Mooiji Jatmal vs Commissioner of Income Tax

J.S. Verma, Actg. C.J.

This is an application u/s 256(2) of the Income Tax Act, 1961, for a direction to the Tribunal to state the case and refer to this court for its decision certain questions of law said to arise out of the Tribunal''s order dated July 25, 1980, confirming the levy of penalty u/s 271(1)(c) of the Act upon the assessee for the assessment year 1969-70. The final assessment for that year was made at Rs. 40,770 as against the returned income of Rs. 24,999, making an addition of Rs. 16,304. The assessee did not challenge the assessment which became final. A notice was given to the assessee to show cause why penalty should not be imposed u/s 271(1)(c) of the Act. The assessee did not care to show any cause against that notice. Accordingly, a penalty of Rs. 16,305 was imposed which was later affirmed by the Appellate Assistant Commissioner as well as the Tribunal.

It is not disputed before us that by virtue of the Explanation to Section 271(1)(c) of the Act as applicable during the relevant assessment year, the burden was on the assessee to show that no case for imposition of penalty had been made out when the returned income was admittedly less than 80% of the assessed income and that the assessee did not even care to appear and discharge this burden. It is on these facts that the penalty was imposed obviously on the basis of the presumption which arose against the assessee and the assessee''s failure to discharge the burden which was on him. In such a situation, no question of law really arises out of the Tribunal''s order to enable giving of a direction u/s 256(2) of the Act.

Learned counsel for the assessee, however, contended that there is material present in the record to show that the enhancement made at the time of assessment was incorrect. In our opinion, this question does not arise for consideration in these proceedings when no attempt was made by the assessee to say this at the relevant stage and the only question now before us is whether any question of law does arise out of the Tribunal''s order dated July 25, 1980, affirming the imposition of penalty on the above facts beyond controversy. As earlier stated, no question of law arises out of the Tribunal''s order affirming the imposition of penalty.

Consequently, the application is dismissed. There shall be no order as to costs.