W.T.AS. NOS. 553/HQ TO 555/HQ, 169/HQ TO 171/HQ OF 1989- 90 AND 313/KB AND 314/KB OF 1992-93 VS W.T.AS. NOS. 553/HQ TO 555/HQ, 169/HQ TO 171/HQ OF 1989- 90 AND 313/KB AND 314/KB OF 1992-93
1997 P T D (Trib.) 293
[Income-tax Appellate Tribunal Pakistan]
Before Muhammad Mujibullah Siddiqui, Judicial Member and S.M. Sibtain, Accountant Member
W.T.As. Nos. 553/HQ to 555/HQ, W.T.As. Nos.169/HQ to 171/HQ of 1989-90 and 313/KB and 314/KB of 1992-93, decided on 03/10/1996.
(a) Wealth Tax Act (XV of 1963)---
----S.24---Appeal to Appellate Tribunal---New plea---No new plea of fact can be admitted at belated stage in second appeal.
(b) Wealth tax-----
----Title in the property--Revenue Record---Mutations in Revenue Record do not amount to documents of title---Where right, title and interest in the property stood transferred in favour of the assessee in pursuance of the gift -deed executed by the owner which fact was subsequently confirmed by an arbitration award, even if the mutation in pursuance of gift was not made in the Revenue Record, the same shall have no bearing so far the title in the property was concerned---Value of such property, held, was rightly included in the gross wealth of the assessee in circumstances.
Qamaruddin, D.R. for Appellant.
Asghar Ali Qazi, I.T.P. for Respondent.
Date of hearing: 25th August, 1996.
ORDER
In all above appeals at the instance of Department common objection has been raised to the direction of first appellate authorities for deleting the value of land situated in Mouza Shahdhand, Tehsil and District Peshawar from the gross wealth of the respondent for the purpose of levy of wealth tax.
2. Heard Mr. Qamaruddin, learned representative for the department and Mr. Asghar Ali Qazi, ITP, learned representative for the respondent/assessee.
3. The relevant facts giving rise to the issue under consideration are that during the course of assessment proceedings for the assessment years 1982-83 to 1984-85 the assessing officer noticed that the respondent owns residential/agricultural land at Peshawar which has not been shown in the wealth-tax return. According to the record available with the assessing officer the land was alleged to have been gifted by Mst. Amtul Rasool to the respondent in the year 1965. The respondent developed a residential colony on the said land which was approved by Sarhad Development Authority. The area of the land was 103,455 sq. ft. A similar gift was made by Mst. Amtul Rasool in favour of her another son Mr. Asad Ali Khan. Subsequently a dispute arose between mother and the two sons and the matter was referred to sole arbitrator Mian Aslam Hayat Qureshi vide arbitration agreement dated 20th of January, 1983. According to this arbitration agreement the gift was made in favour of respondent on 15th of June, 1962. The sole arbitrator Mr. Aslam Hayat Qureshi gave his award on 28th of February, 1983. The operative part of the award is as follows:
"Begum Amtul Rasool Qurban Ali has divided the land under dispute into plots, plan of which duly signed by the parties is Annexure-A to this award and the plots which have not been sold by Begum Amtul Rasool shown in red in the said plan and all such plots shown in the red in the annexed plan (Annexure A) belong to, vest in, owned and possessed by M/s. Anwar Ali Khan and Asad Ali Khan sons of late Mr. Qurban Ali Khan jointly to the exclusion of Begum Amtul Rasool in accordance with their respective share determined in the gift-deed, dated 15-6-1962."
4. Mst. Amtul Rasool had sold 18 canals of land to 18 customers at the rate of Rs.42 .per sq ft. arid, therefore, the assessing officer taking the same value estimated the value of land owned by the respondent in pursuance of the gift deed, dated 15-6-1962 and the arbitration award dated 20-2-1983 and added the same to the gross wealth of the respondent.
