CHIMANBHAI K PATEL Vs. COMMISSIONER OF WEALTH TAX

JUDGEMENT

(1.) THE assessment years with which we are concerned in this reference are 1970 71 and 1972 73. The assessee, an individual, initially filed the return of his net wealth for the respective years showing the status as resident but not ordinarily resident. He also disclosed in his return that he was not a citizen of India. The WTO, however inadvertently, adopted the status of the assessee as non resident/not a citizen of India. As a consequence, he granted a rebate of wealth tax at 50 per cent of the total wealth tax payable by the assessee in accordance with the provision contained in r. 3 of Part If of the Schedule appended to the WT Act. On realising his mistake, the WTO proceeded to rectify his orders by adopting the status of the assessee as a resident but not ordinarily resident. Before making the rectification orders for the respective years, the WTO issued a show cause notice to the assessee who in his reply accepted the fact pertaining to his status that he was a resident but not ordinarily resident/not a citizen of India, and that he had no objection against the rectification in respect of his status by the WTO. He, however, resisted the attempt of the WTO to withdraw the rebate initially granted in respect of the wealth tax payable by him for the respective years. This objection did not prevail with the WTO who ultimately by his order decided to withdraw the rebate granted.

(2.) IN appeal, the AAC in his ex parte order upheld the decision of the WTO. The assessee, therefore, carried the matter in appeal before the Tribunal. Two contentions were urged before the Tribunal. Firstly, the admitted status of the assessee, namely, resident but not ordinarily resident was at par with that of non resident and, therefore, the rebate which was granted by the WTO initially was justified. Secondly, it was contended that, in any case, it was a debatable question as to whether the WTO could withdraw the rebate once granted in spite of the assessee disclosing his status correctly. The Tribunal was not impressed with these contentions and, therefore, dismissed the appeal of the assessee and upheld the rectification orders. On the facts and in the circumstances, therefore, the assessee claimed for a reference of the following three questions of law to us for our opinion. It was granted by the Tribunal. The questions are as follows :

(3.) FOR the reasons stated hereunder, we are unable to accept this reference. We are of the opinion that on the own showing of the assessee, the assessee is not entitled to assail this order of rectification. We have examined the question from both the aspects, namely, on assumption that there is a legislative dictionary for the words, "resident", "resident but not ordinarily resident" and "non resident", and also on the basis that there is no legislative dictionary. The reason for examining the question on the assumption that there is a legislative dictionary is that we have got to give some meaning to the word " non resident" in r. 3 and also because the assessee has claimed status as described in the IT Act. It is no doubt true that the Legislature has, in its infinite wisdom, provided a legislative dictionary for the deemed purposes under S. 5 as well as S. 6 of the IT Act.