Commissioner of Income Tax vs Hukam Chand Hari Prakash

Gupta, J.

This is a petition u/s 256(2) of the Income Tax Act, 1961 (hereinafter referred to as the Act).

For the assessment year 1987-88, the assessee filed its return and declared an income of Rs. 44,080. Subsequently, a survey was conducted at the business premises of the assessee. A revised return was filed by the assessee on 29-9-1988, declaring a total income of Rs. 1,89,580. On 23-1-1989, the assessment was completed u/s 143(3) of the Act. The taxable income was fixed at Rs. 1,91,500.

Simultaneously, the assessing officer had initiated proceedings for imposition of penalty. Vide order dated 6-3-1991, a penalty of Rs. 70,000 was imposed. Aggrieved by the order, the assessee filed an appeal. It was dismissed by the Commissioner (Appeals) vide order dated 7-1-1992. However, on second appeal, the Tribunal reversed the order. The revenue filed an application u/s 256(1) of the Act. The said application having been dismissed, the revenue has filed the present petition u/s 256(2).

The revenue contends that the following question of law arises for the opinion of this court :

"Whether, on the facts and in the circumstances of the case, the Tribunal is justified in law in cancelling the penalty levied u/s 271(1)(c) Rs. 70,000 duly sustained by the Commissioner (Appeals) without appreciating the fact that the filing of revised return itself as a result of survey on assessee''s premises which is tantamount to admission of concealment on the part of the assessee ?"

The learned counsels for the parties have been heard.

Mr. R.P. Sawhney, the learned counsel for the revenue, relying upon the decision in Mahavir Metal Works Vs. Commissioner of Income Tax, , contends that the revised return having been filed after the survey, the court should presume that there was concealment.

The claim made on behalf of the revenue has been controverted by Mr. Sanjay Bansal, the learned counsel for the respondent. He has referred to the decisions in Commissioner of Income Tax Vs. V. Narashima Prasad, and Commissioner of Income Tax Vs. Suresh Chandra Mittal, .

The Tribunal after consideration of the matter has recorded the following findings:

"14. The discrepancy in the dates as found in the diary with reference to the books of account was not elaborated in the assessment order. It was stated that these entries find place in the diary on the later dates. The assessing officer mentions in the order that assessee-firm voluntarily disclosed peak amount of Rs. 1,45,500 for want of proof u/s 69/69A/69B of the Act. Assessing officer did not specify any particular section to which this addition was made. Even if it is construed to be a case of deemed addition, the onus lies on the revenue to prove the fact of concealment.

Having regard to the above, we are of the opinion that the factum of concealment was not proved beyond the shadow of doubt. There was no independent enquiry as to the fact of concealment. Penalty for concealment is not automatic. It is incumbent on the assessing officer to prove the fact of concealment with reference to the material available. This was not done. As such, in our opinion, the concealment was not proved. We, therefore, exonerate the assessee from the rigour of penalty."

Nothing has been placed before the court to show that these findings are contrary to the evidence on record. The Tribunal has taken a possible view. In the absence of positive evidence of concealment, we find no ground to interfere with the finding. Still further, we find that the view expressed by the Karnataka High Court in V. Narashima Prasad''s case (supra), as also the observations of their Lordships of the Supreme Court in Suresh Chandra Mittal''s case (supra) fully cover the present controversy.

Resultantly, we find that no question of law arises, which may require an expression of opinion by this court. The petition is, accordingly, dismissed.

No costs.