Sh. Joginder Singh Rajput, Jammu V. The Weatlh Tax Officer, Jammu

CO 11/ASR/2015

• Counselvise Citation: [2015] 123 COUNSELVISE.COM (IT) 1095 (ITAT-AMRITSAR)
• Duration Of Justice: 4 month(s) 21 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 21-08-2015
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 12-06-2015
• Assessment Year: 2005-2006
• Appeal Filed On: 31-03-2015
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: P N ARORA
• Assessee Lawyers: VIRENDRA KUMAR SINGH
• Keywords: Retrospective amendment; Competent authority
• Section: 27

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH; AMRITSAR BEFORE SH. A.D.JAIN, HONBLE JUDICIAL MEMBER AND SH. T.R. MEENA HONBLE ACCOUNTANT MEMBER W.T.A. NOS.11 TO 14 (ASR)/2014 ASSESSMENT YEARS: 2002 - 03 TO 2005 - 06 PAN: ABCPR 3753J THE WEALTH TAX OFFICER, WARD - 2(1), JAMMU VS. SH. JOGINDER SINGH RAJPUT C/O SHRI R.S.PATHANIA, AMAR MAHAL MUSEUM, THE PALACE, JAMMU. (APPELLANT) (RESPONDENT) CROSS OBJECTION NOS.8 TO 1 1 (ASR)/2015 ASSESSMENT YEARS: 2002 - 03 & 2005 - 06 PAN: ABCPR - 3753J SH. JOGINDER SINGH RAJPUT C/O SHRI R.S.PATHANIA, AMAR MAHAL MUSEUM, THE PALACE, JAMMU. VS. THE WEALTH TAX OFFICER, WARD - 2(1), JAMMU (CROSS OBJECTOR ) (RESPONDENT) APPELLANT BY: SH. V IRENDRA KUMAR SINGH (DR) RESPONDENT BY: SH. P.N. ARORA, ADV. DATE OF HEARING: 19.08.2015 DATE OF PRONOUNCEMENT: 21 .08.2015 ORDER PER BENCH : THE SE ARE DEPARTMENTS APPEALS AND ASSESSEES CROSS OBJECTIONS, RESPECTIVELY, FOR ASSESSMENT YEAR S 2002 - 03 TO 2005 - 06. C OMMON ISSUES BEING INVOLVED, THESE APPEALS AND CROSS O BJECTIONS ARE BEING DISPOSED OF BY THIS COMMON ORDER. 2. AT THE OUTSET, THE LEARNED COUNSEL FOR THE ASSESSEE HAS STATED AT THE BAR T HAT HE DOES NOT WISH TO PRESS THE CROSS OBJECTIONS FOR ALL THE ABOVE MEN TIONED YEARS. ACCORDINGLY, CROSS OBJECTION NOS.8 TO 11 ARE DISMISSED AS WITHDRAWN. 2 W TA NO. 11 TO 14 (ASR)/2014 C.O. NOS. 08 TO 11 (ASR)/2015 ASST. YEAR S .2002 - 03 TO 2005 - 06 3 . APROPS ALL THE APPEALS, T HE WTO HELD, INTERALIA, THAT THE NOTIFICATION FOR ACQUISITION OF LAND WAS PUBLISHED ON 29.09.2005, I.E., ABOUT TWO AND HALF YEARS LATER THAN THE DATE OF VALUATION OF THE LAND FOR WEALTH TAX PURPOSES , FOR THE ASSESSMENT YEARS. 2002 - 03 AND 2003 - 04 , AND MUCH BEFORE THE VALUATION DATE IN RESPECT OF ASSESSMENT YEARS 2004 - 05 AND 2005 - 06 ; AND THAT THERE WAS NO FREEZING OF LAND USE AS PER SECTION 16 OF THE HIMACHAL PRADESH TOWN & COUNTRY PLANNING ACT, 1977, AS THAT THERE WAS NO PROHIBITION AGAINST DEVELOPMENT UNDER SECTION 27 OF THE SAID ACT, AS ON THE RESPECTIVE DATES OF VALUAT ION, ON THE ASSESSEES LAND. THE WTO FURTHER OBSERVED THAT SINCE THE AGGRICULTURAL LAND OF THE ASSESSEE WAS SITUATED IN MAUZA KASUMPTI KOTI, TAHSIL A ND DISTRICT S HIMLA, WHICH FALLS WITHIN THE SPECIFIED LIMITS OF THE