9911796707
TMI Blog1989 (1) TMI 144X X X X Extracts X X X X X X X X Extracts X X X X ..... q. ft. This property was constructed in or about 1925 with load bearing structure and comprises of ground floor and first and second floors besides basement. The basement has smooth line plastered walls, with rough kotah stone flooring. The ground floor has mosaic tiles and marble flooring. The first and second floors have wooden flooring. Staircase has marble floor with marble hand rails and marble belluctere. The building has stone facing with architectural features, doors and windows of teak wood, panelled and glazed respectively. The dining room has plaster of paris ceiling. Fittings are of superior brass type. Water supply arrangement and sanitary fittings are also there. Electric wiring is of surface type. The building has a 3450 liter capacity terrace tank and drainage is duly connected with municipality sewerage. Under a " sanad " dated 17th August, 1942, the present assessee got this building by transfer from the ex-ruler of erstwhile State of Baroda. 3. For the assessment year 1979-80 the assessee filed the returns of its wealth on August 23, 1979 showing this property as a farm house and valuing the same at Rs. 5,67,675 and also claiming exemption u/s 5(1)(iv) of the A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... grounds, inter alia, that the provisions of section 7(4) were introduced by Finance Act, 1976 with effect from 1-4-1976, i.e., from A.Y. 1976-77, but since at no time in the past the assessee had claimed this property as a self-occupied property it was estopped from claiming benefit u/s 7(4) in the years under consideration. The WTO further observed that exemption u/s 5(1)(iv) had been claimed by the assessee in respect of this property in the past declaring the same as a farm house and up to assessment year 1984-85 the assessee had never claimed this property as its self-occupied property. He further pointed out that in the return for assessment year 1981-82, the assessee had claimed the property to be exempt u/s 2(e)(1)(ii) of the Act. In the opinion of the WTO the claim for benefit u/s 7(4) had been advanced by the assessee in order to shift from one section of the Act to another with a view to avoid proper taxation on the value of the property. In the last he further held that benefit u/s 7(4) was available to an individual only and since the assessee was not an individual and instead it was a HUF the benefit of that provision was not available to it. 8. The assessee-HUF app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... looking to the admission and conduct of the assessee itself, made by it in respect of its various returns filed in the past, wherein the property was declared as agricultural farm house, the assessee-HUF should be deemed to be barred or estopped from claiming the benefit of section 7(4) for the years under consideration. The learned D.Rs. were, however, fair enough to state that in view of the Ahmedabad Bench 'A' decision in the case of WTO v. Shrenik Kasturbhai [1987] 28 TTJ (Ahd.) 395, the benefit of section 7(4) was available to a HUF also. 10. In answer to the above arguments advanced on behalf of revenue, Mr. J.P. Shah, the learned counsel for the assessee-HUF, submitted that as has been rightly observed by the learned CWT(A), the doctrine of estoppel is not applicable to the proceedings under the Act and, therefore, the said doctrine cannot be brought into service to disentitle the assessee-HUF from a legitimate claim which it can legally advance for its benefit, Mr. Shah took us through various pages of the paper book containing the valuation report of the DVO and submitted that in the immediately preceding year, i.e., for assessment year 1978-79, the property was treated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 7(4) what is required is that the property must be belonging to the assessee and must have been exclusively used by an assessee for residential purposes throughout the period of 12 months immediately preceding the valuation date. Once these requirements are fulfilled the assessee gets an option in the matter of valuation of that property and he can legitimately ask the assessing officer that either the price which that property would fetch if sold in the open market on the valuation date next following the date on which the assessee became the owner of the house property be taken or the valuation as on the valuation date relevant to the assessment year commencing on the first day of April, 1971 be taken. The proviso to section 7(4) gives a further option to an assessee having more than one house to get the benefit of section 7(4) in respect of one of such houses which may be specified by the assessee in the return of net wealth. If the requirements laid down in section 7(4) are fulfilled in a given case and which are that the house property should belong to the assessee and that such property must have been exclusively used for residential purposes throughout the period of 12 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation but was also being used for residential purposes. 15. Once again we would like to refer to the report of the DVO. Not only at point 6.5 and 7.2 in the body of the main report did the DVO clearly state that the property in question was wholly owner occupied but also in point No. 7.3 he specifically mentioned that the property was fit and suitable for stay by a royal family. We have given above the specifications of this property in sufficient details and such details clearly show that this property was not meant to be used simply as a farm house but in fact was meant for use for residential purposes. In his comments on assessee's objection No. 2, the DVO had clearly stated that the property in question was wholly being used for residential purposes. At the risk of repetition we would further point out that in his comments on assessee's objection No. 1, the DVO had simply negatived the claim of the assessee to freeze the value of this property as on 31-3-1971 solely on the ground that that matter was beyond his jurisdiction. Further, though he had accepted the assessee's claim for benefit of rule 1BB in respect of this property as the property qualified for benefit of that pr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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