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Wealth-tax Officer Vs. Smt. Shyamla Pappu - Court Judgment

LegalCrystal Citation
CourtIncome Tax Appellate Tribunal ITAT Jabalpur
Decided On
Judge
Reported in(1983)4ITD633Jab
AppellantWealth-tax Officer
RespondentSmt. Shyamla Pappu
Excerpt:
.....computed as wealth of the assessee, for the assessment years 1973-74 and 1974-75 in lieu of market value of books with the reasoning, 'not tools in the nature of mechanical device or instrument for manual work'. in appeals by the assessee, the learned aac, by common order dated 16-9-1981 observed that the books are exempt under section 5(1)(x) of the act, being tools and instruments used for carrying on of the profession. the addition having been deleted, the revenue is in appeals and on our part we have since heard shri m.k. chakraborty, the learned senior departmental counsel, as also miss anjali chopra, the learned representative of the assessee, at length. 5. (1) subject to the provisions of sub-section (1a), wealth-tax shall not be payable by an assessee in respect of the following.....
Judgment:
1. All these appeals are by the revenue. The assessment years involved are 1973-74, 1974-75 and 1975-76 with respective valuation dates being 31-3-1973, 31-3-1974 and 31-3-1975.

2. The respondent-assessee is a resident individual and citizen of India. All the assessments have been framed under Section 16(3) of the Wealth-tax Act, 1957 ('the Act').

3. In WT Appeal Nos. 2020 (Delhi) of 1981 and 2021 (Delhi) of 1981, common ground taken by the revenue, reads as under: On the facts and in the circumstances of the case, the learned AAC has erred in allowing exemption under Section 5(1)(x) of the Wealth-tax Act, 1957 on the value of the library books amounting to Rs. 12,000.

4. Facts material, but briefly stated, are that at the assessment stage, Rs. 12,000 was taken as valuation and computed as wealth of the assessee, for the assessment years 1973-74 and 1974-75 in lieu of market value of books with the reasoning, 'not tools in the nature of mechanical device or instrument for manual work'. In appeals by the assessee, the learned AAC, by common order dated 16-9-1981 observed that the books are exempt under Section 5(1)(x) of the Act, being tools and instruments used for carrying on of the profession. The addition having been deleted, the revenue is in appeals and on our part we have since heard Shri M.K. Chakraborty, the learned senior departmental counsel, as also Miss Anjali Chopra, the learned representative of the assessee, at length.

5. (1) Subject to the provisions of Sub-section (1A), wealth-tax shall not be payable by an assessee in respect of the following assets, and such assets shall not be included in the net wealth of the assessee-- (x) the tools and instruments necessary to enable the assessee to carry on his profession or vocation, subject to a maximum of twenty thousand rupees in value; 6. From the above provision of law, it follows that tools and instruments necessary to enable the assessee to carry on the profession, subject to a maximum of the value of Rs. 20,000, are not to be included in the net wealth of the assessee and wealth-tax is not payable on this item of asset. The word 'instrument' signifies a thing with or through which, something is done or effected; a means. The assessee who is a senior Advocate of the Supreme Court, is admittedly carrying on the legal profession and accordingly, the library of a lawyer, the furniture to seat the lawyer, his assistants and clients, the typewriter, the copying and zerox machines, calculating machines are his tools and instruments for carrying on of the profession. There cannot be two opinions that law books--library of a lawyer--is an instrument and are tools vis-a-vis the lawyer and the law profession and accordingly these are exempt under Section 5(1)(x) and since in the case of the assessee the valuation taken by the WTO for both the years in lieu of library books stands at Rs. 12,000, the addition made by the WTO has justifiably on facts, been deleted by the learned AAC.7. That apart, the assessment order for the assessment year 1975-76 which is dated 12-2-1980 and has been made by the WTO, Lawyers' Circle-II, New Delhi, in the case of the assessee, speaks of the factual position that no value in lieu of the assessee's books has been taken as wealth and that should suffice for deletion of the value of books for the assessment years 1973-74 and 1974-75.

