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Ghulam Mohd. Sheikh Vs. Commissioner of Wealth-tax - Court Judgment

LegalCrystal Citation
SubjectDirect Taxation
CourtJammu and Kashmir High Court
Decided On
Case NumberWrit Petition No. 1 of 1976
Judge
ActsWealth Tax Act, 1957 - Section 18(2A)
AppellantGhulam Mohd. Sheikh
RespondentCommissioner of Wealth-tax
Appellant Advocate R.N. Kaul and; M.A. Bakshi, Advs.
Respondent Advocate J.N. Bhan, Adv.
Excerpt:
- .....the provisions of section 14(1) of the act which impose an obligation on such a person to file the return voluntarily. on the failure of the person concerned to file the return voluntarily under section 14(1) of the act within the time prescribed or after the receipt of notice under section 14(2) of the act, penalty proceedings are liable to be initiated and penalty imposed for the failure to furnish the return within time under section 14(1) of the act or for failure to comply with the notice under section 14(2) of the act. after the imposition of the penalty, it is provided that the aggrieved party can file a petition under section 18(2a) of the act for waiver of the penalty. section 18(2a) of the act provides thus :'(2a) notwithstanding anything contained in clause (i) or clause (iii).....
Judgment:

Adarsh Sein Anand, J.

1. The short point which requires consideration in this writ petition is whether the provisions of Section 18(2A) of the Wealth-tax Act, 1957, cover cases of all assessees or only new assessees.

2. Shorn of details, the admitted facts in the case are that the petitioner filed his return for the assessment years 1967-68 and 1968-69 voluntarily and he was assessed to wealth-tax. For the years 1969-70 and 1970-71, the petitioner filed the returns voluntarily but not within the prescribed time. The return for the year 1969-70 was filed after the expiry of 20 months, while the return for the year 1970-71 was filed after the expiry of 13 months. Because of the late filing of the returns, penalty proceedings were started against the petitioner, and respondent No. 2 imposed penalty on the petitioner under Section 18(1)(a) of the Wealth-tax Act, 1957. Aggrieved against the imposition of penalty, the petitioner filed a petition under Section 18(2A) of the Wealth-tax Act, 1957, before respondent No. 1. On 7th February, 1975, the following order was passed by respondent No. 1.

'Order under Section 18(2A) of the Wealth-tax Act, 1957.

The petition under Section 18(2A) has been filed in this case for the assessment years 1969-70 and 1970-71. It is observed that assessment for the years 1967-68 and 1968-69 has already been made in this case on January 15, 1970, on the basis of certain voluntary returns filed by the assessee. The assessee was thus an existing assessee when the returns for the years 1969-70 and 1970-71 were filed on August 9, 1971. The provisions of Section 18(2A) do not cover cases wherein returns under Section 14(1) are filed late by existing assessees and, therefore, the penalty imposable under Section 18(1)(a) cannot be waived. The petition is accordingly dismissed.'

3. Aggrieved against this order, the petitioner has come to this court by means of this writ petition seeking for the quashing of the said order.

4. The main argument of Mr. Bakshi, the learned counsel for the petitioner, is based on the interpretation of Section 18(2A) of the Wealth-tax Act. Contends the learned counsel, that the view of respondent No. 1, that the provisions of Section 18(2A) are attracted only to cases of fresh assessees and do not apply to the existing assessees is not borne out by the provisions of Section 18(2A) of the Wealth-tax Act, and by so holding, respondent No. 1 has failed to exercise the jurisdiction vested in him by law resulting in manifest injustice to the petitioner.

5. Mr. Bhan, the learned counsel for the respondent, has on the other hand submitted that Section 18(2A) of the Wealth-tax Act applies to fresh assessees and not to the existing assessees, who are under an obligation to file the returns. It is asserted that since the petitioner is admittedly adefaulter, no manifest injustice has been done to him by the impugned order.

6. I have given my anxious consideration to the divergent contentions raised at the bar.

7. With a view to resolve the controversy, it is necessary to understandthe working of the Wealth-tax Act, 1957 (hereinafter called 'the Act'). Under the Act, every person whose wealth in a particular year exceeds the taxable limit, is obliged to pay wealth-tax. Section 14(1) of the Act provides that such a person, whose wealth is liable to be taxed, must file a return within the prescribed time. Under Section 14(2) of the Act, the Wealth-tax Officer has been invested with the power to issue notices to any person about whom he has reasons to believe that he is liable to pay tax under the Act, notwithstanding the provisions of Section 14(1) of the Act which impose an obligation on such a person to file the return voluntarily. On the failure of the person concerned to file the return voluntarily under Section 14(1) of the Act within the time prescribed or after the receipt of notice under Section 14(2) of the Act, penalty proceedings are liable to be initiated and penalty imposed for the failure to furnish the return within time under Section 14(1) of the Act or for failure to comply with the notice under Section 14(2) of the Act. After the imposition of the penalty, it is provided that the aggrieved party can file a petition under Section 18(2A) of the Act for waiver of the penalty. Section 18(2A) of the Act provides thus :

