INDERMAL MANAJI. vs. THE COMMISSIONER OF INCOME TAX, CITY-VIII,MUMBAI
What did the High Court hold?
The High Court held that the Tribunal was not right in invoking Explanation (1) to Section 271(1)(c) of the Act. The Court noted that the penalty proceedings were initiated based on the AO's rejection of the assessee's claim of carrying on the business of draft discounting. However, the Tribunal, in the quantum appeal, explicitly held that the assessee did carry on the business of draft discounting. While the Tribunal revised the commission rate to Rs. 2 per thousand, this did not negate the fundamental finding that the assessee was engaged in the business. The Court emphasized that the very basis for initiating the penalty proceedings was set aside by the Tribunal's decision in the quantum appeal. Furthermore, no addition to income was made in the quantum appeal; instead, the assessee's claim of conducting the business was accepted. Therefore, Explanation (1) to Section 271(1)(c), which deals with concealment or furnishing of inaccurate particulars of income or failure to offer a satisfactory explanation for additions/disallowances, was not attracted. The Court distinguished the cited cases of Chuharmal and Kalindi Rail Nirman Engineering Ltd. as having different factual matrices where income concealment or unexplained articles were involved.
What were the facts?
The assessee, Indermal Manaji, claimed to be in the business of draft discounting, earning a commission of Rs. 1 per thousand. For assessment years 1982-83 to 1985-86, the Assessing Officer (AO) rejected this claim, treating the income as 5% of deposits. The AO initiated penalty proceedings under Section 271(1)(c) and passed an order on September 21, 1989, holding the assessee liable for penalty. The Commissioner (Appeals) upheld this order on February 26, 1990. The assessee appealed to the Tribunal, which, in an order dated July 13, 1993, held that the assessee did carry on the business of draft discounting but revised the commission rate to Rs. 2 per thousand. The present reference concerns the validity of invoking Explanation to Section 271(1)(c) in the penalty proceedings.
What were the issues?
1. Whether, on the facts and circumstances of the case and in law, the Tribunal was right in holding that the Explanation to Section 271(1)(c) was correctly invoked by the CIT(A)? Assessee's Contentions: - The AO's finding that the assessee was not carrying on the business of draft discounting was overturned by the Tribunal in the quantum appeal. - The penalty order was passed before the Tribunal decided the quantum appeal, and the basis for the penalty was set aside by the Tribunal. - There was no concealment of income, and no addition was made under Section 68. - The Tribunal itself concluded that the assessee carries on the business of draft discounting, rendering the penalty proceedings invalid. - Relied on: Commissioner of Income Tax – Delhi-III v. Fortune Technocomps (P) Ltd. and Commissioner of Income-Tax-II, Lucknow v. Norton Electronics Systems (P.) Ltd. Revenue's Contentions: - The assessee failed to comply with requirements under Sections 142(1)/143(2), not furnishing details of the business, names/addresses of persons whose drafts were discounted, profit and loss account, or balance sheet. - The assessee could not identify the persons from whom cheques/drafts were received. - The assessee's case was governed by the new Explanation 1 to Section 271(1)(c), and the assessee failed to offer any explanation. - The Tribunal, while allowing the quantum appeal, adopted a rule of thumb and determined income at Rs. 2 per thousand, but the assessee could not substantiate the explanation offered. - Relied on: Chuharmal v. Commissioner of Income Tax, M.P. and Commissioner of Income Tax v. Kalindi Rail Nirman Engineering Ltd.
Which sections of the Income-tax Act were involved?
