Appeal No 1174 of 1974
From the Judgment and Order dated the 4 4 1974 of the Delhi High Court in Wealth Tax Ref
No 5 of 1972
RM Mehta and PL Juneja for the appellant
GC Sharma ML Khanna Anup Sharma Miss Jaswal KK and KR Jagaraja and DK Jain for the respondent
The Judgment of the Court was delivered by BHAGWATI J
This appeal raises a rather difficult but interesting question of law relating to valuation for the purpose of the Wealth Tax Act 1957 of leasehold interest in land when there is a covenant in the lease that the lessee shall not be entitled to assign the leasehold inter est without obtaining the prior approval in writing of the lesson and the lessor shall be entitled to claim and recov er from the lessee a certain specified proportion of the unearned increase in the value of the land at the time of the assignment
13 436SCI77 420 The controversy in this appeal relates to the assess ment year 1968 69 the relevant valuation date being 31st December 1967
The assessee is assessed to wealth tax as an individual
His net wealth on the valuation date included a property situate on plot No 12 Block 39 Kauti lya Marg Chanakyapuri
the property consisted of leasehold interest in the land together with a house built upon it
The land belonged to the President of India and it was leased by the President of India to one Vashesharan Devi on the terms and conditions set out in an agreement of lease dated 30th December 1954 and the leasehold interest was acquired from Vashesharan Devi by the assessee
The premium for the grant of the lease was Rs 24400 and the annual rent was fixed at Rs 610  subject to certain variations
The terms and conditions of the lease are a little important and so far material they may be reproduced as follows 13the lessee shall before any assign ment or transfer of the said premises hereby demised or any part thereof obtain from the lessor or such officer or body as the lessor may authorise in this behalf approval in writing of the said assignment or transfer and all such assignees and transferees and the heirs of the lessee shall be bound by all the covenants and conditions herein contained and the answerable in all respect therefore
Provided also that the lessor be enti tled to claim and recover a portion of the unearned increase ie the difference between the premium already paid and current market value in the value of land at the time of transfer whether such transfer is an entire site or only a part thereof the amount to be recovered being 50 per cent of the unearned increase
The Lessor shall have a pre emptive right to the property after deducting 50 per cent of the unearned torn said
 The assessee constructed a large building on the land and the question arose as to how the leasehold interest of the assessee in the land together with the building should be valued
This property had been valued in the past assess ment years at Rs 600000 and the assessee had accepted this valuation and not challenged it
But in the assessment for the assessment year
1968 69 the assessee valued this property in its return of net wealth at Rs 452000 on the
basis of a certificate obtained from Ms Anand Apte and Jhabvala Architects who are approved valuers recog nised by the Department
The Architects estimated the value of the property at Rs 582268and from this figure they deducted a sum of Rs 130000 representing 50 per cent of the unearned increase in the value of the land which under the terms and conditions of the lease
belonged to the lessor and arrived at the value of Rs 452000 
The Wealth Tax Officer did not accept the estimate of the valua tion made by the Architects and taking the annual rent of Rs 30000 fetched by the property as the basis computed the net annual rent at Rs 82956 421 and arrived at the figure of Rs 829560 as the value of the property by applying the multiple of ten
to the annual rental value of Rs 82956 
The Wealth Tax Officer rejected the claim of the assessee to deduct from the value of the property 50 per cent of the unearned increase in the value of the land on the ground that this claim was based merely on hypothetical presumptions but reduced the value off the property from Rs 829560 to Rs 600000  since that was the figure accepted by the Revenue in the past assessment years
The assessee challenged the valua tion made by the Wealth Tax Officer in an appeal preferred before the Appellate Assistant Commissioner but the appeal was unsuccessful as the Appellate Assistant Commis sioner took the same view as the Wealth Tax Officer
The Tribunal also in further appeal affirmed the same view holding that the fact that the assessee might have to Pay 50 per cent of the unearned increase to the lessor does not affect the valuation of the property under section 7 of the Wealth Tax Act and the words used in that section make it clear that the estimate which should be made by the Wealth Tax Officer is of the gross price and hence no part of the unearned increase was deductible in computing the value of the property for the purpose of the Wealth fax Act
