Shri Jyotindrasinhji of Gondal, RAJKOT-GUJARAT V. The Deputy Commissioner of Wealth Tax, Circle-1, RAJKOT-GUJARAT

CO 38/RJT/2011

• Counselvise Citation: [2019] 115 COUNSELVISE.COM (IT) 5065 (ITAT-RAJKOT)
• Duration Of Justice: 8 year(s) 5 month(s) 20 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 25-10-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2005-2006
• Appeal Filed On: 05-05-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DM RINDANI
• Keywords: Residential status

Judgement Text

1 , , IN THE INCOME TAX APPELLATE TRIBUNAL RAJKOT BENCH, RAJKOT , , BEFORE SHRI RAJPAL YADAV, JUDICIAL MEMBER & SHRI WASEEM AHMED, ACCOUNTANT MEMBER W .T.A. NO.01/RJT/2010 WITH C.O. NO.38/RJT/2011 ( / ASSESSMENT YEAR :2005-06) D.C.W.T. CIRCLE-1, RAJKOT. / VS. SHRI JYOTINDRASINHJI OF GONDAL, DARBAR GADH, PALACE, GONDAL. ./ ./ PAN/GIR NO. : AAXPJ8631R ( # / APPELLANT ) .. ( $% # / RESPONDENT ) AND W.T.ANO.02 /RJT/2010 ( / ASSESSMENT YEAR : 2005-06) A.C.W.T. CIRCLE-1, RAJKOT. / VS. SHRI JYOTINDRASINHJI OF GONDAL, DARBAR GADH, PALACE, GONDAL.. ./ ./ PAN/GIR NO. : AAXPJ8631R ( # / APPELLANT ) .. ( $% # / RESPONDENT ) # / APPELLANT BY : SHRI JITENDRA KUMAR, CIT, D.R $% # . / RESPONDENT BY : SHRI D.M. RINDANI, A.R. . 2 / DATE OF HEARING 19/09/2019 . 2 / DATE OF PRONOUNCEMENT 25/10/2019 / O R D E R PER WASEEM AHMED ACCOUNTANT MEMBER: 2 W.T.ANOS.01-02/RJT/2010 WITH C.O.NO.38/RJT/2011 A.Y.2005-06 THE CAPTIONED APPEALS HAVE BEEN FILED AT THE INST ANCE OF THE REVENUE AGAINST THE SEPARATE ORDERS OF THE LEARNED COMMISSIONER OF WEALTH TAX (APPEALS)-1, RAJKOT [LD. CWT(A) IN SHORT ] OF DATED 22/10/2009 & 23/11/2009 , ARISING IN THE MATTER OF ASSESSMENT ORDER PASSED UNDER S. 16(3) OF THE WEALTH TAX ACT, 1961 (HEREINAFTER REFERRED TO AS 'THE ACT') DATED 24/12/2007 RELEVANT TO ASSE SSMENT YEAR (A.Y.) 2005-06. THE ASSESSEE HAS ALSO FILED CROSS OBJECTIO N IN REVENUE W.T NO.01/RJT/2010 FOR A.Y. 2005-06. FIRST, WE TAKE UP W.T.A. 01/RJT/2010 FOR A.Y.2005-0 6 FILED BY THE REVENUE. THE REVENUE HAS RAISED THE FOLLOWING GROUNDS OF APP EAL: 1. THE LD.CWT(A) ERRED IN FACTS IN LAWS IN DELETING AD DITION OF WEALTH OF THE U.S.A TRUST VALUED AT RS.34,65,22,917/- AND UK TRUST VALUED AT RS.20,5 5,59,640/- AS WEALTH IN THE HANDS OF THE ASSESSEE. 2. THE LD.CWT(A) ERRED IN FACTS AND IN LAWS IN DELETIN G ACTION OF VALUING THE FLAT AT BOMBAY AT RS.31,12,491/- AS AGAINST THE VALUE SHOWN BY THE AP PELLANT AT RS.9825/- AND DIRECTED TO VALUE AS PER SCHEDULE III OF THE WT ACT, RELYING UPON THE DECISION OF ITAT, RAJKOT BENCH IN APPELLANTS OWN CASE. 3. THE LD.CWT(A) ERRED IN FACTS AND IN LAWS IN DIRECTI NG TO VALUE THE PROPERTY KNOWN AS OPERA HOUSE, BOMBAY, AS PER SCHEDULE III OF THE WT ACT, R ELYING UPON THE DECISION OF ITAT, RAJKOT BENCH IN APPELLANTS OWN CASE. 4. THE LD.CWT(A) ERRED IN FACTS IN LAWS IN DIRECTING T O RE-WORKOUT THE VALUE OF JAIMAHAL PALACE HOTEL & STUD FARM VALUED AT RS.44,96,29,324/- BY TH E AO. 5. ON LEGAL AND FACTUAL STATUS OF THE CASE, THE LEARNE D CWT(A) OUGHT TO HAVE UPHELD THE ORDER OF THE ASSESSING OFFICER. 6. IT IS, THEREFORE, PRAYED THAT THE FINDINGS FIVE IN THE ORDER OF THE LD.CWT(A) MAY BE DISMISSED/DELETED AND THAT OF THE ASSESSING OFFICER BE RESTORED. 7. YOUR APPELLANT RESERVES THE RIGHT TO ADD, ALTER, WI THDRAWN ANY/ALL GROUNDS OF APPEAL. 3 W.T.ANOS.01-02/RJT/2010 WITH C.O.NO.38/RJT/2011 A.Y.2005-06 2. THE 1 ST ISSUE RAISED BY THE REVENUE IS THAT THE LD. CWT-A ERRED IN DELETING THE WEALTH OF THE USA AND UK TRUST AMOUNTI NG TO RS. 34,65,22,917 AND RS. 20,55,59,640/- RESPECTIVELY. 3. BRIEFLY STATED FACTS OF THE CASE ARE THAT THE AS SESSEE IS AN INDIVIDUAL. THE ASSESSEE IS THE OWNER OF VARIOUS WE ALTH IN THE FORM OF MOVABLE AND IMMOVABLE PROPERTIES INCLUDING THE IMMO VABLE PROPERTIES AT GONDAL, RAJKOT, BOMBAY AND BANGALORE. THE ASSESS EE FILED HIS WEALTH TAX RETURN BY DECLARING TOTAL WEALTH OF RS. 3,45,67 ,265/- DATED 31-03- 2006. HOWEVER, THE AO IN THE YEAR UNDER CONSIDERATI ON MADE CERTAIN ADJUSTMENT TO THE TOTAL WEALTH OF THE ASSESSEE IN S CRUTINY ASSESSMENT FRAMED U/S 16(3) OF THE WEALTH TAX ACT AS DETAILED UNDER: USA / UK TRUST: A. THE AO DURING THE ASSESSMENT PROCEEDINGS OBSERVED T HAT THE ASSESSEE IS A BENEFICIARY OF THE TRUST LOCATED IN U SA AND UK AND ACCORDINGLY HE WAS OF THE VIEW THAT THE NET WEALTH HELD BY THESE TRUST ARE LIABLE TO BE TAXED UNDER THE WEALTH TAX A CT AS PER THE PROVISIONS OF SECTION 21(2) OF THE ACT. B. THUS THE AO BY APPLYING THE PROVISION OF SECTION 21 (2) OF THE ACT INCLUDED THE