner that the valuation could not <\/p>\n
     have been done under the provisions of the Bombay Stamp Act, 1958 <\/p>\n
     and\/or that the Collector acted contrary to law in levying stamp duty <\/p>\n
     under Schedule I Article 5(ga). Even otherwise as noted earlier, in <\/p>\n
     the process of assessment it will be open to the assessee to invoke the <\/p>\n
     provisions of Section 66 by asking on the Assessing Officer to refer <\/p>\n
     the   matter   to   the   Valuation   Office   and   that   would   be   within   the <\/p>\n
     jurisdiction of the Valuation Officer.   We are in agreement with the <\/p>\n
     view taken by the Madras High Court in K. R. Palanisamy (supra).\n<\/p>\n
     21.    For the aforesaid reasons, there is no merit in this writ petition.\n<\/p>\n
     Rule accordingly discharged. There shall be no order as to costs.\n<\/p>\n
                                                                 Sd\/-\n<\/p>\n
                                                          (F.I. REBELLO,J.)<\/p>\n
                                                                 Sd\/-\n<\/p>\n
                                                          (A. A. SAYED, J.)<\/p>\n
                                                         ::: Downloaded on – 09\/06\/2013 15:43:09 :::<\/span>\n <\/p>\n","protected":false},"excerpt":{"rendered":"
Bombay High Court Mr.Krtikumari Rasilal Gandhi. vs Union Of India on 15 March, 2010 Bench: F.I. Rebello, A.A. Sayed 1 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[11,8],"tags":[],"class_list":["post-7650","post","type-post","status-publish","format-standard","hentry","category-bombay-high-court","category-high-court"],"yoast_head":"\nMr.Krtikumari Rasilal Gandhi. vs Union Of India on 15 March, 2010 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/mr-krtikumari-rasilal-gandhi-vs-union-of-india-on-15-march-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Mr.Krtikumari Rasilal Gandhi. vs Union Of India on 15 March, 2010 - 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