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Judgment
Mishra, J.—The poser, whether, on the facts and in the circumstances of the case, the Appellate Tribunal was right in cancelling the
assessment made u/s 17(1)(b) for the assessment years 1972-73 and 1973-74, as made without justification, has arisen in a proceeding of
reassessment of the wealth-tax (under the Wealth-tax Act) initiated as a result of audit objections. The first common ground for both the years
related to the method of working out the break-up value of unquoted shares, which the assessee had in New Ambadi Estates (Private) Ltd. The
audit view was that the gross Income Tax allowed as deduction was wrong and that only extra tax, over and above the advance tax paid, should
be allowed as a deduction in computing the break-up value of shares under rule 1D of the Wealth-tax Rules, 1957. The second ground of the audit
objection was as respects the allowance granted u/s 5(1)(iv) of the Wealth-tax Act, 1957. The audit indicated that in the original assessment relief
was wrongly granted on the Coimbatore property since it was not wholly a residential property. The third objection, the audit raised, related to the
assessee''s shares in lands (Nawab Gardens) at Adyar. The original assessment was called incorrect in the audit note on the ground that a certain
compensation offered by the Housing Board to the owner of a neighbouring property some years before the accounting year, was not taken into
consideration and the original assessment overlooked the sale value of the land in the vicinity. For the assessment year 1972-73, the audit noted
that the relief u/s 5(1) of the Wealth-tax Act should be given to the firm (partnership) and not to each partner separately. The Wealth-tax Officer
took the audit objections as information u/s 17(1)(b) of the Wealth-tax Act and accordingly revised the assessment. The appellate authority
rejected the objections of the assessee, saying ""the recomputation made by the Wealth-tax Officer, is a matter rectifiable u/s 17(1)(b), if the
successor Wealth-tax Officer on a study of the records, obtains the information about the mistake, on his own or through the agency of the audit
party,"" and affirmed the Wealth-tax Officer''s revised assessment order. The Tribunal has said, however, on the first audit objection that ""there are
two views possible in respect of this. In fact, there are conflicting views between the Tribunals at Madras and Bombay. One view is that the
wording of the relevant rule justifies the deduction of the gross amount, while the other view is that it is reasonable to consider that only the extra
amount remains payable and, therefore, only this amount is deductible .... Interpretation of a rule was involved and the audit view in such a matter
is not information as held by the later decision of the Supreme Court."" On the second objection of the audit, the Tribunal has said, ''since the words
and exclusively used by him for residential purposes"" have been omitted from section 5(1)(iv) by the Finance (No. 2) Act of 1971, with effect
from April 1, 1972, the audit note, which overlooked this amendment, was definitely wrong and would not have, therefore, constituted any
information. On the third objection of the audit, the Tribunal has said, ''In fact, the Wealth-tax Officer himself had replied that the original
assessment was correct on the ground that he had made detailed enquiries and found that the adopted value had the support of an approved valuer
in connection with an estate duty assessment, that part of the lands was sold at Rs. 7,000 to a reputed public company, that the remaining part was
valued rightly at Rs. 6,000. The urban land tax authorities also valued the lands at less than Rs. 6,000 per ground during the relevant period. The
audit, however, insisted that the supposedly ""comparative sale"" at Rs. 10,500 to the Tamil Nadu Housing Board in respect of some other land in
the same area justified higher valuation. It was the assessee''s case that the assessee''s lands were situated at a lower level and, therefore, had a
less value. We do not think that the valuation can be disturbed u/s 17(1)(b) by merely bringing some or the other allegedly ""comparative sale"" when
the original assessments are made after detailed enquiry.'' With respect to the assessment year 1973-74, as to the valuation of the assessee''s
interest in the firm of Kadambans Estate Company (partnership), the Tribunal has said, this audit view is wrong. Even if it were not incorrect, it
certainly involved interpretation of the law on which there could be two opinions. Hence, this could not constitute information in view of the later
Supreme Court decision. The Tribunal has thus concluded that the audit notes/objections which were taken as information for reassessment, were
not such information, which gave any basis to the Wealth-tax Officer to reopen the assessment. The Tribunal has noted that the Supreme Court has
in Indian and Eastern Newspaper Society, New Delhi Vs. Commissioner of Income Tax, New Delhi, pointed out that the opinion of the audit
