1989 (1) TMI 83 - HC - Income Tax

Summary

Issues:
1. Whether the Tribunal was justified in considering the case on merits for the levy of penalty after setting aside the assessment appeal?

Analysis:
The case involved a reference under section 256(2) of the Income-tax Act, 1961, regarding the justification of the Appellate Tribunal in considering the case on merits for the levy of penalty after setting aside the assessment appeal. The assessee, an individual and partner in a firm, had income from various sources, including business and properties. The Income-tax Officer added a sum as income from undisclosed sources, leading to penalty proceedings. The Inspecting Assistant Commissioner imposed a penalty after finding the assessee's explanation unsatisfactory. The Tribunal directed the Appellate Assistant Commissioner to consider an affidavit filed by the assessee from a third party and dispose of the appeal afresh. The Tribunal, after considering the affidavit, concluded that the assessee was not guilty of concealing income and canceled the penalty.

The main contention arose regarding the Tribunal's authority to consider the levy of penalty on merits after setting aside the assessment. The Revenue argued that the Tribunal should not have delved into the penalty issue independently, citing a relevant case law. On the other hand, the assessee's counsel argued that the Tribunal had the right to assess the penalty independently. However, the Tribunal's decision to cancel the penalty was challenged based on the setting aside of the assessment order.

The High Court held that once the assessment had been set aside and remitted for reconsideration, the issue of penalty could not be independently adjudicated by the Tribunal. The Tribunal's decision to cancel the penalty without a valid assessment in place was deemed erroneous. The Court referred to a similar case law to support its decision, emphasizing that penalty proceedings should be considered in conjunction with the fresh assessment order following the Tribunal's directions. Therefore, the Court answered the question in the negative, in favor of the Revenue, and awarded costs to the Revenue.