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Commissioner of Income Tax (C) Kanpur Versus Late Shri Padampat Singhania through L/H Dr. G.H. Singhania

Wealth tax assessment - ITAT held that certain provisions of building bye laws framed by J.D.A in Jan, 1996 were to apply retrospectively for Wealth Tax assessment on valuation date 31.3.1987 - applacability of provision of bye laws of J.D.A of Jan, 1996 - Held that:- In the present case, in our view, Regulations 1996 for the purpose of assessment of valuation of disputed property are not at all applicable unless it is shown that the disputed property has been developed or constructed observing .....

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the present case, the said Regulations will have no application for the purpose of valuation of building in dispute and it will have to be made only in accordance with Schedule III, as it is. - We therefore, answer substantial questions of law formulated above, by holding that Regulations 1996 are not retrospective but operates on and after 28.6.1996 that is the date of publication of notification in the Gazette but it would make no difference in the present case, for the reasons that these .....

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hajan (S.C), Shubham Agarwal For the Respondent : R.S. Agarwal, S.D.Singh ORDER ( Delivered by Hon'ble Sudhir Agarwal, J ) 1. We have heard Shri Shubham Agrawal, learned counsel for the appellant and Shri S.D.Singh, learned Senior Counsel for respondent. 2. These appeals under section 27-A of Wealth Tax Act, 1957 (hereinafter referred to as 'Act, 1957') have arisen from judgment and orders dated passed by Income Tax Appellate Tribunal Lucknow Bench, Lucknow (hereinafter referred to a .....

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n, 1996 were to apply in the case of Assessee when this bye laws has itself excluded case of properties like that of Assessee where construction according to sanctioned plan has already been made." 4. In remaining appeals, i.e W.T.A Nos. 292 of 2012, 295 of 2012, 294 of 2012, 241 of 2012, 169 of 2005, 395 of 2012 and 194 of 2006 substantial questions of law are similar above questions but differently worded and read as under: "1. Whether on the facts and in the circumstances of the cas .....

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Explanation to Rule 6 of the Schedule III of the Wealth Tax Act, 1957 being applicable retrospectively, the Notification GSR-29 dated 25.06.1996 issued by the Jaipur Development Authority will also have retrospective effect, is correct in law?" 5. The above appeals relate to different assessment years. Details of appeals, relevant assessment years, date of Tribunal's judgment and appeal details in Tribunal, are as under: S.N. Wealth Tax Appeal no. Assessment year Date of order of Tribun .....

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f 2012 1997-98 06.09.2004 16/Luc/2000 12 206 of 2012 1998-99 06.07.2004 15/Luc/2002 13 169 of 2005 1999-2000 06.07.2004 30/Luc/2005 14 194 of 2006 2000-01 06.11.2005 03/Luc/2002 15 395 of 2012 2001-02 06.11.2005 04/Luc/2005 6. Assessee, (late) Shri Padampat Singhania, through legal heir Dr.Gaur Hari Singhania, (hereinafter referred to as 'Assessee'), is owner of 'Jaipur House' at Jaipur. From the record and in particular, para 5.2 of the assessment order dated 31.3.1999, passed i .....

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n record. The aforesaid house spread over a land measuring 28,824.02 Sq.Mtr. The covered area is 1400 Sq.Mtr and unbuilt area is 27,424 Sq.Mtr. 7. For the assessment year 1987-88, legal heir of Assessee filed return of Wealth Tax on 16.7.1997 declaring total net wealth at ₹ 2,62,180/-. The return did not include value of Jaipur House (hereinafter referred to as 'disputed property'). The Assessment was completed under section 16(3) of Act, 1957 vide Assessment order dated 30.09.1988 .....

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edings were already completed. Consequently notice u/s 17 of Act, 1957 was issued in reply whereto Assessee submitted that "revised return" filed on 26.3.1998 itself be treated as reply in response to the said notice. In the revised return of Wealth Tax, Assessee had shown value of disputed property at ₹ 26,77,995/-, based upon valuation report of M/s S.K. Ahuja and Associates. 9. A.O. being not satisfied, made reference to District Valuation Officer (hereinafter referred to as & .....

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., accepting report of D.V.O., determined value of disputed property at ₹ 5,82,09,605/-. Assessee preferred appeals before Commissioner, Wealth Tax (Appeals) [hereinafter referred to as ''CWT(A)'] who partly upheld valuation made by D.V.O., taking appreciation of land rate by 9% from June 1986 to March 1987 and 20% for its existence at a prime location and point. He however did not approve 10% appreciation for wider road taken separately as it was already included in 20% for it .....

