Commissioner of Income Tax vs Shyamlal M. Soni

The decision rendered in this appeal shall also govern the disposal of other connected appeals being I.T.A. Nos. 82/99, and 88/99 because all these appeals arise out of one common impugned order passed by the Tribunal (I.T.A.T.).

This is an appeal filed by revenue (Commissioner of income tax) u/s 260A of the Income Tax Act against a common order dated 16-21999 passed by ITAT in ITA No. 1003/Ind./93 alongwith other appeals. It was admitted for hearing on 4-2-2000 on two substantial questions of law referred infra:

"I. Whether on the facts and in the circumstances of the case, and in the law the Tribunal was justified in holding that no penalties u/s 271(1)(c) of the Act, could be levied in the case, where the income returned in the revised return was accepted and assessed in the hands of'' the assessee even though the revised returns were filed after the search and subsequent inquiries made by the department during the course of the assessment proceedings?

Whether on the facts and circumstances of the case and in the law the Tribunal was justified in holding that no penalty u/s 271(1)(c) of the Act could be levied for assessment years 1985-86, 1986-87 and 1987-88, even though the revised returns were filed offering the additional income after search and in response to notice u/s 148 of the Act issued by the department?"

At the outset it may be taken note of as being brought to our notice that one appeal being ITA No. 86/99 filed by revenue against this very impugned order which is subject-matter of these appeals was dismissed by this court. (Division Bench - Hon. R.D. Vyas and Hon. Shambhoo Singh, JJ.) on 20-4-2000. Though this appeal i.e., ITA No. 86 /99 was dismissed without assigning any reasonings whatsoever, as the order reads "Appeal is dismissed, yet the effect of the dismissal of appeal would amount to affirmation of the order passed by the Tribunal by this court. In other words, so far as this Bench is concerned, we are bound by the order passed by earlier Division Bench dismissing the appeal which arose out of this very impugned order. It is for the reason that we cannot now take a contrary view in these appeals except to dismiss these appeals following the conclusion of earlier appeal dismissed on 20-4-2000.

Indeed when one appeal arising out of the same bunch of cases and order is dismissed then it necessarily follows that all appeals are to be disposed of on the same lines. This court may not be able to quash the impugned order in these appeals because this very impugned order is upheld by this court in ITA No. 86/99 though decided earlier separately from this bunch.

Learned counsel for appellant contended that since the order passed by earlier Division Bench on 20-4-2000 in ITA No. 86/99 is not a speaking order and hence the same cannot be relied upon for any purpose, muchless for the purpose of dismissal of these appeals. We are af raid, we cannot entertain this contention. It is not proper on our part to rnake any comment upon the order and the manner in which it is passed by the coordinate Bench because judicial propriety demands that we have no right to comment upon it. Such right is only available to appellate court while hearing the appeal arising out of such order. It is not in dispute that the revenue though suffered the dismissal order, yet did not file any appeal before the Supreme Court. At least no statement was made. In this view of the matter, the order of dismissal of appeal has attained finality and hence binding on this court.

As observed supra, whether dismissal of appeal with reasons or without reasons, so far as this court is concerned, it is bound by its conclusion i.e., dismissal. In other words it is of no significance whether dismissal is based on reasons or no reasons.

The issue in these appeals relate to imposition of penalty u/s 271(1)(c) ibid on assessee. It was imposed by assessing officer but later set aside by Commissioner (Appeals) in some cases. In further appeal to Tribunal, the order imposing penalty was set aside holding, inter alia, that since the assessee filed revised returns, disclosing his income and the same was accepted by revenue, (he disclosure do not amount to either concealment so as to attract the rigour of section 271(1)(c), ibid. Accordingly penalty imposed by assessing officer was set aside.

We concur with the finding so recorded by the Tribunal as it is based on exercise of discretion and the facts brought on record. We, thus, do not wish to interfere in such order based on discretionary exercise of power by the Tribunal.

In view of aforesaid appeal fails and is dismissed.

No order as to cost.