Loading...

Mahesh Kr. Saharia vs Wealth-Tax Officer on 8 October, 1990

Income Tax Appellate Tribunal – Gauhati
Mahesh Kr. Saharia vs Wealth-Tax Officer on 8 October, 1990
Equivalent citations: 1991 36 ITD 554 Gau
Bench: E Singh, J Kachchap


ORDER

Egbert Singh, Accountant Member

1. This is an appeal by the assessee. The first two grounds are not pressed at the time of hearing. Hence, these are not considered.

2. The next ground of appeal is that the AAC erred in stating that the original assessment order merged in the order of the AAC passed earlier, when the original assessment order was set aside and, accordingly, the order of the present AAC impugned may be reversed. It is the contention of the assessee that the WTO may be directed to allow the claim contained in the letter dated 28-4-1984.

3. We have heard both the sides at length and we have gone through the orders of the authorities below and also the orders passed in the original proceeding. The assessee has also placed some paper-book for our consideration. After hearing both the sides, it is seen that the WTO passed order on 19-3-1986 under Section 16(5) read with Section 23, i.e., to give effect to the order of the earlier AAC who has set aside the assessment order passed originally. In the fresh order, the WTO mentioned that the original assessment order was set aside in appeal with certain directions. He fixed the case for hearing under Section 16(2) but there was no compliance. He, therefore, went on to complete the assessment as per directions of the then AAC. He took the net wealth as assessed earlier at Rs. 6,30,400. Assets were excluded as per directions amounting to Rs. 2,33,312. The liability to be excluded at Rs. 1,00,000 was also considered. Thus, the net wealth came to Rs. 4,97,088. He also allowed the difference in value of shares and allowed deduction on account of wealth-tax payable for the year. The net wealth taxable was taken at Rs. 4,90,800.

4. The assessee took up the matter before the AAC. Amongst other things, it was claimed that the WTO should have considered the assessee’s petition dated 28-4-1985 filed before the WTO and should have considered the deficit in the estate of late R.G. Saharia and for non-consideration of the same was erroneous and contrary to law. The other ground was regarding allowance of difference in the share value. The present AAC heard the appeal and noted that the WTO had passed the order appealed against in which the WTO gave effect to the order of the AAC dated 25-2-1982. The present AAC mentioned that the earlier AACs order was specific on the point and has directed the WTO to recompute the value of the wealth as per his directions contained in that order. The present AAC observed that though the original assessment was set aside by the then AAC, there was no necessity on the part of the WTO to give opportunity to the assessee before giving effect to the appellate order. The other ground taken by the assessee was that the issue raised before him was neither considered by the WTO in the original assessment nor in the order of the appellate order of the AAC mentioned earlier. The AAC pointed out that he requested the WTO vide letter dated 28-4-1985 to take into account the Tribunal’s order dated 21-2-84 passed in Appeal No. 21 (Gau.) of 1982-83 for assessment year 1978-1979, in which favourable directions to the assessee were given and the principle of which might be valid for the assessment year under appeal. The present AAC in the impugned order observed that in view of the merger of the original assessment order with the order of the AAC passed earlier, i.e., dated 25-2-1982, it was not open for the WTO to take cognizance of any other facts other than those contained in the appellate order. The AAC now concluded that the assessee cannot agitate the issue which was neither considered in the original order nor in the concerned appellate order. He, therefore, dismissed the appeal by the assessee on this point. Hence this appeal by the assessee.

5. After hearing the parties, it is seen that the predecessor AAC gave directions to the WTO in his order dated 25-2-1982. Then the AAC observed as below:-

Coming to ground No. 1, the appellant was one of the heirs of late R.G. Saharia who died on 6-3-1975 and as represented by him out of the estate left behind by the deceased father assets valued at Rs. 2,33,312 has been allotted to him along with the liabilities of Rs. 5,88,727 being loan from M/s. A.W. Figgis &Co. Ltd. Since the present case is clearly covered by Section 8 of the Hindu Succession Act and each of the seven heirs shall be entitled to1/7th share of the assets and will be liable to the debts contracted by late R.G. Saharia to the extent of the assets inherited by him. The actual distribution in accordance with the law has preferred to be carried out and this having not been done in this case, I agree with the WTO that legality of the arrangement through which the assets and liabilities have been sought to be distributed in the present case was clearly not acceptable. The appellant, therefore, shall claim no deduction on account of liabilities payable to M/s. A.W. Figgis & Co. Ltd. The assets belonging to the estate included in the assessment too shall stand excluded from the wealth. The WTO is directed to recompute the appellant’s wealth in accordance with the position just set out.

