1986 (3) TMI 23 - HC - Income Tax

Summary

Issues Involved:
1. Whether the Tribunal's finding that the assessee was not guilty of fraud or gross or willful neglect was contrary to the weight of the record.
2. Whether the Tribunal was right in law in canceling the penalty imposed on the assessee u/s 271(1)(c) of the Income-tax Act, 1961.

Summary:

Issue 1: Tribunal's Finding on Fraud or Gross Neglect
The Tribunal observed that the book version disclosed by the assessee was not amenable to verification, leading to the invocation of section 145 and the determination of income by estimate. The Tribunal concluded that no finding could be recorded that the assessee was guilty of fraud or gross or willful neglect. However, the High Court found the Tribunal's approach erroneous. The Tribunal failed to properly appreciate and consider the facts and circumstances highlighted by the Inspecting Assistant Commissioner, such as the unreliability of the books of account maintained by the assessee and the persistent maintenance of these books despite their rejection year after year. The High Court emphasized that the mere fact that the income was estimated does not absolve the assessee from discharging the burden of proving that the failure to return the correct income did not arise from fraud or gross or willful neglect.

Issue 2: Cancellation of Penalty u/s 271(1)(c)
The Tribunal canceled the penalties imposed on the assessee for the assessment years 1967-68 and 1968-69, accepting the assessee's contention that the Explanation to section 271(1)(c) was wrongly invoked. The High Court, however, disagreed, noting that the Explanation to section 271(1)(c) creates a legal fiction if the condition of its applicability is satisfied, i.e., the total income returned by the assessee should be less than 80% of the total income assessed. The High Court pointed out that the Tribunal did not consider whether the income returned by the assessee was bona fide and proper. The High Court concluded that the Tribunal's order was erroneous and illegal, as it did not properly appreciate the factors and reasons which weighed with the Inspecting Assistant Commissioner in levying the penalty.

Conclusion:
The High Court declined to answer the questions raised by the Tribunal and left it to the Tribunal to take appropriate steps to adjust its decision under section 260(1) of the Act in light of the observations made. The references were answered accordingly with no order as to cost.