Commissioner of Income Tax Vs. Roshanlal Kasliwal. - Court Judgment

Excerpt:
- section 2(k), 2(1), 7 & 40 & juvenile justice (care and protection of children) rules, 2007, rule 12 & 98 & juvenile justice act, 1986, section 2(h): [altamas kabir & cyriac joseph, jj] determination as to juvenile - appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - appellant was arrested on 30.11.1998 when the 1986 act was in force and under clause (h) of section 2 a juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years - it is with the enactment of the juvenile justice act, 2000, that in section 2(k) a juvenile or child was defined to mean a child who had not completed eighteen years of a ge which was given prospective prospect - appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the juvenile justice act, 2000, came into force - juvenile act, of 2000 has been given retrospective effect by rule 12 of juvenile justice rule, 2007 - as such, accused has to be treated as juvenile under the said act. - the reason which prevented the firm from filing estimate are applicable in the instant case also, the assessee being partner and the reasons in case of firm having a direct bearing on the partners as well.orderby the court - this is an application under section 256(1) of the income-tax act, 1961 (hereinafter referred to as the act) filed by the revenue, wherein it has been prayed that the revenue, wherein it has been prayed that the following question of law arises in the case and the tribunal be directed to draw a statement of case :'whether, on the facts and in the circumstances of the case the tribunal was justified in cancelling the penalty of rs. 11,000 levied under section 273(c) of the income-tax act, 1961 ?'2. notice of demand for payment of advance tax of rs. 31,466 was issued to the assessee. the assessee filed return declaring income of rs. 2,36,280 and the assessment was completed on an income of rs. 2,76,600 (after appeal effect). the tax on the income comes to rs. 1,89,585. since the tax levied on the basis of returned income exceeded the tax demanded by one-third of the latter amount, the assessee was required to file estimate and pay advance tax and a notice under section 274 of the act requesting the assessee to show cause as to why penalty should not be imposed, was issued and served on the assessee. a fresh opportunity was also offered and the assessee in his reply furnished the following explanation :'assessees major source of income is share income from gem palace, jaipur. the reason which prevented the firm from filing estimate are applicable in the instant case also, the assessee being partner and the reasons in case of firm having a direct bearing on the partners as well.a penalty of rs. 33,700 under section 273(c) of the act was levied in the case of the firm for the assessment year 1975-76. the honble commissioner of income-tax (a) after appreciating the reasonable cause which prevented the firm from filing an estimate accepted the same and cancelled the penalty levied on the firm in appeal no. 308 of 1977-78 vide order dated 26-10-1978. since the reasons for not filing any estimate in the assessees case are the same it is requested that no penalty under section 273(c) of the act levied on the assessee.'3. the ito did not accept the explanation furnished by the assessee and under its order dated 12-3-1980 imposed penalty of rs. 11,100. the assessee preferred an appeal before the commissioner(a), rajasthan i, jaipur and the appellate authority under its order dated 24-10-1980 (annexure 2) allowed the appeal and the explanation furnished by the assessee was accepted. the penalty levied by the ito was set aside. the revenue preferred an appeal before the tribunal, jaipur, and the calcutta bench d, camp at jaipur, under its order dated 13-7-1981 dismissed the appeal.an application was filed on behalf of the revenue before the tribunal to make reference to this court. the tribunal under its order dated 29-5-1982 refused to make a reference, as in its opinion the question as to whether the explanation furnished by the assessee is correct or not, is purely a question of fact and no question of law arises out of the order of the tribunal.4. we have heard mr. r. n. surolia, the learned counsel for the revenue, and mr. g. s. bafna, the learned counsel for the assessee.5. mr. surolia, the learned counsel for the revenue, has no quarrel with the proposition as to whether the explanation furnished by the assessee for not paying the advance tax is correct or not, is purely a question of fact. his submission is that the finding of the tribunal that the explanation furnished by the assessee that because of the search having been conducted on 19-11-1974, he could not deposit the advance tax upto the last day when the instalment was due, is perverse. we are unable to agree with mr. surolia. it is not disputed that a search was conducted on the business premises on 19-11-1974 and the advance tax could not have been deposited by 14-12-1974.6. in these circumstances we are in agreement with the tribunal that no question of law arises out of the order of the tribunal. the reference application is, therefore, dismissed. there will be no order as to costs.

