TMI Blog1989 (3) TMI 151X X X X Extracts X X X X X X X X Extracts X X X X ..... Gazette of India, Extraordinary, Part II, section 1, page 665 dt. 8th Oct., 1975. The Ordinance provided for a scheme of Voluntary Disclosure of undisclosed income and wealth and offered an opportunity to persons who had evaded tax in the past to declare their undisclosed income and wealth, pay tax thereon on a reasonable basis and return to the path of civic responsibility in future. It was also aimed at securing canalisation of black money, secreted by tax evaders into protective fields, in the over-all interest of the economy. By making a declaration of his income/wealth in accordance with the provisions of the Ordinance a person could earn immunity from penalties and prosecutions under the relevant acts of fulfilment of certain conditions, as laid down in the Ordinance and the Rules framed there under. It is gathered from the records placed before us that the assessee HUF with a view to obtain benefit of the scheme under the Ordinance, entered into negotiations with the concerned Commissioner in respect of making declarations of his income/wealth. According to the assessee HUF its case could be finalised only on 30th Dec., 1975 and as per settlement and agreement arrived at by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aken into consideration. This letter may be treated as additional part of wealth tax returns submitted, so that the question of concealing any particulars may not arise." 6. The WTO started assessment proceedings on the basis of the returns filed by the assessee HUF. The WTO noted that certain agricultural lands stood recorded in the names of various members of the assessee HUF including two unmarried daughters, the Karta himself, his wife and his son, besides the HUF itself. It appears that it was urged on behalf of the assessee HUF before the WTO that there had been a partition of the agricultural land in the case of the assessee HUF in the year 1966 and therefore, the land recorded in the names of various members be not included in the net wealth of the assessee HUF. The WTO however, noted that such partition had not been accepted and recognised by the Department under s. 171 of the IT Act, 1961 (the Act) and that the alleged partition was accepted by departmental representative w.e.f. 31st March, 1971 and therefore, the HUF was to be deemed to be the owner of the agricultural land for the years under consideration. On these lines the WTO framed assessment for asst. yr. 19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... closure Scheme with the CIT, (Guj). IV, Ahmedabad on 31st Dec.,1975. Penalty proceedings under s.18(1)(a) of the Act initiated for asst. yr. 1974-75 are hereby dropped." 11. The learned AAC has been of the opinion that penalty proceedings for other assessment years i.e. 1971-72 to 1975-76 might have also been dropped in the same way. This inference drawn by the learned AAC from the totality of circumstances of the cas could not be controverted before us also. 12. The assessee HUF challenged the assessment as framed by the WTO before the AAC. The AAC set aside all the assessment on 31st March, 1981 and required the WTO to reframe the same, as was alleged by the assessee before us and not disputed on behalf of the Department, after hearing the assessee on the point of exclusion of the agricultural land or substantial part thereof from the computation of its net wealth as on the various relevant valuation dates. 13. In reassessment proceedings the WTO, Inter alia, accepted the partition of the agricultural property of the assessee HUF w.e.f. 31st March, 1971. In that behalf he included the lands recorded in the names of unmarried daughters of the Karta of the HUF in the ne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been filed in accordance with and under the scheme. In the second place, Mr. Shukla argued with much industry that the learned AAC appears to have fallen in error in treating at the orders of the WTO dropping penalty proceedings for asst. yr. 1970-71 and 74-75 at the stage of original assessment proceedings as barring the jurisdiction of the WTO to initiate penalty proceedings in the course of reassessment proceedings and levy penalties therein, Mr. Shukla urged that penalty proceedings for asst. yr. 1970-71 and 1974-75 were dropped by the WTO on wrong motion of law treating the returns filed by the assessee as having been legally filed by it under the scheme which was not at all the position at law in these cases. 18. Mr. J.P. Shah, advocate appearing for the assessee HUF vehemently challenged the merits in both the arguments advanced by Mr. Shukla. Mr. Shah submitted that the returns for the years under consideration had not only been filed by the assessee HUF under the scheme but the same had also been treated as such not only by the WTO but also by other authorities under the Act. It was submitted by Mr. Shah that it was on the basis of the returns filed by the assessee HUF ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssee HUF had filed the returns under the scheme. As has been mentioned above, the assessee HUF had made declaration of its net wealth under s. 15 of the ordinance to the concerned Commissioner and along with the declaration it had filed its returns for various assessment years in form 'company'. In annexure B the assessee HUF had clearly mentioned that since its case was finalised on the last evening the assessee was not in a position to work out the current figures of its wealth so the figures were being given approximately correct. The assessee had further mentioned in the said annexure that the returns would be revised by it after getting the necessary figures from the WTO as its books of accounts were lying with him. The assessee had thus clearly retained an option to revise its returns subsequently. And by its letter dt. 4th Sept., 1976 the assessee had informed the WTO about the position of agricultural land, standing in the names of some of its members and had requested the WTO to treat its said letter as part of its return. The question is whether under such circumstances the returns filed by the assessee HUF could be said to have not been validly filed under the scheme. In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... espect of the net wealth for the assessment year or years for which the declaration has been made is paid by the declarant in accordance with the provisions of s. 5 and the declarant invests in the securities referred to in sub-s. (3) of s. 3 within the time specified in sub-s. (4) of s. 5 the sum specified in sub-s. (6) of this section. 