Ms. Nimrita Bilimoria, Jalandhar V. The Wealth Tax Officer, Jalandhar

MA 55/ASR/2015

• Counselvise Citation: [2016] 124 COUNSELVISE.COM (IT) 4194 (ITAT-AMRITSAR)
• Duration Of Justice: 9 month(s) 5 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 20-05-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2004-2005
• Appeal Filed On: 14-08-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: RAVISH SUD
• Keywords: Retrospective amendment
• Section: 92

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH; AMRITSAR. BEFORE SH. A.D. JAIN, JUDICIAL MEMBER AND SH. T.S. KAPOOR, ACCOUNTANT MEMBER M.A. NOS. 49 TO 51(ASR)/2015 (ARISING OUT OF W.T.A. NOS. 12 TO 14(ASR)/2011) ASSESSMENT YEARS:2004-05 TO 2006-07 PAN:AJDPK8743N MRS. RAMINDER KAUR VS. THE DY. COMMR. OF WEALTH TA X, W/O LATE MAJOR PARKASH SINGH, RANGE-III, JALANDHA R. JALANDHAR. (APPELLANT) (RESPONDENT) M.A. NOS. 52 TO 54(ASR)/2015 (ARISING OUT OF W.T.A. NOS. 15 TO 17(ASR)/2011) ASSESSMENT YEARS:2004-05 TO 2006-07 PAN:AIZPS1064M M/S ALEP PARKASH SINGH VS. THE WEALTH TAX OFFICER, JALANDHAR. WARD III(1), JALANDHAR. (APPELLANT) (RESPONDENT) M.A. NO.55 TO 57(ASR)/2015 (ARISING OUT OF W.T.A. NOS. 18 TO 20(ASR)/2011) ASSESSMENT YEARS:2004-05 TO 2006-07 PAN:AGFPB6710Q MS. NIRMITA BILIMORIA, VS. THE WEALTH TAX OFFICER, JALANDHAR. WARD III(3), JALANDHAR. (APPELLANT) (RESPONDENT) M.A. NO.58 TO 60(ASR)/2015 (ARISING OUT OF W.T.A. NOS. 21 TO 23(ASR)/2011) ASSESSMENT YEARS:2004-05 TO 2006-07 PAN:AIMPP4015A MA NOS.49 TO 63(ASR)/2015 (ARISING OUT OF ITA NO.12 TO 14(ASR)/2011 ASSESSMENT YEARS: 2004-05 TO 2006-07 2 MS. JYOTI PARKASH VS. THE WEALTH TAX OFFICER, D/O LATE MAJOR PARKASH SINGH, WARD III(1), JALAN DHAR. JALANDHAR. (APPELLANT) (RESPONDENT) M.A. NOS.61 TO 63(ASR)/2015 (ARISING OUT W.T.A. NOS. 24 TO 26(ASR)/2011) ASSESSMENT YEARS:2004-05 TO 2006-07 PAN:BBHPS1128J MS. NIRLEP SOHAL, VS. THE WEALTH TAX OFFICER, JALANDHAR. WARD NAKODAR,, JALANDHAR. (APPELLANT) (RESPONDENT) APPELLANT BY: SH. RAVISH SUD, ADVOCATE RESPONDENT BY: SH. UMESH TAKYAR, DR DATE OF HEARING: 20/05/2016 DATE OF PRONOUNCEMENT: 20/05/2016 ORDER PER BENCH: THESE FIFTEEN MISCELLANEOUS APPLICATIONS FILED BY FIVE DIFFERENT ASSESSEES ARISE OUT OF THE COMMON ORDER OF THE TRIB UNAL DATED 22.05.2012, PASSED IN WEALTH TAX APPEALS. 