AI-generated summary — verify with the full judgment below
Cause title — parties, addresses and appearances
ORAL JUDGMENT : (PER : S.V.GANGAPURWALA, J.) 1 The reference is made on the following question : “(1) Whether on the facts and circumstances of the case and in law the Tribunal was right in holding that the Explanation to Section 271(1)(c) was correctly invoked by the CIT (A) ?” Gaikwad RD 1/12 CNR No : HCBM020089301998 Uploaded on - 21/08/2020 Downloaded on - 28/10/2026 03:50:55 The factual matrix, in nutshell, is as under : (a) The assessee claims to carry on the business in Draft Discounting and earns commission of Rs.1 per thousand. (b) The Assessing Officer in his Assessment order for the year 198283 to 198586 held that the assessee has failed to prove that he carries on the business of Draft Discounting and earns commission and as such, held the income to be 5% of the deposits. The said order was purportedly passed in the year 1987. Pursuant thereto, the Assessing Officer initiated Penalty Proceedings under Section 271(1)(c) of the Income Tax Act for all these assessment years and on 21/09/1989, decided the Penalty Proceeding against the assessee holding the assessee liable to pay penalty. The said order is passed on 21/09/1989. The Assessee preferred an appeal before the Commissioner (Appeals). The said appeal came to be dismissed under Judgment and Order dated 26/02/1990. Aggrieved thereby, the assessee filed appeal before the Tribunal. The Tribunal confirmed the order imposing penalty upon the assessee. 3 The learned counsel for the assessee strenuously contended that the order of the Assessing Officer in the Assessment Proceedings holding that the assessee is not carrying on the business of Draft Discounting has been negatived by the Gaikwad RD 2/12 Uploaded on - 21/08/2020 Downloaded on - 28/10/2026 03:50:55 Tribunal under its Order dated 13/07/1993. The Tribunal held that the assessee carries on business of Draft Discounting and earns commission, however, observed that it would be appropriate to consider the commission at Rs.2/ per thousand instead of Rs.1/ per thousand. The order of Assessing Officer imposing penalty was passed before the Quantum Appeal was decided by the Tribunal. The learned counsel submits that the very basis upon which the Assessing Officer has imposed penalty is set aside by the Tribunal in the Quantum Appeal and as such, the order imposing penalty cannot be sustained. 4 The learned counsel relies on the Judgment of the Delhi High Court in the case of Commissioner of Income Tax – DelhiIII v. Fortune Technocomps (P) Ltd., dated 13/05/2016 and so also, the Judgment of the Allahabad High Court in the case of Commissioner of IncomeTaxII, Lucknow v. Norton Electronics Systems (P.) Ltd., reported in [2014] 41 taxmann.com 280 (Allahabad). The learned counsel further submits that there was no concealment of income and no addition was made under Section 68 of the Income Tax Act. Moreover, the Tribunal has concluded that the assessee is carrying on the business of Draft Discounting and earns commission. The premise on which the penalty proceedings are initiated itself stands set aside. As such, the Penalty Proceedings are bad in law. According to the learned counsel, the Tribunal erred in confirming the orders of the Assessing Officer and the Commissioner. Gaikwad RD 3/12 Uploaded on - 21/08/2020 Downloaded on - 28/10/2026 03:50:55 The learned counsel for the Revenue submits that the appellant failed to comply with the requirement under Sections 142(1)/143(2) of the Act. The assessee failed to furnish the nature of business and names and complete address of the persons whose cheques/drafts were discounted, profit and loss account and balancesheet etc. The assessee was not able to identify the person from whom the cheque/drafts were received. The appellant's case is governed by new Explanation 1. The assessee has failed to offer any explanation. According to the learned counsel, the Tribunal while allowing the Quantum Appeal, had adopted a rule of thumb and determined the income at Rs.2 per thousand, however the assessee could not substantiate the explanation offered. This has been held by the Tribunal. 6 The learned counsel relies on the Judgment of the Apex Court in a case of Chuharmal v. Commissioner of Income Tax, M.P. reported in Income Tax Reports Volume 172 page 250 and another Judgment of the Delhi High Court in case of Commissioner of Income Tax v. Kalindi Rail Nirman Engineering Ltd. reported in [2014]365 ITR 304 (Delhi). 7 We have considered the submissions canvassed by the learned counsel for the parties, so also, have gone through the Orders passed. The question to be considered is whether Explanation to Section 271(1)(c) of the Act could be invoked. Gaikwad RD 4/12 Uploaded on - 21/08/2020 Downloaded on - 28/10/2026 03:50:55 The relevant dates are as under : The Assessment Order for the year 198283 to 198586 passed by the Assessing Officer is dated 30/12/1987. The same has been confirmed by the Commissioner (Appeals) in the year 1986 and 1989. The Tribunal allowed the appeal filed by the assessee against the Orders of the Assessing Officer and the Commissioner in the Assessment Proceedings on 13/07/1993. The Assessing Officer initiated the Penalty Proceedings and passed Order holding assessee liable to pay penalty under Section 271(1) (c) on 21/09/1989. The Commissioner (Appeals) confirmed the said Order levying penalty on 26/02/1990. 