PR COMMISSIONER OF WEALTH TAX CENTRAL vs. SHRI BABU LAL DATA


      

  D.B. Wealth Tax Appeal No. 4 / 2017 The Dy. Commissioner of Wealth Tax, Central Circle, Alwar (Raj.) ----Appellant Versus Shri Babu Lal Data, 20, 21 & 22, Old Industrial Area, Alwar ----Respondent _____________________________________________________ For Appellant(s) : Mr. Gaurav Gaur _____________________________________________________
 

  
 !" 1. By way of this appeal, the appellant has assailed the judgment and order of the Tribunal whereby Tribunal has upheld the order of CWT(A). 2. Counsel for the appellant has framed the following substantial question of law:- “Whether on the facts and circumstances of the case and in law, the ITAT is justified in treating the property at Mangal Marg, Station Road, Alwar as not an asset liable to Wealth Tax and thereby excluding its value as determined by AO from taxable wealth, whereas the plot was covered in the meaning of assets laid down in Section 2(ea)(1) of the Wealth Tax Act, 1957.” 3. The facts of the case are that during the course of search operations in the year 1989 in the case of Sh. Niranjanlal Datta and his family members, certain documents were seized. As per

    


seized document marked as A-3/27, the assessee was found to be having 1/4 share in the property situated at Mangal Marg, Station Road, Alwar known as Krishna Oil Mill. The assessee submitted that he is not in possession of the said property and the title of the property is also defective and the matter is pending before the Hon’ble High Court and it was not an “urban land” but an industrial land on which industrial unit was situated which has since closed. However, as per the AO said property was falling with the Municipal limit and same is “urban land” falling within the meaning of assets u/s 2(e) of the W.T. Act and therefore after valuing the property at Rs.84,01,050/-, the assessee’s share was computed at Rs.21,00,263/- which was brought to tax. 4. This court while deciding identical questions in WTA No.2/2012 (CWT, Alwar vs. Niranjan Lal Data) decided on 19.7.2017 held as under:- 4. The main question which is put for our consideration is whether the Tribunal was legally justified in confirming the order of the Commissioner of Wealth Tax (A) in holding that land is not urban land under Section 2(ea) and not an assets to be included under Section 2(ea) and chargeable under Section 3 of the Wealth Tax Act. 5. Counsel for the appellant Ms. Parinitoo Jain and Mr. Anil Mehta has taken us to Section 2(ea) of the Wealth Tax Act, 1957 which reads as under:- “assets”, in relation to the assessment year commencing on the 1st day of April, 1993, or any subsequent assessment year, means
                        

   


otherwise including a farm house situated within twenty-five kilometres from local limits of any municipality (whether known as Municipality, Municipal Corporation or by any other name) or a Cantonment Board, but does not include
(1) a house meant exclusively for residential purposes and which is allotted by a company to an employee or an officer or a director who is in whole-time employment, having a gross annual salary of less than five lakh rupees; (2) any house for residential or commercial purposes which forms part of stok-in-trade; (3) any house which the assessee may occupy for the purposes of any business or profession carried on by him; (4) any residential property that has been let-out for a minimum period of three hundred days in the previous year;6. He has also taken us to the definition of urban land including explanation and contended that while considering the matter, the Tribunal and the Commissioner Wealth Tax (A) have seriously committed an error in not considering the definition of urban land under Section 2(ea) explanation (b) which clearly establish that the property situated within an urban area is urban land. 6.1. In that view of the matter, the Section 2m which reads as under:- “(m) net wealth means the amount by which  the aggregate value computed in accordance with the provisions of this Act of all the assets, wherever located, belonging to the assessee on the valuation date, including assets required to be included in his net wealth as on that date under this Act, is in excess of the aggregate value of all the debts owed by the assessee 37 [on the valuation date which have been incurred in relation to the said assets]; 6.2. Therefore, urban land ought to have been included in the net wealth. 7. Counsel for the appellant Mr. Anil Mehta has also taken us to the judgment of the Wealth Tax Commissioner (A) and contended that in all properties industrial constructions are allowed but other construction are prohibited. In that view of the matter, it is contended that the findings of the Tribunal and Wealth Tax Commissioner (A) are required to be reversed and the questions of law

