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Raja D.V. Seetharamayya Bahadur Vs. Sixth Wealth-tax Officer - Court Judgment

LegalCrystal Citation
SubjectDirect Taxation
CourtChennai High Court
Decided On
Case NumberWrit Petitions Nos. 4159 to 4165 of 1984 and 8440 to 8442 of 1982
Judge
Reported in(1995)127CTR(Mad)3; [1995]213ITR502(Mad)
ActsWealth Tax Act, 1957 - Sections 16, 16A and 16A(1)
AppellantRaja D.V. Seetharamayya Bahadur ;raja D.V. Appa Rao Bahadur
RespondentSixth Wealth-tax Officer;valuation Officer and Another
Appellant Advocate K.C. Rajappa, Adv.
Respondent AdvocateN.V. Balasubramaniam, Adv.
Excerpt:
.....order and he would not be entitled to go beyond them. application : also to current assessment years. wealth tax act 1957 s.16 wealth tax valuation--reference to valuation officer--reference for other properties not contained in order of appellate authority. ratio : order by appellate authority to refer valuation of agricultural lands to valuation officer, reference to valuation officer for valuation of other properties is, therefore, invalid. facts the assessing officer had assessed wealth-tax on the assessees for the years from 1970-71 to 1977-78 and the appeals filed against the orders for 1976-77 and 1977-78 had not been decided and could not be reopened by the assessing officer. held : the notices under s. 16a insofar as they related to those two years, i.e., 1976-77 and..........aforesaid, the income-tax officer referred the matter for revaluation of various assets by the valuation officer under section 16a of the wealth-tax act, 1957. the said valuation officer had issued three notices to the petitioners dated september 13, 1982 and september 14, 1982, proposing to determine the market value of the assets mentioned therein during the assessment period from march 31, 1970, to march 31, 1982. these notices are under challenge in writ petitions nos. 8440 to 8442 of 1982. it appears that in a similar factual situation assessment orders were passed for the years 1970-71 to 1976-77, and the petitioner in writ petition nos. 4159 to 4165 of 1982 seeks to challenge the legal validity of those assessment years. 2. it is no longer in dispute that the petitioners are.....
Judgment:

Gulab C. Gupta, J.

1. These petitions relate to assessment and reassessment of wealth-tax for the years from March 31, 1970, to March 31, 1982, against the petitioner. The wealth-tax assessments for the assessments years 1970-71 to 1974-75, were made on May 31, 1979, and for the year 1975-76 on March 12, 1980. The petitioner-assessee had filed appeals against them, which were allowed and the cases remanded. The assessments for the years 1976-77 and 1977-78 were made on March 28, 1981, and March 3, 1982, the appeals filed against the same are still pending. The assessments for the subsequent years have not been completed. After the remand order passed in the appeals aforesaid, the Income-tax Officer referred the matter for revaluation of various assets by the Valuation Officer under section 16A of the Wealth-tax Act, 1957. The said Valuation Officer had issued three notices to the petitioners dated September 13, 1982 and September 14, 1982, proposing to determine the market value of the assets mentioned therein during the assessment period from March 31, 1970, to March 31, 1982. These notices are under challenge in Writ Petitions Nos. 8440 to 8442 of 1982. It appears that in a similar factual situation assessment orders were passed for the years 1970-71 to 1976-77, and the petitioner in Writ Petition Nos. 4159 to 4165 of 1982 seeks to challenge the legal validity of those assessment years.

