Allahabad H.C : Whether, on the facts and in the circumstances of the case, the Tribunal was correct in law in holding that additional wealth-tax is not chargeable on the value of the interest of the assessee partner in the firms, New Cawnpore Flour Mills and Nagarmal & Co., the assets of which include urban assets ?

Counsel Appeared

Bharatji Agarwal, for the Revenue : None, for the Assessee

A.N. VERMA, J.:

At the instance of the CWT, the following questions have been, referred for our opinion :

“1. Whether, on the facts and in the circumstances of the case, the Tribunal was correct in law in holding that additional wealth-tax is not chargeable on the value of the interest of the assessee partner in the firms, New Cawnpore Flour Mills and Nagarmal & Co., the assets of which include urban assets ?

2. Whether, on the facts and in the circumstances of the case, the Tribunal was correct in law in setting aside the order under s. 24(2) of the WT Act, 1957, passed by the CWT?”

The facts lie within a narrow compass and may be briefly stated thus. The assessee before us is a co-owner of the property situate at 24/73, Birhana Road, Kanpur. Besides, he is a partner in two firms which, in their turn, also owned immovable properties comprising business premises situate in an urban area. In respect of the asst. yr. 1976-77, the WTO made an assessment of the net wealth of the assessee on 30th March, 1981, at Rs. 19,03,120. This included the assessee’s one-third share in the firm, Nagarmal & Co., taken at Rs. 26,812.

The CWT was of the opinion that the order passed by the WTO was erroneous insofar as it was prejudicial to the interests of the Revenue. He, consequently, initiated proceedings under s. 25(2) of the WT Act, 1957. In the notice issued by him, the CWT pointed out two errors in the order of the WTO. First, that in regard to the property belonging to Nagarmal & Co., in which the assessee had a share, there was an appreciation and, if taken into account, the assessee’s share would work out to Rs. 1,35,724 as against Rs. 26,812 arid, therefore, there was an undervaluation of the assessee’s share in the aforesaid firm to the extent of Rs. 1,08,912. This observation of the CWT was stated to be based on the value of the property as worked out by the Departmental valuer. Second, that the assessee had been undercharged additional wealth-tax leviable on urban assets. When the matter was taken up before the CWT in pursuance of the notice mentioned above, it was urged on behalf of the assessee that the assessee had not been provided with any valuation report indicating the value of the property belonging to Nagarmal & Co. However, if there was any report of the Departmental valuer stating that the value of the property belonging to Nagamal & Co. was Rs. 1,57,000, the assessee would have no objection to the acceptance of the same. The CWT did not give any finding on this plea of the assessee nor deal with the same in his order.With regard to the second error pertaining to the inclusion of the urban assets belonging to the two firms, New Cawnpore Flour Mills and Nagarmal & Co., it was urged on behalf of the assessee that no additional wealth-tax was chargeable on the business premises owned by the firms. The CWT rejected this contention and held against the assessee.

4.. It may be mentioned that the assessee had also filed an appeal against the assessment order made by the WTO before the CWT(A). The CWT, however, treated that appeal as having become infructuous in view of his findings and the order setting aside the entire assessment made by the WTO.

The net result of the findings of the CWT was that in determining the net wealth of the assessee in respect of his share in the two partnership firms mentioned above, the urban assets comprising the firms’ business premises were also included.

The assessee challenged the orders of the CWT by way of appeals before the Tribunal. The Tribunal allowed both the appeals, setting aside the order passed by the CWT. The Tribunal came to the conclusion that on a true and proper interpretation of the rules mentioned in Part I of the Schedule to the WT Act, properties belonging to New Cawnpore Flour Mills and Nagarmal & Co. were liable to be excluded from the charge of additional tax in computing the net wealth of the assessee. In regard to the first error pointed out in the notice issued by the CWT under s. 25(2) of the Act, the Tribunal observed that in the absence of any report of the Valuation Officer, it could not be legitimately inferred that there was any appreciation in the value of the property belonging to the firm, Nagarmal & Co. There was no other material on record to sustain that conclusion and, consequently, it was not proper for the CWT to set aside the order passed by the WTO and to adopt a new valuation. It is from this decision of the Tribunal that the reference has been made to us at the instance of the CWT.

