TMI Blog1987 (9) TMI 10X X X X Extracts X X X X X X X X Extracts X X X X ..... rcumstances of the case, the Tribunal is right in holding that even in the absence of any records to show concealment or the quantum thereof for the assessment years 1970-71 to 1974-75, levy of penalty is justified ? 3. Whether, on the facts and in the circumstances of the case, the Tribunal is right in holding that the spread over for a period of five years is justified ? 4. Whether, on the facts and in the circumstances of the case, the Tribunal is right in confirming that the levy of penalty based on a spread over is valid and whether the conclusion that the income nature of the amount of Rs. 80,000 has to be considered as having been established by the Revenue is correct and based on valid evidence and materials ? " The reference ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stly related to the assessment year 1974-75. But, Aboobacker Haji, the partner, admitted that there were original books of account, similar to the ones seized from the premises during the search, for the earlier years also but that they were destroyed. The Income-tax Officer came to the conclusion that secret books were regularly maintained for all the five years. At the request of the assessee, the difference in cash balance as on March 31, 1974, amounting to Rs. 4 lakhs was spread over in equal proportion for the five years. On this basis, an amount of Rs. 80,000 was added to the income for each one of these years. The Income-tax Officer did not accept the returns filed under the voluntary disclosure scheme to the effect that the unaccoun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... estions of law, extracted hereinabove, for the decision of this court, and that is how these four questions were referred by the Appellate Tribunal for the decision of this court. We heard counsel for the petitioner-assessee. It was contended that, on the facts of this case, no penalty is exigible. The Appellate Tribunal overlooked the fact that the principles laid down by the Supreme Court in CIT v. Anwar Ali [1970] 76 ITR 696 will apply to this case. This was only a case where the explanation of the assessee was not accepted and the Revenue has failed to show that there was concealment of income within the meaning of section 271(1(c) of the Act. Counsel for the Revenue, Mr. Menon, however, contended that the Tribunal has categorically f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e assessee pleaded, which was supported by the statement of its partner, Aboobaker Haji, that this difference arose not in the particular year, but was being carried on from year to year from 1970-71. The Income-tax Officer came to the conclusion that there were profits outside the books from 1970-71 onwards. Since the secret books of the earlier years were said to be destroyed the Department was compelled to make an assessment with reference to the unexplained discrepancy detected. The matter was worked out backwards from April 17, 1974. After arriving at the unexplained cash difference as on March 31, 1974, at Rs. 4 lakhs, the assessee's plea that it should be spread over for the five years was accepted. It was the assessee's plea that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... income for each of the five assessment years and the Inspecting Assistant Commissioner has also come to the conclusion that there is concealment. The Appellate Tribunal concurred with these findings and concluded as follows: "For these reasons, we would come to the conclusion that concealment is established in respect of the amount of Rs. 80,000 in each of the years." The Appellate Tribunal gave effect to the voluntary disclosure scheme and held that for each of these years, the penalty can be based in respect of the difference of Rs. 30,000 in each year. We are of the view that the question as to whether the penalty is exigible in a particular case is ordinarily a question of fact. The Appellate Tribunal has, for very valid reasons giv ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