2. It is no longer in dispute that the petitioners are liable to pay wealth-tax on the property owned by them to be calculated in accordance with law. It appears that the petitioners own agricultural lands at Ramavaram village and Katravalapalli village in Andhra Pradesh and various house sites and buildings in the city of Madras. All these properties were valued by the Wealth-tax Officer at the time of original assessment and tax imposed. The petitioners preferred appeals against those assessments which were allowed and the matter remanded. The order of the Commissioner of Income-tax (Appeals)-III, Madras, dated March 31, 1993, referable to Writ Petitions Nos. 8440-8442 of 1982 and the assessment years 1970-71, 1971-72 and 1972-73 indicates that it was held that valuation of agricultural lands should have been got done by an approved valuer under section 16A(1)(b)(i) of the Act read with rule 3B of the Wealth-tax Rules and since it was not so done the appellate authority held that 'in the circumstances the valuation adopted by the Wealth-tax Officer in respect of the agricultural lands without applying the provisions of section 16A and rule 3(b), cannot be upheld'. As regards the second item of dispute consisting of lands in 64, Luz Church Road, Mylapore, Madras, the appellate authority held that the documents indicate that the assessee had settled 48,583 sq. ft. of the land on Raja D. Khousalya Devi and another 44,956 sq. ft. on Raja R. Rajalakshmi Devi and, therefore, the entire land cannot be treated as property of the assessee. The appellate authority, therefore, ordered as under :

'In these circumstances, I would set aside the three assessments for being redone by him. The Wealth-tax Officer will refer the question of valuation of agricultural lands to the Valuation Officer. He should go into the question as to the extent of the land owned by the assessee at 64, Luz Church Road, Mylapore, exclude therefrom the extent of the lands that had been settled by deeds dated March 25, 1970, on his daughters and include in the total net wealth of the assessees, the remaining portion of the land only.'

3. The appellate order in relation to the assessment year 1973-74 is dated November 20, 1981, and gives the following direction :

'The wealth-tax assessment for 1973-74 assessment year is set aside with the direction to the wealth-tax Officer to make a fresh assessment for that assessment year in accordance with law, after valuing the appellant's share in the firm, Messrs. Rani Kalyan, according to rule 2 of the Wealth-tax Rules, and after complying with the provisions required for referring the valuation of the appellant's agricultural lands to the valuation cell.'

4. The appellate order in relation to the assessment years 1974-75 is dated June 22, 1982, and follows the order of the Commissioner of Income-tax dated June 23, 1980, in relation to the assessment years 1970-71, 1971-72 and 1972-73. The appellate order for the year 1975-76 dated June 23, 1980, also follows the order in relation to the assessment year 1970-71 and gives the following directions :

'In the circumstances and in view of the fact that the Appellate Assistant Commissioner had set aside the assessments for the year 1970-71 and onwards for being redone after referring the question of valuation to the Valuation Officer, I would set aside the assessments with directions to the Wealth-tax Officer to pass a speaking order with reasons for any variations that he thinks are called for. In particular, he should comply with the statutory provisions so far as reference to the valuation cell are concerned.'

5. It has already been noticed that appeals filed against the assessments relating to the assessment years 1976-77 and 1977-78 are pending hence assessments for these years must be deemed to be final, subject to the appeals. It is common ground that similar orders were passed in matters covered in Writ Petitions Nos. 4159 to 4165 of 1982.

6. Pursuant to the aforesaid directions by the appellate authorities the Assessing Officer referred to the Valuation Officer the valuation of not only the agricultural property in Andhra Pradesh but also of the property in the city of Madras and consequent upon the said reference the Valuation Officer had issued notices under section 16A of the Act requiring the petitioners-assessees to appear and produce material for facilitating valuation of : (1) the property No. 94, Royapettah High Road, Madras-4; (2) the property at No. 64/1 and 63-3C, Luz Church Road, Mylapore, Madras-4; and (3) the property at No. 64-1, Luz Church Road, Mylapore Madras-4. These notices are under challenge in Writ Petitions Nos. 8440 to 8442 of 1982.