    


raised are required to be answered in favour of the department. 8. Counsel for the respondent Mr. A.K. Bhandari Senior Counsel and Mr. Jhanwar has strongly relied upon the decision of Delhi High Court reported in (2007) 290 ITR 615 (Delhi) more particularly in para 3, 4 & 7 observed as under:- “3. Thus, now we have to consider whether the controversy involved in the present case and particularly as formulated by the Department in the proposed question of law is answered by judgment or on the plain reading of the provisions of the Act. Before discussing this aspect of the case in some elucidation, it would be necessary for us to refer to the facts giving rise to the present appeal. The assessed filed a return of wealth of Rs.95,36,700/- for the assessment year 1993-94. The Assessing Officer issued a notice under section 17 of the Act to the assessed on the ground that during the course of assessment for the assessment year 1994-95 it was noticed that assessed has not disclosed urban land worth crores of rupees held by the assessed as stock-in-trade which were liable to wealth tax for the relevant year of 1993-94. To this notice, the assessed submitted the reply stating that the urban land owned by the assessed could not be included in the net wealth of the assessed, as such the land and the building thereupon was constructed without approval of the relevant authorities, were converted into stock-in-trade on 1.9.1992. The Assessing Officer while rejecting the contention raised on behalf of the assessed, held that no exemption was available to the assessed in case of conversion or urban land into stock-in-trade till the assessment year 1993-94. According to the Assessing Officer, the land was acquired in 1880/1980, possession is taken as on 1.4.1981, thus the assessed is not covered under exception inserted w.e.f. 1.4.1994. Thus, the Assessing Officer added the value of the land towards the net wealth of the assessed. Aggrieved, from the order of the Assessing Officer dated 30.3.2001, an appeal was preferred by the assessed before the Commissioner, Wealth Tax (Appeals), who vide his order dated 2.2.2001, held that Supreme Court vide his order 1.5.1991 had permitted the re-development of the mill area to flatted factory complex and group housing complex and ordered the existing building to be

    


demolished, thus the remaining building could not be remained to be standing there with the approval of the appropriate authority. While dismissing the appeal of the assessed, by a detailed order, the First Appellate Authority, inter alia, held as under :- "The assessed in its contention from Nos. 1 to 26 relating to this 6th ground of appeal has not been able to refute the decision of the AO that urban land held by it as stock in trade is not exempt in A.Y. 1993-94. In order that there is no ambiguity left while not allowing exemption to the assessed company, the amendment by Finance Act 1992 in WT Act was also discussed on page 2 of the assessment order. It has been discussed that clause 2(ea) to Section 2 was inserted to the WT Act w.e.f. 1/4/1993 and the inserted provision provided for exemption of any unused land held by the assessed company for industrial purposes for a period of 2 years from the date of its acquisition by it. As discussed further in the assessment order the assessed converted its land into stock in trade in 1/9/1992 which corresponds to A.Y. 1993-94. It is obvious that the assessed should not have claimed the exemption because in A.Y. 1993-94 no exemption is available. The exemption in such cases is available from A.Y. 1994-95 and not

1993-94." 24.0 From the above it becomes clear that the AR is admitting that it is only on the basis of the amendment brought about by the Finance Act 1993 applicable from A.Y. 1994-95 that exemption is being claimed by the appellant. inspire of it being clearly and unambiguously mentioned that the amendment on the strength of which the exemption is being claimed by the appellant would be applicable only w.e.f. 1/4/1994, the AR is trying to claim the exemption in the year under consideration which against the clear unambiguous provisions of WT Act had the amendment been applicable to A.Y. under consideration, certainly the same would have mentioned in the amendment. In view of the specific mention of the date of 1/4/1994 mentioned in the amendment, the AR's contention that exemption should be allowed in view of the amendment brought about by the Finance Act 1993 in the A.Y. under consideration is clearly misplaced, the same cannot be accepted and is accordingly rejected.

