V. M. RAO. VS COMMISSIONER OF WEALTH TAX, 1998 PTD-MADRAS-HIGH-COURT-INDIA 1494 (1995)

Wealth tax---

---- Net wealth---Exemption---Deposit made under Compulsory Deposit Scheme, 1974---Is exempt in computing net wealth---Indian Wealth Tax Act, 1957, S.5(1)(xxvi)---Indian Compulsory Deposit Scheme (Income tax Payers) Act, 1974, S.7-A [as inserted by Finance Act, 1980, w.e.f. 1-4-1975] .

After the amendment of the Compulsory Deposit Scheme (Income tax Payers) Act, 1974, by the Finance Act, 1980, with retrospective effect from April 1, 1975 inserting section 7-A in the Act, the . deposits made by the assessee under the Act are exempt in computing the net wealth of the assessee in terms of section 5(1)(xxvi) of the Wealth Tax Act, 1957.

[Since the Tribunal had decided the matter without taking notice of the amendment, the Court remanded the 'matter to the Tribunal for a rehearing and disposal afresh.]

Uttam Reddy for the Assessee.

N.V. Balasubramanian for the Commissioner.

JUDGMENT

MISHRA, J.---The question under reference, "in the facts and circumstances of the case was the Income-tax Appellate Tribunal right in holding that the compulsory deposits were includible in the net wealth and that the market value should be taken to be the face value?" needs to be answered, in our opinion, only after a fresh determination of the relevant contentions of the parties which appears to arise on the facts of the case and since such contentions are not adverted to by the Tribunal at all, we propose to remit the matter back to it for a re-hearing and disposal in accordance with law and if still there is any occasion for a question to be referred to this Court, to do so in accordance with law.

The assessee, a Hindu undivided family, has been making compulsory deposits under the Compulsory Deposit Scheme (Income-tax Payers) Act, 1974, read with the Compulsory Deposit (Income-tax Payers) Scheme, 1974.

The valuation date under the Wealth Tax Act for the assessment year 1977-78 is September 30, 1976. The aggregate of the compulsory deposit made as on the valuation date amounted to Rs.30,971. The assessee has claimed that the deposit is not includable in the computation of net wealth and submitted its wealth tax return accordingly. The Wealth Tax Officer had, however, included the deposit in computing the net wealth. On appeal before the Appellate Assistant Commissioner the order of the Wealth Tax Officer is affirmed. The Tribunal also has affirmed the said order.

Learned counsel for the assessee had drawn our attention to the definition of the expression "tax" and "taxation on income" in Article 366 of the Constitution of India and contended that when there is imposition of any tax or impost, whether general or local or special, and "tax" is construed accordingly, the compulsion created under the Compulsory Deposit Scheme (Income-tax Payers) Act, 1974, is in the nature of imposition and thus, an impost which is in the nature of a tax and thus, is a liability which cannot be included in the assets of the person who is going to be charged for his net wealth under the Wealth Tax Act. Learned counsel for the Revenue on the other hand, has contended that the compulsion created under the law to make a deposit of a portion of the income alone should not be treated as such imposition which is not in the nature of tax unless it is shown that the amount so taken under the law for depositing is also appropriated by the State, which is an asset retained by the depositor and formed part of his wealth although it is put under some restrictions. He has contended that it- is the exercise of the Sovereigns eminent domain and not under its authority, to impose any tax the compulsory deposit scheme is created under the Act.

The larger contention aside, however, we have found in the instant case that the Compulsory Deposit Scheme (Income-tax Payers) Act, 1974, has been amended by the Finance Act (44 of 1980), and its operation is made retroactive with effect from April 1, 1975, and as a consequence of the amendment, section 7-A is introduced therein which provides as follows:

"7-A. Compulsory deposit to be exempt for purposes of wealth tax. ---For the purpose of exemption under section 5 of the Wealth Tax Act, 1957 (27 of 1957), the amount of compulsory deposit shall be deemed to be a deposit with a banking company to which the Banking Regulation Act, 1949, (10 of 1949), applies."

