TMI Blog2005 (9) TMI 63X X X X Extracts X X X X X X X X Extracts X X X X ..... he prayer of the petitioner to declare such provision as oppressive and violative of fundamental rights guaranteed under the Constitution cannot be sustained. We therefore repel that challenge and dismiss the writ appeal. - - - - - Dated:- 9-9-2005 - Judge(s) : K. S. RADHAKRISHNAN., K. T. SANKARAN. JUDGMENT The judgment of the court was delivered by K.S. Radhakrishnan J.- Original petition was preferred by the appellant seeking a writ of certiorari to quash exhibit P4 show-cause notice dated May 21, 2002, imposing penalty of Rs. 18,39,420 and Rs. 55,18,260 under section 158BFA(2) of the Income-tax Act, 1961, and also for a declaration that the penalty provision in sub-section (2) of section 158BFA is illegal, oppressive and puniti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al income determined was Rs. 80,69,510 and penal action was initiated under section 158BFA(2). The assessment was contested by the assessee in appeal before the Commissioner of Income-tax (Appeals), Kozhikode, and the same was disposed of by the Commissioner of Income-tax (Appeals) by order dated July 23, 1999. The Department went in second appeal to the Income-tax Appellate Tribunal, Cochin Bench, and the same was disposed of by the Tribunal by order dated December 22, 2001. Penalty proceeding under section 158BFA(2) was initiated at a time when the assessment proceeding was on. The assessee appeared and represented his case and also filed detailed objection to the proposed penal action. Penalty proceeding under section 158BFA(2) of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... section 158BFA(2). (e) The investment in Anubhav Finance amounting to Rs. 50,00,000 which you have failed to disclose under section 158BC which has now been finally held as your income also attracts penal provisions under section 158BFA(2). (f) The investment made by you in M/s. Multiscan which you have claimed in the name of your brother Dr. P.P. Abdul Ghani, amounting to Rs. 50,000 has now been established as your own investment. Since you had failed to disclose this amount under section 158BC, this will also attract penal provisions under section 158BFA(2)." According to the Department the above mentioned facts would attract the provisions of sub-section (2) of section 158BFA. We may in this connection extract section 158BFA(1) an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such person has furnished a return under clause (a) of section 158BC; (ii) the tax payable on the basis of such return has been paid or, if the assets seized consist of money, the assessee offers the money so seized to be adjusted against the tax payable; (iii) evidence of tax paid is furnished along with the return; and (iv) an appeal is not filed against the assessment of that part of income which is shown in the return: Provided further that the provisions of the preceding proviso shall not apply where the undisclosed income determined by the Assessing Officer is in excess of the income shown in the return and in such cases the penalty shall be imposed on that portion of undisclosed income determined which is in excess of the amo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Counsel appearing for the Revenue, on the other hand, contended that there is no basis in the above-mentioned contention. Counsel submitted sub-section (2) of section 158BFA falls under Chapter XIA-B which was inserted by the Finance Act, 1995. Chapter XIV-B deals with special procedure for assessment of search cases. Counsel submitted that there is no illegality in levying interest and penalty in those cases which fall under Chapter XIV-B. Counsel also made reference to the decision of the Gujarat High Court in Rahimbhai Karimbhai Nagriwala v. B.B. Patel [1974] 97 ITR 660 and also the decision of the apex court in CTO v. Swastik Roadways [2004] 135 STC 1 to bring home this point. Chapter XIV-B consists of sections 158B to 158BH which ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