Judgment:
ORDER

By the Court - This is an application under section 256(1) of the Income-tax Act, 1961 (hereinafter referred to as the Act) filed by the revenue, wherein it has been prayed that the revenue, wherein it has been prayed that the following question of law arises in the case and the Tribunal be directed to draw a statement of case :

'Whether, on the facts and in the circumstances of the case the Tribunal was justified in cancelling the penalty of Rs. 11,000 levied under section 273(c) of the Income-tax Act, 1961 ?'

2. Notice of demand for payment of advance tax of Rs. 31,466 was issued to the assessee. The assessee filed return declaring income of Rs. 2,36,280 and the assessment was completed on an income of Rs. 2,76,600 (after appeal effect). The tax on the income comes to Rs. 1,89,585. Since the tax levied on the basis of returned income exceeded the tax demanded by one-third of the latter amount, the assessee was required to file estimate and pay advance tax and a notice under section 274 of the Act requesting the assessee to show cause as to why penalty should not be imposed, was issued and served on the assessee. A fresh opportunity was also offered and the assessee in his reply furnished the following explanation :

'Assessees major source of income is share income from Gem Palace, Jaipur. The reason which prevented the firm from filing estimate are applicable in the instant case also, the assessee being partner and the reasons in case of firm having a direct bearing on the partners as well.

A penalty of Rs. 33,700 under section 273(c) of the Act was levied in the case of the firm for the assessment year 1975-76. The Honble commissioner of Income-tax (A) after appreciating the reasonable cause which prevented the firm from filing an estimate accepted the same and cancelled the penalty levied on the firm in appeal No. 308 of 1977-78 vide order dated 26-10-1978. Since the reasons for not filing any estimate in the assessees case are the same it is requested that no penalty under section 273(c) of the Act levied on the assessee.'

3. The ITO did not accept the explanation furnished by the assessee and under its order dated 12-3-1980 imposed penalty of Rs. 11,100. The assessee preferred an appeal before the Commissioner(A), Rajasthan I, Jaipur and the appellate authority under its order dated 24-10-1980 (Annexure 2) allowed the appeal and the explanation furnished by the assessee was accepted. The penalty levied by the ITO was set aside. The revenue preferred an appeal before the Tribunal, Jaipur, and the Calcutta Bench D, camp at Jaipur, under its order dated 13-7-1981 dismissed the appeal.An application was filed on behalf of the revenue before the Tribunal to make reference to this Court. The Tribunal under its order dated 29-5-1982 refused to make a reference, as in its opinion the question as to whether the explanation furnished by the assessee is correct or not, is purely a question of fact and no question of law arises out of the order of the Tribunal.

4. We have heard Mr. R. N. Surolia, the learned counsel for the revenue, and Mr. G. S. Bafna, the learned counsel for the assessee.

5. Mr. Surolia, the learned counsel for the revenue, has no quarrel with the proposition as to whether the explanation furnished by the assessee for not paying the advance tax is correct or not, is purely a question of fact. His submission is that the finding of the Tribunal that the explanation furnished by the assessee that because of the search having been conducted on 19-11-1974, he could not deposit the advance tax upto the last day when the instalment was due, is perverse. We are unable to agree with Mr. Surolia. It is not disputed that a search was conducted on the business premises on 19-11-1974 and the advance tax could not have been deposited by 14-12-1974.

6. In these circumstances we are in agreement with the Tribunal that no question of law arises out of the order of the Tribunal. The reference application is, therefore, dismissed. There will be no order as to costs.