ORDER
S.K. Chander, Accountant Member
1. These appeals by the revenue and cross-objections by the assessee are directed against the two orders of the AAC dated 7-11-1985 and 11-11-1985 respectively relating to asstt. years 1979-80 and 1980-81. The grievance of the revenue is that he erred in law in directing the Wealth-tax Officer to allow deduction under Section 5(1)(iv) of the Wealth-tax Act. This in a nutshell was the argument in chief by the revenue.
2. On the other hand, the 1d. counsel for the assessee supported the orders of the AAC and proceeded to further make his submissions as under.
3. It was submitted by him. that the assessee is one of the parties who contributed money to put up a structure, known as ‘Kailash Building’, on a piece of land and thereafter became entitled to possession, use, occupation and right of enjoyment of a flat therein. Therefore, in view of the Special Judgement of the Tribunal in the case of ITO v. R.K. Sawhney [1982] 2 ITD 207 (Delhi) (SB), the assessee for the purpose of Wealth-tax Act which includes exemption under Section 5(1)(iv), should be considered as a person to whom the assets in the form of the flat in question belongs.
4. Amplifying this argument, the learned counsel for the assessee submitted that even the judgment of the Supreme Court in the case of Nawab Sir Mir Osman All Khan v. CWT [1986] 162 ITR 888 has not made any difference. In this regard, he examined the judgment reported at Nawab Sir Mir Osman Ali Khan’s case (supra) and contended that a careful reading of the judgment will show that the Hon’ble Supreme Court has not made any observation about the earlier judgment of the Supreme Court in the case of Raja Mohammad Amir Ahmad Khan v. Municipal Board of Sitapur AIR 1965 SC 1923 and that judgment being a judgment of the Supreme Court constituted by a larger Bench of three judges, should, in view of the provisions of article 141 of the Constitution of India, have precedence over the judgment of the Supreme Court in Nawab Sir Mir Osman Ali Khan’s case (supra).
5. For this proposition he relied upon the following judgments :
1. Ganapati Sitaram Balvalkar v. Waman Shripad Mage AIR 1981 SC 1956.
2. State of U.P. v. Ram Chandra Trivedi AIR 1976 SC 2547.
3. Ghansham Singh v. CIT [1983] 141 ITR 601 (Mad.).
4. CIT v. Sriram Agrawal [1986] 161 ITR 302 (Pat.) pp, 309.
6. Relying upon the judgment of the Madras High Court in the case of CIT v. Ramakrishna & Sons (P.) Ltd. [1982] 135 ITR 56, it was submitted that the Hon’ble Supreme Court while delivering the judgment in the case of Nawab Sir Mir Osman Ali Khan (supra), merely referred to and recorded the judgment in the case of Raja Mohammad Amir Ahmad Khan (supra) and this in no way can be said to be a consideration of that judgment by the Supreme Court because the Hon’ble Supreme Court has not in the judgment at Nawab Sir Mir Osman Ali Khan’s case (supra) given any indication, whether that judgment is right or wrong.
7. The word ‘belonging to’ has to be interpreted, it was contended by the learned counsel, in the context in which it appears and as those concerned with it understand it. It was submitted that if the words ‘belonging to’ are to be interpreted in a manner so as to disentitle the assessee for exemption under Section 5(1)(iv) of the Act, then the same words ‘belonging to’ cannot be interpreted so as to bring the assets as one of the items of net wealth in the hands of the assessee for the purpose of taxation under Section 2(m) of the WT Act. For this reliance was placed upon a judgment of the Supreme Court in the case of CIT v. B.C. Srinivasa Setty [1981] 128 ITR 294 and Ramesh Chandra Chandiok v. Chunni Lal Sabharwal AIR 1971 SC 1238 at 1243. It was emphasized that the said asset cannot even be deemed wealth of the assessee in view of the ratio decidendi of the judgment of the Andhra Pradesh High Court, CED v. Estate of Late Sanka Simhachalam [1975] 99 ITR 370 PP 371. At this stage, it was pointed out that the Andhra Pradesh High Court has in this judgment considered and followed the Supreme Court judgment in the case of Raja Mohammad Amir Ahmed Khan (supra).
8. Referring to the provisions contained in Section 2(e)(v) of the Wealth-tax Act, the learned counsel for the assessee contended that thereunder an asset has been defined as including any interest in property where the interest is available to an assessee for a period exceeding six years from the date the interest vests in the assessee. From this it was projected that the right, title and interest of the assessee in the flat is on a better footing and, therefore, that flat should be considered as an asset belonging to the assessee and as such, the assessee is entitled to exemption under Section 5(1)(iv), which was rightly granted by the AAC.
