9911796707
TMI Blog1980 (4) TMI 8X X X X Extracts X X X X X X X X Extracts X X X X ..... pinion : "2. Whether, in the facts and circumstances of the case, the Tribunal was justified in cancelling the penalty of Rs. 85,000 imposed by the Inspecting Assistant Commissioner under section 271(1)(c) of the Incometax Act, 1961 ? " Briefly stated, the facts of the case, out of which this application arises, are these : One Dr. L. M. Simlot (since dead), now represented by his two sons and widow (hereinafter referred to as " the assessee "), was an individual medical practitioner and in the relevant assessment year 1966-67 was in the employment of the Government of Rajasthan at Moti Katla Dispensary, Jaipur, and apart from the salary income, he had also income from private practice. The said assessee was not keeping accounts of his p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and the Tribunal partly accepted it and held that it will be fair and just and well meet the ends of justice, if the Tribunal estimated non-recovery as Rs. 2,489. It was, therefore, held that the real income which the assessee earned during the relevant year from private practice would be Rs. 1,05,000. It appears that penalty proceedings under s. 271(1)(c) of the Act on the ground that the assessee had concealed particulars of his income, or furnished inaccurate particulars of such income were initiated by the ITO against the assessee, and as the minimum penalty leviable exceeded Rs. 1,000, he referred the same to the IAC, Jaipur Range-1, Jaipur, who, vide his order dated October 6, 1972, imposed a penalty of Rs. 85,000 on the assessee. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 78) On the contrary, the learned advocate for the assessee contends that whether or not the assessee had concealed the particulars of income is purely a question of fact, which does not call for any reference. In support of his contention, the learned advocate has placed reliance on CIT v. Gokuldas Harivallabhdas [1958] 34 ITR 98 (Bom), Addl. CIT v. Gem Palace [1975] 98 ITR 640 (Raj), Addl. CIT v. Noor Mohd. & Co. [1974] 97 ITR 705 (Raj) and CIT v. Goswami Smt. Chandralata Bahuji [1980] 125 ITR 700 (Raj). It may be stated at the very outset that the jurisdiction conferred on this court in dealing with a reference application under s. 256(1) or (2) of the Act is a very limited one, and before the same can be invoked or exercised, it must in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... presumption, though rebuttable, that the assessee concealed the particulars of his income or furnished inaccurate particulars of income for the purpose of cl. (c) of sub-s. (1) of s. 271 of the Act. Though the Tribunal has not referred to the Explanation referred to above, yet as the proceedings were initiated under s. 271(1)(c) of the Act and the IAC, Jaipur Range, Jaipur, in his order dated October 6, 1972, imposing the penalty amounting to Rs. 85,000 has referred to the Explanation to s. 27l(1)(c) and observed that the assessee failed to discharge the onus cast on him under that provision it may be said that the Tribunal also must have considered the Explanation while accepting the appeal of the assessee, against imposition of penalty on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he affidavit and statement of the assessee, it was, therefore, not rationally possible for the Tribunal to hold that the presumption under the Explanation to s. 27l(1)(c) of the Act stood rebutted. The material on which the finding of the Tribunal that the assessee did not conceal the particulars of his income is based was not such on which any reasonable man can come to the conclusion to which the Tribunal has come. The finding of fact recorded by the Tribunal, therefore, is perverse, and as such the Tribunal committed a clear error in holding that no question of law arises for making a reference to this court under s. 256 of the Act. We may also like to mention here that during the course of arguments, the learned advocate for the assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... point of law arises out of the order of the Appellate Tribunal, which needs reference to this court:
" Whether, on the facts and in the circumstances of the case, the Tribunal was justified in cancelling the penalty of Rs. 85,000 imposed by the Inspecting Assistant Commissioner under section 271 (1)(c) of the Incometax Act, 1961 ? "
In the result, the reference application is allowed, and the Incometax Appellate Tribunal, Jaipur Bench, Jaipur is directed to state a case and make a reference of the above point within a period of three months from the date of this order for being decided by this Court. In the facts and circumstances of this case, the parties are left to bear their own costs of this reference. X X X X Extracts X X X X X X X X Extracts X X X X
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