5. The respondent being aggrieved preferred first appeals and the learned A.A.C. of Income-tax, Hyderabad Range, Hyderabad vide order dated 20-4-1988 in Wealth Tax Appeals Nos.336 to 338/Quetta relating to the Assessment years 1982-83 to 1984-85 directed to exclude the value of said land from the gross wealth of the respondent for the following reasons:
"The A.R. of the assessee/appellant stated that the facts are that the land in question was never transferred in the name of the assessee and as per Transfer to Property Act as such transfers may be made either by registered instrument or by delivery of the property. In the case of the appellant neither the property was registered nor it was delivered to the appellant. The said property still stands in the name of the assessee's mother Mst. Amtul Rasool. The A.R. of the appellant further stated that by merely planning the statutes of the land is not changed because the planner Mr. Anwar Ali Khan is not the owner of the said land. The A.R. has produced copies of the documents which show that the said land is still owned by Mst. Amtul Rasool. The sale of this land was also made by Mst. Amtul Rasool mother of the appellant. As the title of the land vests with Mst, Amtul Rasool the appellant Mr. Anwar Ali Khan cannot be treated as owner of the land at Peshawar and as such this cannot be assessed in the hands of the appellant. The claim of the assessee being in order and is hereby allowed."
6. In the subsequent years the same pattern was followed by the assessing officers and the first appellate authorities.
7. Mr. Qamaruddin, the learned D.R. has vehemently assailed the findings of first appellate authorities contending that they have grossly misdirected in holding that the land does not belong to the respondent. According to the learned D.R. a conclusive documentary evidence is available on record which shows .hat the respondent is owner of the land in question. The learned D.R. has referred to the arbitration award dated 20-2-1983. He has next contended that a letter dated 4-2-1985 written by the respondent to Mr. Rafiq his manager and the letter addressed by Sajjad Hyder Khan to the respondent dated 15th September, 1984 which are available on record also shows admission on the part of respondent that the land in dispute belongs to him. These letters were produced by the respondent himself alongwith his letter, dated 11-5-1985 with a view to explain increase in his wealth. The learned D.R. has submitted that there is overwhelming evidence on the record which shows that the respondent was owner of the land in dispute in all the assessment years under appeal and the impugned directions of the first appellate authority in all the assessment years under appeal are result of non-appreciation of the correct facts and law which has caused miscarriage of justice. The learned D.R. has submitted that the first appellate orders may be vacated and the assessment orders may tie restored.
8. On the other hand Mr. Asghar Ali Qazi, learned representative for the respondent has supported the first appellate orders contending that the gift executed by Amtul Rasool in the year 1962 was never acted upon and the land in dispute continued in the ownership of Mst. Amtul Rasool. However, when his attention was drawn to the gift deed dated 15-6-1962 and the arbitration award dated 28-2-1983 Mr. Asghar Qazi could not deny the execution of gift by Mst. Amtul Rasool in favour of respondent. Being confronted with the above documents Mr. Asghar Qazi came with new plea that after the arbitration award in favour of the respondent another gift deed was executed by the respondent Anwar Ali Khan in favour of his mother Mst. Amtul Rasool as she was feeling aggrieved. Mr. Asghar Qazi contended that in order to console the late mother respondent again transferred land to his mother by executing a gift deed. Although., this plea was taken for the first time during the arguments in second appeal and, a new plea of fact was not admissible. However, on the insistence of Mr. Asghar Qazi that he may be allowed to produce the document and thereafter the worth of the document may be considered according to law, we asked Mr. Asghar Qazi to produce the gift deed for our perusal. The gift deed was not available with Mr. Qamaruddin on 25-8-1996 when the appeals were heard at Quetta. He sought time to produce the document and subsequently sent photo copy of gift deed dated 27-6-1983 through his letter dated 9-9-1996. In this gift deed there is a recital that the respondent had received the subject-matter of the gift from his mother out of love and affection and in pursuance of arbitration award in favour of the respondent who again gifted the said land in favour of his mother. Mr. Asghar Qazi has ultimately relied on the gift deed allegedly executed by the respondent in favour of his mother. Thus he has conceded that the respondent has become absolute owner of the land in dispute in pursuance of the gift deed executed by his mother in his favour and subsequent arbitration award. As already observed by us this plea has been taken for the first time in second appeal and the document has been produced for the first time on 9-9-1996 although the assessment proceeding in respect of the land under consideration commenced from May, 1985. Thus, firstly, no new plea of fact can be admitted at such belated stage in second appeal. Secondly, we have found on merits that the document is not reliable. There is a time honoured principle of law that the men may speak lie but the circumstances do not. In the present case we find that the gift deed allegedly executed by respondent in favour of his mother is dated 27-6-1983. This gift deed contains following declarations, inter alia, the other terms and conditions:
"(1) That all titles, rights and interest in the subject-matter of the gifted property have been waived by the donor so as to allow the donee could stand in her original ownership status. The donee with the execution of this deed shall be treated as an exclusive owner of the property from the date of the gift made by the donor in favour of the donee.
