SOHANI J. - This order shall also govern the disposal of M. C.Cs. Nos. 85 and 86, both of 1979.
These are applications under. 27(3) of the W.T. Act, 1957, hereinafter called the Act.
The material facts giving rise to these applications briefly are as follows : For the assessments years 1964-65 to 1966-67, the assessee, Guljarilal Maniram, failed to filed returns in time under the provisions of the Act, and notices under s. 18(1)(a) of the Act were accordingly issued to the assessee to show cause why penalty should not be levied for delay in filing the returns. The WTO held that the assessee failed to show any reasonable cause for delay in filing the returns. The WTO, accordingly, levied penalty. Aggrieved by the orders passed by the WTO, appeals were preferred before the AAC. The AAC held that as the default on the part of the assessee took place before the amendment to s. 18(1)(a) came into force with effect from April 1, 1969, penalty was leviable in accordance with the unamended provisions of s. 18(1)(a) of the Act. The appeals were, accordingly, partly allowed. Aggrieved by that order, the department preferred appeals before the Tribunal. The Tribunal dismissed the appeals. Aggrieved by the order passed by the Tribunal, the Department submitted applications for making a reference to this court. The Tribunal rejected the applications. The department has, therefore, filed these applications.
Shri Bagadiya, learned counsel for the department, contended that the question as to whether the Tribunal was justified in holding that penalty under s. 18(1)(a) of the Act was leviable in accordance with the provisions of s. 18(1)(a) of the Act, as they stood prior to their amendment with effect from April 1, 1969, is a question of law and Tribunal erred in rejecting the applications for making a reference. Learned counsel for the non-applicant contended that the assessee died on September 28, 1972, and the reference applications before the department were filed against a dead person. An application filed by the department for bringing on record the name of the non-applicant as legal representative of the deceased assessee was rejected by the Tribunal. However, we find that in the appeal preferred before the AAC on behalf of the assessee, the fact that the assessee was dead was not mentioned even though the appeal were filed after the death of the assessee. Similarly, the question as to whether the penalty proceedings could continue against the legal representative of the assessee was also not raised before the AAC and was not allowed to be raised before the Tribunal. The non-applicant has not sought any reference on that question. In these circumstances, the contention urged on behalf of the Department that a question of law does arise deserves to be upheld. We, therefore, direct the Tribunal to state the case and refer the following question of law to this court for its opinion :
'Whether, on the facts and in the circumstances of the case. The Tribunal was justified in law in holding that penalty under s. 18(1)(a) of the W.T. Act, 1957, was leviable in accordance with the provisions of s. 18(1)(a) of the Act, as they stood prior to the amendment of s. 18(1)(a) of the Act which came into force from April 1, 1969 ?'
The applications are, therefore, allowed and the Tribunal is directed to state the case and refer the aforesaid question of law to this court for its opinion. Parties shall bear their own costs of these applications.