Udham Das vs Commissioner of Income Tax

S.K. Dubey, J.—By this petition under article 226/ 227 of the Constitution of India, the petitioner has challenged the order of the penalty on assessment proceedings for the assessment year 1974-75 under GIR No. 4-702. The initial assessment for the assessment year 1974-75 was completed on 20-9-1975. During the proceedings the ITO came to know that an amount of Rs. 5,500 and Rs. 3,500 remained unexplained by the assessee. Therefore, the assessee was examined. According to assessee amount of Rs. 5,500 was received by him from his father Atmaram and the amount of Rs. 3,500 was received by him from one P.L. Chourasia of Jabalpur. The ITO did not find genuineness of the cash credits as per section 143(2) of the income tax Act, 1961 (''the Act''). Hence, the ITO asked the assessee to prove the cash credits u/s 143(3). But in spite of service of notice, genuineness was not explained. Therefore, the penalty proceedings u/s 271(1) (c) of the Act were initiated. A show-cause notice was served upon the assessee who after receipt of the show-cause notice did not file any reply nor proved the genuineness of the cash credits and absented himself. Therefore, the ITO found that the petitioner had committed default u/s 271(1) (c) by concealing the income of Rs. 9,500. An appeal preferred against the said order before the Tribunal at Jabalpur was also dismissed on 28-9-1983. Against the said order, the petitioner instead of making an application for reference u/s 256(1) of the Act, has filed this petition under article 226/ 227.

The petitioner submits that as the petitioner was suffering from cardiac disease, therefore, he could not make an application for making the reference and as the period of limitation prescribed having been expired, hence, the petitioner had to file this petition before this Court. It was submitted that though the order of the ITO was within the jurisdiction, but the penalty could not have been levied u/s 271(1) (c), as there was no material to demonstrate that the petitioner by not disclosing the source of two cash credits had any intention to evade the payment of tax.

After hearing the counsel, I am of the opinion that the petitioner ought to have approached u/s 256 but that procedure was not adopted by the petitioner, nor the petitioner made any prayer u/s 256(2) for a direction to the Tribunal for making a reference on the questions of law. Moreover, it is well-settled that a writ Court does not exercise any appellate or revisional jurisdiction unless a case of perversity in finding of facts is made out, but such perversity in the order was not pointed out, hence, no interference can be made. Accordingly, the petition is dismissed with no order as to costs. Security amount, if any, be refunded to the petitioner.