Hakimuddin Alimohammed Poonawala, Pune V. Income-tax Officer, Pune

MA 6/PUN/2008

• Counselvise Citation: [2016] 124 COUNSELVISE.COM (IT) 4144 (ITAT-PUNE)
• Duration Of Justice: 8 year(s) 10 month(s) 21 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 19-02-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: Not Allotted
• Next Hearing Date: 03-02-2012
• Assessment Year: misc
• Appeal Filed On: 28-03-2007
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAJESH DAMOR SINGH
• Assessee Lawyers: NILESH KHANDELWAL
• Keywords: Fair market value; Valuation report
• Section: 11; 15

Judgement Text

] IQ.KS ] IQ.KS ] IQ.KS ] IQ.KS IQ.KS IQ.KSIQ.KS IQ.KS IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B, PUNE , . . , # BEFORE MS. SUSHMA CHOWLA, JM AND SHRI R.K. PANDA, AM $$ . / MA NOS.03 TO 11/PN/2008 (ARISING OUT OF WTA NOS.14 TO 20 & 22 TO 23/PN/2003 & & / ASSESSMENT YEARS : 1984-85 TO 1990-91 & 1992-93 TO 1993-94 MR. HAKIMUDDIN ALIMOHAMMAD POONAWALA , 373, RAVIWAR PETH, PUNE- 411002 PAN NO.AEAPP5565R . / APPLICANT V/S ITO, WARD-5(3), PUNE . / RESPONDENT $$ . / MA NOS.33 TO 36/PN/2007 (ARISING OUT OF WTA NOS.04 TO 07/PN/2003 & & / ASSESSMENT YEARS : 1994-95 TO 1997-98 MR. ZAINUDDIN KURBANHUSSAIN POONAWALA , 373, RAVIWAR PETH, PUNE- 411002 PAN NO.AEAPP5564Q . / APPLICANT V/S THE ADDL.CWT, S.R-3, PUNE . / RESPONDENT $$ . / MA NOS.37 TO 40/PN/2007 (ARISING OUT OF WTA NOS.08 TO 11/PN/2003 & & / ASSESSMENT YEARS : 1994-95 TO 1997-98 MR. MOHAMMAD KURBANHUSSAIN POONAWALA , 373, RAVIWAR PETH, PUNE- 411002 PAN NO.AGFPP9057R . / APPLICANT V/S 2 MA NOS.03 TO 11/PN/2008 & M.A.NOS. 33 TO 40/PN/2007 THE ADDL.CWT, S.R-3, PUNE . / RESPONDENT / APPLICANT BY : SHRI NILESH KHANDELWAL / DEPARTMENT BY : SHRI RAJESH DAMOR SINGH / ORDER PER R.K. PANDA, AM : THE ASSESSEES THROUGH THE ABOVE MISCELLANEOUS APPLICATION S REQUEST THE TRIBUNAL TO RECTIFY CERTAIN MISTAKES THAT HAVE CRE PT IN THE ORDER OF THE TRIBUNAL. 2. FIRST WE TAKE UP M.A.NO.03/PN/2008 FOR A.Y. 1984-85 IN THE CASE OF SHRI HAKUMUDDIN ALIMOHAMMAD POONAWALA. THE CONTEN TS OF THE MISCELLANEOUS APPLICATION READ AS UNDER : THE ASSESSMENT WAS MADE UNDER THE PROVISIONS OF SECTION 16 (3) READ WITH SECTION 17 OF THE WEALTH TAX ACT, 1957 ON 10/03 /1997. THE ASSESSMENT WAS SET ASIDE BY THE C.I.T. (A)-III. PUNE VIDE ORDER DATED 30/03/1998 WITH A DIRECTION TO MAKE A FRESH ASSESSMENT A FTER OBTAINING VALUATION REPORT FROM THE D.V.O. THE ASSESSEE CHALLENGE D THIS AND NINE OTHER ORDERS BEFORE THE HON'BLE I.T.A.T., PUNE FOR T HE YEAR UNDER CONSIDERATION AND NINE OTHER ASSESSMENT YEARS, I.E. FOR T EN YEARS, A. Y. 1984-85 TO 1993-94. THESE APPEALS WERE DISMISSED AS INFR UCTUOUS BY WAY OF CONSOLIDATED ORDER PASSED ON 18/08/2005. THE RE ASON WAS THAT THE ASSESSMENT HAD BEEN COMPLETED BY THE A. O. CONSEQUEN T UPON THE DIRECTION OF THE LEARNED C.I.T. (A) AND C.W.T. (A) HAD ALSO DECIDED THE APPEAL OF THE ASSESSEE. THE APPEAL AND THE CROSS OBJECTIO N ABOVE ARISE OUT OF THE CONSOLIDATED ORDER OF THE C.I.T. (A)-II. PUNE, PASSED ON 22/05/2003. THE REVENUE HAS TAKEN UP 5 GROUNDS OF APP EAL, PERTAINING TO FIXATION OF FAIR MARKET VALUE OF THE LAND HELD B Y THE ASSESSEE ALONG WITH FIVE OTHER CO-OWNERS. THE APPEAL OF THE REVENUE , THE CROSS OBJECTIONS OF THE ASSESSEE AND APPEALS IN THE CASE OF THE OTHER CO-OWNERS WERE ARGUED IN A CONSOLIDATED MANNER BY THE LEARNED D. R. AND THE LEARNED COUNSEL OF THE ASSESSEE. ALL THESE APPEALS INVOLVE SIMILAR ISSUES REGARDING VALUATION OF THE LAND, DIVIDED INTO THREE CATEGORIES BY THE / DATE OF HEARING : 21.12.2015 / DATE OF PRONOUNCEMENT:19.02.2016 3 MA NOS.03 TO 11/PN/2008 & M.A.NOS. 33 TO 40/PN/2007 LEARNED C.I.T. (A), IN THE CASE OF LATE SHRI T. H. P OONAWALA. IN THAT CASE, THE HON'BLE I.T.A.T., PUNE HAS DECIDED THE APPEAL OF THE ASSESSEE AND THE REVENUE (SUPRA). IN THE SAID CASE, THE ASSESSEE HAD FILED A PAPER BOOK CONSISTING OF 182 PAGES. HOWEVER, THE FACTS AND ARGUMEN TS WERE IDENTICAL WITH THE FACTS AND ARGUMENTS IN THE AFORESAI D CASE OF LATE SHRI T. H. POONAWALA. RELYING ON THE DECISION IN THAT ORD ER, IT IS HELD THAT THREE CATEGORIES OF LAND AND REBATE OF 15% FROM THE AGGREGATE VALUE THEREOF SHALL BE ALLOWED IN TERMS OF THAT ORDER. IN THE RESULT, THE HON'BLE TRIBUNAL BY ITS ORDER DATE D 16 TH SEPTEMBER 2005 DISMISSED THE APPEAL OF THE REVENUE AND THE CROSS O BJECTIONS OF THE ASSESSEE WERE PARTLY ALLOWED. THE LEAD CASE OF THE MATTER OF MR. T. H. POONAWALA W AS FOR ONLY ONE ASSESSMENT YEAR I.E. A.Y. 1991-92, WHERE THE ASSESSEE'S COUN SEL IN THE CASE, THE LEARNED ADVOCATE MR. K. A. SATHE HAD SUBMIT TED DURING THE COURSE OF HEARING OF THE APPEALS AND CROSS OBJECTIONS OF THE ASSESSEE FOR THE PROPORTIONATE SIMILAR REDUCTIONS IN THE RATES APPL ICABLE FOR THE FREEHOLD LAND AND NON-BUILDABLE LAND FOR THE REMAIN ING NINE YEARS UNDER ASSESSMENT, AS ALLOWED IN THE LEAD CASE, FOR WHICH, NO SP ECIFIC DIRECTIONS AND/OR THE ORDER FOR THE REDUCTION IN THE RATES HAD BEEN ORDERED WHILE PASSING THE ABOVE ORDER DATED 16 TH SEPTEMBER 2005. THIS APPEARS TO BE THE MISTAKES APPARENT FROM RECORD AND THE SAID ORDER M AY PLEASE BE AMENDED AND RECTIFIED ACCORDINGLY. 