1995 (8) TMI 55 - HC - Income Tax

Income Tax Act, Jurisdiction To Impose Penalty, Law Applicable To Assessment, Reference To IAC

Issues Involved:

1. Whether penalty is exigible under section 271(1)(c) of the Income-tax Act for the assessment year 1973-74.
2. Whether there was a valid reference by the Income-tax Officer under section 274(2) to the Inspecting Assistant Commissioner.
3. Whether the Inspecting Assistant Commissioner has jurisdiction to impose penalty.
4. Whether the Tribunal was correct in holding that the capital gains should be computed in accordance with the provisions of section 80T and section 48.
5. Whether the Tribunal should first set off the capital loss of Rs. 8,355 relating to the assessment year 1972-73 against the capital gains for the assessment year 1973-74.

Detailed Analysis:

1. Penalty Exigibility under Section 271(1)(c):

The Tribunal held that penalty was exigible because the assessee had not disclosed the gains arising from the sale of property in the return. The Tribunal found that the assessee had concealed an income of Rs. 68,185 in the return of income, and the minimum penalty imposable was Rs. 68,185. This conclusion was based on the fact that the assessee did not disclose the transaction at all and did not offer any explanation for the omission. The Tribunal's finding that the assessee had concealed income was a conclusion of fact, and the court declined to interfere with this finding.

2. Validity of Reference under Section 274(2):

The Division Bench observed that the validity of the reference depends on the reference made by the Income-tax Officer and the terms of the letter he had written to the Inspecting Assistant Commissioner on March 31, 1976. The Tribunal was directed to produce the letter, but it was found that neither the Revenue nor the assessee could furnish the letter. The Tribunal noted that the letter was received by the Inspecting Assistant Commissioner on April 1, 1976, and thus there was no valid reference. The Full Bench decision in CIT v. P. I. Issac was cited, which held that the Inspecting Assistant Commissioner had no jurisdiction to levy penalty after April 1, 1976. The court concluded that there was no valid reference by the Income-tax Officer to the Inspecting Assistant Commissioner under section 274(2).

3. Jurisdiction of the Inspecting Assistant Commissioner:

The Supreme Court in CIT v. Dhadi Sahu held that the Inspecting Assistant Commissioner would have jurisdiction to pass the order of penalty if the reference was made before April 1, 1971. The court distinguished this case from the present one, noting that the reference in the present case was invalid as there was no valid reference. The court held that the Inspecting Assistant Commissioner had no jurisdiction to levy penalty after April 1, 1976, as per the Full Bench decision in CIT v. P. I. Issac.

4. Computation of Capital Gains under Section 80T and Section 48:

The Tribunal held that the assessee could be said to have concealed only that income which he should have disclosed in the return, namely, capital gains arising from the transaction computed in accordance with the provisions of section 80T and section 48. The Tribunal's decision was based on the interpretation of these sections, and the court declined to interfere with this finding.

5. Set-off of Capital Loss:

The Tribunal held that the capital loss of Rs. 8,355 relating to the assessment year 1972-73 should not be set off against the capital gains for the assessment year 1973-74. The court noted that the Supreme Court in H. H. Sir Rama Varma v. CIT held that long-term capital losses brought forward from earlier assessment years have to be first set off against the long-term capital gains of the current assessment year before the deduction contemplated by section 80T is allowed. The court concluded that the Tribunal's decision was erroneous and held that the deductions under section 80T could be allowed only after setting off the capital loss.

Conclusion:

The court answered the second question of law framed at the instance of the assessee and the third question at the instance of the Revenue in the negative and in favor of the assessee. The other questions raised, both at the instance of the assessee and the Revenue, were declined to be answered by the court.

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