Section 271(1)(c) & Section 271(2) of the Income Tax Act, 1961 - levy of maximum penalty for deliberate concealment - Rs.10.50 lakhs than the concealed account Rs.8.29 lakhs - claiming as not trading receipt as per the judgement of United Breweries , he has not claimed exemption on one hand and on the other hand he shown it in previous statement as trading receipt but concealed in relevant period of raiding - as it is a deliberate concealment tribunal fined with maximum penalty their lordships upheld the same and as far as unreconciled difference in the balance sheet there are understatement of purchases and understatement of sundry creditors - their lordships not upheld the penalty as it is not deliberate one - and as such partly allowed the RC = M/s.Kuldeep Wines, Hyderabad.... Applicant Commissioner of Income-tax (Appeals).... Respondent = 2014 (March. Part ) judis.nic.in/judis_andhra/filename=11042

Section 271(1)(c)  & Section 271(2) of the Income Tax Act, 1961 - levy of maximum penalty for deliberate concealment - Rs.10.50 lakhs than the concealed account Rs.8.29 lakhs - claiming as not trading receipt as per the judgement of  United Breweries , he has not claimed exemption on one hand and on the other hand he shown it in previous statement as trading receipt but concealed in relevant period of raiding - as it is a deliberate concealment tribunal fined with maximum penalty   their lordships upheld the same and as far as unreconciled difference in the balance sheet  there are  understatement of purchases and understatement of sundry creditors - their lordships not upheld the penalty as it is not deliberate one - and as such partly allowed the RC =

"Whether on the facts and in the circumstances of the case, the Income-Tax
Appellate Tribunal is justified in upholding the levy of maximum penalty of
Rs.10.50 lakhs and whether the Tribunal's findings are vitiated by non-
consideration of the relevant factors"?=

a)      Refundable empty bottle deposit                 Rs.5,19,329/-
b)      Packing and servicing charges                   Rs.1,26,096/-
c)      Unreconciled difference in the balance
        sheet                                                           Rs.1,84,541/-
                                                                        ___________  
                                        Total                           Rs.8,29,966/-
                                                                        ___________  
=
1) Whether on the facts and in the circumstances of the case, the Tribunal is
justified in upholding the levy of maximum penalty under Section 271(2) of the
Income Tax Act, 1961 on account of the issue relating to concealment of
refundable empty bottle deposit and the Tribunal's findings are vitiated by non-
consideration of the relevant factors? =
we find that the Tribunal
recorded a finding that the assessee did not disclose the income on account of
refundable empty bottle deposit and servicing and packing charges either in the
profit and loss account or in the balance sheet besides not claiming exemption
in respect thereof in Part-IV of the Return. The Tribunal also found that with
respect to refundable empty bottle deposit, the assessee had disclosed the
amount of refundable empty deposits for the assessment years 1981-82 and 1983- 
84, but strangely failed to disclose the same for the assessment year 1982-83.
The concealment with respect to the collection of refundable empty bottle
deposits would never have come to light, but for the search operations conducted
by the Revenue on 16.03.1985.  
In other words, the finding of the Tribunal is
that there was a deliberate and wanton concealment on the part of the assessee,
and this finding is not dislodged before us in any manner by the assessee.
United Breweries case is in relation to the sales tax.  Though the Supreme
Court, while analyzing the facts of Punjab Distilling case had made a mention
that the decision of the case is on its peculiar facts, the crucial aspect of
the ratio laid down in that case is to the effect that the amount collected on
account of the refundable empty bottle deposit is a trading receipt and is
required to be brought into the profit and loss account.  It is not the
contention of the learned counsel for the assessee that the amount received on
account of refundable empty bottle deposit is not a trading receipt.  As a
matter of fact, the assessee himself for the assessment years 1981-82 and 1983-
84 treated the same as trading receipt.  In that view of the matter, the
distinguishing aspect which is sought to be made, has no distinction at all.
Further, in the absence of dislodging the finding of the Tribunal to the effect
that there was a deliberate concealment of the refundable empty bottle deposits
by not disclosing the same either in profit and loss account or in the balance
sheet, the levy of penalty as provided under Section 271(c) of the Act on the
facts of the case, cannot be found fault with.
2) Whether on the facts and in the circumstances of the case, the Tribunal is
justified in upholding the maximum penalty arising on account of unreconciled
difference in the balance sheet and the Tribunal's findings are vitiated by non-
consideration of the relevant factors?  =
"Similarly, the differences in the balance sheet can be the result of various
wrong entries.  The assessing officer himself noticed some wrong entries like
the understatement of purchases and understatement of sundry creditors and no
motive of concealment can be attributed to these wrong entries.
So, I am of the view that there is no justification for the levy of penalty
under Section 271(1)(c) in respect of this addition."
   =
In the result, Question No.1 is answered in favour of the Revenue and
against the assessee and Question No.2 is answered in favour of the assessee and
against the Revenue.
        Accordingly, the Referred Case is disposed of.  No order as to costs.

