TMI Blog2013 (3) TMI 781X X X X Extracts X X X X X X X X Extracts X X X X ..... in law in adopting the rate of valuation as well as area for plots at S.No.101 rate and area claimed by appellant, S.No. 510/A/1 as against the rate adopted/ascertained by the A.O. as claimed by appellant. 2. The controversy is in respect of the net wealth determined by the Assessing Officer in all the 4 assessment years in respect of plots of land within the limits of the Municipal Council of Dhule. The Assessing Officer determined the net wealth for all the assessments are as under: A.Y. Gross Wealth Less Debt Net Wealth 2003-04 1,28,80,600/- 17,25,000/- 1,11,55,600/- 2004-05 1,53,13,420/- 17,25,000/- 1,35,88,420/- 2005-06 1,54,51,800/- 17,25,000/- 1,37,26,800/- 2006-07 1,73,72,690/- 17,25,000/- 1,56,74,690/- 3. The Assessing Officer has noted that as per the record of the Sub- Divisional Office, Dhule, the assessee own ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed only after giving the assessee an opportunity of being heard. The assessee also contended that as per the provisions of Section 16(4) the assessee should have been given an opportunity before passing the best judgment assessment. 5.1 The Ld.CIT(A) called for report of the Assessing Officer on the contention taken by the assessee and also called for the reply to the report furnished by the Assessing Officer for the assessee. After considering the facts of the case and the statutory provisions the Ld.CIT(A) held that the notice issued u/s.16(4) of the Act dated 28-11- 2008 calling once again the return of wealth was not the legal notice. The Ld.CIT(A) has observed that notice u/s.16(4) can be issued either to call the return of wealth or to produce accounts etc. He has also noted that the notice issued to the assessee u/s.16(4) of the Act was specifically issued only to call for return of wealth. The Ld.CIT(A) finally held that as there was no proper notice to the assessee affording opportunity of being heard, the assessment framed by the Assessing Officer was null and void as it was completed in gross violation of mandatory provisions of second proviso to Section 16(5) of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 16. In our opinion, said stand of the Assessing Officer is not as per the provisions of law. In the assessment order, he has noted that the assessee was issued notice u/s.16 (4) of the Wealth Tax Act requesting him to file return of wealth. In fact, in our opinion, once the Assessing Officer issues notice u/s.17(1) then there is no further requirement to issue the notice u/s.16(4) directing the assessee to file the return of income as said Sub-section is applicable in a situation where the assessee did not file return of income u/s.14(1) of the Wealth Tax Act within the time allowed. As we understand Section 17 operates when there is a escapement of the income and the requirement of filing the return is incorporated in the said Sub-section itself and once the notice is issued by the Assessing Officer u/s.17(1) of the Wealth Tax Act requiring the assessee to filing the return of wealth and then Section 16(4) does not apply when notice u/s.17(1) is issued. In our opinion, in view of the proviso one below Section 16(5) of the Wealth Tax Act, the Assessing Officer is bound to give opportunity to the assessee before passing the assessment order, which is not the case here. We, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8. We have carefully considered the rival submissions. Section 3 of the Act is the charging section which contemplates that subject to the provisions of the Act, there shall be charged for every assessment year prescribed therein, the tax in respect of net wealth on the corresponding valuation date as specified in schedule I to the Act. Section 2(ea) of the Act defines the expression asset and in so far as the present controversy is concerned, the relevant asset is urban land which is included in the expression asset in terms of section 2(ea)(v) of the Act. Further clause (b) to Explanation 1 to sec. 2(ea) of the Act explains the meaning of expression urban land . The said clause (b) refers to certain exclusions from the purview of urban land and we are dealing with said prescription in terms of which urban land does not include a land on which construction of a building is not permissible under any law for the time being in force. In the present case, the plea of the assessee is that the land at Tisgaon, though falling within the jurisdiction of Aurangabad Municipal Corporation, is an agricultural land under cultivation on which no construction is permissible, a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wing parity of reasoning in the case of E. Udaykumar (supra), the CWT(A) made no mistake in directing the Assessing Officer to exclude the value of Tisgaon land from chargeability to wealth-tax. Accordingly the order of CWT(A) is hereby affirmed. 11. Before parting, we may refer to Ground of Appeal No. 3 raised by the Revenue in terms of which it is stated that the land at Tisgaon was urban land since 1986 as is evident from the order dated 19-3-1986 of Tehsildar Aurangabad permitting conversion of the land into non-agricultural land. At the time of hearing, the learned DR was asked to substantiate the aforesaid Ground and in response, it was stated that there is no such averment emerging from the assessment order. There is no other material put-forth by the Revenue in support of the aforesaid Ground of Appeal No. 3. Thus, on this aspect also, we find that the ground is unsubstantiated, misconceived and is liable to be dismissed. Be that as it may, even if the plea of the Revenue to the effect that the land in question has been permitted conversion into non-agricultural land, is considered, even then, the factum of such permission would not distract from the ultimate conc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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