9911796707
TMI Blog2015 (8) TMI 186X X X X Extracts X X X X X X X X Extracts X X X X ..... to which the assessee filed the wealth tax return disclosing net wealth of Rs. 5,69,98,800/-. 3. During the course of assessment proceedings the AO noted that the assessee has claimed the following properties as exempt assets u/s.2(ea)(i)(3) of the Wealth Tax Act : 1. Property at Joshipeth, Jalgaon-Rs.7,50,000 2. Property at Vidyaniketan Society, Aurangabad-Rs.6,75,000/- 3. Property at Chembur, Mumbai-Rs.3,01,88,525/- 4. Property at Fort Mumbai-Rs.24,83,59,000/- 5. Property at Siddachal Shopping Complex, Pokhran Road, Thane-Rs.3,04,50,900/- Rejecting the various explanations given by the assessee the AO added the value of the above properties to the net wealth and determined the net wealth at Rs. 36,74,22,230/-. 4. Before CIT(A) the assessee made elaborate submissions. Based on the arguments advanced by the assessee the Ld.CIT(A) upheld the addition made by the AO to the net wealth in relation to the property situated at Joshipeth, Jalgaon and at Vidya Niketan Society, Aurangabad for which the assessee is not in appeal before us. 5. So far as the addition of the value of the 2 immovable properties situated at Mumbai and one at Thane amounting to Rs. 30,89,98,425/- is conc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... act that the assessee was earning income from house property and offering the same to tax under the Income Tax Act, after claiming deduction as provided in section 24 of the said Act, is also of no consequence...." Therefore, A.O's contention is not correct. (c) Considering entire facts, copies of purchase-deed and lease rent agreement of said properties, which was rented out to "The ORIENTAL BANK OF COMMERCE", I am of the considered opinion that these three properties are certainly used for Banking Business. Therefore, there is no doubt that these three Bombay properties cited supra are certainly in use for commercial establishment within the meaning of "commercial establishment or complex" as per provision of section 2(ea)(i)(5) of W.T Act and hence, these properties are not liable to wealth tax. (d) In view of the above narrated facts and in the circumstances of the case, the addition made of value of ? 30,89,98,4257-in respect of properties situated at situated at (i) Siddhachal shopping complex, Ground floor Phase-1,Siddhachal Complex,2nd Pokhran Road of Thane, (ii) Khushali CTS no.1358.Plot No.358, Central Avenue Road, (near Diamond Garden),Chembur.(iii) Mumbai Fort p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be in the form of commercial establishments or complexes which further implies that a single unit of property like shop or office will not qualify and only the property in the nature and shape of having more than 1 unit of commercial establishment together can be termed as commercial establishments and will qualify under this section like malls etc. He accordingly submitted that the order of the CIT(A) should be reversed and that of the order of the AO be restored. 8. The Ld. Counsel for the assessee on the other hand heavily relied on the order of the CWT(A). He submitted that the decision relied on by the AO in the case of Nutan Warehousing Co. Pvt. Ltd. (Supra) has been set aside by the Hon'ble Bombay High Court to the file of the AO. Therefore, the same is no longer binding and cannot be followed. Referring to the decision of the Hon'ble Gujarat High Court in the case of Vasumatiben Chhaganlal Virani reported in 37 taxmann.com 216 he submitted that the Hon'ble High Court in the said decision has held that sub-clause(5) of clause (i) of section 2(ea) nowhere requires that a commercial establishment or complex cannot be established in a house property. It only provides that any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... O denied the exemption claimed by the assessee in respect of the properties situated at Thane, Chembur and Fort Mumbai on the ground that these are single immovable properties and do not quality as commercial establishment, which according to the AO denotes wide agglomeration of many units and as such cannot be termed as commercial establishment. Further, the assessee has given the immovable property at Chembur, Fort and Thane on rent, the income from which are shown under the head "income from house property" in the return of income filed under the income-tax Act. We find the Ld.CWT(A) allowed the claim of the assessee for non inclusion of the same in the net wealth by following various decisions which has already been reproduced in the preceding paragraphs. We do not find any infirmity in the order of the CWT(A) on this issue. So far as the decision of the Pune Bench of the Tribunal in the case of Nutan Warehousing Co. Pvt. Ltd., (Supra) is concerned we find the Hon'ble Bombay High Court vide WTA Nos. 2807,2808,2925,2926,3421/2010 order dated 16-06-2011 has restored the issue to the file of the AO for reconsideration of the issue afresh by observing as under : "2. The question r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y speaking, in the present case the issue relates to commercial properties which have been let out by the assessee to different business entities. The claim of the assessee is that the said properties do not fall within the definition of the expression 'assets' contained in section 2(ea)(i) because of the specific exclusion provided in Explanation (5) below section 2(ea)(i) on the ground that they are in the nature of "commercial establishments or complexes". 8. Explanation (5) below section 2(ea)(i) covers any property in the nature of "commercial establishments or complexes". As per the Revenue, the aforesaid properties, though being used for commercial activities, are let out by the assessee. According to the Revenue, the said properties are not being used by the assessee for the purposes of his own business. The Pune Bench of the Tribunal in the case of Satvinder Singh (supra) has observed that in order to cover a case under Explanation (5) below section 2(ea)(i), it is not necessary that the property in the nature of commercial establishment or complex should be occupied by the assessee for the purposes of business or profession carried on by him as was the case in E ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
