9911796707
TMI Blog2012 (8) TMI 595X X X X Extracts X X X X X X X X Extracts X X X X ..... Vijay Pal Rao, Judicial Member This appeal by the assessee is directed against the order dated 4.8.2009 of the CWT(A) for the Assessment Year 2001-01. 2. The assessee has raised the following effective grounds in this appeal: "1. The learned Commissioner of Wealth Tax (Appeals) - XXVI [CWT(A)] erred in upholding the assessment u/s. 16(3) r.w.s. 17 of the Wealth Tax Act, 1957. 2. The learned CWT(A) erred in confirming the action of the Assessing Officer in reopening the assessment by issuing notice u/s. 17 of the Act and passing the order. 3. The learned CWT(A) erred in confirming the action of the Assessing Officer in passing the order u/s. 16(3) without issuing the notice uls.16(2) within the stipulated time. 4. The learned CWT(A) erred in confirming the action of the Assessing Officer in valuing the Awas Property at Rs. 22,22,068 at cost as against the same being included in the return at Rs. 26,563 under Third proviso to Rule 3 of Schedule Ill to the Act. 5. The learned CWT(A) erred in confirming the action of the Assessing Officer in holding that the Awas property was not exclusively used for residential purposes throughout the period of 12 months ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in question was not let out and therefore, it was in the occupation and use of the assessee alone. He has further submitted that the lower authorities have misinterpreted the third proviso to Rule 3 of Schedule III of W T Rules and held that the said house should be exclusively used by the assessee for his residential purpose to mean that he should stay and reside in that house only and no other house. The ld AR has submitted that the requirement of the said proviso is not that the assessee has to use only the said house for residence and no other house. He has further submitted that the requirement is fulfilled, if the house in question has not been used by any other person than the assessee. Exclusive user of the house should be the assessee and therefore, when the assessee has not let out the house to any other person and exclusively used by the assessee for his residential purposes. The ld AR has further submitted that when an assessee has more than one residential house and the same are not let out, each of the house is in exclusive possession of the assessee and the same is also used for his residential purposes though may not be on each and every day. The authorities below h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... : Provided that in relation to any such property which is constructed on leasehold land, this rule shall have effect as if for the figure 12.5,- ( a ) where the unexpired period of the lease of such land is fifty years or more, the figure 10.0 had been substituted ; and ( b ) where the unexpired period of the lease of such land is less than fifty years, the figure 8.0 had been substituted : Provided further that where such property is acquired or construction of which is completed after the 31st day of March, 1974, if the value so arrived at is lower than the cost of acquisition or the cost of construction, as increased, in either case, by the cost of any improvement to the property, the cost of acquisition or, as the case may be, the cost of construction, as so increased, shall be taken to be the value of the property under this rule : Provided also that the provisions of the second proviso shall not apply for determining the value of one house belonging to the assessee, where such house is acquired or the construction whereof is completed after the 31st day of March, 1974, and the house is exclusively used by the assessee for his own residential purposes throughout ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the assessee. 5.3 Thus, the language of the third proviso and 4th proviso makes it clear that there may be more than one house and in that case the assessee may not stay in all the house; but still the benefit of third proviso is available to the assessee at his option to one of such house and no inference can be made from the proviso to Rule 3 that staying in the house is a mandatory condition. Otherwise, 4th proviso would become meaningless/otiose. 6. On this point, the decision of the Full Bench of the Hon'ble Madras High Court in the case of Smt Muthu Zulaikha ( supra ) is relevant. The Hon'ble High Court has discussed and adjudicated this issue in paras 15 16 as under: "15 The purpose should be residential, meaning thereby it should not be used for commercial or non-residential, and it should be used exclusively for residential purposes. So, the argument of learned senior standing counsel for the Revenue that it should be read as "solely for residential purposes by the assessee" is not acceptable. What is required is that the house should have been exclusively used by him for residential purposes throughout the period of 12 months immediately preceding the valu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the said property in favour of any other person, that is to say, there is no element of right in the property of any other person in the house, and so long as the property is not used for non- residential purposes, we hold that the assessee has satisfied the ingredient, viz. , "exclusively used by her for residential purposes throughout the period of twelve months immediately preceding the valuation date" under section 7(4) of the Act. We hold that the assessee, on the facts of the case, has satisfied all the conditions prescribed in section 7(4) of the Act to get the benefit of the said sub-section." 6.1 It is clear from the decision of the Full Bench of the Hon'ble Madras High Court ( supra ) that residential purpose means, it should not be used for commercial or non-residential purpose and it should be used exclusively for residential purpose. What is required is that the house should have been exclusively used by the assessee for residential purpose and should not have been let out for rent or used for any commercial or non- residential purpose. 6.2 It has also been clarified the right of the property alone will play a role. What is to be seen is the intention of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
