1985 PLP 700 (PTD)

NAIMUDDIN, J.‑By this constitution petition under Article 9 of the Provisional Constitution Order, 1981, the petitioners mainly pray for (1) declarations :‑ "(a) that the valuation of the properties be taken at cost i.e. as it had cost the petitioners in each case ; (b) that the properties of the petitioners re not liable to be aggregated and assessed in the hand of one of the other spouses but separately in the hands of either petitioner and that 'no aggregation should be made ; (c) that the impugned order is bad in law and of no legal effect ; (ii) and injunction to restrain the Wealth Tax Officer respondent 4 and/ or any other and all officer or officers of respondents from enforcing the impugned order in any respect save as per declaration of this Hon'ble Court, if given under clause (i).

2. The petitioners who are husband and wife inter se have filed separate Wealth Tax Returns under the Wealth Tax Act, 1963, which have not yet been a finalised. During the pendency of the assessment proceedings in November, 1984, the petitioners filed an application with respondent 4 under clause (ii) of the Explanation clause (m) of section 2 of the Wealth Tax Act, 1963, read with rule 8(3) of the Wealth Tax Rules conveying information that they separately own properties bearing Nos. 32/B/11 and 32‑B/1, situated at Circular Road, Defence Housing Society, Karachi, and that the cost of each property owned by the petitioners separately was between Rs. 3,50,000 to Rs. 4,00,0'

30. Claiming that the properties should not be valued for the purposes, of Wealth Tax at their gross annual rental value but should be valued at cots they requested that both the properties should not be clubbed together in the bands of one spouse.

3. In reply to the application respondent No. 4 by his letter dated 30‑12‑1984 inter alia informed the petitioners in respect of the first point as follows : "In respect of first point in which You have contended that the property No. 32/B/I constructed by you during the year 1978 and given on annual rent of Rs. 72,000 and property No. 32/B/11 constructed and given on rent by your husband during the year 1978 should not be valued at ten times of the GARV as provided under rule 8(3) of the Wealth Tax Act because the above said two houses were build in 1918 and had no appreciation in the value because those were built in 1978 and there was no inflation during the period between 1978 to 1983 and 1984. You have further contended that the value of two houses should be taken at cost but not at ten times of the GARV. In this regard I draw your attention towards the provisions of section 7 of the Wealth Tax Act wherein it has been provided that the value of immovable assets shall be determined according to the Wealth Tax Rules and I, further draw your attention to rule 8 which deals with the valuation of immovable properties and specially its section 3 which is reproduced hereunder : "that the value of land and building excluding agricultural land shall be estimated with due regard to its nature and size of the property amenities available and the price prevailing for the similar properties in the same locality and the neighbourhood of the said locality. Provided that the Wealth tax shall not except with the prior approval of the central Board of Revenue determine the value of any property at a sum higher than ten times the GARV of such property." In respect of the second point the learned Wealth Tax Officer has statedas follows "Regarding the clubbing of provisions of clauses 1 and 2 of Explanation to section 2 (m), I draw your attention to the provisions of said two clauses which are reproduced hereunder :- Any immovable property other than agricultural land. owned by the spouse or any minor child of the assessee shall be deemed to belong to the assessee. Provided that any immovable property so deemed to belong to the assessee shall not be included in the net wealth of spouse or minor child of the assessee." First clause is extremely clear that any immovable properties, other than the agricultural land, owned by the spouse and minor child of the assessee is to be clubbed in one hand. That the immovable wealth of the assessee is to be clubbed in one hand. That the immovable wealth of the assessee who may either be husband or wife, its provisions are mandatory but not discretionary cause instead of this is a word used shall' which is mandatory but if it would have been may' then it would have been mandatory but since it Vains shall' it is beyond the powers of Wealth Tax Officer not to club. 3‑A. Second clause deals with the definition of assessee. In the case here the husband and wife both have immovable properties and it is not, clear that in which hand those immovable properties are to be clubbed and here it has not been exercised by the assessee or his/her spouse to club such properties in any hand then if the Wealth Tax Officer to decide with lose wealth both the immovable assets are to be clubbed. The spouse in lose hands those immovable assets are clubbed he or she would be called assessee. This provision does not mean that "the Wealth Tax Officer has ; discretion to club or not the property of husband and wife."

4. On the basis of the above explanation respondent 4 has requested petitioner 2 to revise her Wealth Tax Return and declare the immovable assets of her husband and minor children with her immovable property. further requested her to submit documents asked for as per order dated 11‑1985, noted on the order sheet and again gave the details of the docu ments required to be filed which are as follows : "(1) Copy of rent agreement in respect of 32/B/I, and 32/B/II situated at Circular Road, Defence Housing Society, Karachi. (2) The liability certificates from the agencies from whom the loan/ liabilities have been acquired. (3) Weight of gold and date of acquisition of jewellery owned and possessed by you. "

5. Aggrieved by this intimation calling it an order, the petitioners have d this constitution petition.

6. We have heard Mr. Mansoor Ahmed Khan learned counsel for the petitioners. We had also called for comments from respondent 4 who has emitted the same and Mr. Shaikh Haider learned counsel is present on behalf.

7. In the petition two points as to interpretation of the provisions of section 2(m) of the Wealth Tax Act, 1963 and rule 8(3) of the Wealth tax les have been raised. The submissions of the petitioners, as summarised in reply to the comments of respondent 4 are as follows: "(2) That in the petition two points of constitutional bearing, were raised, pertaining to :‑ (1) valuation of land and building under rule 8(3) which sub‑rule itself lays down no formula for such determination. However, the proviso thereto restricts that such valuation shall not be higher than 10 times the gross A. L. V. except with the approval of C. B. R. To adopt a flat rate of 10 times is gross misreading of sub rule ; (ii) the aggregation of the immovable properties of the wholly independent earning spouses (and separate assessees therefore? by recourse to clause 2(m) of section 2 of the Wealth Tax Act is without recourse or warrant or otherwise the law is bad and liable to be struck down."

8. However, neither any final order has yet been passed by the Wealth Tax Officer, respondent No. 4, nor has it been brought to our notice. A has only expresses) his opinion as to the interpretation of the aforesaid visions. It will be open to the petitioners or their counsel to explain to him the interpretation of the aforesaid provision. If he does not accept the same and passes an order which does not satisfy the petitioners then they have their remedy of appeal etc. ; available to them under the Wealth Tax Act, 1963. Ever) otherwise, since no final order has been passed and only opinion has been expressed on the points raised, which being not of a binding nature, we are of the view that this petition is premature.

9. We, therefore, dismiss this petition in limine. A.A. Petition dismissed.