9911796707
TMI Blog1996 (3) TMI 83X X X X Extracts X X X X X X X X Extracts X X X X ..... p for consideration and consequent decision before us is as to whether there can be any interference with the order of imposition of penalty as such. The year in question is 1980-81. Rupees 46,960 was the declared net income in regard thereto on the basis of the return dated September 18, 1980. However, it is undisputed that as per the position of law, the petitioner did not remit the tax due on the admitted income which was the basis for the initiation of notice of proceeding under section 17A(3) of the Act which was served on the petitioner on December 30, 1986. The order of the trial authority dated June 14, 1990, states that there was no contest to the said notice as no objections were filed against the proposal. The trial authority i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the power of imposition of penalty is a power to be exercised on the basis of judicial discretion in regard thereto and as a consequence the two factors are such that judicial discretion in regard thereto would be in favour of the petitioner. Seeing the contentions urged before the first appellate authority, it would be at once clear that what is sought to be contended now before us on the strength of annexure " C " that the return was sent by post does not find any mention, nor is the facet in regard thereto that by annexure " C " objections were lodged and to that extent the statement of the trial authority that the petitioner did not file any objection against the proposal so far are also found to be conspicuous by their absence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... admitted amount of income leaves no discretion in the situation as regards the recovery as specified therein by way of penalty. What is required under the circumstances by the said statutory provision is that before such levy the person has to be given a reasonable opportunity of being heard. Although in a different context dealing with the situation of penalty under section 271(1)(a) of the Income-tax Act, the Supreme Court in Gujarat Travancore Agency v. CIT [1989] 177 ITR 455 has observed that the intention is to create a civil obligation and, therefore, the need to establish the element of mens rea cannot be seen through and as a consequence it is tersely observed that there is nothing in the provision that requires an obligation to c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the action was initiated in 1986. This would also be seen by the self-admitted position by the petitioner-assessee that the amount of tax due on the admitted income in question is paid by him on March 19, 1986. Thus, the factual material would show that the two grounds urged in support of the use of discretion, apart from the fact that necessary details that are inevitable are away from the record and also, in addition, many of the aspects, as stated above, have not been urged, even on their own merit as they are, they cannot be said to have been established. This is on the assumption that we have any discretion in the matter. For all the above reasons, the revision case stands dismissed. Order accordingly. - - TaxTMI - TM ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
