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Shiv NaraIn Dhabhai Vs. Commissioner of Wealth-tax and anr. - Court Judgment

LegalCrystal Citation
SubjectDirect Taxation
CourtRajasthan High Court
Decided On
Case NumberD.B. Civil Writ Petition No. 470 of 1979
Judge
Reported in(1980)15CTR(Raj)14; [1980]121ITR224(Raj)
ActsWealth Tax Act, 1957 - Sections 18B
AppellantShiv NaraIn Dhabhai
RespondentCommissioner of Wealth-tax and anr.
Appellant Advocate Rajesh Balia, Adv.
Respondent Advocate Lekh Raj Mehta and; Rajendra Mehta, Advs.
Excerpt:
.....for the following reasons :(1) for the assessment years 1968-69 to 1971-72: the disclosure of net wealth by the assessee is neither voluntary nor full and true. cit [1974]95itr435(kar) .6. it may be noticed that under section 18b of the act, the commissioner has been given discretion to reduce or waive the amount of penalty imposed or imposable on a person if he is satisfied that such person in the case referred to in clause (i) of sub-section (1) (which is relevant for our purposes) has, prior to the issue of a notice to him under sub-section (2) of section 14 voluntarily and in good faith, made full and true disclosure of his net wealth. then again, it is important to bear in mind that the commissioner is required to record a finding whether the assessee had voluntarily and in good..........of his net wealth. we may, at this stage, observe that no facts or figures have been given by the learned commissioner in support of his finding that the disclosure of net wealth by the assessee is neither voluntary nor full and true. we are constrained to observe that the finding is very cryptic and since it is open to scrutiny by the court, a speaking order giving reasons should have been passed.8. as regards the necessity of personal hearing, it was held in indian telephone industries co-operative society's case : [1972]86itr566(kar) that the nature of the power conferred on the commissioner under section 271(4a) of the i.t. act, 1961 (now equivalent to section 273a of the act of 1961) is not in the nature of quasi-judicial power and, therefore, he is not required to give an oral.....
Judgment:

C.M. Lodha, C.J.

1. This writ petition under Article 226 of the Constitution of India is directed against the order of the CWT, Jodhpur, dated January 11, 1979 (marked Ex. 14), whereby the Commissioner rejected the petitioner's application under Section 18B of the Wealth-tax Act, 1957 (which will hereinafter be referred to as ' the Act').

2. The assessment years under consideration are 1968-69 to 1974-75. The assessee made an application on December 18, 1976, under Section 18B of the Act praying for waiver of penalty in respect of the assessment years referred to above. The Commissioner passed a brief order on this application rejecting the same. The learned counsel for the petitioner has urged the following three points in support of this petition :

(i) that no opportunity of personal hearing was afforded to the petitioner before passing the impugned order;

(ii) that the impugned order is not a speaking order and no reasons have been recorded in support of the conclusion arrived at by the Commissioner; and

(iii) that there is a mistake apparent on the face of the record inasmuch as demand for the assessment years 1972-73 to 1974-75 had been paid, yet the Commissioner has observed that the demand has not been paid.

3. The petition has been opposed on behalf of the CWT,

4. In order to appreciate the points canvassed by the learned counsel for the petitioner, it would be useful to reproduce here the relevant portion of the impugned order.

' 1.......

2. On going through the records of the case, it is found that the conditions laid down under Section 18B of the Act are not satisfied in this case for the following reasons :

(1) For the assessment years 1968-69 to 1971-72:

The disclosure of net wealth by the assessee is neither voluntary nor full and true. (2) For the assessment years 1972-73 to 1974-75 :

(i) The disclosure of net wealth is not full and true; and

(ii) Demand has not been paid.

Therefore, the assessee's application is rejected.'

5. On a bare perusal of the impugned order, it is crystal clear that the order is miserably brief and no reasons whatsoever have been recorded therein. Learned counsel for the revenue, however, contended that the order under Section 18B is an administrative order and, therefore, it was not obligatory for the Commissioner to grant a personal hearing to the assessee. In support of his contention, the learned counsel has relied upon the decision in Indian Telephone Industries Co-operative Society Ltd. v. ITO : [1972]86ITR566(KAR) and Mool Chand Mahesh Chand v. CIT : [1978]115ITR1(All) . On the other hand, the learned counsel for the petitioner has urged that the Commissioner is deemed to be a quasi-judicial tribunal for the purpose of deciding an application under Section 18B and, therefore, he is bound to follow the principles of natural justice and should judicially review the entire material before him and exercise his discretion judicially. In support of this contention, reliance has been placed by the learned counsel on K. C. Vedadri v. CIT : [1973]87ITR76(Mad) and Rasiklal Ranchhodbhai Patel v. CWT [1980] 121 ITR 219 and S. Sannaiah v. CIT : [1974]95ITR435(KAR) .

