1978 (4) TMI 26 - HC - Income Tax

Summary

Issues Involved:

1. Justification of the Tribunal's holding regarding gross and willful neglect under Explanation to section 271(1)(c) of the Income-tax Act, 1961.
2. Lawfulness of the Tribunal's determination of the penalty at 20% of the tax sought to be avoided.
3. Retrospective applicability of the amended provision for higher quantum of minimum penalty under section 271(1)(c).

Issue-wise Detailed Analysis:

1. Justification of the Tribunal's holding regarding gross and willful neglect under Explanation to section 271(1)(c):

The Tribunal affirmed that the assessee was liable for penalty under section 271(1)(c) of the Income-tax Act, 1961, read with the Explanation thereto, for the assessment years 1966-67 and 1967-68. The Tribunal noted that the business income disclosed by the assessee for both years was without any basis, and the charge of gross and willful neglect was clearly made out. The Tribunal rejected the assessee's contentions regarding the inability to make a reasonable estimate of profits due to unclosed books of account and the assertion that the only source of income in the assessment year 1967-68 was his share of profits from a firm. The Tribunal also refused to act upon the affidavit filed by the assessee.

The court emphasized that failure to comply with notices under sections 142(1), 143(2), or a direction under section 142(2A), which warrants a best judgment assessment under section 144, also attracts a penalty under section 271(1)(c). The court cited CIT v. Kedar Nath Ram Nath [1977] 106 ITR 172 (All) to support the position that the Explanation to section 271(1)(c) covers cases where best judgment assessments are made, and the burden is on the assessee to prove that the failure to return the correct income did not arise from any fraud or gross or willful neglect.

The court found that the assessee placed no material to discharge this burden and that the material on record in the penalty proceedings led to the inference that the assessee deliberately failed to return his correct income. The Tribunal's observation that the business income disclosed by the assessee was without any basis was upheld as a finding of fact based on evidence.

2. Lawfulness of the Tribunal's determination of the penalty at 20% of the tax sought to be avoided:

The Tribunal reduced the quantum of penalty to 20% of the tax sought to be avoided, based on the hypothesis that the amendment by the Finance Act, 1968, which came into effect from April 1, 1968, was not retrospective in operation. However, the court found this to be a misconception. Since the returns for the assessment years 1966-67 and 1967-68 were filed on April 9, 1968, after the substitution of the new clause (iii) in section 271(1)(c), the penalty had to be computed by reference to the amount of income concealed, not by the amount of tax avoided.

3. Retrospective applicability of the amended provision for higher quantum of minimum penalty under section 271(1)(c):

The court addressed the question of whether the amended provision, prescribing a higher quantum of minimum penalty under section 271(1)(c) equal to the amount of income concealed, which came into effect from April 1, 1968, would be operative retrospectively. The court concluded that the Tribunal was wrong in holding that the penalty was leviable at 20% of the tax sought to be avoided, as the penalty had to be computed under the new clause (iii) by reference to the amount of income concealed.

Conclusion:

Both questions were answered in favor of the Commissioner of Income-tax (CIT) and against the assessee. The court held that the Tribunal was justified in holding that the charge of gross and willful neglect on the part of the assessee was proved, but it was wrong in determining the penalty at 20% of the tax sought to be avoided. The Commissioner was awarded the costs of the reference, with a hearing fee of Rs. 100.