Madhya Pradesh H.C : The petitioners in above writ petitions are partners in the firm M/s Bhagwandas Shobhalal Jain, Sagar, and have challenged the notices issued to them under s. 17 of the WT Act on similar facts and grounds

High Court Of Madhya Pradesh

Bhagwandas Jain vs. Deputy Commissioner Of Wealth Tax & Anr.

Section WT 17, ART. 226

Asst. Year 1979-80, 1980-81, 1981-82, 1982-83, 1983-84

S.K. Kulshrestha, J.

Misc. Petn. Nos. 2671 of 1988

25th January, 2000

ORDER

S.K. KULSHRESTHA, J. :

The petitioners in above writ petitions are partners in the firm M/s Bhagwandas Shobhalal Jain, Sagar, and have challenged the notices issued to them under s. 17 of the WT Act on similar facts and grounds. All these petitions are, therefore, being disposed of by this common order. The petitioners in M.P. No. 2637/88 and M.P. No. 2671/88 were assessed to wealth-tax for the asst. yrs. 1979-80, 1980-81 and 1981-82 in respect of their share of property in the firm. The assessment was made by the IAC of Wealth tax (Asst) [presently designated as Dy. CWT (Asst.)] and certain additions in the valuation of the assets were made and assessment orders Annexures A, A-1 and A-2 were passed. Against the said additions, the petitioners had filed appeals before the CWT(A), Jabalpur, who confirmed the additions by orders Annexures B, B-1 and B-2. However, on further appeal being filed before the Tribunal, Jabalpur, against the orders of the first appellate authority, the additions made by the IAC of Wealth-tax (Asst) were deleted vide orders Annexure ‘C’ and ‘C-1’. After the assessments had thus attained finality in the year 1984, notices dt. 19th Feb., 1988, were issued by the IAC Income-tax (Asst.),Jabalpur, under the provisions of s. 17 of the WT Act, 1957, which the petitioners have challenged in these petitions as illegal and without jurisdiction. The petitioners have filed copies of notices as Annexures ‘D’, ‘D-1’ and ‘D-2’. The petitioners in M.P. No. 3590/89 and M.P. No. 3634/89 were likewise assessed to wealth-tax for the years 1982-83 and 1983-84 and the additions made to the valuation by the IAC of the Wealth-tax were challenged by them in appeals before the CWT(A), who by his orders Annexures ‘B’ and ‘B-1’ had confirmed the additions. In further appeal before the Tribunal, the additions were maintained by orders Annexures ‘C’ and ‘C-1’ passed respectively on 9th May, 1985, and 2nd Sept., 1986. Thereafter, these petitioners were issued notice (Annexure ‘D’) under the provisions of s. 17 of the WT Act, which they have challenged by these petitions under Art. 226/227 of the Constitution of India.

