9911796707
TMI Blog2001 (4) TMI 49X X X X Extracts X X X X X X X X Extracts X X X X ..... nces of the case, there was any material for the finding that the assessee had concealed any income or furnished inaccurate particulars of income under the meaning of section 271(l)(c) of the Income-tax Act, 1961 ? 2. Whether it is lawful to impose penalty when even after additions by the Department there was still no taxable income and the assessee not liable to pay any tax ? 3. Whether it is lawful for the Third Member of the Tribunal to agree to imposition of penalty while holding the view that when the assessee's explanation is read as a whole an inference cannot be drawn that the assessee is guilty of either concealment of income or furnishing of inaccurate particulars ? 4. Whether penalty under section 271(1)(c) is exigible when ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... only. As the Assessing Officer was satisfied that the assessee has not disclosed truly and correctly particulars of his income, he initiated proceedings under section 271(1)c) of the Act of 1961 for levying penalty on the alleged concealment of the particulars of the income. The Assessing Officer has levied penalty of Rs. 32,840. For that purpose, the Income-tax Officer had taken into consideration the then existing assessment computing the gross profit by applying the gross profit rate of 15 per cent. on the estimated sale of Rs. 10,00,000 and which has resulted in the increased profit of Rs. 32,840. In substance, the penalty was levied on the basis of the estimated additions made in the gross profit. This order of the Assessing Officer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al has not countenanced the contention of the assessee that even after making additions in the trading results, the net assessment of the income did not make him liable to pay any tax for the assessment year in question and no tax being payable to him, the penalty could not have been imposed under section 271(1)(c). It could have only been imposed if any tax was payable, but not otherwise. In the aforesaid circumstances, the assessee made an application before the Tribunal to refer the aforesaid questions stated to be questions of law arising out of the Tribunal's order. The Tribunal was of the opinion that the Tribunal has only recorded a pure finding of fact that to the extent additions in the turnover were sustained, the same were not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by him, a sum which shall not be less than, but which shall not exceed twice, the amount of the income in respect of which the particulars have been concealed or inaccurate particulars have been furnished". The contention raised by the assessee, directly gives rise to an interpretation of the expression "in addition to any tax payable by him" in the aforesaid provision. A question involving interpretation of a statute is always a question of law and if arises out of the Tribunal's order and required to be referred to the High Court for its opinion, the Tribunal is bound to refer the same to the High Court unless the answer to such question is self-evident or has been answered by the apex court, which binds all. We have noticed above t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Where a loss assessment is made, the question of determining the amount of tax payable does not arise and therefore no penalty could be determined. Thus, while two High Courts have taken the view which the assessee is canvassing, there being no decision of this court, in our opinion, the following question does arise for consideration in this application : "Whether, in the facts and circumstances, the Tribunal was justified in sustaining the penalty under section 271(1)(c)(iii) even in the case where no positive income has been assessed, and no tax was payable by the assessee ?" The suggested questions Nos. 1, 3 and 4, in our opinion, are overlapping and repeat of the same question. The real question that arises for consideration i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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