9 On perusal of the dates, it is manifest that the Penalty Proceedings were initiated by the Assessing Officer before the Tribunal had decided the Quantum Appeal. The basis of initiation of Penalty Proceeding and holding the assessee liable to pay penalty was that the assessee claims that he was engaged in the business of Discounting Draft was rejected and as such, the assessee has concealed the particulars of income. 10 However, the Tribunal in the Quantum Appeal has held that the assessee is carrying on the business of Discounting Drafts and the income of the assessee should be calculated at the rate of Rs.2 per thousand instead of Rs.1 per thousand as claimed by the assessee and the appeal of the assessee was partly allowed. Gaikwad RD 5/12 Uploaded on - 21/08/2020 Downloaded on - 28/10/2026 03:50:55 It would be seen that the basis upon which the Penalty Proceedings were initiated was set aside by the Tribunal. It is observed in the Penalty Proceedings by all the authorities that the assessee could not give the details and explanation of the parties who are not identified the parties and as such, Explanation 1 to Section 271(1)(c) would be invoked. 12 Section 271(1)(c) of the Act with its explanation reads as under : 271.(1) If the Assessing Officer or the Commissioner (Appeals) or the Principal Commissioner or Commissioner in the course of any proceedings under this Act, is satisfied that any person — (a) Omitted... (b) has failed to comply with a notice under subsection (2) of section 115WD or under subsection (2) of section 115WE or under subsection (1) of section 142 or sub section (2) of section 143 or fails to comply with a direction issued under subsection (2A) of section 142, or (c) has concealed the particulars of his income or furnished inaccurate particulars of such income, or (d) has concealed the particulars of the fringe benefits or furnished inaccurate particulars of such fringe benefits, he may direct that such person shall pay by way of penalty,— (i) Omitted (ii) in the cases referred to in clause (b), in addition to Gaikwad RD 6/12 Uploaded on - 21/08/2020 Downloaded on - 28/10/2026 03:50:55 tax, if any, payable by him, a sum of ten thousand rupees for each such failure ; (iii) in the cases referred to in clause (c) or clause (d), in addition to tax, if any, payable by him, a sum which shall not be less than, but which shall not exceed three times, the amount of tax sought to be evaded by reason of the concealment of particulars of his income or fringe benefits or the furnishing of inaccurate particulars of such income or fringe benefits. Explanation 1.—Where in respect of any facts material to the computation of the total income of any person under this Act,— (A) such person fails to offer an explanation or offers an explanation which is found by the Assessing Officer or the Commissioner (Appeals) or the Principal Commissioner or Commissioner to be false, or (B) such person offers an explanation which he is not able to substantiate and fails to prove that such explanation is bona fide and that all the facts relating to the same and material to the computation of his total income have been disclosed by him, then, the amount added or disallowed in computing the total income of such person as a result thereof shall, for the purposes of clause (c) of this subsection, be deemed to represent the income in respect of which particulars have been concealed. In the present case, the amount has not been added to the income of the Assessee. In Assessment Proceedings, Tribunal had observed that in many cases Tribunal has accepted Rs.1/ per thousand as commission and in some cases at Rs.2/ per thousand. In present case, it is considering Rs.2/ per thousand. Gaikwad RD 7/12 Uploaded on - 21/08/2020 Downloaded on - 28/10/2026 03:50:55 The contention of the assessee in the Assessment Proceedings is that the assessee carried on the business in Draft Discounting. The deposits represented the drafts received from different parties and the commission of the assessee was Rs.1/ per thousand. 14 In the Assessment Proceedings, the Assessment Officer did not accept the contention of the assessee and held that the assessee's claim that he was engaged in business of discounting drafts was rejected and the assessee's income was estimated at the rate of 5% of the total deposits made in the bank. The said finding of the Assessing Officer in the Assessment Proceedings is confirmed by the Commissioner (Appeals). The assessee had preferred appeal to the Tribunal against the order of the Commissioner (Appeals). During the interregnum and before the Tribunal decided the appeal in the Assessment Proceedings, the Assessment Officer initiated Penalty Proceedings on the basis of his Assessment Order and on the ground that the assessee's claim that he was engaged in business of discounting drafts was rejected, imposed penalty upon the assessee invoking Section 271(1)(c) of the Act. The Commissioner (Appeals) also dismissed the appeal filed by the assessee against the Order imposing penalty on or about 26/02/1990. 