B. J. DIVAN, J. ( 1 ) IN this case which is an appeal on a point of law under the provisions of sec. 269-11 of the Income-tax Act 1961 one point on which arguments have been advanced is regarding the failure on the part of the Income Tax Appellate Tribunal to give an opportunity of being heard to the Valuation Officer nominated by the Competent Authority under sec. 269-L (3 ). Under the scheme of Chapter XX-A which covers secs. 269-A to 269-S provision has been made for acquisition under sec. 269 by the order of the Competent Authority when in the case of sale of any immovable property the Competent Authority comes to the conclusion that the immovable property to which the proceedings relate is of a fair market value exceeding twentyfive thousand rupees and that the fair market value of the property exceeds the apparent consideration thereof by more than fifteen per cent of apparent consideration and that it is for one of the objects mentioned in sec. 269-C (1) clauses (a) and (b ). In the instant case the Competent Authority came to the conclusion that the requirements of sec. 269-F were satisfied and he therefore passed after obtaining approval of the Commissioner an order for acquisition of the immovable property under the provisions of Chapter XX-A. Against this decision of the Competent Authority two appeals were filed to the Appellate Tribunal under the provisions of sec. 269-G one by the transferor and the other by the transferee. Both the appeals were disposed of by a common judgement by the Income Tax Appellate Tribunal. Under sec. 269-L sub-sec. (3) it is provided that if in an appeals under sec. 269s against the order for acquisition of any immovable property the fair market value of such property is in dispute the Appellate Tribunal shall on a request being made in that behalf by the competent authority give an opportunity of being heard to any Valuation Officer nominated for the purpose by the Competent authority. In the instant case the major point in dispute in the two appeals filed by the transferor and transferee was about the fair market value arrived at by the Competent Authority in his order. In the instant case the major point in dispute in the two appeals filed by the transferor and transferee was about the fair market value arrived at by the Competent Authority in his order. It appears from the record of the Tribunal which we have examined that on 9th October 1979 while the appeal before the Appellate Tribunal was pending the Competent Authority addressed a request to the Tribunal in the form of a letter addressed to the Registrar Income Tax Appellate Tribunal Ahmedabad referring to the numbers of the two appeals and also stating in the second paragraph of the letter:"in this connection I have to invite your kind attention to provisions contained in sec. 269l (3) of the Income-tax Act 1951 and to request that as the fair market value of the property is in dispute the Appellate Tribunal may kindly grant an opportunity of being heard to Shri U. S. Shah Valuation Officer Unit-I Income-tax Department Ahmedabad who is hereby nominated for the purpose". ONCE the Valuation Officer was thus nominated by the Competent Authority it is obvious that under the provisions of sec. 269-L (3) it was incumbent upon the Appellate Tribunal to give an opportunity of being heard to that Valuation Officer. From the record of the case it is clear that no such opportunity of being heard was given to this Valuation Officer Shri U. S. Shah who was nominated by the Competent Authority in the request made by the letter of 9th October 1974. One of the grounds in appeal which has been preferred to this High Court under sec. 269-H which can be on any question of law setting out the grievance of the Commissioner of Income-tax is that the Tribunal had not given an opportunity of being heard to the Valuation Officer nominated by the Competent Authority on 9th October 1974. ( 2 ) IN our opinion this grievance on the part of the Commissioner is justified and there is nothing on the record of the Tribunal which we have examined for ourselves to show that the Appellate Tribunal had given such an opportunity of being heard to the Valuation Officer namely U. S. Shah. ( 2 ) IN our opinion this grievance on the part of the Commissioner is justified and there is nothing on the record of the Tribunal which we have examined for ourselves to show that the Appellate Tribunal had given such an opportunity of being heard to the Valuation Officer namely U. S. Shah. It is possible that at the time when the appeal was heard before the Bench of the Appellate Tribunal on 3rd December 1974 specific attention of the Bench of the Tribunal was not drawn to the letter of 9th October 1974 by which the request that the Valuation Officer should be heard was made by the Competent Authority. But in view of