6. It may be noticed that under Section 18B of the Act, the Commissioner has been given discretion to reduce or waive the amount of penalty imposed or imposable on a person if he is satisfied that such person in the case referred to in Clause (i) of Sub-section (1) (which is relevant for our purposes) has, prior to the issue of a notice to him under Sub-section (2) of Section 14 voluntarily and in good faith, made full and true disclosure of his net wealth. The Explanation appended to Sub-section (1) further provides that for the purposes of this sub-section, a person shall be deemed to have made full and true disclosure of particulars of his assets or debts in any case where the excess of net wealth assessed over the net wealth returned, is of such a nature as not to attract the provisions of Clause (c) of Sub-section (1) of Section 18.

7. The present is a case where the return has been filed late and is, therefore, covered by Clause (i) of Sub-section (1) of Section 18B. It is submitted on behalf of the assessee that, in the first place, there is an error in the statement of facts by the Commissioner inasmuch as for the assessment years 1972-73 to 1974-75, the demand, as created, had been paid up on October 3, 1978, prior to the passing of the impugned order. Consequently, one of the reasons given in the impugned order for rejecting the application in respect of the assessment years from 1972-73 to 1974-75 in fact did not exist, and, therefore, the order in respect of these assessment years is vitiated as it is not possible to say what view the Commissioner would have taken if he had known that the demand had been paid up. Then again, it is important to bear in mind that the Commissioner is required to record a finding whether the assessee had voluntarily and in good faith made full and true disclosure of his net wealth. We may, at this stage, observe that no facts or figures have been given by the learned Commissioner in support of his finding that the disclosure of net wealth by the assessee is neither voluntary nor full and true. We are constrained to observe that the finding is very cryptic and since it is open to scrutiny by the court, a speaking order giving reasons should have been passed.

8. As regards the necessity of personal hearing, it was held in Indian Telephone Industries Co-operative Society's case : [1972]86ITR566(KAR) that the nature of the power conferred on the Commissioner under Section 271(4A) of the I.T. Act, 1961 (now equivalent to Section 273A of the Act of 1961) is not in the nature of quasi-judicial power and, therefore, he is not required to give an oral hearing. In Mool Chand's case : [1978]115ITR1(All) a Division Bench of the Allahabad High Court held that there is nothing in Section 273A of the I.T. Act (which is in pari materia with Section 18B of the W.T. Act), requiring the Commissioner to give an oral hearing before deciding the application. It was observed that the requirement of giving a hearing flows from the principle of fairness which has to be observed in administrative as well as quasi-judicial proceedings. 'Normally', observed the learned judges, 'hearing means oral hearing at which the party may be legally represented. But, in a suitable case, the hearing may be held on paper by permitting the person concerned to make his representation and the arguments in writing. A personal hearing is not always a concomitant of the principles of natural justice.'

9. It is true that there is no provision for personal hearing on an application under Section 188 and it would, therefore, naturally depend upon the facts and circumstances of each case whether a personal hearing should be granted or the assessee should be given a notice to explain certain points which may arise in the case and which may not have been clarified in the application itself. But the fact remains that the order contemplated under Section 18B is a quasi-judicial order and, therefore, it must be supported by reasons. It is also necessary that the principle of audi alterant partem should be applied before passing the order as the Commissioner acts in a quasi-judicial manner. No doubt, discretion has been vested in him to reduce or waive the amount of penalty imposed or imposable, but the discretion must be exercised judiciously and not arbitrarily. In S. Sannaiah's case : [1974]95ITR435(KAR) it was observed that the order of refusal to exercise the discretion should be a speaking order as the same is open to scrutiny by the court. In our opinion, it is clear from the language of the section itself that if the conditions laid down therein are satisfied, the Commissioner cannot refuse to reduce or waive the amount of penalty imposable as he is under a statutory duty to exercise his discretion in favour of the assessee, if the conditions are satisfied. In Rasiklal's case [1980] 121 ITR 219 a Division Bench of the Gujarat High Court held, in the facts and circumstances of the case, that since the rule of audi alteram partem had been breached by the failure to supply the reasons in the Commissioner's order, the order must be struck down.

10. Having given our careful consideration to the matter, we have come to the conclusion that the assessee in the present case was not given full opportunity to represent his case. The order also suffers from mis-statement of facts as pointed out above. The order is bad also because it does not record the reasons in support of the conclusion arrived at by the authority. In this view of the matter, the impugned order cannot be sustained in law.

11. In the result, we allow the writ petition, set aside the impugned order and direct the Commissioner to decide the application afresh on the lines indicated above. In the circumstances, the parties are left to bear their own costs.


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