1. These two appeals of the assessee are directed against the orders of the Commissioner (Appeals). They are heard together and are disposed of by a common order for the sake of convenience.
2. The assessee is an individual. For the assessment year 1973-74, the assessee filed a wealth-tax return on 14-8-1973 showing a negative net wealth of (--) Rs. 1,83,116. It that return the value of one-fourth share in property No. 31-40/708, Ajmeri Gate, Delhi, was shown as nil with the note that plus and minus adjustment will be done on the finalisation of balance sheet. A revised return was filed on 2-1-1975 showing the net wealth at Rs. 9,46,884. In this return the value of one-fourth share in the aforesaid property was shown at Rs. 12 lakhs less liabilities of Rs. 50,000. The WTO completed the assessment on a net wealth of Rs. 15,75,300 which was reduced by the Commissioner (Appeals) by Rs. 2,50,143.
3. The WTO initiated penalty proceedings under Section 18(1)(c) of the Wealth-tax Act, 1957 ('the Act') and levied a penalty of Rs. 11,50,000 which was confirmed by the Commissioner (Appeals) vide his order dated 31-3-1982 impugned before us.
4. In the assessment year 1974-75 the WTO initiated penalty proceedings under Section 18(1)(a) on the reasoning that the wealth-tax return which was due on 31-7-1974 was filed only on 19-12-1975 thereby incurring a delay of 16 complete months. A penalty of Rs. 1,20,488 was imposed. Before the Commissioner (Appeals) it was contended that the return filed on 19-12-1975 was a revised return as the original return was filed on 10-10-1974 vide receipt No. 39113. It was also contended that the wealth-tax return could not be filed in time as the accounts of the various firms where the assessee was a partner were not finalised in time. On careful consideration of the submissions the Commissioner (Appeals) was not convinced. He sustained the penalty but directed the WTO to recompute the penalty after giving effect to the appellate orders in the quantum assessment and also after rectifying the apparent mistake pointed out by the assessee.
5. The assessee filed appeals against the above orders of the Commissioner (Appeals) before the Tribunal on 10-5-1982. At the same time the assessee moved petition under Section 18B(1)/18B(4) of the Act before the Commissioner. The Commissioner passed his consolidated order dated 31-12-1982 under Section 18B(1)/18B(4) for the assessment years 1973-74 and 1974-75. In the case of the penalty under Section 18(1)(c) for the assessment year 1973-74, the Commissioner reduced the penalty from Rs. 11,50,000 to Rs. 30,000. Similarly the original penalty of Rs. 1,20,488 (Rs. 87,824) under Section 18(1)(a) for the assessment year 1974-75 was reduced to Rs. 10,000.
6. The appeals of the assessee for these two years came up before us for hearing on 17-1-1984. On a query whether the appeals are maintainable in view of the provisions of Section 18B(5), Shri R.S.Singhvi, the learned counsel for the assessee, contended that the appeals are maintainable. Reliance was placed on the decision of the Karnataka High Court in CWT v. B. Kempanna [1980] 126 ITR 825 and also the decision of the Tribunal, Ahmedabad Bench in the case of WTO v.Gamanlal Kachara-bhai [1983] 5 ITD 651. Since the order passed by the Commissioner under Section 18(2A) (equivalent to Section 18B) does not efface the order of the WTO imposing penalty, the appeal lies to the AAC/Tribunal.
7. Since the above legal issue goes into the root of the matter and is likely to effect the validity of the appeals itself, we consider it necessary to address ourselves first of this issue. It is a fact that the question of appealability of penalty under Section 18 after the Commissioner's order under Section 18(2A) in view of Section 18(2B) came up before their Lordships of the Karnataka High Court in the case of B. Kempanna (supra). In that case the Court held as follows: (ii) The power conferred on the Commissioner under Section 18(2A) of the Wealth-tax Act, 1957, is only to reduce or waive the amount of minimum penalty imposable on a person under Clause (?) or (iii) of Subsection (1) of Section 18(2A). The power could be exercised by the Commissioner notwithstanding the default and there being no reasonable cause for the failure to furnish the return within the time prescribed. The question of the existence of reasonable cause is not within the ambit of Section 18(2A); that inheres in the WTO. The opening words of the section also indicate that it is only notwithstanding anything contained in Clause (i) or Clause (iii) of Sub-section (1) and not notwithstanding any other provision in the Act that the Commissioner could act. The provision does not override or obliterate the jurisdiction conferred on the other authorities under the Act.
