Skip to content


Rajas R. Doshi Vs. Wealth-tax Officer - Court Judgment

LegalCrystal Citation
CourtIncome Tax Appellate Tribunal ITAT Mumbai
Decided On
Reported in(1998)67ITD379(Mum.)
AppellantRajas R. Doshi
RespondentWealth-tax Officer
Excerpt:
.....are reproduced below : "in this case original assessment was completed on 31-3-1983 adding the value of land of chaturshingi aundh at rs. 4,05,000. however, the has filed valuation report dated 6-1-1984 showing value of land at rs. 11,27,500 as on 1-1-1964 alongwith application for issue of certificate under section 230a (1) for the sale of land for rs. 16 lakhs. so 1 have reason to believe that because of omission or failure on the part of the 'a' to disclose fully and truly all material facts necessary for asst. his net wealth chargeable to tax on this account has escaped assessment under section 17(1) (a) of w.t. act. issue notice under section 17(1) (a)." 4. the main plank of attack launched by shri khare, ld. counsel for the assessee, is that all material particulars were.....
Judgment:
1. As common points are involved, these appeals were heard together and they are disposed of by this common order. The first common ground is that the Dy. CIT (Appeals) erred in upholding the reopening of the assessment proceedings for the assessment years 1978-79 to 1982-83.

2. The appellant owned 119 acres and 32 guntas of land at Chatushrigi, Pune, which was brought in the year 1943 at a cost of Rs. 36,000. The assessee offered the value of this asset in his wealth tax assessments for the assessment years 1968-69 to 1982-83 and the assessments were completed. Subsequently, when the land was sold vide sale deed dated 3-3-1983, which was registered on 29-11-1983, the Assessing Officer sought to reopen the assessments for the earlier years on the ground that there was under assessment of the value of this land in the relevant assessment years. The objection taken in the present appeal is mainly to the validity of the notices issued under section 17(1) (a) for reopening the assessments for the years 1978-79 to 1982-83. The details of the values that were returned originally by the assessee and the values assessed in the relevant years and the values adoptedin the reopened assessments for the years 1978-79 to 1982-83 are as follows :Asst. Year Value shown Value assessed Value assessed in the in the original in the reopened return assessment assessment1968-69 2,64,690 2,64,690 -1969-70 2,64,690 2,64,690 -1970-71 2,64,690 2,64,690 -1971-72 2,64,690 2,64,690 -1972-73 2,64,690 2,64,690 -1973-74 2,00,000 4,05,000 -1974-75 2,00,000 4,05,000 -1975-76 1,81,521 4,05,000 -1976-77 1,81,521 4,05,000 -1977-78 1,81,521 4,05,000 -1978-79 1,81,521 4,05,000 12,50,0001979-80 1,81,521 4,05,000 12,75,0001980-81 - 4,05,000 13,00,0001981-82 2,00,000 4,05,000 14,00,0001982-83 4,90,000 4,90,000 15,00,000 It may be observed that for the assessment vears 1968-69 to 1971-72 the value of the land was shown at Rs. 2,64,690 and the same was accepted in the original assessments. The value for these years was shown at the said figure of Rs. 2,64,690 on the basis of a report obtained by the assessee from the registered valuer. For the assessment year 1972-73, the assessee returned the same value as in the earlier years but the matter was referred to the DVO and on the basis of his report the value was determined at Rs. 4,05,000. The assessee disclosed the value at reduced figure in the assessment years 1973-74 to 1980-81 and in the assessment Year 1980-81 the value shown xvas Nil. The value returned in the assessment year 1975-76 was again on the basis of the report of the registered valuer and the same was repeated by the assessee in the subsequent assessment years upto 1979-80. The Assessing Officer adopted the value of the land at Rs. 4,05,000 for all the assessment years i.e., 1972-73 to 1981-82 which is on the basis of a report obtained from the DVO. The assessee obtained a third report from the registered valuer for the assessment year 1982-83 and on this basis he returned the value of the land at Rs. 4,90,000 which was accepted by the assessing Officer. Subsequently, the assessee sold the land vide the sale deed mentioned here in above for a sum of Rs. 16 lakhs and the Assessing Officer came to know of this sale deed when the assessee applied for a certificate under section 230A of the IT Act vide his application dated 31-5-1983. The requisite certificate under section 230A was issued on 19-3-1983. But on the basis of the valuation shown in the sale deed, the Assessing Officer came to the conclusion that there was an under assessment in the value of the land for the assessments years 1978-79 to 1982-83 andhe, accordingly, reopened the assessments for the years 1978-79 to 1982-83 under section 17(1) (a) of the WT Act. Apart from the sale deed, it appears that the Assessing Officer came into possession of a report about the market value of the land as on 1-1-1964 which was obtained by the assessee for the purposes of the calculation of the capital gains for income-tax purposes. It is admitted that the market value of the land as on 1-1-1964 shown by the assessee for income-tax purposes was as high as Rs. 11,27,500.

