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TMI Blog1983 (9) TMI 138X X X X Extracts X X X X X X X X Extracts X X X X ..... n at any earlier stage should not be permitted to do so as an afterthought. In support, he relied on the decision of the Gujarat High Court in CIT v. Sumantbhai C. Munshaw [1981] 128 ITR 142. Where an authority does not lack inherent jurisdiction but acts in contravention of a mandatory provision, it may perhaps be open to an aggrieved party to waive its objection to such breach in certain circumstances and in such an event, perhaps, the contention raised by the learned departmental representative would be entitled to consideration. However, where the point raised contests the very assumption of jurisdiction itself, it is open to an assessee to contest the same at any stage even though such plea was not taken initially, or even at the first appellate stage. If an authority for this view is necessary, there is the decision relied on by the learned counsel for the assessee of the Gujarat High Court in P. V. Doshi v. CIT [1978] 113 ITR 22 where the Gujarat High Court has held that the conditions which have to be fulfilled for initiation of action under section 147 of the Income-tax Act, 1961 ('the 1961 Act') are mandatory safeguards prescribed in the public interest and there can neve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... allotted under the provisions of section 139A. He also submitted that Explanation (b) to the aforesaid provision stated that 'permanent account number' meant a number which the ITO may allot to any person for the purpose of identification. He also referred to the Board's Notification No. SO 274(E), dated 1-4-1976, reproduced at page 553 of the Taxmann's Direct Taxes Circulars, Vol. 1, 1980 edn., which provided that permanent account numbers allotted prior to 1-4-1976 would be deemed to be permanent account numbers allotted under section 139A, with effect from 1-4-1976. He also referred to the scheme of permanent account numbers which had been set out in the Press Note of the Board and stated that the notation 'H' applied only to HUF and 'P' applied to individual and, therefore, it was clear from the permanent account number 305 that the notice was issued to the HUF. According to him, the description of the assessee was, therefore, complete and the notices issued were valid. 5. The learned counsel for the assessee, in reply, submitted that the question for consideration was not whether the assessee understood whether the notices were issued in the status of HUF or not, but the qu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ir, Sub: P.A. No. 42-003-0276-Spl. III-Hyd. Sri M.T. Raju, HUF --- Notice under section 17 of the Wealth-tax Act --- Assessment years 1966-67 to 1969-70. (1966-67) In the above matter you were pleased to serve the above notice on the assessee to file the wealth-tax returns of the HUF for the above years. We are herewith filing our letter of authority for each year given by the above assessee in our favour. As you are aware the assessee has to gather information with regard to the sales of plots of land in New Colony, Visakhapatnam, from the years 1965-66 onwards yearwise and the assessee has been making efforts to gather the information. The assessee is preoccupied with the current Parliament till the middle of May and he will not be in a position to gather the particulars till the end of May. The assessee instructed us to request you to grant time till the end of June 1975 to file the returns. " Here again, it would be noticed that the permanent account number was quoted by the assessee. In the number, '0276', the zero is a typograhical error for '9'. The present is, therefore, a case where correspondence was being exchanged earlier between the assessee-HUF and the WTO whe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... see. Where such is the case, the description of the status may be indicative of the fact that a particular assessee is sought to be proceeded against and if sanction of the Commissioner is obtained for proceedings against that assessee, such sanction cannot be availed of for the purpose of initiating proceedings against another assessee who would be indicated by the description of the status the other way. ' This was a passage which the learned judges extracted from the decision of the Bombay High Court and the learned judges referred to the same with approval. Now, the facts above stated would disclose that the status of the assessee is inextricably mixed up with the question as to who is the assessee. We have already noted that the joint family was never an assessee and it was only the karta who was all the time the assessee in his individual capacity. Therefore, when section 148 notice of July 30, 1967, was given to the assessee simply, without clarifying that it was with reference to the joint family, that notice cannot be taken advantage of to start proceedings under section 148 against the Hindu joint family. " The case before the Andhra Pradesh High Court was one where t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed in the wealth or the income therefrom could not be considered in the hands of the individual and it is academic for the Assessing Officer to consider whether the land is agricultural or not while dealing with the case of the individual. Hence, there is no change of opinion also. Therefore, we have to come to the conclusion that initiation of proceedings under section 17 was valid for each of the assessment years 1966-67 to 1969-70 inclusive. 