WEALTH OF RS. 34,65,22,917/- AND RS. 2 0,55, 59,640/- RESPECTIVELY IN THE HANDS OF THE ASSESSEE FOR THE P URPOSE OF THE WEALTH TAX. 4. AGGRIEVED ASSESSEE PREFERRED AN APPEAL TO THE LD . CWT-A, WHO DELETED THE ADDITION MADE BY THE AO BY OBSERVING AS UNDER: 4 W.T.ANOS.01-02/RJT/2010 WITH C.O.NO.38/RJT/2011 A.Y.2005-06 5. I HAVE CAREFULLY CONSIDERED THE ISSUE. SO FAR AS WEALTH OF USA TRUSTS ARE CONCERNED, THE AO HAS HIMSELF MENTIONED THAT ADDITI ONS IN THIS REGARD HAS BEEN DELETED WHICH HAS BEEN UPHELD BY THE HON'BLE G UJARAT HIGH COURT. APPARENTLY THE DECISION OF THE JURISDICTIONAL HIGH COURT HAS TO BE FOLLOWED SO FAR AS WEALTH OF USA TRUSTS IS CONCERNED. HOWEVER, TO ELABORATE THE ISSUE FURTHER IT IS TO BE POINTED OUT THAT HON'BLE SUPREM E COURT IN APPELLANT'S OWN CASE HAS HELD THAT SO FAR AS USA TRUSTS WERE CONCER NED, THEY WERE DISCRETIONARY IN NATURE. APPARENTLY THE WEALTH OF S UCH DISCRETIONARY TRUSTS CANNOT BE ASSESSED IN APPELLANT'S HANDS, AS SEC.21( 4) OF THE W.T. ACT WILL COME INTO OPERATION. SO FAR AS UK TRUSTS ARE CONCER NED, IT IS TO BE POINTED OUT THAT ITAT, AHMEDABAD BENCH HAD HELD THESE TRUSTS AS SPECIFIC TRUSTS. HOWEVER, THE MATTER WAS TAKEN BEFORE THE HON'BLE GU JARAT HIGH COURT AND THE HON'BLE GUJARAT HIGH COURT IN APPELLANT'S OWN CASE VIDE DECISION REPORTED IN 220 CTR PAGE 485 HAS CATEGORICALLY HELD THAT THE TW O TRUSTS LOCATED IN UK ARE ALSO IN THE NATURE OF DISCRETIONARY TRUSTS AND NOT SPECIFIC TRUST, AS HELD BY 'LIABILITY IN SPECIAL CASESASSESSMENT OF TRUSTDIR ECT ASSESSMENT OF BENEFICIARY VISA-VIS NON RECEIPT OF INCOME ASSESSE E'S FATHER CREATED TRUSTS IN UK FOR THE BENEFIT OF THE SETTLOR AND THE MEMBERS OF HIS FAMILYSOLE TRUSTEE DID NOT EXERCISE HIS DISCRETION TO DISTRIBUTE THE INCOME OF THE TRUSTS IN THE RELEVANT YEARSNO INCOM E ACCRUED OR WAS RECEIVED BY THE ASSESSEE FROM THE TRUSTSIT IS SPEC IFICALLY STATED IN THE ACCOUNTS OF THE TRUSTS THAT THE INCOME HAS BEEN RET AINED BY THE TRUSTEES AND BROUGHT FORWARD TO THE NEXT YEARSSEC. 5 HAS NO APPLICATION AND SUCH INCOME CANNOT BE TAXED IN THE HANDS OF THE ASS ESSEE UNDER S. 166SEC. 166 CAN BE INVOKED ONLY WHEN INCOME IS REC EIVED BY THE ASSESSEENON-EXERCISE OF DISCRETION BY THE TRUSTEE IS A MATTER OF FACT AND INFERENCE DRAWN BY THE POSSIBLE INTERPRETATION OF THE RELEVANT CLAUSES OF THE TRUST DEEDS THAT DISTRIBUTION HAS TA KEN PLACE AND ASSESSEE HAS RECEIVED INCOME IS NOT SUSTAINABLEINC OME CANNOT BE TAXED IN THE HANDS OF THE ASSESSEE ON THE BASIS OF SUCH PRESUMPTION SINCE THE SOLE TRUSTEE IS ADMINISTERING THE TRUST P ROPERTY AND INCOME, AND NEITHER THE SETTLOR NOR THE ASSESSEE MADE APPOI NTMENT OF DISCRETION EXERCISER AND THE SPECIFIED PERIOD IS NO T OVER, THERE IS NO QUESTION OF INVOKING CL. 4 OF E TRUST DEEDS WHEREBY THE INCOME IS TO BE PAID TO THE SETTLOR DURING HIS LIFETIME AND THEREAF TER TO THE ASSESSEE MOREOVER, TRUSTEE HAVING PAID THE TAX ON THE INCOME IN UK, SAME CANNOT BE TAXED AGAIN' THE ABOVE MEANS THAT EVEN THE TWO TRUSTS HAVE BEEN HELD TO BE DISCRETIONARY TRUST BY THE JURISDICTIONAL HIGH COUR T AND THIS DECISION HAS TO BE FOLLOWED. TO SUM UP, ALL THE FIVE TRUSTS HAVE BEEN HELD TO BE DISCRETIONARY TRUSTS BY EITHER THE HON'BLE SUPREME COURT OR THE J URISDICTIONAL HIGH COURT. THEREFORE, FOLLOWING THESE TWO DECISIONS, THE WEALT H CANNOT BE ASSESSED IN THE HANDS OF THE APPELLANT FOR THE SAME REASONING AS ST ATED BY THE AO WHILE MAKING ADDITION IN THE CASE RELATED TO THREE USA TR USTS, WHICH WAS DELETED BY THE ITAT, RAJKOT BENCH. IN VIEW OF THE PRESENT DECI SION OF GUJARAT HIGH COURT IN APPELLANT'S CASE RELATED TO UK TRUSTS, BY WHICH EVEN THESE TRUSTS HAVE BEEN 5 W.T.ANOS.01-02/RJT/2010 WITH C.O.NO.38/RJT/2011 A.Y.2005-06 HELD TO BE DISCRETIONARY TRUSTS, WEALTH CANNOT BE A SSESSED IN APPELLANT'S HANDS AS HELD IN RESPECT OF OTHER DISCRETIONARY TRUSTS BY THE ITAT, RAJKOT BENCH IN APPELLANT'S OWN CASE IN EARLIER YEARS. IT IS TO BE POINTED OUT THAT ITAT, RAJKOT BENCH IN APPELLANT'S OWN CASE IN WTA NO.20 TO 27/RJ T/2004 HAS HELD AS UNDER: 'WE HAVE NO HESITATION IN HOLDING THAT TAXABILITY O F THE CORPUS OF USA TRUSTS IN THE HANDS OF ASSESSEE BENEFICIARY ARE TO BE GUIDED BY SUB- SEC.