3. As the validity of the notices under section 17(1) (a) was assailed in the grounds taken before us for all the years under appeal, we requested the Departmental Representative to produce before us a copy of the relevant reasons recorded under section 17(1) (a). The Assessing Officer filed before us the reasons recorded on 7-7-1984 or the assessment years 1980-81 to 1982-83. The reasons are in similar terms and as an example the reasons recorded for the assessment year 1980-81 are reproduced below : "In this case original assessment was completed on 31-3-1983 adding the value of land of Chaturshingi Aundh at Rs. 4,05,000. However, the has filed valuation report dated 6-1-1984 showing value of land at Rs. 11,27,500 as on 1-1-1964 alongwith application for issue of certificate under section 230A (1) for the sale of land for Rs. 16 lakhs. So 1 have reason to believe that because of omission or failure on the part of the 'a' to disclose fully and truly all material facts necessary for asst. his net wealth chargeable to tax on this account has escaped assessment under section 17(1) (a) of W.T. Act. Issue notice under section 17(1) (a)." 4. The main plank of attack launched by Shri Khare, ld. counsel for the assessee, is that all material particulars were furnished to the Assessing Officer at the time of the original asst. and so there was no omission or failure on the part of the assessee to disclose the relevant particulars and so the initiation of the proceedings under section 17(1) (a) is invalid in law. Taking a clue from a query of the Bench as to how the valuation report obtained by the assessee in respect of the market value of the land as on 1-1-1964, which apparently is dated 6-1-1984, was available with the Assessing Officer with application under section 230A, which admittedly was filed on 31-5-1983, the ld. counselalso sought to argue that heh ad filed the said report only on 25-1-1985 alongwith the income tax return for the assessment year 1984-85 and so, there is an apparent discrepancy in the reasons recorded by the Assessing Officer in this regard and as such the reasons recorded must be regarded as both incorrect and invalid in law. He has also sought to explain that even though he had valued the land in question at the maximum of Rs. 4,90,000 for the assessment year 1982-83 and for the earlier years at lesser figure, his claim that the market value of the land as on 1-1-1964 was as high as Rs. 11,75,500, was not false because the value of the land is subject to fluctuations and depends inter alia upon the municipal regulations which have a bearing on the value of the land. Till the assessment year 1966 the land was in a residential zone and so had a higher value and after 1966 the land was marked as Naked Hill Zone and so no construction activity could be undertaken and consequently the value fell after 1966. In this context he has relied upon a letter of the Pune City Municipal Corporation dated 3-12-1984 addressed to the Valuation Officer which reads as follows : With reference above following information regarding the Zoning of the property at Aundh S. No. 87/A/1 is furnished herewith.

(1) According to the Master Plan of 1952, prepared under B.P.M.C. Act 1949 Aundh S. No. 87 is show to be in Rn. Zone (Residential Zone, 1/4th Acre plots in majority).

(2) According to the development plan of 1966 prepared under M.R.& T.P. Act 1966, Aundh S. No. 87 is shown in the 'Naked Hill' & Zone.

(3) According to the draft development plan of 1961, Aundh S. No. 87 is shown in the 'Hill Top, Hill Slopes' Zone.

A copy of the above letter may be seen at page-21 of the paper book.

lt may be observed that after 1981, the area is marked as 'Hill Top' 'Hill Slope' Zone.

5. In support of his argument that notices under section 17(1) (a) were invalid as the material particulars were disclosed by the assessee at the time of the initial assessment, the ld. counsel for the assessee has relied upon various decisions, which are as under : (ii) Tulsidas Kilachand v. D. R. Chawla [1980] 122 ITR 458/4 Taxman 248 (Bom.) The CWT (Appeals) upheld the validity of the orders under section 17(1) (a) in view of the decision of the jurisdictional High Court in the case of Dr. Keki Hormusji Gliarda v. B. H. Raisi ghani, WTO [1982] 135 ITR 386/ 10 Taxman 109 and the ld. counsel pleaded that this decision is distinguishable as it was given in tile context of a writ petition.

