TMI Blog2018 (6) TMI 841X X X X Extracts X X X X X X X X Extracts X X X X ..... e and is not liable to be mulcted with penalty under Section 271(1)(c) - Decided in favour of assessee. - Tax Case Appeal No. 239 of 2017 - - - Dated:- 14-6-2018 - Ms. Indira Banerjee, CJ And M. Sundar, JJ. For the Appellant : Mr.T.R.Senthil Kumar For the Respondent : Mr.M.P.Senthil Kumar JUDGMENT M. Sundar, J. This is a Tax Case Appeal assailing an order of the Income Tax Appellate Tribunal, 'B' Bench, Chennai. The facts that are essential for appreciating our order are set out infra under the caption 'Factual Matrix'. 2 FACTUAL MATRIX : 2(a) The Assessee in the instant case is a Cine artist and she is also into modeling. Assessee is the sole respondent in this Tax Case Appeal (hereinafter referred to as 'TCA' for brevity) before us. The sole respondent shall be referred to as 'Assessee' for the sake of convenience and clarity. The Principal Commissioner of Income Tax, Central 2 is the appellant in this TCA and the appellant shall be referred to as 'Revenue' also for the sake of convenience and clarity. The assessment year which is subject matter of this TCA is 2010-2011 (hereinafter referred to as the 'sai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s sum was arrived at by the Revenue by computing penalty at 100% of tax payable on what according to the Revenue is the concealed income. What the Revenue contends as concealed income is the sums involved in the two aspects of the matter alluded to supra. 2(e) The above said order of penalty dated 24.9.2013 is the lone core issue in this case. 2(f) The order of penalty, as aforestated, passed by the Deputy Commissioner of Income Tax, Central Circle II(5), Chennai, was carried in appeal by the Assessee. The appeal was before the Commissioner of Income Tax (Appeals) (hereinafter referred to as 'CIT' for brevity), bearing ITA No.775/15-16. The CIT, after scrutinizing the documents in a full fledged hearing, allowed the appeal holding on facts that there is no concealment of income and the instant case does not attract penalty under Section 271(1)(c) of the IT Act on both the above said aspects. Revenue carried the matter to the Income Tax Appellate Tribunal, Chennai (hereinafter referred to as 'ITAT' for brevity) by way of I.T.A.No.1009/Mds/2016. The ITAT also, after a detailed hearing and enquiry, by way of an order dated 6.9.2016 confirmed the order of CIT. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of getting complete and exhaustive inputs on the matter, even to decide whether to admit the TCA. 3(e) Learned counsel for the Assessee would point out that it is incorrect to say that the Assessee filed her revised return only after the issue of Section 143 notice on 23.9.2011. Learned counsel for the Assessee points out that the same issue (advances being treated as income in the same assessment year) arose for the assessee in the previous assessment years, being Assessment Year 2005-06 and 2008-09 and the CIT by orders dated 1.8.2011 held that advances received have to necessarily be shown as income in the same assessment year. On coming to know about this legal position, with the intention of not engaging in confrontation with the Revenue, the Assessee decided to accept the orders of CIT in the above said previous assessment years and give quietus to the same. As the Assessee decided to accept the orders of the CIT for the previous assessment years, the Assessee chose to file a revised return for the said assessment year on 30.3.2012. 3(f) Be that as it may, one other important factor, which the learned counsel for the Assessee would point out, is in the balance shee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case though on facts the Division Bench confirmed the conclusion that the assessee had concealed income and was liable to be mulcted with penalty, the ratio is that the penal provisions are not automatic and the levy itself depends upon the facts and circumstances of each case. The said finding is found in part of paragraph 12 of N.Ranjit's case, which reads as follows : 12.It is not that every case of addition warrants levy of penalty. The application of penal provisions are not automatic and the levy itself depends upon the facts and circumstances of each case. ........ 3(k) Learned counsel for the Revenue, though had filed some other case laws, had pressed into service only these two case laws and we have dealt with these two case laws. 3(l) Though it was not argued in the course of oral submissions, in the hearing before us, we find that in the written submissions filed by the Revenue, the learned counsel for the Revenue has pressed into service a judgment of a Division Bench of this Court, being Commissioner of Income-tax Vs. J.K.A. Subramania Chettiar [(1977) 110 ITR 602 (MAD)]. Pressing into service this judgment, the Revenue would contend that meaning of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... supra, the balance sheet revealed the advances received and at that point of time, the question of whether advances received in the assessment year should be shown in the same assessment year, was before the CIT for previous assessment years for the same Assessee. 