The Tribunal also upheld the rental method of valuation of the property and finding that the valuation of Rs 600000 adopted by the Wealth Tax Officer was even less than eight times the annual rental value of Rs 82956  the Tribunal declined to interfere with the valuation made by the Wealth Tax Officer
The assessee thereupon applied to the Tribunal for making a reference to the High Court and on the application of the assessee the following question of law was referred by the Tribunal for the opinion of the High Court Whether on the facts and in the circum stances of the case the Tribunal was justi fied in law in taking the view that 50 of the unearned increase payable to the lessor of the land formed part of and was not deducti ble out of the valuation of the property for the purposes of Wealth tax Act 
The High Court took the view that the liability to pay 50 per cent of the unearned increase in the value Of the land to the lessor at the time of the assignment was a disadvan tage attached to the leasehold interest in the land and hence its value was liable to be deducted from the value of the property in arriving at the net wealth of the assessee and on this view it answered the question in the negative in favour of the assessee
This led to the filing of the present appeal by the Revenue after obtaining a certificate of fitness from the High Court
It would be convenient  at the outset to refer to the relevant provisions of the Wealth Tax Act 1957 before we address ourselves to the question which arises for determination in the appeal The Wealth Tax Act 1957 was passed by the Parliament in exercise of the legislative power conferred under Entry 86 of List I of the Seventh Schedule to the  Constitution and as pointed out by Shah J ih Sudhir 422 Chandra Nawa vs Wealth Tax Officer Calcutta1 wealth tax is a tax imposed  on the capital value of the assets of individuals and companies on the valuation date  it is imposed on the total assets which the assessee owns and it is levied on the value of those assets
Section 3 is the charging section and it provides that subject to the other provisions contained in the Act there shah be charged for every assessment year commencing on and from the 1st day of April 1957 a tax_in respect of the net wealth on the corre sponding valuation date of every individual Hindu Undivided Family and company at the rate or rates specified in the Schedule
Thus wealth tax is a tax on the net wealth of the assessee on the valuation date
Net wealth is de fined in section 2m to mean the amount by which the aggregate value computed in accordance with the provisions of this Act of all the assets wherever located belonging to the assessee on the valuation date including assets required to be included  in his net wealth as on that date under this Act is in excess of the aggregate value of all the debts owed by the assessee on the valuation date other than debts failing within certain specified categories
The word asset  used in section 2m is of the widest Signifi cation and under section 2e it includes property of every description movable or immovable barring certain excep tions which are not material for our purpose
What is therefore necessary for the purpose of determining the net wealth of the assessee is first to compute the aggregate value of all assets belonging to the assessee in accordance with the provisions of the Act and then to deduct from it the aggregate value of all the debts and the resultant which is obtained would be the net wealth assessable to tax
section 7 sub section 1 lays down the mode of determination of the value of an asset for the purposes of the Act and it says that subject to any rules made in this behalf the value of any asset other than cash shall be estimated to be the price which in the opinion of the Wealth Tax Officer it would fetch if sold in the open market on the valuation date
Now plainly one of the assets belonging to the assessee in the present case was the lease hold  interest in the land together with the building upon it and for the purpose of computing the net wealth of the assessee it was necessary to determine the value of this asset
The question which must therefore be asked in terms of section 7 1  is what would be the price which this asset would fetch if sold in the open market on the valuation date 
This question cannot be satisfactorily answered unless we first determine what is the nature of this asset what is the interest in property qualitative as well as quantitative which this asset represents  The asset consists of leasehold interest of the asses see in the land together with the building constructed upon it
The building of  course belongs to the assessee having been constructed by him and the determination of its value should not present any difficulty because there are recognised methods of valuation of buildings
The diffi culty however arises in regard to valuation of the leasehold interest in the land
The leasehold interest is held by the assessee under a lease deed executed by the President of India and apart from 1 423 clause 13 which we have reproduced above it is an ordi nary leasedeed of the usual kind
