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IN THE INCOME TAX APPELLATE TRIBUNAL "I" BENCH, MUMBAI
BEFORE S/SHRI VIJAY PAL RAO (JM) AND D. KARUNAKAR RAO, (AM)
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/WTA No.13/Mum/2014
( / Assessment Year :2004-05)
Ms.Malti Singh, / Wealth Tax Officer 19(3(3),
701, Sai Prashad Co-op Mumbai
Vs.
Housing Ltd.,
Near EPF Building,
Service Road,
Bandra (W),
Mumbai-400050
( /Appellant) .. ( / Respondent)
. / . /PAN/GIR No. :BTUPS2948K
/ Appellant by Shri Bhumika Vora
/ Revenue by Shri Nail Philip
/ Date of Hearing : 6.5.2015
/Date of Pronouncement : 13.5.2015
/ O R D E R
PER VIJAY PAL RAO (JM)
This appeal filed by the assessee is directed against the order dated
9.1.2014 of ld.Commissioner of Wealth Tax(A) for the assessment year 2004-
05.
2. The assessee has raised following grounds :
"1. On the facts and circumstances of the Appellant's case and in
law the Ld. CIT(A) erred in confirming the action of the Learned
Assessing Officer of re-opening the assessment u/s 17 of the Wealth
Tax Act, 1961.
2. On the facts and circumstances of the Appellant's case and in
law the Ld. CIT(A)erred in confirming the action of the Learned
Assessing Officer in passing the impugned order which is illegal, barred
by limitation or otherwise void for the want of jurisdiction.
2 W TA 1 3 / Mu m / 2 0 1 4
3. On the facts and circumstances of the Appellant's case and in
law the Ld. CIT(A) erred in confirming the action of the Ld. Assessing
Officer in making addition of Rs.30,OOO/ - in respect of value of gun
which is not an asset as per provisions of section 2 (ea) of the
Wealth Tax Act 1957.
4. On the facts and circumstances of the Appellant's case and in
law the Ld. CIT(A) erred in confirming the action of the Ld. Assessing
Officer in making addition a sum of Rs. 6,10,000/ - in respect of
value of rural land which is not an asset as per provisions of section 2
(ea) of the Wealth Tax Act 1957.
3. At the time of hearing, the ld.Counsel for the assessee submitted that
assessee does not want to press ground Nos.1 and 2 and the same may be
dismissed as not pressed for which the ld. DR did not object.
4. Accordingly, grounds Nos.1 and 2 are dismissed as not pressed.
5. Ground No.3 is regarding addition of Rs.30,OOO/ - in respect of value of
gun. The AO noted that the assessee has declared the value of gun at
Rs.30,000/- before the Returning Officer in her husband's affidavit dated
29.9.2004. Accordingly, the assessing officer made an addition of Rs.30,000/-
in the hands of the assessee. The assessee challenged the action of the AO
before the Commissioner of Wealth Tax(A) and contended that as per the
provisions of section 2(ea) of the Wealth Tax Act, 1957 the "GUN" does not
fall within the purview of "assets". The Commissioner of Wealth Tax (A)
has not accepted the contention of the assessee and confirmed the addition
made by the AO.
6. Before us, the ld. AR has reiterated the contention as raised before the
CWT(A) and submitted that the gun does not fall in the purview of "assets"
as per the provisions of section 2(ea) of the Wealth Tax Act, 1957. The ld.
DR relied on the orders of authorities below.