1) FREEHOLD LAND: AS PER THE HON'BLE I.T.A.T. ORDER DATED 16 TH SEPTEMBER 2005 IN THE LEAD CASE OF THE MATTER FOR A. Y. 1991-92, IN PARA NO. 6.2 OF THE ORDER, THE RATE OF THE FREEHOLD LAND (CATEGORY 'R') HAD BEEN REDUCED AS THERE WAS NO SERIOUS DISPUTE BETWEEN BOTH THE PARTIES AND WHICH BOTH THE PARTIES ACCEPTED, I.E. IN THE CASE OF MR. T. H. POONAWALA FROM RS. 170.00 PER SQ.FT. (AS PER THE D.V.O., MUMBAI' S RATE FOR A.Y. 1991- 92 AND IN THE CASE OF THE ASSESSEE FROM 1657.00 PER SQ.MT . AS PER THE D.V.O., SOLAPUR'S RATE FOR A.Y. 1991-92) TO RS. 120.0 0 PER SQ.FT. (I.E. RS. 1292.00 PER SQ.MT.) IN THE CASE. A. IT IS HUMBLY SUBMITTED THAT THERE IS NO DIRECTION F OR APPLICATION OF THE PROPORTIONATE REDUCTION OF RATE FOR THE FREEHOL D LAND RATE FROM RS. 230.00 PER SQ.MT. AS PER THE D.V.O., SOLAPUR' S RATE FOR THE ASSESSMENT YEAR UNDER CONSIDERATION, I.E. A. Y. 1984 -85, IT MAY PLEASE BE APPLIED AS PER THE SUBMISSION OF THE LEARN ED ADVOCATE OF THE ASSESSEE, MR. K. A. SATHE AT THE TIME OF HEARING OF THE CASE, WHICH IS; IN THE RATIO OF 1292 / 1657 - 0.78 I.E. 78% OF THE D.V.O. SOLAPUR'S FREEHOLD LAND RATE I.E. 179.00 PER SQ.MT. FOR THE ASSE SSMENT YEAR UNDER CONSIDERATION. 2) NON-BUILDABLE LAND; AS PER THE HON'BLE I.T.A.T. ORDER DATED 16 TH SEPTEMBER 2005 IN THE PARA NO. 6.3 OF THE ORDER, TH E RATE OF THE RESERVED NON-BUILDABLE LAND (CATEGORY P), AS PER THE PROVISION S OF (I) THE U. L. (C. & R.) ACT, 1976 (II) P.M.C.'S RULE 15.2 (III) THE HO N'BLE I.T.A.T.'S ORDER IN CASE OF MR. T. H. POONAWALA IN THE LEAD CASE FOR A.Y. 1991-92 OF THE THREE CATEGORY (CATEGORY P 1 , 'R & 'S'), 40% AREA OF THE CATEGORY 'R I.E. FREEHOLD LAND AREA OF 2691 SQ.FT. HAS BEEN CONSIDERED . 4 MA NOS.03 TO 11/PN/2008 & M.A.NOS. 33 TO 40/PN/2007 A. IT IS HUMBLY SUBMITTED THAT THERE IS NO SIMILAR DI RECTION FOR CONSIDERING FREEHOLD LAND AREA OF 610 SQ.MT. IN CASE O F THE ASSESSEE FOR THE ASSESSMENT YEAR UNDER CONSIDERATION, IT MAY PLEA SE BE APPLIED FOR THE YEAR UNDER CONSIDERATION. B. IT IS HUMBLY SUBMITTED THAT THERE IS ALSO NO DIREC TION FOR THE PROPORTIONATE SIMILAR REDUCTION OF RATE OF THE F.S.I , RATE FOR THE ASSESSMENT YEAR UNDER CONSIDERATION, THE DIRECTION OF TH E F.S.I, RATE @ RS. 100.00 PER SQ.FT. IS ONLY FOR A.Y. 1991-92 IN T HE LEAD CASE OF MR. T. H. POONAWALA AND THE SAME BEING THE RATIO LAID, T HE SIMILAR DIRECTION MAY PLEASE BE APPLIED FOR THE YEAR UNDER C ONSIDERATION; IN THE RATIO OF 100 / 120 = 0.83 I.E. 83 % OF THE F REEHOLD LAND RATE AS PER SUBMISSION IN PARA NO. 1 ABOVE, I.E. FOR THE F.S.I , RATE @ 149.00 PER SQ.MT. FOR THE ASSESSMENT YEAR UNDER CONSIDERATION. C. IT IS HUMBLY FURTHER SUBMITTED THAT BY DISTINGUISHIN G THE DIRECTLY APPLICABLE HON'BLE SUPREME COURT JUDGMENT IN THE CA SE OF DATTATREYA SHANKARBHAT AMBALGI & ORS. VS. STATE OF MAHARASHTRA & ORS. AIR 1989 SC 1796 AS DISCUSSED IN PARA NO. 6.3 OF THE ORDER AND NOT APPLYING THE RATIO THERETO IS MISTAKES APPARENT FROM R ECORD. THE SAME MAY PLEASE BE APPLIED AND THE ORDER MAY PLEASE BE AMENDED AND RECTIFIED ACCORDINGLY. 3) IT IS THEREFORE PRAYED THAT, IT IS ABSOLUTELY ESSENTI AL IN THE INTEREST OF JUSTICE AND EQUITY TO ENTERTAIN THIS MISCELLANEOUS APPL ICATION AND DIRECTIONS ARE REQUIRED TO BE GIVEN FOR THE AMENDMEN TS AND RECTIFICATION OF THE APPARENT MISTAKES ON RECORD, FOR THE YEAR UNDE R ASSESSMENT. A. THE ABSENCE OF SPECIFIC DIRECTION FOR THE YEAR U NDER ASSESSMENT IN THE CONSOLIDATED ORDER ABOUT THE PROPORTIO NATE RATES OF THE FREEHOLD LAND AND THE PROPORTIONATE ARE A AND THE RATES OF THE NON-BUILDABLE LAND APPEARS TO BE APPAREN T MISTAKE FROM THE RECORD AND NEEDS TO BE AMENDED AND RECTIFIE D BY THE HON'BLE APPELLATE TRIBUNAL. B. ANY OTHER ORDERS THEREON MAY PLEASE BE PASSED, AS TH E HON'BLE APPELLATE TRIBUNAL MAY THINKS DEEM AND FIT, IN THE INTEREST OF THE JUSTICE AND EQUITY. 3. SO FAR AS THE FIRST ISSUE IN THE M.A. IS CONCERNED, THE LD. COUNSEL FOR THE ASSESSEE REFERRING TO THE ORDER OF THE T RIBUNAL SUBMITTED THAT THE APPLICABILITY OF THE ORDER TO ALL THE YEA RS IS NOT CLEAR, SINCE THE WORD MUTATIS MUTANDIS IS MISSING IN PARA 10 OF THE ORDER. HE SUBMITTED THAT BECAUSE OF THE MISSING OF THAT WORD THE AO MAY NOT GIVE PROPER APPEAL EFFECT. HE ACCORDINGLY SUBMITT ED THAT NECESSARY RECTIFICATION MAY BE MADE IN THE ORDER OF THE TRIBUNAL. 5 MA NOS.03 TO 11/PN/2008 & M.A.NOS. 33 TO 40/PN/2007 4. AFTER HEARING BOTH THE SIDES, WE ARE OF THE CONSIDERED OPINION THAT IT IS ONLY AN APPREHENSION ON THE PART OF THE ASSE SSEE THAT THE AO MAY NOT GIVE EFFECT TO THE ORDER OF THE TRIBUNAL TO O THER YEARS. THEREFORE, UNLESS AND UNTIL SUCH A SITUATION ARISES THE MISC ELLANEOUS APPLICATIONS FILED BY THE ASSESSEE ON THIS ISSUE IN OUR OPINIO N IS PREMATURE. SINCE THE ORDER OF THE TRIBUNAL IS VERY CLEAR , THEREFORE, WE DO NOT FIND ANY MERIT IN THE APPREHENSION ON THE PART OF THE ASSESSEE. HOWEVER, WE MAKE IT CLEAR THAT IN CASE THE AO DOES NOT ALLOW THE DIRECTION GIVEN BY THE TRIBUNAL, THE ASSESSEE IS AT LIBERTY TO APPROACH THE APPROPRIATE AUTHORITY AS PER LAW. WE HOLD AND DIRECT ACCORDINGLY. THE FIRST ISSUE RAISED BY THE ASSESSEE IN TH E MISCELLANEOUS APPLICATION IS ACCORDINGLY REJECTED. 5. SO FAR AS THE SECOND ISSUE IN THE MISCELLANEOUS APPLICAT IONS IS CONCERNED THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED TH AT THE TRIBUNAL AT PARA 6.3 OF THE ORDER HAS REFERRED TO THE D ECISION OF THE HONBLE SUPREME COURT IN THE CASE OF DATTATREYA SHANKA RBHAT AMBALGI & ORS. VS. STATE OF MAHARASHTRA & ORS. REPORTED IN AIR 1989 SC 1796 WHERE IT HAS BEEN HELD THAT THE LAND TO T HE EXTENT WHICH FALLS WITHIN THE CEILING AREA STANDS IN A CLASS DIFFERENT FR OM THE LAND, WHICH IS IN EXCESS OF THE CEILING AREA AND IS LIABLE TO B E DECLARED SURPLUS TO GIVE EFFECT TO THE PURPOSE AND OBJEC T OF THE ACT. HE SUBMITTED THAT THIS DECISION WAS ALSO PROVIDED BY THE ASSESSEE IN THE PAPER BOOK NO.2 AT PAGE NO.126. AS PER THIS DECISION , PROVISIONS OF SECTION 125 AND 126 OF THE MAHARASHTRA REGIONAL TOWN PLANNING ACT, 1966 ARE NOT APPLICABLE (FOR NON BUILDABLE LAND EXCESS LA ND), WHICH CAN BE ACQUIRED AT A LOWER VALUE UNDER URBAN LAN D CEILING ACT. THE ASSESSEE HAD REQUESTED ACQUISITION UNDER MRTP ACT 6 MA NOS.03 TO 11/PN/2008 & M.A.NOS. 33 TO 40/PN/2007 BECAUSE HE WOULD HAVE RECEIVED HIGHER VALUE. HOWEVER, WR IT PETITION WAS DISMISSED. HE SUBMITTED THAT THE ORDER OF THE TRIBUN AL IS NOT IN ACCORDANCE WITH THE DECISION OF THE HONBLE SUPREME COUR T WHICH WAS CITED, THEREFORE, THIS PART OF THE ORDER HAS TO BE MODIFIED. 