2014 (March. Part ) judis.nic.in/judis_andhra/filename=11042

HONOURABLE SRI JUSTICE G.CHANDRAIAH & HONOURABLE SRI JUSTICE CHALLA KODANDA RAM                      

R.C.No.52 of 2001

04-03-2014

M/s.Kuldeep Wines, Hyderabad.... Applicant                    

Commissioner of Income-tax (Appeals).... Respondent

!Counsel for the Applicant: Sri Ch.Pushyam Kiran

Counsel  for Respondent:  Sri S.R. Ashok

<Gist:

>Head Note:

?Cases referred:

1.[1959] 35 ITR 519 (SC)
2.[1997] 3 Supreme Court Cases 530

HON'BLE  SRI  JUSTICE G. CHANDRAIAH      
&
HON'BLE  SRI  JUSTICE CHALLA KODANDA RAM        

R.C. No.52 of 2001


JUDGMENT:- ( per Hon'ble Sri Justice Challa Kodanda Ram)

           At instance of the Revenue, below mentioned question of law, which
arises from the order dated 07.08.1995 of the Tribunal in I.T.A.No. 376/Hyd/90
for the assessment year 1982-83, has been referred for opinion of this Court.
"Whether on the facts and in the circumstances of the case, the Income-Tax
Appellate Tribunal is justified in upholding the levy of maximum penalty of
Rs.10.50 lakhs and whether the Tribunal's findings are vitiated by non-
consideration of the relevant factors"?

Heard Sri Ch.Pushyam Kiran, learned counsel for the assessee and Sri S.R.Ashok,
learned Senior Counsel for Income-tax Department.
After perusing the orders of the Tribunal and hearing both the  learned counsel,
we deem it appropriate to reframe the question of law as under:
1) Whether on the facts and in the circumstances of the case, the Tribunal is
justified in upholding the levy of maximum penalty under Section 271(2) of the
Income Tax Act, 1961 on account of the issue relating to concealment of
refundable empty bottle deposit and the Tribunal's findings are vitiated by non-
consideration of the relevant factors?
2) Whether on the facts and in the circumstances of the case, the Tribunal is
justified in upholding the maximum penalty arising on account of unreconciled
difference in the balance sheet and the Tribunal's findings are vitiated by non-
consideration of the relevant factors?
        The assessee is carrying on the business of liquor.  For the assessment
year 1982-83, the assessee was levied with penalty under Section 271(2) of the
Income-tax Act, 1961 (for short "the Act") for concealment of income amounting
to Rs.8,29,966/- on three counts as mentioned below:
a)      Refundable empty bottle deposit                 Rs.5,19,329/-
b)      Packing and servicing charges                   Rs.1,26,096/-
c)      Unreconciled difference in the balance
        sheet                                                           Rs.1,84,541/-
                                                                        ___________  
                                        Total                           Rs.8,29,966/-
                                                                        ___________  

