TMI Blog1993 (11) TMI 11X X X X Extracts X X X X X X X X Extracts X X X X ..... of imposing penalty ? (2) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in directing calculation of penalty on the basis of income of Rs. 23,173 when the quantum matter is pending to be decided by the High Court ? " The fact of the matter lies in a very narrow compass. The assessee is an individual. He filed a return showing an income of Rs. 7,798, but in the assessment proceeding he was assessed at Rs. 1,02,398. The order of assessment was set aside by the appellate court and the Income-tax Officer was directed to make a fresh assessment. A fresh assessment was made in terms whereof an addition of Rs. 14,000 was added in the jute account and a sum of Rs. 94,225 was added as income from oth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he earlier Division Benches relate to imposition of penalty under section 271(1)(a) of the Act for late filing of return. In our opinion, the decisions of the Supreme Court rendered in relation to section 271(1)(a) of the Act have no bearing on the question of quantum of penalty leviable under section 271(1)(c) of the Act. Accordingly, this case be placed before the Chief Justice for referring it to a larger Bench. " The question raised in this reference is no longer res integra. The matter now stands concluded by a decision of the Supreme Court in the case of CIT v. Onkar Saran and Sons [1992] 195 ITR 1 wherein the Supreme Court upon taking into consideration a large number of decisions held as follows (at page 6): " It would, ther ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oceedings and, since he had filed no such return, he cannot be penalised at all. " This aspect of the matter has been considered by a Division Bench of this court in a recent decision in CIT v. Girish Kumar Kothari [1994] 208 ITR 775, in Taxation Case No. 40 of 1975 disposed of on July 21, 1993. Mr. K. V. Vidyarthi, learned counsel appearing on behalf of the Revenue, however, has placed strong reliance upon a decision of the Supreme Court in Jain Brothers v. Union of India [1970] 77 ITR 107 and relied upon the following observations : " It may be that the Legislature considered that a separate treatment should be given in the matter of assessment itself and under clauses (a) and (b) of section 297(2), the point of time when a return o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y that while applying the penalty provisions contained in the Act of 1961 to cases of persons whose assessments are completed after April 1, 1962, any class has been singled out for special treatment. It is obvious that for the imposition of penalty it is not the assessment year or the date of the filing of the return which is important but it is the satisfaction of the income-tax authorities that a default has been committed by the assessee which would attract the provisions relating to penalty. Whatever the stage at which the satisfaction is reached, the scheme of sections 274(1) and 275 of the Act of 1961 is that the order imposing penalty must be made after the completion of the assessment. The crucial date, therefore, for purposes of p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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