(4) OF SEC.21 ACCORDING TO WHICH THE WEALTH TAX SHALL BE LEVIED UPON AND RECOVERY FROM THE COURT OF WARDS, ADMINIST RATORS ETC. OR OTHER PERSONS AS THE CASE MAY BE, IN THE LIKE MANNE R AND TO THE SAME EXTENT AS IT WOULD BE LEVIABLE UPON THE RECOVERABLE FROM COMMON INDIVIDUAL WHO IS CITIZEN OF INDIA AND RESIDENT OF INDIA FOR THE PURPOSE OF WEALTH-TAX ACT. THEY HAVE CLEARLY HELD THAT PROVISIONS OF SEC.21(4) WOULD BE APPLIED SO FAR AS WEALTH OF DISCRETIONARY TRUSTS WERE CONCERNED. AS O F NOW, ALL THE FIVE TRUSTS HAVE BEEN HELD TO BE DISCRETIONARY TRUSTS BY THE JU RISDICTIONAL HIGH COURT IN THE CASE OF UK TRUSTS AND HONBLE SUPREME COURT IN THE CASE OF USA TRUSTS. THEREFORE, THE SAID WEALTH CANNOT BE INCLUDED IN TH E WEALTH OF THE APPELLANT AND ASSESSMENT CAN ONLY BE FRAMED ON THE TRUSTEES I N ACCORDANCE WITH PROVISIONS OF SEC. 21(4) OF THE W.T. ACT. THEREFORE , ADDITION OF WEALTH IN RELATION TO THREE USA TRUSTS AND TWO UK TRUSTS IS D IRECTED TO BE DELETED FROM THE WEALTH OF THE APPELLANT. BEING AGGRIEVED BY THE ORDER OF THE LD. CWT-A, THE REVENUE IS IN APPEAL BEFORE US. 5. BOTH THE LD. DR AND THE AR BEFORE US VEHEMENTLY SUPPORTED THE ORDER OF THE AUTHORITIES BELOW AS FAVOURABLE TO THE M. 6. WE HAVE HEARD THE RIVAL CONTENTIONS OF BOTH THE PARTIES AND PERUSED THE MATERIALS AVAILABLE ON RECORD. AT THE O UTSET WE NOTE THAT THE IMPUGNED ISSUE HAS ALREADY BEEN DECIDED IN FAVOUR O F THE ASSESSEE BY THE HONBLE COURTS AS OBSERVED BY THE LD. CWT (A) IN HI S ORDER WHICH HAS BEEN ELABORATED IN THE PRECEDING PARAGRAPH. 6 W.T.ANOS.01-02/RJT/2010 WITH C.O.NO.38/RJT/2011 A.Y.2005-06 6.1 AT THE TIME OF HEARING, THE LD. DR HAS NOT BROU GHT ANYTHING ON RECORD CONTRARY TO THE FINDING OF THE LD. CWT (A). WE ALSO FIND THAT THE LD. CWT (A) HAS PASSED A SPEAKING AND SELF-EXPLANAT ORY ORDER AS REPRODUCED HEREIN ABOVE. THEREFORE WE CONCUR WITH T HE FINDING OF THE LD. CWT (A) AFTER PLACING THE RELIANCE ON THE JUDGMENT OF THE HONBLE SUPREME COURT IN THE CASE OF CIT VS. K.Y. PILLIAH A ND SONS REPORTED IN 63 ITR 411 WHEREIN IT WAS HELD AS UNDER: THE TRIBUNAL IS THE FINAL FACT-FINDING AUTHORITY A ND NORMALLY IT SHOULD RECORD ITS CONCLUSION ON EVERY DISPUTED QUESTION RA ISED BEFORE IT, SETTING OUT ITS REASONS IN SUPPORT OF ITS CONCLUSIO N. BUT, IN FAILING TO RECORD REASONS, WHEN THE TRIBUNAL FULLY AGREED WITH THE VIEW EXPRESSED BY THE AAC AND HAS NO OTHER GROUND TO RECORD IN SUP PORT OF ITS CONCLUSION, IT DOES NOT ACT ILLEGALLY OR IRREGULARL Y, MERELY BECAUSE IT DOES NOT REPEAT THE GROUND OF THE AAC ON WHICH THE DECISION WAS GIVEN AGAINST THE ASSESSEES OR THE DEPARTMENT. THE CRITIC ISM MADE BY THE HIGH COURT THAT THE TRIBUNAL HAD 'FAILED TO PERFORM ITS DUTY IN MERELY AFFIRMING THE CONCLUSION OF THE AAC', WAS APPARENTL Y UNMERITED. CONSEQUENTLY, INSTANT APPEAL WAS TO BE ALLOWED. IN VIEW OF THE ABOVE, WE DONT FIND ANY INFIRMITY I N THE ORDER OF THE LD. CWT (A) AND ACCORDINGLY DECLINE TO INTERFERE IN HIS ORDER. HENCE, THE GROUND OF APPEAL OF THE REVENUE IS DISMISSED. 7. THE 2 ND ISSUE RAISED BY THE REVENUE IS THAT THE LD. CWT (A ) ERRED IN DELETING THE ADDITION MADE BY THE AO FOR RS. 31, 12,491/- ON ACCOUNT OF THE FLAT LOCATED AT MUMBAI WHILE COMPUTING THE N ET WEALTH OF THE ASSESSEE. 8. THE ASSESSEE IN THE YEAR UNDER CONSIDERATION HAS VALUED ITS FLAT AT RS. 9825.00 LOCATED AT MUMBAI, FOR THE PURPOSE OF T HE WEALTH TAX AS PER SCHEDULE-III OF THE ACT. BUT THE AO DISREGARDED THE VALUATION OF THE 7 W.T.ANOS.01-02/RJT/2010 WITH C.O.NO.38/RJT/2011 A.Y.2005-06 ASSESSEE AND VALUED THE SAME AT RS. 31,12,491.00 AF TER CONSIDERING THE APPRECIATION AT THE RATE OF 10% AS DONE IN THE EARL IER ASSESSMENT YEARS. 9. AGGRIEVED ASSESSEE PREFERRED AN APPEAL TO THE LD . CWT (A) WHO DELETED THE ADDITION MADE BY THE AO BY OBSERVING AS UNDER: 7. THE LD. AR POINTED THAT HONBLE ITAT, RAJKOT BENCH HAS HELD THAT IN VIEW OF DECISION OF HONBLE SUPREME COURT IN THE CASE OF CW T VS. SHARAVAN KUMAR & SONS, 210 ITR 886 AND HONBLE GUJARAT HIGH COURTS DECISION IN THE CASE OF CWT VS. RAJESHKUMAR R. GANDHI REPORTED IN 19 ITR PA GE 408, THE PROPERTY HAS TO BE VALUED AS PER SCHEDULE III OF THE W.T. AC T. 8. I FIND THAT THE ISSUE IS CLEARLY COVERED BY DECISIO N OF HONBLE ITAT, RAJKOT BENCH IN APPELLANTS OWN CASE FOR VARIOUS YEARS. AC CORDINGLY, AO IS DIRECTED TO TAKE THE VALUE OF THIS FLAT AS PER SCHEDULE III OF W.T. ACT. BEING AGGRIEVED BY THE ORDER OF THE LD. CWT-A, THE REVENUE IS IN APPEAL BEFORE US. 10. BOTH THE LD. DR AND THE AR BEFORE US VEHEMENTLY SUPPORTED THE ORDER OF THE AUTHORITIES BELOW AS FAVOURABLE TO THE M. 11. WE HAVE HEARD THE RIVAL CONTENTIONS OF BOTH THE PARTIES AND PERUSED THE MATERIALS AVAILABLE ON RECORD. AT THE O UTSET WE NOTE THAT THE IMPUGNED ISSUE HAS ALREADY BEEN DECIDED IN FAVOUR O F THE ASSESSEE BY THE HONBLE COURTS AS OBSERVED BY THE LD. CWT (A) IN HI S ORDER WHICH HAS BEEN ELABORATED IN THE PRECEDING PARAGRAPH. 