7. As we noticed earlier, fresh assessments for the period from 1970-71 to 1976-77 have been made by the Wealth-tax Officer on April 23, 1984, and March 24, 1984, and those assessments are the subject-matter of Writ Petitions Nos. 4159 to 4165 of 1982. A perusal of those assessment orders would indicate that not only had the agricultural land been valued by the Valuation Officer but the valuation of the land and house sites within the city of Madras has been increased considerably. The grievance of the petitioner is that these assessments are contrary to the directions given by the appellate authorities and are, therefore, illegal. It is particularly submitted that the jurisdiction of the Assessing Officer was confined to the points mentioned in the appellate order and hence he was bound to look into those points only. As regards valuation of other properties not mentioned in the appellate orders, it is submitted that the valuation in the original assessment had become final and could not be challenged. Learned standing counsel for the Department, however, submitted that the jurisdiction of the Assessing Officer is not confined to the points mentioned in the remand order and is the original jurisdiction under section 16 of the Act. It is, therefore, submitted that the Assessing Officer could make a fresh assessment including the valuation in the original assessment order.

8. It was laid down by the Privy Council in CIT v. Khemchand Ramdas [1938] 6 ITR 414 that finality attaches to an assessment order and it cannot be reopened except in the circumstances detailed in and within the time-limit limited by the express provisions of the Act, and hence, the Department cannot go on making fresh computations and issuing notices of demand to the end of all time. The Supreme Court reaffirmed this principle in ITO v. S. K. Habibullah : [1962]44ITR809(SC) and since then it has been accepted that finality attaches to an order of the Assessing Officer and he would not be entitled to reopen the matter and make fresh computations again and again. In the instant case, the Assessing Officer, had assessed wealth-tax on the petitioners-assessees for the years 1970-71 to 1977-78 and appeals filed against the orders of 1976-77 and 1977-78 have not been decided so far and could not be reopened by the Assessing Officer. In spite of it, notices issued by the Valuation Officer cover those periods and thereby disturb the finality attached to the assessment orders. The notices in so far as they relate to those two years, i.e., 1976-77 and 1977-78, must be held to be illegal since the original assessments have not been set aside in appeal. The Assessing Officer could not have made a reference under section 16A of the Act.

