High Court Of Rajasthan : Jaipur Bench
Raja Man Singh vs. Commissioner Of Wealth Tax
Sections WT 2(m), WT 3
Asst. Year 1965-66, 1966-67, 1967-68, 1968-69, 1969-70, 1970-71, 1971-72, 1972-73, 1973-74, 1974-75
K.C. Agrawal, C.J. & V.K. Singhal, J.
D.B. WT Ref. No. 144 of 1981
27th April, 1993
H. P. Gupta, for the Assessee : G. S. Bapna, for the Revenue
V. K. SINGHAL, J.:
The Tribunal has referred the following two questions of law arising out of its order dt. 21st Oct., 1980, in respect of the asst. yrs. 1965-66 to 1974-75 :
“(1) Whether, on the facts and in the circumstances of the case, the Tribunal was right in interpreting the gift deed dt. 9th Sept., 1938, that the immovable property known as Barwara House was gifted to the late Raja Mansingh and not to his HUF ?
(2) Whether, on the facts and in the circumstances of the case, the Tribunal was right in including the value of Barwara House in the net wealth of the assessee in his individual status ?”
The brief facts of the case are that the assessee filed his returns in the status of individual. After the death of the assessee, the legal representatives of the assessee submitted revised returns and excluded the value of the property known as Barwara House located at Civil Lines, Jaipur. The returns under the WT Act, 1957, were filed declaring the said property as owned by the HUF. Earlier, this matter came up for consideration before the Tribunal in respect of the asst. yrs. 1957-58 to 1964-65 when the matter was examined in detail. The property was gifted to the assessee by the Maharaja of Jaipur on 9th Sept., 1938. In the document executed, it was mentioned that the donee and his heirs can enjoy the property from generation to generation without any interference. The AAC came to the conclusion that the gift was to the assessee in his individual capacity and it was not revocable. It was also found that the assessee had been effecting alienation of this property and even gifted portions of the same to his sons and, in these circumstances, it was held that the property did not belong to the family, otherwise, it could not have been gifted to the sons. It was contended before the Tribunal that, in 1940, certain limitations were placed on the right of alienation over such properties by the donees and, therefore, the gifts were void and ineffective and should be ignored. The Tribunal came to the conclusion that the notification issued in 1940 or thereafter could not affect the full ownership right of the assessee over the property. The conduct of the assessee in the subsequent treatment of the property was also taken into consideration from which it was found that he treated himself as its full owner. Earlier to these proceedings, the matter was remanded by the Tribunal to the AAC to examine whether the gifts were invalid as the property is alleged to be belonging to the HUF. When the matter went before the AAC, the assessee withdrew the plea regarding the validity of the gift. The Tribunal came to the conclusion that the property belonged to the individual and not to the HUF and the appeal was accordingly dismissed. This order has become final and has not been challenged before this Court. Thereafter, in respect of the asst. yrs. 1965-66 to 1974-75 as stated above, the matter was again agitated before the WTO by filing revised returns of the individual by excluding the property and fresh returns of the HUF showing the property as belonging to the HUF. It was held that the property belonged to the assessee in his individual capacity and that he was the full owner of it and accordingly the valuation was included in his wealth.
The matter was challenged before the AAC where, relying upon the earlier decision of the Tribunal dt. 19th Feb., 1972, it was held that the “Barwara House” received in gift by the deceased appellant on 9th Sept., 1938, belonged to him in his individual capacity and not to the HUF.
In the second appeal before the Tribunal, it was held that the Tribunal has considered the gift deed and has passed a contrary order on 19th Feb., 1972, and there is no new material on the basis of which the said judgment could be reviewed. It was held that the proper status of the assessee is that of an individual and the assessee has rightly been taxed in that status.
The submission of learned counsel for the petitioner is that the order of the Tribunal for the asst. yrs. 1957-58 to 1964-65 dt. 19th Feb., 1972, does not operate as res judicata as it is not a Court of competent jurisdiction and is only a Departmental authority.
8 .Reliance has been placed on the decisions in Kamlapat Motilal vs. CIT (1950) 18 ITR 812 (All) and Chiranji Lal Ramji Dass vs. ITO 1977 CTR (Del) 163 : (1978) 115 ITR 842 (Delhi). We have considered the matter. There can be circumstances where the cause of action is different or the subject-matter is different or there may be a change in the circumstances and in these cases, the doctrine of res judicata would not apply but the point which has to be considered is when a particular issue has attained finality and no different facts have been pointed out, can the assessee be allowed to reagitate the same issues particularly when in respect of eight continuous years the adverse order given by the Tribunal has been accepted and no reference was filed in the High Court. The principles for finality of judgments are applicable and the Tribunal was bound by its earlier decision and could not have taken a contrary decision in respect of the same set of facts and circumstances of the same assessee. The decision given by this Court in Sardar Kehar Singh vs. CIT (1991) 92 CTR (Raj) 88 : (1992) 195 ITR 769 (Raj) has full application because of the previous order of the Tribunal which has become final and, therefore, the Tribunal could not have taken a view different from that it had taken earlier.
