A. Raghuvir, C.J:— The following three questions are referred to this Court under Clause (2) of Section 27 of the Wealth Tax Act—

i) Whether on the facts and in the circumstances of the case and on a proper construction of section 4(1)(a)(i) of the Wealth Tax Act, 1957 the Tribunal was justified in holding that the house property concerned was not an asset indirectly transferred by the assessee to his wife?

ii) Whether on the facts and in the circumstances of the case and on proper construction of section 4(1)(a)(i) of the Wealth Tax Act, 1957, the Tribunal was justified in holding that only the debit balances in the books of the assessee representing funds transferred to the wife should be included u/s 4(1)(a) in the assessment of the assessee?

iii) Whether the Tribunal had any materials or valid reasons for not following its own decision given in Income-tax cases by its order dated 28-11-73 in ITA No. 5610 (Gau) of 71-72 for assessment year 1963–64 and order dated 7-6-79 in ITA Nos. 82 & 83 (Gau) of 75-76 for assessment year 1972–73 and 1973–74 sustaining the application of section 64(1)(iii) of the Income-tax Act, 1961 which is identical to section 4(1)(a)(i) of the Wealth Tax Act, 1957 and whether the decision based on a contrary view taken by the Tribunal in the case is tenable in law?”

2. The building referred in the first question bears number 69 in Purnadas Road, Calcutta-29. The assessee in the reference is N.R Sirkar. Rama Sirkar is the spouse of the assessee. She purchased the land on September 9, 1959 for Rs. 24,700/-. The construction of the building commenced on April 15, 1969 and completed in four years by March, 1964. The plinth area of the building is 4824 sq. feet. The assessee advanced amounts on different dates in between the four years Rs. 18,500/- in 1959–60 and Rs. 1,46,617/- was advanced as loans to her in the calendar years 1960–62, The amount spent by her on the building was Rs. 1,78,821/-. She invested her stridhana gifted by her parents and relatives Rs. 28,204/- on the building. The rest of the amount was obtained by her as loan from the assessee. She paid Rs. 30,000/- of the loan. The outstanding debt on March 31, 1971 was Rs. 1,58,821/-. The further particulars show the land when it was purchased her stridhana amounting to Rs. 10,459/- and the balance of Rs. 14,241/- was paid to the vendor after loan was obtained by her.

3. The particulars of the loans were shown to the Wealth Tax authorities in the three returns filed by assessee on August 1, 1967 for assessment years 1960–61, 1961–62 and 1962–63. The Officer in the three separate orders accepted the amounts of loans were advanced by the assesee to his spouse. In the order of assessment year 1964–65 the loan paid to the spouse in the relevant period was not accepted in view of the Tribunal's order No. 4610 (Gau) of 1971–75 under the Income Tax Act, 1961 for assessment years 1963–64, 1964–65, 1965–66, 1966–67, 1967–68 for the assessee's spouse was not accepted debtor in the assessment orders for 1965–66, 66-67 and 67-68 in the appeal and further appeals under the Income Tax Act. The references to this Court are awaiting decision in this reference.

4. The appellate authority confirmed the order of assess ment under Wealth Tax Act for the year 1963–64. The Appellate Tribunal held no reliance can be placed on the accounts of the assessee. The returns for 1960–1963 were filed on August 1, 1962. The 63-64 IT return was filed on November 11, 1963. Having noted the dates it was held wealth-tax assessment orders passed on the returns for 1960–63 cannot be relied. It was field no repayment of the debt was made before July 29, 1971. The spouse of the assessee was held an ostensible owner or to that effect as she has no source of income. The assessee is the “virtual owner” of the building. The income from the house was held the income of the assessee. These factors were adverted in rejecting the assessee's contention.

5. The three wealth tax assessments for 1960–61, 1961–62, 1962–63 the assessee was accepted the creditor and in the order for 1963–64 that finding is departed by the revenue. That circumstance call for the consideration whether principles of res judicata and estoppel govern assessment orders. One does not need authority at this distance of time to hold the principle of res judicata and estoppel are not at all applicable in tax jurisprudence. The orders in taxation proceedings the enquiries held are concluded every year is accepted as axiomatic we in tend to review cases in this reference.

6. We see in 67 ITR 106 (MM. lpoh v. Commissioner of Income-tax, Madras) the Supreme Court held doctrine of res judicata is not applicable. The assessment made in one year does not bind the assessment in the succeeding year. The facts found held as conclusive only in the year of assessment when findings are recorded, such a finding surely is a cogent evidence or even may be a guide in subsequent year, when the same question or similar question falls to be determined in another year, nevertheless it is accepted as not biuding and not conclusive. In 84 ITR 273 (Commissioner of Income tax, West Bengal v. Brij Lal Lohia and Mahabir Prasad Khemka) the application of the principle of res judicata was adverted. This case is more on facts but it is a case where because of availability of evidence which was shown not available in the preceding year and because of the surfeit of evidence the conclusion was varied. The importance of this case is reason was shown for varying the earlier decision. In another case 44 ITR 529 (Dwarkadas Kesardeo Morarka v. Commissioner Of Income Tax, Central, Bombay , Central Bombay) the Supreme Court emphasised under tax laws assessment orders are separate and a complete order and a decision arrived at in a previous year the taxing authorities cannot regard as binding in the assessment for subsequent years.

