TMI Blog2016 (2) TMI 29X X X X Extracts X X X X X X X X Extracts X X X X ..... f Wealth Tax, Kolkata-XI Kolkata-XIX of dated 18-10-2013 28.11.2013. Assessment was framed by WTO, Ward-33(3), Kolkata u/s163)/17 of the Wealth Tax Act, 1957 (hereinafter referred to as the Act ) for Assessment Years 2006-07 vide his orders dated 08.10.2013 19.12.2011 respectively. First we take up assessee appeal in WTA No.39/Kol/2013. 2. The only issue in this appeal of assessee is against the order of CWT(A), Kolkata-XI u/s. 25(2) of the Act. For this, assessee has raised following grounds:- 1. For that the order u/s./ 25(2) of the Wealth Tax Act, 1957 made by the Ld. Commissioner of Wealth Tax setting aside the assessment framed by A.O u/s. 16(3)/17 whereby AO has been directed to add the value of the asset (in dispute) in the taxable wealth of the appellant is bad-in-law. 2. For that the assumption of jurisdiction u/s. 25(2) by the Ld. Commissioner of Wealth Tax proceeded on the basis of proposal made out by the AO and not on calling and examining the records of the appellant and this jurisdiction renders the proceedings drawn invalid. For that the appellant was not given any opportunity of being heard by the Ld. Commissioner of Wealth ax and as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e definition of 2(ea)(i) of the act and during the relevant financial year 2005-06 and the relevant to AY 2006-07 this building was vacant and lease agreement dated 09.03.2006 was from 01.04.2006 to 31.03.2011. But the mute question is whether the commercial building i.e. shop is a definition u/s 2(ea)(i) of the Act or not. This issue is now covered by the decision of co-ordinate Bench in the case of WTO Vs. Ferrolite Products Ltd. in WTA Nos. 47 48/Kol/2010, AYs 2003-04 2004-05 dated 06.02.2015, wherein it has been held as under: 5. We have heard Ld. Sr. DR and gone through facts and circumstances of the case. We have gone through the order of coordinate bench of this Tribunal Pune Bench in the case of Satvinder Singh V Dy. CWT(2007)109 ITD 241(Pune), wherein the entire provision of section 2(ea) of the Act is discussed in para13 to 27 as under:- 16. The exception provided in Sub-clauses (4) and (5) below to Clause (i) of Sub-section(ea) of Section 2 has been inserted by the Finance (No. 2) Act with effect from 1.4.99. In the Budget Speech of Minister of Finance, the Hon'ble Finance Minister has stated that housing is an area which requires our utmost attenti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n reading of the main enacting provision of Clause (i) of Sub-section (ea) of Section 2, as substituted by the Finance (No. 2) Act, 1996 with effect from 1.4.97 and by the Finance Act, 1998 with effect from 1.4.99, it is clear that any building or land appurtenant thereto whether used for residential or commercial purposes fall within the meaning of assets , however, subject to the exceptions provided there-under. Some of the building or land appurtenant thereto whether used for residential or commercial purposes have been taken out from the main provision as envisaged under Sub-clauses (1) to (5) to Clause (i) of Sub-section (ea) of Section 2 of the Wealth-tax Act. In other words, Sub-clauses (1) to (5) carve certain properties or houses out of the main enacting provision. It is thus clear that all building or land appurtenant thereto, which are whether used for residential or commercial purposes, may not come within the definition of asset as defined under Clause (i) of Sub-section (ea) of Section 2 of the Wealth-tax Act if any one of them is found to be covered by Clauses (1) to (5) below to Section 2(ea)(i) of the Act. Sub-clauses (1) to (5) qualifies the generality of the m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... perty in the nature of commercial establishments or complexes are not included within the definition of assets for the purpose of Wealth-tax Act. To claim benefit of the aforesaid Sub-clause (5), one must prove and establish that the property claimed to be excluded from the definition of assets , should be in the nature of commercial establishments or complexes. In other words, the property should not be of any nature other than the nature of commercial establishments or complexes. In this Sub-clause (5), complexes or establishments are qualified with an adjective 'commercial'. Establishment or complex, therefore, must be of a commercial in nature. The word 'commercial' means something which is used in or related to, a business or a trade. Commercial means relating to or engaged in or used for commerce. The word 'establishment' means an organization, building, construction, shop, store, concern or corporation. Thus, commercial establishment means some kind of place or building or shop or store where business or trade is carried on. The word complex means composite, compounded, multiple, manifold, multicomplex or something composed of or made of many i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reading of the main provision contained in Sub-clause (i) of Clause (ea) of Section 2, which is appended above, it is clear that any building or land appurtenant thereto used for commercial purposes also comes within the definition of asset, subject to the items excluded, vide Sub-clauses (1) to (5) thereto. In the main principal portion of Clause (i) the word used is any building or land appurtenant thereto whether used for residential or commercial purpose but it is always subject to the exceptions provided in Sub-clauses (1) to (5) thereto. Sub-clause (3) covers only