9. Relying upon a circular of the Central Board of Direct Taxes being Cir. No. 330, dated 6th March, 1982 at 135 ITR 14 (St.) on the provisions of estate duty exemption under Section 33(1)(ii), it was pointed out that the Board has recognized interest less than ownership in property as an asset belonging to the assessee. In this view of the matter, the same authority cannot argue that where the assessee has right, title and interest and is enjoying the property and has a right of allowing tenancy, such property does not belong to the assessee for the purpose of section b(1)(iv) exemption under the Wealth-tax Act. He emphasised that in the interpretation of the circulars such interpretation be adopted, which is in favour of the assessee. He relied upon the judgment of Patna High Court in the case of Sriram Agrawal (supra).
10. Lastly, he contended that if at all what has been stated above, we consider it as giving rise to a situation where on the interpretation of the previous fiscal statute, two reasonable views are possible, then in view of the following judgments of the Supreme Court, the view that favours the subject should be adopted : 60 ITR 342 (sic), CIT v. Kulu Valley Transport Co. (P.) Ltd. [1970] 77 ITR 518, CIT v. Madho Pd. Jatia [1976] 105 ITR 179 and Vrindavan Goverdhan Lal Pittie v. Union of India [1986] 160 ITR 318.
11. The learned departmental representative in the rejoinder, at the very outset submitted that there is no scope for arguments of the type projected by the 1d. counsel for the assessee, if the judgment of the Supreme Court in the case of Nawab Sir Mir Osman Ali Khan (supra) referred to (supra) is read in the proper perspective considering the provisions of the statute that the Hon’ble Supreme Court was required to interpret. This was argued on the basis that the issue before the Hon’ble Supreme Court was one where the property had been sold, the vendee had been put in possession, the consideration had passed and the Court had to decide whether on the facts and in the circumstances of that case, the property still constituted an asset within the meaning assigned to it under the Wealth-tax Act so as to include that asset in the net wealth of the assessee, because it belonged to the assessee. In the process, the Hon’ble Court considered the provisions relating to the ownership of the property and the words ‘belonging to’ in the context of issue before it. It is after due consideration, the Supreme Court has, inter alia, after consideration of the judgment of Raja Mohammad Amir Ahmed Khan (supra) laid down that the words ‘belonging to’ connote ownership only when immovable property is registered in the name of the vendee. Therefore, there is no room for argument for any one to say that even when the property is not registered it belongs to the assessee and as a consequence, such an assessee is entitled to exemption under Section 5(1)(iv) of the Act. Therefore, the 1d. AAC erred in holding that the assessee was entitled to exemption under Section 5(1)(iv). His order be set aside and that of the WTO restored in its place.
12. Meeting the argument of the 1d, counsel for the assessee, that the superstructure of the land having been raised by the assessee and others with their own capital, the structure belongs to the assessee, it was argued by the 1d. DR that the assessee is not the owner of the superstructure in accordance with law but has only right, title and interest, which cannot be considered as immovable property though it is an asset within the meaning assigned to the word “asset” in Section 2(e)(v) of the Wealth-tax Act, 1957 because asset includes property of every description, both movable and immovable.
13. Adverting to the catena of judgments supporting each of the arguments made by the learned counsel for the assessee, it was submitted by the 1d. DR that these judgments are not relevant because the issue in each case cited, was not the one that is being agitated before us and that which had travelled before the Supreme Court in the case of Nawab Sir Mir Osman Ali Khan (supra).
14. The above submissions made by the rival parties were recorded in the open Court in their presence.
15. We have given careful thought to these submissions and have also perused the orders of the authorities below. The first submission by the 1d. counsel for the assessee that the assessee and others contributed capital for the construction of the building which includes the flat owned by the assessee has been raised for the first time before us and requires enquiry on facts. Therefore, this contention at this stage cannot be accepted. Nevertheless, even if the building in which the flat is occupied by the assessee was constructed by contribution of capital by various flat owners, the issue still survives as to whether such a flat to which the assessee has access of possession and enjoyment is “belonging to” the assessee within the meaning assigned to this phrase in Section 2(m) of the WT Act, 1957, which defines net wealth. This issue we have “to decide on the facts and circumstances of the case.
