Charanjit Tajlwar, J.:— The petitioner Shri A. N. Sarvaria, (since expired) had challenged the legality of the order passed on 30th December, 1974, by the Commissioner of Wealth-tax, New Delhi, refusing to reduce or waive the penalty imposed on the petitioner by the Wealth Tax Officer on the ground that the returns of wealth tax for the assessment years 1965-66 to 1971-72 had not been filed voluntarily.
2. The wealth tax returns for the years 1965-66 to 1970-71 were filed by the petitioner on 29th December 1970. According to the petitioner he had not received any notice under section 14 (1) of the Wealth Tax Act, 1957, (hereinafter called ‘the Act’). However, return in respect of the assessment year 1971-72, it is the case of the petitioner, was filed by him on 8th July, 1971, after receipt of a notice dated 16th June, 1971, under section 14 (2) of the Act. It is averred that soon after the filing of the returns the petitioner paid wealth tax on the basis of those returns as per the provisions of section 15-B of the Act. The net wealth as declared by the petitioner in the said returns, it is stated in the petition, was accepted by the Wealth Tax Officer as per assessment orders, copies of which are Annexure A-1 to A-7 to the writ petition. The Wealth Tax Officer initiated proceedings under section 18 (1) (a) of the Act for levying penalty for late filing of the returns in respect of the assessment years 1965-66, 1966-67 and 1968-69 to 1971-72. For the assessment year 1967-68, the Wealth Tax Officer initiated proceedings under section 18 (1) (c) of the Act and issued a show cause notice requiring the petitioner to state as to why penalty for concealing of wealth be not levied. This order qua the assessment year 1967-68 was however, dropped by the Inspecting Assistant Commissioner holding that there was no concealment on the part of the petitioner. Thereafter, the Commissioner of Wealth Tax acting under section 25 (2) of the Act directed that penalty proceedings under section 18 (1) (a) of the Act for late submission of return for that year be initiated. Thereafter, the petitioner by an application dated 29th December, 1973, under section 18 (2) (A) of the Act filed before the Commissioner of Wealth Tax, sought that as his wealth tax returns had been filed by him voluntarily and had been accepted penalty for late filing of those returns be not levied.
3. The finding of the Commissioner that the returns filed were not voluntary are contained in paragraphs 4 and 5 of the impugned order, Annexure D-1 to the writ petition. It is useful to quote those paragraphs: —
4. A perusal of the records showing that the assessee came up for survey during the course of survey operations carried out by the Department in respect of wealth-tax on agricultural properties. A survey report is on record and this was received by the W.T.O on the 22nd December, 1970. This shows the land holdings of the assessee along with his other assets, like shares and commercial plots, etc. It is only after the survey had been carried out and the affairs of the assessee noticed that he came forward and filed these returns. These returns cannot, therefore, be said to be voluntary for any of these years.
5. Shri Sadhu Ram Aggarwal, Advocate, vehemently asserted that the filing of returns was without the issue of notices by the W.T.O That is altogether a separate condition prescribed under Sec. 18 (2A) and if that condition was satisfied, the disclosure has still to be voluntary. In this particular case, the motivating factor for the assessee to make these returns was certainly nothing other than the initiative of the Department in locating him during the course of survey. Shri Sadhu Ram further stated that the assessee paid the taxes immediately after filing the returns and that he satisfies all the other conditions. As mentioned above, the assessee has to satisfy all the conditions, and in this case he certainly does not qualify to be held as a person who came up voluntarily. As the assessee does not satisfy one of the conditions, the disclosure is rejected. In fact, there are other conditions also which the assessee does not satisfy for some of the years, like issue of notices, but it is not necessary to go into further details”.
4. I may notice here that in the writ petition the petitioner is not challenging the levy of the penalty for late filing of the return in respect of the assessment year 1971-72. It is his own case that, that return was filed by him after the receipt of notice under section 14 (2) of the Act.
