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Wealth-tax Officer Vs. Gopalji Jagmal - Court Judgment

LegalCrystal Citation
CourtIncome Tax Appellate Tribunal ITAT Mumbai
Decided On
Judge
Reported in(1985)12ITD346(Mum.)
AppellantWealth-tax Officer
RespondentGopalji Jagmal
Excerpt:
.....there was no legal bar in initiating proceedings for levy of penalty under section 15b against the legal representative of the deceased, shri gopalji jagmal, and as such the order of the aac was erroneous. the learned counsel for the assessee, on the other hand, relied on the decision of the allahabad high court referred to above. his submission was that initiation of proceeding for levy of penalty under section 15b, after the death of shri gopalji jagmal, was illegal. in the alternative, his submission was that this was a fit case where discretion of not levying penalty should be exercised in favour of the assessee. the facts on which he relied are financial stringency suffered by shri gopalji jagmal at the relevant time and dropping of proceedings under section 140a(3) by the.....
Judgment:
1. This appeal by the department relates to the assessment year 1975-76. The original assessee was Shri Gopalji Jagmal. He filed return of wealth-tax on 24-2-1976. He ought to have filed the same on 31-7-1975. He had not paid self-assessment tax before filing of the return as required by Section 15B(1) of the Wealth-tax Act, 1957 ('the Act'). Section 15B(3) lays down that if any assessee fails to pay the tax in accordance with the provisions of Sub-section (1), the WTO may impose penalty for every month during which the default continues.

However, the proviso to Sub-section (3) lays down that before levying such penalty, the assessee shall be given a reasonable opportunity of being heard. Shri Gopalji Jagmal died on 11-7-1978. Before his death, no proceeding for levy of penalty under Section 15B(3) had been initiated. On 22-3-1980, the WTO issued a notice in the name of Shri Gopalji Jagmal, to show cause why the penalty under Section 15B should not be levied. As already stated, Shri Gopalji Jagmal had died long before the date of issue of the said notice. Consequently, the executrix of his will, Smt. Dhangauri Gopalji, sent a reply on 18-4-1980. In this reply, she submitted that the proceedings under Section 15B for levy of penalty could not be initiated against Shri Gopalji Jagmal after his death. And as such, the said proceeding was bad in law. She further pleaded that there was sufficient cause for non-payment of self-assessment tax by Shri Gopalji Jagmal, inasmuch as he was in extreme financial difficulty at the relevant time. There was a further submission that proceeding under Section 140A(3) of the Income-tax Act, 1961, for non-payment of self-assessment tax had been dropped, and since the facts were identical, proceedings under Section 15B should also be dropped. The WTO held that proceeding for levy of penalty could be initiated against Smt. Dhangauri Gopalji, the executrix of the will of the deceased Shri Gopalji Jagmal. He was of the further view that he had no discretion in the matter and that the penalty was required to be imposed when a default was found to have been committed. He, therefore, did not enquire into the sufficiency of reasons for not paying the self-assessment tax.

2. In the appeal filed by Smt. Dhangauri Gopalji, the executrix of the will of the deceased Shri Gopalji Jagmal, the AAC relied on the decision of the Allahabad High Court in Rameshwar Prasad v. CWT [1980] 124 ITR 77 and held that after the death of Shri Gopalji Jagmal, no proceeding for levy of penalty under Section 15B could be initiated.

He, accordingly, cancelled the order of penalty. The department has now come up in appeal before us.

3. The contention, on behalf of the department, is that there was no legal bar in initiating proceedings for levy of penalty under Section 15B against the legal representative of the deceased, Shri Gopalji Jagmal, and as such the order of the AAC was erroneous. The learned Counsel for the assessee, on the other hand, relied on the decision of the Allahabad High Court referred to above. His submission was that initiation of proceeding for levy of penalty under Section 15B, after the death of Shri Gopalji Jagmal, was illegal. In the alternative, his submission was that this was a fit case where discretion of not levying penalty should be exercised in favour of the assessee. The facts on which he relied are financial stringency suffered by Shri Gopalji Jagmal at the relevant time and dropping of proceedings under Section 140A(3) by the department on identical facts. There was a further submission that since the assessment itself has been set aside by the Tribunal in the second appeal against the assessment order, the order of penalty cannot survive.

4. We have considered the rival submissions and facts on record. We have already referred to the provisions of Section 15B(1) and 15B(3).

It is clear from those provisions that proceedings for levy of penalty under Section 15B(3) would have been validly initiated against Shri Gopalji Jagmal during his lifetime inasmuch as he was the assessee, who had failed to pay the tax as required by Sub-section (1) of Section 15B. However, no proceedings for penalty were initiated during his lifetime. The question is, whether such proceedings could be initiated after his death. It is to be noted that the notice dated 22-3-1980, by which the proceedings have been initiated, is addressed to Shri Gopalji Jagmal although he had died long before and that fact was within the knowledge of the WTO. The said notice was obviously bad in law. On the basis of that notice, no valid proceedings for levy of penalty under Section 15B would have been initiated. We shall, however, ignore the illegality in the issue of initial notice. Smt. Dhangauri Gopalji, the executrix of the will of the deceased, had filed a reply to the said notice. We shall, therefore, assume that she had waived the notice and that she had constructively received the same. The crucial question is, whether proceedings for levy of penalty could be initiated against her.

