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TMI Blog2002 (7) TMI 52X X X X Extracts X X X X X X X X Extracts X X X X ..... in the negative, i.e., in favour of the Revenue and against the assessee and question No. 2 in the affirmative, i.e., in favour of the assessee and against the Revenue. - - - - - Dated:- 3-7-2002 - Judge(s) : Y. R. MEENA., SHASHI KANT SHARMA. JUDGMENT On an application under section 27(1) of the Wealth-tax Act, 1957 (hereinafter referred to as "the Act of 1957"), the Tribunal has referred the following questions for our opinion: "1. Whether, on the facts and in the circumstances of the case, the Tribunal was justified in upholding the finding of the Commissioner of Wealth-tax (Appeals) that the assessee is entitled to deduction under section 5(1)(iv) of the Wealth-tax Act, 1957, from the interest of the assessee in the immovable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unal has not upheld the validity of reopening of the assessment holding that mere change of opinion does not confer any right to reopen assessment under section 17(1)(b) of the Act of 1957 but on the merits the Tribunal upheld the view taken by the Commissioner of Wealth-tax (Appeals). Mr. Mathur, learned counsel for the Revenue, submits that if reopening is not valid under section 17(1)(b) of the Act of 1957, there is no question of any deduction being allowed under section 5(1)(iv) in appeal. When the original deduction was allowed under section 5(1)(xxxii) of the Act of 1957 that cannot be changed into deduction under section 5(1)(iv) of the Act of 1957, when the reassessment is not valid. He further submits that in reopening, the Weal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and not to the assessee, therefore, on the merits also, the assessee is not entitled for any deduction under section 5(1)(iv) of the Act of 1957. Mr. Kasliwal submits that the firm and partner are one and same thing, therefore, the property belonging to the firm also belongs to the partner, and, the partner is entitled for deduction under section 5(1)(iv) of the Act of 1957. In Indian and Eastern Newspaper Society v. CIT [1979] 119 ITR 996 (SC), the issue before their Lordships was whether on the same material or on audit report the Assessing Officer can reopen the assessment under section 147(1)(b) of the Act. At page No. 1003, their Lordships observed as under: "The Income-tax Act does not contemplate such power in any internal audit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nnot change the relief without reopening of the assessment even if that relief was wrongly allowed but when the Wealth-tax Officer has no power to reopen the assessment, he cannot change the relief. Therefore, whatever relief has been allowed wrongly or rightly, i.e., under section 5(1)(xxxii), that remains. On the merits also, the assessee is not entitled for deduction under section 5(1)(iv), as assessee is not the owner of the house and building, therefore, the Commissioner of Income-tax (Appeals) as well as the Tribunal had committed error in allowing the relief under section 5(1)(iv). Specially the Tribunal, which has held that the reopening is bad, but even then relief under section 5(1)(iv) has been allowed which was not allowed in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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