those houses, which are occupied by the assessee for the purpose of any business or profession carried on by the assessee. Sub-clause (5) covers all those properties which are in the nature of commercial establishment or complex meaning thereby that the property must be in the nature of commercial establishment or complex which in turn indicates that the property must also be actually used for the purpose of any business or trade carried on in those commercial establishments or complexes. This would mean that any house, which is not by its very nature in the nature of commercial establishment or complex, but is o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... part of stock in trade (Sub-clause 2). Therefore, for the purpose of Item No. (3), any house may not necessarily be required to be in the nature of commercial establishment or complex, if it is occupied by the assessee for the purpose of any business or profession carried on by him, and in that case, the same shall stand excluded from the purview of assets defined Under Section 2(ea) of the Act. Further, any property which satisfy the criteria of its being in the nature of commercial establishment or complex and also used in a business or trade carried thereon shall be covered by Sub-clause (5) below to Section 2(ea)(i) of the Act. Furthermore, any house used for commercial purposes forming part of stock in trade also stand excluded from the purview of asset vide exception provided in Sub-clause (2) below to Section 2(ea)(i) of the Act. In this, sense, we may, therefore, state that mere because of the fact that any building or land appurtenant thereto used for commercial purposes would not come within the ambit of Sub-clause (2). (3). and (5) unless for the purpose of Sub-clause (2) it forms part of stock in trade, for the purpose of Sub-clause (3) it is satisfied that the house wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o mean every ward of the Municipal Borough. The Hon'ble Calcutta High Court has referred to number of decisions of the foreign Courts as well as Courts of the Land, and, thus, observed that no case has been pointed out to them where the word any has been used in a restrictive sense so as not to include all . They further held that they failed to see why part should not include the whole . In this view of the matter, and in the light of the decisions referred to above, the word any should not be given a restricted meaning but should include all , some of them , one of any , or an indefinite number . 26. It is also well settled that singular is included in plural . If a plural word is used, singular automatically comes within its ambit. In this connection, we may refer to Section 13 of the General Clauses Act, 1897, which reads as under: 13. Gender and number.- In all Central Acts and Regulations, unless there is anything repugnant in the subject or context.- (1) words importing the masculine gender shall be taken to include females; and (2) words in the singular shall include the plural, and vice versa. 27. In the enactment provided under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Hence he held that such commercial establishment cannot be included in the net wealth of the assessee. 7. The facts emerges are that total area of land consists of 20164 sft out of which area is 10771 sft namely, the factory building, courtyard, electrical substation, labour quarters, office and godown etc. The assessee rented out this premises to M. S. Dalmia Co Ltd for a rent of ₹ 12 lakh per annum and this rent was assessed under the head Income from House Property . From the very reading of Sub-clause (5) it is clear that this covers all those properties which are in the nature of commercial establishment or complex meaning thereby that the property must be in the nature of commercial establishment or complex which in turn indicates that the property must also be actually used for the purpose of any business or trade carried on in those commercial establishments or complexes. We are of the view that this Sub-clause (5), complexes or establishments are qualified with an adjective 'commercial'. Establishment or complex, therefore, must be of a commercial in nature. The word 'commercial' means something which is used in or related to, a business o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he order of CIT(A) and dismiss both appeals of revenue. As the issue is covered, respectfully following the above order of Coordinate bench of this Tribunal, we allow the appeal of assessee. Now coming to Revenue s appeal in WTA No.09/Kol/2014 5. The only issue in appeal of Revenue is against the order of CWT(A)-XIX, Kolkata in treating the properties of 7A, Taltala Projects, 27, Abdul Halim Road, 4/2 Colin lane, 7/1, Earang Lane and 88, Taltala Road Kolkata are not assets in view of provisions of Sec.2(ea) of the Act. For this, Revenue has raised following ground no.1:- 1. The Ld CWT erred by treating the assets at 7A,Taltala Projects, 27, Abdul Halim Road, 4/2, Collin Lane, 7/1, Earang Lane and 88, Taltala Road are not in purview of the sec 2(ea) including closing stock of 88, Taltala Road. 6. Brief facts stating that AO treated the following properties asset i.e. forming part of the asset u/s 2(ea) of the Act. Aggrieved, assessee preferred appeal before CWT(A)-XIX, Kolkata who deleted the disallowance by observing in para-5.2 and 5.3, which reproduced as under:- 5.2 I have considered the factual aspect of the case and taken note of the submissions mad ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
