TaxTMI 
TaxTMI 
2018 (9) TMI 239
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....Tax has been discontinued from the Assessment Year 2016-17, as amended by Finance Bill of 2015. The A.Y.1999-2000 to A.Y. 2004-05 involved in the present appeals are prior to its discontinuation. 2. The definition of "Assets" underwent a drastic amendment with effect from 01/04/1993 and the word 'Assets' defined in Section 2 (ea) of the Act since 1st April 1993 comprises of six categories of Assets. This amendment was brought to encourage the Assets to be put to productive use and to levy tax under the said Act for the aforesaid avowed object of the enactment. INTRODUCTION OF CASE: 3. The present batch of Appeals filed by the Department raise the following Substantial Question of law which is required to be answered in the present set of appeals for the various assessment years, viz. A.Y.1999-2000 to A.Y.2004-05 is as follows:- Whether, on the facts and in the circumstances of the case, the Tribunal was justified in holding that the 28 Acres of 'urban land' comes under the ambit of the exemption clause of Section 2(ea) of the Wealth Tax Act, 1957? 4. The case pertains to urban land of the Respondent - Assessees who are sisters of Sri. Srikantadutta Narasimharaja Wodeyar, Son o....
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....on and Transfer) Act, 1996" was enacted by the State Government and the appointed date under the said Act was notified to be 21/11/1996. 9. The constitutional validity and the vires of the said enactment came to be challenged by all the Assessees, the brother and the sisters, before this Court by Writ Petition No.32175/1996 and connected writ petitions, in which the interim Orders were passed by the learned Single Judge of this Court on 10/12/1996 in the first instance. However, these writ petitions came to be dismissed by the Division Bench of this Court by a detailed judgment on 31/03/1997 (M/s. Chamundi Hotel (P) Ltd., the Brother, Sri. Srikanta Datta Narasimharaja Wadiyar and the Assessee sisters herein Vs. The State of Karnataka and others) (reported in ILR 1997 Kar.1573) against which the appeals were preferred before the Hon'ble Supreme Court of India where also, the interim Orders were passed in favour of the Assessees and to which a little more detailed reference will be made hereinafter and the Appeals are said to be now pending adjudication before the Nine Judges' Bench of the Hon'ble Supreme Court of India, viz. Civil Appeal No.3305/1997 [SLP (Civil) No.8650/1997 & con....
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....stantial Questions of law center round the three basic aspects of the matter. They are:- (a) The meaning of the words "belonging to" as employed in the definition of 'net wealth' defined in Section 2(m) of the Wealth Tax Act, 1957 read with the charging provisions of Section 3 of the Act; (b) The scope of taxability of "urban land" as defined in Section 2(ea)(v) with its Explanation and Exclusion Clause in the said Explanation; and (c) What is the scope and purport of 'Protective Assessments' made in the hands of the Respondent Assessees and whether the character of such 'Protective Assessments' changes by determination of nontaxability in the hands of higher Appellate Authorities under the Act deciding the Appeals on merits. RELEVANT STATUTORY PROVISIONS: 12. Before coming to the contentions raised at the Bar by both the parties, we would like to quote certain definitions in the Act relevant for our purposes in the present case as follows:- 13. Section 2(ea) substituted with effect from 01/04/1993 particularly Clause (v) defining "urban land" is quoted below:- "Section 2(ea): "assets" in relation to the assessment year commencing on the 1st day of April, 1993, or any subseq....
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....ment year] commencing on and from the first day of April, 1957 [but] before the 1st day of April, 1993], a tax (hereinafter referred to as wealth-tax) in respect of the net wealth on the corresponding valuation date of every individual, Hindu undivided family and company [at the rate or rates specified in Schedule-I]. (2) Subject to the other provisions contained in this Act, there shall be charged for every assessment year commencing on and from the 1st day of April, 1993, wealth-tax in respect of the net wealth on the corresponding valuation date of every individual, Hindu undivided family and company, at the rate of one per cent. of the amount by which the net wealth exceeds fifteen lakh rupees. Provided that in the case of every assessment year commencing on and from the 1st day of April 2010, the provisions of this section shall have effect as if for the words "fifteen lakh rupees", the words "thirty lakh rupees" had been substituted." "4. Net wealth to include certain assets. - (1) [In computing the net wealth- (a) of an individual, there shall be included, as belonging to that individual, the value of assets which on the valuation date are held- (i) by the spouse of su....