11.1 AT THE TIME OF HEARING, THE LD. DR HAS NOT BRO UGHT ANYTHING ON RECORD CONTRARY TO THE FINDING OF THE LD. CWT (A). THEREFORE WE CONCUR WITH THE FINDING OF THE LD. CWT (A) AFTER PLACING T HE RELIANCE ON THE 8 W.T.ANOS.01-02/RJT/2010 WITH C.O.NO.38/RJT/2011 A.Y.2005-06 JUDGMENT OF THE HONBLE SUPREME COURT IN THE CASE O F CIT VS. K.Y. PILLIAH AND SONS REPORTED IN 63 ITR 411 WHEREIN IT WAS HELD AS UNDER: THE TRIBUNAL IS THE FINAL FACT-FINDING AUTHORITY A ND NORMALLY IT SHOULD RECORD ITS CONCLUSION ON EVERY DISPUTED QUESTION RA ISED BEFORE IT, SETTING OUT ITS REASONS IN SUPPORT OF ITS CONCLUSIO N. BUT, IN FAILING TO RECORD REASONS, WHEN THE TRIBUNAL FULLY AGREED WITH THE VIEW EXPRESSED BY THE AAC AND HAS NO OTHER GROUND TO RECORD IN SUP PORT OF ITS CONCLUSION, IT DOES NOT ACT ILLEGALLY OR IRREGULARL Y, MERELY BECAUSE IT DOES NOT REPEAT THE GROUND OF THE AAC ON WHICH THE DECISION WAS GIVEN AGAINST THE ASSESSEES OR THE DEPARTMENT. THE CRITIC ISM MADE BY THE HIGH COURT THAT THE TRIBUNAL HAD 'FAILED TO PERFORM ITS DUTY IN MERELY AFFIRMING THE CONCLUSION OF THE AAC', WAS APPARENTL Y UNMERITED. CONSEQUENTLY, INSTANT APPEAL WAS TO BE ALLOWED. IN VIEW OF THE ABOVE, WE DONT FIND ANY INFIRMITY I N THE ORDER OF THE LD. CWT (A) AND ACCORDINGLY DECLINE TO INTERFER E IN HIS ORDER. HENCE, THE GROUND OF APPEAL OF THE REVENUE IS DISMISSED. 12. THE 3 RD ISSUE RAISED BY THE REVENUE IS THAT THE LD. CWT (A ) ERRED IN DIRECTING TO THE AO TO VALUE THE PROPERTY BEING OPERA HOUSE AT BOMBAY ACCORDING TO SCHEDULE-III OF THE W.T. ACT. 13. THE ASSESSEE IN THE YEAR UNDER CONSIDERATION HA S VALUED ITS OPERA HOUSE LOCATED AT MUMBAI AT RS. NIL FOR THE PURPOSE OF THE WEALTH TAX AS PER SCHEDULE-III OF THE ACT. BUT THE AO DISREGARDED THE VALUATION OF THE ASSESSEE AND VALUED THE SAME AT RS. 42,63,49,905.00 AFTER CONSIDERING THE APPRECIATION AT THE RATE OF 10% AS DONE IN THE EARL IER ASSESSMENT YEARS. 14. AGGRIEVED ASSESSEE PREFERRED AN APPEAL TO THE L D. CWT (A) WHO DELETED THE ADDITION MADE BY THE AO BY OBSERVING AS UNDER: 12. ON THIS, THE LD.AR SUBMITTED AS UNDER; 9 W.T.ANOS.01-02/RJT/2010 WITH C.O.NO.38/RJT/2011 A.Y.2005-06 32. THE APPELLANT BEGS TO SUBMIT THAT THE SAID IS SUED HAS ALREADY BEEN DECIDED IN HIS FAVOUR BY THE HONOURABLE ITAT, RAJKO T BENCH IN THE ASSESSEES OWN CASE FOR A.Y. 1977-78, 1980-81, 1991-92 AND 199 2-93 TO 1998-99. A COPY OF THE SAID ORDER IS ATTACHED HEREWITH AT PAGE S 102-120 OF THE PAPERBOOK. YOUR HONORS KIND ATTENTION IS INVITED TO PARA 23 OF THE SAID ORDER, WHEREIN, THE HONORABLE I.T.A.T., RAJKOT BENC H, PLACING RELIANCE ON THE DECISION OF THE HONORABLE SUPREME COURT IN THE CASE OF C.W.T. VS. SHRAVANKUMAR & SONS (210 ITR 886 SC) AND ON THE DEC ISION OF THE HONORABEL GUJARAT HIGH COURT IN THE CASE OF C.W.T. VS. RAJESHKUMAR R. GANDHI (219 ITR 408) HAS HELD THAT SCHEDULE III OF THE WEALTH TAX ACT WOULD BE APPLICABLE TO THE PROPERTY UNDER CONSIDERATION A ND THAT VALUATION BE MADE ACCORDINGLY AT RS.427,037 AS HAS BEEN SO DONE IN TH E EARLIER YEARS. 13. FROM THE ABOVE I FIND THAT THE ISSUE IS COVERED BY DECISION OF THE ITAT, RAJKOT BENCH IN APPELLANTS OWN CASE AND, AS HELD B Y ITAT, RAJKOT BENCH THE AO IS DIRECTED TO TAKE THE VALUE OF THIS PROPERTY A S PER SCHEDULE-III OF THE W.T. ACT. BEING AGGRIEVED BY THE ORDER OF THE LD. CWT(A), THE REVENUE IS IN APPEAL BEFORE US. 15. BOTH THE LD. DR AND THE AR BEFORE US VEHEMENTLY SUPPORTED THE ORDER OF THE AUTHORITIES BELOW AS FAVOURABLE TO THE M. 16. WE HAVE HEARD THE RIVAL CONTENTIONS OF BOTH THE PARTIES AND PERUSED THE MATERIALS AVAILABLE ON RECORD. AT THE O UTSET WE NOTE THAT THE IMPUGNED ISSUE HAS ALREADY BEEN DECIDED IN FAVOUR O F THE ASSESSEE BY THE HONBLE COURTS AS OBSERVED BY THE LD. CWT (A) IN HI S ORDER WHICH HAS BEEN ELABORATED IN THE PRECEDING PARAGRAPH. 16.1 AT THE TIME OF HEARING, THE LD. DR HAS NOT BRO UGHT ANYTHING ON RECORD CONTRARY TO THE FINDING OF THE LD. CWT (A). THEREFORE WE CONCUR WITH THE FINDING OF THE LD. CWT (A) AFTER PLACING T HE RELIANCE ON THE 10 W.T.ANOS.01-02/RJT/2010 WITH C.O.NO.38/RJT/2011 A.Y.2005-06 JUDGMENT OF THE HONBLE SUPREME COURT IN THE CASE O F CIT VS. K.Y. PILLIAH AND SONS REPORTED IN 63 ITR 411 WHEREIN IT WAS HELD AS UNDER: THE TRIBUNAL IS THE FINAL FACT-FINDING AUTHORITY A ND NORMALLY IT SHOULD RECORD ITS CONCLUSION ON EVERY DISPUTED QUESTION RA ISED BEFORE IT, SETTING OUT ITS REASONS IN SUPPORT OF ITS CONCLUSIO N. BUT, IN FAILING TO RECORD REASONS, WHEN THE TRIBUNAL FULLY AGREED WITH THE VIEW EXPRESSED BY THE AAC AND HAS NO OTHER GROUND TO RECORD IN SUP PORT OF ITS CONCLUSION, IT DOES NOT ACT ILLEGALLY OR IRREGULARL Y, MERELY BECAUSE IT DOES NOT REPEAT THE GROUND OF THE AAC ON WHICH THE DECISION WAS GIVEN AGAINST THE ASSESSEES OR THE DEPARTMENT. THE CRITIC ISM MADE BY THE HIGH COURT THAT THE TRIBUNAL HAD 'FAILED TO PERFORM ITS DUTY IN MERELY AFFIRMING THE CONCLUSION OF THE AAC', WAS APPARENTL Y UNMERITED. CONSEQUENTLY, INSTANT APPEAL WAS TO BE ALLOWED. IN VIEW OF THE ABOVE, WE DONT FIND ANY INFIRMITY I N THE ORDER OF THE LD. CWT (A) AND ACCORDINGLY DECLINE TO INTERFERE IN HIS ORDER. HENCE, THE GROUND OF APPEAL OF THE REVENUE IS DISMISSED. 