Wealth tax---

---Penalty---Concealment of wealth ---Assessee and her husband joint owners of a plot of land ---Assessee failing to disclose value of her share in plot in her return ---Assessee not aware of fact that part of plot belonged to her---Entire value of plot shown in return of assessee's husband---Revised returns, including value of share of plot, filed voluntarily and without notice as soon as assessee came to know of real position---Tribunal Finding no means read in omitting to include property in original return---No concealment of particulars of wealth--Finding of Tribunal, a finding of fact---No question of law arose for reference.

The assessee filed a return under section 1.4 of the Wealth Tax Act, 1957, for the assessment years 1973-74 and 1975-76 without disclosing her share in a plot of land, which she claimed was purchased jointly by her and her husband: Her husband had included the plot in his return. When it was pointed out to her that she too had a share in the plot, she filed a revised return disclosing her share in the plot in her return. The assessee, when asked to show cause why penalty under section 18(1)(c) of the Wealth-tax Act, 1957, be not imposed on her for concealment of particulars of her wealth, stated that the revised return was filed voluntarily and the omission to disclose particulars of wealth was bona ride. The Wealth-tax Officer, however, imposed penalty on the assessee on the ground of concealment of wealth which was found out during investigation and the subsequent disclosure which, according to him, was not voluntary. The Appellate Assistant Commissioner upheld the order of the Wealth-tax Officer. The Tribunal accepted the explanation of the assessee and allowed her appeals. The Tribunal also refused to refer a question at the instance of the Department. On an application under section 27(3):

Held, that the Tribunal had found that the entire value of the land was shown in the wealth-tax return of the assessee's husband from 1971-72 to 1977-78. The assessee was not really aware of the fact that a part of the plot belonged to her. The Tribunal had further found that as soon as the assessee came to know of the real position, she, voluntarily and without notice, submitted revised return showing the value of her share in the plot of land. The inference was that there had been no mens read on her part in omitting to include that property in her return originally. Therefore, the Tribunal reached the conclusion that there was no concealment of the particulars of wealth. The finding of the Tribunal was a finding of fact and no question of law arose for reference.

CIT v. Kotrika Venkataswamy and Sons (1971) 79 ITR 499 (SC); CWT v. Ajay Kumar B. Tody (1983) 143 ITR 148 (MP); CWT v. Chandmal Surajmal (1983) 143 ITR 178 (MP) ref.

B.K.Rawat for the Commissioner.

B.L. Nema for the Assessee.

JUDGMENT

B.C. VERMA, ACTG. C_J.----This judgment shall also dispose of Miscellaneous Civil Case No. 407 of 1984. The assessee is Smt. Savitri. She filed return of her wealth under section 14 of the Wealth Tax Act for the year 1973-74 and for the year 1975-7G in her status as an individual. In the return filed, her share in a plot at South Civil Lines, Jabalpur, was not disclosed. Later, she disclosed that the plot was purchased jointly by her and her husband who was also an assessee. The plot was disclosed in the return filed by her husband under section 14 of the Wealth Tax Act. When pointed out that she too had a share in the plot, she added the value of her share in her return. She was then asked to explain this omission and also to show cause why penalty under section 18(1)(c) of the Act be not imposed on her for concealment of the particulars of her wealth. In answer, the assessee stated that the revised return was voluntarily filed and the omission was bona fide. Her explanation had been that since the plot was purchased jointly in the names of her husband and herself and since her husband had included the plot in his return, she did not include it in her return, although the sale-deed stood jointly in her name as also in the name of her husband. The Wealth-tax Officer imposed penalty of Rs. 19,000 for each of the assessment years holding that the assessee concealed her wealth, which concealment was revealed during investigation. He also found that the subsequent disclosure was not voluntary. In appeal, the Appellate Assistant Commissioner upheld that order imposing penalty. In further appeal by the assessee before the Income-tax Appellate Tribunal, she succeeded. Her explanation found favour with the Tribunal which allowed the assessee's appeals. The penalties imposed for both the assessment years were set aside. While so doing, the Tribunal held that the revised return was voluntary and without any notice. The Department then filed an application under section 27(1) of the Wealth-tax Act, requiring the Tribunal to refer the following question of law for the opinion of this Court:

"Whether, on the facts and in the circumstances of the case, the Tribunal was justified in law in coming to the conclusion that the assessee did not conceal the wealth and thereby cancelling the penalty levied under section 18(1)(c) of the Wealth-tax Act?"

