S. K. KULSHRESTHA, J. :
The applicant seeks reference under s. 256(2) of the IT Act, 1961 of the following questions stated to be arising out of the order of the Tribunal pertaining to the asst. yrs. 1975-76 & 1976-77 :
'Asst. yr. 1975-76 :
1. Whether the order upholding the penalty is vitiated in law as having been passed ignoring material evidence on record regarding additions and renovations in house from February, 1973 to Dewali 1974 and not during financial year 1974-75 alone and there was substantial agricultural income of the assessee besides grains business income of her husband.
2. Whether, the presumption that the assessee concealed taxable income of Rs. 15,000 when the assessee had tax-free agricultural income of about Rs. 9000 for 6 years and her husband separate business income of about Rs. 5,000 and those years were cheap years, was rational and reasonable so as to attract penalty.
3. Whether, on the facts and in the circumstances of the case, the Tribunal was right in law in holding that the assessee was guilty of failing to furnish the return of income without reasonable cause under s. 271(1)(a) of the L.T. Act.
4. Whether, on the facts and in the circumstances of the case, the order of the Tribunal holding that the assessee did not establish that she had a bona fide belief that her income was much below taxable limit is reasonable and rational.
5. Whether, the levy of penalty under s. 271(1)(a) is justified and valid in law.
6. Whether, penalty under s. 271(1)(a) levied while the assessment was still protective was valid in law'.
Asst. yr. 1976-77 :
1. Whether the presumption that the assessee concealed taxable income of Rs. 30,000 or furnished inaccurate particulars of income when the assessees only source was tax-free income from agriculture for the last 7 years and expenses on children were being met out of her husbands grains business income was reasonable and rational so as to attract penalty for not filing the return in time.
2. Whether, on the facts and in the circumstances of the case the Tribunal was right in law in holding that the assessee was guilty of failing to furnish the return of income without reasonable cause under s. 271(1)(a) of the IT Act.
3. Whether, on the facts and in the circumstances of the case, the order of the Tribunal holding that the assessee did not establish that she had a Bona fide belief that her income was much below taxable limit is reasonable and rational.
4. Whether, the levy of penalty under s. 271(1)(a) is justified and valid in law.
5. Whether, penalty under s. 271(1)(b) levied while the assessment was still protective was valid in law.
2. The assessee did not file the returns on assumption that her income was below the taxable limit. The AO completed the assessment and found that the income of the assessee was above the taxable limit. The assessee, therefore, filed an appeal in respect of the said assessment years and the Tribunal also held that the income was above the taxable limit. Before the taxing authority and the Tribunal, the case of the assessee was that the returned income was much below the taxable limit and the additions which were finally confirmed by the Tribunal were on the basis of unexplained investment in the immovable properties. The AAC after discussing the legal position had observed that the income of the assessee had already been confirmed by the Tribunal and that it was much above the taxable limit. The penalties under s. 271(1)(a) and 273(b) of the IT Act were also levied. However, the ITO was directed to recompute the quantum of penalty under s. 271(1)(a) for the assessment years in question and as regards penalty under s. 273(b), it was observed that ITO had imposed minimum penalty.
3. A second appeal was filed in the Tribunal which was decided by the Tribunal in ITA Nos. 148 to 151/Jab/83 by order dt. 7th February, 1991 (Annex.-H). The Tribunal found that the assessee had not been able to establish that she had a bona fide belief that her income was much below the taxable limit. The Tribunal also observed that the assessee had withheld the material and as such adverse inference was drawn. The Tribunal observed that there could not have been any savings from the agricultural income of the assessee upto 20th August, 1975 and an addition of Rs. 30,000 was therefore made by the ITO as undisclosed income in the hands of the assessee. The addition was however sustained in the sum of Rs. 25,000 and the penalty levied was confirmed.
4. The assessee filed an application under s. 256(1) for seeking reference of the question of law which was rejected by the Tribunal by order dt. 12th December, 1991 (Annex.-K) and hence the present application under s. 256(2) of the Act has been filed.
5. We have heard the learned counsel for the parties and perused the record.
6. The learned counsel for the applicant has referred to the decision in CIT vs . R. K. Golecha of the Rajasthan High Court, Hindustan Steel Ltd. vs . State of Orissa : [1972]83ITR26(SC) of the Supreme Court, CIT vs. Shri Krishandas Agarwal & Ors. [1946] 14 ITR 799 of this Court and CIT vs. Baroda Tin Works (1996) 135 CTR (Guj) 126 of the Gujarat High Court and has contended that if there has been delay in filing of the return under a bona fide belief that the assessee did not have the income requiring such a Return of Income the penalty could not have been imposed. We are unable to agree with the contention of the learned counsel in the facts of the present case. The Tribunal and the other authorities have consistently found that there was no reason for the assessee to have harboured a belief that she was not required to file the return and in fact as per the observation of the Tribunal, material evidence had been suppressed by the assessee in this behalf thus, leading to inferences against the assessee. The question of Bona fide belief was essentially one of the fact and cannot give rise to any question of law justifying reference to this Court under s. 256(2) of the IT Act. Accordingly, we find that the questions stated in the application and reproduced hereinabove do not arise in the present case.
7. In the result, this application is dismissed but with no order as to costs.