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M.M. Gandhy Vs. Ninth Wealth-tax Officer - Court Judgment

LegalCrystal Citation
CourtIncome Tax Appellate Tribunal ITAT Mumbai
Decided On
Judge
Reported in(1984)7ITD450(Mum.)
AppellantM.M. Gandhy
RespondentNinth Wealth-tax Officer
Excerpt:
.....below the minimum liable to wealth-tax, there could be no demand of wealth-tax on the basis of the return filed by the assessee. the aforesaid return was filed on 28-6-1975.3. it appears that the wto passed no assessment order on the said return. yet, he sent a demand notice dated 20-3-1980 demanding wealth-tax of rs. 1,471 from the assessee. the assessee wrote a letter dated 18-4-1980 to the wto pointing out that there was no demand as per the return filed by him and that there was no assessment order accompanying the notice of demand for rs. 1,471. it was requested that the liabilities shown in the wealth-tax return appeared to have been ignored while raising the demand. the assessee requested for the rectification of the aforesaid mistake under section 35 of the wealth-tax act, 1957.....
Judgment:
1. This appeal has been filed by the assessee against the order dated 17-2-1983 of the AAC, relating to the assessment year 1975-76.

2. The assessee is an individual. He filed a return of wealth showing total wealth at Rs. 1,48,624 and deducting the liabilities of Rs. 1,43,327, the net wealth at Rs. 5,397. As the net taxable wealth was far below the minimum liable to wealth-tax, there could be no demand of wealth-tax on the basis of the return filed by the assessee. The aforesaid return was filed on 28-6-1975.

3. It appears that the WTO passed no assessment order on the said return. Yet, he sent a demand notice dated 20-3-1980 demanding wealth-tax of Rs. 1,471 from the assessee. The assessee wrote a letter dated 18-4-1980 to the WTO pointing out that there was no demand as per the return filed by him and that there was no assessment order accompanying the notice of demand for Rs. 1,471. It was requested that the liabilities shown in the wealth-tax return appeared to have been ignored while raising the demand. The assessee requested for the rectification of the aforesaid mistake under Section 35 of the Wealth-tax Act, 1957 ('the Act'). There was no response to this letter.

4. The assessee filed an appeal before the AAC against the demand of Rs. 1,471 raised against him. The AAC, however, dismissed the appeal saying that the memorandum of appeal was not accompanied by a copy of the assessment order. The assessee explained that he had received no assessment order at all. Yet, the AAC held the appeal to be incompetent and dismissed the same as such.

5. In the letter dated 18-4-1980, the assessee had requested the WTO not only to rectify the mistake and issue a proper assessment order but also to keep the demand in abeyance and not to treat the assessee as an assessee in default. No action whatsoever appears to have been taken by the WTO thereon because a letter from the TRO was received by the assessee demanding the sum of Rs. 1,471 raised by the WTO. The assessee by his letter dated 22-6-1981 explained the whole position to the TRO and requested him to desist from pursuing coercive measures for recovery.

6. As stated earlier, the assessee is in appeal against the aforesaid order dated 17-2-1983 of the AAC by which he has held the appeal filed before him to be incompetent and dismissed the same in limine. Shri S.N. Dhalla, the learned representative for the assessee, urged before us that the learned AAC erred in his decision. He stated that the assessment made by the WTO could not have been made under Section 16(1) of the Act against which no appeal lies because the demand raised by the WTO was different from the amount admitted by the assessee.

Further, the assessee had received no assessment order and the non-enclosure of the assessment order to the memorandum of appeal before the AAC was due to no fault of the assessee. He urged that the AAC should have taken into account all the facts and circumstances in their totality instead of dismissing the appeal summarily on a technical ground. In any case, he urged that justice should be done even at this late stage.

7. Shri Roy Alphonso, the learned representative for the department, on the other hand, stated that the AAC had no other alternative but to dismiss the appeal as incompetent becasue the Income-tax Rules, 1962 ('the Rules') relating to the filing of the appeal before the AAC were not complied with.

8. We have considered the contentions of both the parties as well as the facts on record. We asked the assessee to read out the memorandum of appeal filed before the AAC and the ground of appeal taken therein.

The assessee has, erroneously, stated in that memorandum that the assessment was made under Section 16(1). An assessment under Section 16(1) can be made if and only if, the WTO finds the return filed by the assessee to be correct and complete. As the demand raised by the WTO was different from the demand admitted by the assessee, the assessment was evidently not made under Section 16(1) because the WTO did not accept the return filed by the assessee as correct and complete. Apart from that, the WTO has neither passed an assessment order nor has he stated anywhere in the demand notice issued by him or anywhere else that he has made an assessment under Section 16(1). The reference to the assessment having been made under Section 16(1) made by the assessee in the memorandum of appeal filed before the AAC is, thus, clearly erroneous. The ground of appeal taken before the AAC contests the omission of the deduction of the liability of Rs. 1,43,327 claimed by the assessee in the return filed by him. This ground' clearly shows that there is a difference of opinion between the WTO and the assessee regarding a certain item. While the assessee considers that item to be deductible from the total wealth in order to arrive at the taxable wealth, the WTO did not consider so. This fact clearly shows that the assessment was one which was made either under Section 16(3) or under Section 16(5). In any case, that was not an assessment under Section 16(1) and it cannot be said that it was not appealable. Further, it is unreasonable to expect the assessee to do the impossible. The assessee never got any assessment order from the WTO and it is not within the power of the assessee to force the WTO to pass an assessment order and to give a copy to him. This fact should have been held as sufficient excuse for not enclosing the assessment order along with the memorandum of appeal. The requirement to enclose copy of the assessment order along with the memorandum of appeal is a part of the rules which cannot override and obliterate the statutory right of appeal given to the assessee under the main provisions of the Act. Considering all the facts and circumstances of the case, we come to the conclusion that in the interest of justice, the order of the AAC should be vacated and the matter should be restored to the file of the WTO with a direction to pass an appropriate assessment order after giving a reasonable opportunity of being heard to the assessee. We direct, accordingly.

9. In the result, the appeal may be treated as allowed for statistical purposes.


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