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....t be said to be 'owned' or 'belonging to' the Respondent Assessees on the respective 'Valuation Dates' for the Assessment Years in question and therefore, there is no question of imposition of any Wealth-Tax on them during the said Assessment Years. 17. The Preamble, Sections 4, 5 and Section 8 of the Bangalore Palace (Acquisition and Transfer) Act, 1996 are quoted below for ready reference:- "THE BANGALORE PALACE (ACQUISITION AND TRANSFER) ACT, 1996 (First published in the Karnataka Gazette, Extraordinary, dated 18th November, 1996) (Received the assent of the president on the Fifteenth day of November, 1996) An Act to provide for the acquisition and transfer of the Bangalore Palace and open space around it in the public interest and for its preservation and for matters connected therewith. Whereas, the Palace at Bangalore popularly known as the Bangalore Palace, Karnataka's unique and historical and architectural heritage, is singularly suited with its immediate surroundings, which no other Palace in the City of Bangalore does possess, and thereby deserving in its own majesty, in public interest to be preserved as a monument with the surrounding open space developed to serve....
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....sentative or heirs or other interested persons and all books of accounts, registers and other documents of whatever nature relating thereto. (2) All properties aforesaid, which have vested in the State Government under Section 4 shall, by virtue of such vesting be freed and discharged from any trust, obligation, mortgage, lease, charge, lien and all other encumbrances affecting them and attachment, injunction or decree or order of any Court or authority restricting the use of such property in any manner shall be deemed to have been withdrawn. (3) Every legal representative, heir or other person who has, on the appointed day, any right, title or interest in relation to the Palace shall have the right to prefer his claim in the prescribed manner before the Commissioner for payment of amount out of the amount specified in Section 8 and also out of the amount determined under Section 8. (4) Every mortgagee of any property which has vested under this Act in the State Government and every person holding any charge, lease, lien or other interest in, or in relation to any such property shall give, within such time and in such manner as may be prescribed, an intimation to the Commissione....
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....Act of 1996, with effect from 21/11/1996 but with the limited right of user given to the Assessees while maintaining the status-quo of their possession, by the Hon'ble Supreme Court under the interim Orders, to let-out the said properties for the events like marriages and other public functions to earn some income out of them, to meet the expenses of maintaining the said property, such vacant lands cannot be said to be 'urban lands' on which any construction is permitted and therefore, the lands would fall outside the tax net under the definition of 'urban land' as defined in Section 2(ea) of the Act with effect from 01/04/1993. They also referred and relied upon the provisions of the Karnataka Parks, Play Fields and Open Places (Preservation and Regulation) Act, 1985, under which the said land in question is notified to be protected green park area and no construction thereon is permitted under the Comprehensive Development Plan (CDP) of the Bangalore City, as would appear from the Preamble of the BPAT Act, 1996. [IV] The learned counsels for the Respondent Assessees contended that merely because the possession of the lands in question is with the Respondent Assessees under the ....
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....as was done by the Assessing Authority in the impugned protective assessment orders, on the basis of the Guidance Value fixed by the State Government for this area. [VII] They further urged that in fact only a very small portion within 28 acres is allowed to be used for such events like marriages etc., which too is hedged with several conditions imposed by the Hon'ble Apex Court in the interim Order and such income is being regularly offered for income tax under the provisions of the Income Tax Act, 1961 and is being assessed by the Income Tax Authorities from time to time and income tax is being paid by the Assessees. [VIII] They also relied upon the decision of the Hon'ble Supreme Court in the case of S.N. Wadiyar (decd. through L.R.) Vs. Commissioner of Wealth-Tax [2015] 378 ITR 9 (SC), wherein under the provisions of the Urban Land Ceiling Act, the Hon'ble Apex Court has held that the compensation fixed under Urban Land Ceiling Act earlier was only Rs. 2.00 Lakhs for the entire property and therefore, Valuation could not exceed Rs. 2.00 Lakhs for the purpose of Wealth-Tax. [IX] The learned counsel for the Respondent Assessees further submitted that for some years, the Depart....
