ORDER
R.C. Sharma, Accountant Member.
These two appeals filed by the revenue are against the orders of the learned CWT(A) dated 26-5-2005 for the assessment years 1997-98 and 1998-99, in the matter of deletion of penalty imposed under section 18(l)(c) of the Wealth Tax Act, 1957.
2. The revenue is aggrieved by the order of the learned CWT(A) for deleting the penalty of Rs. 83,313 in the assessment year 1997-98 and Rs. 1,09,876 in the assessment year 1998-99 imposed under section 18(l)(c).
3. Rival contentions have been heard and records perused. In the instant case the assessee along with his two relatives jointly purchased property comprising of a flat. The total consideration for the said flat was borne by the three persons in proportion 20 per cent, 40 per cent and 40 per cent respectively. Thus, the aforesaid persons jointly held that the said flat as co-owners having a specific share in the property. For the assessment year 1997-98, Smt. Madhuri S. Sheth, one of the co-owners; of the property filed a return of wealth including her proportionate share of the value of the property. The other two co-owners did not file the return of wealth since the net wealth in their cases after including the share of property did not exceed the maximum amount not chargeable to wealth-tax. While completing the assessment the Wealth Tax Officer held that status of the assessee was of assessing officerP, which was confirmed by the learned CWT(A) and the Tribunal. In the order passed under section 18(l)(c) of the Wealth Tax Act, the Wealth Tax Officer observed that the assessee has filed a return of wealth in response to the notice under section 18 of the Wealth Tax Act. Therefore, the assessee has concealed particulars of wealth and penalty was imposed under section 18(i)(c) of the Act.
4. By the impugned order of the learned CWT(A), deleted the penalty in both the years by observing as under :
“Having considered the factual submissions and the ratio laid down by various decisions in this regard, I am of the view that there has been no concealment of wealth in the present case. The proportionate share of the property in the return of wealth was included in the hands of the coowners on the basis of various decisions, the factual agreements and other evidence on the basis of which such bona fide belief was arrived at. The assessee has also filed all details in support of its contentions and the assessee has not suppressed any facts or details at any stage. Moreover the assessee has on its own, on and from assessment year 1999-2000 rectified the returns of income filed earlier erroneously under the status of the assessing officer where the co-owners included the proportionate share of income in their returns as individuals and in their returns filed in their status as individuals. The department had itself accepted the position that the status of the person was that of a co-owner and not an assessing officerP for the earlier assessment year 1995-96 for wealth-tax purposes wherein the proportionate value of the property which was included in the hands of Mrs. Madhuri Sheth was accepted by the department in a regular assessment under section 16(3) of the Wealth Tax Act. The assessing officer had therefore, taken the view earlier that the status was that of co-owners and not that of assessing officerP. Hence even otherwise there was another view in the matter as far as the issue on merits was concerned. Under the circumstances it could not be said that the assessee had acted malafide or in conscious disregard of law. I am also inclined to agree with the submissions of the assessee that the mere fact that the explanations of the assessee on merits have been rejected does not mean that the appellant has concealed the particulars of wealth or furnished inaccurate particulars of such wealth. The inclusion of the property in the hands of the assessing officer and not the co-owners being purely on account of difference of opinion and interpretation of the provisions and decisions on section 21AA and on the concept of an assessing officer, there was reasonable cause for a different view in the matter as regards the status of the assessee was concerned.
The assessing officer has levied penalty merely on the basis that the disallowance on merits was confirmed by the Commissioner (Appeals) and the Hon’ble Tribunal. On this basis he has concluded that there was concealment. However, the assessing officer has also not been able to show or bring forward any evidence to show that there has been a deliberate or conscious concealment on the part of the assessee or that the assessee’s contentions were frivolous dishonest or mala fide which is a pre-requisite for levy of penalty.”
5. We have considered the rival contentions and carefully gone through the orders of the authorities below and find from the record that under bona fide belief the assessee has filed return of wealth showing proportionate share of flat in their wealth-tax return. Merely because status was treated by the department as assessing officer, no mala fide can be attributable to the assessee for concealment of the wealth. The assessee had included proportionate value of the flat in the individual return of wealth for the assessment year 1997-98 of the co-owners. The assessee Smt. Madhuri Sheth, in her individual return of wealth filed for assessment year 1997-98 had included proportionate share of flat for wealth-tax purposes. The other co-owners whose taxable wealth was below the minimum limit is not liable to tax did not file the return of wealth and this position was accepted by the department itself for the earlier assessment year 1995-96 in the wealth-tax assessment under section 16(3) of the Act and in case of Mrs. Madhuri Sheth where the net wealth of Rs. 18,66,700 was accepted, which included the share in the impugned flat. Thus the assessee was under bona fide beliefs that correct status was that of co-owners of the property and not that of an assessing officer and it was on the basis that the value of the property was included in the individual co-owner’s wealth-tax computations. This belief was also based on various decisions which have stated that assessing officer implies that two or more persons join in a common purpose or join enterprises, the object of which is to produce income. Mere receipt of income and its distribution without actually producing income is not indicative of an assessing officer nor would the fact of common management of property and distribution of income be indicative of assessing officer. The essential criteria of assessing officer is unity of income-making purpose rather than unity of title in the income yielding asset. In the instant case we found that the assessee had already included proportionate share of property in the return of wealth and that all the details were filed in support of this contentions and the assessee has not suppressed any facts or details at any stage. Moreover, the assessee had on its own, on and from assessment year 1999-2000 rectified the returns of income filed earlier erroneously under the status of assessing officer. Whether the co-owners included the proportionate share of income in their returns as individuals and in their returns filed the status as individuals, we also found that the department had also accepted the position that the status of person that of co-owners and not an assessing officer for the earlier assessment year 1995-96 for wealth-tax purposes, wherein the proportionate value of the property which was included in the hands of Mrs. Madhuri Sheth was accepted by the department in regular assessment framed under section 16(3) of the Wealth Tax Act. The assessing officer had therefore, earlier taken the view that the status was of co-owners and not that of an assessing officer. Thus, there was another view in the matter as far as treatment of a status as assessing officer or co-owners of property is concerned. Under these circumstances, as per our considered view it could not be said that the assessee is acting mala fide or in conscious disregard of the law. Mere fact that explanation of the assessee has not been accepted as co-owners of property does not mean that assessee has concealed the particulars of wealth or furnish inaccurate particulars. of such wealth. The inclusion of property in the hands of assessing officer and not the coowners is on account of difference of opinion and interpretation of provisions of section 21AA, and on the concept of assessing officer, there was reasonable cause for a different view with regard to status of assessee. Nothing was brought on record by the learned departmental Representative to controvert the finding recorded by the learned CWT(A) while deleting the penalty.
6. In view of the above, we do not find any infirmity in the order of the learned CWT(A) for deleting the impugned penalty.
7. In the result, both these appeals of the assessee are dismissed.