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as not correctly done. On all the grounds, Tribunal took a view in favour of Assessee and appeals were allowed. Similar reasoning of earlier judgments were followed in later orders of Tribunal. In brief, grounds on which Tribunal decided appeals in favour of Assessee, are as under: 1. No proper reference was made by A.O. to D.V.O. in accordance with relevant statutory provisions. 2. Jaipur Development Authority Regulation 1996 (Jaipur Region Building) (hereinafter referred to as ''Regula .....

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in upholding increase of value of land in dispute by 29% was not necessary for decision. 14. Counsel for appellant contended that Regulations, 1996, came into force on 25.6.1996/28.6.1996, will have no application for valuation of disputed property on the date i.e. 31.3.1987. The said Regulations, 1996 would have no application to a period prior to its enactment. He also said that purpose of Regulations, 1996 was to regulate future construction and not for assessment of existing one, which was .....

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for the time being in force" shall prevail over "specified area" mentioned in Rule 6 Explanation (b) (iii) of Schedule III of Act, 1957. Moreover Regulations, 1996 being a procedural statute, will have to be read retrospectively for the purpose of determining market value, the said Regulations have to be read with Rule 6 Explanation (b) (iii) of Schedule III to ascertain "Specified Area". 17. Substantial questions of law basically involve interpretation and application .....

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ce under section 17 was issued, Assessee filed a revised return wherein value of disputed property as per his own estimate was included. Section 17 as it was applicable before 1.4.1989 reads as under: "(1) If the Assessing Officer ─ (a) has reason to believe that by reason of the omission or failure on the part of any person to make a return under section 14 of his net wealth or the net wealth of any other person in respect of which he is assessable under this Act for any assessment y .....

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wealth chargeable to tax has escaped assessment for any year, whether by reason of underassessment or assessment at too low a rate or otherwise, he may, in cases falling under clause (a) at any time within eight years and in cases falling under clause (b) at any time within four years of the end of that assessment year, serve on such person a notice containing all or any of the requirements which may be included in a notice under sub-section (2) of section14, and may proceed to assess or reasse .....

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esent case, this net wealth which according to A.O. has escaped assessment or in respect whereof material facts were not disclosed consisted of disputed property. Hence, its value had to be assessed. For the purpose of assessment of value of a property, a mechanism has been provided in the Act, 1957 itself and that leads us to Section 7 thereof. 20. Since in the present appeals, we are concerned with assessment years 1987-88 to 2001-02, we find that Section 7 in between the aforesaid period of a .....

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uation date. Explanation.- For the removal of doubts, it is hereby declared that the price or other consideration for which any property may be acquired by or transferred to any person under the terms of a deed of trust or through or under any restrictive covenant in any instrument of transfer shall be ignored for the purpose of determining the price such property would fetch if sold in the open market on the valuation date. (2) Notwithstanding anything contained in sub-section (1),- (a) where t .....

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a computation in accordance with clause (a) cannot be made by reason of the absence of any separate balance sheet up for the affairs of such business in India, the Assessing Officer may take the net value of the assets of the business in India to be that proportion of the net value of the assets of the business as a whole wherever carried on determined as aforesaid as the income arising from the business in India during the year ending with the valuation date bears to the aggregate income from .....

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ub-section. (4) Notwithstanding anything contained in sub-section (1),the value of a house belonging to the assessee exclusively used by him for residential purposes throughout the period of twelve months immediately preceding the valuation date may, at the option of the assessee, be taken to be the price which, in the opinion of the Assessing Officer, it would fetch if sold in the open market on the valuation date next following the date on which he became owner of the house, or on the valuatio .....

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ted by the assessee he shall be deemed to have become the owner thereof on the date on which the construction of such house was completed; (ii)"house", includes a part of a house,being an independent residential unit." (emphasis added) 22. Sub section(1) of Section 7 as it was up to 31.3.1987 shows that it was subjected to any Rules made in this behalf. The Rule Framing Authority had framed Rule 1BB under Wealth Tax Rules, 1957 (hereinafter referred to as "Rules, 1957"). .....

