Satish Chandra, J. - The Tribunal set aside the provisional assessment on the footing that a substantive assessment has already been made on the assessee in his individual capacity. This was as a result of the finding by the Tribunal on the income tax side that the waqf was not genuine and the income was assessable in the hands of the owner of the property. The same view has been taken by the Tribunal on the wealth tax side. Learned counsel has urged that Mushtaq Ali Khan has not accepted the Tribunals order on the income tax side because he has filed an appeal on the wealth tax side and on the wealth tax side the question whether the waqf genuine is still pending for decision before the Tribunal.
Be that as it may, the view of the Tribunal that since a substantive assessment has been passed under the Wealth Tax Act, the provisional assessment could not be sustained, is eminently justified. In case the appeal of Mushtaq Ali Khan succeeds with the result that the finding originally arrived at that the waqf was not genuine is reversed, it will be open to the Department to apply to this Court for the recall of this order and hearing of these applications on merits.
2. Subject to these observations, the application is dismissed. But since no one appeared for the assessee, there will be no order as to costs.