17. THE NEXT ISSUE RAISED BY THE REVENUE IS THAT TH E LD. CWT-A ERRED IN DIRECTING TO REWORK-OUT THE VALUE OF JAIMAHAL PA LACE HOTEL & STUD FARM WHICH WAS VALUED BY THE AO AT RS. 44,96,29,324 .00. 17.1 THE ASSESSEE IN THE YEAR UNDER CONSIDERATION H AS VALUED ITS JAIMAHAL PALACE HOTEL & STUD FARM ALONG WITH THE LA ND AT RS. NIL FOR THE PURPOSE OF THE WEALTH TAX AS PER SCHEDULE-III O F THE ACT. BUT THE AO DISREGARDED THE VALUATION OF THE ASSESSEE AND VALUE D THE SAME AT RS. 44,96,29,324.00 AFTER CONSIDERING THE APPRECIATION AT THE RATE OF 10% AS DONE IN THE EARLIER ASSESSMENT YEARS. 18. AGGRIEVED ASSESSEE PREFERRED AN APPEAL TO THE L D. CWT (A) WHO DELETED THE ADDITION MADE BY THE AO BY OBSERVING AS UNDER: 11 W.T.ANOS.01-02/RJT/2010 WITH C.O.NO.38/RJT/2011 A.Y.2005-06 16. I HAVE CAREFULLY CONSIDERED THE ISSUE AND I FIN D THAT JAIMAHAL PALACE HOTEL IS A PARTNERSHIP FIRM BEING SEPARATELY ASSESS ED TO TAX AND IT IS IN THE BUSINESS OF RUNNING A HOTEL AT BANGALORE. THEREFORE , VALUE OF THIS HOTEL CANNOT BE TOTALLY ASSESSED IN THE HANDS OF THE APPE LLANT, WHO IS ONLY A PARTNER. IN THAT CASE ALSO, ONLY INTEREST IN PARTN ERSHIP FIRM CAN BE ASSESSED AS WEALTH OF THE APPELLANT. IT IS APPARENT THAT THIS PROPERTY IS BEING RUN AS A HOTEL AND IT IS IN THE NATURE OF COMMERCIAL ESTABL ISHMENT. THEREFORE, IN VIEW OF SEC.2(EA)(I)(5) OF THE W.T. ACT, COMMERCIAL ASSE TS CANNOT BE CONSIDERED AS AN ASSET UNDER THE W.T. ACT. SIMILAR WOULD BE THE P OSITION OF STUD FARMJ HOWEVER, THE AO HAS ASSESSED THE ENTIRE VALUE OF TH E PROPERTY IN APPELLANT'S HANDS, WHICH IS NOT CORRECT. IN ANY CASE, WHATEVER IS ASSESSABLE IS APPELLANT'S SHARE IN THE PARTNERSHIP FIRM AND THE AO IS DIRECTE D TO WORK OUT INTEREST OF THE APPELLANT IN THESE PARTNERSHIP FIRMS AS WEALTH OF T HE APPELLANT AS PER PART-E OF SCHEDULE-ILL TO THE W.T. ACT. WHILE DOING SO, HE WILL ALSO J KEEP IN MIND THAT COMMERCIAL ASSETS CANNOT BE BROUGHT TO TAX. THE AO WILL THEREFORE, WORK OUT INTEREST IN PARTNERSHIP FIRM AND IF THERE IS ANY TA XABLE PORTION, THE SAME CAN BE BROUGHT TO TAX BY HIM. BEING AGGRIEVED BY THE ORDER OF THE LD. CWT-A, THE REVENUE IS IN APPEAL BEFORE US. 19. BOTH THE LD. DR AND THE AR BEFORE US VEHEMENTLY SUPPORTED THE ORDER OF THE AUTHORITIES BELOW AS FAVOURABLE TO THE M. 20. WE HAVE HEARD THE RIVAL CONTENTIONS OF BOTH THE PARTIES AND PERUSED THE MATERIALS AVAILABLE ON RECORD. ADMITTED LY, THE IMPUGNED PROPERTY WAS USED AS COMMERCIAL ESTABLISHMENT BY TH E PARTNERSHIP FIRM AND THIS FACT HAS NOT BEEN DISPUTED BY THE LEARNED DR BEFORE US. ACCORDINGLY, WE HOLD THAT SUCH PROPERTY CANNOT BE T REATED AS WEALTH FOR THE PURPOSE OF THE TAX UNDER THE PROVISIONS OF SECT ION 2(EA)(I)(5) OF THE ACT. 20.1 HOWEVER, THE INTEREST HELD BY THE PARTNER IN T HE FIRM IS SUBJECT TO THE TAX IN VIEW OF THE JUDGMENT OF THE HONBLE SUPR EME COURT IN THE CASE 12 W.T.ANOS.01-02/RJT/2010 WITH C.O.NO.38/RJT/2011 A.Y.2005-06 OF ROLLING JUGGILAL KAMLAPAT BANKERS VS. WTO REPORT ED IN 16 TAXMAN 1 WHEREIN IT WAS HELD AS UNDER: A COMBINED READING OF SECTIONS 2( E ), 2 ( M ) AND 3 WOULD MAKE IT CLEAR AND INDISPUTABLE THAT A PARTNER'S INTEREST IN A FIRM EI THER IN HIS INDIVIDUAL CAPACITY OR IN HIS CAPACITY AS A KARTA OF A HUF IS PROPERTY AND THE SAME WOULD BE INCLUDIBLE IN THE EXPRESSION 'ASSETS' WHICH WILL HA VE TO BE TAKEN INTO ACCOUNT WHILE COMPUTING THE NET WEALTH, CHARGE ON WHICH HAS BEEN IMPOSED UNDER SECTION 3. 