2. VIDE ORDER DATED 22.05.2012, THE TRIBUNAL DISMIS SED ALL THE 15 APPEALS OF THE PRESENT 5 ASSESSEES. THE ASSESSEES H AD RAISED THE FOLLOWING GROUNDS BEFORE THE TRIBUNAL 1. THAT THE ORDER OF THE LD. CWT(APPEALS), JALANDH AR IS AGAINST THE LAW AND FACTS OF THE CASE. MA NOS.49 TO 63(ASR)/2015 (ARISING OUT OF ITA NO.12 TO 14(ASR)/2011 ASSESSMENT YEARS: 2004-05 TO 2006-07 3 2. THAT THE LD. CWT(APPEALS) HAD GRAVELY ERRED IN L AW IN FAILING TO APPRECIATE THAT AGRICULTURAL LANDS, WHETHER SI TUATED WITHIN THE URBAN AGGLOMERATION OR WITHIN THE NOTI FIED AREA LIMITS WOULD NOT FALLL WITHIN THE SCOPE & DOMAIN OF THE TERMINOLOGY ASSET AS CONTEMPLATED U/S 2(EA)(V) OF THE W.T.ACT, 1957. 3. THAT THE LD. CWT(APPEALS) GRAVELY ERRED IN LAW I N FAILING TO APPRECIATE THAT LEVY OF WEALTH TAX ON AGRICULTURAL LANDS AS PER THE CONSTITUTION OF INDIA, IS SPECIFICALLY E XCLUDED FROM ENTRY 86 OF UNION LIST-1, SEVENTH SCHEDULE, AND THE REUPON IS REGULATED BY ENTRY 95 OF THE SAID UNION LIST-1, SEVENTH SCHEDULE ( UNDER THE RESIDUARY POWERS), AND THEREIN FURTHER ERRED IN FAILING TO APPRECIATE THAT IN CASE THE PA RLIAMENT HAD INTENDED VIDE THE FINANCE ACT, 1992 (WHEREIN FOR TH E FIRST TIME THE SAID TERM URBAN LAND WAS INCORPORATED AS AN ASSET), TO LEVY WEALTH TAX ON AGRICULTURAL LANDS ( AS WAS SO DONE BY THE FINANCE ACT, 1969, WHEN FOR THE FIRST T IME AGRICULTURAL LAND WAS BROUGHT WITHIN THE AMBIT OF LEVY OF WEALTH TAX), THEN THERE WOULD HAVE BEEN A SPECIFIC EXCLUDING PROVISO GIVING EFFECT TO NON-APPLICABIL ITY OF WEALTH TAX ON AGRICULTURAL LANDS SITUATED IN THE STATE O F JAMMU & KASHMIR, BECAUSE DUE TO APPLICABILITY OF ARTICLE 37 0 IN THE SAID STATE THE POWER TO LEGISLATE AS REGARDS ANY ITEM SPECIFIC IN ENTRY 97 OF THE UNION LIST-1, SEVENTH SCHEDULE (PERTAINING TO RESIDUARY POWERS), IS VESTED ONLY WI TH THE STATE GOVERNMENT OF JAMMU & KASHMIR AND THE PARLIAMENT STANDS DIVESTED OF THE SAID POWERS AS REGARDS THE S AME. 4. THAT THE CWT (APPEALS) WHILE GOING BY THE DEFINI TION OF THE TERMINOLOGY URBAN LAND AND THEREIN HOLDING THAT T HE SAME INCLUDES AGRICULTURAL LANDS, THEREIN GRAVELY ERRE D IN LAW IN BY FAILING TO TAKE COGNIZANCE OF THE SETTLED POSITI ON OF LAW AS HAD BEEN SO LAID DOWN BY THE HONBLE SUPREME CURT, HONBLE PUNJAB & HARYANA HIGH COURT, ENTRY 86 & ENTRY 97 AS IS SO CONTEMPLATED IN THE UNION LIST OF THE CONSTITUTION OF INDIA AND THE CIRCULAR OF THE CBDT SUBSTANTIATING THE ASS ESSEES CONTENTION. 5. THAT THE CWT(APPEALS) GRAVELY ERRED IN LAW THAT VIDE THE FINANCE ACT, 1992, THE THEN FINANCE MINISTER HAD SPECIFICALLY BROUGHT ONLY NON-PRODUCTIVE ASSETS WIT HIN THE AMBIT OF WEALTH-TAX ACT,1957 AND BY NO STRETCH OF MA NOS.49 TO 63(ASR)/2015 (ARISING OUT OF ITA NO.12 TO 14(ASR)/2011 ASSESSMENT YEARS: 2004-05 TO 2006-07 4 IMAGINATION AGRICULTURAL LAND I.E. LAND ON IN WHICH AGRICULTURAL OPERATIONS ARE BEING CARRIED ON, WHETH ER SITUATED WITHIN OR OUTSIDE THE URBAN AREAS COULD BE HELD IN OUR INDIAN ECONOMY AS A NON-PRODUCTIVE ASSTS. 