Shyam Biri Works (P) Ltd. vs Commissioner of Income Tax

Heard Sri R.P. Agrawal, learned counsel for the appellant and Sri A.N. Mahajan for the department.

This appeal u/s 260A of the Income Tax Act has been filed against the impugned order of the Income Tax Appellate Tribunal dated 31-8-2000. The case relates to penalty u/s 273(2)(a) of the Act for allegedly furnishing false estimate of advance tax.

Only one point has been pressed by the learned counsel for the appellant. He submitted that before issuing notice for initiating penalty proceedings u/s 273(2)(a) of the Act the assessing officer has not recorded his satisfaction. Learned counsel has relied on the decision of the Delhi High Court in CIT v. Ram Commercial Enterprises Ltd. (2000) 246 ITR 56.

In the aforesaid decision the Delhi High Court has observed that "it is the assessing authority who has to form his own opinion and record his satisfaction before initiating the penalty proceedings."

With profound respect to the Delhi High Court decision, we are unable to agree. It may be noted that whenever the assessing officer has to record his satisfaction under the Income Tax Act, it is specifically mentioned e.g. in section 148(2) of the Act which states that "the assessing officer before issuing any notice under this section will record the reason for doing so". Section 273 does not have a similar provision requiring recording the reason or satisfaction. Hence it has to be inferred that Parliament never intended that before initiating penalty proceedings and issuing notice u/s 273 the assessing officer must record his reasons in writing for doing so. Had that been so there would have been a specific mention about it in section 273 of the Act. We are, therefore, of the opinion that although the assessing officer must have satisfaction as required u/s 273 of the Act, it is not necessary for him to record that satisfaction in writing before initiating penalty proceedings u/s 273 of the Act. We are fortified in the view we are taking by the decision of the Calcutta High Court in Becker Gray and Co. (1930) Ltd. Vs. Income Tax Officer and Others, . For the reasons given above this appeal has no merit and it is dismissed. No orders as to cost.