MUNICIPAL CORPORATION, SHIMLA, WHERE THE RE WAS NO RESTRICTION OF CONSTRUCTION OR DEVELOPMENT OF LAND BY ANY ACT FOR THE TIME BEING IN FORCE , AS ON THE RESPECTIVE DATES OF VALUATION AS PER THE WEALTH TAX ACT , THE LAND OF THE ASSESSEE WAS COVERED UNDER THE DEFINITION OF ASSET WITHIN THE MEANING OF SECTION 2(EA) OF THE WEALTH TAX ACT. 4 . THE LEARNED CWT(A), HOWEVER, HELD THAT THE ASSESSEES LAND WAS AGRICULTURAL LAND AND AGRICULTURAL OPERATIONS WERE BEING CARRIED OUT THEREAT AND THAT SO, THE LAND WAS COVERED BY THE EXEMPTION IN THE DEFINITION OF ASSET IN TERMS OF SECTIO N 2(EA) OF THE WEALTH TAX ACT. 5 . THE DEPARTMENT CONTENDS THAT THE LEARNED CWT(A) HAS ERRED IN DELETING THE ADDITION MADE ON ACCOUNT OF VALUE OF TAXABLE WEALTH NOT DECLARED BY THE ASSESSEE, WHEN AS PER THE ASSESSMENT ORDER , IN TH E CASE OF THE ASSESSEE, THERE 3 W TA NO. 11 TO 14 (ASR)/2014 C.O. NOS. 08 TO 11 (ASR)/2015 ASST. YEAR S .2002 - 03 TO 2005 - 06 WAS NO RESTRICTION CONCERNING CONSTRUCTION OR DEVELOPMENT OVER THE LAND OF THE ASSESSEE, BY ANY ACT OR LAW FOR THE TIME BEING IN FORCE AND THE ASSESSSEE COULD HAVE MADE SUCH CONSTRUCTION WITH PERMISSSION FROM THE APPROPRIATE A UTHORITY. 6 . ON THE OTHER HAND, THE LEARNED COUNSEL FOR THE ASSESSEE HAS STRONGLY RELIED ON THE IMPUGNED ORDE RS, CONTENDING THAT THE LEARNED CWT(A) , WHILE RIGHTLY DECIDING THE ISSUE IN FAVOUR OF THE ASSESSEE, HAS CORR ECTLY TAKING INTO CONSIDERATION THE FA CT THAT THE LAND IN QUESTION WAS AGRICULTURAL LAND AS PER THE RECORDS OF THE GOVT. AND AGRICULTURAL OPERATIONS WERE BEING CARRIED ON THEREAT. 7 . HAVING HEARD THE RIVAL CONTENTIONS IN THE LIGHT OF THE MATERIAL PLACED ON RECORD, WE FIND THAT THE WTOS ORDERS IN ALL THESE CASES ARE DATED 9.12.2009. IT FINDS MENTION IN THE FIRST AND SECOND PARAS AT PAGE 10 OF THE CWT(A)S ORDER FOR ASSESSMENT YEAR 2002 - 03, WHICH ORDER IS THE SUBJECT MATTER OF APPEAL BEFORE US IN WTA NO.11(ASR)2014, THAT THE LAND IN QUESTION WAS AGRICULTURAL LAND AND AGRICULTURAL OPERATIONS WERE BEING CARRIED OUT THEREAT AND EVIDENCE WITH REGARD THERE TO HAD BEEN FILED BY THE ASSESSEE BE FORE THE WTO AND THE CWT(A), AND THE ASSESSEE HAD FILED BEFORE THE WTO AS WELL AS CWT ( A ) , A CERTIFICATE DATED 27.11.2009, IS SUED BY THE TOWN AND COUNTRY PLANNER , DIVISIONAL TOWN PLANNING OFFICER, SHIMLA. THE EVIDENCE WITH REGARD TO THE LAND BEING AGRICULTU RAL AND AGRICULTURAL OPERATIONS BEING CARRIED ON THEREAT IS IN THE SHAPE OF KIS S AN CARD ALONG WITH KHASRA GIRDAWARI ( WRONGLY MENTIONED AS JAMABAND I BY THE ASSESSEE ), (APB 20 - 22). APB 18 - 19 IS A COPY OF LETTER/ WRITTEN SUBMISSION DATED 1.12.2009 FILED BY TH E ASSESSEE BEFORE THE WTO. THIS LETTER 4 W TA NO. 11 TO 14 (ASR)/2014 C.O. NOS. 08 TO 11 (ASR)/2015 ASST. YEAR S .2002 - 03 TO 2005 - 06 CONTAINS MENTION OF THE KIS S AN CARD (SUPRA), WHICH