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....f tax on such assets in the hands of the assessees cannot be defeated. [III] He submitted that the lands in question are undoubtedly 'urban lands' falling within the Municipal Corporation limits and rather the same being in the heart of the Bengaluru City, cannot be said to be excluded from the tax net merely because some conditions are imposed for user of such lands for leasing them out from time to time for functions like marriages and other public functions from which huge income is generated and therefore, the said 'urban lands' cannot be said to be unproductive assets and being income yielding assets in the hands of the Respondent Assessees, cannot be exempted from the taxability under the provisions of the Wealth-Tax Act. [IV] The learned counsel for the Revenue further urged that merely because the lands in question are under the cloud of litigation which has been initiated by the Respondent Assessees themselves, they cannot claim the benefit of the said litigation by on one hand claiming that the lands stood divested from them and stood vested in the State and on the other hand, claiming to be the owners and contesting the acquisition by BPAT Act, tooth and nail and that ....
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....WealthTax in the hands of the Assessees. 21. We make it clear that we are not going into the aspect of 'Valuation' on the basis of which the Wealth-Tax can be finally imposed on the Respondent Assessees in the course of substantive assessments, because we are of the opinion that only 'Protective Assessments' have been made by the Assessing Authorities awaiting the final decision from the Hon'ble Apex Court as to whether the "Bangalore Palace (Acquisition and Transfer) Act, 1996" itself is constitutionally valid or not. A clear position about the 'ownership' would then emerge for the Respondent Assessees and the cloud over the 'ownership' of the Assets would also be removed, but the question before us as of now is in a different context about the taxability of the Assets during this period when the question of its 'ownership' is under the cloud of litigation and that is, as to whether in the context of the term "Assets" belonging to the Assessees on the Valuation Dates, whether they can be taxed under the provisions of the Wealth-Tax Act or not and therefore, we proceed to decide the aforesaid Substantial Questions of law to the limited extent of 'taxability' under the provisions o....
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....any area within 8 kms. from the local limits of any Municipality. The only exclusion is, where the construction of a Building is not permissible under any law for the time being in force or it is used as industrial land or is used as Stock-in-trade. 27. We are of the opinion that the lands in question belonging to the Respondent Assessees owned and possessed by them through out the period in question cannot be said to be the lands on which the construction of a Building is absolutely prohibited. The said exclusion terms 'construction of a building' does not prohibit construction of temporary or semipermanent structures made of wood or iron or sheds which are constructed from time to time for such public functions or some of them may be even almost permanently standing over the said lands, which are permitted to the Assessees under the interim Orders of the Hon'ble Apex Court. The lands in question are not absolutely barren vacant lands and there is also no dispute that the lands in question lie within the Municipal limits and which is the only criteria to decide whether the lands in question are 'urban lands' or not. It is true that no permanent construction of Building is permitt....
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....Court of India and they even claim that the valuation of the entire Bangalore Palace and the appurtenant lands thereto was around Rs. 3,000.00 Crores and that also shows that even though prima facie and without any doubt the Valuation of the assets is much higher than the cap of Rs. 11.00 crores claimed by the learned counsel for the assessees. In any case, we are not expressing any opinion on the 'Valuation' aspect as already indicated, but the fact remains that highly valued 'urban lands' and the 'urban lands' yielding income subject to the regulations and conditions imposed by the Courts of law or Government Regulations are not intended to be exempted from the levy of Wealth-Tax with effect from 01/04/1993, particularly, when the narrower concept of 'ownership' is not the crucial basis or sole determinative factor for levy in the Wealth-Tax Act but, allowing the Assessees to be covered by the tax net for the assets "belonging to the assessees on the Valuation Dates." 30. The relevant para 6 of the Synopsis of the Special Leave Petition filed by the brother, Sri. Srikanta Datta Narasimharaja Wadiyar along with connected Appeals by the Assessee Sisters against the State Governmen....