6. The ld. Departmental Representative, on the other hand, contested the claim of the ld. counsel for the assessee that the report of the approved valuer in respect of the market value of the land as on 1-1-1964 was filed only with the income-tax return for the assessment year 1984-85. He filed before us the relevant order-sheet entries recorded by the Assessing Officer in the context of the issue of the certif icate under section 230A and also in the context of ref erring the property to the Valuation Officer for ascertaining its market value as on 1-1-1964. The entry made in the context of the issue of the certificate under section 230A is dated 18-8-1983 and reads as follow : "The Executors and Trustees of the Estate of late Shri Ratanchand Hirachand; Mr. Rajas R. Doshi & Aryind R. Doshi have applied for a certificate under section 230A of the IT Act 1961 for executing sale deed of the property situated at Chaturshringi Hill, Survey No. 87/A-1/17/87/A-1 /3 and 87-B Village Aundh Ta. Pune-16. The above land admeasuring total area of 103 Acres and 21 Guntas is to be transferred to M/s. Walchandnagar Industries Ltd. by means of sale deed by the above Executors at Sub-Registrar's of assurance old customs house Bombay for A total consideration of Rs. 16,00,000. The above land has been reflected in the assessee's W.T. Return. There are income-tax demands outstanding in respect of late Shri Ratanchand Hirachand as detailed below :(1) I. T. demand assessment year 1976-77 Rs. 78,822(2) Adv. Tax demand A.Y. 1981-82 Rs. 6,775(3) G.T. demand for assessment year 1973-74 Rs. 4,960 Assessee's appeals for the I.T. demand for assessment year 1976-77 and G.T. demand for assessment year 1973-74 are pending for which the assessee requested for keeping the demands in abeyance.

In view of the above it is for consideration whether the assessee's application for issue of certificate under section 230A is discharged.' "Issue 230A certificate as major demand outstanding is disputed in the appeal and the assessee has other assets too as security.

Sd/- The entry made for referring the matter to the Valuation Officer to ascertain the paid up market value of the land as on 1-1-1964 is dated 17-7-1984 and reads as follow : "The assessee has sold property named "Chatushringi Hill" bearing S.No. 81/A/1/1(22-OSA) 87/A/3(1)H 74A 87/3 (Oh10-12A), Village Aundh, Tq. Navdi Pune on 3rd March 1983 to M/s. Walchandnagar Industries Ltd. Bombay 38 for a total consideration of Rs. 16,00,000. A valuation report to the effect dated 6-1-1984, showing the valuation of the property as on 1-1-1964 is submitted. The value as per the above report is Rs. 11,27,000 as on 1-1-1964. The assessee has also invested Rs. 10,00,000 in R. D. Bonds on dated 29-8-1983 a zerox copy of which is filed. As the capital gains tax liability is to be worked out the valuation on by the assessee on the basis of the above report requires to be referred to the departmental valuer.

Hence I therefore refer the matter to the district valuation officer I I.T. Deptt. for report." In the light of the entry dated 17-7-1984 reproduced above, the ld.Departmental Representative pleaded that the Assessing Officer could not have made the reference to the Valuation Officer on 17-7-1984 if the relevant report by the registered valuer of the assessee showing the value of the property as on 1-1-1964 at Rs. 11,27,500 was filed only along with the income-tax return for the assessment year 1984-85 on 25-1-1985. So, he affirmed that the Assessing Officer had before him the report of the approved valuer showing the air market value of the land as on 1-1-1964 at Rs. 11,27,500 and also the sale deed dated 3-3-1983 showing the consideration at Rs. 16 lakhs on the date he recorded the reasons for opening the assessments for all the years under appeal. He, however, could not produce before us the reasons recorded for the two assessment years i.e., 1978-79 and 1979-80. He mentioned that with the lapse of time, the reasons recorded for these two years are not traceable in the files. He pleaded that there is a big difference between the value declared by the assessee for the assessment years involved and the sale consideration shown in the sale deed dated 3-3-1983. Adverting to the argument of the ld. counsel for the assessee that the assessments could not be reopened simply on the basis of a consideration paid by a speculative buyer, he pleaded that it is unimaginable that even a speculative buyer would pay an amount which is more than three times the disclosed market value for the assessmentyear 1982-83. The ld. Departmental Representative claimed that where there is a substantial discrepancy between the disclosed value and the sale consideration received, the issue of notice under section 17(1) (a) is entirely valid and in this context he relied upon the ratio of the decision of the jurisdictional High Court in the case of Dr. Keki Hormusji Gharada cited (supra). He has also contended that the information contained in the application for certificate under section 230A constitutes a valid basis for reopening the assessments and in this context he has relied upon the decision of the Allahabad High Court in he case of Raja" Lal v. WTO [1991] 187 ITR 150. Finally he pleaded that when an assessment is reopened by a issue of notice under section 17(1) (a) on the ground of failure by the assessee to disclose material facts and it is subsequently found that there is no such failure by the assessee, the reopening can be sustained under the provisions of section 17(1) (b) if the issue of notice under the latter provision is valid and is not time-barred. In support of this proposition, he has relied upon the decision of the apex court in the case of Associated Stone Industries (Kotah) Ltd. v. CIT [1997] 224 ITR 560/90 Taxman 553. In other words, the argument advanced that the reopening of the assessments for the years 1980-81 to 1982-83 can be sustained at least under the provisions of section 17(1) (b) if not under section 17(1) (a) as the relevant notices for reopening were issued within the four years limit applicable for the issue of notices under section 17(1) (b).