7. Adverting to the case of Morarka we do not think every time a like question arises the answer to such a question cannot be put in such a simple terms, for example, we see-in a Full Bench case in the Madras High Court in AIR 1930 Madras 209 (T.M.M Sankaralinga Nadar v. Commissioner of Income-tax) certain deposits made by the female members of assessec was considered as loan in a particular year but in the following year the revenue intended to reopen and enquire as to the truth or otherwise of the debts. The Madras High Court stated the taxation authorities no doubt are entitled to reopen the question. But the Court qualified the power and stated where Income-tax Officials have after enquiry proceeded to assess on a certain basis, though they may be entitled to reopen their order they cannot arbitrarily vary the order simply on the ground that the succeeding officer does not agree with the preceding officer's finding. The revenue officers may have power to reopen the enquiry the Court emphasised they should reopen only there should be fresh facts to arrive at a differnt conclusion otherwise in the absence of fresh facts exercise of power will be considerd as arbitrary exercise of power. The Madras High Court used the expression ‘natural justice’ to bar the exercise of power. The Court warned the revenue officers should not capriciously set aside or arbitrarily overlook the finding of their predecessors as findings are recorded after enquiries. It is in that context the Court said “the Income-tax Officers cannot simply say that he would not be bound by the order of his predecessor affecting a question like the present, namely, whether a certain sum is the capital of the firm or a loan. But if on investigation any additional facts come to his notice which he considers sufficient, he would be entitled to act upon that additional information”. That Court considered a similar question in (1954) 26 J.T.R 805 (Trustees, Nagore Durgah v. Commissioner of Income-tax, Madras) and again principle of natural justice was referred and it was held if there was a prior determination by the Income-tax officials, ordinarily there should be no variation from that decision unless there are fresh circumstances to warrant a deviation from the previous decision.

8. The Bombay High Court considered a like question in 30 ITR 518 (H.A Shah & Co. v. Commissioner of Income-tax & Excess Profits Tax, Bombay. In that case principles of res judicata and estoppel were elucidated including the Madras Full Bench case. It was emphasised on facts the conclusion reached in the preceding year was not determinative and final and con clusive in relation to the assessment for that year. A decision in an earlier year is not binding in a subsequent year. In that case what are the constraints were stated as limitations. There should be finality and certainty in revenue proceedings it was emphasised like all litigations including litigation arising out of the Income-tax Act. A decision on a question cannot be reopened unless earlier decision is arbitrary or perverse. If no fresh facts are there the earlier decision should be followed Finally, it was stated that the effect of revising a decision in a subsequent year (and this we consider it to be very important) Courts must always be anxious to avoid injustice to the assessees. These aspects were high-lighted as principles to be followed by the officers holding enquiries under taxing enactments.

9. A similar question was considered by the Nagpur High Court in (1952) 22 I.T.R 201 (Tejmal Bhojraj v. Commissioner of Income-tax, C.P & Berar, Nagpur), where it was held that the principle of res judicata does not operate on the decsions of taxing authorities. The orders in a previous year can be departed in subsequent years and enumerated : ‘If the previous decision is not arrived at after the enquiry’, ‘if the previous decision was arbitrary’, if fresh facts were brought out in such cases different conclusions from the one arrived at earlier is permissible. It was emphasised in this case that the Income-tax Officer cannot arbitrarily depart from the findings reached after due enquiry merely because the succeeding officer does not agree with the preceding officer's findings.

10. The Patna High Court considered this question in (1941) 9 I.T.R 332 (Kaniram Ganpat Rai v. Commissioner of Income-tax, Bihar & Orissa) wherein it was held that if fresh facts are brought to light a different conclusion in a subsequent year can be arrived at from that of his predecessor in that since there vested power in the officers of the revenue to reconsider the question but if there are no fresh facts and the previous, order was not arbitrary it cannot be deviated.

11. The Allahabad High Court in (1947) 15 I.T.R 61 (Ram Dutta Sita Ram of Basti, In re) considered the principle of res judicata and estoppel and stated if there are good and valid grounds for taking a different view it is open to take different view. In (1950) 18 I.T.R 812 (Kamlapat Motilal v. Commissioner of Income-tax, U.P) that Court held if a competent authority has enquired into the matter such a decision be held binding even if the decision was by implication.