5. I may note here another fact and that is that the respondents have chosen not to file any return to the rule nisi. However, Mr. Wazir Singh, learned counsel appearing for the Revenue, at the time of arguments took up a preliminary objection to the maintainability of the writ petition. According to him although the Commissioner passed a common order rejecting the application of the petitioner seeking quashing of the levy of penalty for the various assessment years yet the petitioner was obliged to file separate writ petition in respect of each assessment order and not a joint petition assailing the imposition of penalty in respect of all the assessment years in question. In support of his contention Mr. Wazir Singh cited A.P Vasudevan v. State of Madras, 1978 Tax. L. R. NOC 97 (1), wherein a Single Judge of the Madras High Court held that where 18 assessment orders were challenged in 18 revision petitions which were disposed of by the Commissioner appointed under the Tamil Nadu Entertainment Tax Act by a common order, a single writ petition was not maintainable challenging all those assessment orders. The reasons for arriving at this finding, however, have not been given in the report. In my view, the objection taken at the time of arguments is entirely misconceived. In the present case, as noticed above, the petitioner had filed a single application seeking waiving of the penalty imposable under section 18 (2-a) on the plea that the returns which he had filed were voluntary and that his case otherwise also fell within purview of section 18 (2-a) (a) of the Act. He was not challenging in that application the assessment orders passed. At that stage, as is clear from the facts noticed above, even the order imposing penalty, copies Annexure C-1 to C-6, dated 5th March, 1974, had yet to be passed. As noticed earlier the application was made on 29th December, 1973. However even a petition assailing the assessment of more than one years, if admitted cannot be justly dismissed as being incompetent, especially when the grounds of challenge are exactly similar. This has been held by a Division Bench of the Punjab High Court in Madan Mohan and another v. The District Excise and Taxation Officer, Bhatinda and another, (1964) 15 S.T.C 648 (2). In the present case, as noticed above, the respondents have not chosen to file a counter-affidavit. If they were so advised, they could have taken the preliminary objection in the return so that even if the principle propounded by the Madras High Court in A. V. Vasudevan's case (supra) was to be accepted for the sake of argument that the order amounts to refusal to waive penalty imposable under section 18 for different assessment years, the petitioner could have then an opportunity to meet it or file separate petition in respect of each year. The writ petition was admitted on 24th March, 1975. In my view, it is not just to entertain the objection at this late stage even if it be assumed that such an objection can be taken by the respondents.
6. Now adverting to the reasons given by the learned Commissioner for dismissing the application of the petitioner. According to the impugned order, after the survey had been carried out by the department in respect of the wealth tax on agricultural properties, the returns filed by the petitioner on 29th December, 1970, could not be treated to be voluntary as the affairs of the assessee had come to the notice of the authorities under the Act on 22nd December, 1970, i.e, the date of the survey report. Learned counsel for the respondents in support of the contention that the order passed by the Commissioner is correct and that the petitioner was under a “constraint” to file the returns as he “was likely to be caught” and hence those returns were not voluntary, relies on Hakam Singh and others v. Commissioner of Income-tax, Meerut, (1980) 124 I.T.R 228 (3). The facts in the said case were that on 22nd November, 1973, the business premises of the petitioner in that case were searched by the Income-tax Department, and certain books were seized. Thereafter, the petitioner on 7th October, 1974, filed returns of income for the assessment years 1966-67, 1967-68, 1968-69, 1969-70, 1972-73 and 1973-74. Subsequently on 25th March, 1975, a notice under section 148 of the Income-tax Act was served on the petitioner. In due course, the Income-tax Officer initiated penalty proceedings for delay in filing the return and for not filing the estimate of advance tax under ss. 271 (1) (a) and 273 (b). Thereupon, the petitioner applied to the Commissioner under S. 273A for waiver or reduction of the imposable penalty. I may note here that the provisions of section 18 (2-A) of the Wealth Tax Act are pari materia to section 273-A of the Income-tax Act. The Commissioner dismissed the application on the finding that the filing of the return was not voluntary. He held that as admittedly the returns had been filed after the search, the provisions of section 273A were not attracted. A Division Bench of the Allahabad High Court found that the petitioner knew that according to the books seized at the search the income of the petitioner was above the taxable limit and it was only when these books came into the possession of the department that the petitioner filed returns of income. It was held, “The inference that the returns were filed because the petitioners were promoted to save themselves for the consequence of not filing the return and that they were prompted by a sense of fear does not appear to be unjustified”.
7. The question in the said case, therefore, was whether a return filed out of sense of fear of levy of penalty or of prosecution is voluntary. Negativing the contention of the petitioner it was held in the facts of that case that the return filed were not voluntary.