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....stay of dispossession till 30-4-97. Sd/- Sd/- Court Master Court Master" 33. The Interim Order passed by the Hon'ble Apex Court on 30/04/1997 in SLP (Civil)No.8801/1997 (Sri. Srikanta D.N. Wadiyar Vs. State of Karnataka and others) reads thus:- "SUPREME COURT OF INDIA RECORD OF PROCEEDINGS Petition(s) for Special Leave to Appeal (Civil) No.8801/97 (From the Judgment and order dated 31/3/97 in WP32175/96 of The HIGH COURT OF KARNATAKA AT BANGALORE. SRI SRIKANTA D N WADIYAR VERSUS STATE OF KARNATAKA & ORS SLP (Civil) No.8850/97, SLP (Civil) No.8860/97, SLP (Civil) No.9031/97, SLP(Civil)No.9033/97, SLP (Civil) No.9125-9126/97 Date: 30/04/97 These Petitions were called on for hearing today. CORAM: DR. JUSTICE A.S. ANAND MR. JUSTICE S.P. BHARUCHA MR. JUSTICE K.S. PARIPOORNAN For Petitioner (s): Mrs. Nalini Chidambram, Sr. adv. in SLP 8801/97: Ms. Shruti Pandey, adv. Ms. Mukti Sinha, adv. Mr. Venkatesh, adv. Ms. Indu Malhotra, adv. In SLP 8860/97: M/s. S. Sukumaran N. Naidu N. Reddy & Ramesh Babu M.R. advs In SLP 8850/97:Mr. K. Parasaran, Sr. adv. Mr. T.K. Seshadri, adv. Mr. Gowda, adv. Mr. Krishnamurthi Swami, adv. In SLPs 9031 & Mr. R.F. Nariman, Sr. adv. 9033 of 1997 M....
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.... Green, we are informed by the petitioners, does not exceed 30 Acres; v) That rest of the land i.e., parks and open space shall not be let out for any purpose by the petitioners; vi) That the petitioners shall maintain an upto date account of the charges received by them in respect of letting out of the premises; vii) That prior intimation shall be given to the State Government, while seeking permission, of the purpose for which the premises are required to be let out along with the period for which the premises are to be so let out and the particulars of the concerned parties to whom the premises would be let out; viii) That the State Government shall not refuse permission to let out the premises, on the aforesaid terms, so long as the purpose for letting out is not inconsistent with the object of the Act; ix) That the petitioners shall also be entitled to hire out the main Palace building also for the purpose of marriages etc. after giving prior intimation to the State; and x) That the State Government shall be entitled to depute any of its officer, after prior intimation to the petitioners, to find out whether the order above made is being complied with in letter a....
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....nt shall be entitled to impose a condition that no tree in the Palace property shall be cut during the period of use and no other activity involving hazards to the surroundings, buildings, land and the greenery in the Palace property shall be committed. 12. Permission shall be granted only for a short term by way of a permissive license and no long term transaction shall be entered into by the appellant. The period of use shall be within the discretion of the Government of Karnataka. 13. The permissive use of the property granted to the licensee shall not be transferred or alienated to any one else under any condition. 14. The Appellant shall maintain uptodate accounts of the amounts received by him in respect of the permission granted for the use of the property. 15. The State shall be entitled to depute any of its officials to ensure that none of the conditions imposed are violated by the person making use of the property. 16. All permissions and licenses granted shall without any further act or deed expire on the date of the order made by this Hon'ble Court disposing of the above appeal. 17. In respect of the land belonging to the other members of the Appellant's family (p....
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....sists of innumerable rights over property, for example, the rights of exclusive enjoyment, of destruction, alteration and alienation, and of maintaining and recovering possession of the property from all other persons. Such rights are conceived not as separately existing, but as merged in one general right of ownership. "Ownership" means a right which avails against every one which is subject to the law conferring the right to put thing to user of indefinite nature." (Austin) "Ownership" is a plenary control over an object. An owner has three kinds of powers, namely, possession, enjoyment and ownership. (Holland) "Ownership" does not always mean absolute dominion. The more an owner, for his advantage, opens up his property for use by the public in general, the more do his rights become circumscribed by the statutory and constitutional powers of those who use it." "Ownership" is the right by which a thing belongs to an individual, to the exclusion of all other persons". (2) Stroud's English Dictionary "Owner" the owner or proprietor of a property is the person in whom a (with his or her assent) it is for the time being beneficially vested and who has the occupation, or control....
