TMI Blog1978 (1) TMI 9X X X X Extracts X X X X X X X X Extracts X X X X ..... plication briefly stated are as follows : The assessee filed a return for the assessment year 1967-68, declaring the income of Rs. 3,986. Subsequently, the return was revised and in the revised return the income was declared at Rs.11,703. The total income as determined by the ITO was Rs. 67,960. However, the Income-tax Appellate Tribunal determined the income at Rs. 42,591. The amount assessed included amongst others income from plying of truck No. RJY 1600 and profits on sale thereof under s. 41(2) of the I.T. Act, 1961, which the assessee had failed to disclose in the return filed by her. The order of assessment became final in respect of the assessment year 1967-68. As the returned income was less than 80% of the assessed income, penal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... capacity, the assessee executed a contract with Esso Standard Eastern Inc. This agreement also stood in the assessee's name. The profits earned from this truck were also retained by the assessee right up to the time of her death in December, 1970." In conclusion, the Tribunal observed in the quantum appeal, as follows : " In our considered opinion, the above facts brought out on record were overwhelming as not to leave any doubt that the truck in fact belonged to the assessee and he had been enjoying its income. It was purchased by him and registered in his name. It was also got financed by him in his own name to the extent of Rs. 21,000 from Motor General Finance Co. Ltd., with the guarantee of his father-in-law. Subsequently, he exec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Inspecting Assistant Commissioner should have independently examined the explanation of the assessee and all evidence on record. Since the learned Inspecting Assistant Commissioner failed to do so, as such, in our opinion, the penalty Order could hardly be sustained." Feeling aggrieved, the CIT applied to the Tribunal under s. 256(1) of the I.T. Act, 1961, to draw up the statement of the case and refer a question of law said to arise from its order, to the High Court for its opinion. The Tribunal, however, by its order dated December 10, 1976, declined to state the case on the ground that the question as to whether there was concealment of income or not, as to attract the provisions of s. 271(1)(c), was essentially a question of fact. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unal has failed to do and, therefore, a question of law clearly arises: Omar Salay Mohamed Sait v. CIT [1959] 37 ITR 151 (SC) and Lalchand Bhagat Ambica Ram v. CIT [1959] 37 ITR 288 (SC). The application under s. 256(2) of the I.T. Act, 1961, is, therefore, allowed and the Income-tax Appellate Tribunal, Jaipur, is directed to draw up the statement of the case and refer to the court the following question for its opinion, namely : " Whether, on the facts and in the circumstances of the case, the Income-tax Appellate Tribunal was justified in cancelling the penalty of Rs. 15,500 levied by the Inspecting Assistant Commissioner under section 271 (1)(c) of the Income-tax Act, 1961, for concealment of income?" There shall be no order as to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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