4. The respondents have filed return in which the respondents have raised a preliminary objection with regard to the maintainability of the petitions on the ground that the petitioners have the opportunity of filing reply and to seek redressal of their grievance before the machinery provided in the Act and reference has also been made to ss. 23, 24 and 25 of the WT Act providing for appeals and revisions, in support of the contention that even if they feel aggrieved by the order that may be passed by the AO, they have an opportunity of filing appeals and revisions as provided in the Act. Insofar as the petitioners in M.P. Nos. 2637/88 and M.P. No. 2671/88 are concerned, since a pure question of law and jurisdiction is involved, the petitioners cannot be left to seek remedy provided under the Act and in any case, not at this distance of time in relation to the petitions which were filed long back in the year 1988. The assessment years for which the petitions in these two petitions were assessed to wealth-tax under the Act were 1979-80, 1980-81 and 1981-82. Learned counsel for the petitioner has referred to the provisions of s. 17 of the Act as it stood during the relevant period and has pointed out that it is not a case where there has been any omission or failure on the part of the petitioners to make a return of their net wealth for the assessment years in question or to disclose fully and truly all material facts necessary for the assessment of the net wealth that the impugned notices under the said provision have been issued, but the respondents have relied upon a report of the Valuation Officer to whom, it appears, reference was made after assessments had already been closed, to assess fair market value and on the basis of the report obtained when no assessment was pending, the notices have been issued. Learned counsel submits that such a reference under the provisions of s. 16A could not have been made as after assessment had been closed, there was no occasion for the respondents to make any assessment and to seek such report from the Valuation Officer. Learned counsel for the Revenue has, however, referred to the provision of s. 2(cb) and contended that since assessment includes reassessment, such a report can be called even during reassessment, with the result, the report of the valuation officer can furnish valid foundation for reopening the assessment in case it is found on that basis that the wealth chargeable to tax had escaped assessment by reason of under-assessment or assessment on too low a rate or otherwise as provided in s. 17(1)(b). Learned counsel for the petitioner has invited attention to the decision of the Rajasthan High Court in CWT vs. Smt. Gulnar Marfatia (1986) 159 ITR 311 (Raj) : TC 66R.505 and to the decision of the Karnataka High Court in Ramdas Prabhu vs. WTO (1987) 59 CTR (Kar) 285 : (1987) 166 ITR 706 (Kar) : TC 66R.295 in support of his contention that where no proceedings are pending before the WTO, it is not permissible to make a reference to the Valuation Officer under s. 16A of the WT Act, 1957 and the report of the Valuation Officer cannot form basis for reassessment proceedings under s. 17(1)(a) or (b), of the Act. The respondents in the preliminary submissions in their return para 2 have stated as under : “That the petitioner is a partner in the firm M/s Bhagwandas Shobhalal Jain, Sagar. During the course of assessment proceedings for later assessment years the AO noticed that the value of interest of the assessee in the partnership firm in respect of the assets in the shape of immovable properties was much more than what was declared in the return of net wealth for the relevant assessment years. The AO made a reference under s. 16A of the WT Act to the District Valuation Officer for ascertaining the fair market value for wealth-tax purposes as on the valuation dates December, 1981 to December, 1984. The District Valuation Officer (Incharge Tax Department), Jaipur, vide his report No. SE(V)/WT-342/84-85/196 dt. 15th/19th May, 1986, furnished the valuation report. As per the said valuation report, the value of immovable assets owned by the aforesaid partnership firm as on the date of valuation , December, 1981, was determined at Rs. 1,55,37,000 as against Rs.

28,24,429 disclosed by the assessee. The AO completed the wealth-tax assessment in respect of some assessment years reopening the cases under s. 17 of the WT Act in the case of the petitioner and other partners of the firm. In these assessments, the fair market value of interest of the petitioner in the assets of the partnership firm was assessed on the basis of the aforesaid valuation report. On the basis of information in the possession of the AO, the value of interest of the petitioner in the assets of the partnership firm was much more than shown and assessed and, therefore, the AO issued notices under s. 17 of the WT Act for the assessment years mentioned in the petition.”

7. It is clear from the statement made by the respondents that it was only in the later assessment years that the AO had made reference under s. 16A of the WT Act to the Valuation Officer for ascertaining the fair market value for the purposes of wealth-tax. In the decision of the Rajasthan High Court in CWT vs. Smt. Gulnar Marfatia (supra), reliance was placed on an earlier decision in Brig. B. Lal vs. WTO (1980) 15 CTR (Raj) 180 : (1981) 127 ITR 308 (Raj) : TC 66R.266 to the following observation : “Sec. 16A has got no relevancy and cannot be applied after the assessment is complete and before reassessment has commenced, that is, for the purposes of consideration of the question whether a complete assessment can be reopened or not or, in other words, to decide and consider the question whether the valuation accepted by the WTO was a case of wealth escaping assessment on account of undervaluation. Any reference made under s. 16A cannot lead to the reopening of a closed assessment under s. 17(1) as report submitted by the Valuation Officer would be in an invalid reference and must be treated as a nullity in the eye of law, non est and void ab initio. The report so obtained can neither constitute information within the meaning of s. 17(1)(b), nor can it become a reason for the belief within the meaning of s. 17(1)(a).”