IS ALSO OBSERVED BY THE LEARNED CWT(A) TO HAVE BEEN FILED BY THE ASSESSEE BEFORE THE WTO AS WELL AS BEFORE HIM. THE KIS S AN CA R D SHOWS THE ASSESSEE TO B E A FARMER OF V ILLAGE KUSUMPTI KOTI, TAHSIL SHIMLA, DISTRICT SHIMLA. THE KHASRA GIRDAWARI ACCOMPANING THIS KISAN CARD CONTAINS PROOF OF AGRICULTURAL OPERATIONS OVER THE ASSESS EE S LAND. THIS PROOF IS IN THE SHAPE OF V ATAR, SHOWING CULTIVATION RABBI AND KHARIF CROPS OVER THE LAND, WHICH HAS BEEN SHOWN IN THE SELF CULTIVATING POSSESSION OF THE ASSESSEE AND HAS BEEN DESCRIBED AS BAGICHA (ORCHARD). 8 . SO FAR AS REGARDS THE CERTIFICATE, THE TOWN AND COUNTRY PLANNER, SHIMLA HAS STATED THAT NO CONSTRUCTION ACTIVITY COULD BE STARTED , WITHOUT O BTAINING PRIOR APPROVAL OF THE C OMPE TENT A UTHORITY , OVER THE LAND IN QUESTION. THE ASSESSEES LETTER DATED 1.12.2009 (SUPRA) TO THE WTO MENTIONS THIS CERTIFICATE BEING ENCLOSED THEREWITH. 9 . CONCERNING THE ISSUE AS TO HOW THE W TO CONSIDERED THE EVIDENCE WITH REGARD TO THE NATURE OF THE LAND BEING AGRICULTURAL AND AGRICULTURAL OPERATIONS BEING CARRIED ON THEREAT, A PERUSAL OF THE WTO S ORDER SHOWS THAT WHILE CONSIDERING THE ISSUE AS TO WHETHER THE AGRICUL TURAL BELONGED TO THE HUF OF THE ASSESSEE, THE WTO OBSERVED AT PAGE 12 OF THE WTO S ORDER FOR ASSESSMET YEAR 2002 - 03 AS FOLLOWS : AS REGARDS PROPERTY OF 9626.55 SQ. MTRS, THIS PROPERTY CLAIMED TO HAVE BEEN SOLD BY THE ASSESSEE IN TWO PARTS, FIRST 4935.80 SQ. MTRS AGAINST SALE DE ED DATED 30 TH APRIL, 2003. THIS LAND WAS SOLD BY THE ASSESSEE IN THE INDIVIDUAL CAPACITY. HAD THE PROPERTY OWNED BY THE HUF, THE SALE MIGHT HAVE BEEN BETWEEN THE HUF THROUGH KARTA AND THE PARTY PURCHASING THE SAID PROPERTY AND THE SALE PROCED 5 W TA NO. 11 TO 14 (ASR)/2014 C.O. NOS. 08 TO 11 (ASR)/2015 ASST. YEAR S .2002 - 03 TO 2005 - 06 MUST HAVE BEE N DESPOSITED IN THE HUF BANK A/C. FOR THE SECOND PART, ASSESSEE FIRST EXECUTED GENERAL POWER OF ATTORNEY ON A STAMP PAPER DATED 30.04.2003 IN HIS INDIVIDUAL CAPACITY IN FAVOUR OF SHRI ANUDEEP KUMAR S/O SHRI JAGDIP SINGH, OF SHIMLA, SHRI RAJESH KUMAR S/O SHRI PARAS RAM OF SHIMLA AND SHRI SANDEEP KUMAR S/O SHRI JAGDIP SINGH OF NAHAN AND THEN AS CLAIMED BY HIM THAT THE SAID LAND WAS SOLD TO THE ABOVE ATTORNEY HOLDERS AS PER AGREEMENT TO SELL DATED 30.04.2003 IN HIS INDIVIDUAL CAPACITY. IN THIS CASE ALSO, HAD THE SAID PROPERTY OWNED BY THE HUF, THE SAME MIGHT HAVE BEEN SOLD THROUGH SHRI JOGINDER SINGH IN THE CAPACIY OF KARTA OF HUF BUT IN BOTH CASES THE PROPERTY WAS SOLD BY SHRI JOGINDER SINGH IN HIS INDIVIDUAL CAPACITY AND THE SALE PROCEEDS HAVE BEEN UTILIZED FOR HIS INDIVIDUAL PURPOSES. ON THE BASIS OF ABOVE DISCUSSED POSITION, IT IS CLEAR THAT THE TOTAL LAND OF 1100 3.93 SQ. MTRS WAS OWNED BY THE ASSESSEE IN HIS INDIVIDUAL CAPACITY, THEREFORE, THE CLAIM OF ASSESSEE BEING PROPERTY