Clause 13  of the lease deed provides that the assessee shall not be entitled to assign the leasehold interest in the land without obtain ing the prior approval in writing of the lessor and 50 per cent of the unearned increase in the value of the land at the time of the assignment shall be claimable by the lessor and moreover if the lessor so desires he shall have pre emptive right to purchase the property after deducting 50 per cent of the unearned increase in the value of the land
Does this covenant merely impose a personal obligation on the lessee which arises on assignment of the leasehold interest or it is a covenant running with the land  That is a question which has a direct bearing on the valuation of the leasehold interest
Now the last portion of the first paragraph of clause 13 provides that all such assignees and transferees  shall be bound by all the covenants and conditions herein contained and be answerable in respect therefore
This means that whenever an assign ment of the leasehold interest is made by the lessee the assignee would be bound by all the covenants contained in the lease deed and these would indisputably include the covenant in clause 13 
Clause 13  would equally bind the assignee and if the assignee in his turn wants to assign his leasehold interest in the land he would have to obtain the prior approval in writing of the lessor to such assignment and the lessor would be entitled to claim 50 per cent of the unearned increase in the Value of the land
This indeed was not disputed on behalf of the Revenue
The covenant in clause 13 is therefore clearly a cove nant running with the land and it would bind whosoever is the holder of the leasehold interest for the time being
It is a Constituent part of the rights and liabilities and advantages and disadvantages which go to make up the lease hold interest and it is an incident which is in the nature of burden on the leasehold interest
Plainly and indis putably it has the effect of depressing the value which the leasehold interest would fetch if were free from this burden or disadvantage
Therefore when the leasehold inter est in the land has to be valued this burden or disadvan tage attaching to the leasehold interest must be duly dis counted in estimating the price which the leasehold interest would fetch
To value the leasehold interest on the basis that this burden or disadvantage were to be ignored would be to value an asset different in content and quality from that actually owned by the assessee
This was the principle applied by the Judicial Committee in Corrie vs MacDemott1 an appeal from Australia where the question arose as to how certain land granted by the Government of Queensland to the trustees of the Acclimatisation Society of Queensland to be used only for the purpose of the Society should be valued on resumption by the Government
The trustees had no general power of sale but they were by statute authorised to sell any part of the land to the local authority and to the National Agricultural and Industrial Association
It was held by the judicial Committe that in view of this restric tion on the nature of the interest of the trustees in the land the trustees were not entitled upon resumption of the land by the Government to be paid unrestricted
free hold value of 1 424 the land but only the value of the land to the trustees under the conditions upon which they held it
The Judicial Committee pointed out that if the owner holds the property subject to restrictions it is a necessary point of enquiry how far these restrictions affect the value and the proper ty cannot be valued as if it were unrestricted in any way
The burden or limitation attaching to the leasehold interest in the present case must therefore be taken into account in arriving at the value of the leasehold interest and it cannot be valued ignoring the burden or limitation
This problem can also be looked at from a slightly different angle and this approach too would throw some light on the true nature of the leasehold interest required to be valued
Let us approach the question from the point of view of the lessor
What is the nature of the lessor s interest in the land  The lessor has undoubtedly the reversion but coupled with it is also the right to 50 per cent of the unearned increase in the value of the land at the time of assignment of the leasehold interest by the lessee as also the pre emptive right to the land after deducting 50 per cent of the unearned increase from the price obtainable by the lessee
This is the asset of the lessor which would have to be valued when the lessor is sought to be assessed to wealth tax
The right to 50 per cent of the unearned increase on assignment of the leasehold interest would certainly add to the value which the reversion would other wise fetch in the open market
Now once it is granted that under the lease deed the lessor has a bundle of rights which includes something  more than the reversion that something  would necessarily be subtracted from the inter est of the lessee and to that extent the interest of the lessee would stand reduced