7. We have heard the rival contentions and considered the material
available on record. The ld. CWT(A) has decided this issue by giving
reasoning as under :
"from the perusal of the submission and facts of the case, it is
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observed that as per the provisions of section 2(ea), although the
name of gun is not mentioned as an asset but in the provisions u/s
2(ea) 5(iii), it is mentioned that any other article made fully or partly
of gold, silver platinum or any other precious metal and or any allow
containing one or more of such precious metals. In my view, the case
of the appellant is covered under this provision of any other article,
therefore, the addition made by the AO is upheld and round of appeal
is dismissed"
8. Thus, the ld. CWT(A) has considered the gun as precious metal or alloy
containing one or more of such precious metals as mentioned in sub-class
(iii) of section 2(ea) of the Wealth Tax Act, 1957. For ready reference we
quote sub-clause (iii) of section 2(ea) of the Wealth Tax Act:
"(iii) jewellery, bullion, furniture, utensils or any other article made
wholly or partly of gold, silver, platinum or any other precious
metal or any alloy containing one or more of such precious
metals :
Provided that where any of the said assets is used by the
assessee as stock-in-trade, such asset shall be deemed as
excluded from the assets specified in this sub-clause ;"
As per sub-clause (iii) of section 2(ea) jewellery, bullion, furniture, utensils or
any other article made wholly or partly of gold, silver, platinum or any other
precious metal or any alloy containing one or more of such precious metals
will be regarded as "asset" for the purpose of Wealth Tax Act. There is no
dispute that the gun is neither jewellery, bullion nor the article made wholly
or partly of gold, silver, platinum of any other precious metal or any alloy
containing of one or more such precious metal. The term one or more of
such precious metal has to be understood in the contest of gold jewelry,
platinum or any other precious metal like same category. Since gun is not
made of any such metals mentioned above or enlisted in the clause 2(ea)(iii)
of the Wealth Tax Act, therefore, it will not fall under the term "asset" as per
the provisions of section 2(ea) of the Wealth Tax Act. In view of above
observations, we are of the considered opinion that the authorities below
committed an error by considering the gun as an "asset" in terms of section
2(ea)(iii) of the Act. Accordingly, we set aside the orders of authorities
below qua this issue and deleted the addition on this count.
4 W TA 1 3 / Mu m / 2 0 1 4
9. Ground No.4 is in respect of addition of value of rural land. The AO
noted that as per the declaration before the Returning Officer, though
affidavit dated 21.09.2009, the assessee was owning immovable property
being non-agricultural at Taluka Panchayat Samiti Wada village of Rs.6
lakhs and stamp duty of Rs.10,580/- was paid. The AO held that the
assessee has not offered the above mentioned land in the Wealth Tax
Returns in the year under consideration, therefore Rs.6,10,580/- was
added to the taxable wealth.
10. On appeal, the assessee contended that the land in question does
not fall under the definition of assets as per the provisions of section 2(ea)
of the Wealth Tax Act because this land is located in a village in Thane
District. The Commissioner of Wealth Tax(A) did not accept the contention
of the assessee on the ground that the assessee has not furnished any
evidence in support of this contention that this land is beyond the 25 km
of local limit of Municipality.
11. Before us, the ld. AR of the assessee submitted the "CENSUS" 2011
record in respect of the village Kumdal where the land is situated and
submitted that total population of this village is 517 persons and is 54
km away from the Municipal Limits, therefore ,the the ld. AR submitted
that the land in question does not fall under the purview of urban land as
per clause (iv) of section 3 (ea) because it is not within the limit of
Municipality or within the distance of 25 km.
12. On the other hand, the DR submitted that the assessee has failed to
produce any supporting document or evidence before the authorities
below and hence this fact requires verification and examination. He has
relied on the orders of authorities below.
13. We have heard both the parties and considered the relevant
material available on record. We notice that the authorises below has
considered the land in question as urban land and added to the total
wealth of the assessee assessable to tax on the ground that the assessee
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has not produced any evidence that this land is located in the village
which is beyond the local limit of 25 km of Municipality as per the section
2(ea) of the Wealth Tax Act. The assessee has now filed "Census" 2011
record of Government of Maharashtra in respect of village Kumdal
showing the population at 517. Further, the assessee has stated that the
distance of the said village is 54 km from the Municipal Limit, therefore,
the land does not fall within the purview of section 2(ea) of the Wealth
Tax Act. Prima Facie, it appears that the land situated in a village having
population of 517 and also situated beyond the limit of Municipality.
However, the relevant facts have not been verified, therefore, we set
aside this issue to the file of the AO to verify the facts as well as relevant
record in this respect and then decide the same as per law.
14. In the result, the appeal of the assessee is partly allowed.
The above order was pronounced in the open court on 13th May, 2015.
13th May, 2015
Sd sd
(. /D. KARUNAKAR RAO) ( /VIJAY PAL RAO)
/ ACCOUNTANT MEMBER / JUDICIAL MEMBER
Mumbai: th May, 2015.
. ../ SRL , Sr. PS
/Copy of the Order forwarded to :
1. / The Appellant
2. / The Respondent.
3. () / The CIT(A)- concerned
4. / CIT concerned
5. , , /
DR, ITAT, Mumbai concerned
6. / Guard file.
/ BY ORDER,
True copy
(Asstt. Registrar)
, /ITAT, Mumbai
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