16. The 1d. counsel for the assessee was at pains to emphasise that the judgment of the Hon’ble Supreme Court in the case of Nawab Sir Mir Osman Ali Khan (supra) is not applicable to this case now before us because the Hon’ble Court had earlier in the case of Raja Mohammad Amir Ahmed Khan (supra) taken a different view and that judgment being of a larger strength of that Court still prevails. To this aspect of the issue, we have given very anxious thought. We have in the process very carefully seen the authorities cited by him in support of the proposition propounded. It appears to us that whereas the law declared by the Supreme Court is binding on all Courts within the territory of India as provided under Article 141 of the Constitution of India, yet, the Supreme Court is not bound by its own decisions and may reverse its previous decisions (Dwarkadas Shrinivas v. Sholapur Spg. & Wvg. Co. Ltd. AIR 1954 SC 119, 127). We find that even the judgment of the Madras High Court in the case of Ghansham Singh (supra), relied upon by the assessee, does not support him. In this case, the Hon’ble Court has held that normally the rule is that where the law is laid down differently in two different decisions of the Supreme Court by Benches of different strengths, the decision of the larger Bench of the Supreme Court should be followed as binding on the High Courts. However the doctrine that a larger Bench of the Supreme Court has more authoritative force than a smaller Bench is only between cases which yield different ratio decidendi and nowhere one judgment hands down a decision while the other lays down a dictum. Now, when we examine the various judgments relied upon by the 1d. counsel for the assessee to make out a case that we should ignore the judgment of the Hon’ble Supreme Court in the case of Nawab Sir Mir Osman All Khan (supra) and follow the judgment of the Supreme Court in the case of Raja Mohammad Amir Ahmed Khan (supra) have not been shown to come within the principles laid down by the Madras High Court in the case of Ghansham Singh (supra). Coupled with these observations of the Madras High Court are the powers of the Hon’ble Supreme Court to reverse its own decisions. We have, therefore, to see whether the Hon’ble Supreme Court’s judgment in the case of Nawab Sir Mir Osman Ali Khan (supra) has in any manner reversed the judgment in the case of Raja Mohammad Amir Ahmed Khan (supra).
17. According to the 1d. counsel for the assessee this judgment has not been considered by the Hon’ble Supreme Court while deciding the case of Nawab Sir Mir Osman Ali Khan (supra), but this does not stand scrutiny. The report clearly shows that observations in the case of Raja Mohammad Amir Ahmed Khan (supra) have been relied upon by the Supreme Court. Apparently, there could not have been a reliance for the observations of the Supreme Court in the case of Raja Mohammad Amir Ahmed Khan (supra) without consideration of that judgment by the Hon’ble Supreme Court while deciding the case of Nawab Sir Mir Osman Ali Khan (supra). We find that at page 897 of Nawab Sir Mir Osman Ali Khan’s case (supra), the Supreme Court has observed that even in some cases, the phrase ‘belonging to’ is capable of connoting interest, which is less than absolute and perfect legal title. In this regard the Hon’ble Court has stated that, in this connection, one should see the observations of the Supreme Court in Raja Mohammad Amir Ahmed Khan’s case (supra). Thereafter, the Court has very categorically recorded that, “this Court observed in that case that the expression, ‘belonging to’ no doubt was capable of denoting as absolute title, it was nevertheless not confined connoting that sense. Full possession of an interest less than that of full ownership could also be qualified by that expression. Thus, from these observations of the Hon’ble Supreme Court, we have no doubt in our mind that the submissions made by the 1d. counsel for the assessee, are absolutely untenable and it cannot be said that the Hon’ble Supreme Court did not consider their earlier judgment in the case of Raja Mohmmad Amir Ahmed Khan (supra). Therefore, that judgment is not available to the assessee to make a claim that he is entitled to exemption under Section 5(1)(iv) of the WT Act, 1957 in respect of the flat which is not yet admittedly registered in the name of the assessee. Thus, the case law relied upon by the assessee for the proposition that the judgment of the Supreme Court at Nawab Sir Mir Osman Ali Khan’s case (supra) cannot be followed in view of the earlier judgment of the Supreme Court in the case of Raja Mohammad Amir Ahmed Khan (supra) is untenable. The case law cited by him, therefore, does not help the assessee at all so as to give a finding that the assessee is entitled to exemption under Section 5(1)(iv) because the flat belongs to him,
18. However, it is clear that the interest of the assessee in the property in dispute is an asset within the meaning of Section 2(e)(v) of the WT Act because the assessee is having interest therein for a period of exceeding six years. It is noteworthy that definition of an asset in Clause (e) includes property of every description, movable or immovable. Therefore, the interest of the assessee has to be determined both in quantum and character. Whereas the value of the flat cannot be included in the net wealth of the assessee as if it is immovable property not registered in assessee’s name yet the value of the right, title and interest of the assessee therein is to be included in the net wealth of the assessee and has to be worked out. This has not been done by the authorities below at any stage, because, the law till then was not as settled as after the judgment of the Hon’ble Supreme Court in the case of Nawab Sir Mir Osman Ali Khan (supra).