7. We have given our anxious consideration to the matter. We find that we have to uphold the contentions of the ld. Departmental Representative for the three assessment years 1980-81 to 1982-83. For the other two assessment years, i.e., assessment years 1978-79 to 1979-80, we have to hold that the reopening is not valid on the short ground that the relevant reasons for the reopening of these two assessments were not produced before us, nor were they made available to the assessee at any stage. It is incumbent on the department that reasons are recorded and are also made available to the assessee af ter the returns are filed if so required. As it is not proved that these conditions are satisfied, we have to hold that the reopening of the assessments for the assessment years 1978-79 and 1979-80 is not validly done. We have, however, to uphold the reopening of the assessments for the three assessment years ie., assessment years 1980-81 to 1982-83.

8. We find that all the cases relied upon by the ld. counsel for the assessee, except the decision of the Karnataka High Court in the case of Abdill Qadar Adam cited (supra) are distinguishable. In the case of Tulsidas Kilachand cited (supra), the Hon'ble Bombay High Court held that there is no sufficient material for reopening of the assessment under section 17(1) (a) simply because a subsequent valuer has valued the property at a higher figure than the former. In the present case, the reopening is made on the basis of the value disclosed in a registered sale deed and not on the basis of the valuer's report. So, the case is distinguishable. In the case ol' M. V. Kibe cited (supra), the Hon'ble Madhya Pradesh High Court only held that the first appellate authority could not force the Assessing Officer to refer an asset for valuation by the Valuation Officer but the issue involved in the present case is totally different. In the case of Rajan P. Shah cited (supra), the Hon'ble Gujarat High Court held that when all the primary facts were disclosed, the reopening of the assessment on the ground of understatement of investment, is not valid. In this case there is no reference to any circumstance like the subsequent sale deed showing disproportionately higher value. In the case of Pat Ramaswamy Chettiar cited (supra), the assessmentwas reopened on the basis of the higher value given by the auctioneer. The value given by the auctioneer is only an opinion and does not to our mind constitute valid infori-nation like the consideration specified in a registered sale deed. So, we are of the view that this decision is also distinguishable. We find that the decision of the Hon'ble Karnataka High Court in the case of A bdul Qadar Adam (supra) by the ld. counsel for the assessee supports the assessee's claim, but we are bound by the decision of the jurisdictional High Court in the case of Dr. Keki Hormusji Gharda cited (supra).

"The valuation report of the assessee's property by the assessee himself for the assessment year 1977-78 showed the valuation of the property as on March 31, 1977 at Rs. 5,05,000 (which valuation for the previous assessment year 1976-77 was shown at Rs. 1,17,793 1/4.

The assessee, soon thereafter, sold the property for the almost equivalent value of Rs. 5,00,000 the WTO issued a show-cause notice under section 17 of the WT Act, 1957, in respect of the assessment year 1976-77 on the ground that he had reason to believe that the net wealth of the assessee chargeable to tax had escaped assessment.

The assessee filed a writ petition under. Art. 226 of the Constitution challenging the notice issued by the WTO : Held, that it was not a mere change of opinion on the part of the the WTO but cogent materials, viz., the valuation report obtained by the assessee and the sale also effected by him, coming to the notice of the WTO on the basis whereof the WTO had, within the meaning of section 17(1), information and reason to believe that net wealth chargeable to tax had escaped assessment, in pursuance of which he issued the notice. Further, the WTO did not resort to any valuation report under section 16A nor had be recourse to any audit opinion or objection. On the other hand, it was the assessee's own valuation report and the assessee's own sale transaction that constituted the crux for issuing the notice. One and the same property valued for the assessment year 1976-77 at Rs. 1,15,000 or Rs. 1,17,793 could not have suddenly valued by the assessee himself, at more than four times over, at Rs. 5,00,000 for the very next assessment year without there having been a gross under-valuation of the roperty in the previous year. Therefore, the notice issued by the WTO under section 17 was valid. However, it would be open to the assessee, in proceedings pursuant to the notice, to contest the same on all such grounds as he might be advised.

