TaxTMI 
TaxTMI 
TaxTMI 
2002 (4) TMI 13
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....ad been temporarily let out. The assessee held shares of the co-operative society in which the said office premises were located. The shares held in a cooperative society were not chargeable to tax under the Act. As regards the non-agricultural land, the ownership thereof was in dispute. The suit filed by the assessee against the person in occupation of the said land had been dismissed by the District Court at Nadiad, as such the contention was that the land was not includible in its net wealth. A note in support of its claim that the assets were not liable to wealth-tax was enclosed along with the return, without prejudice, the wealth was computed recording due protest at Rs. 27,00,559 and, wealth-tax in the sum of Rs. 54,001 was paid under protest. The Assessing Officer issued an intimation under section 16(1)(a) accepting the wealth returned (under protest) without adjudicating the issue on the merits. Aggrieved by the action of the Assessing Officer, the assessee preferred appeal to the Commissioner of Wealth-tax (Appeals) (the "Commissioner (Appeals)" for short) who was pleased to dismiss the appeal on two grounds, namely, (i) that the assessee was not an aggrieved person si....
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....ion or deduction claimed or made in the return, which, on the basis of the information available in such return, accounts or documents, is prima facie inadmissible, shall be disallowed: Provided further that where adjustments are made under the first proviso, an intimation shall be sent to the assessee, notwithstanding that no tax or interest is found due from him after making the said adjustments: Provided also that an intimation for any tax or interest due under this clause shall not be sent after the expiry of two years from the end of the assessment year in which the net wealth was first assessable.... (2) Where a return has been made under section 14 or section 15, or in response to a notice under clause (i) of sub-section (4) of this section, the Assessing Officer shall, if he considers it necessary or expedient to ensure that the assessee has not understated the net wealth or has not under-paid the tax in any manner, serve on the assessee a notice requiring him, on a date to be specified therein, either to attend at the office of the Assessing Officer or to produce, or cause to be produced there, any evidence on which the assessee may rely in support of the return: Provi....
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....hat the assessee did not deny its liability to be assessed under the Act, as such appeal was not tenable. There must be a total denial of liability of being assessed under the Act for the purposes of falling within the purview of the phrase "denial of liability of being assessed". In his submission, the grounds of appeal, which are included in the paper book, did not indicate that the assessee was denying its liability to be assessed under the Act. He pointed out that the assessee merely challenged illegalities or irregularities in the intimation issued under section 16(1)(a)(i) of the Act. There was no submission that the Act itself did not apply to the facts of the case or that the assessee could not have been assessed under the Act at all. In view of this, learned counsel for the Revenue submitted that the appeal did not lie against the mere intimation issued by the Assessing Officer. He relied upon the judgments in, CIT v. Kanpur Coal Syndicate [1964] 53 ITR 225 (SC); CIT v. Geeta Ram Kali Ram [1980] 121 ITR 708 (All) [FB]; Sterling Machine Tools v. CIT [1980] 123 ITR 181 (All); CIT v. Daimler Benz A.G. [1977] 108 ITR 961 (Bom) [FB]; M.G. Brothers v. CIT [1985] 154 ITR 695 (AP)....
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....der the Act. Per contra, Ms. A. Vissanji, learned counsel far the assessee, submits that mere filing of a return does not tantamount to acceptance of liability. In support of this submission, she relied upon the judgment in the case of Rani Anand Kunwar v. CIT [1940] 8 ITR 126 (Oudh); AIR 1940 Oudh 52. She submits that intimation under section 16(1)(a)(i) of the Act has to be preceded by an order accepting return. The Assessing Officer has to make an endorsement in the nature of formal order, on the return accepting it, and, then only, an intimation is sent out to communicate acceptance thereof coupled with demand for tax, if any. She submits that the intimation is nothing but communication of the order accepting the return. In her submission, section 23 of the Act permits an appeal against the order of assessment or such intimation issued under section 16(1)(a)(i) of the Act where the net wealth determined does not exceed Rs. 15 lakhs and in a case where net wealth exceeds Rs. 15 lakhs and the assessee objects to either the determination of (a) amount of net wealth under the Act or (b) amount of tax as payable by him under the Act, or denies his liability to be assessed under the ....
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....ry for ascertaining and imposing the liability on the taxpayer. The words "under this Act" clearly show that reference in section 23(1A) is to the whole procedure laid down in the Act imposing liability on the taxpayer. The denial of liability to be assessed may be in respect of the entire wealth or a part thereof. The total denial of liability may be based on any ground, whether of fact or law or denial of liability may be under particular circumstance. Each case is to be decided on its own facts. She submitted that in the case at hand, the assessee had filed a return of wealth under protest to avoid any further demand for additional tax under the Act. In the note appended to the return, it was contended that the assets were not chargeable to wealth-tax, thereby the assessee had denied its liability to be assessed under the Act. The appeal to the Commissioner (Appeals) against the rejection of this claim was maintainable under section 23(1A)(a) of the Act since there was a specific denial of liability to be assessed under the Act. Learned counsel for the assessee submitted that para. 7 of the intimation-cum-demand notice dated December 2, 1994, issued by the Assessing Officer its....
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....essment passed by the Assessing Officer under section 16(1)(a)(i) of the Act for not having allowed the claim to which it was entitled. In our opinion, without going to the various contentions raised by the assessee, the main contention raised by learned counsel for the Revenue, if considered and dealt with, must decide the question raised and involved in this appeal. The submission of the Revenue was that the assessee had filed a return and declared its assets, accordingly, it was assessed to tax without any variation. It had voluntarily declared its assets and brought it into the assessment without any objection, thereby, the assessee had subjected itself to the assessment by voluntarily filing the return, as such, the assessee could not be permitted to deny its liability. Reliance was placed on various decisions referred to in the earlier part of the judgment, wherein, in some of the cases, it was held that there exists no inherent right of appeal, it being entirely a creature of the statute. Learned counsel for the Revenue argued that an order under section 16(1)(a)(i) has not been made appealable under any part of section 23(1A)(a) of the Act. There is no right of appeal vest....
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....id. In common parlance, "without prejudice" denotes protest. In the case in hand, the words "without prejudice" were used to convey to the Assessing Officer that mere filing of return and payment of tax shall have no effect on the rights of the assessee and it shall be open to claim settlement of the controversy as if it has not filed the return under the Act. Filing of return "without prejudice" to the legal rights signifies filing or submission of the return accompanied by a declaration that if the protest is accepted, the dispute shall end, if not, mere filing of return will not be allowed to be used against the assessee implying its admission. "Without prejudice" implies future rectification in accordance with law. Having noticed the background under which the return was filed and having seen the meaning of the words "without prejudice", can it be said that the assessee did not object to the assessment before the Assessing Officer, so as to deny the right of appeal to the assessee under section 23(1A)(a) of the Act. It is no doubt true that the right of appeal is a statutory right given by the statute. Therefore, it has to be decided on the touchstone of the provision providin....