Chandrakantaraj Urs, J.
1. The petitioner is wealth-tax assessee. He owners both movable and immovable properties. He came to be assessed, to wealth-tax for the first time in the year 1970-71. His wealth in the form of immovable property is comprised in agricultural lands. Agricultural lands came within the purview of the W. T. Act, 1957, only during the assessment year 1970-71 (financial year 1969-70). The petitioner filed voluntarily his returns of wealth for assessment years 1970-71 and 1971-72 on November 28, 1972. It may also be noticed that the valuation was put but the petitioner racking it from March 31, 1970, and March 31, 1971, and the same was not accepted by the WTO - respondent 2. The assessments were concluded determining the total taxable wealth at Rs. 3,19,594 for 1970-71 and Rs. 1,92,852 for the assessment year 1971-72. He was required to pay tax in the sum of Rs. 1,598 for 1970-71 and Rs. 1,929 for 1971-72.
2. In the course of the assessment proceedings, the 2nd respondent-WTO initiated penalty proceedings under s. 18(1)(a) of the W. T. Act (hereinafter referred to as 'the Act'). Penalty was being imposed only on account of the belated filing of returns. It is necessary to state at this stage itself that inclusion of agricultural land for purposes of bringing it to tax under the Act was challenged by a number of people in various High Courts and the Supreme Court. The Supreme Court decided the same in favour of the revenue only in the year 1972. The judgment was delivered somewhere in February of that year. Soon thereafter, that is, in November, 1972, the assessee had filed his returns for the two assessment years. In response to the notice issued for levy of penalty the petitioner explained the delay by bringing to the notice of the WTO the fact that the levy was under challenge and was decided only in 1972. That explanation was not accepted by the 2nd respondent-WTO. In that circumstance, penalty was levied in the sum of Rs. 12,784 for the assessment year 1970-1971 and Rs. 7,716 for the assessment year 1971-72. Aggrieved by the same, the petitioner moved the CWT, the 1st respondent therein, under s. 18B of the Act. The Commissioner passed an order on July 28, 1977, giving partial relief in respect of the two assessment years. He fixed the penalty at Rs. 4,000 for 1970-71 and Rs. 2,500 for 1971-72. Aggrieved by the same, the assessee has moved this court under article 226 of the Constitution of India for redress.
3. The main contention advanced by Sri G. Sarangan, learned counsel for the petitioner, for setting aside the order of the Commissioner is that the Commissioner approached the entire matter in a manner not permissible under law having regard to the special powers with which he was invested under s. 18B of the Act. Elaborating his contention, learned counsel pointed out that while Commissioner accepted that the returns filed for the relevant assessment years were voluntary in character, that the petitioner had co-operated with the 2nd respondent for concluding the assessment and had also made arrangements to pay the admitted wealth-tax, the Commissioner was bound to give relief under s. 18B of the Act.
4. It is seen from the order of the Commissioner which is product at Ex. F to the petition that the Commissioner found that the assessee had a reasonable cause not to the Commissioner before the judgment of the Supreme Court which was delivered in February, 1972. The Commissioner has rejected the explanation offered for the delay, that is, between 1st March and November, 1972, when the returns were filed, on account of the fact that the petitioner could have filed the returns even in the absence of supply of printed forms by the department. In fact, the following extract from the impugned order of the commissioner makes clear the approach made by the commissioner :
'These steps were by him at about the time when the return for 1972-73 was due. This factory is in his favour. When the forms had not been supplied within a reasonable time, he could have taken the steps to obtain the same and file them. In any case, total delay in this case is only from March to September. Having regard to the totally of the circumstances and the penalties leviable, I am of the view that a penalty of Rs. 4,000 and Rs. 2,500 would be adequate for the assessment years 1970-71 and 1971-72, respectively. The penalties levied are accordingly reduced.'
5. The commissioner appears to have proceeded to consider and pass the order on the assumption that the assesses-petitioner was required to furnish a reasonable cause for the delay. That approach, in my view, is not correct having regard to the language of s. 18B of the Act with effect from October 1, , 1975. [However, it should be noticed that the present s. 18B of the Act formed part of s. 18 prior to 1975 and was numbered as s. 18(2A) of the Act].
6. In the case of Shankara Apaya Swami v. WTO : 103ITR649(KAR) , a learned single judge of this court had occasion to examine the scope of s. 18(2A) of the Act. It is superfluous for me mention that s. 18B of the Act is completely in pari materia with s. 18(2A) of the Act in so far as it relates to this ambit of power to be exercised by the Commissioner. It is equally significant to notice that s. 18(1)(a) of the Act provides for the WTO to exercise the power to waive or reduce the penalty for belated filing of return if reasonable cause for the delay is shown. That order passed by the assessing authority is appealable under s. 23 of the Act before the AAC. It is also subject to revision under s. 25 of the Act. Section 18B of the Act, therefore, as the marginal note itself indicates confers a special power on the Commissioner which is neither revisional nor appellate in nature. Explaining this in the aforementioned case of Shankara Apaya Swami v. WTO : 103ITR649(KAR) , Venkataramaiah J. as he then was, held as follows (p. 651) :
'It is no doubt true that in order to ensure due observance of law, section 18(1)(a) provides for the levy of a penalty of the order referred to above. At the same time section 18(2A) confers discretionary power on the Commissioner of Wealth-tax to reduce or waive the penalty, having regard to all the circumstances of the case. Such discretionary power has to be exercised in a reasonable way.
