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TMI Blog1987 (8) TMI 165X X X X Extracts X X X X X X X X Extracts X X X X ..... tax assessment for the year 1971-72. The WTO accepted the value declared by the assessee for the building in the course of the assessment made by him on 18-4-1981. Later, he proceeded to reopen the assessment by issuing a notice under section 17(b) of the Act on the ground that the house consisted of substantial vacant land, which was not appurtenant to the main building and as the exemption under section 7(4) has to be limited only to the house and the appurtenant land and not to other vacant land, he thought that the wealth represented by the market value of the vacant land has escaped assessment. For coming to the above conclusion, he is stated to have depended on an order of the Commissioner (A) dated 25-10-1983 in the case of S. Ramsay ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ces, it is contended that the reopening of the assessment as bad. In any case, it is contended that the entire land on which the building is located is appurtenant to it and is not capable of independent development. The building has a width of 106' on the road and is nearly 200' in depth. In the front, 60' is left vacant in which a small garden is developed. Considering the locality of the building and the status of the persons occupying it, it is contended that the vacant land in front of the building cannot be considered as anything other than land appurtenant to the building. It is pointed out that the departmental valuer has clearly stated in his report that this vacant land is not capable of independent development and as such it is p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , an extent of land not exceeding one-third of the plinth area of the building comprising the dwelling unit or units at the ground level contiguous to the land occupied by such building." 4. In the light of the above definition, it is stated that the vast extent of land left open in the building cannot be considered as appurtenant land and so will not be entitled to benefit of section 7(4). 5. After considering the rival submissions, we are of the opinion that the assessee is entitled to succeed in her appeal. In the original assessment the assessee had declared the value of the building on the basis of valuation report of the departmental valuer for the asst. year 1971-72. Indeed, this is the value taken by the WTO for that asst. year. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nant land which is absolutely necessary for the proper enjoyment of the property and not for the remaining part of the land. In our opinion, this observation of the CIT (A) cannot be considered to be information, so as to clothe the WTO with the power to reopen the assessment in that or any other case. There were no arguments before the CIT (A) in that case whether the appurtenant land would also be entitled to such benefit or not. In the circumstances, it merely constitutes an opinion expressed by him and cannot be considered as a judicial pronouncement, so as to be considered as "information" within the meaning of section 17(b). In the circumstances, we are of the opinion that the reopening made by the WTO is not based on any valid inform ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t in the case of CIT v. Zaibunnisa Begum [1985] 151 ITR 320 was considering the meaning of the words 'the land appurtenant' appearing in section 54 of the Income-tax Act, 1961. They laid down some tests in order to find out the extent of the land that can be considered as appurtenant to the building. Some of the tests laid down were : (i) if the building together with the land is treated as an indivisible unit and enjoyed as such by the persons occupying the building, it is an indication that the entire extent of the land is appurtenant to the building; (ii) if the building has extensive lands appurtenant thereto and even if the building and the land have been treated as one single nit and enjoyed as such by the occupiers, an enquiry could ..... X X X X Extracts X X X X X X X X Extracts X X X X
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