9911796707
TMI Blog2002 (12) TMI 57X X X X Extracts X X X X X X X X Extracts X X X X ..... and 1980-81, the previous years being Samvat years 2034 and 2035, respectively. After filing the returns, the assessments were framed on October 18, 1979, and February 12, 1981, for the said two years, respectively. In the course of internal audit, it was revealed that the assessee had made certain mistakes in the totals and as a result thereof, lesser income had been returned by the assessee. The said fact was revealed by the audit department somewhere in the month of April, 1981, and the Assessing Officer was informed about the same in the same month. Upon getting the information with regard to the mistakes, which had resulted in showing lower income by the assessee, the Income-tax Officer had issued notice dated July 4, 1981, to the assessee. The Assessing Officer informed the assessee under the said letter that it was noticed that some mistakes had been committed in preparation of the accounts and as the Assessing Officer wanted to verify certain figures from the books of account, the assessee was requested to attend the office of the Assessing Officer on July 13, 1981. In pursuance of the said notice, the assessee had attended the office of the Assessing Officer on July 13, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 81, It was also submitted that the assessee came to know about the mistake which had been committed in totalling at the time when the accounts for the assessment year 1982-83 were being prepared. Thus, it was submitted that the assessee himself had revealed the facts with regard to the mistakes committed in totalling and, therefore, no penalty should have been imposed by the Assessing Officer. After hearing the assessee, the Commissioner of Income-tax (Appeals) upheld the orders passed by the Assessing Officer. Being aggrieved by the orders passed by the Commissioner of Income-tax (Appeals), the assessee filed appeals before the Tribunal. After hearing the assessee, the members of the Tribunal had given different opinions. The judicial Member had opined that there was no case for imposition of penalty, whereas the Accountant Member was of the view that the Assessing Officer was justified in imposing penalty. In the circumstances, according to the provisions of the Act, the case was referred to the Third Member, that is, the Vice-Chairman of the Tribunal, and the Vice-Chairman had concurred with the view expressed by the Judicial Member of the Tribunal. Thus, the majority view ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Act to show that this is a just case where penalty should be imposed. It has been submitted by him that in fact by making incorrect totals, the assessee had made an effort to give inaccurate details or particulars about the income as the income had been reduced on account of deliberate act of the assessee. Learned standing counsel, Shri Bhatt, has also drawn our attention to the contents of the judgment delivered in the case of CIT v. Vidyagauri Natverlal [1999] 238 ITR 91 (Guj). He has submitted that, according to the law laid down in the said judgment, stating incorrect details with regard to the total, would amount to concealment of income. On the other hand, the learned advocate, Shri K. H. Kaji, Appearing for the assessee, has submitted that the view expressed by the majority members of the Tribunal is ust and proper. It has been submitted by him that immediately upon knowing the fact that mistakes had been committed in totalling, under letter dated July 11, 1981, the assessee had informed the Assessing Officer that there were mistakes in the totals. According to him, it is pertinent to note that the mistakes had been revealed only when the accounts for the subsequent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rough the judgments cited by the learned advocates. Upon perusal of the relevant orders and hearing the learned advocates, it is not in dispute that before the proceedings with regard to initiation of penalty and rectification started, the assessee had informed the Assessing Officer under his letter dated July 11, 1981, that he had committed mistakes in totalling and this fact denotes that the assessee was not having guilty mind. It is true that the assessee had already received the notice dated July 4, 1981, at the relevant time, but when the Tribunal has come to a conclusion that the assessee had no intention of concealing particulars of his income or misguiding the Assessing Officer by making incorrect totals, in our opinion, it would not be proper for us to come to a different conclusion. It is a settled legal position that the finding of fact, which might be arrived at by the Tribunal, should not be interfered with by this court while giving its opinion under the provisions of section 256 of the Act. It is not in dispute that whether a person is having guilty mind or what state of mind the person is having and determination thereof is a question of fact and as the Tribunal ha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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