Commissioner of Income Tax vs Sree Malathi Chit Funds (P.) Ltd.

N.V. Balasubramanian, J.—The Revenue has filed this appeal u/s 260A of the Income Tax Act, 1961 (hereinafter referred to as ""the Act""),

against the order of the Income Tax Appellate Tribunal, in I. T. A. No. 2298/(Mds.) of 1991 dated November 25,1999, and formulated the

following question of law for consideration :

Whether, on the facts and in the circumstances of the case, the Income Tax Appellate Tribunal is right in law in confirming the order of the

Commissioner (Appeals) in canceling the penalty levied u/s 271B of the Income Tax Act, 1961 ?

The assessment year involved in this appeal is 1988-89. The order of the Appellate Tribunal shows that before the levy of penalty u/s 271B of

the Act, the Assessing Officer has not obtained necessary approval from the Deputy Commissioner of Income Tax as the approval of the Deputy

Commissioner of Income Tax is a condition precedent u/s 275 of the Act and the non-obtaining of the approval from the Deputy Commissioner of

Income Tax would itself vitiate the order levying penalty. The Appellate Tribunal also noticed that the proceedings were not initiated for levy of

penalty u/s 271B of the Act, but the proceedings were initiated u/s 271A and 271(2)(a)(sic) of the Act and on this ground also, the levy of penalty

u/s 271B of the Act is not sustainable. Further on materials it is found by the Appellate Tribunal that the accounts of the assessee were audited in

accordance with the provisions of the company law and to that extent, the assessee is protected by the provisions of Section 44AB of the Act. The

other reason given by the Appellate Tribunal is that the nature of receipt itself is not in dispute and the amount has also been shown in the balance-

sheet, and it is on the above materials, the Appellate Tribunal held that the levy of penalty u/s 271B of the Act is not warranted.

We find that the Appellate Tribunal, on the facts of the case, has found that the assessee was under the genuine impression and the assessee has

shown reasonable cause against the levy of penalty u/s 271B of the Act. We find that the finding that has been arrived at on the basis of materials is

a pure finding of fact and the finding being reasonable and sustainable, we do not find any question of law, much less a substantial question of law

that arises out of the order of the Appellate Tribunal. Accordingly, the appeal stands dismissed, in limine, at the admission stage itself.