   


25.0 In view of the foregoing discussion the AO's action in including in the appellant's net wealth the value of factory premises and residential colony is held to be justified. 4. Aggrieved from the above order, the assessed preferred an appeal before the Income Tax Appellate Tribunal, Delhi Bench, which vide a very detailed order accepted the appeal of the assessed

holding

under

:- "We have no doubt in our mind that in order to decide taxability of an asset, we have to go by the factual position as on the valuation date. It is not permitted under law to assume a hypothetical situation which never existed. We are fully convinced with the factual position as explained by the counsel for the assessed company that as on the valuation date old factory premises as well as residential colony were existing, except for a small portion which has been demolished. As per the conditions imposed by the Municipal Corporation of Delhi, complete demolition had to be done before any activity for construction could be commenced. Approval for construction had been granted much later by the Municipal Corporation of Delhi and that too only for one phase for the factory complex. Above approval had also been withdrawn by way of work stoppage notice. Therefore, even as on date of permission for construction does not exist. Residential premises had been occupied by the ex- employees of the assessed company as on the valuation date. Legal disputes have been going on before the Courts. In view of these factual circumstances premises in question cannot be said to be land. Therefore, we are agreeable to the contentions of the learned counsel for the assessed that said premises cannot be said to be urban land for the purpose of section 2(e) of W.T. Act. On the basis of above factual position itself, claim of the company deserve to succeed. We find from the orders of lower authorities that the factual position as submitted by the assessed company has not been considered and appreciated by them. The AO, in fact did not even consider it necessary to give any weightage to the factual position and he just concluded that whatever arguments have been put forth it is urban land taxed under WT Act. Further, he has said that under no circumstances the urban land is exempt CWT (A) though considered and recorded factual

    


position in his order, he disregarded the same by taking into account a a hypothetical situation for each claim. Supreme Court though, had permitted redevelopment of area in principle but case of the assessed company for granting approval etc. was to be considered by MCD, DDA, etc. with reference to relevant regulations and bye-laws. It cannot be said that approval of maps etc. was only a routine matter. 10. We accordingly uphold claim of the assessed company. Firstly, on the ground that premises under reference cannot be said to be land and, Therefore, were not in the nature of "Urban Land" chargeable to wealth-tax.....…" 7. The provisions underlined by us in the above provision were inserted by the Finance Act, 1993 and made effective from 1.4.1994. We are dealing with the relevant assessment year for 1993-94. On the bare reading of the above provision, it is clear that urban land would not include a land, on which construction of a building is not permissible under any law for the time being in force in the area where land is situated or the land occupied by any building which has been constructed with the approval of the appropriate authority or in any unused land held by the assessed for an industrial purpose for a period of two years from the date of its acquisition. It is an admitted case before us that the assessed does not claim benefit of the third clause of the category specified in the provisions. The assessed would obviously have advantage of the land being not included as an urban land because no construction at the relevant time was permissible on the land in question. In alternative, the building which has been constructed, if at all, with the approval of the appropriate authorities. In Maxim, Generalia verba sunt generaliter intelligent -it would be a helpful percept to interpretation of the provisions which used words of general nature and despite the fact that it relates to law of revenue would have to be construed generally. The intention of the legislature appears to be that land which falls within the exception afore- referred would have to be excluded from the ambit and scope of the expression "urban land". Once the land or any building thereupon making it a combination of land and building is not an urban land, then it could not be an asset as defined under section 2(EA) of the Act. The result thereof would be not to treat the same as net-wealth of an assessed for the purposes of

    


the provisions of the Wealth Tax Act. The First Appellate Authority had proceeded on the assumption that now orders of Supreme Court dated 1.5.1991 qua re-development had been permitted of the mill area to flatted factory complex and group housing complex. Leave was also granted to demolish the existing building. It is not in dispute before us that till date no permission/approval has been granted by the appropriate authority to the assessed to raise the building in-consonance with the plans and as such the old structure existing is not in- conformity with law and had not been raised with the leave of any authority. In other words, on the land in question, no construction was permitted and the authorities concerned have not granted its approval so far for raisingconstruction on that land. In either of these cases, the land would stand excluded from the definition of "urban land" chargeable to wealth tax. In relation to one phase, the permission was granted much subsequent to the relevant year of assessment, which as stated on record before us, had also been withdrawn and work was stopped. 9. Counsel for the respondent also relied upon the decision of Karnataka High Court in appeal No. 18796/2013 passed on 23rd July, 2013 wherein para 3 observed as under:- “3. In that view of the matter, the respondent fell in error in concluding that since the petitioner- assessee is not barred from converting land and constructing building thereto, the land falls within the definition of the term ‘urban land’ for the purpose of wealth tax. This finding, in my opinion, is perverse and calls for interference with the assessment order.” 10. Mr. Jhanwar has pointed out that the judgment which is sought to be relied upon is under the old Act and not under the amended Wealth Tax Act. 11. We have heard counsel for both the sides.. 12. Taking into consideration the observations made by the Assessing Officer in Wealth Tax Appeal No. 6/2011 wherein para 5 & 8 of the Assessment order it was observed as under:- “5. M/s Totalal Champalal executed a lease dated 19.7.1981 in favor of assessee and Sh. Niranjan

Lal.