6. The AAC, therefore, held that the assessee shall claim no deduction on account of liabilities payable to M/s. A.W. Figgis & Co. Ltd. and the assets belonging to the estate included in the assessment too shall stand excluded from the wealth. He, therefore, directed the WTO to recompute the assessment accordingly. There is no material before us to say that the said order of the first AAC was appealed against. In other words, the order of the AAC dated 25-2-1982 had become final and conclusive and is binding on both the sides. The WTO gave effect to that order under Section 16(5)/23. At the stage of fresh appeal before the AAC whose order is impugned before us now, the assessee contended that the assessee’s letter dated 28-4-1985 should have been taken into account by the WTO while giving effect to the order of the AAC. There was no discussion in the fresh order passed by the WTO regarding the said letter. But the AAC in the impugned order has dealt with the substance of the claim of the assessee that as per the Tribunal’s order dated 21-2-1984, certain directions favourable to the assessee had been given which might be valid for the assessment year under appeal. The present AAC declined to entertain this ground as in the order of the AAC, the original order passed by the WTO had merged and the assessee cannot agitate the issue which was not considered either by the WTO or by the AAC at the original proceedings.

7. We have now to consider whether the assessee appellant can bring out a new point for consideration while giving effect to the order of the appellate authority when that very same point was not the issue before the assessing officer nor before the then appellate authority. In the instant case, the first order of the AAC on the facts available, was not appealed against by either side. In other words, that order has become final and conclusive for all intent and purpose. We have to see whether in such a situation, the assessee can bring out a new point, which the present AAC in the impugned order declined to entertain. In a similar situation in the case of CIT v. Swaraj Motors (P.) Ltd. [1987] 167 ITR 83 (Ker.) the facts of the case were that in the assessment made originally, a particular amount was added as income of the assessee on the basis of computation under Section 41(2). The AAC concerned directed the ITO to recompute the profit under the said section. The assessee did not challenge the said order of the AAC and the ITO completed the assessment in accordance with the directions of the AAC. The assessee took up the matter in appeal before the AAC against the recomputation made by the ITO which was rejected by the AAC. It was observed in the case of Swaraj Motors (P.) Ltd. (supra) that the order of the AAC was res judicata in respect of the profit under Section 41(2) and the Tribunal had no jurisdiction to interfere with final order of the AAC in regard to the applicability of the said section. It is seen that the applicability of Section 41(2) in the light of the directions of the first AAC the order was a final one which had remained unchallenged and the succeeding assessing officer only complied with that order and, therefore, the Tribunal cannot interfere with the final order of the AAC in respect of that particular point decided earlier when no appeal was taken up.

8. In another case of S.P. Gramophone Co. v. ITAT [1986] 160 ITR 417 the Hon’ble Punjab and Haryana High Court noted the facts of that case that the Appellate Tribunal set aside the assessment and remanded the case to the ITO. The said assessment order was not challenged. The ITO, accordingly, made the re-assessment. In appeal against the re-assessment order, the assessee contended that the original assessment was time barred. The Tribunal noted that the assessing authority could not take up any point beyond the remand order. The decision was sustained by the Hon’ble High Court holding that the Tribunal finding that original return was not filed under Section 139(4) was justified.

9. In the instant case, the first AAC vide order dated 25-2-1982 had directed the WTO to exclude the assets as well as liabilities of late R.G. Saharia. As mentioned, that order of the predecessor AAC was not challenged. In such a situation, we are of the opinion that the present AAC was justified in holding the view as he has done and as stated by us in the preceding paragraphs.

10. It may be that the Appellate Tribunal in some collateral proceedings have taken a particular view which might be valid or might be in favour of either of the parties, but since the issue was never raised nor dealt with in the order of the first appellate authority who passed the original order, the same cannot be revived at a later stage, as in the present case. In the circumstances, the appeal by the assessee on this point cannot be accepted and is, therefore, rejected.

11. There is no other ground raised for our adjudication.

12. In the result, the appeal is dismissed.

Leave a Comment

Your email address will not be published. Required fields are marked *

Cookies help us deliver our services. By using our services, you agree to our use of cookies. More Information