1978 (4) TMI 48

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..... ition to the Commissioner of Income-tax under section 271(4A) of the Income-tax Act, 1961, was still pending with the Commissioner when order under section 271(1)(c) was passed by the Inspecting Assistant Commissioner of Income-tax, the Tribu- nal was right in coming to the conclusion that provisions of section 271(1)(c) were not attracted ? " The facts found and/or admitted in these proceedings may shortly be stated as follows. Sarda Rice Oil Mills, the assessee, is a partnership firm. On the 30th April, 1966, the assessee filed a petition under s. 271(4A) of the I.T. Act, 1961, admitting, inter alia, that during the assessment years 1960-61 to 1966-67, it had earned additional business income of Rs. 2,32,509 which had not been disclo .....

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..... ected any concealment whatsoever on the part of the assessee but had relied entirely on the admissions of the assessee in the disclosure petition which was pending for orders before the CIT. The contents of the said petition had neither been proved nor verified. The onus of proving the concealment lay on the department which it had failed to discharge. It was contended further that revised returns had been filed before the completion of the assessments in question and, therefore, the assessee would be exempt from any penalty. Contentions to the contrary were made on behalf of the revenue. The Tribunal found, inter alia, as follows : (a) The disclosure petition had been made by the assessee for the limited purpose of obtaining concessi .....

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..... stion suggested by the Commissioner in the reference application was as follows : " Whether, on the facts and in the circumstances of the case, the Tribunal was right in holding that the provisions of section 271(1)(c) of the Income-tax Act, 1961, are not attracted ? " It does not appear to us that the Tribunal deleted the penalties on the ground that the same had been imposed while the assessee's petition under s. 271(4A) was pending with the CIT. This ground does not appear to have been agitated at all. The question as referred was not asked for by the Commissioner and the Commissioner, it appears, did not understand that the Tribunal had proceeded on the basis as has been suggested in the question referred. For the reasons given .....

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