Kerala High Court
S.M. Syed Mohammed (Deceased) (By Legal ... vs Commissioner Of Income-Tax on 6 July, 1993
Equivalent citations: [1994]206ITR269(KER)
JUDGMENT T.L. Viswanatha Iyer, J.
1. One of the questions referred to us at the instance of the assessee is : "Whether there was a valid reference by the Income-tax Officer under Section 274(2) to the Inspecting Assistant Commissioner ?"
2. These references are at the instance of the assessee and the Revenue and concern the imposition of penalty on the deceased assessee under Section 271(1)(c) of the Income-tax Act, 1961, for the assessment year 1973-74. While the assessee contended that he had not concealed particulars of any income, it was the case of the Department that the case squarely fell within Section 271(1)(c). The penalty had been imposed by the Inspecting Assistant Commissioner purporting to act under Section 274(2) of the Act which had been repealed with effect from April 1, 1976. The assessee had raised a contention that the Inspecting Assistant Commissioner derives jurisdiction to impose penalty only if there is a valid reference to him by the Income-tax Officer under Section 274(2). The assessment was completed on March 30, 1976, and the Income-tax Officer informed the assessee by a letter of even date that the case was being referred to the Inspecting Assistant Commissioner for the purpose of levy of penalty. The original of that letter was despatched to the Inspecting Assistant Commissioner on March 31, 1976, and was, admittedly', received by the Inspecting Assistant Commissioner on April 1, 1976. According to the assessee, this letter contained only a proposal to initiate penalty proceedings and did not actually make any reference of any question of penalty to the Inspecting Assistant Commissioner. The assessee, therefore, contended that there was no valid reference to the Inspecting Assistant Commissioner. It was this contention that resulted in the question mentioned earlier being referred to this court at the instance of the assessee.
3. The assessee had a contention on the merits that the assessment was one made invoking Section 52(2) of the Act and, therefore, there was no scope for invoking Section 271(l)(c). But counsel for the Revenue pointed out that the Appellate Tribunal had called for further reports from the Income-tax Officer and, based on those reports, the Tribunal in its order held that there was no need to invoke Section 52(2) and that, on the basis of the admissions made by the assessee himself, the consideration for the transfer has to be fixed at Rs. 2,69,000.
4. In making the reference, the Tribunal has annexed only the order imposing penalty by the Inspecting Assistant Commissioner and the Tribunal's order confirming the same in part. Consideration of the contention of the assessee as to whether there was a valid and proper reference depends very much on the reference, if any, made by the Income-tax Officer and also on the terms of the letter which he had written to the Inspecting Assistant Commissioner on March 31, 1976. A proper adjudication on the point requires perusal of that letter of March 31, 1976, as also on the existence of any other reference made by the Income-tax Officer to the Inspecting Assistant Commissioner on the question of penalty. Since these details are essential for a proper decision of the case, we are inclined to call for a supplementary statement from the Tribunal on these aspects.
5. We also feel that copies of the original order of assessment and the order of the Appellate Tribunal in I. T. A. No. 740/(Coch.) of 1977-78, dated March 31, 1980, are necessary for a proper adjudication of these references. It is necessary to send up those documents as well to this court.
6. Since the references are very old ones pending in this court since 1983, the supplementary statement of case incorporating these documents and details should reach this court without any delay to enable this court to dispose of these references without any further delay.
7. We, therefore, direct the Income-tax Appellate Tribunal, Cochin Bench, to furnish a supplementary statement of case, incorporating the order of assessment made on the assessee, the order of the Income-tax Appellate Tribunal in I. T. A. No. 740/(Coch.) of 1977-78, dated March 31, 1980, and the letter of the Income-tax Officer dated March 31, 1976, sent to the Inspecting Assistant Commissioner. The Tribunal will also forward to this court its finding as to whether there was any other letter or order of reference on the question of penalty to the Inspecting Assistant Commissioner, and if so forward copies of the said reference also to this court along with the supplementary statement. The Tribunal shall forward the supplementary statement of the case as mentioned above so as to reach this court on or before August 7, 1993.
8. Post for orders on August 9, 1993.
9. Communicate a copy of this order forthwith to the Assistant Registrar of the Income-tax Appellate Tribunal, Cochin Bench, for information and compliance.