We have seen two relevant provisions in this behalf in section 5 of the Wealth Tax Act. 1957, which are introduced with effect from April 1, 1971, one in clause (xxvi) of subsection (1) of section 5 of the said Act which is as follows:

"any deposit with a banking company to which the Banking Regulation Act, 1949 (10 of 1949), applies (including any bank or banking institution referred to in section 51 of that Act), or with a cooperative society engaged in carrying on the business of banking (including a cooperative land mortgage bank or a co operative land development bank)."

and the other in subsection (1-A) of section 5 which reads as follows:

"Nothing contained in subsection (1) shall operate to exclude from the net wealth of the assessee any assets referred to in clauses (iv), (xv), (xvi), (xvie), (xxii), (xxiii), (xxiv), (xxiva), (xxv), (xxva), (xxvi), (xxvii), (xxviia), (xxviib), (xxviid), (xxviii), (xxix), (xxxi) and (xxxii) [not being deposits under the Post Office Savings Bank (Cumulative Time Deposits) Rules, 1959], to the extent the value thereof exceeds, in the aggregate, a sum of five hundred thousand rupees:

Provided that where the assets include any assets referred to in clause (xv) of clause (xvi) (not being deposits under. The- "Post Office Savings Bank (Cumulative Time Deposits) Rules, 1959), which have been owned by the assessee continuously from a date prior to the March 1, 1970, and the value of the assets so included exceeds the limit of five hundred thousand rupees by any amount, such limit shall be raised by the said amount:

Provided further, that nothing contained in this subsection shall apply to any assets referred to in clause (xvie) which are sold by a public section company before the June 1, 1988: Provided also, that where the value of any assets, being deposits referred to in clause (xxv-a), has not been excluded from the net wealth of the assessee under the foregoing provisions of this subsection, so much of the value of such assets as has not been so excluded shall be excluded from the net wealth of the assessee; se, however, that the value of the assets so excluded under this proviso shall not exceed twenty five thousand rupees.'

Explanation. ---Where a debt is secured on, or has been incurred in relation to, any asset referred to in this subsection, the computation under this subsection shall be allowed first against the value of the asset on which or in relation to which such debt is secured or incurred and, thereafter, against the value of any other asset to referred to."

A reading of the provisions in the Wealth Tax Act, leaves no manner of doubt that any deposit of the assessee (nature of the deposit is immaterial); in a banking company to which the Banking Regulation Act, 1949 (10 of 1949), applied, along with other items of assets referred to in other clauses of subsection (1) of section 5 which are referred to in subsection (1-A) was available for being charged to tax on net wealth only to the extent it was in excess of the value as envisaged under subsection (1-A), i.e., Rs.1,50,000 at the relevant time. The Compulsory Deposit Act, however, had envisaged deposit in accordance with the Act and subject to the provisions of the Act and any scheme framed there under. Under the scheme framed under the Act, the deposits are required to be made in the manner stated therein. The scheme envisaged deposit in cash or by crossed cheque drawn in favour of the deposit office of a bank at the place where the deposit office was situated into the office at which the account stood.

The deposit office was/is defined to mean, (i) an office of the Reserve Bank of India; (ii) a branch or office of the State Bank of India and any subsidiary bank of the State Bank of India; and (iii) an office or branch of a corresponding new bank constituted under section 3 of the Banking Companies (Acquisition and Transfer of Undertaking) Act, 1970 (5 of 1970). Obviously all deposit offices mentioned therein were/are not governed by the Banking Regulation Act, 1949. In the absence of the amendment aforementioned there could be a deposit in a bank to which the Banking Regulation Act applies as well as to a bank to which the Banking Regulation Act did not apply. The amendment has removed the anomaly and has made all deposits equal for the purposes of clause (xxvi) of subsection (1) -of section 5 of the Wealth Tax Act. Since section 7.-A is retrospective in operation it has to be applied to the deposits by the assessee in the instant case as well.

The amendment had come into force on August 21, 1980, before the Tribunal disposed of the appeal by its order, dated September 9, 1980, i.e., the Tribunal has passed the order without taking notice of the amendment and thus has fallen in error. This alone, in our opinion, is a good ground to remit the matter to the Tribunal for a rehearing and disposal in accordance with law. The contention as to whether the compulsory deposit is in the nature of an impost and thus should be treated as a liability until it becomes available for refund or is a deposit under a law made in exercise of the eminent domain need not be decided at this stage. The assessee, if so advised can raise the said, plea before the Tribunal and if there is any need after the order in appeal by the Tribunal, the assessee may seek a reference in accordance with law.

In a result of the above, the matter is remitted back to the Tribunal for a re-hearing and disposal in accordance with law. No. costs.

M.B.A./1692/FCOrder accordingly.

Case remanded.