COMMISSIONER OF WEALTH TAX Vs. R D SHAH

JUDGEMENT

(1.) At the instance of the Revenue, the following two questions were referred to this court under section 27(1) of the Wealth-tax Act, 1957 :

(2.) Wealth-tax assessments in relation to the respondent herein were made on 28/02/1979, and F 28/02/1980, for the assessment years 1974-75 and 1975-76, respectively. The assessee had agricultural lands in Kukatpally village, and in respect of those lands no additional wealth-tax was levied on the ground that they are situated beyond 8kms. from the municipal limits of Hyderabad city. Subsequently, in September, 1982, at the instance of the assessing authority, the Inspector of the Department submitted a report, presumably after verification, that the distance between the lands and the municipal boundary was less than 8kms. On the basis of that report, the assessing authority sought to rectify the assessment under section 35(1) of the Act. On receiving the notice, the assessee filed a reply on 15/11/1983, contending that the distance was more than 8kms., and in support of that plea, he also filed a certificate issued by the sarpanch of the village, dated 18/02/1982, which was to the effect that the distance was more than 9.5kms. Rejecting that contention, the assessing authority rectified the assessment and levied additional wealth-tax. The appellate authority confirmed that order. Later on, the Income-tax Appellate Tribunal found that the Inspector's report long after the assessment could not form part of the record and, therefore, on that ground there could not be a rectification under section 35(1). At the instance of the Revenue, the above two questions were referred to this court.

(3.) Sri Ashok, learned counsel for the Revenue, contends that the "record" within the meaning of section 35(1) of the Act is not necessarily what was already in existence anterior to the date of the assessment; it can also comprehend matters that came to light long after the finalisation of the assessment. In support of this, he relied upon the decision of the Supreme Court in Mahendra Mills Ltd. v. P. B. Desai, A. A. C. of I. T. [1975] 99 ITR 135. We are not inclined to agree with Sri Ashok's contentions. Section 35(1) (a) of the Act, which is relevant, is in the following terms : "35. (1) With a view to rectifying any mistake apparent from the record - (a) the Assessing Officer may amend any order of assessment or of refund or any other order passed by him;. . . ."