(2) The donor has agreed specifically to sever all his liens on the property and binds himself not to exercise any right whatsoever in future over the estate of the property. It is also specifically admitted that the donor did not exercise any right of ownership by expropriating the property in any way during the tenure it remained with him as owner. .
(3) That the donee has accepted gift by the present deed of gift and has taken over the possession of the subject property and from now onward legally entitled to exercise his sole and exclusive rights and exclusive rights since the date of announcement of the gift."
9. A perusal of record shows that the documentary evidence produced by the respondent himself belies the averment/declarations in the gift-deed. First document in this behalf is the letter, dated 15-9-1984 addressed by Mr. Sajjad Hyder Khan to the respondent Mr. Anwar Ali Khan which reads as follows:
"Dear Anwar Ali Khan,
I give below the details of sale proceeds of agricultural land at Peshawar belonging to you and Asad Ali Khan sent to you during the year ended June 30, 1984:---
| DATE | AMOUNT |
| 30-7-1983 | 2,13,000 |
| 26-9-1983 | 1,47,000 |
| 13-10-1983 | 1,54,000 |
| 19-11-1983 | 63,000 |
| 17-12-1983 | 2,48,000 |
| 6-3-1984 | 3,00,000 |
| 11-4-1984 | 1,00,000 |
| 26-6-1984 | 1,00,000 |
| Total: | 14,25,000 |
(Rupees Fourteen lacs twenty-five thousand only)
Fifty per cent of the above amounts, i.e., Rs.7,12,500 belongs to you.
(Sd.)
(SAJJAD HYDER KHAN.)"
10. The second document is the letter, dated 4-2-1985 written by the respondent to his attorney Mr, Rafiq. The contents of the letter are as follows:
"Dear Mr. Rafique;
I enclose a copy, of letter received from Mr, Sajjad Hyder giving the detail of total amount of sale proceeds of agricultural land at Peshawar during the year ended 30-6-1984. This land belonged to our mother who had gifted the land to me and Asad Ali Khan equally.
Out of the total amount of Rs. 14,25,000 (Rupees fourteen lacs, twenty five thousand only) my 50% share amounts to Rs.7,12,500.
I hope now you will be in a position to explain the increase in my wealth to the Wealth Tax Officer, Quetta.
(Sd.)
(ANWAR ALI KHAN)
Mr. Muhammad Rafique,
Manager,
Sargodha Grain & Gen. Stores
11. The third document is the letter, dated 11-5-1985 addressed by Mr. Muhammad Rafique attorney of the respondent to the Wealth Tax Officer. In this letter while explaining increase in the wealth of the respondent for the Assessment year 1984-85. It has been stated as follows:
"The total increase of the wealth is Rs.10,39,822 which has been invested on receipt of amount as sale of agricultural land at Peshawar from the attorney. Letter from the attorney showing the detail of sale Rs.7,12,500 is enclosed."
12. On perusal of the above documents produced by the respondent himself during the assessment proceedings vis-a-vis the gift-deed produced before us in second appeal we find that the gift deed, dated 27-6--1983 allegedly executed by the respondent in favour of his mother is not a reliable document. According to the gift deed dated 27-6-1983 the respondent divested himself of all the rights, title and interest in the property with effect from 27-6-1983 and on the other hand Mr. Sajjad Hyder Khan in his letter dated 15-9-1984 addressed to the respondent is stating that the agricultural land at Peshawar belongs to him and the sale proceeds also belong to him. The respondent has accepted this statement and in his letter dated 4-2-1985 addressed to his Manager Muhammad Rafique stated that, "this land belongs to our mother who had gifted the land to me and Asad Ali Khan equally".