9. As regards the period from 1970-71 to 1975-76 which are covered by the appellate orders noticed earlier, the direction of the appellate authority was to get the agricultural properties valued under section 16A and nothing more. As regards the house property in the city of Madras, there was no direction to get them revalued under section 16A of the Act. The appellate orders for the years 1970-71 and 1972-73 had only directed the Assessing Officer to 'go into the question as to the extent of the land owned by the assessee at No. 64, Luz Church Road, Mylapore, Madras-4, exclude therefrom the extent of the lands that had been settled by deeds dated March 25, 1970, on his daughters and include in the total net wealth of the assessee, the remaining portion of the land only.' There is no direction in the any other appellate order in relation to the property in the city of Madras. The appellate order in relation to the years 1970-71 to 1972-73 directs assessment to be 'redone'. The appellate order for 1974-75 and 1975-76 follows this order. The appellate order for 1973-74, however, directs the officer to make 'a fresh assessment' in the manner stated in the said order. The question requiring consideration of this court is whether these directions empower the Assessing Officer to reopen the entire assessment and even revalue properties not ordered to be revalued by the appellate authority. Considering the finality attached to an assessment order and the Assessing Officer having become functus officio in relation thereto, this court is of the view that the jurisdiction of the Assessing Officer has to be found in the remand order itself and the officer cannot ignore or act contrary or act contrary to or in excess of the said order. In ITO v. Ryam Sugar & Co. Ltd. : [1976]105ITR819(Cal) , a similar situation arose in relation to an assessment made under the Income-tax Act of which only one part was challenged in appeal. The appeal having been allowed, the question arose as to whether the whole matter was wide open before the Income-tax Officer or his jurisdiction was limited to the specific question considered in appeal. The court held that the assessment order passed by the Income-tax Officer had merged in the order of the Appellate Assistant Commissioner and hence the Income-tax Officer could not decide the matter afresh. In other words, the court took the view that the jurisdiction of the Income-tax Officer after the appellate order was confined to passing the order with a view to give effect to the appellate order. The matter received the consideration of the said court again in Katihar Jute Mills (P.) Ltd. v. CIT : [1979]120ITR861(Cal) and it was held that where the entire assessment was not set aside by the appellate authority and only a part was set aside, against which an appeal was preferred and where there is specific direction to reconsider that part only, the Income-tax Officer would not be entitled to reopen the entire assessment. According to the court, the appellate order should have been read as a whole and in proper context and if it was so read, the fresh assessment could not be made. Their Lordships also referred to the decision of the Allahabad High Court in J. K. Cotton Spg. and Wvg. Mills Ltd. v. CIT : [1963]47ITR906(All) and distinguished the same by holding that in the said case the appellate authority had set aside the whole assessment and for that reason the Income-tax Officer had a free hand in the matter. This case, therefore, is an authority for the proposition that the jurisdiction of the Assessing Officer after remand would depend upon the terms of the remand order and he would not be entitled to go beyond the same. The same view has been followed in Surrendra Overseas Ltd. v. CIT : [1979]120ITR872(Cal) , wherein it was clearly stated that 'Where the order of the Appellate Assistant Commissioner is specific it is not open to the Income-tax Officer to conduct a fresh enquiry beyond the said directions and to proceed to make a fresh assessment without any reference to the earlier assessment.' This decision has been followed by the Allahabad High Court in Cawnpore Chemical Words (P.) Ltd. (No. 1) v. CIT : [1992]197ITR296(All) by holding that the Income-tax Officer was bound by the directions given by the Appellate Assistant Commissioner while setting aside the original assessment and hence could not go beyond the same. The Orissa High Court has also taken this view in CIT v. S. V. Divakar : [1993]201ITR914(Orissa) by holding that where an assessment is set aside without imposing any restrictions or limitations, the Assessing Officer has the same power for making the assessment afresh as he could have originally done. In such a case, matters and aspects that have relevance can be considered. A difficulty arises when the assessment has been set aside with a specific direction and an Assessing Officers stumbles upon a new source which was not noticed by him while making the original assessment. Even then the Assessing Officer could not reopen the entire assessment. The court held that : 'the scope of fresh assessment following the appellate order depends on the subject-matter of the appeal and the appellate order read as a whole in its proper context'. Learned standing counsel for the Department, however, relied on Sri Gajalakshmi Ginning Factory Ltd. v. CIT : [1952]22ITR502(Mad) to submit that the jurisdiction of the Income-tax Officer after remand is as wide as the original jurisdiction and is in no way limited by the remand order. According to learned counsel, this decision lays down that the powers of the appellate court under the Code of Civil Procedure are not as wide as the powers of the Appellate Assistant Commissioner and, therefore, the analogy between the two would not be proper. There are no doubt observations in this judgment to that effect, but those observations do not take into consideration Order 41, rule 33, Civil Procedure Code, which confer almost unlimited jurisdiction on the appellate court under the Code of Civil Procedure. In spite of it, the jurisdiction of the appellate authority under the Code of Civil Procedure is not of any relevance in such cases. This judgment does not deal with the power of the assessing authority after remand but deals with the power of the Appellate Assistant Commissioner which have been held to be wider. This case is, therefore, not of any help to learned counsel. The decision in CIT v. Seth Manicklal Fomra : [1975]99ITR470(Mad) has to be read as a whole and in the context of the question involved for consideration of the court. It is well-known that a decision takes its colour from the questions involved in the case in which it is rendered and for that reason it is not permissible to pick up a sentence from the judgment to give it a new shape or colour. It was a case where the Appellate Assistant Commissioner had, while setting aside the assessment, directed the Income-tax Officer to make a fresh assessment. The Income-tax Officer, therefore, made the fresh assessment exercising his original jurisdiction and included income of the assessee from sources not considered in the original assessment. This judgment is, therefore, not an authority for the proposition that the Income-tax Officer could go beyond the appellate order. The Allahabad High Court in Cawnpore Chemical Works P. Ltd. (No. 1) v. CIT : [1992]197ITR296(All) has considered this aspect of the matter and brought out the said distinction. Even this court has is CIT v. S. K. Ulagammal Achi : [1987]166ITR210(Mad) explained this case by observing that 'the decision cited by the learned counsel is also not an authority for the position that while setting aside the entire order of the Income-tax Officer, the Appellate Assistant Commissioner cannot restrict the enquiry or the points to be considered'. Under the circumstances, the decision cannot help the Revenue in any manner. Learned counsel for the Department also referred to Abdul Sathar Haji Moosa Sait Dharmastapanam v. CIT : [1988]169ITR84(Ker) to support the aforesaid submission. A perusal of the said judgment at page 91 would indicate that the appellate order did not contain any word limiting the jurisdiction of the Wealth-tax Officer. According to the court, 'his direction is in the widest terms and cannot be read in any manner to restrict the powers of the Wealth-tax Officer'. This would, therefore, indicate that the court was not considering a case of the type where the appellate order had limited the scope of enquiry and the Department was claiming the right to overreach the said decision. Yet another decision relied on is Kundanlal Maru v. CIT : [1982]135ITR84(MP) . This was also a case where the Appellate Assistant Commissioner while setting aside the assessment has directed the Income-tax Officer 'to apply his mind afresh to the problem and process the whole matter after giving sufficient opportunity to the assessee and pass a fresh assessment order according to law'. A fair reading of the whole judgment would indicate that the decision in the case turned on the interpretation of the order of the Appellate Assistant Commissioner. The court, after interpreting the said order, held that 'the order of the Appellate Assistant Commissioner in unequivocal terms without leaving any ray of doubt makes it transparently clear that the order of assessment of the Income-tax Officer was set aside and the whole matter, without any limitation, was at large before the Income-tax Officer.' These judgments, would, in the opinion of this court, support the submission of learned counsel for the petitioners-assessees that the Assessing Officer could not go beyond the remand order and was bound to act according to the directions contained therein.

