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TMI Blog1991 (7) TMI 66X X X X Extracts X X X X X X X X Extracts X X X X ..... e assessee benami in the name of Shri Raghubir Saran and that borrowings from a concern, M/s. Hari Ram Ajit Kumar, represented adjustments of funds belonging to the assessee-firm. The Inspecting Assistant Commissioner initiated penalty proceedings by issuing a show-cause notice under section 274(2) read with section 271(1)(c) of the Act. In reply thereto, the assessee contended that it was not liable to pay any penalty as it was not carrying on any benami business. It is not necessary for us to go into the merits of the reply in detail but it is sufficient to say that the assessee had moved an application before the Inspecting Assistant Commissioner for summoning certain witnesses on its behalf. The Inspecting Assistant Commissioner did not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ribunal acted intra vires their jurisdiction in keeping the matter pending and calling for a remand report from the Inspecting Assistant Commissioner and did not set aside the impugned orders thereby virtually enhancing the period of limitation for the Inspecting Assistant Commissioner to complete the penalty proceedings ?" On behalf of the assessee, learned counsel has submitted that the aforesaid question postulates that the Tribunal has the power to call for remand report. The question which is referred is a very limited one. All this court has been called upon to give its opinion on is whether there was a proper exercise of the discretion by the Tribunal when it chose to ask for a remand report instead of setting aside the impugned or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y has been committed by the Tribunal. Once it is conceded that two options are open, then it is for the Tribunal to decide as to which option it should adopt on the facts and circumstances of the case. In this connection, it will be helpful to refer to the provisions of rule 29 of the Appellate Tribunal Rules, 1963. The said rule is concerned with the production of additional evidence before the Tribunal. The said rule is as under : "29. The parties to the appeal shall not be entitled to produce additional evidence either oral or documentary before the Tribunal, but if the Tribunal requires any document to be produced or any witness to be examined or any affidavit to be filed to enable it to pass orders or for any other substantial cause, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d report. If it would be a proper exercise of discretion in recording the evidence itself under the provisions of rule 29 of the Appellate Tribunal Rules, 1963, we fail to understand how the discretion can be said to have been improperly exercised when the Tribunal, instead of recording the evidence itself, entrusts that duty to a subordinate officer and asks for a remand report. Ultimately, on the basis of the additional evidence which is recorded, it is the Tribunal which will have to decide whether the levy of penalties was justified. In our opinion, the Tribunal was right in not setting aside the impugned penalty orders. For the aforesaid reasons, the said question is answered in the affirmative and in favour of the Revenue. There wil ..... X X X X Extracts X X X X X X X X Extracts X X X X
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