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JUDGEMENTS I.T.R. 6/1979 Back To Index
OF JAMMU AND KASHMIR AT SRINAGAR.
Date of decision: 3rd July 2000
The Commissioner of
Income-tax Amritsar v/s Shri Abdul Gani Bhat,Srinagar
Whether approved for reporting: Yes
JUDGEMENT AND ORDER
Per Dr. B. P. Saraf, Chief Justice (Oral)
This is a reference under section 27(1) of the Wealth Tax Act, 1957 (erroneously numbered as Income-tax Reference). By this reference, the Income-tax Appellate Tribunal ("Tribunal") has referred the following questions of law to this court for opinion at the instance of the revenue:
"I) Whether, in view of the fact that tax had been properly calculated on a separate calculation sheet duly signed by the Wealth-tax Officer on the same date on which the order computing the taxable wealth has been signed by him, the Tribunal is right in holding that the ratio of the decision given by the J&K High Court in the case of S. Mubarak Shah Naqshbandi, Srinagar (110 I.T.R. 217) applies to this case?
ii) Whether, on the facts and in the circumstances of the case, the Tribunal is right in law in cancelling the penalty order on the ground that there was no legally determined wealth, when the assessment order determining the wealth passed on 27.3.1971 has already become final?
iii) Whether, on the facts and in the circumstances of the case, the Tribunal is right in law in deleting the penalty of Rs.27, 536/- imposed u/s 18(1)(a)?"
None appears for the assessee. Mr. Anil
Bhan, Advocate, appears for the revenue.
In the instant case, there is no dispute about the fact that the tax payable had been duly calculated on a separate calculation sheet, which was signed by the Wealth-tax Officer on the same date on which the order computing the net wealth was signed by him. In that view of the matter, the decision of this Court in S.Mubarak Shah Naqshbandi v. CIT (1977) 110 ITR 217 has no application. The controversy is this case is covered by the decision of this Court in CWT v. Jawaharlal Mehra (Supra). Following the same questions 1 and 3 are answered in the negative, that is, in favour of the revenue and against the assessee.
The controversy in question No.2 is also covered by the decision of this Court in CWT v. Jawaharlal Mehra (Supra) where it has been held that the scope and ambit of an appeal against an order of penalty is confined to the levy of penalty. In such an appeal, the validity of the assessment order, which has attained finality, cannot be challenged. The Tribunal cannot consider the challenge to the validity of the assessment order, which has become final and conclusive, in an appeal against the order of the Appellate Assistant Commissioner passed on an appeal against an order of penalty under clause (d) of section 23(1) of the Wealth- tax Act. In view of the above, question No. 2 is also answered in the negative, i.e., in favour of the revenue and against the assessee.
This reference is disposed of accordingly with no order as to costs.