'(2A) Notwithstanding anything contained in Clause (i) or Clause (iii) of Sub-section (1), the Commissioner may, in his discretion,--

(i) reduce or waive the amount of minimum penalty imposable on a person under Clause (i) of Sub-section (1) for failure, without reasonable cause, to furnish the return of net wealth which such person was required to furnish under Sub-section (1) of Section 14, or

(ii) reduce or waive the amount of minimum penalty imposable on a person under Clause (iii) of Sub-section (1), if he is satisfied that such person-

(a) in the case referred to in Clause (i) of this sub-section has, prior tothe issue of notice to him under Sub-section (2) of Section 14, voluntarily andin good faith, made full disclosure of his net wealth; and in the case referredto in Clause (ii) of this sub-section has, prior to the detection by the Wealth-tax Officer of the concealment of particulars of assets or of the inaccuracyof particulars furnished in respect of the assets or debts in respect of whichthe penalty is imposable, voluntarily and in good faith, made full and truedisclosure of such particulars ;

(b) has co-operated in any enquiry relating to the assessment of thewealth represented by such assets; and

(c) has either paid or made satisfactory arrangements for payment of any tax or interest payable in consequence of an order passed under this Act in respect of the relevant assessment year.'

8. A bare reading of the above referred to Section 18(2A) of the Act makes it clear that the conditions which are required to be satisfied for waiving the penalty for the late submission of returns have been given by the legislature in the section itself. Those conditions are contained in Clauses (a), (b) and (c) of Section 18(2A)(supra). If the competent authority is satisfied that the conditions contained in Clauses (a), (b) and (c) have been complied with, he is under the statutory obligation to exercise his discretion in accordance with the provisions of Section 18(2A)(i) of the Act. There is no other condition envisaged under the Act which has to be satisfied so as to enable the authority to exercise the discretion under Section 18(2A) of the Act. There is, therefore, no warrant for saying that the power for waiver of penalty would be exercisable only in cases where the assessee is a fresh assessee and not where he is an existing assessee. The only grounds on which the discretion may be refused under Section 18(2A) of the Act are the grounds contained in Clauses (a), (b) and (c) read with Clause (i) of the said section. Had the legislature intended that the waiver of penalty for late submission of returns was to apply only to fresh assessees, I do not see why it could not have said so in the statute expressly. Restricting the grant of benefits under a taxing statute in the absence of any express restriction in the taxing statute itself is not desirable. It is settled law that a taxing statute has to be strictly construed and the benefit of any ambiguity must go to the assessee and not to the department. Since the interpretation put by respondent No. 1 is not borne out from the provisions of Section 18(2A) of the Act, I am of the view that placing of such a restriction, as has been done by respondent No. 1, would be doing violence to the language of Section 18(2A) of the Act and would be importing something into the section which the legislature never intended. Such a restriction cannot be read into the proviso to Section 18(2A) of the Act by any stretch of imagination. Apart from the phraseology of Section 18(2A) of the Act, the restriction which has been created by respondent No. 1 to the exercise of his power does not appeal even to commonsense, for the simple reason that where a person files the return voluntarily under Section 14(1) of the Act, it matters little whether he is filing the return for the first time or not so as to be entitled to receive the benefit under Section 18(2A) of the Act. It is for this reason that the benefit under Section 18(2A) has been made applicable only to such person who files the returns voluntarily and not to those persons who file the same under Section 14(2) of the Act. Since the legislature did not want to extend the benefit under Section 18(2A) of the Act to persons who do not file returns voluntarily under Section 14(1) of the Act, it stated so by omittingSection 14(2) from Clause (i) of Section 18(2A) of the Act. The legislature in its supreme wisdom did not create any classification of 'existing assessees' and 'fresh assessees' under Clause (i) of Section 18(2A) and provided for the giving of benefit to 'old assessees' who file returns under Section 14(1) of the Act if the conditions given in Clauses (a), (b) and (c) were satisfied and the creation of the new classification by respondent No. 1 is wholly unjustified and against the provisions of the statute.

9. In view of the above discussion, I would hold that respondent No. 1 was not justified in refusing to C9nsider the petition filed by the petitioner under Section 18(2A) of the Wealth-tax Act on merits on the ground that the said provisions were not attracted to cases of existing assessees. I would, therefore, quash the order passed by respondent No. 1 dated February 7, 1975, and direct that respondent No. 1 shall decide the petition filed by the petitioner under Section 18(2A) of the Wealth-tax Act on merits. Respondent No. 1 shall expeditiously dispose of the petition and, as far as possible, within four months from the date of this order. There shall, however, be no order as to costs.


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