The interest of the lessee would be the leasehold interest minus that something 
What goes to augment the interest of the lessor would corre spondingly reduce the interest of the lessee and it Cannot be taxed as the wealth of both the lessor and the lessee
It would be includable in the net wealth of the lessor and hence it cannot at the same time form part of the wealth of the lessee and must be subtracted in determining the nature and extent of the interest of the lessee
That takes us to the question as to how the leasehold interest of the assessee with the burden or limitation attaching under clause 13 of the lease deed should be valued
It is clear from the language of section 7 sub sectiOn 1  that what the Revenue is required to do for the purpose of determining the value of an asset is to assume that the asset which is to be valued is being sold in the open market and to fix its value for the purpose of wealth tax upon that hypothesis
Now whenever the value of an asset has to be determined on the basis of a hypothetical_ sale the court has necessarily to embark upon speculations which may be quite difficult and in some cases even arti ficial
Here the asset to be valued is the leasehold inter est in the land with the burden or restriction contained in clause 13 of the lease deed and the inquiry has there fore to be directed to the question as to what is the price which this asset would fetch if sold in the open market
What would be the realisable value of this asset  It would indeed be difficult to speculate as to what 425 the leasehold interest in the land would fetch in the open marker when it is affected by the burden or restriction contained in clause 13 of the lease deed
If the lease hold interest were free from this burden or restriction it  would be comparatively easy to determine its market value for there are recognised methods of valuation of leasehold interest but where the leasehold interest is cut down by this burden or restriction and some right of interest is abstracted from it the problem of valuation becomes a difficult one and some method has to be evolved for resolv ing it
The only way it can be done in a case of this kind is by taking the market value of the leasehold interest as if it were unencumbered or unaffected by the burden or restriction of clause 13 and deducting from it 50 per cent of the unearned increase in the value of the land on the basis of the hypothetical sale as representing the value of such burden or restriction
There is also one other consideration which reinforces the adoption of this method of valuation
When for the purpose of valuation of the leasehold interest it is as sumed that the leasehold interest is sold in the open market the price received does not in its entirety belong to the assessee
Fifty per cent of the unearned increase in the value of the land is diverted to the lessor by virtue of the paramount title contained in clause 13 and when re ceived by the assessee it belongs to the lessor
It is in truth and substance collected by the assessee on behalf of the lessor
What is received by the assessee on his own account is only the price less 50 per cent of the unearned increase in the value of the land and that represents the net realisable worth of the asset in the hands of the asses see
The Revenue contended that payment of 50 per cent of the unearned increase in the value of the land to the lessor is really an instance of application of the price received by the assessee and not diversion of a part of the price by paramount title and hence the whole of the price must be taken as the measure of the wealth of the assessee
But this contention is in our opinion not well founded and cannot be sustained
The true test for determining whether a payment made by an assessee out of an amount received by him is an application of part of the amount which belongs to him or it is payment of an amount which is diverted before it reaches the assessee so that at the time of receipt it belongs to the payee and not to the assessee has been explained by Hidayatullah J in C 1 Sitadas Tirath das1 in the following words In our opinion the true test is wheth er the amount sought to be deducted in truth never reached the assessee as hi s income
Obligations no doubt there are in every case but it is the nature of the obli gation which is the decisive fact
There is a difference between an amount which a person is obliged to apply out of his income and an amount which by the nature of the obligation cannot be said to be a part of the income of the assessee
Where by the obligation income is diverted before it reaches the assessee it is deductible but where the income is re quired to be applied to discharge an obliga tion after such income reaches the 426 assessee the same consequence in law does not follow
It is the first kind of payment which can truly be excused and not the second
The second payment is merely anobligation to pay another a portion of one s own income which has been received and is since applied
The first is a case in which the income never reaches the assessee who even if he were to collect it does so not as part of his in come but for and on behalf of the person to whom it is payable
