Cit Vs. Garg Traders - Court Judgment

Excerpt:
counsels: r.p. sawhney and rajesh bindal, for the revenue rakesh garg, for the assessee in the punjab and haryana high court jawahar lal gupta & ashutosh mohunta, jj. - haryana urban(control of rent and eviction)act,1973[har.act no.11/1973] -- section 4(2)(b): [m.m. kumar, hemant gupta, ajay & kumar mittal, jj] determination of fair rent held, the fair rent of building under the section is to be determined on the basis of rent agreed between landlord and tenant preceding the date of application. in the absence of rent agreed between parties the basic rent is required to be determined on the basis of rent prevailing in locality for a similar building or rented land on the date of application. if on the date of filing of the application under section 4 of the act for determination of fair rent, the agreed rent was still in vogue thus, it has to be regarded as the basic rent and the same would be constituted as the basis for determining fair rent. thus, where rs.500/- was paid as rent by tenant to the landlord, the same would be regarded as agreed rate of rent and the agreed rate of rent has to be regarded as basic rent within the meaning of section 4(2)(b) of the act in the process of fixing fair rent irrespective of the fact whether the lease period stipulated in a lease deed has expired.ordergupta, j.this is a petition under section 256(2) of the income tax act, 1961 (hereinafter referred to as the act). the revenue prays that the tribunal be directed to refer the following question of law for the opinion of this court :'whether, on the facts and in the circumstances of the case, the tribunal was right in law in cancelling penalty levied under section 273 when the surrender made by the assessee during the enquiry/ investigation cannot be said to be voluntary and also the assessee failed to submit any explanation in response to notice under section 274 read with section 273 in spite to repeated opportunities afforded to him ?'2. the dispute relates to the assessment year 1986-87. during the course of proceedings, the assessee disclosed an additional income of rs. 1 lakh. the income tax officer passed an order of assessment and also imposed a penalty of rs. 4,850 under section 273 of the act. the assessee filed an appeal which was dismissed by the commissioner. on further appeal to the tribunal, the claim of the assessee that disclosure was voluntary and that no penalty was leviable was accepted. hence this petition.3. mr. sawhney, the learned counsel for the revenue, contends that the assessee had made the disclosure only after it had been cornered. the disclosure was not voluntary. thus, the tribunal has erred in reversing the order passed by the commissioner. is it so ?4. it is the admitted position that an enquiry was held from january 25 to february 8, 1988. did the department find any evidence against the assessee how was the assessee cornered there is no evidence.a perusal of the order passed by the tribunal shows that the department had not produced any thing to indicate that there was concealment of income by the assessee. consequently, the tribunal held that the penalty is not leviable'.5. mr. sawhney contends that in view of the decision of a division bench of this court in mahavir metal works v. cit , the decision of the tribunal was wrong. we have perused this decision. even in this case, it has been held that it was for the department to show that the assessee had concealed his income.faced with this situation, mr. sawhney has contended that even if a reasonably arguable question arises, the tribunal should be directed to make a reference to this court. reliance has been placed on the decision of (heir lordships of the supreme court in cit v. managing trustee, jalakhabai trust : [1967]66itr619(sc) . there is no quarrel with the proposition. so far as the conclusion on facts is concerned, the evidence has to be examined in each case. the issue as sought to be raised by the revenue is, in our opinion, fully settled. however, the decision is based on the evidence on record. no question of law arises. thus, no ground for directing the tribunal to refer any question to this court for its opinion arises.6. resultantly, the petition is dismissed.

Judgment:
ORDER

Gupta, J.

This is a petition under section 256(2) of the Income Tax Act, 1961 (hereinafter referred to as the Act). The revenue prays that the Tribunal be directed to refer the following question of law for the opinion of this court :

'Whether, on the facts and in the circumstances of the case, the Tribunal was right in law in cancelling penalty levied under section 273 when the surrender made by the assessee during the enquiry/ investigation cannot be said to be voluntary and also the assessee failed to submit any explanation in response to notice under section 274 read with section 273 in spite to repeated opportunities afforded to him ?'

2. The dispute relates to the assessment year 1986-87. During the course of proceedings, the assessee disclosed an additional income of Rs. 1 lakh. The Income Tax Officer passed an order of assessment and also imposed a penalty of Rs. 4,850 under section 273 of the Act. The assessee filed an appeal which was dismissed by the Commissioner. On further appeal to the Tribunal, the claim of the assessee that disclosure was voluntary and that no penalty was leviable was accepted. Hence this petition.

3. Mr. Sawhney, the learned counsel for the revenue, contends that the assessee had made the disclosure only after it had been cornered. The disclosure was not voluntary. Thus, the Tribunal has erred in reversing the order passed by the Commissioner. Is it so ?

4. It is the admitted position that an enquiry was held from January 25 to February 8, 1988. Did the department find any evidence against the assessee How was the assessee cornered There is no evidence.

A perusal of the order passed by the Tribunal shows that the department had not produced any thing to indicate that there was concealment of income by the assessee. Consequently, the Tribunal held that the penalty is not leviable'.

5. Mr. Sawhney contends that in view of the decision of a Division Bench of this court in Mahavir Metal Works v. CIT , the decision of the Tribunal was wrong. We have perused this decision. Even in this case, it has been held that it was for the department to show that the assessee had concealed his income.

Faced with this situation, Mr. Sawhney has contended that even if a reasonably arguable question arises, the Tribunal should be directed to make a reference to this court. Reliance has been placed on the decision of (heir Lordships of the Supreme Court in CIT v. Managing Trustee, Jalakhabai Trust : [1967]66ITR619(SC) . There is no quarrel with the proposition. So far as the conclusion on facts is concerned, the evidence has to be examined in each case. The issue as sought to be raised by the revenue is, in our opinion, fully settled. However, the decision is based on the evidence on record. No question of law arises. Thus, no ground for directing the Tribunal to refer any question to this court for its opinion arises.

6. Resultantly, the petition is dismissed.