party on a point of law could not be regarded as an information enabling the Income Tax Officer to initiate reassessment proceedings u/s 147(b) of
the Income Tax Act and that the proposition in the decision of the Supreme Court in the case of (1976) 102 ITR 287 (SC) to the effect that a case
where income has escaped assessment due to the ""oversight, inadvertence or mistake"" of the Income Tax Officer must fall within section 34(1)(b)
of the Indian Income Tax Act, 1922, is stated too widely and travels further than the statute warrants in so far as it can be said to lay down that if,
on reappraising the material considered by him during the original assessment, the Income Tax Officer discovers that he has committed an error in
consequence of which income has escaped assessment, it is open to him to reopen the assessment and an error discovered on a reconsideration of
the same material (and no more) does not give him that power. In the scheme of direct taxes, it is obvious, section 17(1)(b) of the Wealth-tax Act
plays the same role as section 147(b) of the Income Tax Act, 1961, plays for the purposes of the Income Tax Act. The Supreme Court has,
however, pointed out in A.L.A. Firm Vs. Commissioner of Income Tax, Madras, referred to the case of (1976) 102 ITR 287 (SC) and Indian
and Eastern Newspaper Society, New Delhi Vs. Commissioner of Income Tax, New Delhi, and noted the submission of learned counsel for the
Revenue that the decision in the latter case that the opinion of the audit party would not constitute information and qualifying the principles
enunciated in (1976) 102 ITR 287 (SC) is pending consideration by a larger Bench of the Supreme Court. The Supreme Court in this judgment
has pointed out the case in (1976) 102 ITR 287 (SC) and said that on a combined review of the decision of the Supreme Court, the following
tests and principles are called out (at page 293) : ""(1) where the information is as to the true and correct state of the law derived from relevant
judicial decisions; (2) where in the original assessment, the income liable to tax has escaped assessment due to oversight, inadvertence or a mistake
committed by the Income Tax Officer. This is obviously based on the principle that the taxpayer would not be allowed to take advantage of an
oversight or mistake committed by the taxing authority; (3) where the information is derived from an external source of any kind. Such external
source would include discovery of new and important matters or knowledge of fresh facts which were not present at the time of the original
assessment; (4) where the information may be obtained even from the record of the original assessment from the investigation of the materials on
the record, or the facts disclosed thereby or from other enquiry or research into facts or law;"" and shall provide grounds for reopening the
assessment u/s 34(1)(b) of the Indian Income Tax Act, 1922, and added, ""We have pointed out earlier that (1976) 102 ITR 287 (SC) , outlines
four situations in which action u/s 34(1)(b) can be validly initiated. Indian and Eastern Newspaper Society, New Delhi Vs. Commissioner of
Income Tax, New Delhi, has only indicated that proposition (2) outlined in this case and extracted earlier may have been somewhat widely stated;
it has not cast any doubt on the other three propositions set out in (1976) 102 ITR 287 (SC) . The facts of the present case squarely fall within the
scope of propositions (2) and (4) enunciated in (1976) 102 ITR 287 (SC) ."" The Supreme Court considered it a relevant and good ground to
reopen the assessment when a High Court''s decision on the subject was rendered and was available, but the Assessing Officer was unaware of it.
We have in M.A. Chidambaram Vs. Commissioner of Income Tax, (Tax Case No. 79 of 1982 order dated January 31, 1995) said as follows (at
page 176) :
It is conceded at the Bar that the audit report which only will point out a mistake in law, since the auditors are not interpreters of law, their
interpretation will not be furnishing the necessary information. In case, however, any omission in respect of any income is pointed out, whether it
comes through the audit report or otherwise, it is obvious, the same shall furnish necessary information to satisfy the requirements of reopening of
assessment u/s 147(b) of the Income Tax Act.
In Peirce Leslie and Co. Vs. Commissioner of Income Tax, (Tax Case No. 62 of 1982) (judgment dated February 14, 1995), we have
observed (at page 179) :
We do not have necessary materials on the record to know whether the audit report which has furnished the basis for the reopening of the
assessment mentions any omission in respect of any income in the return of the assessee or otherwise, discloses some factual information that
fulfilled the requirement of section 147(b) of the Income Tax Act, 1961. It is obvious the Tribunal, in the light of the above judgments, is required
to rehear the matter and decide afresh in accordance with law, whether reassessment proceedings have been validly initiated.
