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TMI Blog1984 (6) TMI 70X X X X Extracts X X X X X X X X Extracts X X X X ..... e on the same day, i.e., 26-10-1974. Again on 25-11-1974 another return showing an income of Rs. 8,000 for the assessment year 1974-75 was filed by the assessee. An assessment on the income of Rs 9,000 under section 143(3) was made on 6-2-1975. Return for the assessment year 1975-76 showing an income of Rs. 8,500 was filed on 31-7-1975 and return for the assessment year 1976-77 showing an income of Rs. 13,000 was filed on 22-7-1976. On 15-9-1976 the assessee again filed revised returns for all these assessment years, namely, 1974-75 to 1976-77. In these revised returns he declared an income of Rs. 23,200 for the assessment year 1974-75, Rs. 45,590 for the assessment year 1975-76 and Rs. 15,500 for the assessment year 1976-77. The ITO was of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2. But these appeals were actually filed on 3-5-1982. As such, there could not be any dispute that these were filed after the period of limitation was over. For condonation of delay in filing these appeals, the department preferred applications in which it was stated that the appeals could not be filed earlier due to the strike started on 16-4-1982 by the officers and staff of the department which ended only in the afternoon of 26-4-1982. Thereafter, it has been stated, the file was proceeded by the ITO and put up before the Commissioner on 27-4-1982 and fair copy of the Commissioner's authorisation was signed on 28-4-1982 and was despatched on 29-4-1982. It was further stated that the said authorisation was received on 30-4-1982 by the ITO ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ars 1974-75 and 1975-76 and the Explanation after amendment applied to the penalty proceedings for the assessment year 1976-77. He contended that the entire decision of the Commissioner (Appeals) has been vitiated due to non-consideration of the Explanation applicable to the case under appeal and that the matter should be restored to him for re-examination. The authorised representative for the assessee, however, opposed the contention of the departmental representative that the Explanation before amendment was applicable to the penalty proceedings for the assessment years 1974-75 and 1975-76 and contended that the Explanation before amendment will not apply to the proceedings which were started in 1979, but the Explanation after its amendm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e time of the commission of the offence." But this view of the Patna High Court that the law applicable for the purpose of levying penalty could not be the one which was in force at the time of the commission of the offence has been overruled by the Supreme Court in the case of Brij Mohan in which it has categorically laid down that when penalty is imposed for the concealment of part of an income, it is the law ruling at the date on which the act of concealment takes place which is relevant and it is wholly immaterial that the income concealed was to be assessed in relation to an assessment year in the past. So, the decision of the Patna High Court in Parmanand Advaui's case cannot be held to be good in law in view of the Supreme Court d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... contained in the Explanation obviously proceeds on the basis that for the purposes of the latter part of clause (c) of section 271(1)(c) the mere furnishing of inaccurate particulars of income by an assessee is sufficient and that it is not necessary to establish for the purposes of section 271(1)(c) that the assessee has 'deliberately' furnished inaccurate particulars of income. It is, therefore, reasonable to infer that the intention of Parliament is that the Explanation should apply only to cases governed by clause (c) of section 271(1) as it stands after its amendment by the Finance Act, 1964." In accordance with this principle of law laid down by the Kerala High Court, the Explanation after its amendment with effect from 1-4-1976 wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at there should be on the record finding of the Commissioner (Appeals) after considering the effect of the Explanation both before and after its amendment on the facts of the case as contended by the departmental representative. So, with reluctance we have come to the conclusion that the matter in dispute in all the appeals should be restored to the file of the Commissioner (Appeals) for decision afresh. We set aside the order of the Commissioner (Appeals) and direct him accordingly. During the re-hearing before the Commissioner (Appeals) the parties will be entitled to raise all the points that were urged before us except the point of application of the Explanation before and after its amendment as decided by us. 8. As a result, all the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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