Saurav Diesel Sales and Service vs Commissioner of Income Tax

M.K. Sharma, J.—This is an application u/s 256(2) of the Income Tax Act, 1961 (for short, "the Act"), filed by the assessee against the order dated January 20, 1993, passed by the Income Tax Appellate Tribunal, Gauhati Bench, in Income Tax Reference No. 163/(Gau) of 1991 arising out of J. T. No. 152/(Gau) of 1990 for the assessment year 1985-86 rejecting the reference application filed by the assessee u/s 256(1) of the Act. The assessee seeks to refer the following four questions, said to be questions of law, for the opinion of this court :

"1. Whether, on the facts and in the circumstances of the case, the Tribunal was justified in law in reversing the order of the Commissioner of Income Tax (Appeals) and in restoring the order of the Deputy Commissioner of Income Tax (Assessment), Special Range-I, Gauhati, imposing penalty u/s 271(1)(c) of the Income Tax Act, 1961, in the sum of Rs. 2,76,658 ?

Whether, on the facts and in the circumstances of the case, the Tribunal was legally correct in setting aside the order of the Commissioner of Income Tax (Appeals) cancelling the penalty imposed u/s 271(1)(c) of the Income Tax Act, 1961, in total disregard of the case laws relied upon by the assessee before the lower authorities and before the Tribunal ?

Whether, on the facts and in the circumstances of the case, the Tribunal committed a manifest error of law in confirming the penalty imposed u/s 271(1)(e) of the Income Tax Act, 1961, solely on the basis of reasons given in the assessment order and without considering the entirety of the facts and circumstances as well as the legal position relevant to the issue ?

Whether, on the facts and in the circumstances of the case, the Tribunal was justified in law in setting aside the order of the Commissioner of Income Tax (Appeals) cancelling the penalty imposed by the Deputy Commissioner of Income Tax (Appeals), Special Range-I, on mere surmises in the absence of a clear finding in regard to furnishing of inaccurate particulars of income in the orders passed by the lower authorities as well as in its own order ?"

We have heard Dr. A.K. Saraf, learned counsel, appearing for the assessee, as well as Mr. D.K. Talukdar, learned standing counsel for the Revenue. We have also been taken through the orders passed by the learned Tribunal as also by the Assessing Officer and by the appellate authority. On a consideration of the facts and circumstances of the ease and oil going through the questions referred to above, we feel that questions Nos. 3 and 4 of the aforesaid four questions sought to be referred to this court by the assessee do constitute questions of law and, accordingly, we direct the learned Tribunal to refer to us a statement of the ease on questions Nos. 5 and 4 referred to above for our opinion.

The application stands disposed of with the aforesaid observation. We make no order as to costs.