TMI Blog2005 (6) TMI 233X X X X Extracts X X X X X X X X Extracts X X X X ..... t is per incuriam." 2. Since legal issues are involved in these appeals, it is not necessary for us to set out the facts in detail. It is suffice to say that in all these cases the assessments were completed under section 143(3) and at the end of the assessment order it was mentioned to the effect that penalty proceedings are/are being initiated separately. Apart from these observations the Assessing Officer had not whispered anything about the satisfaction in terms of section 271(1)(c). On these facts the question for consideration is whether the penalty proceedings were initiated in accordance with law. 3. This aspect of the issue was the subject-matter of consideration before the Hon'ble jurisdictional High Court in the case of CIT v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... td. [2005] 145 Taxman 300 (Delhi). In view of these decisions it has to be held that in all the cases before us, penalties were not validly initiated inasmuch as no satisfaction in terms of section 271(1)(c) was recorded by the Assessing Officer. 5. In view of the above, we would have allowed the appeals of the assessees before us, but the ld. DR strongly submitted before us that the aforesaid judgment of the Hon'ble Delhi High Court in the case of Ram Commercial Enterprises Ltd. is per incuriam inasmuch as Their Lordships relied upon and referred to in their judgment only part of the observations of the Hon'ble Supreme Court in the case of S.V. Angidi Chettiar appearing at page 745 of the report and did not refer to the remaining portion ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to consider the same. According to him, had the Hon'ble Delhi High Court considered the entire observations of the Apex Court, the decision would have been entirely different. He proceeded to argue that in the case before the Hon'ble Supreme Court, there was an endorsement at the foot of the assessment order by the Income-tax Officer that action under section 28 had been taken for concealment of income which clearly indicated that the Income-tax Officer was satisfied in the course of the assessment proceedings that the assessee had concealed its income. He further submitted that in all the present cases similar endorsement is there and, therefore, such endorsement amounts to satisfaction in terms of section 271(1)(c) as per the ratio laid d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... decision of the Supreme Court." 8. As noticed by us above, a judgment can be said to be per incuriam only if it is rendered in ignorance of the provisions of a statute or a rule having statutory force or a binding authority. But, if the relevant provisions of the Act and the binding judgments have been considered by the Court in its judgment, then it cannot be said that the judgment was delivered in ignorance of the relevant provisions of the Act or the binding precedent. In the present cases, it is not the case of the Revenue that relevant provisions of the Act were not considered. It is also not the case of the Revenue that the jurisdictional High Court rendered the judgment in ignorance of the Supreme Court judgment. In our considered ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nalty proceedings. In a recent judgment in the case of Vikas Promoters (P.) Ltd. the Hon'ble jurisdictional High Court again observed that the Apex Court in the case of S.V. Angidi Chettiar, had emphasized that satisfaction is not to be in the mind of Assessing Officer, but must be reflected from the record. Therefore, element of satisfaction should be apparent from the order itself. This shows that judgment of Supreme Court was duly considered and applied in various judgments. Consequently, neither the judgment of jurisdictional High Court can be said to be per incuriam nor in conflict with judgment of Apex Court. 10. In view of the above discussion, it is held that penalty proceedings were not initiated in accordance with law and conseq ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