6. AFTER HEARING BOTH THE PARTIES, WE FIND THAT CERTAIN MIS TAKES HAVE CREPT IN THE ORDER OF TRIBUNAL WITH REFERENCE TO PAR A 6.3 OF THE ORDER DATED 18-08-2005. THE TRIBUNAL AT PARA 6.3 OF THE ORDER HAS CONSIDERED THE DECISION OF THE HONBLE SUPREME COURT IN T HE CASE OF DATTATRAYA SHANKARBHAI AMBALGI AND OTHERS (SUPRA) AND V ALUED THE ADDITIONAL FAR AT RS.100/- PER SQ.FT. ACCORDING TO THE ASSE SSEE SINCE THE EXCESS LAND IS NON BUILDABLE, THEREFORE, URBAN LAND CEILI NG RATE OF RS.10/- PER SQ.MTR SHOULD BE APPLIED FROM 1984-85 TO 19 92-93. THE ASSESSEE HAS ALSO REFERRED TO SECTION 11(1)(B)(I) OF THE U RBAN LAND CEILING ACT, MAHRASHTRA ACCORDING TO WHICH THE EXCES S LAND RATE FOR CATEGORY-B IN PUNE IS RS.10/-. ANOTHER MISTAKE POINTED OUT BY THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESS EE WAS THAT WHILE REFERRING TO THE DECISION IN DATTATRAYA SHANKARBHAI AMBALGI AND OTHERS, THE TRIBUNAL HAS ERRED IN REFERRING TO THE PR OVISIONS OF MRTP ACT AND REPRODUCED THE SAID PROVISION AND NOT TH E DECISION OF HONBLE SUPREME COURT. ON THE PERUSAL OF RECORD, WE FIND THAT BEFORE THE TRIBUNAL, ALL THESE DETAILS WERE FILED I.E. PROVISIONS OF ULCR ACT AND ALSO THE DECISION OF HONBLE SUPREME COURT IN CASE OF DATTATRAYA SHANKARBHAI AMBALGI AND OTHERS. THE PERUSAL OF THE ORDER OF TRIBUNAL IN PARA 6.3 REFLECTS THAT BOTH THESE ISSU ES WERE CONSIDERED BY THE TRIBUNAL, BUT WHILE GIVING THE FINAL DECISION, AN ERROR HAS CREPT IN THE ORDER OF TRIBUNAL. FIRST OF ALL, THE QUOTED PORTION OF THE DECISION OF HONBLE SUPREME COURT HAVE NO T BEEN 7 MA NOS.03 TO 11/PN/2008 & M.A.NOS. 33 TO 40/PN/2007 CORRECTLY QUOTED THOUGH REFERENCE IS BEING MADE TO T HE DETAILS IN THE CASE OF DATTATRAYA SHANKARBHAI AMBALGI AND OTHERS. THE PROVISIONS OF MRTP ACT HAVE BEEN QUOTED THEREUNDER AND ALSO SINCE THE LAND UNDER CONSIDERATION FALLS BEYOND THE CEILING LIMIT PRESCRIBED U NDER THE ACT, WHICH HAD BEEN ACCEPTED BY THE TRIBUNAL, THE SA ME IS ACQUIRABLE UNDER THE ULCR ACT AS SURPLUS LAND UNDER SE CTION 10 OF THE ACT. AS PER SECTION 11(1)(B)(I) OF THE ULCR ACT, THE VALUE AT WHICH THE SURPLUS LAND COULD BE ACQUIRED IS AT RS.10/- P ER SQ. MTR. IN OTHER WORDS, THE LAND FOR THE PURPOSE OF WEALTH TAX H AS TO BE VALUED IN THE HANDS OF ASSESSEE @ RS.10/- PER SQ.MTR. IT HAS BEEN HELD IN VARIOUS DECISIONS THAT NON-CONSIDERATION OF THE DEC ISIONS OF THE HONBLE SUPREME COURT OR THE JURISDICTIONAL HIGH COUR T WHICH WAS CITED DURING THE COURSE OF HEARING WILL CONSTITUTE A MIS TAKE APPARENT FROM RECORD WHICH CALLS FOR RECTIFICATION. WE, THERE FORE, MODIFY PARA 6.3 OF THE ORDER WHICH WOULD READ AS UNDER:- 6.3. THE LEARNED CWT(A) HAD VALUED CATEGORY P LAND, NAMELY, RESERVED ON-BUILDABLE LAND, ADMEASURING 49746 SQ.FT. @ RS. 60/- PER SQ.FT. BEING HALF THE VALUE OF THE FREEHOLD LAND . THIS ISSUE IS THE MOST CONTENTIOUS ISSUE. THE LEARNED COUNSEL OF THE ASSESSE E RELIED ON THE DECISION OF HON'BLE SUPREME COURT IN THE CASE OF DATTATRAYA SHANKARBHAT AMBALGI AND OTHERS, VS. STATE OF MAHARASHT RA AND OTHERS, AIR 1989 SC 1796. THE HON'BLE COURT HELD THA T THE LAND TO THE EXTENT WHICH FALLS WITHIN THE CEILING AREA STAND S IN A CLASS DIFFERENT FROM THE LAND WHICH IS IN EXCESS OF THE CEIL ING AREA AND IS LIABLE TO BE DECLARED SURPLUS TO GIVE EFFECT TO THE P URPOSE AND OBJECT OF THE ACT. THE PROVISIONS OF THE ULC ACT ARE APPLICABLE WITH REGARD TO VACANT LAND. FOR SOME FORTUITOUS CIRCUMSTANC E A PARTICULAR CATEGORY OF LAND MAY NOT FALL WITHIN THE DEFINITION OF VACANT LAND AND THE PROVISIONS WITH REGARD TO VACANT LAND CAN OBVIOUSLY NOT BE APPLICABLE TO SUCH LAND. THE LANDS FA LLING UNDER THE TWO CATEGORIES CONSTITUTE SEPARATE CLASSES AND CANNOT CONSEQUENTLY BE TREATED ALIKE. ONCE THE LAND FALLS BE YOND THE CEILING LIMIT PRESCRIBED BY THE ACT AND IS CAPABLE OF BEING ACQUIRED AS SURPLUS LAND U/S 10 OF THE ACT, IT WOULD BE WHOLLY I NAPPROPRIATE TO ACQUIRE THE SAME VERY LAND OR A PORTION THEREOF U NDER THE MAHARASHTRA ACT NO. 37 OF 1966 I.E. TOWN PLANNING AC T IN AS MUCH AS IT WOULD INTER-ALIA APPARENTLY RESULT IN MISUSE OF PUBLIC FUNDS BY GRANTING HIGHER COMPENSATION WHEN THE PURPOSE OF A CQUISITION CAN BE ACHIEVED ON PAYMENT OF THE LESSER AMOUNT OF CO MPENSATION PRESCRIBED IN SECTION 11 OF THE ULC ACT. THE DECISION OF THE HONBLE 8 MA NOS.03 TO 11/PN/2008 & M.A.NOS. 33 TO 40/PN/2007 COURT FAIRLY LAYS DOWN THAT LANDS BELOW CEILING LIMIT AND LAND ABOVE THE CEILING LIMIT CAN BE ACQUIRED UNDER THE ULC ACT OR UNDER THE TOWN PLANNING ACT. THE COMPENSATION PAYABLE UNDER T HE TOWN PLANNING ACT IS HIGHER THAN THE COMPENSATION PAYABLE UNDER THE ULC ACT. BUT, IT WOULD AMOUNT TO MISAPPROPRIATION O F PUBLIC FINDS IF SUCH LAND IS ACQUIRED UNDER THE TOWN PLANNING ACT BY PAYING HIGHER COMPENSATION THAN UNDER THE ULC ACT BY PAYING LOWER AMOUNT OF COMPENSATION. IN OTHER WORDS, THE HONBLE SUPREME COURT HELD THAT AS LONG AS THE LAND FALLS UNDER THE UL C ACT, IT SHOULD BE ACQUIRED ONLY UNDER THAT ACT AND NOT UNDER THE T OWN PLANNING ACT. LOOKING TO THIS AND OTHER DECISIONS, REFERRED TO EARLIER, UNDER THE ULC ACT, IT IS CLEAR THAT THE AFORESAID CATEGORY OF LAND CANNOT BE VALUED ON THE BASIS OF FAIR MARKET VALUE AND SUCH LAND HAS TO BE VALUED BY TAKING RESTRICTION OF THE ULC ACT INTO ACC OUNT. IN THE JUDGEMENT IN THE CASE OF DATTATRAYA SHANKARBHAI AMB ALGI AND OTHERS (SUPRA) THE HONBLE SUPREME COURT HAS HELD A S UNDER : 6. IT IS IN THIS BACKGROUND THAT THE SUBMISSION OF LEARNED COUNSEL FOR THE PETITIONERS