13. If the land in question was again gifted by the respondent to his mother on 27-6-1983 there was no question of receiving the sale proceeds of the land during the year ending 30-6-1984 and asserting the ownership of the land by the respondent himself on 4-2-1985 and by his attorney and Manager Muhammad Rafiq in his letter, dated 11-5-1985 addressed to Wealth Tax Officer, Quetta. Another assertion in the gift deed that the respondent did not exercise any right of ownership by expropriating the property in any way during the tenure it remained with him as owner is belied from the fact that he has himself stated under his own signature that he has received the sale proceeds of the land to the extent of 50% share which amounted to Rs.7,12.500. There is another important contradiction in the version of respondent. It is stated on page 2 of the order, dated 20-4-1988 by learned A.A.C. of Income-tax, Hyderabad Range relating to the Assessment years 1982-83 to 1984-85 that, "the A.R. of the assessee. Appellant stated that the facts are that the land in question was never transferred in the name of the assessee". It is interesting to note that the A.R. of the respondent giving this statement was Mr. Muhammad Asghar Qazi himself. The first appeal was heard on 20th of April, 1988 and if Mr. Muhammad Asghar Qazi was asserting in April, 1988 that the property was never transferred to the respondent, how it does lie in his month to say in August, 1996 that the property was gifted by the respondent in favour of his mother on 27-6-1983 with the assertion that "the donor is in possession of the piece of land measuring 103455 sq.ft." and that "donor had received the subject-matter of the gift from the donee as gift out of love and affection of the donee as mother of the donor who is her son". All these contradictory pleas taken on behalf of respondent show that the respondent has been trying hard to wriggle out of the tax liability but while struggling to get out of the situation he has been tightening the noose on himself and now he is not able to take himself of the wood. Another important point which we would like to refer is that the alleged signature of the donee Mst. Amtul Rasool on the gift deed dated 27-6-1983 differs from the signature of Mst. Amtul Rasool on the arbitration agreement dated 20th of January, 1983 which is by now an admitted document and in pursuance whereof the arbitration award dated 28-2-1983 was given which was made a rule of the Court. The points of difference between alleged signature of Mst. Amtul Rasool on the gift deed, dated 27-6-1983 and the arbitration agreement as well as arbitration award are very conspicuous and are visible on very first glance. The arbitration agreement which is an admitted document was signed on 20-1-1983 and the arbitration award which is also an admitted document was signed on 28-2-1983 and the alleged gift deed by the-respondent in favour of his mother is stated to be signed on 27-6-1983 and, therefore, there is not much time lag in-between the two documents which may cause some difference in the signatures. Not a single letter of the alleged signature of Mst. Amtul Rasool on the gift deed dated 27-6-1983 tallies with the admitted signatures of Mst. Amtul Rasool on the arbitration agreement and arbitration award. For the foregoing reasons it is held that in addition to our finding that the gift deed is not admissible for the first time in second appeal, even on merits the document is not genuine and, therefore, no reliance can be placed on this document.
14. Before concluding our discussion we would like to observe that the learned A.A.C., Hyderabad in his order dated 20-4-1988 while giving finding that the property was still owned by Mst. Amtul Rasool placed reliance on the entries in the Revenue Record. By now it is established rule of evidence that the mutations in the Revenue Record do not amount to the document of title. In the present case the right, title and interest in the property stood transferred in favour of the respondent in pursuance of the gift deed executed by Mst. Amtul Rasool in favour of the respondent, which fact was subsequently confirmed by the arbitration award. If the mutation in pursuance of the gift deed was not made in the Revenue Record it shall have no bearing so far the title in the property is concerned. Thus the finding of the learned A.A.C., Hyderabad dated 20-4-1988 while deciding first appeals relating to the Assessment years 1982-83 to 1984-85 and which was followed in all the subsequent years was the result of incorrect appreciation of facts and law which is not sustainable and is hereby vacated. The first appellate orders for all the assessment years under appeal are hereby vacated and it is held that in all the assessment years under appeal land near Peshawar was owned by the respondent and the assessing officer rightly included value thereof in the gross wealth of the respondent. The assessment orders on this point stand restored.
15 All the appeals at the instance of Department are allowed as above
M.B.A./280/Trib Appeal allowed.