9911796707
TMI Blog1996 (4) TMI 85X X X X Extracts X X X X X X X X Extracts X X X X ..... ssued to the assessee for the two assessment years. She filed her returns for the two years on September 17, 1975. The question as to whether the returns were filed in response to the notices has been a matter of some controversy ; according to the assessee she did not receive the notices and the returns were filed by her on her own. In the returns filed she declared wealth valued at Rs. 1,34,228 for the assessment year 1970-71 and Rs. 1,46,142 for the assessment year 1971-72. Soon thereafter the Voluntary Disclosure of Income and Wealth Ordinance, 1975, was promulgated with effect from October 8, 1975. The assessee then filed before the Commissioner of Income-tax further returns for the assessment years in question on December 31, 1975 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ary Disclosure Act and was, therefore, not entitled to the protection of section 15(1) as provided under section 15(5) of the Act. It was further held that the assessee had filed the returns after the issuance of the notices on September 9, 1970, and in response to those notices and hence her case was also hit by proviso (i) to sub-section (1) of section 15 of the Act. The assessee then went in appeal before the Income-tax Appellate Tribunal where her claim was allowed by order dated March 9, 1981. The Appellate Tribunal set aside the orders imposing penalty against the assessee and held that the assessee was fully protected by section 15(1) of the Voluntary Disclosure Act. As regards the requirements of section 5, the Appellate Tribunal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erusal of sub-section (5A) provides a complete answer to the exclusion of the petitioner from the protection of section 15(1) on the ground that she had not made payment of the tax payable by her before filing the returns on December 31, 1975. As regards the question as to whether the returns filed by the assessee on September 17, 1975, were in response to the notices issued to her under section 17 of the Wealth-tax Act and hence, her claim for immunity was hit by the first proviso to section 15(1) of the Act, it appears to be concluded by a finding of fact recorded by the Appellate Tribunal. In paragraph 5 of its order, the Appellate Tribunal states as follows : " The records of the Department and the grounds taken by the assessee befo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 15(1) of the Voluntary Disclosure Act. The sum and substance of the Department's stand was that the penalty imposed against the assessee in so far as it related to the wealth shown in her earlier returns dated September 17, 1975, was, therefore, justified and legally sustainable. On such a plea being taken the Tribunal accepted the prayer made by the Department and referred the following question for the opinion of this court : " Was the Tribunal correct in law in setting aside the penalty under section 18(1)(a) of the Wealth-tax Act in toto, even though the assessee was entitled to immunity under section 15(5) of the Voluntary Disclosure of Income and Wealth Ordinance, 1975, in respect of only the wealth disclosed under the scheme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alone, I am not inclined to examine the Tribunal's finding and reject the Department's challenge to the finding that the section 17 notices were not served on the assessee. Now, coming to the question under reference, it is to be noted that section 15(1) of the Act envisages two kinds of cases ; the first kind, as provided in clause (a), is where the assessee has not furnished a return at all under section 14 of the Wealth-tax Act ; the second kind of case, as contemplated under clause (b), is where a return though furnished by the assessee, either does not show all the wealth or declares a lower value of the wealth shown therein. Each of the two kinds of cases, contemplated under clauses (a) and (b) are subject to certain exceptions p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y assessment for the relevant assessment year made by the Wealth-tax Officer before the date on which the declaration under this sub-section is made. " A mere perusal of the proviso abovequoted makes it obvious that the question of apportionment could arise only if the value of the wealth for that assessment year had been finally assessed by the Wealth-tax Officer, that is to say, in case the assessment proceedings had been completed on the basis of the returns filed by the assessee on September 17, 1975. In that case the position would have been indeed different. By filing a second return for the same assessment year the assessee could not have possibly reopened the assessment of wealth finally made on the basis of the earlier return. Sh ..... X X X X Extracts X X X X X X X X Extracts X X X X
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