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TMI Blog2007 (9) TMI 236X X X X Extracts X X X X X X X X Extracts X X X X ..... assed by the Income-tax Appellate Tribunal, Allahabad, in the Wealth-tax Appeal No. 110 of 1996 for the assessment year 1989-90 in the case of WTO v. Smt. Shakuntala Devi Dalmia, be set aside and the impugned order of penalty made against the assessee under section 18(1) (c) imposed by the Wealth-tax Officer's order dated March 23, 1993, be restored. 4. The following two substantial questions of law have been called for in the present case "1. Whether, on the facts and in the circumstances of the case, the Income-tax Appellate Tribunal was correct in law in holding that neither Explanation 2 nor Explanation 4 to section 18(1)(c) of the Wealth-tax Act, 1957, was applicable to this case ? 2. Whether, on the facts and in the circumstances of the case, the Income-tax Appellate Tribunal was correct in law, in holding that the explanation offered by the assessee was sufficient to rebut the presumption for concealing the particulars in relation to the value of the immovable property bearing number 87/110(3), Kalpi Road, Kanpur, or for furnishing inaccurate particulars of the asset ?" 5. The facts of the case are that the assessee filed a return of wealth for the assessment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of the penalty under section 18(1) (c) of the Act. The Commissioner of income-tax (Appeals) found that the value declared by the assessee was not correct. The Commissioner of Income-tax (Appeals) was, however, of the view that there were certain factors in favour of the assessee. He observed that the value had been accepted by the Department for so many years and that there was nothing to show that the facts were not properly declared regarding the position of the property. He also observed that the assessee had declared the value of the property on the basis of the report of an approved valuer and took the view that the assessee had disclosed all the facts and material in respect of the property, cancelled the penalty imposed under section 18(1) (c) of the Act. 10. The Department filed a second appeal to the Income-tax Appellate Tribunal against the order of the Commissioner of income-tax (Appeals). The Appellate Tribunal held that in this case neither Explanation 2 nor Explanation 4 to section 18(1) (c) of the Act could be applied because the explanation offered by the assessee was sufficient to rebut the presumption of concealing the particulars in relation to the value of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sel for the assessee Sri S. D. Singh has argued that in the facts of the present case, the requirement of Explanation 4 to section 18(1)(c) was fully satisfied by the assessee for the reasons that the assessee had got her property assessed by an approved valuer and the value of the property which had been shown by the assessee was on the basis of the said report. 18. Sri Singh has further argued that the property which had been assessed to be of a value of Rs. 82,500 was accepted by the Department year after year. He further argued that there was nothing on record of the case to show that the facts were not properly disclosed by the assessee regarding assessment of the value of property. In fact, he argued that all relevant facts and materials in respect of the value of property had been properly disclosed to the Department and because the event of sale took place later on, it could not be said that the assessee had concealed the particulars of property or that he had furnished any inaccurate particulars. 19. Learned counsel for the assessee has relied on a decision of the hon'ble Supreme Court rendered in the case of Addl. CIT v. Jeevan Lal Sah reported in [1994] 205 I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that while explaining Explanation 4 to section 271(1)(c) of the Income-tax Act that the Explanation is an exception to the general rule. It raises a legal fiction by reason whereof a presumption is raised against an assessee as a result. whereof the burden of proof shifts from the Department to the assessee. A legal fiction, however, as is well-known must be given, its full effect when the conditions precedent therefor are satisfied and not otherwise. The hon'ble apex court has further held that a duty may be enjoined on the assessee to make a correct disclosure of income but if such disclosure is based on the opinion of an expert, who is otherwise also a registered valuer having been appointed in terms of a statutory scheme, merely because } opinion is not accepted or some other expert gives another opinion, the same by itself may not be sufficient for arriving at a conclusion that the assessee has deliberately furnished inaccurate particulars. A mere omission or negligence would not constitute a deliberate act of suppressio veri or suggestio falsi. 22. Having heard learned counsel for the Department as well as the assessee and having examined the entire material on record, we ..... X X X X Extracts X X X X X X X X Extracts X X X X
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