HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR D.B. Wealth Tax Appeal No. 1 / 2017 Pr. Commissioner of Wealth Tax, Alwar ----Appellant Versus Smt. Nirmala Devi Data, Bhagwati Sadan, S.D. Marg, Alwar ----Respondent Connected With D.B. Wealth Tax Appeal No. 2 / 2017 Pr. Commissioner of Wealth Tax, Alwar ----Appellant Versus Smt. Nirmala Devi Data, Bhagwati Sadan, S.D. Marg, Alwar ----Respondent D.B. Wealth Tax Appeal No. 3 / 2017 Pr. Commissioner of Wealth Tax, Alwar ----Appellant Versus Smt. Nirmala Devi Data, Bhagwati Sadan, S.D. Marg, Alwar ----Respondent For Appellant(s) : Ms. Parinitoo Jain HON'BLE MR. JUSTICE K.S. JHAVERI HON'BLE MR. JUSTICE VIJAY KUMAR VYAS Order 25/10/2017 1. In all these appeals common questions of law and facts are involved, hence, they are decided by this common judgment. 2. By way of these appeals, appellant has assailed (2 of 5) [ WTA-1/2017] judgment and order of Tribunal whereby Tribunal has dismissed appeal of department and allowed appeal of assessee for statistical purposes. 3. This Court while admitting matters framed following questions of law:- In DBWTA No. 1/2017 1. Whether Tribunal was legally justified in confirming order of CWT(A) in deleting addition of Rs.2,43,89,750/- holding that property was exempt u/s 5(1)(vi) and was not asset u/s 2(ea) to be included in Net Wealth u/s 2(m) and chargeable to Wealth Tax u/s 3? 2. Whether Tribunal was legally justified in upholding order of CWT(A) and deleting addition of Rs.2,43,89,750/- when property was used and developed as commercial property instead of residential property in which assessee neither resided nor rented it out after purchase? In DBWTA No. 2/2017 1. Whether Tribunal was legally justified in confirming order of CWT(A) in deleting addition of Rs.2,74,26,025/- holding that property was exempt u/s 5(1)(vi) and was not asset u/s 2(ea) to be included in Net Wealth u/s 2(m) and chargeable to Wealth Tax u/s 3? 2. Whether Tribunal was legally justified in upholding order of CWT(A) and deleting addition of Rs.2,74,26,025/- when property was used and developed as commercial property instead of residential property in which assessee neither resided nor rented it out after purchase and would be deemed asset u/s 4(1)(iii)? In DBWTA No. 3/2017 1. Whether Tribunal was legally justified in confirming order of CWT(A) in deleting addition of Rs.3,03,62,750/- holding that (3 of 5) [ WTA-1/2017] property was exempt u/s 5(1)(vi) and was not asset u/s 2(ea) to be included in Net Wealth u/s 2(m) and chargeable to Wealth Tax u/s 3? 2. Whether Tribunal was legally justified in upholding order of CWT(A) and deleting addition of Rs.3,03,62,750/- when property was used and developed as commercial property instead of residential property in which assessee neither resided nor rented it out after purchase and would be deemed asset u/s 4(1)(iii)? 4. issue is now squarely covered by decision of this Court in Wealth Tax Appeal No. 4/2011 ( Commissioner of Wealth Tax, Alwar vs. Shri Shailendra Bhargava, & Ors.) decided on 19th July, 2017, wherein while deciding same, court held as under:- 12. Taking into consideration observations made by Assessing Officer in Wealth Tax Appeal No. 6/2011 wherein para 5 & 8 of Assessment order it was observed as under:- 5. M/s Totalal Champalal executed lease dated 19.7.1981 in favor of assessee and Sh. Niranjan Lal. details of constructions/property are shown in map annexed with lease deed. Further submitted that UIT, Alwar by its order dated 25.7.1995 refused permission for construction and it was held; that on following grounds; A- land was given for industrial purpose. B- Jayanti Nagar Yojana is proposed. C- documents of title are incomplete. Secondly, status Government disputes title. name of assessee is not recorded in government record as owner i.e. ownership is disputed and not accepted by UIT, Alwar. 8. During course of present assessment proceedings attempt was made to peep in to reality of assets and land in question was physically inspected by under signed on 22/12/2008 along with Shri P.K. Kalyania, Inspector, posted in this office and Shri J.P. (4 of 5) [ WTA-1/2017] Khurana, Inspector posted in this Office during time when proceedings u/s 17 of W.T. Act were initiated and it is found that there was not slightest sign of any industrial establishment over there. Since land in question is common in case of assessee as well as in case of Shri Niranjan Lal Data, this fact has been brought to notice of Shri V.K. Data ld A/R of Shri Niranjan Lal Data vide order sheet entry dated 22/12/2008 as under:- 23-12-2008 13. In our considered opinion, while para 5.3 of Commissioner Appeal strongly relied upon by counsel for appellant, observations which are made by Wealth Tax Commissioner (A) reads as under: 5.3.- But while dealing with said para learned assessing officer has stated that land was transferred as stock in trade and also DDA and MCD destroyed building, whereas in this case UIT/NCRT has not destroyed structure transferred to assessee. These issues were never raised before learned assessing officer and were not matter (5 of 5) [ WTA-1/2017] of controversy before assessing officer. submissions revolves around permission for construction, which has not been touched upon by learned assessing officer in his remand report. learned assessing officer has accepted fact of restrainment of permission for construction by law, hence controversy stands resolved and stands accepted by learned assessing officer himself, CBDT circular and various authorities relied upon by assessee during course of remand proceedings nowhere stipulates that property should be actually used by assessee himself for residence purposes. submission made before learned assessing officer was upon issue of house whereas learned assessing officer has refered to residence of assessee and both tare different in view of authorities submitted before learned assessing officer, hence findings given by learned assessing officer are of no consequence and deserves to be ignored. learned Assessing Officer has relied upon decision of Gujarat High Court, but this decision has been overruled subsequently by honorable Andhra Pradesh High Court in case of Officer Incharge (Court of Wards, (Paigah, Sir Vicar-UI-Umra, Hyderabad). vs. Commissioner of Wealth Tax, Andhra Pradesh. 14. In our considered opinion, when author of order himself has accepted that construction was prohibited under law, therefore, in our view, explanation under clause (b) of definition of urban land is rightly applied by both authorities. 5. In that view of matter, issues are answered in favour of assessee and against department. 6. appeals stand dismissed. (VIJAY KUMAR VYAS),J. (K.S. JHAVERI),J. A.Sharma/71-73 Pr. Commissioner of Wealth-tax, Alwar v. Nirmala Devi Data