Commissioner of Income Tax vs Radheshyam Garg

G.C. Sohani, J.—The order in this case will also govern the disposal of CIT v. Radheshyam Garg [Misc. Civil Case Nos. 295 and 296 of 1984]. These are applications u/s 256(2) of the income tax Act, 1961 (''the Act''). The material facts giving rise to these applications, briefly, are as follows: Proceedings for reassessment were commenced against the assessee for the relevant assessment years and thereafter penalty proceedings were also initiated u/s 271(1)(c) of the Act. Aggrieved by the order passed by the ITO imposing penalty, the assessee preferred appeals before the AAC which were dismissed. The assessee thereafter filed second appeal before the Tribunal. The Tribunal held on the basis of the material on record that there was no conscious concealment of income on the part of the assessee. In this view of the matter, the Tribunal set aside the order passed by the ITO imposing penalty. The revenue thereupon preferred applications u/s 256(1) before the Tribunal requiring it to refer the following question of law to this Court for its opinion:

Whether, on the facts and in the circumstances of the case, the Tribunal was justified in deleting the penalty levied by the ITO u/s 271(1)(c) of the income tax Act, 1961 at Rs. 7,500, Rs. 9,000 and Rs. 9,000 for the assessment years 1971-72, 1972-73 and 1973-74 respectively?

Having heard the Learned Counsel for the parties, we have come to the conclusion that these applications deserve to be rejected. The question as to whether, on the facts and in the circumstances of the case, there was a conscious concealment of income on the part of the assessee, is a question of fact. The Learned Counsel for the revenue, contended that there was no material before the Tribunal for arriving at the finding that there was no conscious concealment. The Tribunal has referred to certain facts on the basis of which it gave its finding that there was no conscious concealment of income on the part of the assessee. No question of law, in our opinion, arises out of the order passed by the Tribunal. The applications, therefore, deserve to be rejected. The applications are, accordingly, rejected. In the circumstances of the case, the parties shall bear their own costs of these applications.