We are of the view that the issue raised in this appeal is squarely covered by the above decision of the jurisdictional High Court. Even in the present case the assessment is not reopened because of debatable material like an audit objection or valuer's report. There is controvertible evidence of the market value as contained in the sale deed and on this basis the Assessing Officer had reason to believe that the values disclosed by the assessee for the earlier years were grossly understated. We may also mention that there is no objective factor like a change in the municipal regulations which explains the increase in market value after 1981. According to the contention made out before us, the land in question had a higher value till it was marked as a 'Naked Hill Zone' in 1966 because construction was prohibited af ter 1966. To a query from the Bench, the learned counsel for the assessee explained that no construction was permitted even after it was marked as'Hill top Hill Slopes Zone'in 1981. If that was so, we fail to see how the abrupt rise in market value as evidence by the sale deed dated 3-3-1985, is explained. So, to ourmind, the assessing Officer was justified in coming to the conclusion that the material particulars being the market value of the property were not correctly disclosed in the earlier years. So, we have to hold that the reopening was valid.

9. We also do not find any evidence in support of the contentions of the ld. counsel for the assessee that the approved valuer's report in respect of fair market value of the property as on 1-1-1964 was filed only along with the income-tax return for the assessment year 1984-85.

If that was the case, the Assessing Officer could not have made the reference to the registered value on 17-7-1984. We find that there was sufficient material for reopening of the assessments by way of the consideration specified in the sale deed even without reference to the report of the approved valuer in respect of the fair market value of the property as on 1-1-1964. The report of the approved valuer only strengthens the conclusion tnat the values have been understated all along. Even without this report, the Assessing Officer could have validly come to the conclusion that the values were understated because the consideration mentioned in the sale deed is three times the value disclosed by the assessee for the assessment year 1982-83 and the value disclosed by the assessee for the years earlier were still lower.

Further, there is a presumption that the notings made by a public servant in course of normal discharge of his duties are correct unless proved otherwise. In the present case, we do not find any proof that the Assessing Officer's notings made on 7-7-1984 for reopening the assessments are false. Accordingly, we have to uphold the validity of the reopening of the assessments for the assessment years 1980-81 to 1982-83.

10. The next ground common for the assessment years 1978-79 and 1979-80 is that the Dy. CIT (Appeals) erred in rej ecting the grounds taken by him that certain residential flats should be valued under rule 1BB. We have already held that the reopening of the assessments for the assessment years 1978-79 and 1979-80 is not valid, so we have to reject this ground.

11. The next common ground for the assessment years 1980-81 to 1982-83 is that the Dy. CIT (Appeals) exceeded his jurisdiction in giving the direction that the assessments should be remade after referring the valuation of the land mentioned hercinabove to the Valuation Officer under section 16A.No arguments have been advanced by the ld. counsel for the assessee in support of this contention. Further, we do not find any merit in this contention because the earlier assessments had been completed on the basis of the report given by the DVO for the assessment year 1972-73 and because of the distance in time such a valuation has no particular relevance for the assessment years 1980-81 to 1982-83; we are of the view that the Dy. CIT (Appeals) was quite justified in directing the Assessing Officer to refer the matter once again to the Valuation Officer for a fresh valuation as on the relevant dates. Even the decision of the Hon'ble Madhya Pradesh High Court in the case of M. V.Kibe cited (supra), which held that the first appellate authority cannot force the Assessing Officer to refer a matter to the Valuation Officer, is distinguishable inasmuch as in the present case the assessments had been completed on the basis of the report of the Valuation Officer and so the direction of the Dy. CIT (Appeals) in the present does not tantamount to usurpation by the first appellate authority of the discretion legitimately vested in the Assessing Officer. In this view of the matter, we find no infirmity in the direction given by the Dy. CIT (Appeals) and we reject the ground for the assessment years 1980-81 to 1982-83. We have upheld the reopening of the assessments under section 17(1) (a); we find that they can be upheld as an alternate measure under section 17(1) (b) in view of the decision of the apex court in the case in Associated Stone Industries (Kotah) Ltd. (supra).

12. In view of the above, the appeals for the assessment years 1978-79 and 1979-80 are allowed and the appeals for the assessmentvcars 1980-81 to 1982-83 are dismissed.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //