COMMISSIONER OF WEALTH TAX VS KA KROM RAPSANG JAIAW LANGSNING, 1992 PTD-GAUHATI-HIGH-COURT-INDIA 1525 (1991)

Wealth tax---

----Reference---Penalty---Concealment of wealth---Question whether there has been concealment of wealth---Question of fact

The question whether there was any concealment of wealth is a question of fact. Therefore, the question whether the conclusion arrived at by the Appellate Tribunal that there was no concealment of wealth was sustainable in law is not a question of law fit for reference to the High Court under S. 27(1) of the Indian Wealth Tax Act, 1957.

CIT v. Ashoka Marketing Ltd. (1976) 103 ITR 543 (SC); CIT v. Basanta Kumar Agarwall (1983) 140 ITR (Gauhati); CIT v. Hanumanbux Inderchand (1980) 125 ITR 248 (Gaulhati) and Sree Meenakshi Mills Ltd. v. CIT (1957) 31 ITR 28 (SC) ref.

D.K. Talukdar and B. J. Talukdar for Petitioner.

None appeared for Respondent.

JUDGMENT

J.M. SRIVASTAVA, J: --By this petition under section 27(3) of the Wealth Tax Act, 1957, hereinafter to as the "Act", the Commissioner of Wealth-tax, North Eastern Region, Shillong, hereinafter referred to as the "Commissioner" seeks a direction to the Income-tax Appellate Tribunal, Gauhati Bench, Gauhati, hereinafter referred to as the "Tribunal", to submit a statement of case on the question of law formulated in paragraph 6 of the petition to this Court for decision.

The respondent, hereinafter referred to as the assessee, had submitted returns of net wealth for the assessment years 1979-80, 1980-81, 1981-82, 1982-83, 1983-84 and 1984-85. The Wealth Tax Officer, during-the course of assessment, found that the assessee had not disclosed her properties at Shillong and at Jaiaw. The Wealth Tax Officer initiated penalty proceedings and imposed penalty under section 18(1)(c) of the Act for each assessment year. The assessee preferred appeals against the said orders which were dismissed by the Commissioner of Wealth-tax (Appeals) by order dated December 7, 1988. The assessee preferred second appeals before the Tribunal. The Tribunal, by its consolidated order dated March 29, 1990, held that the assessee had not concealed any particulars and as such she was not liable to penalty. Accordingly, the Tribunal set aside the order of penalty. The petitioner, dissatisfied, filed a petition under section 27(1) of the Act before the Tribunal to draw up a statement of case and refer the following questions of law to this Court.

"(1) Whether, the Tribunal's order cancelling the penalty imposed under section 18(1)(c) is sustainable in law especially in view of its finding of facts recorded at paragraphs 17, 21 and 22 of its orders?

(2) Whether the conclusion arrived at by the Tribunal that there was no concealment of particulars in the present case as it did not find any material even to infer that the assessee has deliberately or mala fide declined to include such items of assets in her wealth-tax return, is not contrary to its finding of facts recorded at paragraphs 17, 21 and 22 and therefore, sustainable in law?"

The Tribunal by its order dated October 26, 1990, declined to make a reference which was communicated to the petitioner on November 8, 1990. Hence, this petition.

Sri D.K. Talukdar, learned counsel for the petitioner, has submitted that the fact was not disputed by the assessee that in her returns of net wealth she had not included the properties at Shillong and at Jaiwa and the assessment of tax on the aforesaid properties had also not been challenged. Shri Talukdar has strenuously urged that consequently, the view taken by the Tribunal that there was no concealment of income was not correct and, in view of its own finding that the assessee had not included the aforesaid properties in her return of net wealth, it was a question of law and as such the Tribunal was in error in having declined to make the reference.

The respondent assessee did not appear before us.

We have considered the submissions on behalf of the Revenue and the order dated October 26, 1990, passed by the Tribunal.

