DIPAK KUMAR SEN, J.

( 1 ) L. N. Birla, the assessee, was assessed to wealth-tax in the assessment years 1972-73, 1973-74 and 1974-75, the valuation dates being 31st of March of the calendar years 1972, 1973 and 1974. The assessee was a partner of a firm named M/s. Kumaon Orchards. The assessee had l/5th share in the said firm. The firm owned agricultural lands. In his return of net wealth, the assessee claimed exemption under Section 5 (1) (iva) of the Wealth-tax Act, 1957, in respect of his share of the agricultural land of the firm. The Wealth-tax Officer disallowed the claim of the assessee on the ground that the asset to be included in the assessee's net wealth was 1/5th share of the interest of the assessee in the said firm and not the land as such.

( 2 ) BEING aggrieved, the assessee preferred an appeal against the assessments before the Appellate Assistant Commissioner of Wealth-tax. The Appellate Assistant Commissioner held that in determining the net wealth of the firm, exemption under Section 5 (1) (iva) of the Wealth-tax Act should be allowed up to the admissible limit. But the benefit of the said section could not be given to each of the partners separately. He directed the Wealth-tax Officer to revise the assessments accordingly.

( 3 ) BOTH the assessee and the Revenue preferred appeals to the Income-tax Appellate Tribunal against the order of the Appellate Assistant Commissioner. Before the Tribunal, the assessee relied upon an order of the Special Bench of the Madras Income-tax Appellate Tribunal as also the orders of the Calcutta Tribunal in the case of the assessee in earlier years where the assessee was allowed exemption under Section 5 (1) (iva) in respect of his l/5th share of the agricultural land of the firm. The Revenue, on the other hand, relied upon another order of the Tribunal where a different view had been taken in favour of the Revenue. The Revenue also relied upon a decision of this court in Sarvamangala Properties Ltd. v. CWT [1973] 90 ITR 267 and a decision of the Supreme Court in CWT v. Bishwanath Chatterjee [1976] 103 ITR 536, and contended that in view of the principles laid down in the said decisions, the firm was the owner of the property and as such the assessee was not entitled to exemption under the Wealth-tax Act in respect of his share in the property of the firm.

( 4 ) IT was also contended that exemption should not have been allowed in favour of the firm inasmuch as the firm was not an assessee for the purpose of wealth-tax.

( 5 ) THE Tribunal, after considering the decisions cited, held that the assessee was not entitled to exemption under Section 5 (1) (iva) of the Wealth-tax Act in his personal assessment of wealth in respect of his share as a partner of the agricultural land belonging to the firm. The Tribunal, however, held, following a decision of the Patna High Court in CWT v. Nand Lal Jalan [1980] 122 ITR 781, that exemption would be taken into account while determining the net wealth of the firm. On this point, the decision of the Appellate Assistant Commissioner was upheld.

( 6 ) ON applications both by the Revenue and the assessee under Section 27 (1) of the Wealth-tax Act, 1957, the Tribunal has referred the following questions, as questions of law arising out of its order, for the opinion of this court:"1. Whether, on the facts and in the circumstances of the case, the Tribunal was legally justified in holding that exemption under Section 5 (1) (iva) of the Wealth-tax Act, 1957, should be allowed up to the admissible limit in determining the net wealth of the partnership firm in which the assessee is a partner ?2. Whether, on the facts and in the circumstances of the case, the Tribunal was right in holding that exemption under Section 5 (1) (iva) of the Wealth-tax Act, 1957, was not allowable to the assessee to the extent of 1/5th of the agricultural land held by the firm, ' Kumaon Orchards', in determining his net wealth ?"

( 7 ) THE above questions in the presen

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