JUDGMENT
M.C. Agarwal, J.
1. By this petition under article 226 of the Constitution of India, the petitioner challenges an order dated June 15, 1982, a copy of which is annexure “7” to the writ petition passed by the Commissioner of Wealth-tax, Lucknow, whereby he rejected an application under Section 18B of the Wealth-tax Act, 1957, for waiver of penalties levied under Section 18(1)(a) for delay in the filing of the returns for the assessment years 1972-73, 1973-74 and 1974-75. The amounts of penalties levied for the three years are Rs. 15,848, Rs. 8,928 and Rs. 3,400, respectively.
2. The learned Commissioner rejected the application observing that the assessee was claiming itself to be a Hindu undivided family while the assessment has been completed on protective basis in the status of individual and in a case of this type where even the status of the assessee is in dispute the provision of Section 18B cannot be applied.
3. We have heard Sri Vikram Gulati, learned counsel for the petitioner, and Sri Shekhar Srivastava, learned standing counsel for the respondent. No counter affidavit has been filed on behalf of the respondents.
4. The assessee-petitioner had filed the three returns showing his status, as an individual. His case, as is evident from the assessment order for the assessment year 1972-73, a copy of which is annexure “1” to the writ petition, was that earlier there was a Hindu undivided family of which he was the karta and on a partition he received certain properties for his share which became his individual property and it was in that respect that the returns of wealth were filed by him. The Assessing Officer doubted the genuineness of the partition and was of the view that the Hindu undivided family has not been disrupted in the manner claimed by the
petitioner and it continued to exist. He, therefore, made protective assessments for the three years on the assessee and subsequently levied the penalties as aforesaid for delay in the filing of the returns. The Commissioner’s observation that the assessee was claiming itself to be a Hindu undivided family is not correct as the returns were filed in the status of individual and he was claiming himself to be an individual. His case was not that he continued to be a Hindu undivided family but that there was a Hindu undivided family on a partition whereof he received the properties in question. It was the Assessing Officer who doubted the partition and thought that the Hindu undivided family still continued. It was for that reason that he made protective assessments on the individual assessee, that is, the petitioner. In such circumstances the penalties in question have also to be treated as protective and subject to the final decision in the case of the alleged Hindu undivided family. If it is held that the Hindu undivided family continued and the properties that have been assessed as the individual wealth of the assessee belonged to the Hindu undivided family then there will be no question of making any assessment on the assessee and there can be no legal obligation on the assessee individual to file a return and he could not be punished for any default. Therefore, the Commissioner should have awaited the final decision in the case of the Hindu undivided family before rejecting the petitioner’s waiver application.
5. We, accordingly, allow the present writ petition and quashing the
impugned order dated June 15, 1982, we direct the Commissioner of Wealth-
tax, Lucknow, to decide the same afresh taking into account the final
decision as to whether the properties in question belonged to the Hindu
undivided family or to the present assessee who is an individual. We also
direct that till the waiver application is finally disposed of by the Com
missioner, the recovery of the penalties in question for the assessment
years 1972-73, 1973-74 and 1974-75 shall remain stayed. The parties will bear their own costs.