10. The next contention which arises in each of the assessment years 1966-67 to 1976-77 is whether the lands situated at Dibbalapalem in Visakhapatnam were agricultural lands or not. In the assessment year 1966-67, the area of such land was about 18 acres. About half of the land was sold in December 1966. The balance of 9 acres, therefore, alone comes up for consideration in the assessment years 1967-68 to 1976-77. The WTO has examined the nature of the land in detail in his assessment order for the assessment year 1970-71. The conclusion arrived at by him in that year has been followed in the remaining years. The WTO found that in all 18 acres of land had been purchased from Coromandel Co. (P.) Ltd. on 25-1-1957 for a total consideration ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al data in the light of the contentions of the assessee that the lands were agricultural lands which have been summarised in the assessment order for 1970-71 as under : " (i) The lands were subjected to land revenue (copies of the revenue receipts were filed). (ii) Certified copy of the entries made in the Adangal Register of Dibbalapalem, wherein dry crops like 'ganti, chodi, ulava' were shown to have only been grown. (iii) No vacant land tax under section 85 of the A.P. Municipalities Act was ever levied with the result it must be presumed that the land in question was used for agricultural purposes only. (iv) The land in question was never converted for non-agricultural use, although at one point of time he thought of converting into non-agricultural land by applying to the municipality but later on the said idea was dropped. (v) Relying on the aforesaid pieces of evidence the assessee urged that his case squarely falls within the ratio laid down by the Andhra Pradesh High Court in the case of Officer-In-Charge (Court of Wards) v. CWT [1969] 72 ITR 552 (FB) and as such it should be treated as agricultural in nature. " According to the WTO, an overall appraisal of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the plea that the land, having regard to the evidence on record, was clearly agricultural in nature. We shall advert to these decisions when discussing the contentions of parties later. 15. On behalf of the revenue, stress was placed on the fact that the letter of the Commissioner of Visakhapatnam Municipality dated 28-5-1976 itself showed that a lay-out for the land in question was approved on 27-6-1960. Hence, it was stated, though no conversion fee was paid, it was clear that the assessee had intended to use the land for non-agricultural purposes only. Further, it was stated that though there was mention in the Adangal Register about crops being grown, the Revenue Inspector, when cross-examined on what he had seen during spot inspections, had categorically mentioned that no agricultural operations were carried on at any time. Therefore, the entries in the Adangal Register, according to the learned departmental representative, did not advance the assessee's case any further. According to him, when proceedings were taken under the Agricultural Land Ceiling Act, it had been declared by the assessee that the land in question was an urban land. The learned departmental representati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... land, viz., that it was in a well developed area within the municipal or city limits. The presumption could be rebutted only by showing that agricultural user was a stop-gap arrangement, etc. The decision in CIT v. Vajulal Chunilal (HUF) [1979] 120 ITR 21 (Guj.) is again authority for the proposition that entries in the record of rights are good prima facie evidence regarding agricultural land and if the land was actually used for agricultural purposes, it would be agricultural land and the mere fact that permission had been granted for sale of agricultural land to a non-agriculturist would not make the land cease to be agricultural land. This would be the position as long as the conditions for the permission were complied with. In Addl. CIT v. Tarachand Jain [1980] 123 ITR 567 (Pat.), it was stated that the real intention of the owner has to be ascertained and the character of the adjoining lands was also relevant. In CIT v. Siddharth J. Desai [1983] 139 ITR 628 (Guj.), the land purchased was agricultural land. It continued to be listed as agricultural land in revenue records and for a period of three years after purchase, agricultural operations were actually carried on. The asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is version being discredited. In a declaration before the revenue authorities in connection with the Agricultural Land Ceiling Act, the WTO found that the assessee had claimed that the lands were urban lands and, therefore, did not fall under the purview of the said Act. This statement of the WTO does not stand controverted in any manner. Under the Urban Land Ceiling Act, declarations were filed in which the land in question was shown as agricultural land. Therefore, since a different stand has been taken in either declaration, the statements in the declarations themselves do not advance the case of either the assessee or the revenue. Considering that a lay-out had been applied for as far back as 1960 and had been approved and that it has not been established that any agricultural operations were actually carried on in the land at any time, the entries in the Adangal Register stand offset by the statement of the Revenue Inspector who had actually made the inspection and that at the time of subsequent agreement of sale in 1971, again the advance was said to have been received in respect of land lay-out of which was approved in 1960, we consider that it has not been established that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. We find that at the stage of appeal before the AAC, the objections of the assessee were put to the Valuation Officer who filed a very elaborate report before the AAC dated 11-3-1980. This was also put to the assessee who made very detailed submissions in his turn on the same. However, these submissions do not stand ex facie analysed in the order of the AAC. It is necessary for a proper valuation to be done to have these submissions properly analysed and adjudicated upon. The submission of the learned counsel for the assessee was that in the case of a relation, i.e., WT Appeal Nos. 148 to 155 (Hyd.) of 1978-79, dated 28-2-1979, the Tribunal had gone into the question of the valuation of certain lands of Visakhapatnam and had considered a value of about Rs. 4 per sq. yd. to be in order. According to the learned Valuation Officer, these lands were differently situated. Since considerable material is available on record which had not been discussed, we are unable to arrive at a conclusion regarding the valuation to be adopted of the land for the assessment years 1967-68 to 1972-73. We, therefore, set aside the valuations as made by the AAC and restore the matter to his file in respe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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