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r than cash, for the purposes of this Act shall be its value as on the valuation date determined in the manner laid down in Schedule III. (2) The value of a house belonging to the assessee and exclusively used by him for residential purposes throughout the period of twelve months immediately preceding the valuation date, may, at the option of the assessee, be taken to be the value determined in the manner laid down in Schedule III as on the valuation date next following the date on which he beca .....

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is sub-section,- (I) where the house has been constructed by the assessee, he shall be deemed to have become the owner thereof on the date on which the construction of such house was completed; (II) "house" includes a part of a house being an independent residential unit." (emphasis added) 23. We may also place on record that proviso to Section 7 to sub section (2) has subsequently been omitted by Finance Act 1992 with effect from 1.4.1993. 24. Simultaneous amendments were also ma .....

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s Rule 2 defining several words for the purpose of Schedule III and the relevant provisions i.e 3 to 8 for valuation of immovable property are in Part B. For our purposes, Rules 3, 6 & 8 are relevant and the same are reproduced as under: "3. Subject to the provisions of rules 4, 5, 6, 7 and 8, for the purposes of sub-section (1) of section 7, the value of any immovable property, being building or land appurtenant thereto, or part thereof, shall be the amount arrived at by multiplying th .....

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truction of which is completed after the 31st day of March, 1974, if the value so arrived at is lower than the cost of acquisition or the cost of the property, the cost of acquisition or, as the case may be, the cost of construction whereof is completed after the 31st day of March, 1974, and the house is exclusively used by the assessee for his own residential purposes throughout the period of twelve months immediately preceding the valuation date and the cost of acquisition or, as the case may .....

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ch the assessee may, at his option, specify in this behalf. 6. Where the unbuilt area of the plot of land on which the property referred to in rule 3 is constructed exceeds the specified area, the value arrived at in accordance with the provisions of rule 3 shall be increased by an amount calculated in the following manner, namely:- (a) Where the difference between the unbuilt area and the specified area exceeds five percent but does not exceed ten percent of the aggregate area, by an amount equ .....

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rule 6,─ (a) " aggregate area", in relation to the plot of land on which the property is constructed, means the aggregate of the area on which the property is constructed and the unbuilt area; (b) " specified area", in relation to the plot of land on which the property in constructed, means ─ (i) Where the property is situate at Bombay, Calcutta, Delhi or Madras, sixty percent of aggregate area; (ii)Where the property is situate at Agra, Ahmedabad, Allahabad, Amr .....

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for the enjoyment of the property exceeds the specified area, such minimum area shall be deemed to be the specified area: (c) "unbuilt area", in relation to the aggregate area of the plot of land on which the property is constructed, means that part of such aggregate area on which no building has been erected. 8. Nothing contained in rule 3 shall apply ─ (a) Where, having regard to the facts and circumstances of the case, the Assessing Officer, with the previous approval of the .....

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case referred to in clause (a) or clause (b) or clause (c), the value of the property shall be determined in the manner laid down in rule 20." (emphasis added) 26. There is one more provision which we may refer here at which deals with reference to D.V.O. and this is provided in Section 16A which reads as under: "16-A (1) For the purpose of making an assessment (including an assessment in respect of any assessment year commencing before the date of coming into force of this section) un .....

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h percentage of the value of the asset as returned or by more than such amount as may be prescribed in this behalf ; or (ii) that having regard to the nature of the asset and other relevant circumstance, it is necessary so to do. (2) For the purpose of estimating the value of any asset in pursuance of a reference under sub-section (1), the Valuation Officer may serve on the assessee a notice requiring him to produce or cause to be produced on a date specified in the notice such accounts, records .....

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section 14 or, section 15, or where the asset is not disclosed or the value of the asset is not declared in such return or where no such return has been made, the Valuation Officer shall serve a notice on the assessee intimating the value which he proposes to estimate and giving the assessee an opportunity to state, on a date to be specified int he notice, his objections either in person or in writing before the Valuation Officer and to produce or cause to be produced on that date such evidence .....

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alth Tax Officer and to the assessee. (6) On receipt of the order under sub-section (3) or sub - section (5) from the Valuation Officer, the [Assessing Officer] shall, so far as the valuation of the asset in question is concerned, proceed to complete the assessment in conformity with the estimate of the Valuation Officer." 27. Valuation of assets is the most important consideration for the purpose of Act, 1957 and that is why Section 7 provides that subject to the rules or Schedule III made .....

