2001 PLP 1917 (PTD)

CWT v. T.S. Sundaram (1999) 237 ITR 61 (SC) fol. CWT v. Christine Cardoza (Mrs.) (1978) 114 ITR 532 (Kar.); CWT v. Radha Krishna Jalan (1984) 145 ITR 217 (Pat.); CWT v. Sri Naurangrai Agarwalla (1985) 155 ITR 752 (Cal.) and CWT v. Vimlabai Kantilal Porwal (Sint.) (1983) 141 ITR 484 (MP) ref. Prakash Krishna for the Commissioner. Nemo for the Assessee. The Income-tax Appellate Tribunal, Delhi Bench-C, has, at the instance of the Commissioner of Wealth tax, referred under section 27(1) of the Wealth Tax Act, 1957, the following question, stated to be of law and to arise out of an order, dated October 15, 1980, passed by the said Tribunal in Wealth Tax Appeals Nos.515 and 516 (Delhi) of 1979, for the opinion of this Court: "Whether, the Income-tax Appellate Tribunal was legally correct in holding that the assessee was entitled to the deduction under section 5(1)(iv) of the Wealth Tax Act in respect of his 1/5th share in the association of persons Mahavir Glass Works in respect of the value of immovable properties owned by the said association of persons?" We have heard Sri Prakash Krishna, learned counsel for the Commissioner. No one appeared on behalf of the assessee-respondent. Under section 5(1)(iv) of the Wealth Tax Act, a house property or part of a house belonging to the assessee was not includible in the net wealth of an assessee. The petitioner alongwith others owned some immovable property known as "Mahavir Glas Works" which appears to be assessed to income-tax as an association of persons. The petitioner claimed exemption under section 5(1)(iv) of the Wealth Tax Act, 1957, in respect of his share in the said immovable property. The Assessing Officer denied the claim which was accepted by the Appellate Assistant Commissioner of Wealth Tax. The Tribunal on an appeal by the Assessing Officer has upheld the view taken by the Appellate Assistant Commissioner. In doing so, the Tribunal followed a judgment of the Kamatka High Court in CWT v. Christine Cardoza (Mrs.) (1978) 114 ITR

532. At the instance of the Commissioner of Wealth Tax, the Tribunal has referred the aforesaid question for the opinion of this Court. It is admitted that the petitioner is the joint owner of the said property and has a 1/5th share therein. The question whether a co-sharer is entitled to claim the benefit of exemption has been agitated before several other High Courts also and it has been held that a partner in a firth or a co sharer otherwise is entitled to the exemption. See CWT v. Radha Krishna Jalan (1984) 145 ITR 217 (Patna); CWT v. Vimlabai Kantilal Porwal (Smt.) (1983) 141 ITR 484 (MP); CWT v. Sri Naurangrai Agarwalla (1985) 155 ITR 752 (Cal.). The controversy has now been settled by the Supreme Court in CWT v. T.S. Sundaram (1999) 237 ITR 61, in which the view taken by the Karnatka High Court in the case of CWT v. Christine Cardoza (Mrs.) (1978) 114 ITR 532,.has been upheld. Therefore, the question stated above has to be answered in the affirmative and is so answered in favour of the assessee and against the Commissioner. M.B.A./506/FC Reference answered.