The assessee's appeal before the Commissioner came to be allowed in part.  Out
of the three items mentioned above, the assessee himself agreed to the penalty
on packing and servicing charges and paid the penalty.  The assessee's
explanation was accepted by the first appellate authority so far as refundable
empty bottle deposit and unreconciled difference in the balance sheet are
concerned.  The Department appealed to the Income-tax Appellate Tribunal and the
assessee filed Cross-Objections in that appeal with a delay of 17 days.  The
Tribunal allowed the appeal of the Department while rejecting the Cross-
Objections on the ground of delay and that no petition was filed by the assessee
seeking condonation of such delay.  In the above set of facts and circumstances,
the assessee has sought the above referred questions of law for opinion of this
Court.
        The learned counsel for the assessee contends that the reasoning recorded
by the Tribunal for reversing the order of the first appellate authority and
coming to a different conclusion is erroneous and unsustainable.  He submits
that the Tribunal has erred in properly appreciating the judgment of the Supreme
Court reported in Punjab Distilling Industries Ltd. vs. The Commissioner of
Income Tax, Simla1 and would point out that the said judgment has been
distinguished in another judgment reported in United Breweries Ltd. v. State of
Andhra Pradesh2.  He also contends that the Tribunal failed to deal with the
aspect of penalty arising on account of unreconciled difference in the balance
sheet.
        On the other hand, the learned Senior Counsel for the Department supports
the order of the Tribunal.
        From a perusal of the order of the Tribunal, we find that the Tribunal
recorded a finding that the assessee did not disclose the income on account of
refundable empty bottle deposit and servicing and packing charges either in the
profit and loss account or in the balance sheet besides not claiming exemption
in respect thereof in Part-IV of the Return. The Tribunal also found that with
respect to refundable empty bottle deposit, the assessee had disclosed the
amount of refundable empty deposits for the assessment years 1981-82 and 1983- 
84, but strangely failed to disclose the same for the assessment year 1982-83.
The concealment with respect to the collection of refundable empty bottle
deposits would never have come to light, but for the search operations conducted
by the Revenue on 16.03.1985.  In other words, the finding of the Tribunal is
that there was a deliberate and wanton concealment on the part of the assessee,
and this finding is not dislodged before us in any manner by the assessee.  So
far as the distinguishing aspect which is sought to be made by the learned
counsel for the assessee referring to the fact that the Supreme Court in United
Breweries case (2nd cited supra) had distinguished the judgment of the Punjab
Distilling case (1st cited supra) is concerned, we may point out at once that
the United Breweries case is in relation to the sales tax.  Though the Supreme
Court, while analyzing the facts of Punjab Distilling case had made a mention
that the decision of the case is on its peculiar facts, the crucial aspect of
the ratio laid down in that case is to the effect that the amount collected on
account of the refundable empty bottle deposit is a trading receipt and is
required to be brought into the profit and loss account.  It is not the
contention of the learned counsel for the assessee that the amount received on
account of refundable empty bottle deposit is not a trading receipt.  As a
matter of fact, the assessee himself for the assessment years 1981-82 and 1983-
84 treated the same as trading receipt.  In that view of the matter, the
distinguishing aspect which is sought to be made, has no distinction at all.
Further, in the absence of dislodging the finding of the Tribunal to the effect
that there was a deliberate concealment of the refundable empty bottle deposits
by not disclosing the same either in profit and loss account or in the balance
sheet, the levy of penalty as provided under Section 271(c) of the Act on the
facts of the case, cannot be found fault with.
So far as the aspect of penalty with respect to unreconciled difference in the
balance sheet is concerned we are inclined to accept the argument of the learned
counsel for the assessee in view of the categorical finding of the first
appellate authority to the effect that;
"Similarly, the differences in the balance sheet can be the result of various
wrong entries.  The assessing officer himself noticed some wrong entries like
the understatement of purchases and understatement of sundry creditors and no
motive of concealment can be attributed to these wrong entries.
So, I am of the view that there is no justification for the levy of penalty
under Section 271(1)(c) in respect of this addition."

There is no contra finding given by the Tribunal in its order, and in other
words, the finding recorded by the first appellate authority has not been
disturbed.  In that view of the matter, there cannot be any justification for
the Income-tax Appellate Tribunal in reversing the said finding without there
being any discussion.
        In the result, Question No.1 is answered in favour of the Revenue and
against the assessee and Question No.2 is answered in favour of the assessee and
against the Revenue.
        Accordingly, the Referred Case is disposed of.  No order as to costs.
        As a sequel to the disposal of the Referred Case, Miscellaneous Petitions,
if any pending, shall stand disposed of as infructuous.
_______________  
G. CHANDRAIAH, J  
04-03-2014
_____________________  
CHALLA KODANDA RAM, J

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