6. THAT WITHOUT PREJUDICE TO THE AFORESAID SETTLED POSITION OF LAW, THE LD. CWT (APPEALS) STILL FURTHER ERRED IN N OT APPRECIATING THAT AS AGRICULTURE IS A BUSINESS, (WHICH FACT STANDS SUBSTANTIATED BY THE JUDGMENTS OF THE H ONBLE JURISDICTIONAL HIGH COURT), THEREFORE, THE AGRICUL TURAL LAND OWNED BY THE ASSESSEE ON THE RELEVANT VALUATION DA TE AND WERE BEING USED BY HER FOR THE BUSINESS OF AGRICULTURE, THEREUPON AS PER SECTION 2(EA) (I)(3) OF THE WEATH TAX ACT, 1957 THE SAME WOULD REMAIN SPECIFICA LLY EXCLUDED FROM THE DEFINITION OF ASSET AS CONTEMPL ATED BY SEC. 2(EA) OF THE SAID ACT. 7. THAT WITHOUT PREJUDICE TO THE AFORESAID THE LD. CWT (APPEALS) HAD ERRED IN NOT APPRECIATING THAT EVEN O THERWISE AS THE LANDS OWNED BY THE ASSESSEE WERE AGRICULTUR AL LANDS AND WERE SUBJECT TO SELF-CULTIVATION BY THE ASSESSE E, THEREUPON, AS PER THE PROVISIONS OF SECTION 91, 92 & 93 OF THE PUNJAB REGIONAL & TOWN PLANNING AND DEVELOPMENT ACT, 1995, NO CONSTRUCTION WAS PERMISSIBLE ON THE SAID L ANDS. THEREFORE, AS PER EXPLANATION (B) (NOW EXPLANATI ON 1(B) W.E.F. 01.04.2000) TO SECTION 2(EA), THE SAID LANDS AUTOMATICALLY STOOD EXCLUDED FROM THE DEFINITION OF THE TERM URBAN LAND. 8. THAT THE LD. CWT (APPEALS) HAD ERRED IN NOT QUAS HING NOTICE U/S 17, AS THE REASONS TO BELIEVE DID NOT EXIST. 9. THAT THE CWT(APPEALS) HAD ERRED IN SUSTAINING TH E ORDER OF THE A.O. WHEREIN THE LATTER HAD NOT ACCEPTED THE WE ALTH-TAX RETURN SO FILED BY THE ASSESSEE. 3. THE TRIBUNAL HELD AS FOLLOWS: 4. AT THE TIME OF HEARING BOTH THE PARTIES AGREED THAT THE ISSUE IN DISPUTE HAS ALREADY BEEN ADJUDICATED AND F INALLY DECIDED AGAINST THE ASSESSEE BY THE HONBLE SUPREME COURT OF INDIA IN THE CASE OF GURDIP SINGH NAGRA VS. COM MISSIONER OF WEALTH TAX , JALANDHAR AND OTHERS IN SPECIAL LEA VE TO MA NOS.49 TO 63(ASR)/2015 (ARISING OUT OF ITA NO.12 TO 14(ASR)/2011 ASSESSMENT YEARS: 2004-05 TO 2006-07 5 APPEAL (CIVIL) NO(S). 30267/2011, ARISE FROM THE JU DGMENT AND ORDER DATED 06/04/2011 IN WTA NO.38/2010 OF THE HONBLE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGAR H, WHICH THE ASSESSEE HAS ATTACHED AT PAGE 3 4 OF TH E SMALL PAPER BOOK CONTAINING PAGES 1 TO 13. 5. IN ADDITION TO THE SAID ADMITTED POSITION, THE L D. COUNSEL FOR THE ASSESSE ALSO STATED THAT THE ASSESS EE HAS RAISED GROUND NO.3, IN WHICH THE ASSESSEE HAS CHALL ENGED THE VIRES AS REGARDS TO THE LEVY OF WEALTH TAX ON AGRICULTURAL LANDS, AS CONTEMPLATED U/S 2(EA)(V) OF THE WEALTH T AX ACT, 1957. HE FURTHER REQUESTED THE BENCH THAT THE ISSUE RAISED BY THE ASSESSEE MAY ALSO BE ADJUDICATED UPON. 6. ON THE CONTRARY, THE LD. DR, STATED THAT