Dwarka Prasad, J. - (1.)THE Income-tax Appellate Tribunal, Jaipur Bench, Jaipur (hereinafter referred as " the Appellate Tribunal"), has referred the following two questions to this court for its opinion, as arising out of its order dated November 19, 1973.
"1. Whether, on the facts and in the circumstances of the case, the penalty imposable for not filing the returns under the Wealth-tax Act, in respect of assessment years prior to in April 1, 1969, will be governed by section 18 of the Wealth-tax Act as it stood prior to April 1, 1969, or both by the section as well as by the section as amended with effect from April 1, 1969, where the defaults continued even after April 1, 1969 ?

(2.)WHETHER, on the facts and in the circumstances of the case, the Tribunal is right in holding that penalty is leviable on the assessee even though returns of wealth have not been filed by him ? "
2. Prithvi Singh of Bisalpur (hereinafter called " the assessee ") failed to file returns of his net wealth under Section 14(1) of the W.T. Act, 1957 (hereinafter called " the Act"), for the assessment years '1965-66,1967-68 and 1968-69, on the due dates. The WTO, 'A' Ward, Pali, issued notices to the assessee under Section 14(2) of the Act but in spite of service of the notices, the assessee failed to file the returns. The WTO thereupon completed the assessments in respect of the aforesaid assessment years on November 29, 1969.

During the course of assessment proceedings, the WTO issued notices to the assessee under Section 18(2) of the Act to show cause why penalty for his failure to furnish returns of wealth within the prescribed time be not imposed upon him. In response to the show cause notice, the only explanation furnished by the assessee before the WTO was that since no return of wealth was at all submitted by him, penalty under Section 18(1) could not be levied. The WTO disagreed with the contention put forward on behalf of the assessee and he proceeded to impose penalty in the sums of Rs. 5,625, Rs. 5,535 and Rs. 5,325 respectively upon the assessee in respect of the assessment years 1965-66, 1967-68 and 1968-69, by throe penalty orders passed on March 25, 1972.

The assessee filed appeals in respect of each one of the three years before the AAC, Jodhpur Range, Jodhpur, who dismissed all the three appeals. One more ground was taken before the AAC on behalf of the assessee that the provisions of Section 18 of the Act were amended with effect from April 1, 1969, and as the aforesaid defaults were alleged to have been committed by the assessee prior to the amendment of Section 18 of the Act, penalty should be limited to the period up to March 31, 1969, and no penalty could be imposed upon the assessee under the amended provisions of Section 18(1).

The assessee thereafter preferred further appeals before the Appellate Tribunal. The Appellate Tribunal by its order dated November 19, 1973, also rejected the two contentions advanced on behalf of the assessee, namely, that no penalty should be imposed upon the assessee because he did not file any return at all and there was no question of delay in filing the returns. The Tribunal also rejected the contention raised on behalf of the assessee that the law applicable for the purpose of levy of penalty was the law in force at the time when the respective returns became due under Section 14(1) and the penalty should be calculated on the basis of the law in force prior to April 1, 1969, and that the amended provisions of Section 18(1), which came into force with effect from April 1, 1969, could not be made applicable for the determination of the quantum of penalty imposable upon the petitioner. In substance, the argument advanced on behalf of the assessee was that under the law as it stood prior to April 1, 1969, the maximum penalty leviable was equal to 50% of the tax and further penalty could not be imposed upon the assessee under the amended provisions of Section 18(1), on the basis of the continued default.

The assessee filed three applications under Section 27(1) of the Act before the Appellate Tribunal in respect of the assessment years 1965-66, 1967-68 and 1968-69, requiring the Appellate Tribunal to refer the questions of law arising out of its order dated November 19, 1973, to this court. The Appellate Tribunal by its order dated July 31, 1974, made a consolidated reference to this court in respect of the aforesaid three years and the two questions reproduced above have been referred by it to this court for its opinion.

(3.)AS regards the first question, it is not in dispute that the assessee did not file any return of his wealth in respect of the three assessment years, namely, 1965-66,1967-68 and 1968-69, not only on the due date but at any time (thereafter). According to Sub-section (1) of Section 14 of the Act, every person, whose net wealth is assessable under the Act, and was liable to payment of wealth-tax on the valuation date, was required to furnish to the WTO the return of his net wealth before 30th day of June, of the corresponding assessment year. Thus, the return of wealth in respect of the three assessment years 1965-66, 1967-68 and 1968-69 were due to be filed on June 30, 1965, June 30, 1967 and June 30, 1968, respectively. Prior to its amendment by the Finance Act of 1969, the relevant provisions of Section 18(1) of the Act read as under:
" 18. (1) If the Wealth-tax Officer, Appellate ASsistant Commissioner, Commissioner or Appellate Tribunal in the course of any proceedings under this Act is satisfied that any person-

(a) has without reasonable cause failed to furnish the return of his net wealth which he is required to furnish under Sub-section (1) of section 14 or by notice given under Sub-section (2) of section 14 or section 17, or has without reasonable cause failed to furnish within the time allowed and in the manner required by sub-section (1) of section 14 or by such notice, as the case may be; or......

he or it may, by order in writing, direct that such person shall pay by way of penalty-

(i) in the cases referred to in clause (a), in addition to the amount of wealth-tax, if any, payable by him, a sum equal to two per cent, of the tax for every month during which the default continued, but not exceeding in the aggregate fifty per cent, of the tax......"

