High Court Of Delhi
Commissioner Of Wealth Tax vs. Begam Brigees Zahoor Qasim & Ors.
Section WT 16
Asst. Year 1974-75
Arijit Pasayat, C.J. & D.K. Jain, J.
WT Ref. Nos. 83 to 86 of 1978, 148 to 152 of 1982 and 45, 84, 85, 92 & 93 of 1993
12th October, 2000Â
Sanjiv Khanna & Ajay Jha, for the Revenue : None, for the Assessee
ARIJIT PASAYAT, C.J. :
This order will govern WTR Nos. 83 to 86 of 1978 arising out of WTA Nos. 1467 to 1470 of 197576, WTR Nos. 148 to 152 of 1982 arising out of WTA Nos. 1003 to 1006/D of 1980 and 1009/D of 1980, WTR No. 45 of 1983 arising out of WTA No. 53/Del of 1981, WTR No. 84 of 1983 arising out of WTA No. 120/Del of 1981, WTR No. 85 of 1983 arising out of WTA No. 51/Del of 1981, WTR No. 92 of 1983 arising out of WTA No. 52/Del of 1981 and WTR No. 93 of 1983 arising out of WTA No. 54/Del of 1981.
2. At the instance of the Revenue, under s. 27(1) of the WT Act, 1957, the Income-tax Appellate Tribunal (in short “the Tribunal”), has referred the following question, pertaining to the asst. yr. 1974-75, in WTRs Nos. 83 to 86 of 1978, for the opinion of this Court : “Whether, on the facts and in the circumstances of the case, the Tribunal was correct in confirming the orders of the AAC holding that the WTO was not correct in including a sum of Rs. 2,87,460 as the wealth of the assessee representing their shares of right in the property left by their father, the late Nawab of Rampur ?”
3. In other references, except that the figure of wealth included is different, essentially the issues are the same. Taking note of Suit No. 219 of 1972 titled Saiyid Sirajul Hasan vs. Syed Murtaza Ali Khan & Ors. filed in this Court, as a protective measure the concerned sum was included while computing net wealth for the concerned asst. yr. 1974-75 under s. 16(3) of the Act. Such inclusion was challenged by the concerned assessees before the Appellate Assistant Commissioner of Wealth-tax (“the AAC”). The said authority was of the view that though protective inclusion can be made, it is permissible only when a substantive assessment is made in the case of another person. As there was no material to show that such inclusion was made on substantive basis in hands of any other person the inclusion on protective basis was upset by the AAC. The Revenue carried the matter in appeals before the Tribunal which in turn upheld the views of the AAC. On being moved, the above references have been made.
4. We have heard Mr. Sanjiv Khanna, learned counsel for the Revenue. There is no appearance on behalf of the assessees in spite of service of notices.
5. As has been rightly observed by the AAC protective inclusion of wealth is permissible where a substantive assessment is made in the hands of another. There was no definite finding recorded by the AAC or the Tribunal as to whether there was any substantive inclusion in the hands of any other person so far as the wealth in question is concerned. In case it has been so done, obviously protective assessment could have been made as was done by the WTO. As the material facts are not borne out from the orders, we think it appropriate to remand the matter back to the Tribunal, instead of answering the questions referred, for hearing the matter afresh and to find out whether there has been inclusion of the concerned properties in the hands of any other person. If that has been done protective assessment shall be continued. It is fairly conceded in view of the settled position of law, that for a property which is included on protective basis, corresponding tax element cannot be recovered. The references are, accordingly, disposed of.
[Citation : 248 ITR 482]