the mandatory language of sec. 269-L (3) which makes it incumbent upon the Appellate Tribunal to give an opportunity of being heard to the Valuation Officer the question whether at the time of the hearing the request was pressed or not is comparatively insignificant. What really matters is whether the Tribunal in view of the mandatory language of sec. 269-L (3) had taken any steps to give an opportunity of being heard to the Valuation Officer U. S. Shah. Since that opportunity was not givers this appeal must be allowed on this narrow ground and the matter must now 60 back to the Appellate Tribunal to be decided in accordance with law aster giving an opportunity of being heard to U. S. Shah Valuation Officer. ( 3 ) WE wish to make it clear that the concept of giving an opportunity of being heard covers two distinct concepts. One is the concept of merely hearing arguments and taking assistance in the shape of hearing arguments from the Valuation Officer and the other is to treat the Valuation Officer as a witness in the matter so far as the Appellate Tribunal is concerned and after treating him as a witness accept the opinion of the Valuation Officer on the valuation as an expert. However an examination of the scheme of the relevant provisions of Chapter XX-A is required to be made in order to find out in what capacity the Valuation Officer nominated under sec. 269-L (3) will be appearing before the Appellate Tribunal. The Explanation to sec. 269-L says that the Valuation Officer has the same meaning as in clause (r) of sec. 269-L (3) will be appearing before the Appellate Tribunal. The Explanation to sec. 269-L says that the Valuation Officer has the same meaning as in clause (r) of sec. 2 of the Wealth Tax Act 1957 Sec. 2 (r) of the Wealth Tax Act is in these terms:"valuation Officer means a person appointed as a Valuation Officer under sec. 12 and includes a Regional Valuation Officer a District Valuation Officer and an Assistant Valuation Officer". SEC. 12a provides that the Central Government may appoint as many Valuation Officers as it thinks fit. Under sub-sec. (2) subject to the rules and orders of the Central Government regulating the conditions of service of persons in public service and posts a wealth-tax authority may appoint as many overseers surveyors and assessors as may be necessary to assist the Valuation Officers in the performance of their functions. Sec. 38-A of the Wealth Tax Act which is referred to in sec. 269-L (2) provides for the powers of the Valuation Officer and states: (1) For the purposes of this Act a Valuation Officer or any overseer surveyor of assessor authorised by him in this behalf may subject to any rules made in this behalf and at such reasonable times as may be prescribed (A) enter any land within the limits of the area assigned to the Valuation Officer or (B) enter any land building or other place belonging to or occupied by any person in connection with whose assessment a reference has been made under sec. 16a to the Valuation Officer or (c) inspect any asset in respect of which a reference under sec 16a has been made to the Valuation Officer. . . . . . . . . . . IT may be pointed out that the powers of a Valuation Officer under sec. 3 are similar to the powers given under the Land Acquisition Act for the purpose of carrying out survey etc. to demarcate the land with a view to consider the desirability of acquiring any particular land for public purposes. It is clear under sec 269-L (1) a) that the Competent Authority may require a Valuation Officer to determine fair market value of the property under consideration and report the fair makes value to the Competent Authority under two sets of circumstances (a) for the purpose of initiating proceedings for the acquisition of any immovable property under sec. It is clear under sec 269-L (1) a) that the Competent Authority may require a Valuation Officer to determine fair market value of the property under consideration and report the fair makes value to the Competent Authority under two sets of circumstances (a) for the purpose of initiating proceedings for the acquisition of any immovable property under sec. 269-C and (b) for the purpose of making an order under sec. 269 of acquisition in respect of any immovable property. Thus the Valuation Officer who is called upon to determine fair market value of any particular immovable property is acting as an expert authority and adviser to the Competent Authority for the purpose of enabling the Competent Authority to determine the fair market value either prima facie at the stage of initiation of the proceedings or finally at the time when he has to decide the question whether the property should be acquired or not under the provisions of sec. 269-F. This Valuation Officer thus being a statutory authority has certain functions to