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TMI Blog1977 (3) TMI 39X X X X Extracts X X X X X X X X Extracts X X X X ..... t of the income concealed ? The assessment years with which we are concerned are 1966-67 and 1967-68 and the question that arises for decision is whether for imposition of a penalty it is the law of the assessment year that governs or not. The facts as stated in the statement of the case are these. For the assessment year 1966-67, the assessee filed on February 13, 1967, a return declaring a loss of Rs. 85,000. On June 13, 1968, it filed a revised return declaring an income of Rs. 22,642. The Income-tax Officer determined the total income at Rs. 1,39,580. For the assessment year 1967-68, the assessee filed on April 10, 1968, a return of income declaring a total of Rs. 2,75,000. A revised return was filed on December 18, 1968, declaring ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lment takes place only when the return is filed, and this having been done after March 31, 1968, the concealment took place after March 31, 1968, that the law at the time of the commission of the offence is the law as it stood after the amendment by the Finance Act, 1968, and, therefore, the minimum penalty had to be computed according to that law. Reliance was placed on behalf of the department on the decision in Commissioner of Income-tax v. Isthmian Steamship Lines [1951] 20 ITR 572, 577 (SC). The Tribunal held that there was nothing either expressed or implied in the Finance Act of 1968 to show that the law as amended would apply to penalty proceedings prior to the assessment year 1968-69, where returns are filed after March 31, 1968. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aw and sent up the same to this court for decision. Counsel for the revenue placed reliance on two Full Bench rulings of this court in Commissioner of Income-tax v. K. Ahamed [1974] 95 ITR 599 (Ker) [FB] and Commissioner of Income-tax v. Gujarat Travancore Agency [1976] 103 ITR 149 (Ker) [FB], besides a number of rulings of the High Courts and some rulings of the Supreme Court. In Commissioner of Income-tax v. K. Ahamed [1974] 95 ITR 599 (Ker) [FB] the reference to the Full Bench was on the question whether, on the facts and circumstances of the case, the Appellate Tribunal was correct in law in holding that the Explanation to section 271(1)(c) of the Income-tax Act, 1961, is not applicable to the case. The facts were that the year of ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under section 271(1)(c) of the Income-tax Act, 1961, and he contended that liability for penalty must necessarily be fixed at the point of time subsequent to what was material for the purpose of assessment. This aspect which the counsel, would commend to us for acceptance is not a question dealt with or covered by the Full Bench. Counsel also invited our attention to the Full Bench judgment in Commissioner of Income-tax v. Gujarat Travancore Agency [1976] 103 ITR 149 (Ker) [FB] to which one of us (myself) was a party. That case was really concerned with the question of the nature of penalty proceedings, viz., whether it could be said to be of a criminal or penal nature, and whether any particular mens rea can be said to be an essential in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thukumaraswamy Mudaliar [1975] 98 ITR 540 (Mad) has pointed out the five termini with respect to one or other of which the penalty can be levied. The decision eventually concluded that the law as it stood in the financial year in which the assessment is made cannot in any event regulate the levy of a penalty. But, beyond ruling out negatively this one particular terminal point, no particular choice was indicated in regard to any one of the other termini indicated earlier at page 554. Our attention was called to the decision of the Calcutta High Court in Nawn Estates Pvt. Ltd. v. Commissioner of Income-tax [1977] 106 ITR 384, 386 (Cal), where again the view was taken that penalty is an additional tax, and to the decision of Additional Comm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessee submitted that the basis of the judgment in Commissioner of Income-tax v. K. Ahamad [1974] 95 ITR 599 (Ker) [FB] would require re-examination in the light of the principle of the Full Bench decision in Commissioner of Income-tax v. Gujarat Travancore Agency [1976] 103 ITR 149 (Ker) [FB]. The ground for the submission was that while the earlier Full Bench decision had proceeded on the basis that penalty proceedings are criminal in nature, the latter Full Bench has stated that proceedings are not criminal. One of us (myself) is by no means sure that there is any warrant for the submission that there is a conflict in principle between the two Full Bench rulings. My learned brother, Kochu Thommen J., is quite clear and definite that the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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