UNDER CONSIDERATION BELONGED TO HUF IS HEREBY REJECTED. AT PAGE 11 OF THE SAID ORDER, THE WTO HAS ALS O MENTIONED AS FOLLOWS: A LAND OWNED BY ASSESSEE IN HIS NAME AS PER JAMABANDI - 1998 - 99(COPY ENCLOSED AS ANNEXURE - A BEING PART OF ASSESSMENT ORDER) 9626.55 SQ. MTRS. 10 . FROM THE ABOVE, IT COMES OUT THAT THE JAMABANDI FOR 1998 - 99 HAS BEEN ENCLOSED WITH THE ASSESSMENT ORDER FOR A.Y 2002 - 03, AS ANNEXURE - A. HOWEVER, NEITHER IS THIS JAMABANDI AVAILABLE ALONG WITH THE ASSESSMENT ORDER, NOR HAS IT BEEN PLACED BEFORE US BY EITHER OF THE PARTIES. PER CONTRA, AS NOTED HEREIN ABOVE, ALONG WITH THE KISSAN CARD KHASRA GIRDAWARI HAS BEEN F ILED, SHOWING KHARIF AND RABBI CROP CULTIVATION AND, THEREBY, AGRICULTURAL OPERATIONS THEREAT. THIS HAS NOT BEEN DISPUTED BEFORE US, EVEN THOUGH THE LEARNED CWT(A) HAS NOT BEEN BASED IS CONCLUSION TH EREON . 11 . THE LEARNED CWT(A), THOUGH, HAS DECIDED THE ISSUE ON THE BASIS OF CERTIFICATE DA TED 27.11.2009 ISSUED BY THE TOWN AND COUNTRY PLANNING , SHIMLA, AS PER WHICH CERTIFICATE, NO CONSTRUCTION ACTIVITY COULD BE STARTED ON 6 W TA NO. 11 TO 14 (ASR)/2014 C.O. NOS. 08 TO 11 (ASR)/2015 ASST. YEAR S .2002 - 03 TO 2005 - 06 THE LAND UNDER CONSTRUCTION WITHOUT OBTAINING PRIOR APPROVAL OF THE COMPETENT AUTHORITY. PERTINENTLY, THOUGH THIS CERTIFI CATE, DATED 27.11.2009 STANDS FILED BEFORE THE WTO, THIS CERTIFICATE HAS NOT BEEN TAKEN INTO CONSIDERATION BY THE WTO WHILE PASSING THE ASSESSMENT ORDER DATED 9.12.2009 FOR ASSESSMENT YEAR 2002 - 03. FOR THE OTHER YEAR S ALSO, THE POSITION REMAINS LIKEWISE. 12 . FOR THE ABOVE DISCUSSION, IN OUR CONSIDERED OPINION, THE ONLY UNESCAPABLE CONCLUSION IS THAT THE LAND OF THE ASSESSEE HAS RIGHTLY BEEN HELD BY LEARNED CWT(A) TO BE EXEMPT FROM THE DEFINITION OF ASSET WITHIN THE MEANING OF SECTION 2(EA) OF THE WEALT H TAX ACT, AS AMENDED BY THE FINANCE ACT 2013 WITH RETROSPECTIVE EFFECT FROM 1.3.1993. 13 . IN VIEW OF THE ABOVE, FINDING NO ERROR WHATSOEVER THEREIN, THE ORDES OF THE LEARNED CWT(A) FOR ALL THE YEARS UNDER CONSIDERATION ARE UPHELD. THE GRIEVANCE OF THE DE PARTMENT, LACK S IN MERIT AND IT , IS REJECTED. 14 . IN THE RESULT, ALL THE SE APPEALS FILED BY THE DEPARTMENT ARE DISMISSED AND ALL THE CROSS OBJECTIONS FILED BY THE ASSESSEE ARE DISMISSED AS WITHDRAWN. ORDER PRONOUNCED IN THE OPEN COURT ON 2 1 S T AUGUST, 2015. SD/ - SD/ - (T. R. MEENA) (A.D. JAIN) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 21 .08. 2015 /P K/ COPY OF THE ORDER FORWAR DED TO: 1 . THE ASSESSEE: SH. JOGINDER SINGH RAJPUT, 2 . THE WTO, WARD - 2(1), JAMMU 3 . THE CW T(A), 7 W TA NO. 11 TO 14 (ASR)/2014 C.O. NOS. 08 TO 11 (ASR)/2015 ASST. YEAR S .2002 - 03 TO 2005 - 06 4 . THE CWT , 5 . THE SR DR, I.T.A.T., TRUE COPY BY ORDER (ASSISTANT REGISTRAR) INCOME TAX APPELLATE TRIBUNAL, AMRITSAR BENCH: AMRITSAR.