8. In the present case, as per the statement in the return, as referred to above, the report of the Valuation Officer had not been called during the pendency of the assessment but only after its completion. There is yet another infirmity in the reopening of the assessment. As is clear from the return, the valuation report was obtained about valuation of the property as on the valuation dates December, 1981 to December, 1984. Insofar as the petitions M.P. Nos. 2637/88 and 2671/88 are concerned, assessment was made for the periods 1979-80, 1980-81 and 1981- 82 and since the valuation report, even as per the return of the respondents, relates to the valuation dates December, 1981 to December, 1984, and can have no relevance to the previous years relating to these assessment years in which the last such date could at the most be 31st March, 1981, the valuation report could otherwise not have furnished any basis for reopening the assessment for the asst. yrs. 1979-80, 1980-81 and 1981-82 on the ground that on the basis of the said report, the net wealth chargeable to tax had escaped assessment or had been underassessed or assessed at too low a rate. It is, therefore, clear that notwithstanding the objection that such a report could not have been called where the proceedings were not pending, the notices for reassessment on the basis of the report in reference to any of the previous years to the assessment years in question, could not have been issued. The petitions M.P. Nos. 2637/88 and 2671/88, thus, deserve to be allowed.

9. The case of the petitioners in M.P. Nos. 3590/89 and 3634/89 is, however, different. In these cases, the assessment relates to the periods 1982-83 and 1983-84. Apart from the preliminary objection raised by the respondents with regard to the alternative remedy available in accordance with the machinery provided by the Act, the respondents have further pointed out that in relation to similar notices issued to other partners of the firm, the assessees had agitated the matter upto the stage of the Tribunal, and the Tribunal, by its common order dt. 23rd Sept., 1986, had directed the AO to examine all the aspects in accordance with law after giving hearing to the assessees against which the reference under s. 27(3) of the Act was rejected by the High Court. It has further been stated that in relation to the petition M.P. No. 3639/89 filed by the partner Hukumchand Jain for the asst. yrs. 1982-83 and 1983-84, statement was made that on account of the subsequent events, the petition had become infructuous and the petition was dismissed and likewise the petitions M.P. Nos. 3591 and 3638 both of 1989 were dismissed as withdrawn. Learned counsel for the respondents has invited attention to a recent order, dt. 19th April, 1999, of the Tribunal, Jabalpur, passed in similar cases of other partners of the firm in support of his contention that since other partners have pursued the remedy available under the Act in respect of the asst. yrs. 1982-83 and 1983-84, these petitioners should also be left to seek the same remedy. The learned counsel for the petitioners has, however, urged that apart from the fact that the report had been called not in any pending assessment, since the belief about escapement of assessment or underassessment was not based on any cogent material to lead to any such conclusion, the assessing authority had no jurisdiction to issue such notice and, therefore, the impugned notices deserve to be quashed and reference has been made to the decision of this Court in Lokendra Singh Rathore vs. WTO (1985) 153 ITR 466 (MP) : TC 66R.458 and also in H.H. Maharaja Martand Singh Ju Deo vs. WTO & Anr. (1997) 141 CTR (MP) 228 : TC 66R.350. Learned counsel has further contended that since it was open to the assessing authority to have referred the matter to the Valuation Officer during the assessment and there was no failure on the part of the assessees to disclose fully and truly all material facts necessary for the assessment, merely because proper investigation was not carried out by oversight, carelessness or inefficiency, the assessing authority had no power to reopen the assessment.

As seen from the return of the respondents, some of the partners have pursued the remedy in accordance with the machinery provided under the Act and, therefore, it would not be proper to bring about an anomalous situation by considering the matter in these two writ petitions especially when in similar matters, observations have already been made on reference being sought under s. 27(3) of the Act by this Court. In a situation like this, these petitioners should also be left to seek the remedy in accordance with the machinery provided under the Act as has been done by the other partners of the same firm. In the result, the petitions M.P. Nos. 2637/88 and 2671/88 are allowed and the impugned notices under s. 17 of the Act are quashed. The petition M.P. No. 3590/89 and M.P. No. 3634/89 are dismissed with liberty to the petitioners to pursue remedy provided under the Act. There shall be no order as to costs.

Decision in favour of Assessee Partly, Revenue Partly.

[Citation : 246 ITR 632]

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