Section 27(1) of the Act stipulates reference of a question of law arising out of the order to the High Court and, accordingly, the question which arises for consideration is whether, on the facts stated, the view taken by the Tribunal that there was no concealment of property involved in the case was a question of law.

On a careful consideration of the matter, we are unable to take the view that the finding of the Tribunal that there was no concealment of wealth in the returns filed by the assessee involved any question of law. The finding that there was no concealment of property was clearly a finding of fact and did not involve any question of law and as such the view taken by the Tribunal cannot be said to be erroneous or unsustainable in law. The fact that it was accepted that some property at Shillong and Jaiaw have not been mentioned in the return of net wealth and that the assessee's version in that regard had not been accepted does not lead to the further necessary conclusion that there was concealment of wealth. In any case, the question whether there was concealment or not was only a simple question of fact and not of law.

In CIT v. Basanta Kumar Agarwalla (1983) 140 ITR 418, this Court, with reference to section 256(2) of the Income Tax Act which is similar to section 27(1) of the Act, observed that (at page 421).

"Although section 256(2) has been couched in a mandatory form to indicate as if the Tribunal were obliged to refer any question of law arising out of such order, it does not mean that the Tribunal is bound to refer a case in which it has merely referred to certain provisions of law and determined the point on the basis of the said provisions. In our opinion, a `point of law' cannot be equated with the expression `question of law'. The question must be a disputed or disputable question of law. The object of a reference is to get a decision from the High Court on a problematic or debatable question and not an obvious and simple point of law, although somehow the determination is somewhere linked up with a provision of law. The meaning of the term `question', in the context, means a subject or point of investigation, examination or debate a problem, as a delicate or doubtful question. In our opinion, the Tribunal is obliged to refer only a question of law which calls for investigation, examination, debate or when it is a dubious problem. However, if a point of law decided by the Tribunal is positive, certain definite and sure, there is no obligation on the part of the Tribunal to refer the matter, as the point cannot be termed as a question of law. When a decision is apparently correct and there is no scope for any debate or dispute or difference, it does not fall within the expression `a question of law', it may be stated as `an obvious conclusion reached'. It is not every point of law that is required to be referred by the Tribunal to the High Court. When an answer to the question is simple, obvious and self-evident, it cannot be termed as a question of law and the Tribunal is not bound to refer such a question."

In CIT 'v. Hanumanbux Inderchand (1980) 125 I T R 248, this Court, with reference to a matter under the Income Tax Act, held (at p.255):

"The elaborate discussion of the order of the Tribunal makes it clear that all the relevant materials, which had been referred to it, have been taken into account; it has not omitted to consider any material fact or any material piece of evidence. In our view, it cannot be said that the finding of the Tribunal is such as cannot be reasonably reached. As has been held by the Supreme Court in Sree Meenakshi Mills Ltd. v. C.I.T. (1957) 31 1 T R 28, such a finding as to whether the assessee carried on cloth business benami is a finding of fact: the determination of such a fact does not involve the application of and legal principle to the facts established by the evidence, and where the finding is one of fact, the fact that it is an inference from other basic facts does not alter its character as one .of fact."

In CIT v. Ashoka Marketing Ltd. (1976) 103 I T R 54, the Supreme Court held (at page 547):

"Whether or not an assessee has concealed its income is a question to be decided on the facts of n case, and in the present case the decision is based on the respondent's agreement with DJ.C. which the Tribunal accepted 'as true. That being so, no question of law really arises from the order of the Tribunal and the order dismissing the application under section 66(2) (Indian Income Tax Act, 1922) cannot be said to be wrong."

In view of the above authorities, there should be no doubt that the question whether there was any concealment of wealth was a question of fact and the questions formulated by the petitioner are not questions of law as should have been referred to this Court under section 27(1) of the Act.

For the aforesaid reasons, this petition fails and is dismissed. We make no order as to costs.

S.N. PHUKAN, J.---I agree.

M.B.A./1647/T??????????????????????????????????????????????????????????????????????????????????? Petition dismissed.