We have the satisfaction in the instant case that the Tribunal has appreciated the legal position and stated as follows : Though the audit objection
was considered to be information in view of the earlier decision of the Supreme Court in the case of R.K. Malhotra, ITO, Group Circle II(1),
Ahmedabad Vs. Kasturbhai Lalbhai (Huf), , it may not always also be treated as information in view of the later decision of the Supreme Court in
the case of Indian and Eastern Newspaper Society, New Delhi Vs. Commissioner of Income Tax, New Delhi, . We have no manner of doubt,
however, that the audit view that the gross Income Tax should not have been allowed as a deduction and only the extra tax, over and above the
advance tax, paid, should have been allowed as a deduction in computing the break-up value of the share under rule 1D of the Wealth-tax Rules,
is the correct view of law, yet, at the relevant time of assessment, there were conflicting views of different High Courts and in that view, at the
relevant time, the audit advice was that the law, as interpreted by it, should have been followed and not as interpreted by the Wealth-tax Officer.
As regards the allowance granted u/s 5(1)(iv) of the Wealth-tax Act, the audit referred to only a mistake of law committed by the Wealth-tax
Officer and that it had done in ignorance of the deletion of the words ""and exclusively used by him for residential purposes"" from section 5(i)(iv) by
the Finance (No. 2) Act of 1971, with effect from April 1, 1972. On the question, whether relief u/s 5(1)(x) of the Wealth-tax Act, should be
given to the firm and not to each partner separately, the Tribunal has said, the audit view is wrong. Even if the audit view of the law was the correct
view, it obviously could not ask the Wealth-tax Officer to reopen the assessment. On the question, however, of shares in land and the valuation,
the audit, the Tribunal has noted, insisted the supposedly comparative sale at Rs. 10,500 to the Tamil Nadu Housing Board, in respect of some
other land in the area, as justifying higher valuation. We wanted, in the circumstances, to know whether as to the offer of a price of Rs. 10,500,
any land in the vicinity of the land allegedly undervalued, was sold for a higher consideration for some other reasons, which did not attach to the
assessee''s land in the proceeding after reopening of the assessment; the Wealth-tax Officer has said ''in June, 1971, M. A. C. Charities has been
paid compensation at Rs. 10,500 per ground by the Tamil Nadu Housing Board for 28.85 acres of land. These lands were in the neighbourhood
of the immovable property in question. We fail to understand the expression ""lands were in the neighbourhood of the immovable property in
question"". If the lands were there, they have to be there all the while. The assessee''s case has always been that the land belonging to M. A. C.
Charities is situated in a higher place and his land is away from the river. The Wealth-tax Officer rejected this contention, saying, that it is also
common knowledge that in the November, 1976, floods, even the lands acquired by the Housing Board had been affected and the assessee''s land
is also not an exception. The assessee also pointed out that the Slum Clearance Board has put up fire proof huts as well as multi-storeyed two
room tenements adjacent to his lands, which had adversely affected the value of the land. This has been ignored by the Wealth-tax Officer saying,
`I am unable to accept the assessee''s argument for more than one reason. Firstly, the Governmental agency like the Tamil Nadu Housing Board
would have paid compensation only after considering the various factors and at any rate the price paid by the Housing Board cannot be a fancy
price and should have been fixed after taking all the facts into account.'' While considering this aspect of the matter, we have reasons to think that
the Tribunal should have chosen to go into the relevancy of the offer of compensation for the acquisition of a piece of land in the neighbourhood of
the land of the assessee and considered whether this was ""some information"", which was not confined to the auditors'' view of the law or the
interpretation of law, but information of a relevant fact, which, at least, in this respect, justified the reopening of the assessment. We are not
inclined, however, for the said reason alone, to hold in the instant case, that the Tribunal has committed any such error of law, which would induce
us to answer the question referred to us against the assessee. On account of the reopening of the instant matter, the extra tax amount payable by
the assessee will be merely a sum of Rs. 3,000 only. We cannot, on the basis of the materials before us, declare that the compulsory acquisition of
the land by the Housing Board had disclosed a higher rate at which the land in the vicinity of the land of the assessee had been sold at the relevant
time and it was a relevant consideration in reaching a proper valuation of the immovable property falling to the share of the assessee. We are, for
the said reason, answering the question referred to us in the affirmative and, accordingly, in favour of the assessee. There will be no order as to
costs.