20.2 AT THE TIME OF HEARING, THE LD. DR HAS NOT BRO UGHT ANYTHING ON RECORD CONTRARY TO THE FINDING OF THE LD. CWT (A). WE ALSO FIND THAT THE LD. CWT (A) HAS PASSED A SPEAKING AND SELF-EXPLANATORY ORDER AS REPRODUCED HEREIN ABOVE. THEREFORE WE CONCUR WITH THE FINDING OF THE LD. CWT (A) AFTER PLACING THE RELIANCE ON THE JUDGMENT OF THE HONBLE SUPREME COURT IN THE CASE OF CIT VS. K.Y. PILLIAH AND SONS REPORTED IN 63 ITR 411 WH EREIN IT WAS HELD AS UNDER: THE TRIBUNAL IS THE FINAL FACT-FINDING AUTHORITY A ND NORMALLY IT SHOULD RECORD ITS CONCLUSION ON EVERY DISPUTED QUESTION RA ISED BEFORE IT, SETTING OUT ITS REASONS IN SUPPORT OF ITS CONCLUSIO N. BUT, IN FAILING TO RECORD REASONS, WHEN THE TRIBUNAL FULLY AGREED WITH THE VIEW EXPRESSED BY THE AAC AND HAS NO OTHER GROUND TO RECORD IN SUP PORT OF ITS CONCLUSION, IT DOES NOT ACT ILLEGALLY OR IRREGULARL Y, MERELY BECAUSE IT DOES NOT REPEAT THE GROUND OF THE AAC ON WHICH THE DECISION WAS GIVEN AGAINST THE ASSESSEES OR THE DEPARTMENT. THE CRITIC ISM MADE BY THE HIGH COURT THAT THE TRIBUNAL HAD 'FAILED TO PERFORM ITS DUTY IN MERELY AFFIRMING THE CONCLUSION OF THE AAC', WAS APPARENTL Y UNMERITED. CONSEQUENTLY, INSTANT APPEAL WAS TO BE ALLOWED. IN VIEW OF THE ABOVE, WE DONT FIND ANY INFIRMITY I N THE ORDER OF THE LD. CWT (A) AND ACCORDINGLY DECLINE TO INTERFERE IN HIS ORDER. HENCE, THE GROUND OF APPEAL OF THE REVENUE IS DISMISSED. IN THE RESULT THE APPEAL OF THE REVENUE IS DISMISSE D. 13 W.T.ANOS.01-02/RJT/2010 WITH C.O.NO.38/RJT/2011 A.Y.2005-06 COMING TO THE CO BEARING NO. 38/RJT/2011 FILED BY T HE ASSESSEE FOR A.Y. 2005-06 21. AT THE OUTSET, WE NOTE THAT THERE WAS A DELAY I N FILING THE CO BY THE ASSESSEE FOR 365 DAYS. IT WAS EXPLAINED BY THE LD. AR THAT THE DELAY HAS OCCURRED DUE TO OVERSIGHT OF THE ASSESSEE AS HE KEE PS ON TRAVELLING TO MUMBAI AND BANGALORE TO LOOK-AFTER HIS PROPERTIES A ND BUSINESSES. THE LD. AR IN SUPPORT OF HIS CONTENTION DREW OUR ATTENT ION ON THE AFFIDAVIT FILED BY THE ASSESSEE. ACCORDINGLY THE LD. AR PRAYE D BEFORE US TO CONDONE THE DELAY AND ADJUDICATE THE ISSUE ON MERIT . 22. ON THE OTHER HAND, THE LD. DR DID NOT RAISE ANY OBJECTION ON THE CONDONATION OF THE DELAY AND LEFT THE ISSUE AT THE DISCRETION OF THE BENCH. 23. HEARD THE RIVAL CONTENTIONS OF BOTH THE PARTIES AND PERUSED THE MATERIALS AVAILABLE ON RECORD. CONSIDERING THE NATU RE/LENGTH OF DELAY AND THE CONCESSION EXTENDED BY THE LD. DR, WE CONDONE T HE DELAY IN FILING THE APPEAL BY THE ASSESSEE AND PROCEED TO ADJUDICAT E THE ISSUE ON MERIT. 23.1 THE ISSUE RAISED BY THE ASSESSEE IS THAT FOREI GN ASSETS BEING STOCK AND SHARES ARE NOT SUBJECT TO TAX AS PER THE PROVIS IONS OF SECTION 2(EA) OF THE W.T. ACT. 23.2 THE LD. AR BEFORE US AT THE OUTSET BROUGHT TO OUR NOTICE THAT THE SHARES AND SECURITIES ARE OUTSIDE THE AMBIT OF THE NET WEALTH AS PER THE REVISED DEFINITION OF ASSETS UNDER SECTION 2(EA) OF THE ACT. 14 W.T.ANOS.01-02/RJT/2010 WITH C.O.NO.38/RJT/2011 A.Y.2005-06 23.3 THE LD. AR FOR THE ASSESSEE FURTHER SUBMITTED THAT THIS PROPOSITION WAS ACCEPTED BY THE CWT (APPEALS) VIDE ORDER DATED 17 TH MAY, 2014 PERTAINING TO THE ASSESSMENT YEARS 1993-94 TO 1998- 99. IN VIEW OF THE ABOVE THE LD. AR BEFORE US SUBMITTED THAT THE SHARES AND SECURITIES HELD IN THE TRUSTS LOCATED OUTSIDE INDIA ARE NOT SUBJECT TO WEALTH TAX ACT. 24. ON THE OTHER HAND, THE LD. DR HAS NOT BROUGHT A NYTHING ON RECORD CONTRARY TO THE FINDING OF THE LD. CIT (A). HOWEVER , THE LD. DR SUPPORTED THE ORDER OF THE AO. 25. WE HAVE HEARD THE RIVAL CONTENTIONS OF BOTH THE PARTIES AND PERUSED THE MATERIALS AVAILABLE ON RECORD. AT THE O UTSET WE NOTE THAT THE IMPUGNED ISSUE HAS ALREADY BEEN DECIDED IN FAVOUR O F THE ASSESSEE BY THE LD. CWT (A) IN THE OWN CASE OF THE ASSESSEE IN THE EARLIER YEARS AND THERE WAS NO APPEAL PREFERRED BY THE REVENUE TO THE HIGHER FORUM. THUS, WE INFER THAT THE ORDER OF THE LD. CWT (A) HAS REAC HED TO ITS FINALITY. AT THE TIME OF HEARING, THE LD. DR HAS NOT BROUGHT ANY THING ON RECORD CONTRARY TO THE FINDING OF THE LD. CIT (A). 25.1 WE ALSO NOTE THAT AS PER THE DEFINITION OF SEC TION 2(EA) OF THE ACT UP TO THE ASSESSMENT YEAR 1992-93 INCLUDES THE PROP ERTY OF EVERY KIND EXCEPT THE PROPERTIES SPECIFIED IN THE DEFINITION. THE RELEVANT DEFINITION PRIOR TO THE AMENDMENT IS APPLICABLE TO THE ASSESSM ENT YEAR 1992-93 STANDS AS UNDER: 15 W.T.ANOS.01-02/RJT/2010 WITH C.O.NO.38/RJT/2011 A.Y.2005-06 'ASSETS' INCLUDES PROPERTY OF EVERY DESCRIPTION, MO VABLE OR IMMOVABLE, BUT DOES NOT INCLUDE, XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXX ( I ) ANIMALS ; ( II ) A RIGHT TO ANY ANNUITY [(NOT BEING AN ANNUITY PURCHASED BY THE ASSESSEE OR PURCHASED BY ANY OTHER PERSON IN PURSUANCE OF A CONTRACT WITH THE ASSESSEE)] IN ANY CASE WHERE THE TERMS AND CONDITIONS RELATING THERETO PRECLUDE THE COMMUTATION O F ANY PORTION THEREOF INTO A LUMP SUM GRANT ; ( III ) ANY INTEREST IN PROPERTY WHERE THE INTEREST IS AVAI LABLE TO AN