LACHMAN CHATURBHUJ JAVA Vs. NITSURE R G

JUDGEMENT

(1.) FOR the assessment year 1970 -71, the petitioner had to file his wealth -tax return on or before September 30, 1970. On July 2, 1970, the petitioner made an application for extension of time. However, that application is not before me, and neither learned counsel is in a position to state the period till which extension of time was sought for. On September 30, 1970, the petitioner made another application for extension of time department. According to the petitioner, his chartered ill December 30, 1970. No reply was vouchsafed by the accountant filed his wealth -tax return on May 31, 1971, showing the net taxable wealth at Rs. 2,91,224 and on that day admittedly wealth -tax in the amount of Rs. 956 was paid to the department on self -assessment basis. The filing of the wealth -tax return on May 31, 1971, is not admitted by the department. On February 24, 1973, the WTO issued a notice under s. 17 of the W.T. Act (hereinafter referred to as 'the Act') calling upon the petitioner to file his return for the assessment year 1970 -71. According to the petitioner, his chartered accountant informed the officer that the return had already been filed but that in case the same was not traceable in the records of the department, he would file another return, which was done on March 26, 1973. On August 8, 1973, the department issued a penalty notice under s. 18(1)(a) of the Act. On September 19, 1973, which was the date fixed for the hearing of that notice, the petitioner remained absent, and on that day an exparte order was passed against the petitioner levying a penalty of Rs. 45,030, for the late filing of the return on March 26, 1973. The petitioner filed a revision application before the Commissioner, who by his order dated January 29, 1973, substantially confirmed the WTO's order dated September 19, 1973. It is the Commissioner's order which the petitioner challenges by way of the present petition.

(2.) FOR the assessment year 1971 -72, the petition had to file On September 28, 1971, he applied for extension of time till December 30, 1971. The department granted extension of time till November 30, 1971. It appeal that some time prior thereto the petitioner made another application for extension of time till March 29, 1972. Neither side is in a position to give the date of that application; it is, however, not in dispute that such an application was made and that no reply was vouchsafed by the department. On February 24, 1973, the WTO issued a notice under s. 17 of the Act calling upon the petitioner to file his wealth -tax return for the assessment year 1971 -72. On March 26, 1973, the petition filed his return showing his net wealth at Rs. 64,408. On March 29, 1973, the assessment order was passed assessing the petitioner's net wealth at Rs. 1,29,854 by adding an amount of Rs. 65,446 being the income -tax liabilities claimed for the assessment years 1967 -68 and 1968 -69. Tax on the net assessed wealth was levied at Rs. 299. On August 8, 1973, the department issued a penalty notice under s. 18(1)(a) of the Act. On the date of hearing, namely, September 19, 1973, the petitioner was absent and an ex parte order was passed by the WTO levying a penalty of Rs. 2,537 for late filing of the return on March 26, 1973. The petitioner's revision application under s. 25(1) was rejected by the Commissioner, who by his order dated January 29, 1977, upheld the WTO's order dated September 19, 1973, with some modifications. It is the Commissioner's order dated January 29, 1977, which is also challenged in the presents petition.

(3.) BEYOND the bald assertion that the affidavit filed by the petitioner's chartered accountant was not acceptable to the Commissioner, no reason has been given by the Commissioner why he chose to disregard the affidavit made by the petitioner's chartered accountant. It is not as if even the department harboured a grievance that the chartered accountant and the petitioner were in collusion with each other or that the chartered accountant had gone out of his way to make a false affidavit. If some the Commissioner should have so stated in his order with his reasons for disbelieving the petitioner's chartered accountant instead of summarily and lightly rejecting that affidavit as not being acceptable to him without giving any reason at all. Neither in this affidavit nor in anything on record is there anything which would cast the slightest doubt or aspersion on the veracity or bona fides of the chartered accountant who made this affidavit on oath and presumably with due sense of responsibility. The emphasis laid by the Commissioner on, and his suspicion about, the loss or misplacement of the receipt appears to be without basis, and for which no reason has been given. A document may genuinely be lost or misplaced, and it is not entirely unknown that even in the department sometimes entire files get lost or are untraceable (albeit genuinely), and the assessee's are put to the hardship of filing duplicate returns more than once. Be that as it may, in the light of the chartered accountant's affidavit, the Commissioner might well have done better to have taken a view less uncharitable than he has done on the loss of this receipt. Moreover, the chartered accountant had not even chosen to absolve himself from responsibility as is manifest from his frank admission in his affidavit that the receipt had been lost or misplaced by the petitioner or even by himself. There was no reason why the chartered accountant should have gratuitously taken upon himself this burden unless there was a receipt which is not traceable.