Section 18(1) was amended by the Finance Act, 1969, with effect from April 1, 1969, and the amended provisions read as under:

" 18, (1) If the Wealth-tax Officer, Appellate ASsistant Commissioner, Commissioner or Appellate Tribunal in the course of any proceedings under this Act is satisfied that any person-

(a) has without reasonable cause failed to furnish the return which he is required to furnish under Sub-section (1) of section 14 or by notice given under Sub-section (2) of section 14 or section 17, or has without reasonable cause failed to furnish within the time allowed and in the manner required by sub-section (1) of section 14 or by such notice, as the case may be; or......

he or it may, by order in writing, direct that such person shall pay by way of penalty-

(i) in the cases referred to in Clause (a), in addition to the amount of wealth-tax, if any, payable by him, a sum, for every month during which the default continued, equal to one-half per cent. of...

(A) the net wealth assessed under Section 16 as reduced by the amount of net wealth on which, in accordance with the rates of wealth-tax specified in Paragraph A of Part I of the Schedule or Part II of the Schedule, the wealth-tax chargeable is nil, or

(B) the net wealth assessed under Section 17 where assessment has been made under that section, as reduced by-

(1) the net wealth, if any, assessed previously under Section 16 or section 17, or

(2) the amount of net wealth on which, in accordance with the rates of wealth-tax specified in Paragraph A of Part I of the Schedule or Part II of the Schedule, the wealth-tax chargeable is nil,

whichever is greater,

but not exceeding, in the aggregate, an amount equal to the net wealth assessed under Section 16 or, as the case may be, the net wealth assessed under Section 17, as reduced in either case in the manner aforesaid ; ...... "

It is not in dispute that the default or failure to furnish returns in respect of each of the three assessment years was committed by the asses-see prior to April 1, 1969, which exposed him to imposition of penalty under Section 18(1) of the Act. The Appellate Tribunal came to the conclusion that the default in not furnishing the return was a continuing wrong and even though the default occurred earlier, the same continued even after April 1, 1969, and so the Tribunal held that the quantum of penalty to be imposed upon the assessee was to be calculated at 2% of the wealth-tax payable prior to April 1, 1969, and at 1/2% of the net wealth for the period after April 1, 1969, up to the date when the assessment was completed. Thus the Appellate Tribunal rejected the assessee's contention that the law applicable for the purpose of levy of penalty was the law which was in force at the time when the default occurred by not furnishing the return on the due date. There was difference of opinion among the various High Courts on this question. However, the controversy in this respect has now been set at rest by their Lordships of the Supreme Court in CWT v. Suresh Seth [1981] 129 ItR 328 and it was held, in that case, that the offence relating to omission to file a wealth-tax return was not a continuing offence and penalty was leviable for the failure of an assessee to furnish the return of wealth in accordance with the law in force at the time when the return ought to have been filed.

Where the wrong complained of is the omission by a person to perform a positive duty requiring him to do a certain act, the test to determine whether such a wrong is a continuing one or not is whether the duty in question is one which requires him to continue to do that act. It is necessary to draw a distinction between the injury caused by a wrongful act and what may be described as the effect of the said wrongful act. In a case where the wrongful act causes an injury which is complete, there is no continuing wrong even though the damage resulting from such an act may continue. But if the wrongful act is of such a nature that injury caused by it in itself continues, then the act constitutes a continuing wrong and the very essence of such an act is that it creates a continuous source of injury and renders the doer of the act liable for the continuance of the said injury. The offence caused on account of the failure to furnish a return becomes complete if no return is filed by the assessee on the due date and as such the offence under Section 18(1)(a) cannot be considered to be a continuing wrong. Their Lordships of the Supreme Court observed as under in this context in the aforesaid case (129 ItR 328, at p. 338) :

" Section 18 of the Act, with which we are concerned in this case, however, does not require the assessee to file a return during every month after the last day to file it is over. Non-performance of any of the acts mentioned in Section 18(1)(a) of the Act gives rise to a single default and to a single penalty, the measure of which, however, is geared up to the time lag between the last date on which the return has to be filed and the date on which it is filed. The default, if any committed, is committed on the last date allowed to file the return. The default cannot be one committed every month thereafter. The words ' for every month during which the default continued ' indicate only the multiplier to be adopted in determining the quantum of penalty and do not have the effect of making the default in question a continuing one. Nor do they make the amended provisions modifying the penalty applicable to earlier defaults in the absence of necessary provisions in the amending Acts. The principle underlying section 6 of the General Clauses Act is clearly applicable to these cases. It may be stated here that the majority of the High Courts in India have also taken the same view. "