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....ch is said to "belong" to a PERSON, connotes either ownership or the absolute right of user but if it is said to "belong" to some other thing or right, that connotes that it is held or used along with that other thing or right of which it is a part. (3).... (4) Property legally vested in a person, does not "belong" to him if he only holds it in trust for someone else, nor can it be said to be his "property" (Heritable Reversionary Co. v. Millar [1892] A.C. 598) (5)... (6).. (7) Lands "belong" to a vicarage even though the vicar has let them (Wiltshire County Valuation Committee v. Boyce [1948] 2 K.B. 125) (8) "Belonging to or intended for the use of the undertakers" (Rating and Valuation (Apportionment) Act 1928 (c.44), s.5(1)(c): see thereon Shell-Mex and B.P. v. Clayton [1956] 1 W.L.R. 1198, where it was held not inappropriate to describe goods as "belonging" to undertakers although the property therein was not in the full legal sense vested in them." (3) Black's Law Dictionary "Belong" To be the property of a person or thing <this book belongs to the judge>. See OWNERSHIP. 2. To be connected with as a member <they belong to the state bar>. (4) New Webster's Dictionary ....
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....ed 'no construction allowed thereon' under any law, which we find to be not totally prohibited. The temporary or even semi-permanent constructions on such lands also would take it away from the said exclusion in Clause (b) of the Explanation. As far as it being 'green park area', under 1985 State enactment is concerned, there is no material evidence on record nor any case of its full prohibition with the provisions of such Act is brought out in the present case. DISCUSSION OF CASE LAWS CITED AT THE BAR: 46. Let us now refer to the relevant case laws which support the aforesaid view taken by us. 47. In the decision of the Hon'ble Supreme Court which was heavily relied upon by the learned counsel for the Respondent Assessees in the case of Commissioner of Wealth-Tax, West Bengal Vs. Bishwanath Chatterjee and others (1976) 103 ITR 536 (SC), the Hon'ble Apex Court held that the liability to Wealth Tax arises out of the ownership of the assets and not otherwise. Mere possession or joint possession, unaccompanied by the right to, or ownership of property would therefore not bring the property within the definition of 'net wealth' for it would not then be an asset 'belonging to' the as....
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....parcenary had unity of possession but not unity of ownership on the property. Each coparcener, therefore, took a defined share in the property and was the owner of his share. Each such defined share thus "belonged" to the coparcener. It was his "net wealth" within the meaning of section 2(m) of the Act and was liable to wealthtax as such under section 3. The High Court was, therefore, right in answering the reframed question in the negative, and as we find no force in the argument of Mr.Desai, the appeal fails and is dismissed with costs." 50. The said judgment in its peculiar context held that since the share of the individual coparcener stood separately defined and acquired as his individual wealth that would be included in his 'net wealth' as defined share 'belonging to' the coparcener and in that context, the Hon'ble Supreme Court held as under:- "The expression "belong" has been defined as follows in the Oxford English Dictionary: - "To be the property or rightful possession of." So it is the property of a person, or that which is in his possession as of right, which is liable to wealth-tax. In other words, the liability to wealth-tax arises out of ownership of the asset,....
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....ht to retain that possession and resist any suit for eviction. The purchasers can also enforce a suit for specific performance for execution of a formal registered deed if the vendor was unwilling to do so. But, in the eye of the law, the purchasers cannot be and are not treated as legal owners of the property in question. It is not necessary, in our opinion, for the purpose of this case to be tied down with the controversy whether in India there is any concept of legal ownership apart from equitable ownership or not or whether under sections 9 and 10 of the Indian Income tax Act, 1922, and sections 22 to 24 of the Income-tax Act, 1961, where "owner" is spoken of in respect of house properties, the legal owner is meant and not the equitable or beneficial owner. Salmond on Jurisprudence, twelfth edition, discusses the different ingredients of "ownership" on pages 246 to 264. "Ownership", according to Salmond, denotes the relation between a person and an object forming the subject-matter of his ownership. It consists of a complex of rights, all of which are rights in rem, being good against all the world and not merely against specific persons. Firstly, Salmond says, the owner will h....