The

details

of constructions/property are shown in the map annexed with the lease deed. Further submitted that the UIT, Alwar by its order dated 25.7.1995

    


refused the permission for construction and it was held; that on the following grounds; A- The land was given for industrial purpose. B- Jayanti Nagar Yojana is proposed. C- The documents of title are incomplete. Secondly, the status Government disputes the title. The name of the assessee is not recorded in the government record as owner i.e. the ownership is disputed and not accepted by UIT, Alwar. 8. During the course of present assessment proceedings an attempt was made to peep in to reality of the assets and the land in question was physically inspected by the under signed on 22/12/2008 along with Shri P.K. Kalyania, Inspector, posted in this office and Shri J.P. Khurana, the Inspector posted in this Office during the time when the proceedings u/s 17 of W.T. Act were initiated and it is found that there was not a slightest sign of any industrial establishment over there. Since the land in question is common in the case of the assessee as well as in the case of Shri Niranjan Lal Data, this fact has been brought to the notice of Shri V.K. Data ld A/R of Shri Niranjan Lal Data vide order sheet entry dated 22/12/2008 as under:-
           !"# $%  &’% ’$#’(’’  ()%   &$"*+   ,A.O.-  .  ’(’    %’/ %+*   !   0’1’      2  . ’(’%’/%+*  3!4+% # %&+  5+%(6.((7%8 9!: ; !+( % +%’#<$!+ )4’ 9!: 4(=> = ?!$;  +4( ( (*1% ; )+

= ++4’$;3!@()2 $!+$;<$!+ !A + (($. %$$;<;+%$$!+ .;& B’’ &( 3+$$;< %&+ ’$+)’3$; $$  C+!%5$!+%+*1 + $;$ ; )+ C’% + $;<$ $ ;& "!%C&#’ :’!% + $;<

    


%&+ ;+.#’ ?!" + ’ ’<!%D%+*1 E’ %$F.< (!+ < 13. In our considered opinion, while para 5.3 of the Commissioner Appeal strongly relied upon by the counsel for the appellant, the observations which are made by the Wealth Tax Commissioner (A) reads as under: 5.3.- “But while dealing with the said para the learned assessing officer has stated that the land was transferred as stock in trade and also the DDA and MCD destroyed the building, whereas in this case the UIT/NCRT has not destroyed structure transferred to the assessee. These issues were never raised before the learned assessing officer and were not a matter of controversy before assessing officer. The submissions revolves around the permission for construction, which has not been touched upon by the learned assessing officer in his remand report. #  $%&  %’’’’(&)  *++(,  #%’ %,,-.  .#  +%,.  *+  ’.%(&/&.  *+ -/(’’(*&+*,*&’.0,.(*&12$%3 , hence the controversy stands resolved and stands accepted by the learned assessing officer himself, CBDT circular and various authorities relied upon by the assessee during the course of the remand proceedings nowhere stipulates that the property should be actually used by the assessee himself for residence purposes. The submission made before the learned assessing officer was upon the issue of house whereas the learned assessing officer has refered to the residence of the assessee and both tare different in view of the authorities submitted before the learned assessing officer, hence the findings given by the learned assessing officer are of no consequence and deserves to be ignored. The learned Assessing Officer has relied upon the decision of Gujarat High Court, but this decision has been overruled subsequently by honorable Andhra Pradesh High Court in the case of Officer Incharge (Court of Wards, (Paigah, Sir Vicar-UI-Umra, Hyderabad). vs. Commissioner of Wealth Tax, Andhra Pradesh.” 14. In our considered opinion, when the author of the order himself has accepted that construction

was

prohibited

under law,therefore, in our view, explanation under

    


clause (b) of definition of urban land is rightly applied by the both the authorities.” In view of the above, no substantial question of law arises. The appeal stands dismissed. (INDERJEET SINGH),J. (K.S. JHAVERI),J. Brijesh 7.