ASSESSEE FOR A PERIOD NOT EXCEEDING SIX YEARS FROM THE DATE THE INTEREST VESTS IN THE ASSESSEE :] [ PROVIDED THAT IN RELATION TO THE AS SESSMENT YEAR COMMENCING ON THE 1ST DAY OF APRIL, 1981, [AND THE ASSESSMENT YEAR COMMENCING ON THE 1ST DAY OF APRIL, 1982], THIS SUB- CLAUSE SHALL HAVE EFFECT SUBJECT TO THE MODIFICATION THAT FOR ITEM ( I ) THEREOF, THE FOLLOWING ITEM SHALL BE SUBSTITUTED, NAMELY : '( I )( A ) AGRICULTURAL LAND OTHER THAN LAND COMPRISED IN ANY TEA, COFFEE, RUBBER OR CARDAMOM PLANTATION ; ( B ) ANY BUILDING OWNED OR OCCUPIED BY A CULTIVATOR OF, OR RECEIVER OF RENT OR REVENUE OUT OF, AGRICULTURAL LAND OTHER THAN LAND COMPRISED IN ANY TEA, COFFEE, RUBBER OR CARDAMOM PLANTATION : PROVIDED THAT THE BUILDING IS ON OR IN THE IMMEDIATE VICINITY OF THE LAND AND IS A BUILDING WHICH THE CULTIVATOR OR THE RECEIVER OF THE RENT OR REVENUE BY REASON OF HIS CONNECTION WITH THE LAND REQUI RES AS A DWELLING-HOUSE OR A STORE-HOUSE OR AN OUT- HOUSE ; ( C ) ANIMALS ;':] 25.2 HOWEVER THE ABOVE DEFINITION HAS BEEN CHANGED EFFECTIVE FROM THE ASSESSMENT YEAR 1993-94 WHICH PROVIDES THE EXHAUSTI VE LIST OF ASSETS SUBJECT TO THE PROVISIONS OF WEALTH TAX ACT. THE RE LEVANT DEFINITION AFTER THE AMENDMENT READS AS UNDER: 16 W.T.ANOS.01-02/RJT/2010 WITH C.O.NO.38/RJT/2011 A.Y.2005-06 'ASSETS', IN REL ATION TO THE ASSESSMENT YEAR COMMENCING ON THE 1ST DAY OF APRIL, 1993, OR ANY SUBSEQUENT ASSESSMENT YEAR, MEANS [(I) ANY BUILDING OR LAND APPURTENANT THERETO (HEREINAFT ER REFERRED TO AS 'HOUSE'), WHETHER USED FOR RESIDENTIAL OR COM MERCIAL PURPOSES OR FOR THE PURPOSE OF MAINTAINING A GUEST HOUSE OR OTHERWISE INCLUDING A FARM HOUSE SITUATED WITHIN TW ENTY- FIVE KILOMETRES FR OM LOCAL LIMITS OF ANY MUNICIPALITY (WHETHER KNOWN AS MUNICIPALITY, MUNICIPAL CORPORATION OR BY ANY OTHER NAME) OR A CANTONMENT BOARD, BUT DOES NOT INC LUDE (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 [TEN] LAKH RUPEES; (2) ANY HOUSE FOR RESIDENTIAL OR COMMERCIAL PURPOSES WHICH FORMS PART OF STOCK -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; (5) ANY PROPERTY IN THE NATURE OF COMMERCIAL ESTABLISHMENTS OR COMPLEXES;] (II) MOTOR CARS (OTHER THAN THOSE USED BY THE ASSESSEE I N THE BUSINESS OF RUNNING THEM ON HIRE OR AS STOCK-IN-TRA DE) ; (III) JEWELLERY, BULLION, FURNITURE, UTENSILS OR ANY OTHE R ARTICLE MADE WHOLLY OR PARTLY OF GOLD, SILVER, PLAT INUM OR ANY OTHER PRECIOUS METAL OR ANY ALLOY CONTAINING ONE OR MORE OF SUCH PRECIOUS METALS : PROVIDED THAT WHERE ANY OF THE SAID ASSETS IS USED BY THE ASSESSEE AS STOCK-IN-TRADE, SUCH ASSET SHALL BE DEEMED AS EXCLUDED FROM THE ASSETS SPECIFIED IN THI S SUB-CLAUSE ; (IV) YACHTS, BOATS AND AIRCRAFTS (OTHER THAN THOSE USED BY THE ASSESSEE FOR COMMERCIAL PURPOSES) ; (V) URBAN LAND ; (VI) CASH IN HAND, IN EXCESS OF FIFTY THOUSAND RUPEES, O F INDIVIDUALS AND HINDU UNDIVIDED FAMILIES AND IN THE CASE OF OTHER PERSONS ANY AMOUNT NOT RECORDED IN TH E BOOKS OF ACCOUNT. 17 W.T.ANOS.01-02/RJT/2010 WITH C.O.NO.38/RJT/2011 A.Y.2005-06 25.3 A PERUSAL OF THE ABOVE DEFINITION REVEALS THAT THE PROPERTIES BEING SHARES AND SECURITIES ARE NOT SUBJECT TO WEALTH TAX ACT. HENCE THE GROUND RAISED BY THE ASSESSEE IN THE CO IS ALLOWED. WTA NO. 2/RJT/2010 AN APPEAL BY THE REVENUE FOR A.Y . 2005-06 THE REVENUE HAS RAISED THE FOLLOWING GROUNDS OF APP EAL: 1. THE LD.CWT(A) ERRED IN FACTS IN LAWS IN DELETING AD DITION OF WEALTH OF THE U.S.A TRUST VALUED AT RS.34,65,22,917/- AND UK TRUS T VALUED AT RS.20,55,59,640/- AS WEALTH IN THE HANDS OF THE ASS ESSEE. 2. THE LD.CWT(A) ERRED IN FACTS AND IN LAWS IN DELETIN G ACTION OF VALUING THE FLAT AT BOMBAY AT RS.31,12,491/- AS AGAINST THE VALUE SH OWN BY THE APPELLANT AT RS.9825/- AND DIRECTED TO VALUE AS PER SCHEDULE III OF THE WT ACT, RELYING UPON THE DECISION OF ITAT, RAJKOT BENCH IN APPELLAN TS OWN CASE. 3. THE LD.CWT(A) ERRED IN FACTS AND IN LAWS IN DIRECTI NG TO VALUE THE PROPERTY KNOWN AS OPERA HOUSE, BOMBAY, AS PER SCHEDULE III O F THE WT ACT, RELYING UPON THE DECISION OF ITAT, RAJKOT BENCH IN APPELLAN TS OWN CASE. 4. THE LD.CWT(A) ERRED IN FACTS IN LAWS IN DIRECTING T O RE-WORKOUT THE VALUE OF JAIMAHAL PALACE HOTEL & STUD FARM VALUED AT RS.44,9 6,29,324/- BY THE AO. 5. ON LEGAL AND FACTUAL STATUS OF THE CASE, THE LEARNE D CWT(A) OUGHT TO HAVE UPHELD THE ORDER OF THE ASSESSING OFFICER. 6. IT IS, THEREFORE, PRAYED THAT THE FINDINGS FIVE IN THE ORDER OF THE LD.CWT(A) MAY BE DISMISSED/DELETED AND THAT OF THE ASSESSING OFFI CER BE RESTORED. 