It has further been submitted that the order of the Tribunal dt. 19th Feb., 1972, is not correct as it is contrary to a decision given by this Court in the case of Thakur Gopal Singh vs. CWT (1975) 99 ITR 354 (Raj). The submissions of learned counsel for the assessee are not correct. The validity of the order dt. 19th Feb., 1972, cannot be examined in these proceedings and in any case the conduct of the petitioner has also to be seen wherein the property was considered by him as belonging to him in his individual capacity. The returns were filed showing the property as belonging to him in his individual capacity which was subsequently revised. This shows the intention of the assessee. Not only this, a gift of part of the property was made to the son and if it was HUF property the question of any gift could not have arisen.
It has also been submitted that s. 4(6) was added by Act No. 46 of 1964, w.e.f. 1st April, 1965, in which it has been provided that, for the purpose of this Act, the holder of an impartible estate shall be deemed to be the individual owner of all the properties comprised in the estate. It is submitted that the said provision is not retrospective and could not have applied for the asst. yrs. 1957-58 to 1964-65. The present reference is not in respect of the period for which the submissions are made, and, therefore, that controversy is not required to be examined in these proceedings. Even if, for the sake of argument, the contention of learned counsel is accepted that the amendment is not procedural in nature or retrospective, the amendment shall be applicable from the asst. yr. 1965-66, and, therefore, whatever the character of the property might have been earlier, the impartible estate shall be considered to be owned by the individual because of the legal fiction created by the amendment. For this reason also, the order of the Tribunal cannot be said to be erroneous. The decision in Thakur Gopal Singh vs. CWT (supra), has no application and the validity of the orders from 1957-58 to 1964-65 cannot be questioned or examined in these reference proceedings.
The submission of learned counsel for the petitioner is that the assessee has a right to file a revised return and the declaration given therein that the property belonged to the HUF should have been accepted. It has further been submitted that the assessee has the right to throw his individual property into the joint family hotchpotch and declare the same as HUF property and by filing the revised return, it should be considered that the said property was thrown in the common hotchpotch of the HUF and, therefore, it should be considered to be HUF property. This contention of learned counsel has no substance inasmuch as whether the property has been thrown into the common hotchpotch or not is a question of fact which has to be examined by the assessing authority and thereafter by the appellate authorities. The point was not raised before the Tribunal nor has it been proved and, therefore, the contention cannot be examined at this stage.
The submission of learned counsel for the petitioner that the gift by the Maharaja of Jaipur in favour of the late Raja Man Singh (assessee) was to the HUF as per the language mentioned therein (Hindi version) “Tham ki aulad nasalan vadh nasalan ee koti me bas aabad rahjo”
According to learned counsel, the language contemplates that the property has been given to the HUF and the interpretation placed on the gift deed is not a correct one and the words that the donee would receive the property for himself and for his heirs from generation to generation make it clear that it was intended to be given to the HUF. We have seen the gift deed, a bare perusal of which shows that the property was given to the deceased by way of gift and thereafter it was mentioned that the donee and his heirs from generation to generation may enjoy the gift. The second part of this gift deed exclude the donor from any right of interference and it cannot be interpreted to mean that the property was given to the HUF.
We are also of the view that the Tribunal has rightly taken into consideration the conduct of the assessee himself wherein he has treated the said property as belonging to an individual.
Besides filing the return in the status of an individual showing this property as owned by him initially, he has gifted the property to his sons and had it been intended to be received as property of the HUF, the question of any gift to the sons would not have arisen. The assessee has not pressed his claim regarding the validity of the gift before the AAC in earlier proceedings and the decision of the Tribunal deciding the issue on 19th Feb., 1972, has become final. The assessee cannot be permitted to raise the same issue again and again which has been decided against him and which has become final. In these circumstances, we are of the view that the Tribunal was right in interpreting the gift dt. 9th Sept., 1938, that the immovable property known as Barwara House was gifted to the late Raja Man Singh and not to his HUF and further the Tribunal was right in including the value of Barwara House located at Civil Lines, Jaipur, in the net wealth of the assessee in his individual status.
16. The reference is answered accordingly in favour of the Revenue and against the assessee. The reference application is dismissed with costs of Rs. 1,000 (one thousand).
[Citation: 205 ITR 518]