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TMI Blog2003 (8) TMI 28X X X X Extracts X X X X X X X X Extracts X X X X ..... ge(s) : G. SIVARAJAN., KURIAN JOSEPH. JUDGMENT The Commissioner of Income-tax, Trivandrum, has filed this appeal against the order of the Income-tax Appellate Tribunal, Cochin Bench, in I.T.A. No. 276/Coch of 1996, dated August 16, 2000. The respondent is an assessee to income-tax under the Income-tax Act, 1961 (for short "the Act"). The respondent-assessee is conducting a jewellery shop in the name and style of Mangalathu Jewellery at Vaikom. For the assessment year 1989-90, the assessee filed a return disclosing an income of Rs. 14,930. The said return was processed under section 143(1)(a) of the Act on February 15, 1991. There was a search in the business premises of the assessee on April 28, 1988, by the Central Excise Department ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rs. 1,50,000 and Rs. 45,000 paid towards fine and penalty respectively? 2. Whether, on the facts and in the circumstances of the case, and since the fine and penalty were paid for infraction of law, the assessee is entitled to claim deduction for the same?" We have heard learned counsel appearing for the parties. Learned standing counsel for the Revenue submitted that none of the authorities including the Tribunal had made any effort to find out the nature of payment of the sum of Rs. 1,50,000 by way of redemption fine and Rs. 45,000 by way of penalty with reference to the relevant provisions of the Central Excise Act and the Rules. Standing counsel submits that it is not the nomenclature which is given to the payment that matters, but ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r confiscation is adjudged under this Act or the rules made thereunder, the officer adjudging it, shall give the owner of the goods an option to pay in lieu of confiscation such fine as the officer thinks fit." Section 34A of the Act is also relevant in this context which reads as follows: "34A Confiscation or penalty not to interfere with other punishments. No confiscation made or penalty imposed under the provisions of this Act or of any rules made thereunder, shall prevent the infliction of any other punishment to which the person affected thereby is liable under the provisions of this Act or under any other law." We, find that neither the assessing authority nor the two appellate authorities had made any effort to ascertain the na ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for infraction of law or of compensatory in nature in the judgment in CIT v. Catholic Syrian Bank Ltd. [2004] 265 ITR 177 (Ker). It will also be helpful in deciding the question involved in this case. It is open to the Revenue also to place all decisions of the Supreme Court including the decision in Haji Aziz and Abdul Shakoor Bros. v. CIT [1961] 41 ITR 350. We set aside the orders of the three authorities and direct the Assessing Officer to consider the matter afresh in the light of the observations made in this judgment. The Department has got a case that the question of penalty was not the subject-matter of the appeals before the Tribunal and the Tribunal has erroneously assumed that the first appellate authority has granted relief ..... X X X X Extracts X X X X X X X X Extracts X X X X
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