In order to appreciate the contentions of the parties, it would be convenient to have a look at the relevant statutory provisions, comprised in Part I of the Schedule to the WT Act, the material parts of which are being extracted here : “Part I “Paragraph A” (2) In addition, in the case of every individual and an HUF, where the net wealth of the individual or an HUF includes the value of any asset, being building or land (other than business premises) or any right in such building or land, situated in an urban area (such asset being hereafter in this Part referred to as urban asset) :……… “Paragraph B” Rule 1.—In this Part,— (i) ‘ business premises ‘ means any building or land or part of such building or land, or any right in building or land or part thereof, owned by the assessee and used throughout the previous year for the purposes of his business or profession, and includes any building used for the purpose of residence of persons employed in the business or any building used for the welfare of such persons as a hospital, creche, school, canteen, library, recreational centre, shelter, rest-room or lunchroom, but does not include any premises in the nature of a guest house ; … Rule 3.—Where the net wealth of the assessee includes the value of his interest as a partner in a firm or as a member of an AOP and the assets of such firm or association include any urban assets, then, notwithstanding anything contained in the Indian Partnership Act, 1932 (9 of 1932), or in any other law for the time being in force, the interest of the assessee in such firm or association, to the extent specified in the Explanation below, shall be deemed to be an urban asset and the provisions of item (2) of para A shall apply accordingly. Explanation.—The extent of the interest of the assessee in a firm or association deemed to be an urban asset as aforesaid shall be a sum which bears to the value of the whole of the interest of the assessee in the firm or association the same proportion which the net value of the urban assets of the firm or association (determined under r. 2 as if they were urban assets belonging to an individual or an HUF) bears to the net wealth of the firm or, as the case may be, the association, computed as if such firm or association were an individual. . . .”

8. Let us now analyse these provisions. Item No. (2) of para A, to our mind, is designed to serve two purposes. First, it imposes additional wealth-tax in the case of every individual and an HUF on his urban assets comprising of buildings and land situated in an urban area, where the net wealth of the individual or an HUF includes the value of such assets. Second, it defines an urban asset to mean, for the purposes of the whole of Part 1, buildings or land in an urban area (other than business premises). In other words, in determining additional wealth-tax under Part I of the Schedule, while computing the net wealth of an individual or an HUF owning urban asset, the business premises shall have to be excluded. Rule 1 of para B then defines ‘business premises ‘ and states that, in this part, business premises means any building or land or part of such building or land, or any right therein owned by the assessee and used throughout the previous year for the purposes of his business or profession. We are not concerned here with the rest of that rule.

9. We then turn to r. 3 round which the submissions of learned counsel for the parties were mainly centred. Before, however, we analyse this provision, we may briefly notice the background in which the provision was inserted. This rule was brought on the statute book under the Finance Act of 1970. Introducing the Bill, the Hon’ble Finance Minister stated before the House that the proposed legislative measure was calculated to prevent avoidance of tax by transfer from individual or joint Hindu family ownership to ownership by partnership firms, AOP and closely held companies. It appears that with a view to evading liability to tax, individuals and joint Hindu families who owned urban assets which were liable to additional wealth-tax under item No. (2) quoted above were transferring their urban assets from their individual ownership to ownership by partnership firms or AOP or closely held companies of which they were members. It was to bring such transfers under the net of additional wealth-tax that r. 3 was conceived and enacted. Under this rule, where the net wealth of the assessee includes the value of his interest as a partner in a firm or as a member of an AOP and the assets of such firm or association include any urban assets, then, notwithstanding that under the Indian Partnership Act, the assets thrown by a partner into the hotchpotch of the partnership become the assets of the firm, the interest of the assessee in such firms or association is deemed to be an urban asset for the levy of additional wealth- tax to be determined in accordance with the provisions of item No. (2) of para A quoted above.

10. The crucial question that next arises is whether, in computing the net wealth of an assessee under r. 3, business premises owned by a firm or association shall also have to be included for the purposes of additional wealth-tax. The question posed must, in our opinion, be answered in the negative for the simple reason that r. 3 occurs in Part I and, therefore, the term “urban asset” must be given the same meaning as has been assigned to it in item No. (2) of para A of Part I. Item No. (2) of para A clearly excludes business premises from urban assets. Having specifically provided in item No. (2) of para A that business premises shall be excluded from the urban assets of an individual in the computation of his net wealth and having further provided that such assets, i.e., building or land (other than business premises) shall hereafter be referred to as urban asset, it was unnecessary to repeat that definition in r. 3. To our mind, r. 3 must be read along with item No. (2) of para A. Both the provisions are parts of Part I. The legislature enjoins that in this part “urban assets” must be understood in the same sense and carry the same meaning. If, in the computation of net wealth of an individual, business premises owned by him are required to be excluded in determining the urban assets, one fails to discern any valid ground why the legislature would require that in the computation of the net wealth of the assessee, where the net wealth includes the value of his interest as a partner in a firm and the assets of such firm comprise any urban assets, the business premises owned by the firm should be included. Indeed any possible doubt on this score is completely dispelled by the language used by the legislature in item No. (2) of para A which is explicit and unambiguous. It states “such asset being hereafter in this Part referred to as urban asset… (Emphasis, italicised in print, supplied).