THE ISS UE IN DISPUTE HAS FINALLY BEEN SETTLED AND DECIDED IN FA VOUR OF THE REVENUE BY THE DECISION OF THE HONBLE SUPREME CO URT OF INDIA, VIDE ITS ORDER DATED 16.12.2011 IN THE PRESE NCE OF LD. COUNSEL FOR THE ASSESSEE AND THE SPECIAL LEAVE PETI TION FILED BY THE ASSESSEE HAS BEEN DISMISSED, THEN THERE IS N O QUESTION OF RAISING ANY NEW ISSUE BY THE ASSESSEE A T THIS STAGE, BEFORE THIS BENCH. HE FURTHER REQUESTED THAT THE APPEALS FILED BY THE ASSESSEES MAY BE DISMISSED. 7. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE RELEVANT RECORDS AVAILABLE WITH US, ESPECIALLY THE ORDER PASSED BY THE JURISDICTIONAL HIGH COURT IN THE CASE OF CHARANPAL SINGH MANN AND JAGRAJ SINGH IN W.T.A. NOS . 1 AND 2 OF 2003 DATED 08.09.2003, IN WHICH THE HONB LE HIGH COURT, HAS HELD THAT AGRICULTURAL LAND WHICH FALLS WITHIN MUNICIPAL URBAN LAND AND CHARGEABLE TO WEALTH TAX A ND EXACTLY SIMILAR ISSUE RAISED IN THE CASE OF GURDIP SINGH NAGRA VS. CWT IN SPECIAL LEAVE TO APPEAL (CIVIL) NO (S). 30267/2011 (FROM THE JUDGMENT AND ORDER DATED 06/04/2011 IN WTA NO.38/2010 OF THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH), THE HONBLE SUPREM E COURT, HAS DISMISSED THE S.L.P. FILED BY SH. GURDIP SINGH NAGRA AND UPHELD THE ORDER OF THE JURISDICTIONAL HI GH COURT, VIDE ITS CONSOLIDATED ORDER DATED 16.12.2011. THE I SSUE IN DISPUTE IN THE PRESENT APPEALS IS EXACTLY SIMILAR, WHICH HAS ATTAINED FINALITY. THEREFORE, RESPECTFULLY FOLLOWIN G THE ORDER OF THE HONBLE SUPREME COURT OF INDIA, DATED 16.12.2 011, THE PRESENT APPEALS FILED BY THE ASSESSEES ARE DISMISSE D. MA NOS.49 TO 63(ASR)/2015 (ARISING OUT OF ITA NO.12 TO 14(ASR)/2011 ASSESSMENT YEARS: 2004-05 TO 2006-07 6 8. AS REGARDS THE OTHER ISSUE RAISED BY THE LD. COU NSEL FOR THE ASSESSEE REGARDING CHALLENGING THE VIRES OF THE LEVY OF WEALTH TAX ON AGRICULTURAL LAND, AS STOOD CONTEMPLA TED UNDER SECTION 2(EA)(V) OF THE WEALTH TAX ACT, 1957 , THIS TRIBUNAL HAS NO JURISDICTION/POWER TO ADJUDICATE REGARDING VIRES OF LEVY OF WEALTH TAX ON AGRICULTURAL LAND, A S STATED BY THE ASSESSEE IN GROUND NO.3. 9. KEEPING IN VIEW THE FACTS AND CIRCUMSTANCES OF T HE CASE EXPLAINED ABOVE, WE ARE OF THE VIEW THAT NO IN TERFERENCE IS CALLED FOR IN THE WELL REASONED ORDER PASSED BY THE LD. FIRST APPELLATE AUTHORITY ON THE ISSUES IN DISPUTE RAISED BY THE ASSESSEES IN THE PRESENT APPEALS. THEREFORE, THE PR ESENT APPEALS ARE DISMISSED. 