3(n) Therefore, we have no hesitation in persuading ourselves to hold that the Assessee, in the instant case, has not concealed the income deliberately (particularly in the light of the fact that advances have been shown in the balance sheet filed even along with the original return) and therefore, is not liable for imposition of penalty under Section 271(1)(c) of the IT Act. 3(o) With regard to disallowance qua non furnishing of chalans for deduction and remittance of TDS, on facts the CIT had come to the conclusion that it is an inadvertent error on the part of the accountant. This has been confirmed by the ITAT. 3(p) Hearing a TCA under Section 260A of the IT Act, we will not reexamine factual findings. We take it that the factual findings arrived at by the CIT and confirmed by the ITAT are conclusive. 3(q) Having said this, it takes us to the proposed / substantial questions of law, on which the Revenue wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 60A of IT Act since substantial questions of law were not framed at the time of admission and were framed after the conclusion of arguments. In doing so, it referred to the Apex Court judgment in Sir Chunilal V. Mehta Sons Ltd. vs Century Spg. Mfg. Co. Ltd. [AIR 1962 SC 1314] to enumerate the principles regarding substantial question of law. Though Chunilal Mehta's case dealt with Article 133(1) of the Constitution of India which provides for certificate of appeal to be granted by the High Court, if the case involves a substantial question of law of general importance, it was cited by the Apex Court to enumerate the principles regarding the concept of substantial question of law . The same case was referred to by the Supreme Court in Hero Vinoth Vs. Seshammal [(2006) 5 SCC 545] to lay down the principles regarding substantial question of law in an appeal under Section 100 of CPC. 3(u) We notice that the Hon'ble Supreme Court of India in Hero Vinoth's case has clearly held that the substantial question of law occurring in Section 100 CPC is different and distinct from a mere question of law. Relevant paragraph reads as follows : 24.The principles relating to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The ratio laid down by the Supreme Court is found in paragraphs 21 to 23 of the said judgment, which read as follows : 21. The phrase substantial question of law , as occurring in the amended Section 100 CPC is not defined in the Code. The word substantial, as qualifying question of law , means of having substance, essential, real, of sound worth, important or considerable. It is to be understood as something in contradistinction with technical, of no substance or consequence, or academic merely. However, it is clear that the legislature has chosen not to qualify the scope of substantial question of law by suffixing the words of general importance as has been done in many other provisions such as Section 109 of the Code or Article 133(1)(a) of the Constitution. The substantial question of law on which a second appeal shall be heard need not necessarily be a substantial question of law of general importance. In Guran Ditta v. Ram Ditta [(1927-28) 55 IA 235 : AIR 1928 PC 172] the phrase substantial question of law as it was employed in the last clause of the then existing Section 100 CPC (since omitted by the Amendment Act, 1973) came up for consideration and their Lordships he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... law of the land or a binding precedent, and must have a material bearing on the decision of the case, if answered either way, insofar as the rights of the parties before it are concerned. To be a question of law involving in the case there must be first a foundation for it laid in the pleadings and the question should emerge from the sustainable findings of fact arrived at by court of facts and it must be necessary to decide that question of law for a just and proper decision of the case. An entirely new point raised for the first time before the High Court is not a question involved in the case unless it goes to the root of the matter. It will, therefore, depend on the facts and circumstance of each case whether a question of law is a substantial one and involved in the case or not, the paramount overall consideration being the need for striking a judicious balance between the indispensable obligation to do justice at all stages and impelling necessity of avoiding prolongation in the life of any lis. (See Santosh Hazari v. Purushottam Tiwari [(2001) 3 SCC 179] .) 3(w) We applied the above test in the instant case. There is no debatable question of law of substance necessary ..... X X X X Extracts X X X X X X X X Extracts X X X X
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