15 On or about 13/07/1993, the Tribunal partly allowed the appeal of the assessee preferred against the Order of the Gaikwad RD 8/12 Uploaded on - 21/08/2020 Downloaded on - 28/10/2026 03:50:55 Assessing Officer. The Tribunal upheld the contention of the assessee that he carries on the business of Draft Discounting and earns commission. A clear finding to that effect is rendered by the Tribunal. The Tribunal observed that it finds no reason to disbelieve the assessee that he is engaged in the business of Draft Discounting. The Tribunal further observed that assessee makes the payment to the parties before release of draft proceeds. The Tribunal further observed that the Tribunal has considered Rs.1/ per thousand as commission in several similar cases, but it finds that there are also cases where the Tribunal adopted the higher rate depending on the circumstances of the case and the Tribunal presumed that for providing the facility, the assessee must have charged some extra amount and that the rate at Rs.2/ per thousand for discounting of drafts and cheques, is to be adopted. The Order of the Assessment Officer, as such, was set aside. 16 It is abundantly clear that the very basis for initiation of the Penalty Proceedings stood negated by the Order of the Tribunal in an appeal filed by the assessee against the Order of the Assessing Officer in the Assessment Proceedings. 17 The basis for initiation of Assessment Proceedings by the Assessment Officer is that the Assessment Officer disbelieved the claim of the assessee that he was engaged in the business of discounting drafts, whereas the Tribunal held that the assessee Gaikwad RD 9/12 Uploaded on - 21/08/2020 Downloaded on - 28/10/2026 03:50:55 carries on the business of Draft Discounting. The assessee has stated that the amount in the account is the amount of the drafts received of which assessee charges Rs.1/ per thousand as commission. Explanation (1) to Section 271(1)(c) of the Act states that if a person fails to offer an explanation or offers an explanation which is found by the Assessing Officer to be false or such person offers an explanation which he is not able to substantiate and fails to prove that such explanation is bona fide and and that all the facts relating to the same and material to the computation of his total income have been disclosed by him, then, the amount added or disallowed in computing the total income of such person, as a result thereof shall for the purpose of Clause (c) of the said SubSection be deemed to represent the income in respect of which particulars have been concealed. In the present case, no addition of the amount has been made, nor is a case of disallowance. Even the Tribunal had accepted the case of the assessee that he is carrying on the business of Draft Discounting. It is also observed that in many cases, the Tribunal has taken a view that in case of Draft Discounting, income is considered at Rs.1/ per thousand and in some cases, at Rs.2/ per thousand. In the present case, it considered to Rs.2/ per thousand. The assessee, therefore, was not required to give any explanation as his case was accepted by the Tribunal in Appeal. As such, for all the above reasons, Explanation (1) to Section 271(1)(c) of the Act would not be attracted. Gaikwad RD 10/12 Uploaded on - 21/08/2020 Downloaded on - 28/10/2026 03:50:55 The learned counsel for the Revenue has placed reliance on the Judgment of the Apex Court in case of Chuharmal (referred to supra). In the said case, the wrist watches were seized from the assessee's bedroom. No explanation was given at the time of seizure. The assessee also did not avail opportunity to show that he was not the owner. The deemed income comprising of value of unexplained articles was added to the disclosed income. In that context, the Apex Court has held that Explanation to Section 271(1)(c) of the Act is attracted and penalty would be leviable. In the present case, the Tribunal had accepted the case of the assessee that he has carried on the business of Draft Discounting and earns money thereby negating the Order of the Assessing Officer in the Assessment Proceedings. Further, no amount was added as income. In case of Kalindi Rail Nirman Engineering Ltd (referred to supra) before the Delhi High Court also the facts were absolutely different. In the said case, the income was concealed by the assessee and the discrepancies were found in the account by the Special Auditor. The Court held the imposition of penalty justified. As discussed supra, the case of the assessee of carrying on business of discounting bank drafts and earning commission, has been accepted. 19 Considering the aforesaid conspectus of the matter, it is abundantly clear that the very basis of the Penalty Proceedings Gaikwad RD 11/12 Uploaded on - 21/08/2020 Downloaded on - 28/10/2026 03:50:55 was set aside by the Tribunal in an appeal against the Assessment Order. There was no addition of income. On the contrary, the case of the assessee, which was negated by the assessing officer of carrying on the business of Draft Discounting, is accepted by the Tribunal. The Explanation (1) to Section 271(1)(c) of the Act, in the facts and circumstances of the present case, would not arise. 20 In light of the above, the question referred to is answered in favour of the assessee holding that the Tribunal was not right in invoking Explanation (1) to Section 271(1)(c) of the Act. 21 Reference, accordingly, disposed of. 22 No costs. ( A.M.BADAR J.) ( S.V.GANGAPURWALA J.) Gaikwad RD 12/12 Uploaded on - 21/08/2020 Downloaded on - 28/10/2026 03:50:55 Powered by TCPDF (www.tcpdf.org)
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