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.... not concerned in this controversy at the present moment. It has to be borne in mind that in interpreting the liability for wealth-tax, normally equitable considerations are irrelevant. But it is well to remember that in the scheme of the administration of justice, tax law like any other laws will have to be interpreted reasonably and whenever possible in consonance with equity and justice. Therefore, the fact that the Legislature has deliberately and significantly not used the expression "assets owned by the assessee" but "assets belonging to the assessee"' in our opinion, is an aspect which has to be borne in mind." 55. Another judgment relied upon by the learned counsels for the Assessees in the case of Commissioner of Income Tax Vs. Podar Cement Pvt. Ltd. and others [1997] 226 ITR 625 (SC) dealt with the concept of Section 22 under which Income from the House Property is taxable under the Income Tax Act, 1961, the Hon'ble Supreme Court held that, though under the Common law, a 'owner' means a person who has got valid title legally conveyed to him after complying with the requirements of law such as the Transfer of Property Act, the Registration Act etc., in the context of Sect....
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....nder a cloud of litigation, it does not render their right as contingent or spes succession is (hope to succeed). The Assessees may not even have a vested right in the property and even if the dominion, control and possession of the property continues to be with them during the period of litigation, the taxability under the Wealth-Tax Act is attracted and therefore, the rights over the 'urban lands' with the Assessees, in the present case cannot be said to be a mere spes successionis (hope to succeed) or a contingent right. 62. In the case of Commissioner of Wealth-Tax Vs. H.P. Small Industries & Export Corp. [2012] 22 Taxmann.com.32(Himachal Pradesh), the Division Bench of the Himachal Pradesh High Court in a judgment delivered by his Hon'ble Justice Deepak Gupta J. (as his Lordships then was) held that though the language of Wealth-Tax Act and the Income Tax Act may be different in as much as the words used in the Wealth-Tax are 'belonging to' and in the Income Tax Act, the words used are 'owner', there can be no dispute that 'belonging to' has to be given a much wider connotation than the word 'owner'. 63. The Court further held that the words 'belonging to' have to be read al....
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....n question, therefore, even though the question of ownership is subject to litigation, they should be held to be liable to pay the Wealth-Tax for the Assessment Years in question. 66. The learned counsel for the assessee also relied upon the decision of the Delhi High Court in the case of Commissioner of Wealth Tax Vs. D.C.M. Ltd. [2007] 290 ITR 0615 (Del), in which the Division Bench of the Delhi High Court held in peculiar facts as under: "The first appellate authority had proceeded on the assumption that now orders of Supreme Court dt. 1st May, 1991, qua redevelopment had been permitted of the mill area to flatted factory complex and group housing complex. Leave was also granted to demolish the existing building. It is not in dispute before us that till date no permission/approval has been granted by the appropriate authority to the assessee to raise the building in consonance with the plans and as such the old structure existing is not in conformity with law and had not been raised with the leave of any authority. In other words, on the land in question, no construction was permitted and the authorities concerned have not granted its approval so far for raising construction o....
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.... and B. This is done so that such income/wealth may not escape taxation altogether. This has been held to be quite sensible because the Revenue has to be protected against the bar of limitation. If the Income-Tax Authorities are precluded from making an alternative assessment, then by the time the disputes are over, the real assessment would be barred. But while "protective assessment" is permitted, protective recovery is not allowed. It is one thing to say that the Authorities are merely making an assessment and another thing to say that at one and the same time they could not only make assessment in respect of one set of dues but proceeds to realize both. 71. Thus, until there is a final assessment in existence the raising of alternative assessment by the Revenue cannot be prevented. Besides, the assessment to tax is one of the processes open in law to adjudicate the title of the parties or the shares of the parties or in the context of Wealth-Tax, whether the asset 'belongs to' the Assessee on the Valuation Date. The powers of the Assessing Officer are also, so far as Revenue purposes are concerned, plenary in the sense he has to decide who is the owner and to whom does a parti....