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1991 DIGILAW 104 (GAU)

Commissioner of Wealth Tax N E Region, Shillong v. Harendra Prasad Singh and Another

1991-05-27

M.SHARMA, S.N.PHUKAN

body1991
S. N. Phukan, J. — This is a reference from the learned Tribunal under section 27(1) of the Wealth Tax Act, 1957. The reference has made on a petition by the Revenue. The following question has been referred :- "Whether on the facts and in the circumstances of the case, the Tribunal was justified in holding that he assesses was entitled to the deduction U/s 5(1) (iv) of the Wealth Tax Act, 1957, in respect of his share in the house property belonging to the firm of which assessee is a partner ?” 2. Briefly, the facts are as follows :-The reference relates to the assess­ment years 1978-79 to 1980-81. The assesses were partners of the firm M/S Surendra & Brother, Makum. The assessees claimed deduction under section 5(1) iv) of the Wealth Tax Act in respect of their shares in the house property standing in the name of the firm in which they were partners. The Wealth Tax Officer rejected the claim on the ground that the assessees can not claim any ownership of the house standing in the name. On appeal the Assistant Appellate Commissioner by two separate orders dated 15.11.83 in the case of each of the assessees directed the Wealth Tax Officer to allow exemption under section 5 1) (iv) of the Act. The learned Tribunal upheld the findings of the Appellate Assistant Commissioner on the point. Hence the present reference. 3. Heard Dr. M. K. Sharraa, learned counsel for the assessees and Mr. D. K. Talukdar, learned standing counsel for the Revenue. 4. According to Dr. Sharma, the point referred to is squarely covered by the decision of this Court in CWT Shillong vs. Tarachand Agarwalla, 1989 (2) GLJ 45. The question, which was referred in that case, was as follows ;- "Whether on the facts and in circumstances of the case and on proper construction of section 2 (m), section 4(1) (b), section 5 (I) (iv) of the W. T. Act, 1957 and Rule 2 of the W. T. Rules, 1957, the Tribunal was justified in holding the direction of the Appellate Assistant Commissioner that exemption of the proportionate share of the interest in the building belonging to the firm should be allowed under section 5(l)(iv) in the hands of the assessee partner?” 5. While answer on the above reference this Court held as follows :- ''On reading the decisions of the Supreme Court (1984) 145 ITR 485, read with section 4(l)(b) and Rule 2, it emerges that, where individual assessee is a partner in a firm, the interest of a partner in the immo­vable property is to be included in computing his net wealth. That interest in the immovable property, or benefit to arise out of the land, can not ~<e said to be movable property. Therefore, the contention of the learned counsel of the Revenue can not be accepted. In this view of the matter, the assessee was entitled to exemption, as provided U/s 5(l)(iv}". The Court also notice! that this view is also supported by the decision in CWT vs. Nauraograi Agarwalla, (1985) 155 ITR 765 and CWT vs. Mira Mahanta, (1985) 155 ITR 765 . These two decisions were rendered by the Calcutta High Court. 6. The Court took note of the decision laid down in CWT vs. Chrstine, (1978) 114 ITR 532 and further held that- "For these reasons, the net wealth of the firm should be determined including the value of the building and then it should be allocated amongst the partners ,indicating the nature of assets and liabilities allotted to the share of the partner and that net wealth of the partner is to be determined by including the share so allotted, and only thereafter the deduction under section 5 (1) (iv) should be allowed, i.e. deduction should be allowed under section 5(1) (iv) in the hands of assess partner and not in the hands of the firm ". Though Mr. Talukdar, learned counsel for the Revenue has urged that the question referred in the above case was different but the learned counsel has fairly conceded the views expressed also cover the present reference. We do not see any reason to take different view. Therefore, we are of the opinion that the ratio laid down in Tarachand Agarwalla (supra) squarely covers this case. Accordingly, the question is answered in the affirmative i.e, in favour of the assessee aid against the Revenue.