Cit Vs. N. Sheela Devi - Court Judgment

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counsels: t ravikumar, for the revenue none, for the assessee head note: income tax penalty under s. 271(1)(c)--concealmentfailure to pay tax on amount disclosed under voluntary disclosure scheme catch note: assessee made declaration under voluntary disclosure of income and wealth scheme, 1975 and tax payable on amount voluntarily disclosed was not paid along with statement disclosing the income, even though last date for payment had been extended from time-to-time--assessing officer initiated penalty proceedings under section 271(1)(c) on the ground of concealment of income and levied penalty--assessee contested that levy by way of appeal contending that delay in payment of tax was not to be attributed entirely to her but was in part due to fact that certificate that she had sought for under section 230a for the sale of one of her properties, was given to her later even though she had applied for it more than a year earlier--non-payment of tax along with statement of voluntary disclosure of income, penalty was to be levied--the scheme under which voluntary disclosure was made by assessee clearly required that tax be paid along with statement which admittedly was not done--revenue cannot be held responsible for such non-payment, merely because certificate for sale of one of assessee's properties had not been issued to her in time. ratio: the scheme under which voluntary disclosure was made by assessee clearly required that tax be paid along with statement which admittedly was not done and revenue cannot be held to be responsible for such non-payment, merely because a certificate for the sale of one of her properties had not been issued to her in time, therefore, levy of penalty by assessing officer was justified. held: it was the duty of the assessee to comply with the requirement of the scheme if she wanted to have the advantage and benefits provided therein. section 14 of the voluntary disclosure of income and wealth act, which is identical to the scheme clearly sets out that the penalty has to be imposed where tax is not paid by the declarant according to the provisions of the section 5 of the act. that section prescribes the last date before which payment was required to be made. the assessee had not paid those amounts within that date and was not eligible to take advantage of immunity conferred under section 14 of the scheme. the levy of penalty was permissible. therefore, levy of penalty in such circumstances by assessing officer was justified. application: also to current assessment year. decision: in favour of revenue. income tax act 1961 s.271(1)(c) penalty under s. 271(1)(c)--jurisdiction of assessing officeramount disclosed under voluntary disclosure scheme catch note: it is the date of assessment which is relevant for identifying the officer competent to initiate penalty proceedings, as penalty for concealment of income for non-furnishing or furnishing of inaccurate particulars of income can be imposed only when assessing authority is satisfied that there is concealment of income in furnishing particulars--penalty proceedings can be initiated only after assessment was made with respect to such concealed income. ratio: it is the date of assessment which is relevant for identifying the officer competent to initiate penalty proceedings, as penalty for concealment of income for non-furnishing or furnishing of inaccurate particulars of income can be imposed only when assessing authority is satisfied that there is concealment of income in furnishing particulars--penalty proceedings can be initiated only after assessment was made with respect to such concealed income. case law analysis: cit v. n. rama devi (2000) 18 dtc 634 (mad-hc) (sn) : (2001) 248 itr 654 (mad) applied. application: also to current assessment year. decision: in favour of revenue. income tax act 1961 s.271(1)(c) in the madras high court r. jayasimha babu. & a.k. rajan, jj. - constitution of india article 141; [a.p. shah, c.j., f.m. ibrahim kaliffulla &v. ramasubramanian, jj] reference to larger bench - precedent - full bench decision held, it is binding on the division bench. only if the full bench comes to conclusion that earlier full bench decision is incorrect, there is scope for making reference to larger bench. division bench doubting correctness of full bench decision cannot direct registry for placing papers before chief justice to make reference to larger bench. r. jayasimha babu, j.the references are at the instance of the revenue in respect of the assessment years 1966-67, 1970-71 and 1971-72 to 1973-74.2. the assessee who was a cine artist had made a declaration under the voluntary disclosure of income and wealth scheme, 1975 which came into effect on 8-10-1975, and was replaced by voluntary disclosure of income and wealth act, 1976 (act 8 of 1976). the tax payable on the amount voluntarily disclosed was not paid along with the, statement disclosing the income, even though the last date for payment had been extended from time-to-time, the last extension being till the first day of january, 1978.3. the assessing officer initiated penalty proceedings under section 271(1)(c) of the income tax act on the ground of concealment of income and levied the minimum penalty. the assessee contested that levy by way of appeal contending that the delay in payment of the tax was not to be attributed entirely to her but was in part due to the fact that the certificate that she had sought for under section 230a of the income tax act for the sale of one of her properties, was given to her only on 2-5-1978, even though she had applied for it more than a year earlier in march 1977. the appeal having been unsuccessful, she carried the matter to the tribunal which accepted her case and held that the penalty was not imposable. the assessee had also urged before the tribunal that the income tax officer had no jurisdiction to levy the penalty as he would not have been competent to make such a levy as on the date of filing of the disclosure statement, even though he was competent to do so as on the date the order imposing the penalty was made. that submission also found favour with the tribunal.4. in this reference the revenue has questioned the correctness of that view of the tribunal, namely notwithstanding the non-payment of the tax along with the statement of voluntary disclosure of of income, penalty was not to be levied, and that the authority competent to levy penalty is only the officer who was competent to do so as on the date the statement was filed, and not the officer who was competent to levy penalty as on the date the order levying penalty was made.5. the scheme under which the voluntary disclosure was made by the assessee clearly required that the tax be paid along with the statement which admittedly was not done. the revenue cannot be held to be responsible for such non payment, merely because a certificate for the sale of one of her properties had not been issued to her in time. it was the duty of the assessee to comply with the requirement of the scheme if she wanted to have the advantage and benefits provided therein.6. section 14 of the voluntary disclosure of income and wealth act, which is identical to the scheme clearly sets out that the penalty has to be imposed where tax is not paid by the declarant according to the provisions of the section 5 of the act. that section prescribes the last date before which payment was required to be made. the assessee had not paid those amounts within that date and was not eligible to take advantage of immunity conferred under section 14 of the scheme. the levy of penalty was permissible. 7. the tribunal's view, in the circumstances, cannot be upheld and the first two questions which concern that issue are answered in favour of the revenue and against the assessee.8. the other question referred regarding the competence of the officer levying penalty, must also be answered in favour of the revenue and against the assessee, in the light of the judgment of this court in the case of cit v. n. rama devi : [2001]248itr654(mad) , wherein it has been held that it is the date of assessment which is relevant for identifying the officer competent to initiate penalty proceedings, as the penalty for concealment of income for non-furnishing or furnishing of inaccurate particulars of income can be imposed only when the assessing authority is satisfied that there is concealment of income in furnishing particulars. the penalty proceedings can be initiated only after the assessment was made with respect to such concealed income.9. having regard to the law laid down, that question also is answered in favour of the revenue and against the assessee.