Prem Nazir (Deceased) (Through Legal Representatives Shah Nawaz and Another) Vs. Commissioner of Income-tax. - Court Judgment

Excerpt:
head note: income tax reference--question of fact--penalty--omission to disclose income in the return. held : the bank account constituted relevant evidence to show that though the assessee had received the sum of rs. 30,000 and had deposited it in his account with the bank, he had not disclosed it. on the basis of the materials available on record, the tribunal is right in concluding that the omission on the part of the assessee to disclose the sum of rs. 30,000 for purposes of assessment was not accidental. therefore, no referable question of law can be said to arise out of the order of the tribunal. conclusion : finding by tribunal that omission not accidental gave rise to no question of law. application : also to current assessment year. citation : income tax act 1961 s.256(2) - ratnam j. - in this tax case petition, at the instance of the legal representatives of the deceased assessee, under section 256(2) of the income-tax act, 1961, a direction is sought to the tribunal to refer the following questions of law for the opinion of this court :'(1) whether, on the facts and in the circumstances of the case, the tribunal is right in law in holding that the assessee cannot be considered as having established that the omission to show the amount of rs. 30,000 in the first instance in filing the details of the receipts aggregating to about rs. 6.66 lakhs was accidental ?(2) whether, on the facts and in the circumstances of the case, the finding of the tribunal that there was failure to produce the bank account when called for during the assessment stage and the same had to be taken into consideration in deciding the liability for penalty ?(3) whether, on the facts and in the circumstances of the case, the tribunal had jurisdiction to call for the bank account which was not on record and which was not relied on by the income-tax officer at any other earlier stage ?'we have carefully considered the order of the tribunal. we find therefrom that the assessee had made entries in the diary, seized in the course of the raid, showing receipts from producers. an entry in the page of the diary bearing the date september 5, 1967, had been made to the effect that, on august 9, 1977, a cheque for rs. 30,000 had been received from geo pictures and that was deposited in the federal bank at mount road on august 9, 1977. on the facing page, bearing the date september 6, 1967, entries had been made for receipt of rs. 10,000, rs. 25,000 and rs. 5,000 on july 30, 1977, august 29, 1977, and september 24, 1977. while the latter three receipts had been duly accounted for and had also been offered by the assessee for assessment, there was an omission to furnish particulars in respect of the entry for rs. 30,000. in the course of the assessment proceedings, the assessee was called upon to produce the bank account with the federal bank which, however, was not done. based on the facts and also the probabilities and also the extract of the account of the assessee with the federal bank, which was produced before the tribunal, it took the view that the omission on the part of the assessee to disclose the amount of rs. 30,000 in the first instance, while filing the details of the receipts, cannot be characterised as accidental, though it may be that, in the course of the assessment proceedings, the assessee had readily agreed to the addition of the amount of rs. 30,000 for the purposes of assessment. the materials available on record clearly show that though the assessee was aware of the receipt of the cheque for rs. 30,000 on august 9, 1977, and also other amounts on july 30, 1977, august 29, 1977, etc., there had been an omission to offer the receipt of rs. 30,000 for purposes of assessment, while other amounts, found entered in the facing page had been offered for assessment. it is extremely difficult to believe that there was any accidental omission on the part of the assessee to disclose the particulars of the receipt of rs. 30,000. further, before the tribunal, the representative of the assessee as well as the department were requested to produce a copy of the account of the assessee with the federal bank and ultimately a copy of that account was produced by the department through the inspector and it was seen therefrom that the assessee had deposited the cheque also for rs. 30,000 and that had been brought into his account. the bank account thus constituted relevant evidence to show that though the assessee had received the sum of rs. 30,000 and had deposited it in his account with the bank, he had not disclosed it. on the basis of the materials available on record, the tribunal is right in concluding that the omission on the part of the assessee to disclose the sum of rs. 30,000 for purposes of assessment was not accidental. we are satisfied that no referable question of law can be said to arise out of the order of the tribunal. the tax case petition is, therefore, dismissed. there will be no order as to costs.