8. Yet that apart, under the Income-tax Act, Chapter IV, sub-Chapter D, Sections 28 to 41 of the 1961 Act, deal with the computation of total income in relation to profits and gains of business or profession and Section 43 provides definitions of certain terms used in Sections 28 to 41 and under Section 43(5) of the said Act, the definition of 'plant' includes books. In respect of said definition and pointing out that books acquired by a taxpayer would necessarily form part of plant acquired and used for the purpose of business, the Hon'ble Karnataka High Court has observed in Nippon Electronics (P.) Ltd. v. CIT [1979] 116 ITR 231, that "it is significant that the inclusive definition found in Section 43(3) includes 'books' also within the meaning of the expression 'plant' even though some years ago, such an extended meaning would not have been given even by economists".

9. If the books acquired by a taxpayer could be defined as 'plant', there is no reason why the law library--books necessary for a lawyer to carry on his profession should not be held as 'tools and instruments' necessary for a lawyer to carry on his profession.

10. On the facts and in the circumstances of the case, the WTO was not justified in taking in computation of Rs. 12,000 for each of the assessment years 1973-74 and 1974-75 as value of books since these are exempt under Section 5(1)(x). We hold so with the result that the impugned order of the learned AAC which is, as earlier stated, a common one in relation to both the years, is upheld. The appeals by the revenue fail and stand dismissed.

11. In IT Appeal No. 2022 (Delhi) of 1981, the ground taken by the revenue, reads as under: On the facts and in the circumstances of the case, the learned AAC has erred in reducing the value of the plot at Neeti Bagh from Rs. 38,703 to Rs. 12,340 and thereby allowing relief of Rs. 26,363.

12. Material facts, briefly stated, are that the assessee is a sub-lessee of plot No. C. 43, Neeti Bagh, New Delhi, for which she had paid lump-sum premium of Rs. 12,340. The plot is leased to Supreme Court Bar Housing Co-operative Society Ltd., the lessor being the President of India. At the assessment stage, the WTO was of the opinion that the plot is situated in Neeti Bagh in South Delhi which is sorrounded by posh colonies, hence can fetch high price. He, accordingly, estimated minimum value of land as a fair market value at Rs. 200 per sq. yd. and since the plot measured 325.93 sq. yds., after allowing 50 per cent deduction in lieu of 'un-earned increase' as per clauses of the sub-lease deed, the net value at Rs. 38,703 was taken in computation as net wealth of the assessee. In appeal by the assessee, the learned AAC relying on the orders of the Tribunal, Delhi Bench, made in the case of Miss Beneeta Seth v. WTO [WT Appeal Nos. 592, 593 and 594 of 1974-75 in relation to assessment years 1967-68, 1968-69 and 1969-70] held that in view of various restrictions imposed under the transfer agreement, the right of the assessee had become restricted and even if the plot was sold in the open market, it would not fetch more than the premium paid by the assessee for the same. The valuation since returned by the assessee in the wealth-tax return at Rs. 12,340 was upheld. This time the revenue is in appeal and we have since heard at length the learned authorised representatives of the parties. We have also perused very carefully the orders of the lower authorities and the paper book since placed on our file for and on behalf of the assessee (24 pages) which, inter alia, contains copies of orders dated 21-9-1978 made in WT Appeal Nos. 1061 to 1065 (Delhi) of 1976-77 in relation to the assessment years 1971-72 to 1974-75 in the case of Smt. Promila Bali--Bench 'B' of the Tribunal, Delhi Bench, at New Delhi, order dated 10-5-1976 made in relation to the assessment years 1967-68, 1968-69 and 1969-70 in the case of Miss Beneeta Seth, New Delhi, in WT Appeal Nos.

502, 503 and 494 of 1974-75--'A' Bench of the Tribunal, Delhi Bench, at New Delhi; also photostat copy of perpetual sub-lease granted by Land and Building Department of Delhi Administration in favour of the assessee and the Supreme Court Bar Co-operative House Building Society Ltd. The assessee has also placed on our file extracts from the bye-laws of the House Building Co-operative Society.

