9911796707
TMI Blog2002 (4) TMI 13X X X X Extracts X X X X X X X X Extracts X X X X ..... r the Act. Facts The facts, in a nutshell, as stated by the appellant, are as follows: The assessee filed the return of wealth for the assessment year 1992-93 under protest. According to the assessee, the immovable property being office premises at Maker Chambers III, Nariman Point, and land being non-agricultural land at Village Durmal, Nadiad, were not chargeable assets under the Act. The office premises had been temporarily let out. The assessee held shares of the co-operative society in which the said office premises were located. The shares held in a cooperative society were not chargeable to tax under the Act. As regards the non-agricultural land, the ownership thereof was in dispute. The suit filed by the assessee against the person in occupation of the said land had been dismissed by the District Court at Nadiad, as such the contention was that the land was not includible in its net wealth. A note in support of its claim that the assets were not liable to wealth-tax was enclosed along with the return, without prejudice, the wealth was computed recording due protest at Rs. 27,00,559 and, wealth-tax in the sum of Rs. 54,001 was paid under protest. The Assessing Office ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ee, the following adjustments shall be made in the net wealth declared in the return, namely: (i) any arithmetical errors in the return, accounts or documents accompanying it, shall be rectified; (ii) any exemption or deduction, which, on the basis of the information available in such return, accounts or documents, is prima facie admissible but which is not claimed or made in the return, shall be allowed; (iii) any exemption or deduction claimed or made in the return, which, on the basis of the information available in such return, accounts or documents, is prima facie inadmissible, shall be disallowed: Provided further that where adjustments are made under the first proviso, an intimation shall be sent to the assessee, notwithstanding that no tax or interest is found due from him after making the said adjustments: Provided also that an intimation for any tax or interest due under this clause shall not be sent after the expiry of two years from the end of the assessment year in which the net wealth was first assessable.... (2) Where a return has been made under section 14 or section 15, or in response to a notice under clause (i) of sub-section (4) of this section, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... could not have entertained further appeal at the instance of the present assessee. In his submission, the Tribunal was wrong in entertaining an appeal at the instance of the assessee for want of order of assessment. He submits that there is a conceptual difference between intimation and assessment. Since there was no determination and/or assessment, appeal was not maintainable. Alternatively, the learned counsel for the Revenue urged that the assessee did not deny its liability to be assessed under the Act, as such appeal was not tenable. There must be a total denial of liability of being assessed under the Act for the purposes of falling within the purview of the phrase "denial of liability of being assessed". In his submission, the grounds of appeal, which are included in the paper book, did not indicate that the assessee was denying its liability to be assessed under the Act. He pointed out that the assessee merely challenged illegalities or irregularities in the intimation issued under section 16(1)(a)(i) of the Act. There was no submission that the Act itself did not apply to the facts of the case or that the assessee could not have been assessed under the Act at all. In v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 35(1) of the Indian Income-tax Act, 1922. On the strength of the said observations, learned counsel for the Revenue contended that, in the absence of any specific provision permitting an appeal against the order under section 16(1)(a)(i), the assessee could not have been allowed to take shelter under section 23(1A) of the Act simply to deny its liability to be assessed once it had voluntarily declared its assets for being assessed under the Act. Per contra, Ms. A. Vissanji, learned counsel far the assessee, submits that mere filing of a return does not tantamount to acceptance of liability. In support of this submission, she relied upon the judgment in the case of Rani Anand Kunwar v. CIT [1940] 8 ITR 126 (Oudh); AIR 1940 Oudh 52. She submits that intimation under section 16(1)(a)(i) of the Act has to be preceded by an order accepting return. The Assessing Officer has to make an endorsement in the nature of formal order, on the return accepting it, and, then only, an intimation is sent out to communicate acceptance thereof coupled with demand for tax, if any. She submits that the intimation is nothing but communication of the order accepting the return. In her submission, se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssment of the assessee and, therefore, an appeal to the Commissioner (Appeals) was very much maintain-able under section 23(1A)(a) of the Act. Learned counsel for the assessee further submitted that even an assessee who denies his liability to be assessed under the provision or provisions of the Act is also entitled to a right of appeal. The word "assessed" has been used in a comprehensive sense to mean and imply the whole procedure necessary for ascertaining and imposing the liability on the taxpayer. The words "under this Act" clearly show that reference in section 23(1A) is to the whole procedure laid down in the Act imposing liability on the taxpayer. The denial of liability to be assessed may be in respect of the entire wealth or a part thereof. The total denial of liability may be based on any ground, whether of fact or law or denial of liability may be under particular circumstance. Each case is to be decided on its own facts. She submitted that in the case at hand, the assessee had filed a return of wealth under protest to avoid any further demand for additional tax under the Act. In the note appended to the return, it was contended that the assets were not chargeable to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r of the Tribunal. Consideration Having heard the parties at length, we are constrained to observe that the parties tried to canvass their rival contentions and views on the larger canvas. We do not propose to decide the question of law in abstract. We propose to confine ourselves to the facts and circumstances of the case before us. From the facts narrated hereinabove, it is not in dispute that the assessee filed appeal against the order of assessment passed by the Assessing Officer under section 16(1)(a)(i) of the Act for not having allowed the claim to which it was entitled. In our opinion, without going to the various contentions raised by the assessee, the main contention raised by learned counsel for the Revenue, if considered and dealt with, must decide the question raised and involved in this appeal. The submission of the Revenue was that the assessee had filed a return and declared its assets, accordingly, it was assessed to tax without any variation. It had voluntarily declared its assets and brought it into the assessment without any objection, thereby, the assessee had subjected itself to the assessment by voluntarily filing the return, as such, the assessee could ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ms are accepted, the dispute shall end, if not, they cannot be used against the writer. In the commercial world, the words "without prejudice" normally import into any transaction that the parties have agreed that as between them-selves the receipt of money by one and its payment by the other shall not, of themselves, have any legal effect on the rights of the parties, but they shall be open to settlement by legal controversy, as if money had not been paid. In common parlance, "without prejudice" denotes protest. In the case in hand, the words "without prejudice" were used to convey to the Assessing Officer that mere filing of return and payment of tax shall have no effect on the rights of the assessee and it shall be open to claim settlement of the controversy as if it has not filed the return under the Act. Filing of return "without prejudice" to the legal rights signifies filing or submission of the return accompanied by a declaration that if the protest is accepted, the dispute shall end, if not, mere filing of return will not be allowed to be used against the assessee implying its admission. "Without prejudice" implies future rectification in accordance with law. Having noti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... consideration. Therefore, in the facts and circumstances of the present case, the very fact that the asses-see had filed its return under protest will have to be treated as denial of liability to be assessed under the Act. This would enable the assessee to acquire the right of appeal under section 23(1A)(a) of the Act. Apart from the above findings recorded by us, we may observe that there is no dispute that the assessee was not liable to pay wealth-tax. The issue on the merits has now been concluded in the case of the assessee itself by the judgment of this court in the case of CWT v. Cema P. Ltd, (now known as Apar Limited) [2001] 248 ITR 629 (Income-tax Appeal No. 174 of 2000), decided on February 28, 2000, wherein it has been ruled that the office premises in the nature of business asset are not liable to wealth-tax, The same was the contention raised in the return filed by the assessee without prejudice to its legal rights. In the above backdrop, we are also of the opinion that the assessee had raised a valid contention that the assessee was not liable to be taxed under the Act. A detailed note was appended to the return justifying the assertion made by the assessee. In this ..... 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