ABOUT DISCRIMINATION IN THE MAT TER OF IMPLEMENTATION OR TAKING ACTION UNDER THE ACT HAS T O BE CONSIDERED. WHILE ELABORATING THIS ARGUMENT OF DISC RIMINATION IT WAS POINTED OUT BY LEARNED COUNSEL FOR THE PETITION ERS THAT IF LAND BELONGING TO 'A' AND 'B' WITHIN AN URBAN AGGLOMERAT ION IS RESERVED FOR A PUBLIC PURPOSE UNDER DEVELOPMENT SCHEME AND ' A' IS HOLDING LAND WITHIN CEILING AREA WHEREAS 'B' HOLDS LAND IN EXCESS OF SUCH CEILING AREA, 'A' WILL GET COMPENSATION UNDER THE M AHARASHTRA ACT NO. 37 OF 1966 WHEREAS 'B' WILL GET COMPENSATION UN DER THE CEILING ACT AND THE BASIS AND METHOD OF COMPENSATION WILL D RASTICALLY VARY. IN SUPPORT OF THIS SUBMISSION RELIANCE WAS PL ACED ON A DECISION OF THIS COURT IN NAGPUR IMPROVEMENT TRUST & ANOTHER V. VITHAL RAO & OTHERS , [1973] 3 S.C.R. PAGE 39. IN THAT CASE LAND WAS SOUGHT TO BE ACQUIRED UNDER THE NAGPUR IMPROVEMENT TRUST ACT. 1936. IN A PETITION UNDER ARTICLES 226 AND 227 OF T HE CONSTITUTION THE VALIDITY OF THE NAGPUR IMPROVEMENT TRUST ACT WA S CHALLENGED INTER ALIA ON THE GROUND THAT THE SAID ACT WAS IN V IOLATION OF ARTICLE 14 OF THE CONSTITUTION INASMUCH AS IT EMPOWERED THE A CQUISITION OF LANDS AT PRICES LOWER THAN THOSE WHICH COULD HAVE B EEN PAYABLE IF THEY HAD BEEN ACQUIRED UNDER THE LAND ACQUISITION A CT . THE WRIT PETITION WAS ALLOWED BY THE HIGH COURT AND IT WAS H ELD THAT PARAGRAPHS 10(2) AND 10(3) IN SO FAR AS THEY ADDED A NEW CLAUSE 3(A) TO SECTION 23 AND A PROVISO TO SUB- SECTION (2) OF SECTION 23 OF THE LAND ACQUISITION ACT, 1894 WERE ULTRA VIRES AS VIOLATING THE GUARANTEE OF ARTICLE 14 OF THE CONSTITUTION. 7. SUFFICE IT TO SAY, SO FAR AS THIS SUBMISSION IS CONCERNED THAT THE LAND TO THE EXTENT WHICH FALLS WITHIN THE CEILING A REA STANDS IN A CLASS DIFFERENT FROM THE LAND WHICH IS IN EXCESS OF THE CEILING AREA AND IS LIABLE TO BE DECLARED SURPLUS TO GIVE EFFECT TO THE PURPOSE AND OBJECT OF THE ACT.' WHAT IS THE PURPOSE AND OBJ ECT OF THE ACT HAS ALREADY BEEN NOTICED EARLIER. FURTHER UNLIKE TH E NAGPUR IMPROVEMENT TRUST ACT, 1936 THE VALIDITY WHEREOF WA S 'CHALLENGED IN THE CASE OF VITHAL RAO(SUPRA), THE ACT HAS BEEN PLACED IN THE 9TH SCHEDULE. AS A RESULT THEREOF THE ACT COMES WITHIN THE PROTECTIVE UMBRELLA OF ARTICLE 31-B OF THE CONSTITUTION WHICH WAS NOT AVAILABLE TO THE NAGPUR IMPROVEMENT TRUST ACT. 9 MA NOS.03 TO 11/PN/2008 & M.A.NOS. 33 TO 40/PN/2007 8. THE DECISION IN THE CASE OF VITHAL RAO (SUPRA) C AME UP FOR CONSIDERATION BEFORE A CONSTITUTION BENCH OF THIS C OURT WITH REFERENCE TO BOMBAY TOWN PLANNING ACT, 1954 IN PRAK ASH CHAND AMICHAND SHAH V. STATE OF GUJARAT AND OTHERS , [1986] 1 S.C.C. PAGE 581. IT WAS HELD: 'IN ORDER TO APPRECIATE THE CONTENTIONS OF THE APPE LLANT IT IS NECESSARY TO LOOK AT THE OBJECT OF THE LEGISLATION IN QUESTION AS A WHOLE. THE OBJECT OF THE ACT IS NOT JUST ACQUIRIN G A BIT OF LAND HERE OR A BIT OF LAND THERE FOR SOME PUBLIC PURPOSE . IT CONSISTS OF SEVERAL ACTIVITIES WHICH HAVE AS THEIR ULTIMATE OBJECT THE ORDERLY DEVELOPMENT OF AN URBAN AREA. IT ENVISAGES THE PREPARATION OF A DEVELOPMENT PLAN, ALLOCATION OF LA ND FOR VARIOUS PRIVATE AND PUBLIC USES, PREPARATION OF A T OWN PLANNING SCHEME AND MAKING PROVISIONS FOR FUTURE DEVELOPMENT OF THE AREA IN QUESTION. THE VARIOUS ASPECTS OF A TOWN PLA NNING SCHEME HAVE ALREADY BEEN SET OUT. ON THE FINAL TOWN PLANNING SCHEME COMING INTO FORCE UNDER SECTION 53F OF THE ACT THERE IS AN AUTOMATIC VESTING OF ALL LANDS REQUIRED BY THE L OCAL AUTHORITY. IT IS NOT A CASE WHERE THE PROVISIONS OF THELAND AC QUISITION ACT , 1894 HAVE TO BE SET IN MOTION EITHER BY THE COLLECT OR OR BY THE GOVERNMENT.' IT WAS FURTHER HELD: 'THE PROVISION UNDER CONSIDERATION IN THE ABOVE DEC ISION CORRESPONDS TO SECTION 11 AND TO SECTION 84 OF THE ACT, WHICH WE ARE NOW CONSIDERING. SECTION 59 OF THE NAGPUR IMPROVEMENT TRUST ACT , 1936 PROVIDED THAT THE TRUST MIGHT, WITH THE PREVIOUS SANCTION OF THE STATE GOVERNMENT ACQUI RE LAND UNDER THE PROVISIONS OF THE LAND ACQUISITION ACT , 1894 AS MODIFIED BY THE PROVISIONS OF THE SAID ACT FOR CARR YING OUT ANY OF THE PURPOSES OF THE SAID ACT. BUT THE PROVISIONS WHICH ARE QUESTIONED BEFORE US ARE OF A DIFFERENT PATTERN ALT OGETHER. THEY DEAL WITH THE PREPARATION OF A SCHEME FOR THE DEVEL OPMENT OF THE LAND. ON THE FINAL SCHEME COMING INTO FORCE THE LANDS AFFECTED BY THE SCHEME WHICH ARE NEEDED FOR THE LOC AL AUTHORITY FOR PURPOSES OF THE SCHEME AUTOMATICALLY VEST IN TH E LOCAL AUTHORITY. THERE IS NO NEED TO SET IN MOTION THE PR OVISIONS OF THE LAND ACQUISITION ACT , 1894 EITHER AS IT IS OR AS MODIFIED IN THE CASE OF ACQUISITION UNDER SECTION 11 OR SECTION 84 OF THE ACT. THEN THE TOWN PLANNING OFFICER IS AUTHORISED T O DETERMINE WHETHER ANY RECONSTITUTED PLOT CAN BE GIVEN TO A PE RSON WHOSE LAND IS AFFECTED BY THE SCHEME. UNDER SECTION 51(3) OF THE ACT THE FINAL SCHEME AS SANCTIONED BY THE GOVERNMENT HA S THE SAME EFFECT AS IF IT WERE ENACTED IN THE ACT. THE S CHEME HAS TO BE READ AS PART OF THE ACT. UNDER SECTION 53 OF THE ACT ALL RIGHTS OF THE PRIVATE OWNERS IN THE ORIGINAL PLOTS WOULD D ETERMINE AND CERTAIN CONSEQUENTIAL RIGHTS IN FAVOUR OF THE OWNER S WOULD ARISE THEREFROM. IF IN THE SCHEME, RECONSTITUTED OR FINAL PLOTS ARE ALLOTTED TO THEM THEY BECOME OWNERS OF SUCH FINAL P LOTS SUBJECT TO THE RIGHTS SETTLED BY THE TOWN PLANNING OFFICER IN THE FINAL SCHEME. IN SOME CASES THE ORIGINAL PLOT OF AN OWNER MIGHT COMPLETELY BE ALLOTTED TO THE LOCAL AUTHORITY FOR A PUBLIC PURPOSE. SUCH PRIVATE OWNER MAY BE PAID COMPENSATIO N OR A RECONSTITUTED PLOT IN SOME OTHER PLACE. IT MAY BE A SMALLER OR A BIGGER PLOT. IT MAY BE THAT IN SOME CASES IT MAY NO T BE POSSIBLE TO ALLOT A FINAL PLOT AT ALL. SECTIONS 