TMI Blog1985 (5) TMI 25X X X X Extracts X X X X X X X X Extracts X X X X ..... ef, are that the assessee, M/s. Rasoolji Buxji Kathewala, Udaipur, is a firm consisting of 13 partners, which derives income from manufacture and sale of " katha ". The assessee-firm allegedly borrowed money during the assessment years 1955-56 to 1961-62 and 1964-65 on the basis of " hundis ". The assessment for the aforesaid years was completed by the Income-tax Officer without making any addition of the amounts of the alleged " hundi " loans. It appears that on March 30, 1965, the Income-tax Officer, with the prior approval of the appropriate authority, reopened the assessments for all the aforesaid assessment years under section 147(a) read with section 148 of the Act on the ground that the alleged " hundi " loans were not genuine and th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant Commissioner was of the view that the concealment of income represented by " hundi " loans, interest and " dalali ", having been admitted by the assessee as per the settlement arrived at between the firm and the Commissioner of Income-tax, the assessee was liable to imposition of penalty under section 271 (1)(c) of the Act for concealment of income and for furnishing inaccurate particulars of its income. The Inspecting Assistant Commissioner, therefore, proceeded to impose minimum penalty leviable under section 271 (1)(c) of the Act being 20% of the difference between the tax on the returned income and the tax on the finally assessed income. The assessee filed appeals against the imposition of penalty before the Tribunal and contende ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y under the provisions of section 271(1)(c) of the Act could be levied? 2. Whether, on the facts and in the circumstances of the case, the Inspecting Assistant Commissioner had legally taken action under section 271(1)(c) of the Income-tax Act, 1961, when the default pertained to the assessment year 1955-56, for which the first assessment was made, under section 23(3) of the 1922 Act ? 3. Whether, on the facts and in the circumstances of the case, the Tribunal was justified in law in holding that quantum of penalty for concealment of income in the return submitted prior to April 1, 1962, could be determined by applying the law as it stood after April 1, 1962, and not before that date ? 4. Whether, on the facts and in the circumstan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... egally levied merely because there was an agreement between the assessee and the Revenue-there being no concealment of income ? Learned counsel for the assessee did not press question No. 1, but he vehemently argued that question No. 2 was a question of law arising out of the order of the Tribunal dated December 31, 1977, which ought to have been referred by the Tribunal to this court, for its opinion. The argument of the learned counsel was that in the penalty proceedings, the burden is on the Department to establish the fact of concealment of income by the assessee and that the Department was not entitled to take the benefit of the admission made by the assessee in the settlement application during the reassessment proceedings. It was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . In this view of the matter, one more question should be referred by the Tribunal to this court for its opinion, in addition to the five questions already referred by the Tribunal by its order dated June 28, 1979. The question referred to above arises in all the eight assessment years and as such all the eight applications under section 256(2) are partly allowed but the Tribunal can send one consolidated reference in respect of all the eight assessment years 1955-56 to 1961-62 and 1964-65. Consequently the Income-tax Appellate Tribunal is directed to refer the aforesaid question to this court for its opinion. As the statement of the case has already been sent by the Tribunal to this court in pursuance of its order dated June 28, 1979, i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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