9911796707
TMI Blog2006 (1) TMI 162X X X X Extracts X X X X X X X X Extracts X X X X ..... ch plan furnished by him before the Assessing Officer during the assessment proceedings and as such it cannot be termed as land appurtenant to the residential house." 2a. The facts common to all these grounds of appeal are that in response to notices issued under section 17 of the Wealth-tax Act, the assessee filed returns of wealth for the above-mentioned assessment years. In the returns of wealth filed, the assessee had claimed exemption under section 5(1)(iv), now 5(1)(vi) in respect of Bungalow at Village Khurla Kingra along with the land appurtenant thereto. The assessee also submitted a note along with returns stating that the land at Village Khurla Kingra where the assessee lived was allotted to assessee's father and the same measured 17 acres and 6 kanals. After the death of assessee's father, the land was divided between the assessee and his brother. Thus, assessee's HUF got land measuring 8 acres and 7 kanals. The assessee built a residential house along with garden. On 2-9-1993, his family members filed a suit for their share in the land. The suit was decreed by order dated February 1994. The assessee got a residential house along with part of garden as his share. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... submitted that prior to that it was only a piece of land having a boundary wall and gate to approach this land for safety. It was submitted that there was no evidence to show that the land in question was not appurtenant to house and the same was used by the assessee for any other purposes. It was submitted that the land was enjoyed by the assessee for himself and, therefore, it was claimed that the value of the land along with the house was exempt under section 5(1)(vi) of the Wealth-tax Act. Reliance was also placed on the judgment of Hon'ble Madras High Court in the case of M.K. Kuppuraj (HUF) v. CWT[2002] 257 ITR 7181, the decision of ITAT, Jaipur Bench in the case of WTO v. N.N. Atal [1998] 64 ITD 348, in support of the contention that if a person had acquired a house for being used as a residential house and that house happened to have a large open space around it for house as godown or a play area or other purposes, the same would qualify for exemption under section 5(1)(vi) of the Wealth-tax Act, as long as the house was used solely for residence. It was also submitted that the assessee had exclusive right over the entire land and, therefore, the same was exempt. Accepting ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt enjoyment of the property and the benefit of section 7(4) has to be extended to the open land, which is appurtenant to the house property. This view has been taken by the Hon'ble ITAT Madras Bench in the case reported at [1980] 10 TTJ (Madras) 201, by the Hon'ble Indore Bench in the case reported at [1985] Tax 76(6)57 and by Hon'ble Allahabad Bench vide [1987] 20 ITD 310. There is no finding that the land was not appurtenant to the house and was used for any other purposes and in this respect I find that the case of the appellant gets covered by the decision of Hon'ble Madras High Court wherein it was held that the open space around the house was used by the assessee in that case for self and the benefit of the open space was confined to the residents of the house and said open space represented a part ^ of the house eligible for exemption under section 5(vi) of the Wealth-tax Act. Same are the facts in the case of the appellant as land was used for self/for the benefit of the residents of the house thus it remains a part of the house. The case of the appellant also gets supported by the decision of the Hon'ble Jaipur ITAT Bench. Therefore, the appellant rightly claimed the exem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt of the residential house. He submitted that the Assessing Officer was fair enough to consider the land measuring 9 kanals 10 marlas within boundary wall having residential house, lawn and garden forming part of the residential house and allowing exemption thereof. He further submitted that the second test laid down by the Andhra Pradesh High Court was whether the land contiguous to the building could be put to independent user without causing any detriment to the enjoyment of the building as such. He submitted that the traditionally land was being used for agriculture. In fact, the land outside the boundary wall had been put to independent use. He further submitted that this is evident from the fact that the land outside the boundary wall measuring 1 acre 7 kanals 12 marlas was sold subsequently by the assessee as an independent unit. Thus, he submitted that the land outside the boundary wall did not form part of the single unit of the residential house, and, therefore, was not part of the residential house. He particularly emphasized that as per Andhra Pradesh High Court's judgment, the land used by the occupants for commercial or agricultural purposes although forming part of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rightly relied on the judgment of Hon'ble Madras High Court in the case of M.K. Kuppuraj (HUF), where the High Court has held that no limit on land appurtenant to residential house was prescribed under the Wealth-tax Act for the purpose of allowing exemption to residential house. He also submitted that the Ld. CWT(A) rightly relied on the decision of the ITAT, Jaipur Bench in the case of N.N. Atal because in this case, the assessee had a exclusive right over the entire land. He also stated that the land in question stood sold in 1999 and since it formed part of the residential house, the assessee was entitled to exemption under section 5(1)(vi) of the Wealth-tax Act. 7. We have heard both the parties and carefully considered the rival submissions with reference to facts, evidence and material on record. We have also gone through the orders of the authorities below. The only reason given by the Assessing Officer for treating the land in question as not part of the residential house is that there was a boundary wall between the residential house along with the land and the extended portion of the land measuring 1 acre 7 kanals 12 marlas. From the facts discussed above, it is obvio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd rest treated as excess land. The Tribunal observed that the assessee had exclusive right over the entire land. It was held that the balance land was also an appurtenant land and was eligible to benefit of section 7(4) of the Wealth-tax Act. In the case of CWT v. Mahal Chand Pandia [1996] 219 ITR 733, the facts before the Gauhati High Court were that the house was partly used as residence and partly as godown. On these facts, the Gauhati High Court held that the entire house was entitled to exemption under section 5(1)(iv) of the Wealth-tax Act. In the present case, the Revenue has not even established that the remaining land was used for purposes other than residential house. 7.1 The Ld. DR has heavily relied on the judgment of Andhra Pradesh High Court in the case of Zaibunnisa Begum which was on the issue of allowing exemption from capital gain. The said judgment was not on the issue of considering the meaning of land appurtenant to house for the purpose of allowing exemption under section 5(1)(vi) of the Wealth-tax Act. In fact, the Hon'ble High Court has itself noted that the meaning assigned to expression in Wealth-tax Act, Urban Ceiling and Regulation Act is not relevant ..... X X X X Extracts X X X X X X X X Extracts X X X X
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