67 TO 71 OF THE ACT PROVIDE FOR CERTAIN FINANCIAL ADJUSTMENTS REGARDING PAYMENT OF MONEY TO 10 MA NOS.03 TO 11/PN/2008 & M.A.NOS. 33 TO 40/PN/2007 THE LOCAL AUTHORITY OR TO THE OWNERS OF THE ORIGINA L PLOTS. THE DEVELOPMENT AND PLANNING CARRIED OUT UNDER THE ACT IS PRIMARILY FOR THE BENEFIT OF PUBLIC. THE LOCAL AUTHORITY IS U NDER AN OBLIGATION TO FUNCTION ACCORDING TO THE ACT. THE LO CAL AUTHORITY HAS TO BEAR A PART OF THE EXPENSES OF DEVELOPMENT. IT IS IN ONE SENSE A PACKAGE DEAL. THE PROCEEDINGS RELATING TO T HE SCHEME ARE NOT LIKE ACQUISITION PROCEEDINGS UNDER THE LAND ACQUISITION ACT, 1894. NOR ARE THE PROVISIONS OF THE LAND ACQUI SITION ACT , 1894 MADE APPLICABLE EITHER WITHOUT OR WITH MODIFIC ATIONS AS IN THE CASE OF THE NAGPUR IMPROVEMENT TRUST ACT, 1936. WE DO NOT UNDERSTAND THE DECISION IN NAGPUR IMPROVEMENT TRUST CASE AS LAYING DOWN GENERALLY THAT WHEREVER LAND IS TAKEN A WAY BY THE GOVERNMENT UNDER A SEPARATE STATUTE COMPENSATION SH OULD BE PAID UNDER THE LAND ACQUISITION ACT, 1894 ONLY AND IF THERE IS ANY DIFFERENCE BETWEEN THE COMPENSATION PAYABLE UND ER THE LAND ACQUISITION ACT , 1894 AND THE COMPENSATION PAYABLE UNDER THE STATUTE CONCERNED THE ACQUISITION UNDER T HE STATUTE WOULD BE DISCRIMINATORY. THAT CASE IS DISTINGUISHAB LE FROM THE PRESENT CASE.' 9. IN THE INSTANT CASE ALSO THE PURPOSE AND OBJECT OF THE ACT BEING ENTIRELY DIFFERENT FROM JUST ACQUIRING A BIT OF LAN D HERE OR A BIT OF LAND THERE FOR SOME PUBLIC PURPOSE, AND THE ACT BEING A SELF-CONTAINED CODE HAVING AN OVERRIDING PROVISION IN SECTION 42 , THE DECISION IN THE CASE OF VITHAL RAO (SUPRA) IS WHOLLY INAPPLICABLE I N SO FAR AS ACQUISITION OF SURPLUS LAND UNDER THE ACT IS CONCER NED. 10. IT WAS ALSO URGED THAT IF ONE PERSON HOLDS LAND IN EXCESS OF CEILING AREA AND THE EXCESS THEREIN IS RESERVED FOR A PUBLIC PURPOSE UNDER THE DEVELOPMENT SCHEME THERE WILL STILL BE DI SCRIMINATORY RESULTS IF THE LAND IN EXCESS OF CEILING IS RESERVE D FOR DIFFERENT PURPOSES. ACCORDING TO LEARNED COUNSEL IF THE PURPO SE OF RESERVATION IS CONSTRUCTION OF BUILDINGS THE LAND WILL BE GIVEN COMPENSATION UNDER THE CEILING ACT WHEREAS WHEN THE PURPOSE OF RESERVA TION IS PARKS, GARDENS ETC. COMPENSATION WOULD BE GIVEN UNDER THE MAHARASHTRA ACT 37 OF 1966. THE RESULT, ACCORDING TO LEARNED COUNSE L, IS DISCRIMINATORY. THIS SUBMISSION AGAIN HAS APPARENTLY NO SUBSTANCE I NASMUCH AS THE PROVISIONS OF THE CEILING ACT ARE APPLICABLE WITH R EGARD TO VACANT LAND AND IF FOR SOME FORTUITOUS CIRCUMSTANCES A PARTICUL AR CATEGORY OF LAND DOES NOT FAIL WITHIN THE DEFINITION OF VACANT LAND THE PROVISIONS WITH REGARD TO VACANT LAND CAN OBVIOUSLY NOT BE APPLIED TO SUCH LAND. HERE AGAIN, THE LANDS FAILING UNDER THE TWO CATEGORIES C ONSTITUTE SEPARATE CLASSES AND CANNOT CONSEQUENTLY BE TREATED ALIKE. 11. LEARNED COUNSEL FOR THE PETITIONERS ALSO REFERR ED .TO SOME OTHER CASES WHEREIN A SIMILAR VIEW, AS IN THE CASE OF VIT HAL RAO (SUPRA), WAS TAKEN BUT WE DO NOT CONSIDER IT NECESSARY TO DEAL W ITH THOSE CASES SEPARATELY FOR THE REASONS ALREADY STATED ABOVE. WI TH REGARD TO THE SUBMISSION OF LEARNED COUNSEL THAT THE QUESTION AS TO WHETHER A LAND RESERVED FOR PUBLIC PURPOSE UNDER THE MAHARASHTRA A CT NO. 37 OF 1966 SHOULD BE ACQUIRED UNDER THAT ACT OR UNDER SECTION 10 OF THE ACT HAS BEEN LEFT TO THE SWEET WILL OF THE AUTHORITY CONCER NED, WE ARE OF THE OPINION THAT IT IS NOT SO. ONCE THE LAND FALLS BEYO ND THE CEILING LIMIT PRESCRIBED BY THE ACT AND IS CAPABLE OF BEING ACQUI RED AS SURPLUS LAND UNDER SECTION 10 OF THE ACT IT WOULD BE WHOLLY INAPPROPRIATE TO ACQ UIRE THE SAME VERY LAND OR A PORTION THEREOF UNDER THE M AHARASHTRA ACT NO. 37 OF 1966 INASMUCH AS IT WOULD INTER ALIA APPARENT LY RESULT IN MISUSE OF PUBLIC FUNDS BY GRANTING HIGHER COMPENSATION WHE N THE PURPOSE OF 11 MA NOS.03 TO 11/PN/2008 & M.A.NOS. 33 TO 40/PN/2007 ACQUISITION CAN BE ACHIEVED ON PAYMENT OF THE LESSE R AMOUNT OF COMPENSATION PRESCRIBED IN SECTION 11 OF THE ACT. 12. IN THE CASE OF PARSHOTTAMDAS PATEL (SUPRA), THE STATE GOVERNMENT OF GUJARAT ISSUED A NOTIFICATION UNDER S ECTION 4(1) OF THE LAND ACQUISITION ACT , 1894 STATING THAT THE LANDS OF THE RESPONDENTS WERE LIKELY TO BE NEEDED FOR THE PUBLIC PURPOSE OF PROVIDING HOUSING ACCOMMODATION FOR THE EMPLOYEES OF THE MUNICIPAL CO RPORATION. SUBSEQUENTLY, A NOTIFICATION UNDER SECTION 6 OF THE SAID ACT DECLARING THAT THE AFORESAID LANDS ALONG WITH THE OTHER LANDS WERE NEEDED FOR THE SAID PUBLIC PURPOSE, WAS ALSO MADE. IN THE MEANTIME , THE ACT CAME INTO FORCE AND THE RESPONDENTS FILED WRIT PETITIONS CONTENDING INTER ALIA THAT THE ACQUISITION PROCEEDINGS UNDER THE LAND ACQ UISITION ACT SHOULD BE PROCEEDED WITH AND THE ACQUISITION PROCEE DINGS TO THE EXTENT IT RELATED TO THE SURPLUS LAND UNDER THE CEI LING LAW SHOULD BE DROPPED. THE WRIT PETITIONS WERE ALLOWED. REVERSING THE JUDGMENT OF THE HIGH COURT, THIS COURT HELD: 'THE DECLARATION MADE BY THE HIGH COURT IN THESE CA SES THAT THE LAND ACQUISITION PROCEEDINGS DID NOT SUFFER FROM AN INFIRMITY WHICH INDIRECTLY SUGGESTS THAT THE PROCEEDINGS SHOU LD GO ON IS AGAIN ERRONEOUS. IT IS OPEN TO THE STATE GOVERNMENT TO DROP THE LAND ACQUISITION PROCEEDINGS AND TO WITHDRAW THE LA NDS FROM ACQUISITION UNDER SECTION 48 OF THE LAND ACQUISITION ACT, 1894. WE ARE INFORMED THAT THE STATE GOVERNMENT HAS IN FA CT SUBSEQUENTLY WITHDRAWN THESE LANDS FROM ACQUISITION . THE PROCEEDINGS UNDER THE LAND ACQUISITION ACT , 1894 CANNOT THEREFORE HAVE ANY BEARING ON THE QUESTION WHETHER THE LANDS IN QUESTION ARE VACANT LANDS OR NOT FOR PURPOSES OF TH E CEILING LAW CONTAINED IN THE ACT. WHEN THE LANDS IN QUESTION OR BULK OF THEM ARE LIKELY TO BE ACQUIRED UNDER THE CEILING LA W BY PAYING COMPENSATION AS PROVIDED THEREIN, IT WOULD NOT BE P ROPER TO COMPEL THE GOVERNMENT TO ACQUIRE THEM UNDER THE PRO VISIONS OF THE LAND ACQUISITION-ACT, 1894. AS ALREADY STATE D THE ACT HAS THE OVERRIDING EFFECT ON ALL OTHER LAWS.' 13. IN VIEW OF THE FOREGOING DISCUSSION, WE FIND NO MERIT IN THESE WRIT PETITIONS AND THEY ARE ACCORDINGLY DISMISSED. THERE SHALL, HOWEVER, BE NO ORDER AS TO COSTS. IN VIEW OF THE PROVISIONS OF ULCR ACT AND THE RATIO LAID DOWN BY THE HONBLE SUPREME COURT IN DATTATRAYA SHANKARBHAT AMB ALGI & OTHERS (SUPRA), WE DIRECT THE ASSESSING OFFICER TO VERIFY THE SURPLUS LAND AND ADOPT THE RATE @ RS.10/- PER SQ.MTR. AND COMPUTE TH E NET WEALTH IN THE HANDS OF ASSESSEE. 