Sri Kewalchand Kailashchand Jain vs. Commissioner Of Wealth Tax

I.T.A. No.45/2000 14.03.2013 Shri Sandesh Jain, Advocate for the appellant. Shri Sanjay Lal, Advocate for the respondent. This appeal was admitted on 31.10.2001 on the following substantial question of law:- "Whether assessment proceedings in the name of Kewalchand Kailashchand Jain (Karta Shri Kailashchand Jain) HUF would be legal in the event of partition having taken place between the parties?" The dispute between the parties is in respect of partition of the appellant HUF firm. As per the case of the appellant, it was a complete partition, while the Department was treating it as a partial partition. The Income Tax Appellate Tribunal, vide order dated Annexure A-8, found that it was a partial partition and accordingly allowed the appeal of revenue and restored the order of assessing officer, who had assessed the appellant, treating the partition, as partial partition. Learned counsel appearing for the appellant submits that the matter has been considered by a Division Bench of this Court in Misc.W.T.A. No.46/2000, in the matter of the appellant

itself, and vide order dated 13.03.2008, the matter has been remitted back to the Tribunal, to reconsider the issue. It is submitted that in view of direction in Misc. W.T.A. No.46/2000, this matter may also be remitted back for a fresh decision or to follow the decision in the matter of appellant, in compliance of order dated 13.03.2008 in W.T.A. No.46/2000. It would be pertinent to mention here that the appellant's appeal for assessment year 1989-1990 was decided by a Division Bench of this Court on 13.03.2008 in W.T.A. No.46/2000. For ready reference, we quote the entire order, which reads thus:- "The present appeal preferred under Section 27-A of the Wealth Tax Act, 1957 [for brevity 'the Act'] was admitted on the following substantial question of law: "Whether on the facts and circumstances of the case, the Tribunal was right in rejecting the appellant's claim of complete partition under Section 20 of the Wealth Tax Act?" 2. The

essential

facts which need to be exposited for appreciating the grounds urged in the

appeal

are

that

the petitioner was assessed to Wealth Tax

the

Assistant Commissioner, Wealth Tax under

Section 17 of the Act and the said authority rejected the stand of the assessee-petitioner that there has been complete partition of the HUF and hence, there could be no liability of Wealth Tax. Be it noted, it was pleaded before the Assessing Officer that the HUF had become instinct and, therefore, no tax could be imposed. The Assessing Officer came to hold that there had been partition but it did not have nature and character of complete partition to get the benefit as engrafted under Section 20 of the Act. The Assessing Officer placed reliance on the decision rendered in Kallomal Tapeshwari Prasad (HUF) vs. CIT, 133 ITR 690 and came to hold that as there has been partial partition the provision contained in Section 20A of the Act will not get attracted. 3. Being aggrieved by and dissatisfied with the aforesaid order

the

assessee-appellant preferred an appeal before the CIT (Appeals) who analysing the facts in detail expressed the opinion that there has been a complete partition. Being of this view

the

first

appellate authority directed the Assessing Officer to proceed with the matter on the foundation that there

had

been

complete partition.

Mr.

H.S. Shrivastava,

learned

Senior Counsel being assisted by Mr. Oswal for the assessee, appellant that the tribunal being the final fact finding authority could not have dealt with the matter in a mechanical and superficial manner as it has done. The learned

Senior Counsel further submitted that the tribunal should have apprised itself that the CWT(A) has dislodged the finding of the Assessing Officer and when the tribunal was passing an order of reversal, it was incumbent on its part to ascribe cogent and germane reasons of scanning of facts that there had been incomplete partition instead of complete partition. The learned counsel further submitted that the tribunal has rejected the claim of complete partition without factual analysis and, therefore, the same involves a substantial question of law inasmuch as when a tribunal which is vested with jurisdiction to act in a particular manner and it does not carry out statutory responsibility the same gives rise to a substantial question of law. 6. Mr. Rohit Arya, learned Senior Counsel along with Mr. Sanjay Lal appearing for the Revenue supported the order passed by the tribunal. 7. We

have

carefully perused the order passed by the tribunal. On a bare perusal of paragraph 4 of the order by which the tribunal has composed its reasoning, by no stretch of imagination, can be interpretive of the fact that there has been any kind of advertence to the facts in issue. The tribunal has

only stated that at the most there is a partial partition. We really fail to fathom that on what basis the tribunal has come to such a conclusion and on what ground it has reversed the finding of the CWT(A). It is trite law that the tribunal is the

highest

fact

finding authority and, therefore, it has to discharge its obligation while it reverses a factual order more so, when the assessee had suffered. 8. In

view

the aforesaid, we set aside the order passed by the tribunal on 18-02-2000, Annexure A/8, and direct remit to it for proper adjudication as per law. Needless to emphasize when this Court has directed remit of the case, as there has been no discussion by the tribunal with regard to factual matrix, there has been no expression of opinion on the merits of the case. 9. In the result, the appeal stands allowed. There shall be no order as to costs." The present dispute relates to subsequent assessment years, while against the same order, another Misc. W.T.A. No.46/2000 has been decided by the Division Bench on 13.03.2008, as quoted herein above.

As the controversy is similar, and against the same Misc. W.T.A. No.46/2000 was filed and was decided by the aforesaid order, we find it appropriate to dispose of this matter with the similar directions as issued in Misc. W.T.A. No.46/2000. Accordingly, this appeal is allowed in part. The matter is remitted back to the Income Tax Appellate Tribunal for a fresh order on the issue, as per law, as was directed by the Division Bench of this Court in Misc. W.T.A. No.46/2000. C.C. as per rules. (Krishn Kumar Lahoti) (M.A. Siddiqui) Judge Judge psm