5. Section 19 of the Act contains the provision regarding liabilities of the legal representative of the deceased assessee. The executrix of the will of a deceased would also come under that category. Section 19(1) fastens liability on the executrix of the will of the assessee to pay out of the estate of the deceased person, to the extent to which the estate is capable of meeting the charge, any sum which would have been payable by the deceased under this Act if he had not died. This provision envisages that before the death of the deceased, a sum was outstanding against him in pursuance of an order passed under the Act.

In the present case, as already stated, no order levying penalty had been passed against the deceased during his lifetime. Consequently, no sum was payable by him. Section 19(1), therefore, does not authorise the WTO to initiate proceedings for levy of penalty under Section 15B(3) against the legal representative of the assessee. Another relevant provision is Section 19(3). It is mentioned therein that provisions of Sections 14, 15 and 17 of the Act shall apply to an executor, administrator or other legal representative, as they apply to any person referred to in those sections. Section 15B is a section independent of Section 15. Section 15B is not mentioned in Section 19(3). Consequently, provisions of Section 15B would not become applicable to the legal representative by virtue of the provisions in Section 19(3). Our attention was not drawn to any other provision in the Act, which expressly states that proceedings for levy of penalty in respect of defaults committed by the deceased in payment of self-assessment tax, could be initiated against the legal representative. It is a well, settled principle that provisions regarding levy of penalty have to be construed strictly. No penalty can be levied on any person, unless there is a clear provision for such levy in the Act. We do not find any such provision for levy of penalty on legal representative of the deceased, in respect of default committed by the deceased, in payment of self-assessment tax.

6. The decision of the Allahabad High Court in Rameshwar Prasad's case (supra) is relevant in deciding the question before us. The question for determination in that case was whether proceeding for levy of penalty under Section 18(1) of the Act, for late filing of the return by the deceased assessee, could be initiated against his legal representative. The High Court considered the provisions of Section 19(1) and 19(3). The High Court observed that Section 19(1) was confined to liability to pay any sum, which would have been payable by the deceased if he had not died. That provision, by itself, does not create on the legal representative liability to pay that which was non-existent till the date of death of the deceased. In other words, if an order creating liability to pay under the Act had not been created till the death of the original assessee, Section 19(1) did not authorise creation of liability to pay on the legal representative. The High Court also considered the provisions of Section 19(3) and found that omission to mention Section 18 in Section 19(3) was significant and that the said omission indicated that penalty proceedings under Section 18 could not be initiated against a legal representative. The same principle would apply to initiation of proceedings under Section 15B. The ratio of this decision supports the view, which we have taken.

Similar view has been taken by the Andhra Pradesh High Court in the case of Smt. Yawarunnissa Begum v. WTO [1975] 100 ITR 645.

7. It was contended on behalf of the department that on the basis of the view which we have taken, the legal representative of the assessee would not be entitled to obtain refund under Section 15C(2) of the Act, because of the fact that Section 15C had not been specifically mentioned in Section 19(3) as one of the provisions applicable to the legal representative. This result, according to the learned departmental representative, would be quite unreasonable and an interpretation which would lead to unreasonable result, should not be accepted. We are unable to agree with this contention of the department. The question of refund under Section 15C(2) would arise only after a regular assessment has been made and by virtue of the provisions in Section 19, the legal representative would be deemed to be the assessee after the death of the deceased. In that capacity, the legal representative would be entitled to obtain refund of the amount.

As far as the proceedings for initiation of penalty are concerned, it stands altogether on a different footing. As already stated, such proceedings cannot be initiated unless there are express provision in the Act. For the reasons given above, we hold that initiation of proceeding for levy of penalty under Section 15B against Smt. Dhangauri Gopalji, the executrix of the will of the deceased Shri Gopalji Jagmal, was, in the circumstances, bad in law and as such, the order levying penalty was rightly cancelled.

8. In the context of the view, which we have taken, it is not necessary for us to consider the other submissions made on behalf of the assessee.

9. Before parting with this appeal, we may mention that during the pendency of this appeal, the department had raised a preliminary objection to the effect that entertainment of appeal by the Commissioner of Income-tax (Appeals) was bad in law, inasmuch as the memorandum of appeal had been signed, verified and presented by Smt.

Dhangauri Gopalji, executrix of the will of the deceased, and not by the legal heir of the deceased. Similar objection had been raised on behalf of the department in WT Appeal Nos. 2380 and 238 i (Bom.) of 1982 [assessment year 1975-76], and was rejected by the Tribunal on the ground that the executrix of the will of the deceased would be the legal representative of the deceased. It was she, who contested the penalty proceedings. In the circumstances, she had the right to file the appeal and the objection raised by the department is unsustainable.


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