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TMI Blog2005 (11) TMI 179X X X X Extracts X X X X X X X X Extracts X X X X ..... : "Immovable Property" "The building named "Ramnord" at Dr. Annie Besant Road, Worli, Mumbai and the land appurtenant thereto is occupied by the assessee for the purpose of carrying on its business of film processing and leasing of assets. As such, the said property is not covered within the purview of the definition of the term "Asset" as per section 2(ea) of the Wealth-tax Act, 1957. Accordingly, the value of the said exempt property is shown at Rs. Nil." The value of 1st and IInd floors was declared by the assessee under protest at Rs. 8,47,40,560 for the assessment year 1997-98 and Rs. 11,10,49,550 for the assessment year 1998-99. 3. From the annual reports relevant to the years under consideration, the Assessing Officer noticed that assessee had shown product description as "Cinematographic Feature Films" and other films for the assessment year 1997-98 while in assessment year 1998-99 it was shown as "Cinematographic Feature Films and Other Films as well as leave and licensing". Accordingly, it was informed by the Assessing Officer that leave and licensing was shown in assessment year 1998-99 only to claim exemption from wealth-tax. Proceeding further, it was held th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m". The use of the word "occupy" is significant and cannot be aquated with exploit. The appellant was not occupying but only exploiting the first and second floors of the building by leasing out the same to Citibank. As such the said property leased out to Citibank does not come within the purview of section 2(ea)(i)(3) of the Act. There is no reason for interference with the order of the Assessing Officer." Aggrieved by the said order, the assessee is in further appeal before the Tribunal for both the years. 6. The Learned Counsel for the assessee has reiterated the stand taken by the assessee before the lower authorities and, therefore, need not be repeated. In addition, it was submitted that property was given to Citibank only on leave and licence basis in order to exploit its asset on account of lull in the business. He drew our attention to the agreement dated 29-8-1994 between assessee and the bank appearing at page 71 of the paper book to point out that property was given as leave and licence basis. He then drew our attention to clause 10(b) to contend that agreement does not create any demise or tenancy or any other right in favour of licensee i.e., Citibank. In these p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t does not include following properties (as per the provisions applicable to the years under consideration): "(1) a house meant exclusively for residential purposes and which is allotted by a company to an employee or an officer or a director who is in whole time employment, having a gross annual salary of less than five lakh rupees; (2) any house for residential or commercial purposes which forms part of stock-in-trade; (3) any house which the assessee may occupy for the purposes of any business or profession carried on by him;" We are concerned with item No. 3 mentioned above 8. In view of the above legal position, the question for consideration is whether the aforesaid property is occupied by the assessee for the purposes of business carried on by the assessee. The contention of assessee's counsel is two folds - (i) that assessee was carrying on business of processing of films and giving the property on leave and licence basis, and (ii) the property is occupied for the purposes of such business. Firstly, we will deal with the first aspect of the question. There is no dispute that assessee was carrying on the business of processing of films and such property was earlier ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. In our opinion, the answer is "No". A man may be owner of the property but may not possess the same; he may be having possession but the property may be lying vacant and he may be having symbolic possession and may not be enjoying the use of such property. In our opinion, unless the person enjoys the use of the property, he cannot be said to occupy the same. In case of tenanted property, it is the tenant who occupies the property during the terms of tenancy. Similarly, in the case of leave and licence, it is the licensee who occupies the property as he enjoys the use of property. Similarly, if a person sits in a chair, it is who occupies the chair even though such chair is possessed and owned by the host. It is the immediate control and enjoyment of property which is relevant to determine the fact of occupation and not the ownership or symbolic possession. In leave and licence, the property is temporarily allowed to be used against the payment and during such period it remains in the occupation of person who enjoys use of the same. In support of our view, we may appropriately refer to the dictionary meaning of the word 'occupy'. As per Webster's Encyclopaedia unabridged dictiona ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erent. Therefore, for this reason also, the contention of assessee's Counsel that assessee occupies the premises given to Citibank cannot be accepted. 11. In view of the above discussions, it is held that case of assessee does not fall within the exception provided in section 2(ea)(i)(3) and, therefore, value of the portion of the property given to Citibank was liable to be included in the net wealth of the assessee. The order of the Learned CWT(A) is, therefore, upheld on this issue. 12. The learned counsel for the assessee has also raised an alternate plea that in view of section 4(8) of the Act, assessee cannot be said to be the owner of the property. This stand was never taken before the lower authorities. Even otherwise, this provision can be invoked only when the transferee acquires any right in or with respect to any building or part thereof by virtue of any transaction referred to in clause (f) of section 269UA of the Act. Clause (f) of section 269UA applies to transactions of sale or exchange or lease for a term of not less than 12 years. Assessee's counsel has always contended that it is not a case of tenancy but a case of only leave and licence. Hence, now it does no ..... X X X X Extracts X X X X X X X X Extracts X X X X
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