JKLR-Part(IV)                                       ITRef 6/1979                                                 Back To Index

(2001) 1 J & K LAW REPORTER 368
High Court of Jammu and Kashmir
at Srinagar
Before
Hon’ble Dr. Justice B.P. Saraf, Chief Justice
Hon’ble Mr. Justice N.A. Kakru, Judge

THE COMMISSIONER OF INCOME TAX                                                                      Petitioner
                                                                                versus
ABDUL GANI BHAT, SRINAGAR                                                                                     Respondent

I.T. Reference No. 6 / 1979, decided on 3.7.2000.

            Wealth-tax Act, 1957, S. 16 (3) - Assessment of tax - Tax payable calculated on separate sheet duly signed by the Wealth-tax Officer on the same date on which order computing net wealth was signed by him - Held: Assessment not invalid in law – Decision in S. Mubarak Shah Naqshbandi v. CIT, (1977) 110 ITR 217 not applicable.
            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 question 1 and 3 are answered in the negative, that is, in favour of the revenue and against the assessee.                                                 [Para 4]
            Wealth-tax Act, 1957, S. 23 (1) – Appeal against order of assessment and penalty whether interdependent.
            This controversy is covered by the decision of this Court in CWT v. Jawaharlal Mehra 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.                                                                                    [Para 5]

Advocates who appeared in this case :
Senior Central Govt. Standing Counsel, Mr. Anil Bhan, for the revenue
None appears for the assessee
Cases referred : Chronological
1. S. Mubarak Shah Naqshbandi v. CIT (1977) 110 ITR 217
2. Kalyankumar Ray v. CIT (1991) 191 ITR 634
3. CIT v. M/s Alkeensons Agencies (I.T. Ref. 7 of 1979 decided on 26.6.2000)
4. CWT v. Jawaharlal Mehra (I.T.Ref. 8 of 1982 decided on 3.7.2000)

 JUDGMENT 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.

            The controversy in this case now stands concluded by the decision of this Court rendered today in Commissioner of  Wealth-tax v. Jawaharlal Mehra (I.T. Ref. 8 of 1982). In that case, following the ratio of the decision of the Supreme Court in Kalyankumar Ray v. CIT (1991) 191 ITR 634 and the decision of this Court dated 26 th June, 2000 in CIT v. M/S.Alkeensons Agencies (I.T.Ref. 7 of 1979), it has been held that it will be sufficient compliance with the requirements of section 16(3) of the Wealth-tax Act, 1957, if the tax payable is also calculated and the assessing officer approves the same by putting his signature thereon. It is immaterial whether the calculation is made on the same sheet of paper on which the net wealth has been assessed or on a separate sheet of paper. Once the Assessing Officer signs both the sheets, that is, the assessment order sheet and the tax calculation sheet, the assessment process is complete in accordance with the requirements of section 16(3) of the Act. 

                        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.

.........