COMMISSIONER OF INCOME TAX vs. HARDAYAL SINGH

The assessment under Section 143(3)/147 of the Act was completed against the assessee vide order dated 23.1.2004 passed by the Assessing Officer. During the course of the assessment proceedings, it was found that the assessee has received interest on FDRs at Rs.1,28,232/- which was not included in the original return filed in response to notice under Section 148 of the Act. The said amount was included in the assessable income of the assessee. While making assessment vide order dated 23.1.2004, the Assessing Officer also noted that penalty proceedings under Section 271 (1)(c ) of the Act are being initiated separately. Notice under Section 274 read with Section 271 of the Act was issued, asking the assessee to show cause as to why penalty under Section 271(1)(c ) of the Act for concealment of income be not imposed and thereafter vide order dated 1.11.2004 passed by the Assistant Commissioner of Income Tax, Karnal Circle, Karnal a penalty of Rs.82,436/- was imposed upon the assessee. The Commissioner of Income Tax (Appeals) Karnal, vide his order dated 9.9.2005 accepted the appeal filed by the assessee against the penalty order dated 1.11.2004 passed by the Assessing Officer and accordingly, penalty of Rs.82,436/- imposed by the Assessing Officer under Section 271 (1)(c ) of the Act was directed to be deleted.

Aggrieved against the said order, the revenue filed an appeal before the Income Tax Appellate Tribunal, Delhi Bench ‘I’, New Delhi. The Tribunal found that penalty was not imposable as there was no conscious breach of law. While dismissing the appeal of the revenue, vide order dated 5.6.2007, the Tribunal found that no specific infirmity has been pin pointed by the revenue in the conclusion arrived at by the Commissioner of Income Tax (Appeals).

The present appeal under Section 260-A of the Income Tax Act, 1961 (hereinafter referred to as the 'Act') has been filed by the revenue against the order dated 5.6.2007 passed by the Income-Tax Appellate Tribunal, Delhi Bench ‘I’, New Delhi (for short, the ITAT) in ITA No.4330/Del/2005 for the assessment year 1996-97 raising the following substantial questions of law:- “1. Whether on the facts and in the circumstances of the case, the Hon’ble ITAT was right in law in sustaining the order of the Commissioner of Income-tax (Appeals) [CIT(A)], canceling the penalty, levied under Section 271 (1)(c) of the Act, by applying the ratio of judgement of the Hon’ble High Court, in the case of CIT v. Munish Iron Store, 263 ITR 484, as in that case revised return was filed voluntarily, by the assessee, whereas in the instant case, the respondent assessee filed return in response to notice under Section 148 of the Act and the case is covered by explanation 3 to Section 271(1)(c ) of the Act attracting levy of penalty?

Whether on the facts and in the circumstances of the case, the order passed by the learned ITAT is in terms of the provisions of the Income Tax Act, 1961 as the Assessing Officer (AO) while initiating the penalty proceedings under Section 271(1)(c ) of the Act has recorded his satisfaction in the assessment order itself?”

We have heard Sh. Sanjeev Kaushik, learned counsel for the revenue and have also perused the impugned order.

No doubt, the Tribunal has found that penalty proceedings were initiated by the Assessing Officer without recording the satisfaction that the assessee has concealed the income but it has also given a categoric finding that no specific infirmity has been pin pointed by the revenue in the conclusion of the Commissioner of Income Tax (Appeals). The Tribunal has also found that penalty is not imposable if there is no conscious breach of law. The finding of fact recorded by the Tribunal has not been disputed by the learned counsel appearing on behalf of the revenue. From the findings recorded by the Tribunal wherein it has been held that no penalty is imposable if there is no conscious breach of law, the question of law as raised by the counsel for the revenue does not arise. It is pertinent to mention here that it is not the case of the revenue that the finding of fact so recorded by the Tribunal is perverse.

In view of the above, the questions of law as raised by the revenue do not arise for the consideration of this Court. Hence, we find no merit in the present appeal and the same is dismissed. (RAKESH KUMAR GARG) JUDGE July 1, 2008 (SATISH KUMAR MITTAL) ps JUDGE