7. THE THIRD GRIEVANCE OF THE ASSESSEE IN THE ABOVE MISCE LLANEOUS APPLICATIONS IS THAT AT PARA 6.4, THE TRIBUNAL HAS VALUED THE CATEGORY S LAND UNDER THE URBAN CEILING LAND CEILING ACT AT RS.5/- PER SQ.MTR BY FOLLOWING SECTION 11 (1)(A)(I) OF THE URBAN CEILING LAND ACT AND IT SHOULD BE MODIFIED TO RS.10/-. IN ABSENCE OF AN Y 12 MA NOS.03 TO 11/PN/2008 & M.A.NOS. 33 TO 40/PN/2007 OBJECTION BY THE LD. DEPARTMENTAL REPRESENTATIVE ON TH IS ISSUE WE DIRECT THAT PARA 6.4 OF THE ORDER OF THE TRIBUNAL WOULD READ AS UNDER : 6.4 IN SO FAR AS THE CATEGORY S LAND IS CONCERNED, IT IS TO BE VALUED AT THE RATE PRESCRIBED UNDER THE ULC ACT, NA MELY RS.10/- PER SQ.MTR. PRESCRIBED U/S.11 OF THE ULC ACT. 8. THE BALANCE ORDER IN THE CONSOLIDATED WEALTH TAX APPEA LS DATED 16-09-2005 WILL REMAIN SAME. 9. SINCE THE CONTENTS OF THE MISCELLANEOUS APPLICATIONS FOR OTHER YEARS ARE IDENTICAL TO THAT OF M.A. NO.03/PN/2008, THEREFOR E, THE RATIO OF M.A. NO.03/PN/2008 SHALL BE APPLICABLE TO M.A. NO. 04/PN/2008 TO M.A.NO.10/PN/2008. 10. IN THE RESULT, THE MISCELLANEOUS APPLICATION NO. 03/PN/2 008 TO M.A.NO.10/PN/2008 ARE ALLOWED. MA NOS. 33 TO 36/PN/2007 SHRI ZAINUDDIN KURBANHUS SAIN POONAWALA : 11. THE ASSESSEE HAS RAISED THE FOLLOWING ISSUES IN THE MISCELLANEOUS APPLICATIONS FILED BY IT WHICH READ AS UNDER : THE HONBLE TRIBUNAL BY ITS ORDER DATED 24 TH NOVEMBER 2006 PARTLY ALLOWED THE APPEAL OF THE ASSESSEE. 1) THE EXCESS VACANT LAND AND NON-BUILDABLE LAND : IT HAS BEEN ORDERED TO APPLY THE RATIO AS PER PARA N O. 6.4 AND 6.3 OF THE EARLIER ORDER DATED 16-09-2005 OF THE I.T.A.T. PUNE IN THE CASE OF THE ASSESSEE PERTAINING THE SAME PIECE OF THE LAND IN W.T.A . NO. 21, 22, 23 AND 24 FOR A. Y. 1991-92, AS THERE IS NO DEVELOPMENT SINCE THE EARLIER ASSESSMENT YEARS AND FACTS AND CIRCUMSTANCES ARE IDENTICAL. IT IS HUMBLY SUBMITTED THOUGH THERE ARE NO DEVELOPMEN T SINCE THE EARLIER ASSESSMENT YEARS AND FACTS AND CIRCUMSTANCES THOUGH REMAINED IDENTICAL, THE LAW OF THE LAND, I.E. THE DEFINITION OF THE CHARGEABLE WEALTH UNDER THE WEALTH-TAX ACT, 1957 ITSELF CHANGED AND AS SUCH THE APPLICATION OF THE SAME RATIO WITHOUT TAKING INTO CO NSIDERATION THE AMENDED PROVISIONS OF SECTION 2(EA)(V)(B) OF THE WEALT H-TAX ACT, 1957, AS THERE IS DRASTIC CHANGE IN THE DEFINITION OF ASSETS W. E.F. 1ST APRIL, 1993 13 MA NOS.03 TO 11/PN/2008 & M.A.NOS. 33 TO 40/PN/2007 AS APPLICABLE TO THE A.Y. 1993-94 AND SUBSEQUENT YEAR, WHEREIN THE SAID DEFINITION EXCLUDES LAND ON WHICH CONSTRUCTION OF A B UILDING IS NOT PERMISSIBLE UNDER ANY LAW FOR THE TIME BEING IN FORCE , I.E., A. ON THE EXCESS VACANT LAND UNLESS EXEMPTION U/S.20 OF THE URBAN LAND (CEILING & REGULATION) ACT, 1976 HAS BEEN GRANT ED BY THE STATE GOVERNMENT. B. CONSTRUCTION OF BUILDING IS NOT PERMISSIBLE ON THE LAND UNDER NON- BUILDABLE RESERVATIONS U/S.18 & 43 OF THE MAHARASHTRA T OWN PLANNING ACT, 1966. C. THE HONBLE MEMBERS HAVE NOT CONSIDERED THE DIRECTLY APPLICABLE RATIO OF THE DY.CIT VS. SMT. KAMAKSHIDEVI (2002) 75 T TJ (BANG) 752 QUOTED IN THE GROUNDS OF APPEAL _ (PARA NO.1) IN FAV OUR OF THE ASSESSEE WITH SIMILAR FACTS AND ALSO PLEADED BY THE COUNSEL OF THE ASSESSEE AT THE TIME OF THE HEARING OF THE CASE, WHILE P ASSING THE ORDER. 2. THE HONBLE MEMBERS HAVE NOT CONSIDERED THE SIXTH G ROUND OF APPEAL, WHILE PASSING THE ORDER. 3. IT IS THEREFORE PRAYED THAT, IT IS ABSOLUTELY ESSENTI AL IN THE INTEREST OF JUSTICE AND EQUITY TO ENTERTAIN THIS MISCELLANEOUS A PPLICATION AND DIRECTIONS ARE REQUIRED TO BE GIVEN FOR THE AMENDMEN T AND RECTIFICATION OF THE ABOVE APPARENT MISTAKES ON RECORD, FOR THE YEA R UNDER ASSESSMENT. 11.1 THE ASSESSEE HAS ALSO RAISED ADDITIONAL GROUND WHICH READS AS UNDER : 1. IT IS REQUESTED TO INCLUDE THE FOLLOWING ADDITION AL GROUND IN THE PROCEEDING GOING ON IN THE ABOVE MISC. APPEALS. ON THE FACTS AND CIRCUMSTANCE OF THE CASE, AS REQUESTED BY THE ASSESSEE TO THE A.O. AND THE CIT(A) TO ADOPT THE RATE OF THE FREEHOLD LAND AS PER THE A.V.O. SOLAPURS VALUATION REPORT VIDE HIS THREE LETTERS DATED 19-03- 1991 FOR A.Y. 1O994-95 @RS.2005.00 PER SQ.M. FOR A.Y. 1995-96 @ RS.2187.00 PER SQ.M FOR A.Y. 1996-97 @RS.2370.00 PER SQ .M (PAGE NO.32, 41 & 50 OF THE PAPER BOOK IN WTA NO.9-11/PN/ 03) LESS REBATE OF 15% AS CLAIMED BY THE ASSESSEE AND ALSO ALLOWED BY THE AV O, SOLAPUR IN HIS VALUATION REPORT IN CASE OF MR. HATIM A. POONAWAL A TOWARDS JOINT OWNERSHIP ETC., AND ALLOWED TO THE ASSESSEEE FOR A.Y. 19 94-95 BY THE A.O. IN HIS ORDER DATED 20-03-2001. AS THE AVO HAS NOT SUBMITTED VALUATION REPORT FOR A.Y . 1997-98, THE ASSESSEE HAS REQUESTED TO ADOPT HIS OWN RATE OF RS.2530.00 PER SQ.M LESS 15% REBATE FOR THE FREEHOLD LAND (PAGE NO.27 OF THE PAPER BOOK IN WTA NO.8-11/PN/03) AND APPLIED TO THE ASSESSMENT FOR A .Y.1997-98. 1.1 SUCH OTHER ORDER/S AND DIRECTION/S IN THE INTEREST OF JUSTICE BE PASSED. 