Under Section 18(2B), what is made final is the order made under Section 18(2A), i.e., in regard to the quantum of minimum penalty that is directed to be waived or reduced and nothing more. There is no provision that once the assessee filed an application under Section 18(2A) before the Commissioner, he waives his other rights.
(p. 825) However, it is important to note that their Lordships held this view after considering the non-obstante clause of Section 18(2A) which then read as follows: 18.(2A) Notwithstanding anything contained in Clause (i) or Clause (iii) of Sub-section (1), the Commissioner may, in his discretion,'--" The provisions of Section 18(2A) and Section 18(2B) were omitted by the Taxation Laws (Amendment) Act, 1975, with effect from 1-4-1976 and the new Section 18B was inserted in its place. Non-obstante clause was duly amended to read as follows: 18B.(1) Notwithstanding anything contained in this Act, the Commissioner may, in his discretion, whether on his own motion or otherwise,--" 8. As evidenced from the above, their Lordships of the Karnataka High Court did not have an occasion to consider the effect of the new Section 18B. Since the orders of the Commissioner in these cases have beenpassed under Section 18B(1)/18B(4), the above decision which was rendered under Section 18(2A)/18(2B) (since omitted) would not be applicable. Similarly in the case of Gamanlal Kacharabhai (supra) the amendment brought out by new Section 18B had not been brought to the notice of the Bench.
9. Assuming even for the sake of argument that the appeal against the orders of penalty after order of the Commissioner under Section 18B are maintainable, then a very strange situation can arise. Suppose the Tribunal upheld the order of the WTO and dismiss the appeals, then what would be the actual quantum of penalty which remains after the order of the Tribunal. Would it be the penalty amount as reduced by the Commissioner under Section 18B(1)/(4) or the amount of penalty as levied by the WTO? Can the AAC/Commissioner or the Tribunal maintain a penalty order which does not levy such penalty according to the scale laid down in the Act Or can the AAC/Commissioner (Appeals) sit in judgment over the penalty already waived/reduced by the Commissioner with the approval of the Board Such situation, in our view, would be ludicrous. To avoid such possible faux pas, the new section has among other things the following non obstanle clause 'Notwithstanding anything contained in this Act' as the opening words and Sub-section (1) of Section 18B makes the order totally final.
10. The Hon'ble High Court of Calcutta had an occasion to consider Section 18(2A)/18(2B) in the case of Smt. Ichhabai Panchal v. CWT [1982] 137 ITR 232 from an entirely different angle. In that case their Lordships, following a dissenting opinion of Farooqi J. in Fairdeal Motors v. CIT [1979] 117 ITR 137 (J & K) held: The expression 'notwithstanding' in Section 18(2A) of the Wealth-tax Act, 1957, makes it clear that only on the fulfilment of the conditions where penalty was imposable under Clause (a), (b) or (c) of Section 18(1), the power of the Commissioner to reduce or waive the penalty, arises. The moment the assessee chooses to go to the Commissioner for a reduction or waiver of penalty, he admits the position that penalty was imposable. If, on that basis, any order is passed, he cannot feel aggrieved by such an order. In exercising his power under Section 18(2A), the Commissioner must act judicially and if there is an improper exercise of the power then such an exercise would be liable to be challenged in an appropriate proceeding. But an appeal would not be competent against an order passed under Section 18(2A). (p. 232) ... In the scheme, by a necessary implication, after the introduction of Sub-section (2B) in Section 18, in our opinion, in the facts and circumstances of the case, no appeal lay and the Tribunal was correct in its conclusion, ... (p. 243) Similar view is held by the Hon'ble Gujarat High Court in the case of Smt. Kherunissa Allibhai v. CIT [1978] 113 ITR 443.
11. The last argument of Shri R.S. Singhvi, the learned counsel for the assessee, that Section 18B does not specifically bar or waive the right of appeal as in Section 25 of the Act need not detain us further.
Whereas in the case of Section 25 the assessee has to make his option right in the beginning, Section 18B can be availed of at any stage of the proceedings. Though Section 18B covers a limited subject regarding penalty, the power given therein is extraordinary and unlimited. The Parliament has given exclusive power of waiver or reduction of penalty under Section 18B to the Government which shall be exercised through the Commissioner. Once the power is exercised, the order is final and cannot be called into question by any Court or any authority.
12. For the reasons fully given by us, the appeals of the assessee are not maintainable and have to be dismissed. As such the question of merit need not be considered by us. The appeals are, accordingly, dismissed.