7. While determining whether the assessee is entitled to any relief under section 18(2A) the Commissioner of Wealth-tax, no doubt, has to satisfy himself that the pre-conditions mentioned in clauses (a), (b) and (c) of section 18(2A) are fulfilled by the assessee. We are concerned in these cases with the interpretation of the words 'has..... voluntarily and in good faith, made full disclosure of his net wealth....' appearing in clause (a) of section 18(2A) of the Act. The commissioner has held that 'though the returns are voluntary, they are not in good faith' on the ground that the assessee had not filed the returns in time though he was conscious of the taxability of his wealth. I am of the view that the Commissioner has wrongly applied the provisions of the Act. The words appearing in clause (a) which are extracted above do not relate to the cause for the delay in filing the return. The question whether there was reasonable cause for filing the return beyond time arises for consideration under section 18(1)(a) itself and if the authority concerned is satisfied that there was reasonable cause for the delay then there would be no occasion to levy penalty and for invoking section 18(2A). It has, therefore, to be held that the words in question relate to the return which is filed beyond time without reasonable cause. If in that return the assessee has 'voluntarily and in good faith made full disclosure of his net wealth' the condition mentioned in clause (a) stands satisfied. The expression 'voluntarily' means 'without compulsion' and 'good faith' means 'with due care and caution'. Hence, if the return filed by the assessee does not show that he has deliberately furnished wrong particulars about his wealth or deliberately omitted to include all the items of taxable wealth then he should be considered as having satisfied the above condition. In these cases, it is not suggested by the revenue that there has been any concealment of taxable wealth in the returns filed by the petitioner. On the facts and in the circumstances of the cases, I hold that the petitioner has satisfied the condition in clause (a) of section 18(2A). Hence, the orders passed by the Commissioner rejecting the application of the petitioner of the sole ground that he had not in good faith full disclosure of his net wealth, have to be set aside. They are accordingly set aside.
8. It is needless to mention that the Commissioner while exercising his discretion under section 18(2A) has to bear in mind several factory such as the gravity of the default, the loss occasioned to the revenue by the assessee not filing the return in time, and the extent of tax withheld. These factors are only illustrative but not exhaustive. Just like in criminal cases a judge while imposing a sentence on the accused who is found guilty of an offence takes into consideration several factory apart from the fact that he has committed the offence in question, the commissioner should take into consideration all other relevant factory while reducing or waiving the penalty imposed or imposable under section 18(1)(a) of the Act.' (Underlining is mine).
9. What the learned judge has explained is the special nature of power to be exercised by the Commissioner which has no relation to the offer of a reasonable cause for delay in filing the return or suppression of wealth. The special power is conferred on the Commissioner in cases where the delay in filing the return or suppression of wealth itself is for unreasonable cause. Therefore, the Commissioner is required not to look into the reasonableness of the cause offered by the assessee but to the three factory mentioned in the section itself, that is, whether the assessee had made voluntarily a full disclosure of his net wealth in good faith and thereafter cooperated with the department in competing the assessment providing for the payment of tax. If these three condition are satisfied the Commissioners has to exercise his special power in favour of the assessee either to reduce the penalty levied or completely waive it regard being had to the facts and circumstances of each case. As made clear by the learned judge in Shankara Apaya Swami's case : 103ITR649(KAR) , the Commissioner may take into consideration while exercising the discretion under s. 18B of the Act such factors as gravity of the default, the loss occasioned to the revenue by not filing the return in time or suppression of the wealth and the tax with held thereon. These factory can only be enumerated. It is not exhaustive but only illustrative. Therefore, on the facts and circumstance of each case, the Commissioner himself should direct his mind not to the reasonableness of the cause explained by the assessee but to the factors which are required to be considered by him in giving relief or refusing relief under s. 18B of the Act.
10. The decision of Venkataramiah J. in Shankara Apaya Swami's case : 103ITR649(KAR) has been followed in more than one case by this High Court and also by a Division Bench of the High Court of Andhra Pradesh in the case of Seetha Mahalakshmi Rice and Groundnut Oil Mill Contractor Co. v. CIT : 127ITR579(AP) .
11. As already pointed out, the Commissioner has proceeded on the basis of the reasonableness of the cause for delay in filing the returns which cannot be sustained. Therefore, the Commissioner's order is set aside and the matter is remitted to the Commissioner to dispose of the matter under s. 18B of the Act bearing in mind the observations made in the course of this order.
12. There will be no order as to costs.