22. A study of the above provisions clearly go to show that immunity from proceedings relating to imposition of penalty on the person making the declaration under sub-s. (1) of s. 15 or for the purposes of the prosecution of the declarant under the WT Act had been provided for in respect of the net wealth or the value thereof as declared by a person in his return. Sub-s. (4) clearly provides that the information given by an assessee in his declaration which was to be accompanied with the return in Form 'C' framed under the Voluntary Disclosure of Income Wealth Rules, 1975 may be taken into account for the purposes of the proceedings relating to assessment or reassessment of the net wealth of the declarant under the provisions of the WT Act. The language of sub-s. 4 of s. 15 of the Ordinance, in our opinion, clearly says that the information gi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of such other person, and any such other declaration, if made shall be deemed to be void, s. 15 does not make any such provision. That means that where a subsequent declaration made by a person in respect of his income, which he has not declared in the main declaration, would be deemed to be void, such a subsequent declaration has not been prohibited by the language of s. 15 relating to voluntary disclosure of wealth. It follows, therefore, that a person having made declaration about his net wealth under s. 15 is not boards from making subsequent declaration about his further wealth and such subsequent declaration would not be void in the sense it would have been void as per provisions of s. 4(3) of Ordinance. It clearly follows that the subsequent declaration would be treated as valid part of the prior declaration. 24. Now for appreciating the merits of the declaration made and return filed by the assessee HUF in the instant case it shall have to be kept in mind that when such declaration was made and returns were filed its account books stood already seized by the Department. It is also a well established fact that the case of the assessee HUF had been finalised only on the e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court apply on all fours to the facts of the case on hand. 26. Now coming to second argument, as advanced by Mr. Shukla, we agree with him in principle that the doctrine or 'autorfice acquita' as understood in criminal law, is not applicable to the proceedings under the act. That doctrine of criminal law which is based on the right of the citizen guaranteed under art. 20 of the Constitution of India is applicable to the case of offences leading to prosecution and punishment of the offender and accused. An assessee committing default of filing his returns late or concealing his income and attracting the provisions of s. 18 of the Act, cannot be equate to the position of an accused or an offender. In that sense of the matter the doctrine of autrofice acquit t would not be applicable to the proceedings under the Act. But that is not the position in this case. Herein the position is that the WTO, after having initiated penalty proceedings under s. 18(1)(a) on the ground of assessee's filing its return late had subsequently dropped such proceedings on the ground that the returns had been validly filed under the scheme which provided immunity to the assessee HUF from penalties and pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eding and if that officer had failed to exercise his power under s. 28 during the course of proceedings before him. Possibly in that case he would have no power'. 29. The above observations made by their Lordships of the Madras High Court fell for consideration of the Supreme Court in the case of N.A. Malbery Brothers vs. CIT (1964) 51 ITR 295 (SC) where their Lordships of the Supreme Court though approved the former observations of the Madras High Court, as quoted above, it disapproved the later expression of opinion by them. In respect of the later observations of their Lordships of the Madras High Court the Supreme Court held that "we do not think that Rajamannar, C. J., wished to state this qualification on the power of the ITO as a pro-position of law. It was not certainly necessary for the purposes of the case before him. We do not wish to be understood as subscribing to it.....". In the case before them their Lordships of the Supreme Court were considering the justification in the levy of the penalty, second time in the same case. Approving the jurisdiction of the ITO to make second penalty order in the same case their Lordships observed that "the jurisdiction to make t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... all bona fides on the part of the assessee in filling the returns late there was an obvious failure on the part of revenue to prove absence of reasonable cause on the part of the assessee, must have also been decided by the learned AAC on merits. Mr,. Shah urged that the conduct of revenue in not initiating penalty proceedings under s. 18 (1) (c) of the Act and under s. 271(1)(c) a and/or under 271(1) (c) of the IT Act, 1961 in these case and if such proceedings were at all initiated then dropping the same subsequently, must be read as supporting assessee's bona fide conduct in filing the returns late. In the second place Mr Shah submitted that if assessee's main contention failed then in the alternative only the learned AAC should have directed the levy of penalty, as per chart submitted according to the principles laid down by the Supreme Court in the case of Maya Rani Punj vs. CIT (1986) 50 CTR (SC) 191 : (1986) 157 ITR 330 (SC) and by the Tribunal in the case of Manna Lal Surana vs. ITO (1983) 4 ITD 131 (Del). 34. In reply Mr. Shukla objected to any attempt on the art of the part of the Tribunal to decide assessee's above mentioned contention on merits in the absence of any ..... 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