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O.P. Garg, Judicial Member

1. This appeal has been preferred by the revenue against order dated 6-8-1980 of the Commissioner (Appeals).

2. 1973-74 is the assessment year concerned. The assessee is an individual. The assessment was completed by the WTO as per order dated 23-10-1974 determining net wealth at Rs. 1,69,633. The said figure included an amount of Rs. 19,597 as belonging to the assessee and lying in the Standard Bank Ltd., London in the sum off 1,088.32. The assessee had filed the return of net wealth for the said assessment year claiming the status of non-resident. Thus, according to the assessee in the light of provisions of Clause (i) of Section 6 of the Wealth-tax Act, 1957 ('the Act') the value of the assets and debts located outside India was not includible in the computation of the assessee's net wealth. The learned WTO, however, completed the assessment on the assessee in the status of resident. In this regard, the WTO, actually relied on the finding arrived at by the ITO in the present assessee's income-tax assessment relating to the assessment year 1973-74. That income-tax assessment was also completed as per order dated 23-10-1974. In the return of net wealth filed by the assessee, he had, in view of his claim as to status as nonresident, made a specific statement. 'The assessee is having bank balance with a London bank, which is exempt under Section 6(z) being a nonresident'. Thus in the return of net wealth, the assessee had not disclosed at all any deposits lying in any London bank. Actually, the assessee had two deposits in two different London banks as on the valuation date, namely, 31-3-1973. One deposit was of Rs. 72,724 lying in National City Bank, London in the sum of £ 4040.24 and the other deposit was of £ 1088.32 as aforesaid in the Standard Bank Ltd., London. Shri N.K. Sharma was the ITO as well as the WTO for Distt. III (25) New Delhi. It appears that during the course of wealth-tax assessment under consideration, the WTO (Shri N.K. Sharma) in view of the progress made in the assessee's income-tax case for the assessment year 1973-74 having made up his mind regarding residential status of the assessee individual, enquired from the assessee as to the detail of the debts and assets lying outside India. This is indicated from the following scribbling appearing in photostat copy of the assessee's statement of assessable wealth in the wealth-tax folder:

6. On 6-11-1975, the assessee suo moto filed a photostat scribbling together with purported revised return of net wealth for the assessment year 1973-74 disclosing the deposit of £ 4040.24 (Rs. 72,724) in the National City Bank, London. On receipt of the aforesaid purported revised return dated 6-11-1975 accompanied by forwarding letter of even date, the WTO issued to the assessee a notice under Section 17(1)(a) of the Act, calling upon the assessee to furnish a revised return. The assessee, accordingly, filed a revised return marked duplicate and wealth-tax assessment was, accordingly, completed by the WTO as per order dated 30-9-1976 under Section 16(3) read with Section 17(1)(a) determining net wealth at Rs. 2,42,357, whereas the initial assessment had been completed at net wealth of Rs. 1,69,633. Thus, in the net result, an amount of Rs. 72,724 came to be added being Indian rupee equivalent of the assessee's deposit in National City Bank, London as aforesaid. On completion of the said reassessment order, the WTO initiated against the assessee proceedings for penalty for concealment of particulars of net wealth. Ultimately, penalty of Rs. 72,724 was levied by the WTO as per order dated 24-3-1980 under Section 18(1)(c)ofthe Act.

27. As against this, it was submitted on the assessee's side by way of reply that the WTO had during the course of the initial assessment proceedings, made no specific query from the assessee at all as to the detail of the assets lying outside India and that thus, there was no occasion for the assessee to conceal one of the two deposits lying abroad. It was emphasised on the assessee's side that when the return was filed, there was in view of the assessee's claim to status as non-resident no obligation on his part to disclose the deposits lying abroad and that none was actually disclosed. The assessee's suggestion was that the scribbling that the learned WTO made on the assessee's statement of wealth as accompanying the initial return of net wealth, might have been made by the WTO on the basis of information available to him from the assessment record of the assessee in the income-tax case relating to the assessment year 1973-74. On the assessee's side, it was emphasised that no detection as to the existence of the impugned deposit had been made by the department before the assessee had himself disclosed the same, as per letter dated 6-11-1975. The case of Qammar-ud-Din & Sons v. CIT [1981] 129 ITR 703 (Delhi) was cited on the assessee's side. That ruling laid down that subsequent conduct of the assessee, namely, subsequent to the filing of the initial return of total income, by coming forward to set right the mistake or under statement in the original return had necessarily to be taken into account and that such conduct could lead to the result that penalty was not imposable.

28. For determining whether the assessee in the instant case committed the fault of concealment of an asset of his, the following three questions arise for decision:

(i) Whether the source of wrong information (as to just one deposit of pound equivalent of Rs. 19,957) as scribbled by the WTO on the asses-see's statement of wealth was directly given by the assessee or whether that information was only culled out by the WTO himself from the asses-see's income-tax assessment record, as suggested on the assessee's side during arguments before us.