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in Section 3 of the Income-tax Act, if an assessment were to be made under that Act for that year." 28. It is last day of the previous year as defined in Section 3 of Income-tax Act, 1961, if an assessment were to be made under that Act for that year. Thus valuation date for assessment year 1987-88 would be 31.3.1987 i.e the last date of previous year and so on. 29. Apparently, up to assessment year 1989-90, the machinery for determination of value of disputed property was governed by Sect .....

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in the above matter. We may refer to some of relevant judgments, since observations therein would be helpful to understand real application of provisions in question. 31. Rule 1BB of Rules, 1957 came up for consideration, which, before 1.4.1989, provided method of valuation of an asset, initially before Gujrat High Court in CWT versus Kasturbhai Mayabhai 1987 164 ITR 107. Court held that Section 3 of Act, 1957 is a charging section but for the purpose of computing net wealth, the machinery is pr .....

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matters involving question of valuation of asset and also there will be lesser scope of variation in such assessment. When a rule sets out a method or formula for determining market value of any particular asset, Court held that it can be said to be a procedural provision and not substantive one. Such rule does not have the effect of impairing or creating any obligation and therefore, it is not substantive in character. 32. This decision was followed by Gujrat High Court in CWT v. Niranjan Naro .....

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Swarup & Sons (Supra), and it held in paragraph 25 of the judgment as under: "25. On a consideration of the matter we are persuaded to the view that Rule 1-BB is essentially a rule of evidence as to the choice of one of the well accepted methods of valuation in respect of certain kinds of properties with a view to achieving uniformity in valuation and avoiding disparate valuations resulting from application of different methods of valuation respecting properties of a similar nature and .....

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d Area" in relation to the plots of land on which the property is constructed and that has been taken differently in different cities categorized in three, i.e., clauses (i), (ii) and (iii) of Explanation (b) of Rule 6 in Schedule III. Clause (iii) is a kind of residuary category and applicable to all cities which are not specified in clauses (i) and (ii). Admittedly Jaipur being not covered by Clauses (i) and (ii), clause (iii) is applicable to a property situated in Jaipur. That brings in .....

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nature. This aspect would require an indepth scrutiny of Regulations, 1996. 36. The said Regulations have been framed in exercise of power under section 16(P) read with Sections 96, 32(3) and, 68 of Jaipur Development Authority Act 1982 (hereinafter referred to as 'JDA Act, 1982'). Section 96 of JDA Act, 1982 confers power to frame Regulations. Section 68 authorizes Development Authority to charge fee for license or permission need be given under the Act or for the purposes of the Act. S .....

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uot;Master Development Plan" for Jaipur Region. It is supposed to define quality of life that a citizen of Jaipur Region could desirably be expected to lead in medium range perspective of the year 1991 and long term perspective of the year 2001 and thereafter such other intermediate stages, as the State Government may direct. Section 22 talks of "Zonal Development Plan". 39. Section 29 provides for Declaration of "Development Areas" after a plan comes into operation as p .....

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is liable for penalty under section 31 which may extend to five thousand rupees, and in case of a continuing offence to rupees hundred per day. The conviction and fine does not validate unauthorzied development and Section 32 confers power upon Development Authority to remove unauthorized development. 40. In furtherance of the aforesaid provisions, Regulations 1996 were framed which contain details about the development which is permissible and the manner in which it has to be observed by resid .....

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acilities with regard to structure and design and security requirements as per the prescribed standard. Regulation 5 prohibits any construction without permission of the competent authority and approval of building map. Regulation 5(i) as it was enacted in 1996 permits construction on a plot smaller than 500 sq.mtr. without prior permission of competent authority but in accordance with the standards set out in 9.2.2 of Regulation 1996. The said provision has subsequently been substituted by noti .....

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nally, including designs, safety measures etc. Regulation 13 says that for the purpose of permission of competent authority, written application would be required. Regulation 14 provides procedure for permission. Regulation 15 lays down certain procedure to be observed by the person concerned who undertakes construction as per permission granted or in accordance with the standards set out in Regulations 1996. Regulation 16 talks of domicile certificate and Regulation 17 is a penal provision. Reg .....

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d that buildings and constructions, already raised or existing on the date shall have to be brought in consonance with standards set out in those Regulations. 43. Act 1982 as well as Regulations framed there under do not require any change in existing constructions already raised but provide that any development on and after the date of enforcement of relevant provisions, shall satisfy the standards and requirements of such provisions. These Regulations have not been framed for the purposes of p .....