13. The original lessee is the Supreme Court Bar Co-operative House Building Society Ltd. while the assessee is the sub-lessee. According to stipulation No. 6 in the 'perpetual sub-lease' executed on 15-11-1973, the assessee as sub-lessee shall not sell, transfer, assign or otherwise part with the possession of the whole or any part of the residential plot in any form or manner, benami or otherwise, to a person who is not a member of the lessee (Co-operative House Building Society) but a transfer with the previous consent in writing of the lessor is permissible if the assessee transfers the plot to any other member of the lessee Cooperative House Building Society. In the latter case, the lessor Cooperative House Building Society is entitled to refuse permission and this is subject to lessor's absolute discretion.

However, if the lessor permits the transfer, the consent or permission to be given by the lessor to the lessee is subject to such terms and conditions as the lessor may think fit to impose.

14. Bye-laws No. 49 to 51 of the lessor Co-operative House Building Society Ltd. provide for as under: 49. Society shall not allot or transfer by sale or otherwise any property including plots and houses to any person except to its members. No member shall be allotted by sale or otherwise more than one plot by the Society.

50. In case any member does not want to construct a house over the plot, the same will be returned to the Society. Provided that a member may subject to the condition of the lease, mortgage his interest in the plot for the purpose of raising loan for construction of a house on the said plot to the LIC of India, a Scheduled Bank or a Financial Institution recognised by Government of Delhi State.

51. No member shall be permitted to transfer, sell or mortgage his plot to any person other than the members of the society or the society itself. Provided that a Member may, subject to the condition of the lease, mortgage his interest in the plot for the purpose of raising loan for the construction of a house on the said plot to the Life Insurance Corporation of India, Scheduled Bank or Financial Institution recognised by the Government of Delhi State.

15. The stipulations in the perpetual sub-lease deed and the bye-laws of the lessor Co-operative House Building Society impose restrictions on the transfer of the plot by the assessee to a non-member of the lessee society. The bye-laws also provide that no member shall be allotted by sale or otherwise more than one plot by the society and this means that if the assessee wants to transfer the plot to a member of the lessee society, the member cannot have the plot transferred to in his favour because no member can hold more than one plot. In view of all these facts, the assessee cannot be said to be free to transfer the plot since there was a total bar on the assessee vis-a-vis transfer of plot to any person who was not a member of the society and in this view of the matter there cannot be said to be open market for sale of the said plot, hence the premium paid by the assessee at Rs 12,340 has to be held on the facts and in the circumstances of the case to be market value of the plot.

16. In CWT v. Smt. Promila Bali [1983] 141 ITR 942 the Hon'ble Delhi High Court approved the order of the Appellate Tribunal dated 21-9-1978 made in the case of Smt. Promila Bali's case (supra), since the reference application against that order of the Tribunal was rejected by the Tribunal, while application of the revenue under Section 27(3) of the Act, was rejected. In that case, Smt. Promila Bali, the assesses, held a leasehold plot as a member of a Co-operative House Building Society. The Tribunal valued the said plot at the amount of contribution made by the assessee to the society with the reasoning that there was a total bar on the transfer of plot to any person who was not a member of the society. The reference application made under Section 27(1) by the revenue was rejected by the Appellate Tribunal. In further application under Section 27(3), the revenue argued that a clear question of law arose from the order of the Tribunal, as, for the purpose of valuation, the existence of an open market has to be assumed. Their Lordships of the Hon'ble Delhi High Court held as under: ... A leasehold right can have a market value only if a transfer is permitted under the terms of the contract. If there is only a personal right which is not transferable, then it would not be possible to value the property on the basis that it was an absolute right equal to ownership. To disregard the terms of the lease and to assume that the sub-lessee was an owner would naturally give rise to huge difference in the matter of valuation. Principally, this is a question of fact and the market value of any given property must be read in the light of the prevailing restrictions regarding that property. The valuation cannot be made without taking into account the legal rights and liabilities and obligations of the person involved.... So, we hold that no stateable question of law arises regarding the method of valuation adopted relating to non-transferable plot. It seems to us to involve purely a question of fact and no reference can be called for regarding the first question.

17. The issue is covered and concluded in favour of the assessee by the ratio of the decision of the Hon'ble Delhi High Court; hence the impugned order of the learned AAC for the assessment year 1975-76 also stands upheld. The appeal by the revenue fails and stands dismissed.


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