19. In so far as the contention of the 1d. counsel for the assessee about the binding nature of the circulars is concerned, it has certain riders. The circular must be on the subject matter and there must be no dispute about its applicability. The 1d. counsel for the assessee has cited a circular which is about the provisions of the estate duty. The circular, therefore, cannot be said to be straightaway applicable or available for application in the interpretation of the phrase “belonging to” used in Section 2(m) of the WT Act. The words “belonging to” in Section 2(m) of the WT Act have been interpreted by the Hon’ble Supreme Court in Nawab Sir Mir Osman Ali Khan’s case (supra). Therefore, there cannot be any doubt about its interpretation and the Board’s circular cannot apply even if it is directly on the issue.
20. The 1d. counsel for the assessee had submitted before us that the circulars being issued by the CBDT would be binding because it should served as an estoppel. However, this does not appear to be supportable proposition. The Supreme Court has held that doctrine of “approbate and reprobate” is only a species of estoppel; it applies only to the conduct of the parties but cannot operate against the provisions of a statute as held in the case of CIT v. V.MR.P Firm in [1965] 56 ITR 67. This principle has further been enunciated in the case of Bakul Oil Industries v. State of Gujarat [1987] 165 ITR 6 (SC).
21. We have also carefully considered the submission of the 1d. counsel for the assessee that in view of the settled proposition of law that in the interpretation of a fiscal statute when two reasonable views are possible, one that favours the subject should be adopted. In fact this was what the Hon’ble Supreme Court laid down in the case of Kulu Valley Transport Co. (P.) Ltd. (supra). The Hon’ble Supreme Court has again held in the case of CIT v. J.K. Hosiery Factory [1986] 159 ITR 85 that the assessee is entitled to an interpretation, which is favourable to him in case of doubt. The Supreme Court in the case of Madho Pd. Jatia (supra) has, however, held that where the provisions of a taxing statute are clear and unambiguous, full effect must be given to them irrespective of any consideration of equity. The Court has further held that where, however, the provisions are couched in language, which is not free from ambiguity and merits two interpretations, a view which is favourable to the citizen should be adopted. The fact that such an interpretation is also in consonance with ordinary notions of equity and fairness would fortify the Court in adopting such a course. With profound respect, we are of the opinion that in order to judge whether a provision is clear and unambiguous or merits two interpretations, there is no Court higher than the Supreme Court. Therefore, when the question, whether, on the facts and in the circumstances of the case, the properties in respect of which registered sale deeds had not been executed, but consideration had been received, belonged to the assessee-vendor for the purpose of inclusion in his net wealth within the meaning of Section 2(m) of the Wealth-tax Act, 1957, came before the Hon’ble Supreme Court in the case of Nawab Sir Mir Osman Ali Khan (supra), the Court answered that question considering all the principles of construction of fiscal statutes. The judgment given by the Hon’ble Court is clear that the value of such properties was to be included in the net wealth of the assessee-vendor for the purpose of asstt. to wealth-tax as they were assets belonging to him within the meaning of Section 2(m) of the WT Act until the registration took place. Such a judgment, we are duty bound to follow respectfully. We cannot enter upon the controversy whether we still have to find out which is the reasonable view favourable to the assessee. In our considered opinion, the principle of two reasonable views is only for the subordinate Courts because when the Hon’ble Supreme Court decides a case on interpretation of a fiscal statute, its judgment is binding on all subordinate Courts and is final as law of the land. The type of contentions raised on behalf of the assessee, therefore, cannot be entertained. These are rejected.
22. However, this leaves us with the issue still open for determination. We have observed supra that the Wealth-tax Officer proceeded to add the value of the flat and did not give the assessee exemption under Section 5(1)(iv) of the Wealth-tax Act. But the value of the impugned property as such cannot be included because it does not ‘belong to’ the assessee ; there being no valid registration so far. However, at the same time, the value of right, title and interest of the assessee in the said property deserves inclusion in the net wealth of the assessee. From this angle the issue has not been examined at all. In view of what is stated above, we set aside the orders of the authorities below and restore the issue to the WTO with the directions that he should decide it afresh in accordance with law after affording reasonable opportunity of being heard to the assessee and after taking into consideration the judgment of the Supreme Court in the case of Nawab Sir Mir Osman All Khan (supra) and any other judge-made or statutory law that may be available to him at the time he makes the de novo assessment. We order accordingly.
23. In view of what is stated above, the appeals of the revenue are considered as allowed for statistics. We, however, find that the cross objections filed by the assessee are out of time by 309 days. There is no reasonable and sufficient cause to explain this delay. The 1d. counsel for the assessee submitted that in the arguments in appeal of the revenue he has dealt with all the aspects of the case and would not like to press for the cross objections. However, we reject the cross objections as barred by limitation. The appeals of the revenue considered as allowed for statistics and cross objections dismissed.