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structions remain unaffected by the provisions of Act 1982 and Regulations 1996, unless renovation of new construction etc. is to be made. 45. There is neither any provision nor anything otherwise to show that legislature or delegated Rule Framing Authority, ever intended to make Regulations applicable retrospectively. On the contrary, Regulation 1.2 specifically says that Regulations 1996 shall be applicable from the date of publication in the Gazettee. 46. Moreover, we find that provisions gov .....

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applicable at the relevant time, governing matter since 1989 when it came into force. On enforcement of Regulations 1989, field could have been covered by that set of Regulations but that is not so claimed. 48. Thus we have to examine whether the words " the law for the time being in force" mentioned in Rule 6 Explanation (b) (iii) of Schedule III would cover any provision or law irrespective of its purpose and object or it has some specific application and meaning. 49. We have no mann .....

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all. It is not stated before us also that Regulations 1996 had to be complied with by Assessee for the purposes of designing, constructions, security and safety arrangement etc. of disputed property. It is also not disputed that any further development would have to conform with Regulations framed under JDA Act 1982 in respect to disputed property, if proposed by Assessee but the existing property, in the manner it was on the date relevant for assessment, the said Regulation did not require any .....

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Regulations 1996 sets out any standards, designs and other guide lines or restrictions or regulations in respect to existing building or existing construction and apparently they are applicable to development which is to be undertaken on or after the date of enforcement of the said Regulations. 50. Proviso to Rule 6 Explanation (b) (iii) of Schedule III would be applicable where a property is situate in an area which requires a minimum area of plot to be kept as open space for enjoyment of prop .....

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had no such restrictions or Regulations in respect to disputed property when it was developed. 51. The provisions made for guiding process of assessment or valuation are procedural but Regulation 1996 are not procedural but substantive made under Act 1982 so as to regulate building and development activities in Jaipur Region and any violation thereof attracts penal provisions. 52. Rules contained in Schedule III are for assessment of value of an asset. It provides guidance to A.O. for determini .....

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um area of plot of land must be maintained as open space exceeding the specified area, particular area of open space then for the purpose of Rule 6 Explanation (b)(iii), instead of 70% of aggregate area, such minimum area as specified in such law for the time being in force, shall be deemed to be the specified area, the "Specified Area" obviously refers to a substantive provision of law regulating construction, development etc. and will bring within its ambit Regulations 1986 but mere .....

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e, cannot be taken to be procedural in nature and therefore, cannot be made applicable to the pending matters. In fact, these Regulations would be applicable only where asset in question has been developed under the constraints provided by Regulation 1996 and not to the property which is not regulated, i.e existing constructions. 54. Distinction between substantive law and procedural provisions has been indicated in Black's Law Dictionary (Sixth Ed., p. 1203), which reads as under: "As .....

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e law of procedure may be defined as that branch of the law which governs the process of litigation. It is the law of actions - jus quod ad actiones pertinet - using the term action in a wide sense to include all legal proceedings, civil or criminal. All the residue is substantive law, and relates, not to the process of litigation, but to its purposes and subject-matter. Substantive law is concerned with the ends which the administration of justice seeks. Procedural law deals with the means and .....

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rights, we may say that the substantive law defines the remedy and the right, while the law of procedure defines the modes and conditions of the application of the one to the other.'" 56. In Izhar Ahmad Khan v.Union of India AIR 1962 SC 1052, the distinction of substantive law and procedural law has been discussed by Court and it has said as under: "The division of law into two broad categories of substantive law and procedural law is well known. Broadly stated, whereas substantiv .....

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ly procedural but the factum that a particular provision, if substantive, if referred in another law, the referred law will not ipso facto become procedural but will have to be examined on its own whether it is a substantive or procedural law. 58. In the matter of taxation, unless things are is very clear, no attempt shall be made to make a provision retrospective, if it is otherwise. Regulations 1996 neither explanatory nor clarificatory nor provides any machinery for assessment or valuation et .....

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s i.e requirement of Regulations 1996. The said Regulations are not to be taken as a law made for the purpose of assessment of valuation of an asset which was already in existence much before enforcement of Regulations 1996. 59. A Constitution Bench in Commissioner of Income Tax Verus Vatika Township (P) Limited, (2014) 271 CTR (SC) 1 has held that statutes which are not declaratory or clarificatory or procedural, are prospective unless provided otherwise and in tax matters, there should not be .....

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