perform. It is true that he acts in an advisory capacity and has to help the Competent Authority to determine the fair market value. We are not concerned in the present case with the question whether the Valuation Officer whose report is called for under sec. 269-L (1) (a) either at the stage of initiation of proceedings or at the stage of passing the final order under sec. 269-L can or cannot be examined as a witness before the Competent Authority. That question does not arise before us in the present case and we do not express any opinion on that aspect of the matter. As such advisor to the Competent Authority the Valuation Officer of course has to collect materials which will enable him to evaluate and determine fair market value of any property on known principles of valuation of property and to submit his report together with the materials gathered by him to the Competent Authority and thereupon the Competent Authority has to exercise his own independent judgment at each stage and come to his own conclusion either at the initiation of the proceedings or at the stage of passing final order under sec. 269-F as to what is the fair market value. ( 4 ) HOWEVER so far as the stage of appeal before the Appellate tribunal under sec. 269-F as to what is the fair market value. ( 4 ) HOWEVER so far as the stage of appeal before the Appellate tribunal under sec. 269-L (3) is concerned it assumes a different aspect altogether. That aspect is that the Valuation Officer who is nominated by the Competent Authority as an expert in his line as a statutory authority functioning under the provisions of the Income-tax Act has been given right of audience that is he has to be given an opportunity of being heard before the Appellate Tribunal so that he can assist the Tribunal in determining the disputed question of fair market value of an immovable property which is sought to be acquired under the provisions of sec. 269-F. Looking to the provisions of sec. 269-O (b) which give a right to any person who is required to attend before the Competent Authority or the Appellate Tribunal in any proceedings under the Chapter to attend the proceedings by a registered valuer it is clear that a similar right is sought to be conferred on the Competent Authority by sec. 269-L (3) to render assistance by the submissions to be made by the Valuation Officer. We must make it clear that at the stage of appeal the Valuation Officer nominated by the Competent Authority has to be merely heard for the limited purpose of making submissions on the disputed question of fair market value of the immovable property in acquisition. It is but common sense that such Valuation Officer making submissions must make his submissions on the materials on record. He cannot introduce any new material or any new facts for the purpose of enabling the Appellate Tribunal to decide the disputed question of fair market value of the immovable property under acquisition. If any new material is to be introduced or any new evidence is to be led before the Appellate Tribunal the provisions of sec. 255 sub-secs. (5) and (6) read with the provisions of Rules 29 and 30 of the Appellate Tribunal Rules will have to be kept in mind. But so long as the Valuation Officer nominated by the Competent Authority is being heard only on the materials on record and is making his submissions only on the materials on record before the Tribunal or before the Competent Authority there can be no question of treating him as a witness before the Appellate Tribunal. But so long as the Valuation Officer nominated by the Competent Authority is being heard only on the materials on record and is making his submissions only on the materials on record before the Tribunal or before the Competent Authority there can be no question of treating him as a witness before the Appellate Tribunal. He is not a party to the appeal or in proceedings before the Competent Authority. He is permitted by the statute to appear as an expert assisting the Tribunal on the Technical aspects of the question regarding the determination of the fair market value in light of known principles of valuation of property. In the light of the concept of an opportunity of being heard it will be open to the Valuation Officer functioning under sec. 269-L (3) to make his written submission or offer oral comments and it will be desirable that such Valuation Officer offers his comments on the materials on record in writing and also make his submissions orally so that the other side can meet his representations by making suitable comments either in writing or orally. In any event we must make it clear that such written representation of the Valuation Officer must be confined to the materials already on record and the right of making written representation should not be used for the purpose of introducing new