14 MA NOS.03 TO 11/PN/2008 & M.A.NOS. 33 TO 40/PN/2007 12. THE LD. COUNSEL FOR THE ASSESSEE REFERRING TO THE MISC ELLANEOUS APPLICATIONS SUBMITTED THAT THE AO HAS TAKEN PROPORTIONA TE VALUE OF THE DEVELOPMENT AGREEMENT ON THE BASIS OF THE REPORT O F THE DVO WHICH WAS DISPUTED BY THE ASSESSEE BEFORE THE CWT(A) AND THE TRIBUNAL. REFERRING TO PARA 2.1 AT PAGE 2 OF THE ORDER OF THE TRIBUNAL HE SUBMITTED THAT THE TRIBUNAL IN THE SAID DECISION HAS HE LD THAT THERE IS NO DISPUTE REGARDING THE FREEHOLD LAND IN THE PRE SENT APPEALS. REFERRING TO THE ORDER OF THE CWT(A) ON THIS ISSU E HE SUBMITTED THAT THE CWT(A) AT PARA 11 MENTIONS NO DISPUTE FOR FREEHOLD LAND IS WRONG. REFERRING TO THE DECISION OF THE HON BLE BOMBAY HIGH COURT REPORTED IN THE CASE OF PRABHAKAR KE SHAV KUNDRE & OTHER VS. CIT REPORTED IN 235 CTR 119 HE SU BMITTED THAT IN CASE OF NON BUILDABLE LAND THE VALUE IS NIL IRRESPECTIVE OF THE RATE AT WHICH THE ASSESSEE SELLS THE PROPERTY. HE FURTHER SU BMITTED THAT THE TRIBUNAL AT PARA 4.3 OF THE ORDER HAS APPLIED THE RAT E OF RS.5/- PER SQ.MTR WHEREAS AS PER THE AMENDMENTS OF PROVISIONS OF SECTION 2(EA) (V) THIS SHOULD BE NIL. ALTHOUGH A SPECIFIC GROUND WAS TAK EN, HOWEVER, THE TRIBUNAL HAS NOT CONSIDERED THE SAME. HE A CCORDINGLY SUBMITTED THAT THIS ISSUE MAY BE DECIDED IN FAVOUR OF THE ASSESSEE BY MODIFYING THE ORDER OF THE TRIBUNAL OR THE ORDER MAY B E RECALLED FOR FRESH ADJUDICATION. 13. WE HAVE HEARD THE RIVAL ARGUMENTS MADE BY BOTH TH E SIDES. WE FIND IN THE INSTANT CASE THE TRIBUNAL WHILE ADJUDICATING T HE GROUNDS RAISED BY THE ASSESSEE FOR THE IMPUGNED ASSES SMENT YEAR HAS NOTED THAT THE LAND WAS DIVIDED INTO 3 CATEGORIES NA MELY, (1) FREEHOLD LAND, (2) EXCESS LAND, AND (3) NON-BUILDABLE LAND. THERE IS NO DISPUTE REGARDING THE FREEHOLD LAND IN THE PRESENT APP EALS. SO FAR 15 MA NOS.03 TO 11/PN/2008 & M.A.NOS. 33 TO 40/PN/2007 AS THE AREA OF EXCESS LAND IS CONCERNED, THE TRIBUNAL FOLLO WING ITS DECISION IN THE CASE OF MR. MOHAMMAD KURBANHUSSAIN POONAW ALA AND MR. ZAINUDDIN KURBANHUSSAIN POONAWALA VIDE WTA NOS. 21 TO 24/PN/1998 DIRECTED THE AO TO VALUE THE SAID LAND AT RS .5/- PER SQ.MTR. SO FAR AS THE NON-BUILDABLE LAND IS CONCERNED THE TRIBUNAL AT PARA 4.3 OF THE ORDER FOLLOWING ITS ORDER IN THE CASE OF LATE SHRI T.H. POONAWALA AND OTHERS VIDE CONSOLIDATED ORDER DATED 16-09-20 05 DIRECTED THE AO TO ADOPT THE SAME VALUE AS DIRECTED IN THE SAID DECISION. 14. IT IS THE CASE OF THE ASSESSEE THAT SO FAR AS CATEGORY S LAND,I. E. EXCESS LAND IS CONCERNED, THE VALUE HAS TO BE ADOPTED AT RS.10/- PER SQ.MTR AS PRESCRIBED UNDER THE URBAN LAND CEILING (IN SHOR T ULC) ACT AS AGAINST RS.5/- PER SQ.MTR DIRECTED BY THE TRIBUNA L. SO FAR AS NON-BUILDABLE LAND IS CONCERNED, IT IS THE CASE OF THE ASSES SEE THAT SINCE THE LAND WAS COMING UNDER THE PURVIEW OF ULC ACT A ND IS NOT BUILDABLE, THEREFORE, IN VIEW OF THE NEWLY INSERTED EXPLANATI ON (B) TO SECTION 2(EA) (V) OF THE WEALTH TAX ACT, 1957, THE VALUE OF SU CH NON- BUILDABLE LAND IS NIL. FURTHER, IT IS ALSO THE SUBMISSION OF THE LD. COUNSEL FOR THE ASSESSEE THAT THE TRIBUNAL HAS FAILED TO C ONSIDER THE DECISION OF THE HONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF PRABHAKAR KESHAV KUNDRE & OTHERS (SUPRA) WHERE IT HAS BEEN HELD THAT IN CASE OF NON-BUILDABLE LAND THE VALUE HAS TO BE TAK EN AT NIL IRRESPECTIVE OF THE RATE AT WHICH THE ASSESSEE SELLS THE PROPERTY. WE FIND THE TRIBUNAL WHILE ADJUDICATING THE APPEALS OF THE ASSES SEE HAS THUS FAILED TO CONSIDER THE NEWLY INSERTED EXPLANATION (B) TO SECTION 2(EA) (V) OF THE WEALTH TAX ACT, 1957 WHICH ARE APPLICABLE FRO M A.Y. 1993-94 AND ONWARDS AS WELL AS THE DECISION OF THE JURISDIC TIONAL 16 MA NOS.03 TO 11/PN/2008 & M.A.NOS. 33 TO 40/PN/2007 HIGH COURT CITED (SUPRA). SIMILARLY, THE TRIBUNAL HAS ALSO NOT CORRECTLY DETERMINED THE VALUE OF CATEGORY S LAND WH ICH SHOULD BE RS.10/- PER SQ.MTR AS AGAINST RS.5/- PER SQ.MTR ADOPTED BY THE TRIBUNAL. THUS, CERTAIN MISTAKES HAVE CREPT IN THE ORDER OF THE TRIBUNAL WHICH REQUIRES RECTIFICATION. WE THEREFORE MODIFY PA RA NOS. 4.1 TO 4.4 OF THE ORDER OF THE TRIBUNAL IN WTA NOS. 4 TO 11 /PN/2003 WHICH SHOULD BE READ AS UNDER : 4.1 WE HAVE HEARD THE PARTIES AT LENGTH AND HAVE G ONE THROUGH THE MATERIAL AVAILABLE ON RECORD. WE FIND IN THE I NSTANT CASE THE ASSESSEE HAS INHERITED A PIECE OF LAND ALONG WITH M R. MOHAMMAD KURBANHUSSAIN POONAWALA FROM HIS FOREFATHERS. THE LAND WAS FOUND IN EXCESS OF THE CEILING LIMIT PRESCRIBED UND ER THE ULC ACT, 1976 WHICH CAME INTO EXISTENCE ON 17-02-1976. THE AREA OF LAND WAS DIVIDED INTO 3 CATEGORIES NAMELY, (1) FREEHOLD LAND-1610.09 SQ.MTR (2) EXCESS LAND-3064.99 SQ.MTR AND (3) NON-B UILDABLE LAND- 3551.48 SQ.MTR. THERE IS NO DISPUTE REGARDING THE VALUATION OF THE AREA OF THE FREEHOLD LAND. 4.2 SO FAR AS THE AREA OF EXCESS LAND IS CONCERNED, IN VIEW OF OUR DIRECTION IN THE CASE OF. MR. HAKIMUDDIN ALIMOHAMMA D POONAWALA THE LAND HAS TO BE VALUED AT THE RATE OF RS.10/- PE R SQ.MTR AS PRESCRIBED U/S.11 OF THE ULC ACT. 4.3 SO FAR AS THE NON-BUILDABLE LAND IS CONCERNED, WE FIND AS PER NEWLY INSERTED PROVISIONS OF SECTION 2(EA)(V) OF TH E WEALTH TAX ACT WHICH WAS INSERTED BY THE FINANCE ACT, 1992 W.E.F. 01-04-1993 ASSET INCLUDES URBAN LAND. AS PER EXPLANATION (B) TO PROVISIONS OF SECTION 2(EA)(V) OF THE WEALTH TAX ACT, URBAN LAND MEANS LAND SITUATE (I). . . . . . . . . . . . (II). . . . . . . . . . . . BUT DOES NOT INCLUDE LAND ON WHICH CONSTRUCTION OF A BUILDING IS NOT PERMISSIBLE UNDER ANY LAW FOR THE TIME BEING IN FOR CE IN THE AREA IN WHICH SUCH LAND IS SITUATED OR THE LAND OCCUPIED BY ANY BUILDING WHICH HAS BEEN CONSTRUCTED WITH THE APPROVAL OF THE APPROPRIATE AUTHORITY OR ANY UNUSED LAND HELD BY THE ASSESSEE F OR INDUSTRIAL PURPOSES FOR A PERIOD OF TWO YEARS FROM THE DATE OF ITS ACQUISITION BY HIM [ OR ANY LAND