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TMI Blog2012 (3) TMI 638X X X X Extracts X X X X X X X X Extracts X X X X ..... the property situated at Rishikesh. (4) That the ld. CWT (A) has erred in law as well as on the facts and circumstances of the case in deleting the addition of wealth of ₹ 2,43,89,750/- made on a/c of the share in property situated at Station road, Alwar. (5) That the ld. CWT (A) has erred in law as well as on the facts and circumstances of the case in deleting the addition of wealth of ₹ 30,49,500/- made on a/c of share in property situated at Kush Marg, Alwar. (6) That the ld. CWT (A) has erred in law as well as on the facts and circumstances of the case in deleting the addition of wealth of ₹ 5,68,00,000/- made on a/c of share in property situated at Nagli Khora, Alwar. (7) The department reserves its right to add, alter, modify, delete or amend all or any of the grounds of appeal before or at the time of hearing of appeal. 3. At the very outset, the ld. A/R of the assessee stated that all the issues involved in the appeal of the department are covered by the orders of Tribunal in case of assessee himself and in case of Smt. Nirmala Devi Data. Copies of the orders of the Tribunal decided in WTA No. 1 to 5/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al unit was running over it. The industrial unit was running with the permission of the then competent authority. The appellant applied for the construction over the said asset to the UIT, and it was refused twice, necessary evidence in support thereof was submitted before me. The Assessing Officer has proceeded to value the land on the basis of para 4 of the lease deed, whereby the lessee shall be entitled to use the property for construction of hotel, cinema, manufacturing industry, shops or for any other purposes and in other manner as they like. This para refer to the possible future use of the property and on the basis of future use, the asset can not be valued for the wealth tax purposes. While arriving at this conclusion I draw strength from the finding given in the CWT v/s DCM Limited 290 ITR 615 (Del.), wherein it has been given the finding that we have no doubt in our mind that in order to decide taxability of an asset, we have to go by the factual position as on the valuation date. It is not permitted under law to assume a hypothetical situation which never existed. Further, the terms/provisions contained in the lease deed, which have been relied upon by the Assessing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ARKAR in the revenue records. Therefore, these depressing factors ought to have been taken into account while valuing the land as held in Ramaiya Reddy v/s. Deputy CIT (2005) 2 SOT, page 59 (Bangalore). Therefore, considering all these issues and in order to meet the ends of justice, it is directed to value the said industrial land at rate of ₹ 216/- per sq. yds. Now coming on the issue of taxability of the asset within the meaning of Wealth-Tax Act, 1957, the claim of the appellant deserves to succeed not only on one count but on several counts. First and foremost among them, that the UIT, which is the governing body for granting the approval for construction, in the instant case, has refused to grant the approval not only once but twice vide their refusal letter dated 25.07.1995 and 10.05.2005, and by virtue of exclusion clause of explanation 1 (b) attached to section 2(ea), the land in question goes out of the definition of the urban land. A reference in this regard is made to the finding given by Honourable Delhi High Court in the case of CWT v/s DCM Limited 290 ITR 615, wherein it is stated that the intention of the legislature appears to be that land which falls within ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any industrial activity on this property . Before, WTO, it has been contended by the assessee that Collector Stamps vide his judgement dated 23-08-1993 determined the market value of the commercial establishment by holding the land as industrial one in the case in which the Sub-Registrar raised the dispute about the stamp duty on the land under consideration when the assessee became owner. The ld CWT(A) has considered the provisions of Section 73 and 73B of the Urban Improvement Trust vide which the authority is with the Urban Improvement Trust to classify the land from residential to commercial or from commercial to any other purposes or from industrial to commercial. The assessee made request to Urban Improvement Trust to convert the land into commercial but this application has not been accepted by the Urban Improvement Trust. The Hon'ble Bombay High Court in the case of CIT Vs. Smt. Debbie Alemao, 331 ITR 59 had an occasion to consider as to whether the land can be considered as agricultural or non-agricultural when the land was shown in the revenue record as an agricultural and no permission for conversion of land was given, No agricultural income shown was considered ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he same property. The Hon'ble Gauhati High Court in the case of Gulabrai Hanumanbox Vs. CWT 198 ITR 131 held that value must be the same in the hands of all co-sharers. The Hon'ble M.P. High Court in the case of CIT Vs. Jagdish Kalani, 295 ITR 539 held that there cannot be two inconsistent orders in the case of same sale made by two co-owners. We therefore, follow our findings in the case of Shri Shailendra Bhargava (supra) accordingly confirm that CWT(A) was justified in holding the property of Raniwala Oil Mill, Alwar as not an asset liable to Wealth Tax. 3.4 We have also noticed that the WTO has adopted the value and the difference between the value adopted by the WTO and the value shown by the assessee is beyond the limit prescribed u/s 16A of the Wealth Tax Act. If the difference is beyond the limit mentioned in Section 16A of the Wealth Tax Act then the reference to Valuation Cell is mandatory. Reference is made to the following decisions:- 1. CWT Vs. Raghunath Singh Thakur 304 ITR 268 (HP) 2. Sharbati Devi Jhalani Vs. CWT , 159 ITR 549 (Del.) 3. CWT Vs. L.N. Ahuja, 163 CTR 502 (Del.) 4. Raj Paul Oswal Vs. CWT, 17 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... de on account of share in property situated at Station Road, Alwar. 12.1. This issue is covered by the order of Tribunal in case of Smt. Nirmala Devi Data. The findings of the Tribunal is given in para 2.9 to 2.12 at pages 7 to 11. Findings of the Tribunal are reproduced as under :- 2.9 We have heard both the parties. The AO has determined the value of property by applying the DLC Rate. The DLC Rate can be useful to ascertain the value but it cannot be the sole basis. The size and location of the property is also relevant to ascertain the value of the property. It has been noticed that the AO has adopted the same valuations for the assessment years 1998-99 to 2002-03 by adopting the same DLC Rate. We are not aware about the date from which DLC Rate adopted by the AO was effected. Under Section 7 of the Wealth Tax Act, the AO is required to value the property as on the valuation date. The valuation of immoveable property cannot be the same for all the 05 assessment years. The valuation of the property under reference has been considered by the ld. CWT(A) and the Tribunal for the assessment year 1986-87 to 1988-89. The value of this property was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lude shop. However, in other Act, the house includes school, factories and other buildings. The ordinary meaning of house as given in the Law Lexicon is as under:- The word House clearly means a building in ordinary sense of the word and such building needs not necessarily be always for the habitation of man or beast. The sale deed of the property clearly indicates that there was a construction on this property. Upto assessment year 1988-89, the valuation has been done as per Rule 1BB of the Wealth Tax Act which means that the property was considered as a house. We are not having the benefit of going through the map of this property. Rule 6 of Schedule III provides adjustment to value arrived at under Rule 3 for un-built area of plot of land. No adjustment is required to be made in case the un-built area is less than 70% of the aggregate area. If it exceeds the specified area then adjustment is to be made. Considering Rule 6 of Schedule III, we hold that the constructed area plus 70% of the aggregate area will be covered u/s 5 (1)(vi) of the Wealth Tax Act. If un-built area exceeds this specified area i.e. 70% of un-built area then such part of the land ..... X X X X Extracts X X X X X X X X Extracts X X X X
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