7. YOUR APPELLANT RESERVES THE RIGHT TO ADD, ALTER, WI THDRAWN ANY/ALL GROUNDS OF APPEAL. 26. THE 1 ST ISSUE RAISED BY THE REVENUE IS THAT THE LD. CWT-A ERRED IN DELETING THE WEALTH OF THE USA AND UK TRUST AMOUNTI NG TO RS. 34,65,22,917 AND RS. 20,55,59,640/- RESPECTIVELY. 27. AT THE OUTSET, WE NOTE THAT THE IDENTICAL ISSUE HAS BEEN DECIDED BY US IN THE WTA 01/RJT/2010 FOR A.Y. 2005-06 IN FAVOU R OF THE ASSESSEE VIDE PARAGRAPH NO. 6 OF THIS ORDER. PLEASE REFER TH E RELEVANT PARAGRAPH FOR 18 W.T.ANOS.01-02/RJT/2010 WITH C.O.NO.38/RJT/2011 A.Y.2005-06 THE DETAILED DISCUSSION. ACCORDINGLY AND RESPECTFUL LY FOLLOWING THE SAME, WE DO NOT WANT TO DEVIATE FROM THE SAID ORDER. 27.1 WE ARE ALSO CONSCIOUS TO THE FACT THAT THE SET TLER OF THE TRUST HAS ALREADY DIED IN THE YEAR 1969. THEREFORE, THERE IS REASON TO MAKE ANY ADDITION IN THE HANDS OF SUCH PERSON ON PROTECTIVE BASIS. IN CASE ANY ADDITION NEEDS TO BE MADE ON PROTECTIVE BASIS, THEN THE SAME CAN BE MADE EITHER IN THE HANDS OF THE BENEFICIARY OR TRUSTEE. BUT, THE SAME CANNOT BE MADE IN THE HANDS OF THE SETTLER AS MADE BY THE AO. MOREOVER, THE IMPUGNED ISSUE HAS ALREADY BEEN SETTLED BY THE ITAT IN THE OWN CASE OF THE ASSESSEE IN WTA NO. 30 TO 33/RJT/2001 PERTAININ G TO THE ASSESSMENT YEARS 1986-87 TO 1989-90 VIDE ORDER DATED 20 TH JUNE 2003. HENCE THE GROUND OF APPEAL OF THE REVENUE IS DISMISSED. 28. THE 2 ND ISSUE RAISED BY THE REVENUE IS THAT THE LD. CWT (A ) ERRED IN DELETING THE ADDITION MADE BY THE AO FOR RS. 31, 12,491/- WHILE COMPUTING THE NET WEALTH OF THE ASSESSEE. 29. AT THE OUTSET, WE NOTE THAT THE IDENTICAL ISSUE HAS BEEN DECIDED BY US IN THE WTA 01/RJT/2010 FOR A.Y. 2005-06 IN FAVOU R OF THE ASSESSEE VIDE PARAGRAPH NO. 11 OF THIS ORDER. PLEASE REFER T HE RELEVANT PARAGRAPH FOR THE DETAILED DISCUSSION. ACCORDINGLY AND RESPEC TFULLY FOLLOWING THE SAME, WE DO NOT WANT TO DEVIATE FROM THE SAID ORDER . HENCE THE GROUND OF APPEAL OF THE REVENUE IS DISMISSED. 19 W.T.ANOS.01-02/RJT/2010 WITH C.O.NO.38/RJT/2011 A.Y.2005-06 30. THE 3 RD ISSUE RAISED BY THE REVENUE IS THAT THE LD. CWT (A ) ERRED IN DIRECTING TO THE AO TO VALUE THE PROPERTY BEING OPERA HOUSE AT BOMBAY ACCORDING TO SCHEDULE-III OF THE W.T. ACT. 31. AT THE OUTSET, WE NOTE THAT THE IDENTICAL ISSUE HAS BEEN DECIDED BY US IN THE WTA 01/RJT/2010 FOR A.Y.2005-06 IN FAVOUR OF THE ASSESSEE VIDE PARAGRAPH NO. 16 OF THIS ORDER. PLEASE REFER T HE RELEVANT PARAGRAPH FOR THE DETAILED DISCUSSION. ACCORDINGLY AND RESPEC TFULLY FOLLOWING THE SAME, WE DO NOT WANT TO DEVIATE FROM THE SAID ORDER . HENCE THE GROUND OF APPEAL OF THE REVENUE IS DISMISSED. 32. THE NEXT ISSUE RAISED BY THE REVENUE IS THAT TH E LD. CWT-A ERRED IN DIRECTING TO REWORK-OUT THE VALUE OF JAIMAHAL PA LACE HOTEL & STUD FARM WHICH WAS VALUED BY THE AO AT RS. 44,96,29,324 .00. 33. AT THE OUTSET, WE NOTE THAT THE IDENTICAL ISSUE HAS BEEN DECIDED BY US IN THE WTA 01/RJT/2010 FOR A.Y.2005-06 IN FAVOUR OF THE ASSESSEE IN PART VIDE PARAGRAPH NO. 20 OF THIS ORDER. PLEASE RE FER THE RELEVANT PARAGRAPH FOR THE DETAILED DISCUSSION. ACCORDINGLY AND RESPECTFULLY FOLLOWING THE SAME, WE DO NOT WANT TO DEVIATE FROM THE SAID ORDER. HENCE THE GROUND OF APPEAL OF THE REVENUE IS DISMISSED. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISMIS SED. 20 W.T.ANOS.01-02/RJT/2010 WITH C.O.NO.38/RJT/2011 A.Y.2005-06 34. IN THE COMBINED RESULT, BOTH THE APPEALS OF THE REVENUE ARE DISMISSED AND THE CO OF THE ASSESSEE IS ALLOWED. THIS ORDER PRONOUNCED IN OPEN COURT ON 2 5 / 10 /201 9 SD/- SD/- ( ) ( ) (RAJPAL YADAV) (WASEEM AHMED) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED 25 /10/2019 MANISH /TC NAIR / COPY OF THE ORDER FORWARDED TO : 1. # / THE APPELLANT 2. $% # / THE RESPONDENT. 3. !9! 2 / :2 / CONCERNED CIT 4. / :2 ( ) / THE CIT(A)- II, RAJKOT 5. ;< =$20 , , /DR,ITAT, RAJKOT 6. = >?@ 1 / GUARD FILE. / BY ORDER, % ;2$2 //TRUE COPY// / ( DY./ASSTT.REGISTRAR) ' ( , / ITAT, AHMEDABAD 1. DATE OF DICTATION 25/09/2019. WORD PROCESSED BY HONBLE AM IN HIS COMPUTER BY DR AGON 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 24.10.2019 3. OTHER MEMBER... 4. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.P. S./P.S.. 5. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 6. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR.P .S./P.S. 25/10/2019 7. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 25/10/2019 8. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK ... 9. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER.. 10. DATE OF DESPATCH OF THE ORDER