TMI Blog1970 (2) TMI 29X X X X Extracts X X X X X X X X Extracts X X X X ..... ssioner had jurisdiction to levy penalty on the basis of the satisfaction of the Income-tax Officer in the course of the assessment proceedings ? 2. Whether, on the facts and in the circumstances of the case, the provisions of section 271(1)( c) can be invoked by the Inspecting Assistant Commissioner in the absence of any proceedings before him ? 3. Whether, on the facts and in the circumstances of the case, the Tribunal was justified in confirming the penalty for alleged concealment when the income itself was based on estimates?" The short facts necessary for appreciating the contentions of the petitioner are as follows : The assessee, a bus operator carrying on business in Coimbatore, was admittedly not maintaining any accounts in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sioner to entertain the proceedings and levy penalty its he did. The Tribunal on the merits found that the penalty order was justified and had to be upheld. An application under section 256(1) was made before the Tribunal to refer the above questions of law said to be arising from and out of this older. On a refusal by the Tribunal to do so, the present application has been filed. Mr. Padmanabhan, the learned counsel for the petitioner, would urge that the matter involved in this case is not purely a question of law, but is a matter concerning jurisdiction and, therefore, notwithstanding the fact that the matter was not mooted before the Appellate Tribunal, it is open to this court in exercise of its powers under section 256(2) to requis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... interpretation. Where the subject is whether a question of law arises out of the order of the Tribunal, one should find intrinsically in the order itself any misapplication of law or error of jurisdiction or error apparent thereon or at least an unreasonable inference on proved facts. If on the other hand no argument has been addressed on a particular aspect and incidentally, therefore, no question has been raised and presented before the Tribunal for decision, then they had no opportunity to advert to it or consider it and above all decide on it. It is one thing to say that a question was argued and a question of law arises therefrom ; but it is totally a different situation when the record is conspicuously silent about a particular aspec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fore the Tribunal. But the argument is that the matters relating to jurisdiction go to the root of the question and is something which is more than a question of law. This might be so. But, as long as the Tribunal was not confronted with such a problem and was not called upon to apply its mind to it, then it would be unreasonable to characterise the order of the Appellate Tribunal as incorrect and call upon them to state a case on a question which cannot, and obviously does not, arise from its order. By approaching this court under section 256 in such circumstances, the normal statutory routine cannot be by passed, and a new question culled out from the order of the Tribunal outside its text, scope and content. Mr. Padmanabhan puts the ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sessee were rejected and the best judgment method was invoked and latterly penalty imposed. In those circumstances, justice Srinivasan observed as follows : " Where it is shown that the assessee has deliberately concealed particulars of his income and has pursued a policy of concealment, it may well be that the Income-tax Officer may not stop to consider whether any items omitted were explainable on the basis of inadvertent mistakes or the like, for the overall activity of the assessee may colour the entire transaction. We do not think that the ratio in this case in any way helps the petitioner. On the other hand, the learned judge has indicated that if the conduct of the assessee is so coloured and contumacious, then it is not necessar ..... X X X X Extracts X X X X X X X X Extracts X X X X
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