In our opinion the present case is one in which the wife and children of the assessee who continued to be members of the family received a portion of the income of the assessee after the assessee had received the income as his own
The case is one of application of a portion of the income to discharge an obligation and not a case in which by an overriding charge the assessee became only a collector  of another s income
It is clear on the application of this test that in the present case 50 per cent of the unearned increase iii the value of the land would be diverted to the lessor before it reaches the hands of the assessee as part of the price
The assessee holds the leasehold interest on condition that if he assigns it 50 per cent of the unearned increase in the value of the land will be payable to the lessor
That is the condition on which he has acquired the leasehold inter est arid hence 50 per cent of the unearned increase in the value of the land must be held to belong to the lessor at the time when it is received by the assessee and it would not be part of the net realisable worth of the leasehold interest in the hands of the assessee
If a question is asked as to what is the real wealth of the assessee in terms of money so far as the leasehold interest is concerned the answer would inevitably be that it is the price less 50 per cent of the unearned increase in the value of the land
It is difficult to see how 50 per cent of the unearned increase in the value of the land which belongs to the lessor can be regarded as part of the wealth of the assessee
The posi tion would undoubtedly be different where a payment is made by an assessee which is an application of a part of the price received by him
Where such is the case the whole of the price would represent the net realisable worth of the asset in the hands of the assessee and what is paid out by the assessee would be merely a disbursement made after the price reaches the assessee as his own property
That was the position in Pardit Lakshi Kant Jha vs Commissioner of Wealth Tax Bihar1 where the question arose whether the expenditure in connection with brokerage commission or other expenses which would be liable to be incurred by the assessee in effectuating a sale would be deductible from the market value of the shares in determining their value for the purpose of assessment to wealth tax
This Court held that in computing the value of the shares the assessee is not entitled to deduction of brokerage and commission from the valuation of the shares as given inthe Stock Exchange quotations or quotations furnished by well known brokers
It was pointed out by this Court that 1 427 It is not the amount which the vendor would receive after deduction of this expense but the price which the asset would fetch when sold in the open market which would constitute the value of the asset for the purpose of section 71 of the Act
Obviously this view was taken because the entire price when received would belong to the asses see and payment of brokerage and commission would be merely application of part of the price in meeting expenditure necessary for effectuating the sale and hence it would not be deductible in ascertaining the net realisable worth of the shares in the bands of the assessee
We are therefore of the view that the question re ferred by the Tribunal must be answered in the negative and it must be held that in determining the value of the lease hold interest of the assessee in the land for the purpose of assessment to wealth tax the price which the leasehold interest would fetch in the open market were it not encum bered or affected by the burden or restriction contained in clause 13 of the lease deed would have to be reduced by 50 per cent of the unearned increase in the value of the land on the basis of the hypothetical sale on the valuation date
The appeal accordingly Fails and must be dismissed with costs
section R Appeal dismissed


Summary:
The respondent an assessee to wealth tax as an individual in the assessment for the assessment year 1968 69 valued his property situate on plot No 12 Block 39 Kautilya Marg Chanakyapuri in his return of net wealth  Rs 452000 as against the value of Rs 600000 shown by him in the previ ous years
The property consisted of leasehold interest in the land together with a house built on it
The land be longed to the President of India and it was leased by the President of India to one Vashesharan Devi on the terms and conditions set out in an agreement of lease dated 30th December 1954 and the leasehold interest was acquired from Vashesharan Devi by the assessee
Clause 13 of the lease deed provided that the assessee shall not be entitled to assign the leasehold interest in the land without obtain ing the prior approval in writing of the lessor and 50 per cent of the unearned increase in the value of the land at the time of assignment shall be claimable by the lessor and moreover if the lessor so desires he shall have pre emp tive right to purchase the property after deducting 50 of the unearned increase in the value of the land
