Viswam and Company vs Commissioner of Income Tax

Ratnam, J.—In this tax case petition, u/s 256(2) of the Income Tax Act, 1961, the assessee seeks a direction to the Tribunal to refer the

following two questions of law for the opinion of this court :

(1) Whether, on the facts and in the circumstances of the case, the Tribunal was right in confirming penalty u/s 27(1)(a) for a period of one month

?

(2) Whether, on the facts and in the circumstances of the case, the Tribunal was right in confirming the penalty in the absence of mens rea on the

part of the applicant ?

In so far as the first question is concerned, we find from para 4 of the order of the Tribunal that the Tribunal had found that the assessee had

reasonable and sufficient cause for non-filing of the return up to December 31, 1976, in respect of the assessment year 1974-75, but that

thereafter, there was no such excuse available for the assessee. Admittedly, the return had been filed in February, 1977, and, under those

circumstances, the Tribunal was quite justified in restricting the levy of penalty for a period of one month. The conclusion so arrived at by the

Tribunal is essentially one of fact and no referable question of law can be stated to arise in respect of that.

With reference to the second question, we find, on a careful consideration of the order of the Tribunal, that it does not arise out of its order. We,

therefore, dismiss this petition. No costs.