10. If the facts of these petitions are considered in the context of the aforesaid principle of law, it would be clear that the Assessing Officer has gone beyond the remand order and has treated the whole matter as at large before him. This was not intended by the remand order passed by the appellate authority. He has thus reopened even the matter in relation to the years where the assessment orders has not been challenged in appeal and had become final. There is, therefore, a patent illegality in the impugned notices as also the assessment orders justifying issuance of a writ of certiorari in the matter.

11. Learned standing counsel for the Department, however, raised a technical objection that the notices which are the subject-matter of Writ Petitions Nos. 8440 to 8442 of 1982 relate to the years 1970-71 to 1982-83 and since such assessment year is considered as a separate unit by itself a separate writ petition for each year should have been filed. The objection is highly technical in nature and ignores the fact that the Department itself had issued one notice in relation to one property for all these years. The objection does not deserve to be taken any serious note of and is consequently rejected.

12. Learned standing counsel also submitted that in case the notices as such are quashed, the proceedings in relation to the assessment years where the assessment has not been completed will also be affected creating complication in the matter. As regards the years where original assessment has not yet been done, the jurisdiction of the Assessing Officer is referable to section 16 of the Wealth-tax Act and hence this decision of the court would not be relevant in such a case. In spite of it, this court would like to clarify that the order of this court affects the notices and assessment orders in relation to the assessment years 1970-71 to 1975-76 only.

13. In view of the discussion aforesaid, these petitions succeed and are allowed. The notices dated September 13, 1982, and September 14, 1982, in so far as they relate to the assessment years 1970-71 to 1975-76 are hereby quashed. Those notices are also quashed in relation to the assessment years 1976-77 and 1977-78 inasmuch as the original assessment orders for those two years are pending consideration of the appellate authority and hence no such notice could be issued. The notices would, however, survive for the period thereafter. Similarly, Writ Petitions Nos. 4159 to 4165 of 1982 are also allowed. The assessment order for the year 1970-71 dated March 23, 1984, and the assessment orders dated March 24, 1984, for the years 1971-72 to 1976-77 are also quashed. The Assessing Officer would, however, be free to act according to the appellate order and make assessment in terms of the directions contained therein. No costs.


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