1982 (9) TMI 32 - HC - Income Tax

Summary

Issues:
1. Justification of upholding the order cancelling penalty despite provision of section 171(8) of the Income-tax Act, 1961.
2. Department's justification in raising the applicability of section 171(8) in an application filed under sections 256(1) and 256(2).

Analysis:

Issue 1:
The case involved an HUF that understated income and made false claims in the return. The Income Tax Officer (ITO) initiated penalty proceedings under section 271(1)(c) of the Income-tax Act and imposed a penalty. The assessee claimed disruption of the HUF, and the penalty was cancelled by the Appellate Authority. The Tribunal upheld the cancellation reasoning that the HUF had ceased to exist before the penalty order was passed. Section 171 deals with assessment after partition of an HUF, and sub-section (8) explicitly states that the provisions apply to the levy and collection of any penalty in respect of any period up to the date of partition. Previous judicial decisions under the 1922 Act were cited, but the Tribunal's decision was supported by the provision of sub-section (8) of section 171. The Supreme Court's ruling in Gauri Shankar Chandrabhan v. CIT was referenced to establish the authority to levy penalties in such cases.

Issue 2:
The Department raised the question of the applicability of section 171(8) for the first time before the Tribunal in an application under section 256(1). The assessee argued against this, claiming that the Department was not justified in raising the question at that stage. However, the Court disagreed, stating that the Department's consistent stand was that the penalty could be imposed up to the date of partition. Referring to provisions of the Act in the application under section 256(1) was deemed acceptable, as it did not introduce a new question of law or fact. The Court differentiated this case from CGT v. Smt. Kusumben D. Mahadevia, where the issue was not raised before the Tribunal and thus not considered.

In conclusion, the Court answered the first question against the assessee and in favor of the Revenue, and the second question in favor of the Revenue. The Revenue was awarded costs amounting to Rs. 250.