11. Bharatji Agarwal, learned counsel for the Revenue, however, relied heavily on the definition of “business premises” and stressed particularly the words “his business or profession”. It was urged that the legislature was conscious of the distinction that exists between the ownership of business premises of an individual and the ownership of the business premises of a partnership firm in which the assessee has a share and, consequently, it was contended that an individual could urge for the exclusion of only those premises under r. 3 which were used for the purpose of his individual business. We are unable to agree. In the first place, upon the plain terms of r. 3 r/w item No. (2) of para A, in the computation of net wealth of an assessee covered by r. 3, business premises owned by the firm shall have to be excluded in levying additional wealth-tax on urban assets. Secondly, the submission ignores the crucial words occurring in r. 3, viz.,” shall be deemed to be an urban asset and the provisions of item No. (2) of Para. A shall apply accordingly (Emphasis, italicised in print, supplied).

The meaning of the word “accordingly” is obvious. It means mutatis mutandis, i.e., in determining the net wealth of an assessee covered by r. 3, the provisions of item No. (2) of para A shall apply with necessary changes. That being so, in the computation of net wealth of the assessee under r. 3, business premises which are owned by the firm of which the assessee is a partner, shall have to be excluded. “Business premises” as defined under para B must, therefore, in its application to a case covered by r. 3, mean building or land owned by the firm and used for the purpose of the business of the firm. The term “his business” in the definition of “business premises” must, in the context of r. 3, mean the firm’s business.

12. The Tribunal was, therefore, right in taking the view that additional wealth-tax was not chargeable in respect of the business premises even if they might be held by the firms in which the assessee is a partner. Our conclusion is also fortified by the speech of the Hon’ble Finance Minister introducing the bill for the Finance Act, 1970, the relevant part of which is being reproduced here [see (1970) 75 ITR (St.) 22 and 23]: “Honourable Members are aware that we are at present examining practical means of imposing a ceiling on urban property. While the legal and other aspects of the matter are being examined, it is proposed to increase the additional wealth-tax on urban lands and buildings, so that the objective of a ceiling on urban property is achieved, at least in part, within the framework of the powers already available to the Centre. At present, the additional wealth-tax on urban lands and buildings is leviable, in the case of individuals and HUF, on the value of lands and buildings situated in cities and towns with a population exceeding one lakh and with an initial exemption ranging from Rs. 4 to Rs. 7 lakhs in different categories of cities. The tax is leviable on the balance of rates ranging from one per cent to four per cent. The maximum rate is reached when the value of urban lands and buildings exceeds Rs. 19 to Rs. 22 lakhs. It is now proposed to levy a tax of 5 per cent on the value of urban lands and buildings in excess of Rs. 5 lakhs and at the rate of 7 per cent on the value in excess of Rs. 10 lakhs. No distinction will be made in regard to the exemption on the basis of the population of the area in which the properties are situated. The definition of an urban area is also being enlarged to include areas within the limits of any municipality or other similar authority having a population of 10,000 or more, with powers to cover by notification, areas up to 8 kilometres outside such limits. Business premises will continue to be excluded from the proposed levy as at present. However, guest houses maintained by those liable to pay this tax will not be reckoned as business premises. Provisions are also being made to prevent avoidance of the tax by transfer, from individual or joint Hindu family ownership, to ownership by partnership firms, AOP and closely-held companies. Another measure which is intended to serve a similar purpose, provides for the taxation of capital gains arising from the sale or transfer of agricultural land situated within urban areas.” (Emphasis, italicised in print, supplied).

The clear object behind the Act, therefore, was to exclude the “business premises” from the proposed levy as at that time. Our conclusion, therefore, is that the properties belonging to New Cawnpore Flour Mills & Nagarmal & Co. were liable to be excluded and the Tribunal was right in setting aside the order of the CWT. That disposes of the first question referred to us.

In regard to the issue pertaining to the alleged appreciation in the valuation of the property belonging to Nagarmal & Co., learned counsel for the Revenue did not question the correctness of the observation made by the Tribunal that the report of the Valuation Officer was not available on record nor was there any other material to sustain the premise that there was any such appreciation in the value of that property. The Tribunal was hence clearly right in holding that there was no justification for the CWT to direct the WTO to adopt a new valuation or to enhance the value of the property.

In the premises, we answer both the questions referred to us in the affirmative, in favour of the assessee and against the Revenue. The assessee will be entitled to the costs of this reference which we assess at Rs. 200.

[Citation : 174 ITR 134]