HELD BY THE ASSESSEE AS STOCK- IN-TRADE FOR A PERIOD OF [TEN] YEARS FROM THE DATE OF ITS ACQUISIT ION BY HIM];] 4.4 SINCE THE ASSESSMENT YEARS INVOLVED IN THE INST ANT APPEALS ARE FROM 1994-95 TO 1998-99, THEREFORE, IN VIEW OF THE NEWLY INSERTED EXPLANATION (B) TO SECTION 2(EA)(V) OF WEA LTH TAX ACT, SUCH LAND HAS TO BE EXCLUDED FROM THE PURVIEW OF WEALTH TAX. FURTHER, 17 MA NOS.03 TO 11/PN/2008 & M.A.NOS. 33 TO 40/PN/2007 THE HONBLE BOMBAY HIGH COURT IN THE CASE OF PRABHA KAR KESHAV KUNDRE & OTHERS (SUPRA) HAS HELD THAT IN CASE OF NO N-BUILDABLE LAND THE VALUE IS NIL IRRESPECTIVE OF THE RATE AT W HICH THE ASSESSEE SELLS THE PROPERTY. THEREFORE, IN VIEW OF THE NEW LY INSERTED EXPLANATION (B) TO SECTION 2(EA)(V) OF WEALTH TAX A CT AS WELL AS THE DECISION OF HONBLE BOMBAY HIGH COURT, THE ASSESSEE IS NOT LIABLE TO WEALTH TAX ON THE LAND HELD BY HIM WHICH IS NOT BUI LDABLE. THEREFORE, WE SET-ASIDE THE ORDER OF THE CIT(A) AND DIRECT THE AO TO EXCLUDE THE VALUE OF SUCH LAND FROM THE PURVIEW OF WEALTH TAX. GROUNDS RAISED BY THE ASSESSEE ARE ACCORDINGLY PART LY ALLOWED. MA NOS. 37 TO 40/PN/2007 - (SHRI MOHAMMAD KURBANHUSS AIN POONAWALA : 15. THE ASSESSEE HAS RAISED THE FOLLOWING ISSUES IN THE MISCELLANEOUS APPLICATIONS FILED BY IT WHICH READ AS UNDER : THE HONBLE TRIBUNAL BY ITS ORDER DATED 24 TH NOVEMBER 2006 PARTLY ALLOWED THE APPEAL OF THE ASSESSEE. 2) THE EXCESS VACANT LAND AND NON-BUILDABLE LAND : IT HAS BEEN ORDERED TO APPLY THE RATIO AS PER PARA N O. 6.4 AND 6.3 OF THE EARLIER ORDER DATED 16-09-2005 OF THE I.T.A.T. PUNE IN THE CASE OF THE ASSESSEE PERTAINING THE SAME PIECE OF THE LAND IN W.T.A. NO. 21, 22, 23 AND 24 FOR A. Y. 1991-92, AS THERE IS NO DEVELOPMENT SINCE THE EARLIER ASSESSMENT YEARS AND FACTS AND CIRCUMSTANCES ARE IDENTICAL. IT IS HUMBLY SUBMITTED THOUGH THERE ARE NO DEVELOPMEN T SINCE THE EARLIER ASSESSMENT YEARS AND FACTS AND CIRCUMSTANCES THOUGH REMAINED IDENTICAL, THE LAW OF THE LAND, I.E. THE DEFINITION OF THE CHARGEABLE WEALTH UNDER THE WEALTH-TAX ACT, 1957 ITSELF CHANGED AND AS SUCH THE APPLICATION OF THE SAME RATIO WITHOUT TAKING INTO CO NSIDERATION THE AMENDED PROVISIONS OF SECTION 2(EA)(V)(B) OF THE WEALT H-TAX ACT, 1957, AS THERE IS DRASTIC CHANGE IN THE DEFINITION OF ASSETS W. E.F. 1ST APRIL, 1993 AS APPLICABLE TO THE A.Y. 1993-94 AND SUBSEQUENT YEAR, WHEREIN THE SAID DEFINITION EXCLUDES LAND ON WHICH CONSTRUCTION OF A B UILDING IS NOT PERMISSIBLE UNDER ANY LAW FOR THE TIME BEING IN FORCE , I.E., A. ON THE EXCESS VACANT LAND UNLESS EXEMPTION U/S.20 OF THE URBAN LAND (CEILING & REGULATION) ACT, 1976 HAS BEEN GRANT ED BY THE STATE GOVERNMENT. B. CONSTRUCTION OF BUILDING IS NOT PERMISSIBLE ON THE LAND UNDER NON-BUILDABLE RESERVATIONS U/S.18 & 43 OF THE MAHARASHT RA TOWN PLANNING ACT, 1966. C. THE HONBLE MEMBERS HAVE NOT CONSIDERED THE DIRECTLY APPLICABLE RATIO OF THE DY.CIT VS. SMT. KAMAKSHIDEVI (2002) 75 TTJ (BANG) 752 QUOTED IN THE GROUNDS OF APPEAL - (PA RA NO.1) IN 18 MA NOS.03 TO 11/PN/2008 & M.A.NOS. 33 TO 40/PN/2007 FAVOUR OF THE ASSESSEE WITH SIMILAR FACTS AND ALSO PLEADED BY THE COUNSEL OF THE ASSESSEE AT THE TIME OF THE HEARING OF TH E CASE, WHILE PASSING THE ORDER. 2. THE HONBLE MEMBERS HAVE NOT CONSIDERED THE FIFTH GROUND OF APPEAL, WHILE PASSING THE ORDER. 3. IT IS THEREFORE PRAYED THAT, IT IS ABSOLUTELY ESSENTI AL IN THE INTEREST OF JUSTICE AND EQUITY TO ENTERTAIN THIS MISCELLANEOUS A PPLICATION AND DIRECTIONS ARE REQUIRED TO BE GIVEN FOR THE AMENDMEN T AND RECTIFICATION OF THE ABOVE APPARENT MISTAKES ON RECORD, FOR THE YEA R UNDER ASSESSMENT. 16. AFTER HEARING BOTH THE SIDES, WE FIND THE GROUNDS RAISE D BY THE ASSESSEE IN THE ABOVE MISCELLANEOUS APPLICATIONS ARE IDENTIC AL TO THE GROUNDS RAISED IN M.A.NO.33 TO 36/PN/2007. WE HAVE DECIDE D THE GROUNDS AND PARA NOS. 4.1 TO 4.4 OF THE COMBINED ORDER O F THE TRIBUNAL HAS ALREADY BEEN MODIFIED. THE MISCELLANEOUS APPLICA TIONS ARE ACCORDINGLY ALLOWED. M.A.NO.11/PN/2008 (MR. HAKIMUDDIN ALIMOHAMMAD POONAW ALA: 17. AFTER HEARING BOTH THE SIDES, WE FIND THE GROUNDS RAISE D BY THE ASSESSEE IN THE ABOVE MISCELLANEOUS APPLICATION ARE IDENTICA L TO THE GROUNDS RAISED IN M.A.NO.33 TO 36/PN/2007. WE HAVE ALREAD Y DECIDED THE GROUNDS AND THE ORDER OF THE TRIBUNAL HAS BEEN MODIFIED. FOLLOWING THE SAME REASONINGS, WE MODIFY PARA 28 OF THE ORDER OF THE TRIBUNAL WHICH SHOULD BE READ AS UNDER : ITA NO.23/PN/03 REVENUES APPEAL FOR A.Y. 1993-9 4 & CO. NO.65/PN/04 BY THE ASSESSEE IN THE CASE OF SHRI H.A . POONAWALA. --------------------------------------------------- ---------------------------------------- 28. AS THE FACTS AND GROUNDS OF APPEAL FOR THIS YEA R ARE SIMILAR TO THE FACTS AND GROUNDS OF APPEAL FOR A.Y. 1984-85, F OLLOWING OUR DECISION IN A.Y. 1984-85 THE APPEAL OF THE REVENUE IS DISMISSED. SO FAR AS CROSS OBJECTION IS CONCERNED, IN VIEW OF OUR ORDER IN THE CASE OF MR. Z.K. POONAWALA AND MR. MOHD. K. POONAWALA VI DE WTA NOS. 4 TO 7/PN/2003 AND WTA NO.11/PN/2003 THE VALUE OF NON -BUILDABLE LAND HAS TO BE NIL FOR WEALTH TAX PURPOSES. 19 MA NOS.03 TO 11/PN/2008 & M.A.NOS. 33 TO 40/PN/2007 18. IN THE RESULT, MISCELLANEOUS APPLICATIONS FILED BY THE RESP ECTIVE ASSESSEES ARE DISPOSED OF IN THE TERMS INDICATED ABOVE. ORDER PRONOUNCED IN THE OPEN COURT ON 19-02-2016. SD/- SD/- ( SUSHMA CHOWLA ) ( R.K. PANDA ) JUDICIAL MEMBER ACCOUNTANT MEMBER IQ.KS PUNE ; DATED : 19 TH FEBRUARY, 2016 LRH'K ( )+$ ,$ / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. $ ( ) -I, IQ.KS / THE CIT(A)-I, PUNE 4. $ -I, IQ.KS / THE CIT-I, PUNE 5. ' **+ , + , IQ.KS / DR, ITAT, B PUNE; 6. / / GUARD FILE. / BY ORDER , ' * //TRUE COPY// Y//TRUE COPY// 12 * + / SR. PRIVATE SECRETARY +, IQ.KS / ITAT, PUNE