material on record. ( 5 ) WE must also point out that the Valuation Officer who is thought of as an expert assisting the Tribunal under sec. 269-L (3) should be a person other than the Valuation Officer who made the report under sec. 269 (1) (a) either at the stage of initiation of the proceedings or at the stage of sec. 269-F proceedings so that the objective of assistance which an expert Valuation Officer can render to the Tribunal is not reduced to that of a Valuation Officer substantiating his own report which he had made to the Competent Authority under sec. 269-L (1) (a) either at the stage of initiation or at the subsequent stage of sec. 269-F proceedings ( 6 ) WE would also like to point out to the Appellate Tribunal that it would be advisable to have rules framed about the procedure to be followed when notice under sec. 269-L (1) (a) either at the stage of initiation or at the subsequent stage of sec. 269-F proceedings ( 6 ) WE would also like to point out to the Appellate Tribunal that it would be advisable to have rules framed about the procedure to be followed when notice under sec. 269-L (3) is served so that the other side in the appeal is aware of such a request having been made and may be ready at the time of hearing with their own registered valuer under sec. 269 A suitable procedure and practice should be evolved so that nobody is taken by surprise at the final stage by the presence of a Valuation Officer nominated by the Competent Authority under sec. 269-L (3 ). ( 7 ) MR. J. P. Shah learned Advocate appearing for the respondents in this appeal urged before us that in the instant case the Competent Authority must be deemed to have waived the right of being heard through the Valuation Officer nominated by the Competent Authority because after writing the letter of 9th October 1974 no further steps were taken and even at the stage of hearing of the appeal before the Bench of the Appellate Tribunal or even after the order was passed by the Tribunal on December 16 1974 or in the intermediate stage between the hearing of the appeal on 3rd December 1974 and 16th December 1974 when the Tribunal actually pronounced its order no attempt was made by the Competent Authority to point out that the Valuation Officer nominated by the Competent Authority under sec. 269-L (3) had not been given an opportunity of being heard. Mr. Shah further urged that the Valuation Officer was not kept present at the time of hearing of the appeal on December 3 1974 We are unable to accept this argument urged on behalf of the respondents because in our opinion the provisions of sec. 269-L (3) are mandatory and once the Competent Authority has made the request it is incumbent upon the Tribunal to afford an opportunity of being heard to the Valuation Officer. In view of the mandatory language of sec. 269-L (3) there must he an express waiver and there cannot be any question of any implied waiver from the circumstances of the type relied upon by Mr. Shah. Hence we have rejected this submission urged on behalf of the respondents. In view of the mandatory language of sec. 269-L (3) there must he an express waiver and there cannot be any question of any implied waiver from the circumstances of the type relied upon by Mr. Shah. Hence we have rejected this submission urged on behalf of the respondents. ( 8 ) TWO courses were open to us either to send down the matter for the limited purpose of enabling the Valuation Officer nominated by the Competent Authority to be heard by the Appellate Tribunal and asking the Appellate Tribunal to record its finding on that limited point of fair market value and report the matter back to us. But in view of the fact that this is the first time when the Tribunal itself was considering the matter and also looking to the fact that practically everyone was new to the practice and procedure under Chapter XX-A and further in view of the fact that it would be desirable in the interest of justice that the entire matter is sent back to the Tribunal we are allowing this appeal on this limited point under sec. 269-L (3) and sending the entire matter back after setting aside the order of the Tribunal so that the Tribunal may dispose of the matter in the light of the correct legal position as explained in this judgment. ( 9 ) WE are sending the entire matter back to the Tribunal at the express request of Mr. G. N. Desai appearing on behalf of the Commissioner in order that the matter may be disposed of within as short a time as possible; in view of the time that has disposed the Tribunal is requested to dispose of the matter as expeditiously as possible and within four weeks if it can be done from the date of receipt of the record and proceedings. Record and proceedings to be sent down immediately. There will be no order as to costs of the appeal. Order accordingly. .