The Tribunal refused to make any reference, holding that no question of law arose from the Tribunal's order. This order was made by the Tribunal on April 7, 1984, and was served on the petitioner on July 12, 1984. The present application before this Court has been tiled on September 9, 1984, for a direction to call for a reference from the Tribunal in terms stated above.

At the hearing, a question was raised and a contention had been advanced that the application before this Court was barred by time. It was not disputed that, under section 27(3) of the Wealth Tax Act, the application should be filed before this Court against an order refusing to make a reference within 90 days from the date the assessee is served with the notice refusing to make a reference. The order in question was served first upon the Commissioner of Wealth-tax, Bhopal, although the party before the Tribunal was the Commissioner of Wealth-tax, Jabalpur. The affidavit sworn by the applicant is that this order was received by the Commissioner of Wealth-tax, Jabalpur, on July 12, 1984, and, therefore, this application filed on September 9, 1984, must be deemed to be within time. It could not be shown that the Commissioner of Wealth-tax, Jabalpur, was ever served with the notice earlier. We, therefore, hold that the application is within time.

We are, however, in complete agreement with the order of the Tribunal refusing to make a reference on the finding that no question of law as such arises from the Tribunal's order refusing to make a reference. The Tribunal found that the entire value of the land was shown in the wealth-tax return of her husband from 1971-72 to 1977-78. The assessee was really not aware of the fact that a part of the plot belonged to her. The further finding is that the revised returns were submitted voluntarily and without any notice and as soon as the assessee came to know of the real position, she filed a revised return and showed the value of her share in the plot in her return. It is on this finding of fact that the Tribunal reached the conclusion that there was no concealment and, that therefore, the assessee was not liable to be visited with any penalty under section 27(3) of the Wealth Tax Act. In CIT v. Kotrika Venkataswamy and Sons (1971) 79 ITR 499, the Supreme Court observed that if, on the materials and in the circumstances of the case, the Appellate Tribunal reaches the conclusion that there was no suppression of sales by the assessee on the facts disclosed and no concealment of income was proved, no case can be referred to the High Court under section 66(1) of the Indian Income Tax Act, 1922, seeking to upset that conclusion. In the present case also, although under the Wealth Tax A0, the finding of the Tribunal, as we have shown above, is that the disclosure and the revised return were voluntary, the omission to mention the value of her share in the plot was bona tide, and the return was revised on immediate disclosure of the fact to her. The inference thus is that there has been no means read on her part in omitting to include such property in her return originally. That being so no case has been made out for a reference to the High Court under section 27 of the Wealth-tax Act.

Shri Rawat, learned counsel for the Department, however, relied upon a decision in CWT v. Ajay Kumar B. Tody (1983) 143 ITR 148 (MP) and yet another decision in the same volume at page 178 (CWT v. Chandmal Surajmal). In the first case, at page 148, the finding is that the observation of the Tribunal on whether the liabilities were contingent or certain was a tricky question of law and related to the interpretation of certain statutes and, therefore, the calculations made by the assessees at a lower figure did not indicate concealment of particulars of wealth. That was held to be a finding of fact and the penalty was cancelled. This case, instead of helping the petitioner, is somewhat in favour of the respondent. In the latter case, at page 1.78 also, this Court observed that on the finding of the Tribunal there was no concealment so far as the assessee was concerned. He had disclosed all the facts and, therefore, that question did not arise at all for reference to the High Court as a question of law. These two decisions, therefore, do hot help the petitioner at all, since we find from the Tribunal's order that the conclusion that no- particulars of wealth were concealed and the revised return was voluntary was based upon the facts of the case and is, therefore, a finding of fact. No question of law, therefore, arises for a reference from the Tribunal's order.

The application is, therefore, rejected. No order as to costs.

M.B.A./ 1573/TApplication rejected.