COMMISSIONER OF WEALTH TAX Vs. GULJARILAL MANIRAM
LAWS(MPH)-1980-11-4
HIGH COURT OF MADHYA PRADESH
Decided on November 28,1980

COMMISSIONER OF WEALTH-TAX Appellant
VERSUS
GULJARILAL MANIRAM (THROUGH LEGAL REPRESENTATIVE) Respondents

JUDGEMENT

Sohani, J. - (1.)THIS order shall also govern the disposal of M.C.Cs. Nos. 85 and 86, both of 1979.
(2.)THESE are applications under Section 27(3) of the W.T. Act, 1957, hereinafter called the Act.
The material facts giving rise to these applications briefly are as follows : For the assessment years 1964-65 to 1966-67, the assessee, Guljarilal Maniram, failed to file returns in time under the provisions of the Act, and. notices under Section 18(1)(a) of the Act were accordingly issued to the assessee to show cause why penalty should not be levied for delay in filing the returns. The WTO held that the assessee failed to show any reasonable cause for delay in filing the returns. The WTO, accordingly, levied penalty. Aggrieved by the orders passed by the WTO, appeals were preferred before the AAC. The AAC held that as the default on the part of the assessee took place before the amendment to Section 18(1)(a) came into force with effect from April 1, 1969, penalty was leviable in accordance with the unamended provisions of Section 18(1)(a) of the Act. The appeals were, accordingly, partly allowed. Aggrieved by that order, the department preferred appeals before the Tribunal. The Tribunal dismissed the appeals. Aggrieved by the order passed by the Tribunal, the Department submitted applications for making a reference to this court. The Tribunal rejected the applications. The department has, therefore, filed these applications.

Shri Bagadiya, learned counsel for the department, contended that the question as to whether the Tribunal was justified in holding that penalty under Section 18(1)(a) of the Act was leviable in accordance with the provisions of Section 18(1)(a) of the Act, as they stood prior to their amendment with effect from April 1, 1969, is a question of law and the Tribunal erred in rejecting the applications for making a reference. Learned counsel for the non-applicant contended that the assessee died on September 28, 1972, and the reference applications before the Tribunal were filed against a dead person. An application filed by the department for bringing on record the name of the non-applicant as legal representative of the deceased assessee was rejected by the Tribunal. However, we find that in the appeals preferred before the AAC on behalf of the assessee, the fact that the assessee was dead was not mentioned even though the appeals were filed after the death of the assessee. Similarly, the question as to whether the penalty proceedings could continue against the legal representative of the assessee was also not raised before the AAC and was not allowed to be raised before the Tribunal. The non-applicant has not sought any reference on that question. In these circumstances, the contention urged on behalf of the Department that a question of law does arise deserves to be upheld. We, therefore, direct the Tribunal to state the case and refer the following question of law to this court for its opinion :

" Whether, on the facts and in the circumstances of the case, the Tribunal was justified in law in holding that penalty under Section 18(1)(a) of the W.T. Act, 1957, was leviable in accordance with the provisions of Section 18(1)(a) of the Act, as they stood prior to the amendment of Section 18(1)(a) of the Act which came into force from April 1, 1969 ? "

(3.)THE applications are, therefore, allowed and the Tribunal is directed to state the case and refer the aforesaid question of law to this court for its opinion. Parties shall bear their own costs of these applications.


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