It further provided that all such assignees and transferees   shall be bound by all the covenants and conditions herein contained and be answerable in respect therefor
In accordance with this clause the Architects who are approved valuers estimated the value of the property  Rs 582268 and from this  figure they deducted a sum of Rs 130000 representing 50 per cent of the unearned in crease in the value of the land which belonged to the lessor and arrived at the value of Rs 452268 
The Wealth Tax Officer did not accept the estimate of the valuation and taking the annual rental value of Rs 132000 fetched by the property as the basis computed the net annual rent at Rs 82956 and arrived at the figure of Rs 829560 as the value of the property by applying the multiple of ten to the net annual rental value of Rs 82956 
The claim of the assessee to deduct from the value of the property 50 per cent of the unearned in crease in the value of the land was rejected on the ground that this claim was based merely on hypothetical presump tions
The value of the property was however reduced from Rs 829560 to Rs 600000 since that was the figure accepted by the Revenue in the past assessment years
The appeals before the Appellate Assistant Commissioner and the Tribunal failed
On a reference the High Court took the view that the liability to pay 50 per cent of the un earned increase in the value of the land to the lessor at the time of the assignment was a disadvantage attached to the leasehold interest in the land and hence its value was liable to be deducted from the value of the property in arriving at the net wealth
Dismissing the appeals the Court HELD 1 In determining the value of the leasehold interest of the assessee in the land for the purpose of assessment to wealth tax the price which the leasehold interest would fetch in the open market were it not encumbered or affected by the burden of the restriction contained in clause 13 of the leasedeed would have to be reduced by 50 per cent of the unearned increase in the value of the land on the basis of the hypothetical sale on the valuation date
427 C D 2 The only way in which in a case of this kind the valuation section 71 of the Wealth Tax Act can be done is by taking the market value of the leasehold interest as if it were unencumbered or unaffected by the burden or restriction contained in clause 13 and deducting from it 50 per cent of the unearned 419 increase in the value of the land on the basis of the hypo thetical sale as representing the value of such burden or restriction
425 A C 3 The true test for determining the matter of payment made by an assessee out of an amount received by him wheth er it is an application of part of the amount which belongs to him or it is payment of an amount which is diverted before it reaches the assessee so that at the time of re ceipt it belongs to the payee and not to the assessee
In the present case 50 per cent of the unearned increase in the value of the land would be diverted to the lessor before it reaches the hands of the assessee as part of the price
425 E F CITv
Sitaldas Tirathdas SC applied
Pandit Lakshmi Kant Jha vs Commissioner of Wealth Tax Bihar  explained
4 The burden or limitation attaching to the leasehold interest must be taken into account in arriving at the value of the leasehold interest and it can not be value ignoring the burden or limitation The covnaent in clause 13 is clearly a covenant running with the land and it would bind whosoever is the holder of the leasehold interest for the time being
It is a constituent part of the rights and liabilities and advantages and disadvantages which go to make up the leasehold interest and it is an incident which is in the nature of burden on the leasehold interest
Plainly and indisputably it has the affect of depressing the value which the leasehold interest would fetch if it were free from this burden or disadvantage
When the lease hold interest in the land has to be valued this burden or disadvantage attaching to the leasehold interest must be duly discounted in estimated the price which the leasehold interest would fetch
To value the leasehold interest on the basis that this burden or disadvantage were to be ignored would be to value an asset different in content and quality from that actually owned by the assessee
424 B 423 D H Corrie vs MecDermott  quoted with approval
5 When under the lease deed the lessor has a bundle of rights which includes something more than the reversion that something would necessarily be subtracted from the interest of the lessee and to that extent the interest of the lessee would be the leasehold interest minus that something
What goes to augment the interest of the lessor would correspondingly reduce the interest of the lessee and it cannot be taxed as the wealth of both the lessor and the lessee
It would be includible in the net wealth of the lessor and hence it cannot at the same time form part of the wealth of the lessee and must be subtracted in determining the nature and extent of the interest of the lessee
424 E F