12. We have two Privy Council cases on the subject. The two cases arose from Australia one is a case in (1926) A.C 94 (Broken Hill Proprietary Co. v. Broken Hill Muncipal Council). In that case a previous decision liability to tax was determined in the context of valuation of the subject matter. The Privy Council stated the earlier decision related to a different question. The question on the subsequent year on facts was—“a new question therefore the principles of res judicata cannot apply”. We consider these facts necessary to understand the decision of the Privy Council otherwise the decision in that case ex facie or at the first blush-appear contrary to another case rendered year later by the Privy Council. The latter case 1926 AC 155 (Hoystead v. Commissioner of Taxation) shows the earlier decision was as to the status of six daughters of a testator under a trust created by him in the last testament whether the six of then were joint owners or owned their shares as six indviduals. If they were individual owners they were entitled to separate deductions as against the charging authority. The Full Court of Australia High Court held the daughters were not joint share holders. In subsequent year that conclusion was departed. The Privy Council held—“Very numerous authorities were referred to. In the opinion of their Lordships it is settled, first, that the admission of a fact fundamental to the decision arrived at cannot be withdrawn and a fresh litigation started, with a view of obtaining another judgment upon a different assumpion of fact; secondly, the same principle applies not only to an erroneous admission of a fundamental fact, but to an erroneous assumption as to the legal quality of that fact. Parties are not permitted to begin fresh litigations because of new views they may entertain of the law of the case, or sew versions which they present as to what should be a proper apprehension by the Court of the legal result either of the construction of the documents or the weight of certain circumstances. If this were permitted litigation would have no end, except when legal ingenuity is exhausted. It is a principle of law that this cannot be permitted and there is abundant authority reiterating that principle. Thirdly, the same principle, namely, that of setting to rest rights of litigants, applies to the case where a point, fundamental to the decision, taken or assumed by the plaintiff and traversable by the defendant, has not been traversed. In that case also a defendant is bound by the judgment, although it may be true enough that subsequent light or ingenuity might suggest some traverse which had not been taken. The same principle of setting parties' right to rest applies and estoppel occurs”. The decision of the Privy Council indicates what we pointed out as qualifications, limitations or natural justice or justice in the case. Ordinarily earlier decisions are not to be departed. The comity of decisions is to be followed. The decisions reached after inquiry have to be respected not to be departed for the pleasure of doing so a disease which is not unknown in India.

13. The learned counsel for the assessee argued that the decisions of the Wealth Tax authorities in the orders for 1960–61, 1961–62 and 1962–63 show amounts advanced were loans. The intention of the debtor was to purchase a plot of land and to construct a building to augment her resources. Those intentions of the assessee and his spouse were accepted in the assessment orders for the three years. These orders are binding because the orders have become final. Further because they have not been set aside. Therefore, the counsel urged even if there should be a power left in the hands of the authorities justice in the case warrants those findings are not to be departed.

14. The learned counsel for the revenue contended once it is accepted res judicata and estoppel the two doctrines do not restrict the powers of the authorities it is argued the facts in the case show assessee advanced the money. The law and practice in this country is beneficiary of a trust owns the property. Therefore, it is urged in the instant case there is an indirect transfer within the meaning of sections of the Wealth Tax Act, 1957. Therefore the assessee is the owner of the building. His spouse is not the debtor.

15. We see in UK where theory of advancement operates there is a presumption in favour of the person for whose benefit advancement is made. Such a presumption is not accepted in India. Section 82 of the Indian Trusts Act II of 1982 is apposite in this regard which reads : “Where property is transferred to one person for a consideration paid or provided by another person, and it appears that such other person did not intend to pay or provide such consideration for the benefit of the transferee the transferee must hold the property for the benefit of the person paying or providing the consideration” In India if property is purchased in the name of a person often referred as ostensible owner such a person is not the owner. The person who advances the money is held to be the owner as he is the beneficiary of the trust which was created when amount was advanced. The other shades of the benami are not necessary to be dilated in the instant case.

16. We see on September 9, 1959 the spouse of the assessee purchased a plot of land. A building is constructed on that plot of land. The plinth area of the building is 4824 Sq. feet. On September 9 it is shown she possessed Rs. 28,204/- out of which Rs. 10,489/- she paid the purchase money of the land. The balance of, Rs. 14,211/- she obtained loan from her husband and paid the vendor. The importance of this fact is that her intention was to construct a building. The loans advanced by the assessee was for construction of the building. Subsequent events show Rs. 3,000/- of the loan was repaid by March 31, 1971 and on that day Rs. 1,16,720/- was outstanding. The building she constructed she asserted to be owner. The assessee declared she is the owner. The Wealth Tax Officer accepted the declaration. A finding was recorded she was the debtor. The assessee was the creditor. These conclusions were arrived at after inquiry. Therefore, in a subsequent proceeding whether such a finding is to be departed. If it is to be departed a valid reason is to be recorded and should be shown. We have not found any fresh facts from the orders of the authorities. No fresh facts are stated to have been discovered in the orders. In such a situation the Bombay High Court held even if it can be departed do it for doing justice, what principle of justice warranted in this case to depart from the earlier decision. We put this question and answer in favour of the assessee.

17. The first question we answer in the negative in favour of the assessee against the revenue. Having regard to this answer to first question the second and the third question in view of the answer to the first question are not required to fee answered. No costs.