8. Mr. Ahuja, learned counsel for the petitioner, however, has invited my attention to the decisions of various High Courts in support of his argument that in the facts of the present case the Commissioner failed to exercise his jurisdiction by holding that the returns were not voluntary. His plea is that returns filed by the assessee even after the issuance of a notice under section 14 (2) of the Act but prior to its service has been held to be voluntary. [See Kundan Lal Behari Lal v. Commissioner of Wealth Tax U.P and another, (1975) 98 I.T.R 359 (4) .]. In the said case, admittedly the assessee had filed his return for the assessment years 1964-65 to 1970-71 on 2nd December, 1971. On 6th December, 1971, the assessee was served with a set of six notices under section 17 of the Act, all dated 29th November, 1971, issued by the Wealth Tax Officer calling on the assessee to file his returns for the years 1965-66 to 1970-71. The Commissioner passed the order on the assessee's application under section 18 (2A) on 7th September, 1972. He waived the penalty for the year 1964-65 as no notice under section 17 had been issued for that year but for the returns of the subsequent years he held that as the notice under section 17 had been issued prior to the submission of the returns those could not be held to be voluntary. It was held by a Division Bench of the Allahabad High Court that a notice cannot be said to have been issued to a person unless he is served with it. Therefore, an assessee who makes a full disclosure of his wealth before notice is served, is entitled to the benefit of section 18 (2A). The order of the Commissioner was accordingly set aside on the ground that he failed to exercise his discretion under the provisions of the Act.
9. Another case cited by Mr. Ahuja is Madhukar Manilal Modi v. Commissioner of Wealth Tax Gujarat-V, and another (1978) 113 I.T.R 318 (5). The facts of that case were that the assessee filed his return of net wealth under section 14 (1) of the Act on 29th November, 1971, for the assessment year 1971-72. For the assessment years 1969-70, 1970-71 the returns were filed by him on 19th September, 1973, a few days before the assessment for 1971-72 was completed. It was the admitted case of the parties that the returns for the said two years were filed only after the assessee was asked during the course of the assessment proceedings for the assessment year 1971-72 to file those returns. The application made by the assessee to the Commissioner under section 18 (2A) praying that the minimum penalty imposable be waived, was rejected on the ground that those returns were not voluntary. A Division Bench of the Gujarat High Court has held that by the more fact that a return has been filed under the advice, suggestion or even at the behest (otherwise than by a notice under section 14 (2) of the Wealth Tax Act) it does not cease to be a voluntary return. In this judgment it has been held that though section 18 (2a) (a) uses the word ‘voluntary’, the said word has to be read with the expression “made full disclosure of his net wealth”. It has been observed that, “That condition which the legislature has imposed is that in cases where an assessee has, prior to the issue of notice to him under section 14 (2), filed a return but has not done so within the time limited by law, he must satisfy the Commissioner that he has made full disclosure of his net wealth voluntarily and in good faith. The word ‘voluntary’, therefore, has not to be read in the context of the filing of the return”.
10. This judgment of Gujarat High Court has been distinguished on facts by the Allahabad High Court in Hakam Singh's case (supra), It was observed that the advice or suggestion of the authorities concerned to file a return for the remaining years without there being any proof that that authority had given any inducement or assurance that the penalty would be waived could be held to be anything but voluntary.
11. In the facts and circumstances of the present case it cannot be held that merely because there was a survey of agricultural properties showing that the petitioner also owned agricultural land, he was under a ‘constraint’ to make full of his net wealth. Further, the survey report cannot, in my view, be equated with seizure of books of account of the assessee from search of his premises. The returns for the year 1965-66 to 1970-71 were filed without notice. The petitioner had made full disclosure of his net wealth. The authorities did not detect any concealment therein and, therefore, it has to be held that the returns for the said assessment years were voluntary.
12. The result of the above discussion is that the petition is allowed and the impugned order of the learned Commissioner passed on 30th December, 1974, relating to the assessment years 1965-66 to 1970-71 is set aside. The matter is sent back to the Commissioner of Wealth Tax for decision afresh of the application dated 29th December, 1973, copy Annexure ‘D’, made by the assessee in so far as it relates to the assessment years 1965-66 to 1970-71.
13. No order as to costs.
Petition allowed.