4. BY WAY OF THE PRESENT MISC. APPLICATIONS, THE AS SESSEES CONTEND THAT THE POST PASSING OF THE AFORESAID TRIBUNAL ORD ER DATED 22.05.2012, VIDE AMENDMENT INTRODUCED BY THE FINANCE ACT, 2013, SECTION 2(EA)(V) OF THE WEALTH TAX ACT, HAS BEEN AMENDED WITH RETROSPEC TIVE EFFECT FROM 01.04.1993, WHEREBY AGRICULTURAL LAND WILL NOT FORM PART OF ASSETS, DUE TO WHICH AGRICULTURAL LAND IS NO LONGER LIABLE TO W EALTH TAX WITH RETROSPECTIVE EFFECT FROM 01.04.1993. IT HAS BEEN S TATED THAT THE ASSESSMENT YEARS BEFORE US ARE 2004-05 TO 2006-07 A ND THEREFORE, THE RETROSPECTIVE AMENDMENT, BROUGHT IN AFTER THE PASS ING OF THE TRIBUNAL ORDER DATED 22.05.2102, ARE SQUARELY COVERED BY TH E SAID AMENDMENT. THE ORDERS PASSED BY THE TRIBUNAL HAVE BEEN ACCORDI NGLY SOUGHT TO BE RECALLED. MA NOS.49 TO 63(ASR)/2015 (ARISING OUT OF ITA NO.12 TO 14(ASR)/2011 ASSESSMENT YEARS: 2004-05 TO 2006-07 7 5. ON THE OTHER HAND, THE LD. DR PLACED STRONG RELI ANCE ON THE TRIBUNAL ORDER. 6. WE HAVE HEARD THE PARTIES AND HAVE PERUSED THE M ATERIAL AVAILABLE ON RECORD. THERE IS NO DISPUTE THAT VIDE ORDER DATE D 22.05.2012, PASSED BY THE TRIBUNAL, ALL THE PRESENT APPEALS OF THESE A SSESSEES WERE DISMISSED FOLLOWING THE JUDGMENT OF THE HONBLE SUP REME COURT IN THE CASE OF GURDIP SINGH NAGRA VS. CWT AND OTHERS, PA SSED ON 06.04.2011IN S.L.P. (CIVIL) NO. 30267/2011 IN WTA N O.38/2010 BEFORE THE HONBLE HIGH COURT OF PUNJAB & HARYANA AND THE LEVY OF WEALTH TAX BY THE AO ON AGRICULTURAL LAND AS CONTEMPLATED IN EXISTING SECTION 2(EA)(V) OF THE WEALTH TAX ACT, WAS UPHELD. 7. THE LEGISLATURE HAS, BY VIRTUE OF THE FINANCE AC T, 2013, POST THE PASSING OF THE TRIBUNAL ORDER DATED 22.05.2012 INTR ODUCED THE AMENDMENT TO SECTION 2(EA)(V) WITH RETROSPECTIVE E FFECT FROM 01.04.1993. THIS AMENDMENT BY WAY OF EXPLANATION 1(B)(II) SE CTION 2(EA)(V), IS AS FOLLOWS (RELEVANT EXTRACT): BUT DOES NOT INCLUDE LAND CLASSIFIED AS AGRICULTUR AL LAND IN THE RECORDS OF THE GOVERNMENT AND USED FOR AGRICULTURAL PURPOSES. MA NOS.49 TO 63(ASR)/2015 (ARISING OUT OF ITA NO.12 TO 14(ASR)/2011 ASSESSMENT YEARS: 2004-05 TO 2006-07 8 8. THE APPEALS PENDING BEFORE US PERTAIN TO ASSESSM ENT YEARS 2004- 05 TO 2006-07. ACCORDINGLY, THESE APPEALS ARE COVER ED BY THE AFORESAID RETROSPECTIVE AMENDMENT BROUGHT IN BY THE LEGISLAT URE IN THE W.T. ACT. 9. IN VIEW OF THE ABOVE POSITION, WHICH COULD NOT B E DENIED BY THE LD. DR, OUR ORDER DATED 22.05.2012 IS RECALLED. 10. IN THE RESULT, ALL THE MISC APPLICATIONS OF FIV E DIFFERENT ASSESSEES ARE ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 20/05/ 2016. SD/- SD/- (T.S. KAPOOR) (A.D. JAIN) ACCOUNTANT MEMBER JUDICIAL MEMBER /SKR/ DATED: 20/05/2016 COPY OF THE ORDER FORWARDED TO: 1. THE ASSESSEES : 2. THE DCWT, RANGE-III, JALANDHAR. 3. THE CWT(A), JALANDHAR. 4. THE CWT, JALANDHAR.S 5. THE SR DR, ITAT, AMRITSAR. TRUE COPY BY ORDER