High Court Of Jammu & Kashmir
CIT vs. Abdul Gani Bhat
Sections WT 16(3), WT 23(1)(d), WT 24
Dr. B.P. Saraf, C.J. & N.A. Kakru, J.
IT Ref. No. 6 of 1979
3rd July, 2000
Anil Bhan, for the Revenue : None, for the Assessee
DR. B.P. SARAF, C.J. :
This is a reference under s. 27(1) of the WT Act, 1957 (erroneously numbered as IT reference). By this reference, the Income-tax Appellate Tribunal (the “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 WTO 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 Jammu & Kashmir High Court in the case of S. Mubarik Shah Naqshbandi 1977 CTR (J&K) 180 : (1977) 110 ITR 217 (J&K) : TC 11R.317 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 27th March, 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 under 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 CWT vs.Jawahar Lal Mehra (IT Ref. No. 9 of 1982) [reported at (2001) 165 CTR (J&K) 347]. In that case, following the ratio of the decision of the Supreme Court in Kalyankumar Ray vs. CIT (1992) 102 CTR (SC) 188 : (1991) 191 ITR 634 (SC) : TC 10R.470 and the decision of this Court dt. 26th June, 2000 in CIT vs. AlkeensonsAgencies (IT Ref. No. 7 of 1979) [reported at (2000) 164 CTR (J&K) 605], it has been held that it will be sufficient compliance with the requirements of s. 16 (3) of the WT Act, 1957, if the tax payable is also calculated and the AO 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 AO signs both the sheets, that is, the assessment order sheet and the tax calculation sheet, the assessment process iscomplete in accordance with the requirements of s. 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 WTO 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. Mubarik Shah Naqshbandi vs. CIT (supra) has no application. The controversy in this case is covered by the decision of this Court in CWT vs. Jawahar Lal Mehra (supra). Following the same, question Nos. 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 vs. Jawahar Lal 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 AAC passed on an appeal against an order of penalty under cl. (d) of s. 23(1) of the WT 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.
[Citation : 246 ITR 607]